Agenus (AGEN) S-8 Registration of securities for employees

As filed with the Securities and Exchange Commission on August 7, 2019

RegistrationNo. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FormS-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Agenus Inc.

(Exact name of registrant as specified in its charter)

Delaware	06-1562417
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

3 Forbes Road, Lexington, MA 02421

(Address of principal executive offices, including zip code)

2019 EQUITY INCENTIVE PLAN

(Full title of the plan)

Garo H. Armen, Ph.D.

Agenus Inc.

3 Forbes Road

Lexington, MA 02421

781-674-4400

(Name, address and telephone number, including area code, of agent for service)

Please send copies of all communications to:

Zachary Blume

Ropes & Gray LLP

Prudential Tower

800 Boylston Street

Boston, MA 02199-3600

617-951-7000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☒
Non-accelerated filer	☐	Smaller reporting company	☒
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered (2)	Proposed maximum offering price per share (1)	Proposed maximum aggregate offering price (1)	Amount of registration fee
Common Stock, $0.01 par value per share	4,887,737 shares (3)	$2.23	$ 10,899,653.51	$ 1,321.04
Common Stock, $0.01 par value per share	6,112,263 shares (4)	$2.23	$ 13,630,346.49	$ 1,652.00
Common Stock, $0.01 par value per share	5,262,242 shares (5)	$2.23	$ 11,734,799.66	$ 1,422.26
Common Stock, $0.01 par value per share	19,655,534 shares (6)	$2.23	$ 43,831,840.82	$ 5,312.42
Total	35,917,776 shares		$ 80,096,640.48	$ 9,707.72

(1) Pursuant to Rules 457(c) and 457(h)(l) under the Securities Act of 1933, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been calculated solely for the purpose of computing the registration fee on the basis of the average high and low prices of the common stock, $0.01 par value per share (the “Common Stock”) Common Stock as reported on the Nasdaq Capital Market on August 5, 2019.

(2) We are registering 4,887,737 shares of Common Stock that may be issued under the Agenus Inc. 2019 Equity Incentive Plan (the “2019 EIP”), 6,112,263 shares of Common Stock reserved for issuance upon the exercise of stock options previously granted under the 2019 EIP, 5,262,242 shares of Common Stock that may be issued under the Agenus Inc. Amended and Restated 2009 Equity Incentive Plan, as amended (the “2009 EIP”) as of the date of adoption of the 2019 EIP, and 19,655,534 shares of Common Stock underlying awards under the 2009 EIP, that on or after the date of adoption of the 2019 EIP expire or terminate or are surrendered without the delivery of shares of Common Stock, are forfeited to, or repurchased by us, or otherwise would have become available again for grant under the 2009 EIP. Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers such additional shares of Common Stock as may be issued to prevent dilution from stock splits, stock dividends and similar transactions.

(3) Represents shares of Common Stock that may be issued under the 2019 EIP.

(4) Represents shares of Common Stock reserved for issuance upon the exercise of stock options previously granted under the 2019 EIP.

(5) Represents shares of Common Stock available for issuance under the 2009 EIP as of the date of adoption of the 2019 EIP.

(6) Represents shares of Common Stock underlying awards under the 2009 EIP, that on or after the date of adoption of the 2019 EIP expire or terminate or are surrendered without the delivery of shares of Common Stock, are forfeited to, or repurchased by us, or otherwise would have become available again for grant under the 2009 EIP.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and the instructions to FormS-8, such documents are not being filed with the SEC either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed with the SEC are incorporated by reference herein and shall be deemed as part hereof:

a)	our Annual Report on Form10-K for the year ended December 31, 2018 filed with the SEC on March 18, 2019;
b)	our Quarterly Report onForm10-Q for the quarter ended March 31, 2019 filed with the SEC on May 10, 2019;
c)	the information identified as incorporated by reference under Item 14 of Part III of our Annual Report on Form10-K for the year ended December  31, 2018 from ourDefinitive Proxy Statement on Schedule 14A for our 2019 annual meeting of stockholders, filed with the SEC on April 26, 2019;
d)	our Current Reports on Form8-K filed with the SEC onJanuary  24, 2019,June 24, 2019 andAugust 2, 2019;
e)	the description of our common stock contained in our registration statement onForm8-A filed with the SEC on January 24, 2000 (file no.000-29089), including any amendment or report filed hereafter for purposes of updating such description.

All documents filed after the date of this registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment that indicates that all shares of common stock offered hereunder have been sold or that deregisters all shares of common stock remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Unless expressly incorporated into this registration statement, a report furnished but not filed on Form8-K shall not be incorporated by reference into this registration statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities.

Not applicable.

