As filed with the Securities and Exchange Commission on November 9, 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 Registrants 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, please 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, please 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, smaller reporting company and emerging growth
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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Emerging growth company
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☐
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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 13(a) of the Exchange Act. ☐
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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999,317
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$3.61
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$3,607,534.37
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$450
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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 999,317 shares of its common stock that were initially issued pursuant to Asset Purchase Agreement dated as of
April 7, 2015, as amended, by and among the Registrant, Celexion, LLC, and each of Flagship Ventures Fund 2007 LP, Brian M. Baynes and Alexandria Equities, LLC. 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 November 7, 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 November 9, 2017
PROSPECTUS
999,317 SHARES OF COMMON STOCK
This prospectus relates to the disposition from time to time of up to 999,317 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 an Asset Purchase Agreement, dated April 7, 2015, as amended (the Asset Purchase Agreement).
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 10 of this prospectus.
Our common stock is listed on The Nasdaq Capital Market and trades under the symbol AGEN. On
November 8, 2017, the last sale price of our common stock as reported on the Nasdaq Capital Market was $3.50 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.
Our Business
We are a clinical-stage immuno-oncology
(I-O)
company focused on the discovery and
development of therapies that engage the bodys immune system to fight cancer. Our approach to cancer immunotherapy involves a diverse portfolio consisting of antibody-based therapeutics, adjuvants and cancer vaccine platforms. We, in
collaboration with our partners, are developing a number of immuno-modulatory antibodies against important nodes of immune regulation. These include antibodies targeting
CTLA-4,
GITR, OX40, and
PD-1
that are in clinical development. Our discovery pipeline includes a number of proprietary checkpoint modulating (CPM) antibodies against innovative targets such as TIGIT and
CD-137.
We believe that tailored combination therapies are essential to combat some of the most resistant cancers. Accordingly, our immune education strategy focuses on pursuing antibodies as well as vaccine
candidates in conjunction with adjuvants.
We are developing a comprehensive
I-O
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 and PhosPhoSynVax
TM
; and
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our saponin-based vaccine adjuvants, principally our
QS-21
Stimulon
®
adjuvant, or
QS-21
Stimulon.
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We also have our own good manufacturing practices manufacturing
facility with the capacity to support early phase clinical programs.
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 more than a
dozen antibody programs in preclinical or early phase development, including our
anti-CTLA-4
and
anti-PD-1
antibody programs
(both partnered with Recepta for certain South America territories) and anti-GITR and anti-OX40 antibody programs (both partnered with Incyte), all of which are in Phase 1 clinical trials. In February 2017, we amended our collaboration
agreement with Incyte to, among other things, convert the GITR and OX40 programs from profit-share to royalty-bearing programs. We are now eligible to receive royalties on global net sales at a flat 15% rate for each of these programs. There
are no longer any profit-share programs remaining under the collaboration, and we are eligible to receive up to a total of $510.0 million in future potential development, regulatory and commercial milestones across all programs in the
collaboration. Pursuant to the amended agreement, we received accelerated milestone payments of $20.0 million from Incyte related to the clinical development of our antibodies targeting GITR and OX40. Concurrent with the execution of
the amendment, we and Incyte also entered into a separate stock purchase agreement whereby Incyte purchased an additional 10 million shares of our common stock at $6.00 per share, resulting in additional proceeds of $60.0 million to us.
In addition to our antibody platforms and CPM programs, we are also advancing a series of vaccine programs to treat cancer. In January
2017, we announced a clinical trial collaboration with the National Cancer Institute (NCI), which is a double-blind, randomized controlled Phase 2 trial that will evaluate the effect of our autologous vaccine candidate, Prophage, in
combination with pembrolizumab (Keytruda
®
, Merck & Co., Inc. (Merck)) in patients with ndGBM. Under this collaboration, we are suppling Prophage, Merck is providing
pembrolizumab and the NCI and Brain Tumor Trials Collaborative member sites are recruiting patients and conducting the trial. Earlier this year, we also initiated a Phase 1 clinical trial for our neoantigen vaccine candidate, AutoSynVax
(ASV), in patients with advanced cancer. ASV is being used in combination with our
QS-21
Stimulon adjuvant.
1
Our
QS-21
Stimulon adjuvant is also 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 and cancer. These programs are in various stages, with the most advanced
being GSKs shingles program. In 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 and received net proceeds
of approximately $78.2 million. In 2016, GSK filed for approval of its shingles vaccine candidate in the United States, European Union and Canada, and in 2017 it filed for approval in Japan. In October 2017, GSKs shingles vaccine was
approved in the United States by the U.S. Food and Drug Administration and granted marketing authorization in Canada by Health Canada. The first products containing
QS-21
Stimulon are anticipated to be
launched by GSK in 2018. We do not incur clinical development costs for products partnered with GSK.
