EXHIBIT 10.3
Amendment to Exhibit A-5 to
Master Services Agreement
THE UNDERSIGNED HEREBY ACKNOWLEDGE
AND AGREE THAT THIS AMENDMENT TO EXHIBIT A-5 IS INCORPORATED BY
REFERENCE INTO, AND SUBJECT TO THE PROVISIONS OF THAT CERTAIN
MASTER SERVICES AGREEMENT BETWEEN THE PARTIES DATED MAY 24, 2007,
AS AMENDED (THE “AGREEMENT”).
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1.
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This Amendment
to Exhibit A-5 and the Scope of Work and Budget attached hereto as
Appendix 1 (the “Set-Up Plan”) (collectively,
this “Amended Exhibit A-5”) sets forth the agreed to
Services, fees, pass through costs and related compensation for
Raifarm Limited relating to commercialization set-up activities in
Russia for Oncophage from April 1, 2008. Effective
April 1, 2008, this Amended Exhibit A-5 replaces the
provisions of the original Exhibit A-5 entered into by the Parties
on February 27, 2008. Raifarm Limited shall not commence any
Services set forth in the attached Set-Up Plan, or any other
Services, without the prior written consent of the Company (which
may be in the form of email communication). Capitalized terms not
otherwise defined shall have the meaning set forth in the
Agreement.
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2.
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For Services
performed under this Amended Exhibit A-5, the following payment
terms shall apply:
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A [**] USD retainer was paid to
Raifarm Limited under the original Exhibit A-5. Raifarm Limited may
continue to use this retainer to offset valid direct costs
pre-approved by the Company and actually incurred under this
Amended Exhibit A-5 prior to the reimbursement of such costs by the
Company in accordance with the below paragraph. Upon completion of
the Services under this Amended Exhibit A-5 (as may be further
amended by the Parties), Raifarm Limited shall reimburse the
Company the balance of any retainer amount not utilized by Raifarm
Limited for valid direct costs pre-approved by the Company and
actually incurred under this Amended Exhibit A-5 and previously
reimbursed by the Company. In addition, and notwithstanding any
other provision of this Amended Exhibit A-5, the Parties
acknowledge and agree that the provisions of that certain Letter
Agreement, dated April 4, 2008, remain in full force and
effect and are incorporated herein by reference.
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On a monthly basis, Raifarm
Limited shall invoice the Company for all direct pass through costs
contemplated by this Amended Exhibit A-5, pre-approved on a case by
case basis by the Company, and actually incurred by Raifarm Limited
in the course of performing the Services. The Company shall
reimburse Raifarm Limited in USD, in accordance with
Section 3.3 of the Agreement, provided that Raifarm Limited
submits to the Company receipts of all such costs with the
applicable invoices.
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[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
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In addition, on a monthly basis,
Raifarm Limited shall invoice the Company for fees for Services
actually performed by Raifarm Limited in accordance with this
Amended Exhibit A-5, and the Company shall pay Raifarm Limited, in
accordance with Section 3.2 of the Agreement. All invoices
shall detail out the project for which fees are being invoiced, the
activities performed, and the hours dedicated, consistent with the
attached Set-Up Plan. Compensation for such Services shall be
payable by the Company as follows:
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The Company may elect to
compensate Raifarm Limited up to [**] in fees per month in the form
of common stock compensation, which common stock issuance shall be
subject to the terms and conditions of the attached Appendix
2 . However, in no event shall the total common stock
compensation issuable by the Company under the Agreement, and all
exhibits thereto, exceed the amounts authorized by the
Company’s Board of Directors.
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The remaining balance owing in
fees per month shall be payable in the form of US dollars
cash.
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All invoices for which
compensation may be payable by the Company in part in the form of
common stock shall be accompanied by a Notice in the form attached
hereto as Appendix 3 .
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Raifarm Limited shall only
invoice the Company for the number of hours actually utilized in
performing the Services provided, that in no event shall the total
compensation under this Amended Exhibit A-5, including all fees and
expenses for any individual project or all Services in the
aggregate, exceed the amounts set forth in the Set-Up Plan (or any
additions thereto) without the prior written consent of the
Company.
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3.
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As partial
consideration for Raifarm Limited’s commitment to performing
the Services and assisting in ensuring the commercial launch of
Oncophage in Russia, the Company agrees to make the following
milestone payments to Raifarm Limited upon achievement of the
following milestone events:
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[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
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Milestone Event
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Milestone Payment
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Antigenics [**]
of at least [**]
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[**] shares of
common stock
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in [**] from [**] in
[**] by [**]
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Antigenics [**] of at least [**]
in [**] from [**] in
[**] by [**]
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an additional [**] shares
of common stock
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[**]
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The Company will send Raifarm
Limited a detailed report setting forth the Company’s [**] of
its [**] for the [**]. Such report shall specify the foregoing [**]
and other [**] from [**] in reasonable detail and shall be
certified by the Company’s Chief Financial
Officer.
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4.
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All stock
compensation and milestones hereunder are subject to the terms and
conditions of the attached Appendix 2 .
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[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
Acknowledged and Agreed:
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ANTIGENICS
Inc., a Delaware corporation
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RAIFARM
LIMITED
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By:
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By:
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Date:
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June 5,
2008
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Date:
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June 4,
2008
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Typed Name:
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Garo H.
