-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SAS4bE2/CDn3DD+9Kh3A/AzcDtPoyfVGrZX2WqNd2iJaWxBrVGW0AvUOdXQnlHqq nXjM4/Zf9dy9XE2IKlSCiQ== 0000950135-04-002845.txt : 20040527 0000950135-04-002845.hdr.sgml : 20040527 20040527150228 ACCESSION NUMBER: 0000950135-04-002845 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20040521 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040527 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANTIGENICS INC /DE/ CENTRAL INDEX KEY: 0001098972 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 061562417 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-29089 FILM NUMBER: 04834832 BUSINESS ADDRESS: STREET 1: 630 FIFTH AVENUE SUITE 2170 CITY: NEW YORK STATE: NY ZIP: 10111 BUSINESS PHONE: 2123324774 MAIL ADDRESS: STREET 1: 630 FIFTH AVENUE SUITE 2170 CITY: NEW YORK STATE: NY ZIP: 10111 8-K 1 b50688aie8vk.txt ANTIGENICS, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT FILED PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (Date of Earliest Event Reported): May 21, 2004 ANTIGENICS INC. (Exact Name of Registrant as Specified in its Charter) DELAWARE 000-29089 06-1562417 (State or Other Jurisdiction of (Commission File (I.R.S. Employer Incorporation or Organization) Number) Identification No.) 630 FIFTH AVENUE, SUITE 2100 NEW YORK, NEW YORK 10111 (Address of Principal Executive Offices and Zip Code) (212) 994-8200 (Registrant's Telephone Number, Including Area Code) ITEM 5. Other Events. On May 21, 2004, Antigenics Inc. (the "Company") entered into a Right of First Refusal Agreement (the "Agreement") with Brad M. Kelley, an existing stockholder of the Company. A copy of the Agreement is filed herewith as Exhibit 4.1. On May 26, 2004, the stockholders of the registrant approved Amendment No.1 to the Antigenics Inc. 1999 Equity Incentive Plan (the "Plan") to increase the number of shares of the registrant's common stock available under the Plan from 6 million to 10 million. A copy of the Plan, as amended, is filed herewith as Exhibit 10.1. ITEM 7. Financial Statements, Pro Forma Financial Statements and Exhibits. (c) Exhibits: 4.1 Right of First Refusal Agreement dated as of May 21, 2004, between Antigenics Inc. and Brad M. Kelley. 10.1 1999 Equity Incentive Plan, as amended. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ANTIGENICS INC. Date: May 26, 2004 By: /s/ Garo H. Armen _______________________ Garo H. Armen Chief Executive Officer EXHIBIT INDEX The following designated exhibits are filed herewith: Exhibits:
Exhibit No. Description - ----------- ----------- 4.1 Right of First Refusal Agreement dated as of May 21, 2004, between Antigenics Inc. and Brad M. Kelley. 10.1 Amendment No. 2 to Antigenics Inc. 1999 Equity Incentive Plan.
EX-4.1 2 b50688aiexv4w1.txt RIGHT OF FIRST REFUSAL AGREEMENT EXHIBIT 4.1 RIGHT OF FIRST REFUSAL AGREEMENT This Right of First Refusal Agreement (this "Agreement"), dated as of May 21, 2004, is between Antigenics Inc. , a Delaware corporation (the "Company"), and Brad M. Kelley (the "Purchaser"). RECITALS WHEREAS, on September 24, 2003, the Purchaser purchased shares of the Company's Series A Convertible Preferred Stock (the "Preferred Stock"); WHEREAS, the Company and the Purchaser desire to establish in this Agreement certain conditions of the relationship with the Company of the Purchaser and their Affiliates and Associates; and WHEREAS, the Company and the Purchaser desire to limit the applicability of this Agreement to the Preferred Stock and the securities issued upon conversion of the Preferred Stock, including any securities issued in exchange therefore, in substitution thereof, or with respect thereto (the "Conversion Shares"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below: "Action" means any claim, action, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), controversy, assessment, arbitration, investigation, hearing, charge, complaint, demand, notice or proceeding to, from, by or before any United States federal, state or local or any foreign government, or political subdivision thereof, or any multinational organization or authority or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any arbitrator or arbitral body. "Affiliate" shall have the meaning given it in Rule 12b-2 under the Exchange Act. "Agreement" shall have the meaning set forth in the preamble. "Associate" shall have the meaning given it in Rule 12b-2 under the Exchange Act. -1- "Beneficial Owner" shall have the meaning given it in Rule 13(d)(3) under the Exchange Act; and "Beneficially Own" and "Beneficial Ownership" shall apply to securities held by a Beneficial Owner of such securities. "Change of Control" shall mean (1) the acquisition by a Third Party of more than 50% of the Company's then outstanding Voting Securities, excluding however, the acquisition by an underwriter or group of underwriters pursuant to an Underwriting Agreement (or similar agreement) in a registered public offering to the public; (2) the consummation of a merger, acquisition, consolidation or reorganization or series of such related transactions involving the Company, unless both (x) immediately after such transaction or transactions, the Beneficial Owners of the Company immediately prior to such transaction shall Beneficially Own at least 50% of the outstanding Voting Securities of the Company (or, if the Company shall not be the surviving company in such merger, consolidation or reorganization, the Voting Securities of the surviving corporation issued in such transaction in respect of Voting Securities of the Company shall represent at least 50% of the Voting Securities of such surviving company), and (y) the Company is not subject to an agreement that provides that individuals who are directors of