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.
We have incurred significant losses since our inception. As of September 30,
2017, we had an accumulated deficit of $991.4 million. Since our inception, we have successfully financed our operations through the sale of equity, notes, corporate partnerships, and interest income. Based on our current plans, including
additional funding we anticipate from multiple sources between now and the end of the first quarter of 2018, including
out-licensing
and/or partnering opportunities, we believe that our cash resources of
$70.1 million as of September 30, 2017 plus the additional $15 million of proceeds we have irrevocably elected to draw down from our existing note agreement will be sufficient to satisfy our liquidity requirements into the third
quarter of 2018. We also continue to monitor the likelihood of success of our key initiatives and can discontinue funding of such activities if they do not prove to be successful, restrict capital expenditures and/or reduce the scale of our
operations if necessary. However, in spite of these anticipated sources of funding and our ability to control our cash burn, in accordance with the requirements of Accounting Standards Update
2014-15,
we are
required to disclose the existence of a substantial doubt regarding our ability to continue as a going concern for twelve months from when the September 30, 2017 financial statements were issued.
You can find more information about us in our filings with the Securities and Exchange Commission (the SEC) referenced in the
sections in this document titled Where You Can Find More Information and Incorporation of Certain Documents by Reference beginning on pages 14 and 15, respectively.
Corporate Information
Our principal
executive office is located at 3 Forbes Road, Lexington, MA, 02421, and our telephone number is
(781) 674-4400. Our
website address is www.agenusbio.com. Information contained on our website is not a
part of this prospectus.
ASV
TM
, AutoSynVax
TM
, Oncophage
®
, PSV
TM
,
PhosphoSynVax
TM
, Prophage
TM
, Retrocyte Display
TM
, SECANT
®
and Stimulon
®
are trademarks of Agenus Inc. and its subsidiaries. All rights reserved.
2
The Offering
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Common Stock offered by the selling stockholder
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999,317 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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3
RISK FACTORS
Investing in our securities involves a high degree of risk. Before purchasing our securities, you should carefully consider the risk factors
relating to Agenus incorporated by reference in this prospectus from our Quarterly Report on
Form 10-Q for
the quarter ended September 30, 2017, as well as the risks, uncertainties and
additional information set forth in our SEC reports on
Forms 10-K, 10-Q and 8-K and
in the other
documents incorporated by reference in this prospectus. For a description of these reports and documents, and information about where you can find them, see Where You Can Find More Information and Incorporation of Certain Documents
By Reference. Additional risks not presently known or that we presently consider to be immaterial could subsequently materially and adversely affect our financial condition, results of operations, business and prospects.
4
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, as amended (the Securities Act) and Section 21E of the Securities Exchange Act of 1934, as amended (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.
5
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 99,743,257 issued and outstanding as
of September 30, 2017. 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 September 30, 2017.
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 SEC. The terms of these
securities may also be affected by the General Corporation Law of the State of Delaware.
6
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.
7
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 999,317 shares of our common stock.
On April 7, 2015, we entered into the
Asset Purchase Agreement with the selling stockholder and the members of the selling stockholder, pursuant to which we acquired certain assets from the selling stockholder. In accordance with the terms of the Asset Purchase Agreement, we made an
initial cash payment of $1 million to the selling stockholder at closing and issued the selling stockholder 574,140 shares of our common stock. In addition, we agreed to pay the selling stockholder $1 million in cash payable on each of the
9-month
and
18-month
anniversaries of the closing and $4 million on each of the
12-month
and
24-month
anniversaries of the closing (payable at our discretion in cash, shares of our common stock, or any combination thereof). We have since paid all of these in cash, except for the final payment. We
subsequently amended the Asset Purchase Agreement to provide that the final payment would be extended until November 9, 2017 and would be comprised of $4.1 million of our common stock.
In connection with certain registration rights we granted to the selling stockholder pursuant to the Asset Purchase Agreement, we filed with
the SEC a registration statement on
Form S-3,
of which this prospectus forms a part, with respect to the resale or other disposition of the shares of common stock offered by this prospectus from time
to time on the Nasdaq Capital Market, in privately negotiated transactions or otherwise. We have agreed to prepare and file amendments and supplements to the registration statement to the extent necessary to keep the registration statement effective
for the period of time required under our agreement with the selling stockholder.
The issuance of the shares of our common stock in
connection with the Asset Purchase Agreement was not registered under 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.
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 November 7, 2017. 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.