Item 5. Interest of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law permits, in general, a Delaware corporation to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or officer of the corporation, or served another business enterprise in any capacity at the request of the corporation, against liability incurred in connection with such proceeding, including the expenses (including 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 corporation’s power to indemnify applies to actions

brought by or in the right of the corporation as well, but only to the extent of expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit, provided that no indemnification shall be provided in such actions in the event of any adjudication of negligence or misconduct in the performance of such person’s duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply. Section 145 of the Delaware General Corporation Law also permits, in general, a Delaware corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or served another entity in any capacity at the request of the corporation, against liability incurred by such person in such capacity, whether or not the corporation would have the power to indemnify such person against such liability.

We have entered into indemnification agreements with each of our directors and certain executive officers and have obtained insurance covering our directors and officers against losses and insuring us against certain of our obligations to indemnify our directors and officers.

Our Fifth Amended and RestatedBy-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 RestatedBy-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, as amended, includes a provision that eliminates the personal liability of our directors for monetary damages for breach of their fiduciary duty as directors except for liability (i) for any breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.

These indemnification provisions may be sufficiently broad to permit indemnification of our directors and officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.

Item 7. Exemption From Registration Claimed.

Not applicable.

Item 8. Exhibits.

Exhibit	Description
4.1	Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on June 10, 2002 and incorporated herein by reference.
4.2	Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on June 11, 2007 and incorporated herein by reference.
4.3	Certificate of Ownership and Merger changing the name of the corporation to Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on January 6, 2011 and incorporated herein by reference.
4.4	Certificate of Second Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on September 30, 2011 and incorporated herein by reference.
4.5	Certificate of Third Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1.4 to our Quarterly Report on Form10-Q (FileNo. 000-29089) filed on August 8, 2012 and incorporated herein by reference.
4.6	Certificate of Fourth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on April 25, 2014 and incorporated herein by reference.
4.7	Certificate of Fifth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on June 16, 2016 and incorporated herein by reference.
4.8	Certificate of Sixth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Appendix A to our Definitive Proxy Statement (FileNo. 000-29089) filed on April 26, 2019 and incorporated herein by reference.
4.9	Fifth Amended and RestatedBy-laws of Agenus Inc. Filed as Exhibit 3.2 to our Current Report on Form8-K (FileNo. 000-29089) filed on January 6, 2011 and incorporated herein by reference.
4.10	Form of Common Stock Certificate. Filed as Exhibit 4.1 to our Current Report on Form8-K (FileNo. 000-29089) filed January 6, 2011 and incorporated herein by reference.
4.11	Amended and Restated 2009 Equity Incentive Plan. Filed as Appendix A to our Definitive Proxy Statement (FileNo. 000-29089) filed on April 26, 2018 and incorporated herein by reference.

4.12	2019 Equity Incentive Plan. Filed as Exhibit 10.1 to our Current Report on Form8-K (FileNo. 000-29089) filed on June 24, 2019 and incorporated herein by reference.
5.1	Opinion of Ropes & Gray LLP dated August 7, 2019. Filed herewith.
23.1	Consent of Ropes & Gray LLP (included in Opinion filed as Exhibit 5.1).
23.2	Consent of KPMG LLP, Independent Registered Public Accounting Firm. Filed herewith.
24.4	Power of Attorney (included on signature page of this registration statement).

Item 9. Undertakings.

a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:

(i) To include any prospectus required by section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on FormS-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 7^th day of August, 2019.

Agenus Inc.
By:	/s/ Garo H. Armen, Ph.D.
	Garo H. Armen, Ph.D.
	Chief Executive Officer and
	Chairman of the Board

POWER OF ATTORNEY

We, the undersigned officers and directors of Agenus Inc., hereby severally constitute and appoint Garo Armen, Evan Kearns and Christian Cortis, and each of them singly, our true and lawfulattorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this Registration Statement on FormS-8 (including any post-effective amendments thereto), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of saidattorneys-in-fact may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated below on the dates indicated:

Signature	Title	Date
/s/ Garo H. Armen, Ph.D.	Chief Executive Officer and Chairman of the Board of Directors	August 7, 2019
Garo H. Armen, Ph.D.	(Principal Executive Officer)
/s/ Christian Cortis	Chief Strategy Officer and Head of Finance	August 7, 2019
Christian Cortis	(Principal Financial Officer)
/s/ Christine M. Klaskin	Vice President, Finance	August 7, 2019
Christine M. Klaskin	(Principal Accounting Officer)
/s/ Brian Corvese	Director	August 7, 2019
Brian Corvese
/s/ Wadih Jordan	Director	August 7, 2019
Wadih Jordan
/s/ Ulf Wiinberg	Director	August 7, 2019
Ulf Wiinberg
/s/ Allison Jeynes-Ellis	Director	August 7, 2019
Allison Jeynes-Ellis
/s/ Timothy R. Wright	Director	August 7, 2019
Timothy R. Wright