the Company immediately prior to such transaction (or individuals designated by the Company at or before the closing of such transaction) shall constitute less than a majority of the directors of the Company (or such surviving company, as the case may be) after the closing of such transaction; (3) a change or changes in the membership of the Company's Board of Directors which represents a change of a majority or more of such membership during any twelve month period (unless such change or changes in membership are caused by the actions of the then-existing Board of Directors); (4) an Insolvency Proceeding (as defined below); or (5) the consummation of a sale of all or substantially all of the Company's assets unless, immediately after such transaction, the Beneficial Owners of the Company immediately prior to such transaction shall Beneficially Own at least 50% of the Voting Securities of the acquiring company. "Company's Notice" shall have the meaning set forth in Section 3.1. "Conversion Shares" shall have the meaning set forth in the preamble. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Group" shall mean two or more persons acting as a partnership, limited partnership, limited liability company, syndicate or other group for the purposes of acquiring, holding, or disposing of securities or material assets of an issuer. "Insolvency Proceeding" shall mean (1) an assignment by the Company for the benefit of creditors, (2) the filing by the Company of a petition to have the Company adjudged insolvent, bankrupt or which seeks a reorganization or liquidation under any law relating to bankruptcy, insolvency or receivership, (3) an appointment of a receiver or trustee for all or substantially all of the assets of the Company, unless appointed without the Company's consent, and such appointment has not been vacated or stayed after 60 days or (4) a public admission in writing of the Company's inability to pay its debts as they come due. -2- "Majority In Interest" means the Purchaser (and his transferees pursuant to Section 3.1.6(d) and Section 3.1.6(g)) holding more than 50% of the Voting Power of the shares of Preferred Stock and the Conversion Shares that remain subject to the restrictions in this Agreement, taken together. "Offer Price" shall have the meaning set forth in Section 3.1. "Offered Shares" shall have the meaning set forth in Section 3.1. "Person" shall mean an individual, corporation, partnership, association, trust, unincorporated organization or other entity. "Purchaser's Notice" shall have the meaning set forth in Section 3.1. "Preferred Stock" shall have the meaning set forth in the preamble. "Purchaser" shall have the meaning set forth in the preamble. "Reduced Transfer Price" shall have the meaning set forth in Section 3.1. "Reduced Transfer Price Notice" shall have the meaning set forth in Section 3.1. "Restricted Securities" shall have the meaning set forth in Section 3.4.1. "Securities Act" shall mean the Securities Act of 1933, as amended. "SEC" means the Securities and Exchange Commission. "Third Party" shall mean any Person (other than the Purchaser and his Affiliates and Associates) or Group (other than any Group that includes the Purchaser or his Affiliates or Associates). "Total Voting Power" at any date, with respect to any Person, shall mean the total combined Voting Power of all the Voting Securities of such Person then outstanding and entitled to vote. "Transfer" shall have the meaning set forth in Section 3.1. "Voting Power" with respect to any Voting Securities of any Person on any date shall mean the voting power in the general election of directors of the relevant Person to which such Voting Securities would be entitled on such date. "Voting Securities" of any Person shall mean any securities entitled to vote generally in the election of directors of such Person, or any direct or indirect rights or options or warrants to acquire any such securities or any securities (including, without limitation, the Preferred Stock) convertible or exercisable into or exchangeable for such securities, whether or not such securities are so convertible, exercisable or exchangeable at the time of determination. -3- 2. TERM AND SUSPENSION OF RESTRICTIONS. 2.1. Term. The term (the "Term") of this Agreement shall commence on the date hereof and shall continue until the earlier to occur of the following: (a) a Change of Control of the Company or (b) the date on which the Voting Power of the Voting Securities of the Company Beneficially Owned by the Purchaser and all Affiliates and Associates of the Purchaser represents less than five percent (5%) of the Total Voting Power of the Company, assuming, for purposes of this calculation, conversion of all outstanding Preferred Stock or (c) the date which is the four (4) year anniversary of the date of the purchase of the Preferred Stock. 2.2. Suspension of Restrictions. The limitations provided in Section 3 shall immediately be suspended upon the occurrence of any of the following events: (a) on the 10th business day (as such term is defined in Rule 14d-1 under the Exchange Act) following the commencement by any Third Party of a tender or exchange offer seeking to acquire Beneficial Ownership of 50% or more of the outstanding shares of Voting Securities of the Company, but only if the Company has, on or prior to such date, publicly recommended that such offer be accepted; (b) the execution of a definitive agreement which, if consummated, would result in a Change of Control of the Company; (c) the 15th day following the filing of a preliminary proxy statement by any Third Party with respect to the commencement of a bona fide proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove a majority of the