8
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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(1)
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Percent
of
Class
(%)
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Celexion, LLC
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999,317
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*
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999,317
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0
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*
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(1)
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Assumes that all the shares of the selling stockholder covered by this prospectus are sold, 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 can offer all, some, or none of its common stock, no definitive estimate can be given as to the number of shares that the selling stockholder will ultimately offer or sell under this prospectus.
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9
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 agents 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).
10
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 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 Exchange Act, and the rules and regulations thereunder, including, without limitation, to
the extent applicable, Regulation M of the 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.
11
LEGAL MATTERS
The validity of the securities that may be offered hereby will be passed upon for us by Ropes & Gray LLP, Boston, Massachusetts.
12
EXPERTS
The consolidated financial statements of Agenus Inc. as of December 31, 2016 and 2015, and for each of the years in the three-year period
ended December 31, 2016, and managements assessment of the effectiveness of internal control over financial reporting as of December 31, 2016 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.
13
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 SECs 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 website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. The
address of the SECs website is http://www.sec.gov. Documents we have filed with the SEC are also available on our website at www.agenusbio.com. Information contained on our website does not constitute a part of this prospectus and is not
incorporated by reference herein.
14
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.
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our Annual Report on
Form 10-K for
the year ended December 31, 2016
(File No. 000-29089);
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our Quarterly Reports on
Form 10-Q for
the quarterly periods ended March 31, 2017, June 30, 2017 and September 30, 2017
(File No. 000-29089);
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our Current Reports on
Form 8-K filed
on January 17, 2017, February 14, 2017, March 30, 2017, April 20, 2017 and June 30, 2017 (except, with
respect to each of the foregoing, for portions of such reports which were deemed to be furnished and not filed)
(File No. 000-29089);
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our Proxy Statement on Schedule 14A filed with the SEC on May 8, 2017
(File No. 000-29089);
and
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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
(File No. 000-29089).
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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 each person to whom this prospectus is delivered a copy of all of the information that has been incorporated by reference in
this prospectus but not delivered with this prospectus. You may obtain copies of these filings, at no cost, through the Investor section of our website (www.agenusbio.com), and you may request copies of these filings, at no cost, by
writing or telephoning us at:
Agenus Inc.
3 Forbes Road
Lexington, MA 02421
Attention: Legal Department
Telephone: (781)
674-4400
The information contained on our website is not a part of this prospectus.
15
, 2017
PROSPECTUS
999,317 Shares of Common Stock
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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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450
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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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30,450.00
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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 attorneys
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 corporations 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 persons 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 directors 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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Asset Purchase Agreement, dated April
7, 2015, by and among Agenus Inc., Celexion, LLC, and certain members of Celexion, LLC. Filed as Exhibit 2.1 to our Current Report on Form
8-K
(File
No.
000-29089)
filed on April 8, 2015 and incorporated herein by reference.
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4.3*
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Amendment to Asset Purchase Agreement, dated July 7, 2017, by and among Agenus Inc. and Celexion, LLC.
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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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(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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II-2
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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 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 registrants 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 plans 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)
|
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 9th
day of November, 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
|
|
TITLE
|
|
DATE
|
|
|
|
/s/ Garo H. Armen
Garo H. Armen
|
|
Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)
|
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November 9, 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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November 9, 2017
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|
/s/ Brian Corvese
Brian Corvese
|
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Director
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|
November 9, 2017
|
|
|
|
/s/ Wadih Jordan
Wadih Jordan
|
|
Director
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|
November 9, 2017
|
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|
|
/s/ Shalini Sharp
Shalini Sharp
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|
Director
|
|
November 9, 2017
|
|
|
|
/s/ Ulf Wiinberg
Ulf Wiinberg
|
|
Director
|
|
November 9, 2017
|
|
|
|
/s/ Timothy R. Wright
Timothy R. Wright
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|
Director
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November 9, 2017
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II-5
INDEX TO EXHIBITS
|
|
|
|
|
4.1
|
|
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.
|
|
|
4.2
|
|
Asset Purchase Agreement, dated April 7, 2015, by and among Agenus Inc., Celexion, LLC, and certain members of Celexion, LLC. Filed as Exhibit 2.1 to our Current Report on Form
8-K
(File
No. 000-29089)
filed on April 8, 2015 and incorporated herein by reference.
|
|
|
4.3*
|
|
Amendment to Asset Purchase Agreement, dated July 7, 2017, by and among Agenus Inc. and Celexion, LLC.
|
|
|
5.1*
|
|
Opinion of Ropes & Gray LLP.
|
|
|
23.1
|
|
Consent of Ropes & Gray LLP (included in Exhibit 5.1).
|
|
|
23.2*
|
|
Consent of KPMG LLP, an independent registered public accounting firm.
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24.1
|
|
Power of Attorney (included in the signature page to this Registration Statement).
|
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