As filed with the Securities and Exchange Commission on November 8, 2018
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)
Delaware | 06-1562417 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
3 Forbes Road, Lexington, MA 02421
(Address of principal executive offices, including zip code)
AGENUS INC. AMENDED AND RESTATED 2009 EQUITY INCENTIVE PLAN
AGENUS INC. AMENDED AND RESTATED DIRECTORS DEFERRED COMPENSATION PLAN
(Full title of the plan)
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:
Zachary Blume
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
(617) 951-7000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☒ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee |
||||
Common Stock, $0.01 par value per share |
4,814,828 (2) | $1.85 (3) | $8,907,431.80 | $1,079.58 | ||||
Common Stock, $0.01 par value per share |
3,344,718 (4) | $5.65 | $18,897,656.70 | $2,290.40 | ||||
Common Stock, $0.01 par value per share |
787,264 (5) | $4.11 | $3,235,655.70 | $392.16 | ||||
Common Stock, $0.01 par value per share |
53,190 (6) | $3.76 | $199,994.40 | $24.24 | ||||
Common Stock, $0.01 par value per share |
100,000 (7) | $1.85 (3) | $185,000.00 | $22.42 | ||||
Total |
9,100,000 | $31,425,737.94 | $3,808.80 | |||||
|
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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 reserved for issuance pursuant to future awards under the Registrants Amended and Restated 2009 Equity Incentive Plan, as amended (the Plan). |
(3) |
Estimated solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(h) under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are calculated on the basis of the average of the high ($1.93) and low ($1.77) sale prices per share of the common stock on the Nasdaq Capital Market as of November 5, 2018, which is a date within five business days prior to filing this Registration Statement. |
(4) |
Represents shares of common stock reserved for issuance upon the exercise of stock options previously granted on March 2, 2018 under the Plan. |
(5) |
Represents shares of common stock reserved for issuance upon the exercise of restricted stock units previously granted on April 16, 2018 under the Plan. |
(6) |
Represents shares of common stock reserved for issuance upon the exercise of restricted stock units previously granted on April 19, 2018 under the Plan. |
(7) |
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 Amended and Restated Directors Deferred Compensation Plan (the DDCP). |
Explanatory Note
This registration statement on Form S-8 is being filed to register an additional 9,000,000 shares of common stock of Agenus Inc. (the Registrant) issuable under the Registrants Amended and Restated 2009 Equity Incentive Plan, as amended (the Plan). Additionally, the Registrant hereby increases the number of shares of the Registrants Common Stock available for future issuance under the Amended and Restated Directors Deferred Compensation Plan (the DDCP) by one hundred thousand shares so that a total of 425,000 shares will be available under the DDCP.
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. 333-212889, 333-209074, 333-195851, 333-189926, 333-183066, 333-176609, 333-160084, 333-143807 and 333-106072, filed by the Registrant on August 4, 2016, January 21, 2016, May 9, 2014, July 12, 2013, August 3, 2012, September 1, 2011, June 19, 2009, June 15, 2007 and June 12, 2003, respectively, relating to the Plan and the DDCP.
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:
a) |
our Annual Report on Form 10-K for the year ended December 31, 2017; |
b) |
our Quarterly Report on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018; |
c) |
our Current Reports on Form 8-K filed on October 11, 2018, September 21, 2018, July 12, 2018, June 22, 2018, May 11, 2018, May 8, 2018, January 22, 2018 and January 8, 2018 (except, with respect to each of the foregoing, for portions of such reports which were deemed to be furnished and not filed); |
d) |
our Proxy Statement on Schedule 14A filed with the SEC on April 26, 2018; and |
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 8 |
Exhibits. |
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 8th day of November, 2018.
Agenus Inc. |
||
By: |
/s/ Garo H. Armen, Ph.D. |
|
Garo H. Armen, Ph.D. | ||
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 Armen, Evan Kearns and Christian Cortis, 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 of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date |
||
/s/ Garo H. Armen, Ph.D. Garo H. Armen, Ph.D. |
Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
November 8, 2018 |
||
/s/ Christian Cortis, Ph.D. Christian Cortis |
Chief Strategy Officer and Head of Finance (Principal Financial Officer) |
November 8, 2018 |
||
/s/ Christine M. Klaskin Christine M. Klaskin |
Vice President, Finance (Principal Accounting Officer) |
November 8, 2018 |
||
/s/ Brian Corvese Brian Corvese |
Director |
November 8, 2018 |
||
/s/ Wadih Jordan Wadih Jordan |
Director |
November 8, 2018 |
||
/s/ Ulf Wiinberg Ulf Wiinberg |
Director |
November 8, 2018 |
||
/s/ Timothy R. Wright Timothy R. Wright |
Director |
November 8, 2018 |
Exhibit 5.1
November 8, 2018
Agenus Inc.
3 Forbes Road
Lexington, MA 02421
Ladies and Gentlemen:
This opinion letter is furnished to you in connection with the registration statement on Form S-8 (the Registration Statement ), filed by Agenus Inc., a Delaware corporation (the Company ), on the date hereof, with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Securities Act ), for the registration of 9,100,000 shares of Common Stock, $0.01 par value, of the Company (the Shares ). 9,000,000 Shares are issuable under the Companys Amended and Restated 2009 Equity Incentive Plan, as amended (the Plan ) and 100,000 shares are issuable under the Companys Amended and Restated Directors Deferred Compensation Plan (the DDCP , and together with the Plan, the Plans ).
We are familiar with the actions taken by the Company in connection with the adoption of the Plans. We have examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold in accordance with the terms of the Plans, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray 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 with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting incorporated by reference herein. Our report dated March 16, 2018 contains an explanatory paragraph that states that the Companys recurring losses from operations and net capital deficiency raise substantial doubt about the entitys ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Boston, Massachusetts
November 8, 2018