directors of the Company that is not publicly opposed by the Company's Board of Directors and which, if successful, would result in a change in the composition of a majority of the Board of Directors of the Company; or (d) the adoption by the Board of Directors of a plan of liquidation or dissolution. The Company shall provide the Purchaser with prompt written notice of the occurrence of any of the events set forth in this Section 2.2. Upon any (i) withdrawal or lapsing of any such tender or exchange offer referred to in Section 2.2(a) in which such Third Party does not acquire more than 50% of the outstanding Voting Securities of the Company, (ii) the termination of the agreement referred in Section 2.2(b) without consummation thereof, (iii) the withdrawal or termination or failure of the solicitation referred to in Section 2.2(c) or (iv) the termination of the plan of liquidation referenced in Section 2.2(d), as -4- the case may be, the limitations provided in Section 3 (except to the extent then suspended as a result of any other event specified in this Section 2.2) shall again be applicable for so long as and only to the extent provided in this Agreement. 2.3. Applicability. The restrictions in Section 3 of this Agreement apply only to the Conversion Shares and do not apply to any of Purchaser's other holdings of Common Stock of the Company. 2.4. Ownership of Company Voting Securities. On the date hereof, the Purchaser represents that, to the best of his knowledge, neither the Purchaser nor any of his Affiliates or Associates Beneficially Owns any Voting Securities of the Company, except as set forth on Schedule 2.4. 3. TRANSFER RESTRICTIONS. 3.1. Right of First Refusal. 3.1.1 If the Purchaser desires to, directly or indirectly, sell, assign, grant, loan, gift, put, call, make any short sale of, pledge or hypothecate, or grant other similar rights with respect to or otherwise transfer or dispose of (each a "Transfer") any Conversion Shares other than pursuant to an Exempted Transfer, he shall provide written notice (a "Purchaser's Notice") to the Company (a) stating that he desires to make such Transfer, and (b) setting forth the number of Conversion Shares proposed to be transferred (the "Offered Shares"), the cash price per share that he proposes to be paid for such Offered Shares (the "Offer Price"), and the other material terms and conditions of such Transfer. A Purchaser's Notice shall constitute an irrevocable offer by the Purchaser to sell to the Company the Offered Shares at the Offer Price in cash. 3.1.2 Within ten days after receipt of a Purchaser's Notice from the Purchaser, the Company may elect to purchase all (but not less than all) of the Offered Shares at the Offer Price in cash by delivery of a notice ("Company's Notice") to the Purchaser stating the Company's irrevocable acceptance of the Offer. 3.1.3 If the Company fails to elect to purchase all of the Offered Shares within the time period specified in Section 3.1.2, the Purchaser may, within a period of 90 days following the expiration of the time period specified in Section 3.1.2, Transfer all or any Offered Shares for cash; provided, that if the purchase price per share to be paid by any purchaser of the Offered Shares is less than 95% of the Offer Price (the "Reduced Transfer Price"), the Purchaser shall promptly provide written notice (the "Reduced Transfer Price Notice") to the Company of such intended Transfer (including the material terms and conditions thereof) and the Company shall have the right, exercisable by delivery of a written election notice to the Purchaser within ten days of receipt of such notice, to purchase such Offered Shares at the Reduced Transfer Price. -5- 3.1.4 If the Company fails to elect to purchase the Offered Shares at the Offer Price (or, if applicable, the Reduced Transfer Price) within the relevant time period specified in Section 3.1.2 (or, if applicable, Section 3.1.3) and the Purchaser shall not have transferred or entered into an agreement to transfer the Offered Shares prior to the expiration of the 90 day period specified in Section 3.1.3, the right of the first refusal under this Section 3.1 shall again apply in connection with any subsequent Transfer of such Offered Shares. 3.1.5 Any purchase of Offered Shares by the Company pursuant to this Section 3.1 shall be on a mutually determined closing date that shall be not less than 30 days nor more than 60 days after the last Purchaser's Notice or Reduced Transfer Price Notice is given with respect to such purchase. The closing shall be held at 10:00 A.M., local time, at the principal executive office of the Company, or at such other time or place as the parties mutually agree. On the closing date, the Purchaser shall deliver (a) certificates representing the Offered Shares being sold, free and clear of any lien and (b) such other documents, including evidence of ownership and authority, as the Company may reasonably request. The purchase price shall be paid by wire transfer of immediately available funds no later than 2:00 P.M. on the closing date. 3.1.6 An "Exempted Transfer" means (a) A Transfer to the Company; (b) A Transfer pursuant to a merger, consolidation or other business combination involving the Company that has been approved by the Board of Directors of the Company; (c) A Transfer to any Person or Group, if such Transfer is approved by the Board of Directors of the Company in writing in advance; (d) A Transfer to an Affiliate of such Purchaser, provided that such Affiliate (i) agrees to be bound by the terms and conditions of this Agreement applicable to the Purchaser in a written instrument acceptable to the Company (it being understood that any transferee of Conversion Shares pursuant to this clause (d) or clause (g) below shall not be permitted to transfer such Conversion Shares pursuant to the terms of this clause (d) other than to the Purchaser or an Affiliate of the Purchaser) and (ii) agrees to transfer promptly to the Purchaser any Conversion Shares so Transferred to such Affiliate if the Affiliate ceases to be an Affiliate of the Purchaser; (e) A sale pursuant to a firm commitment, underwritten public offering of securities registered under the Securities Act; (f) An open market sale to the public pursuant to Rule 144 under the Securities Act that complies with the manner of sale provisions under paragraph (f) of Rule 144; or -6- (g) A private Transfer exempt from the registration requirements under the Securities Act; provided, however, that (i) such transferee shall agree to be bound by the terms and conditions of this Agreement applicable to the Purchaser in a written instrument acceptable to the Company and (ii) such Transfer is not made to: (A) any Person or Group which has theretofore filed a Schedule 13D with the SEC with respect to any class of "equity security" (as defined in Rule 3a11-1 under the Exchange Act) of the Company and which, at the time of such sale, continues to reflect Beneficial Ownership in excess of five percent (5%) of the Total Voting Power of the Company; (B) any Person or Group which, after giving effect to the sale and to the knowledge of such Purchaser (after reasonable investigation), will Beneficially Own Voting Securities that reflect in excess of five percent (5%) of the Total Voting Power of the Company or to the knowledge of such Purchaser (after reasonable investigation) be accumulating stock on behalf of or acting in concert with any such Person or Group or a Person or Group contemplated by clause (A) above, or (C) any Person or Group that has announced or commenced an unsolicited offer for any Voting Securities of the Company or publicly initiated, proposed or otherwise solicited Company stockholders for the approval of one or more stockholder proposals with respect to the Company or publicly made, or in any way participated in, any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the Exchange Act) with respect to any Voting Securities of the Company. 3.2. Procedures for Certain Transfers. Prior to any proposed transfer of any Conversion Shares pursuant to Section.3.1.6, the Purchaser shall provide written notice to the Company of the Purchaser's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and, an explanation of how the transfer complies with any restrictive legends on the certificates evidencing such Conversion Shares. 3.3. Impermissible Transfers. Any Transfer in contravention of the provisions of Section 3.1 shall be null and void, and the Company shall have no obligation in any way to give effect to any such impermissible Transfer. 3.4. Legends. 3.4.1 Required Legends. The certificate or certificates representing (a) any Preferred Stock, (b) any Conversion Shares and (c) any securities issued in respect of the foregoing as a result of any stock split, stock dividend, recapitalization, or similar transaction (such securities identified in clauses (a), (b) and (c), collectively, the "Restricted Securities"), shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legends required pursuant to the Certificate of Designations of the Preferred Stock, any other agreement between the parties hereto or the laws of any applicable jurisdiction): -7- THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN OBLIGATIONS CONTAINED IN A RIGHT OF FIRST REFUSAL AGREEMENT DATED AS OF MAY 21, 2004, A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER HEREOF. 3.4.2 Removal of Legends. Upon the expiration of the Term, or such earlier time as the restrictions imposed by this Agreement cease to apply to any Restricted Securities as result of a Transfer permitted by Section 3.1, which does not require the transferee to be bound by the terms hereof, the holder of such Restricted Securities shall be entitled to receive from the Company, without expense, a replacement certificate evidencing such Restricted Securities which does not bear the legend set forth above. 4. MISCELLANEOUS. 4.1. Notices. All notices, requests, demands, claims and other communications required or permitted to be delivered, given or otherwise provided under this Agreement must be in writing and must be delivered, given or otherwise provided: (a) by hand (in which case, it will be effective upon delivery); (b) by facsimile (in which case, it will be effective upon receipt of confirmation of good transmission); or (c) by overnight delivery by a nationally recognized courier service (in which case, it will be effective on the next weekday, not including any weekday on which banks in New York, New York are authorized or required to be closed, after being deposited with such courier service); in each case, to the address (or facsimile number) listed below: If to the Company, to it at: 630 5th Avenue Suite 2100 New York, NY 10111 Telephone number: (212) 994-8200 Facsimile number: (212) 332-4778 Attention: Chief Executive Officer If to the Purchaser, to him at: P.O. Box 1355 Boca Grande, FL 33921 Telephone number: 941-964-0790 -8- Facsimile number: 941-964-0951 Attention: Brad Kelley With a copy to: Greg A. Betterton, Esq. 981 Ridgewood Avenue, #101 Venice, FL 34285 Telephone number: 941-488-4422 Facsimile number: 941-483-4992 Each of the parties to this Agreement may specify a different address or telecopy number by giving notice in accordance with this Section 4.1 to each of the other parties hereto. 4.2. Succession and Assignment; No Third-Party Beneficiary. Subject to Section 4.2.1 and 4.2.2, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, each of which such successors and permitted assigns shall be deemed to be a party hereto for all purposes hereof. Except as expressly provided herein, this Agreement is for the sole benefit of the parties and their permitted successors and assignees and nothing herein expressed or implied shall give or be construed to give any Person, other than the parties and such successors and assignees, any legal or equitable rights hereunder. 4.2.1 The Purchaser may not assign, delegate or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the Company; provided, however, that this Section 4.2.1 shall not limit the Purchaser's ability to Transfer Voting Securities in accordance with Section 3.1 (provided that, notwithstanding any such Transfer, the Purchaser shall continue to be bound by its obligations under this Agreement). The terms and provisions of this Agreement shall not be binding upon any transferee of the Purchaser that purchases any securities subject to this Agreement without violation of any provision of this Agreement, except for an Affiliate of the Purchaser that acquires any such securities pursuant to Section 3.1.6(d) and any Person that acquires any such securities pursuant to Section 3.1.6(g). 4.2.2 The Company may not assign, delegate or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of a Majority in Interest, except that the Company may assign all or part of this Agreement and its rights, interests and obligations hereunder to the successor or an assignee of substantially all of the Company's business without such prior written approval. 4.3. Amendments and Waivers. No amendment or waiver of any provision of this Agreement shall be valid and binding unless the same shall be in writing and signed, (a) in the case of an amendment, by the Company and a Majority in Interest, (b) in the case of a waiver that is to be effective against the Company, by the -9- Company or (c) in the case of a waiver that is to be effective against the Purchasers, by a Majority in Interest. No waiver by any party of any breach of any provision hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent breach of any such provision hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No delay or omission on the part of any party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof. 4.4. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect thereto. 4.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by the other parties hereto. 4.6. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, each party hereto intends that such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. 4.7. Headings. The headings contained in this Agreement are for convenience purposes only and shall not in any way affect the meaning or interpretation hereof. 4.8. Construction. 4.8.1 The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The parties intend that each provision contained herein shall have independent significance. If any party has breached any provision contained herein in any respect, the fact that there exists another provision relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first provision. 4.8.2 Each reference in this Agreement to the Securities Act, the Exchange Act, provisions thereof and rules promulgated thereunder shall be -10- construed as a reference to such act, provision or rule as such may be amended or modified from time to time; provided, however, that in the event that any provision of or rule promulgated under the Securities Act or the Exchange Act is replaced with a new provision or rule, the reference in this Agreement shall be deemed to be a reference to such successor provision or rule. 4.9. Governing Law. This Agreement, the rights of the parties and all Actions arising in whole or in part under or in connection herewith shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. 4.10. Specific Performance. Each of the parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the parties agrees that, without posting bond or other undertaking, the other parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Action instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert the defense that a remedy at law would be adequate. 4.11. Confidentiality. The Purchaser agrees to maintain the confidentiality of any nonpublic information provided to it by the Company pursuant to Section 2.2 of this Agreement until such time such information is publicly disclosed. [REMAINDER OF PAGE INTENTIONALLY BLANK] -11- Right of First Refusal Agreement IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as an agreement under seal as of the date first above written. The Company: ANTIGENICS INC. By: /s/ Garo H. Armen ______________________________________ Name: Garo H. Armen Title: Chief Executive Officer The Purchaser: BRAD M. KELLEY By: /s/ Brad M. Kelley ______________________________________ Name: Brad M. Kelley EX-10.1 3 b50688aiexv10w1.txt AMEND. NO.2 TO 1999 EQUITY INCENTIVE PLAN Exhibit 10.1 ANTIGENICS INC. 1999 EQUITY INCENTIVE PLAN, AS AMENDED SECTION 1. Purpose The purpose of the Antigenics Inc. 1999 Equity Incentive Plan (the "Plan") is to attract and retain directors, key employees and consultants of the Company and its Affiliates, to provide an incentive for them to achieve long-range performance goals, and to enable them to participate in the long-term growth of the Company. SECTION 2. Definitions "Affiliate" means any business entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Company. For purposes hereof, "Control" (and with correlative meanings, the terms "controlled by" and "under common control with") shall mean the possession of the power to direct or cause the direction of the management and policies of the Company, whether through the ownership of voting stock, by contract or otherwise. In the case of a corporation "control" shall mean, among other things, the direct or indirect ownership of more than fifty percent (50%) of its outstanding voting stock. "Award" means any Option, Stock Appreciation Right or Restricted Stock awarded under the Plan. "Board" means the Board of Directors of the Company. "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor to such Code. "Committee" means a committee of not less than two members of the Board appointed by the Board to administer the Plan. If a Committee is authorized to grant Options to a Reporting Person or a "covered employee" within the meaning of Section 162(m) of the Code, each member shall be a "non-employee director" or the equivalent within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended from time to time, or any successor law, and an "outside director" or the equivalent within the meaning of Section 162(m) of the Code, respectively. Until such committee is appointed, "Committee" means the Board. "Common Stock" or "Stock" means the Common Stock, $0.01 par value, of the Company. "Company" means Antigenics Inc. "Designated Beneficiary" means the beneficiary designated by a Participant, in a manner determined by the Committee, to receive amounts due or exercise rights of the Participant in the event of the Participant's death. In the absence of an effective designation by a Participant, "Designated Beneficiary" shall mean the Participant's estate. "Effective Date" means November 15, 1999. "Fair Market Value" means, with respect to Common Stock or any other property, the fair market value of such property as determined by the Committee in good faith or in the manner established by the Committee from time to time. "Incentive Stock Option" means an option to purchase shares of Common Stock awarded to a Participant under Section 6 that is intended to meet the requirements of Section 422 of the Code or any successor provision. "Nonstatutory Stock Option" means an option to purchase shares of Common Stock awarded to a Participant under Section 6 that is not intended to be an Incentive Stock Option. "Option" means an Incentive Stock Option or a Nonstatutory Stock Option. "Participant" means a person selected by the Committee to receive an Award under the Plan. "Reporting Person" means a person subject to Section 16 of the Securities Exchange Act of 1934 or any successor provision. "Restricted Period" means the period of time selected by the Committee during which an Award may be forfeited to the Company pursuant to the terms and conditions of such Award. "Restricted Stock" means shares of Common Stock subject to forfeiture awarded to a Participant under Section 8. "Stock Appreciation Right" or "SAR" means a right to receive any excess in value of shares of Common Stock over the exercise price awarded to a Participant under Section 7. SECTION 3. Administration The Plan shall be administered by the Committee. The Committee shall have authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the operation of the Plan as it shall from time to time consider advisable, and to interpret the provisions of the Plan. The Committee's decisions shall be final and binding. To the extent permitted by applicable law, the Committee may delegate to one or more executive officers of the Company the power to make Awards to Participants who are not Reporting Persons or covered employees and all determinations under the Plan with respect thereto, provided that the Committee shall fix the maximum amount of such Awards for all such Participants and a maximum for any one Participant. SECTION 4. Eligibility All employees, directors and consultants of the Company or any Affiliate capable of contributing significantly to the successful performance of the Company, other than a person who has irrevocably elected not to be eligible, are eligible to be Participants in the Plan. Incentive Stock Options may be granted only to persons eligible to receive such Options under the Code. SECTION 5. Stock Available for Awards (a) Subject to adjustment under subsection (b), Awards may be made under the Plan for up to 10,000,000 shares of Common Stock. If any Award in respect of shares of Common Stock expires or is terminated unexercised or is forfeited without the Participant having had the benefits of ownership (other than voting rights), the shares subject to such Award, to the extent of such expiration, termination or forfeiture, shall again be available for award under the Plan. Common Stock issued through the assumption or substitution of outstanding grants from an acquired company shall not reduce the shares available for Awards under the Plan. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. (b) In the event that the Committee determines that any stock dividend, extraordinary cash dividend, creation of a class of equity securities, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares, warrants or rights offering to purchase Common Stock at a price substantially below fair market value, or other similar transaction affects the Common Stock such that an adjustment is required in order to preserve the benefits or potential benefits intended to be made available under the Plan, then the Committee (subject, in the case of Incentive Stock Options, to any limitation required under the Code) shall equitably adjust any or all of (i) the number and kind of shares in respect of which Awards may be made under the Plan, (ii) the number and kind of shares subject to outstanding Awards, and (iii) the award, exercise or conversion price with respect to any of the foregoing, and if considered appropriate, the Committee may make provision for a cash payment with respect to an outstanding Award, provided that the number of shares subject to any Award shall always be a whole number. (c) Subject to adjustment under Subsection (b): (i) the maximum number of shares of Common Stock with respect to which Options and Stock Appreciation Rights may be granted to any Participant in the aggregate in any calendar year shall not exceed 1,000,000 shares, and (ii) the maximum number of shares of Common Stock that may be granted as Restricted Stock, with respect to which performance goals apply, to any Participant in the aggregate in any calendar year shall not exceed 1,000,000 shares. SECTION 6. Stock Options (a) Subject to the provisions of the Plan, the Committee may award Incentive Stock Options and Nonstatutory Stock Options and determine the number of shares to be covered by each Option, the option price therefor and the conditions and limitations applicable to the exercise of the Option. The terms and conditions of Incentive Stock Options shall be subject to and comply with Section 422 of the Code or any successor provision and any regulations thereunder, and no Incentive Stock Option may be granted hereunder more than ten years after the Effective Date. (b) The Committee shall establish the option price at the time each Option is awarded, which price shall not be less than 100% of the Fair Market Value of the Common Stock on the date of award with respect to Incentive Stock Options. Nonstatutory Stock Options may be granted at such prices as the Committee may determine. (c) Each Option shall be exercisable at such times and subject to such terms and conditions as the Committee may specify in the applicable Award or thereafter. The Committee may impose such conditions with respect to the exercise of Options, including conditions relating to applicable federal or state securities laws, as it considers necessary or advisable. (d) No shares shall be delivered pursuant to any exercise of an Option until payment in full of the option price therefor is received by the Company. Such payment may be made in whole or in part in cash or, to the extent permitted by the Committee at or after the award of the Option, by delivery of a note or shares of Common Stock owned by the optionee, including Restricted Stock, or by retaining shares otherwise issuable pursuant to the Option, in each case valued at their Fair Market Value on the date of delivery or retention, or such other lawful consideration as the Committee may determine. SECTION 7. Stock Appreciation Rights (a) Subject to the provisions of the Plan, the Committee may award SARs in tandem with an Option (at or after the award of the Option), or alone and unrelated to an Option. SARs in tandem with an Option shall terminate to the extent that the related Option is exercised, and the related Option shall terminate to the extent that the tandem SARs are exercised. (b) The Committee shall fix the exercise price of each SAR or specify the manner in which the price shall be determined. SARs granted in tandem with Options shall have an exercise price not less than the exercise price of the related Option. SARs granted alone and unrelated to an Option may be granted at such exercise prices as the Committee may determine. Section 8. Restricted Stock (a) Subject to the provisions of the Plan, the Committee may award shares of Restricted Stock and determine the duration of the Restricted Period during which, and the conditions under which, the shares may be forfeited to the Company and the other terms and conditions of such Awards. The Committee may establish performance goals for the granting or lapse of risk of forfeiture of Restricted Stock. Such performance goals may be based on earnings per share, revenues, sales or expense targets of the Company or any subsidiary, division or product line thereof, stock price or such other business criteria as the Committee may determine. Shares of Restricted Stock may be issued for no cash consideration or such minimum consideration as may be required by applicable law. (b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered, except as permitted by the Committee, during the Restricted Period. Shares of Restricted Stock shall be evidenced in such manner as the Committee may determine. Any certificates issued in respect of shares of Restricted Stock shall be registered in the name of the Participant and unless otherwise determined by the Committee, deposited by the Participant, together with a stock power endorsed in blank, with the Company. At the expiration of the Restricted Period, the Company shall deliver such certificates to the Participant or if the Participant has died, to the Participant's Designated Beneficiary. Section 9. General Provisions Applicable to Awards (a) Documentation. Each Award under the Plan shall be evidenced by a writing delivered to the Participant or agreement executed by the Participant specifying the terms and conditions thereof and containing such other terms and conditions not inconsistent with the provisions of the Plan as the Committee considers necessary or advisable to achieve the purposes of the Plan or to comply with applicable tax and regulatory laws and accounting principles. (b) Committee Discretion. Each type of Award may be made alone, in addition to or in relation to any other type of Award. The terms of each type of Award need not be identical, and the Committee need not treat Participants uniformly. Except as otherwise provided by the Plan or a particular Award, any determination with respect to an Award may be made by the Committee at the time of award or at any time thereafter. (c) Settlement. The Committee shall determine whether Awards are settled in whole or in part in cash, Common Stock, other securities of the Company, Awards or other property. The Committee may permit a Participant to defer all or any portion of a payment under the Plan, including the crediting of interest on deferred amounts denominated in cash and dividend equivalents on amounts denominated in Common Stock. (d) Dividends and Cash Awards. In the discretion of the Committee, any Award under the Plan may provide the Participant with (i) dividends or dividend equivalents payable currently or deferred with or without interest, and (ii) cash payments in lieu of or in addition to an Award. (e) Termination of Employment or Service on the Board. The Committee shall determine the effect on an Award of the disability, death, retirement or other termination of employment or service on the Board of a Participant and the extent to which, and the period during which, the Participant's legal representative, guardian or Designated Beneficiary may receive payment of an Award or exercise rights thereunder. (f) Change in Control. In order to preserve a Participant's rights under an Award in the event of a change in control of the Company (as defined by the Committee), the Committee in its discretion may, at the time an Award is made or at any time thereafter, take one or more of the following actions: (i) provide for the acceleration of any time period relating to the exercise or realization of the Award, (ii) provide for the purchase of the Award upon the Participant's request for an amount of cash or other property that could have been received upon the exercise or realization of the Award had the Award been currently exercisable or payable, (iii) adjust the terms of the Award in a manner determined by the Committee to reflect the change in control, (iv) cause the Award to be assumed, or new rights substituted therefor, by another entity, or (v) make such other provision as the Committee may consider equitable to Participants and in the best interests of the Company. (g) Loans. The Committee may authorize the making of loans or cash payments to Participants in connection with any Award under the Plan, which loans may be secured by any security, including Common Stock, underlying or related to such Award (provided that such Loan shall not exceed the Fair Market Value of the security subject to such Award), and which may be forgiven upon such terms and conditions as the Committee may establish at the time of such loan or at any time thereafter. (h) Withholding Taxes. The Participant shall pay to the Company, or make provision satisfactory to the Committee for payment of, any taxes required by law to be withheld in respect of Awards under the Plan no later than the date of the event creating the tax liability. In the Committee's discretion, the minimum tax obligations required by law to be withheld in respect of Awards may be paid in whole or in part in shares of Common Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of retention or delivery. The Company and its Affiliates may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to the Participant. (i) Foreign Nationals. Awards may be made to Participants who are foreign nationals or employed outside the United States on such terms and conditions different from those specified in the Plan as the Committee considers necessary or advisable to achieve the purposes of the Plan or to comply with applicable laws. (j) Amendment of Award. The Committee may amend, modify or terminate any outstanding Award, including substituting therefor another Award of the same or a different type, changing the date of exercise or realization and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant's consent to such action shall be required unless the Committee determines that the action, taking into account any related action, would not materially and adversely affect the Participant. (k) Transferability. In the discretion of the Committee, any Award may be made transferable upon such terms and conditions and to such extent as the Committee determines, provided that Incentive Stock Options may be transferable only to the extent permitted by the Code. The Committee may in its discretion waive any restriction on transferability. Section 10. Miscellaneous (a) No Right To Employment or Service on the Board. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment or service on the Board. The Company expressly reserves the right at any time to dismiss a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. (b) No Rights As Stockholder. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed under the Plan until he or she becomes the holder thereof. A Participant to whom Common Stock is awarded shall be considered the holder of the Stock at the time of the Award except as otherwise provided in the applicable Award. (c) Effective Date. Subject to the approval of the stockholders of the Company, the Plan shall be effective on the Effective Date. Before such approval, Awards may be made under the Plan expressly subject to such approval. (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, subject to any stockholder approval that the Board determines to be necessary or advisable. (e) Governing Law. The provisions of the Plan shall be governed by and interpreted in accordance with the laws of Delaware. - -------------------- This Plan was approved by the Board of Directors on November 15, 1999. This Plan was approved by the Stockholders on May 18, 2000. Amendment No. 1 to this Plan was approved by the Board of Directors on March 28, 2003. Amendment No. 1 to this Plan was approved by the Stockholders on June 10, 2003. Amendment No. 2 to this Plan was approved by the Board of Directors on April 8, 2004. Amendment No. 2 to this Plan was approved by the Stockholders on May 26, 2004. -----END PRIVACY-ENHANCED MESSAGE-----