Armen
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Typed Name:
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Yuri
Raifeld
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Title:
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Chairman & CEO
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Title:
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Director
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[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
Appendix 1
[**]
[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
Appendix 2
Terms and Conditions for Exhibit
A-5 Common Stock Payments
Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in
the Agreement.
I. Payment . The Company
shall have [**] days from receipt of Raifarm Limited’s valid
invoice to pay any applicable common stock payments through
issuance of shares of the Company’s common stock, par value
$0.01 per share (the “ Common Stock ”), in
accordance with Exhibit A-5, which [** ] day period may be
extended as mutually agreed to in writing by the Company and
Raifarm Limited. With each such invoice, Raifarm Limited shall
provide written notice to the Company (the “Stock
Compensation Notice”) which shall include the customary
restrictions and representations required, in the reasonable
opinion of the Company’s legal counsel, to comply with the
rules and regulations promulgated by the United States Securities
and Exchange Commission (the “ SEC ”) and other
applicable laws, which, absent a change in such rules and
regulations, shall be substantially in the form of Appendix 3 to
Exhibit A-5.
II. Price Per Share of Stock
Issuance; Issuance Limit . Any Common Stock issued to Raifarm
Limited as payment under Exhibit A-5 (“ Exhibit A-5
Stock ”) shall be issued at a price per share equal to
the Fair Market Value. The “ Fair Market Value ”
of the Exhibit A-5 Stock for purposes of calculating amounts owing
to Raifarm Limited with respect to any given invoice shall be the
average closing price for a share of the Exhibit A-5 Stock on each
trading day during the applicable period of Services covered by the
invoice, provided , however , that the aggregate
number of shares issued under all Exhibits to the Agreement shall
not exceed an amount equal to 19.99% of the issued and outstanding
Exhibit A-5 Stock as of the effective date of Exhibit A-3 (the
“ Issuance Limit ”). If the number of shares to
be issued would otherwise exceed the Issuance Limit, the Company
shall pay Raifarm Limited an amount in cash equal to the product of
(x) the number of shares in excess of the Issuance Limit and
(y) the Fair Market Value.
III. Transfer Restrictions
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A. Raifarm Limited covenants that
any Exhibit A-5 Stock will only be disposed of pursuant to an
effective registration statement under, and in compliance with the
requirements of, the Securities Act of 1933, as amended (the
“ Securities Act ”), or pursuant to an available
exemption from the registration requirements of the Securities Act,
and in compliance with any applicable state securities laws. In
connection with any transfer of Exhibit A-5 Stock other than
pursuant to an effective registration statement or to the Company,
or pursuant to Rule 144, the Company may require Raifarm Limited to
provide to the Company an opinion of counsel selected by Raifarm
Limited, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration under the Securities
Act.
[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
B. Raifarm Limited agrees to the
imprinting, so long as is required by this Agreement, of the
following legend on any certificate evidencing any of the Exhibit
A-5 Stock:
THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES
LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY
LAWS.
C. Certificates evidencing Exhibit
A-5 Stock shall not be required to contain such legend or any other
legend (i) while a registration statement covering the resale
of the Exhibit A-5 Stock is effective under the Securities Act, if
the holder provides the Company with a certificate that the sale
complied with the requirements of the Securities Act,
(ii) following any sale of such Exhibit A-5 Stock pursuant to
Rule 144 if, prior to such sale, the holder provides the Company
with a legal opinion (and the documents upon which the legal
opinion is based) reasonably acceptable to the Company to the
effect that the Exhibit A-5 Stock can be sold under Rule 144, or
(iii) if the holder provides the Company with a legal opinion
(and the documents upon which the legal opinion is based)
reasonably acceptable to the Company to the effect that the legend
is not required under applicable requirements of the Securities Act
(including controlling judicial interpretations and pronouncements
issued by the Staff of the SEC).
IV. Reservation of Exhibit A-5
Stock . The Company shall maintain a reserve from its duly
authorized shares of Common Stock for issuance pursuant to the
Agreement in such amount as may be required to fulfill its
obligations to issue Exhibit A-5 Stock. In the event that at any
time the then authorized shares of Common Stock are insufficient
for the Company to satisfy its obligations to issue such Exhibit
A-5 Stock, the Company shall promptly take such actions as may be
required to increase the number of authorized shares.
V. Registration of Exhibit A-5
Stock .
A. Upon a written request from
Raifarm Limited, the Company will, as soon as reasonably
practicable and in any event within[**] days of such written
request (the “Filing Deadline” ), file with the
SEC a registration statement covering the resale of Exhibit A-5
Stock (the “ Registration Statement ”). The
Company will use commercially reasonable efforts to cause the
Registration
[**] = Portions of this agreement have been
omitted pursuant to a confidential treatment request. An unredacted
version of this agreement has been filed separately with the
Commission.
Statement to be declared effective by the SEC as
promptly as practical after the filing thereof, and shall use
commercially reasonable efforts to keep the Registration Statement
continuously effective under the Securities Act until the earlier
of (i) the date such Exhibit A-5 Stock covered by the
Registration Statement have been sold or can be sold publicly under
Rule 144 or (ii) the second anniversary of the issuance of
such Exhibit A-5 Stock covered by the Registration Statement.
Notwithstanding the above, Raifarm Limited may only exercise its
rights under this Section V(A), and the Company shall only be
obligated to file and effect Registration Statements to cover
Exhibit A-5 Stock and Milestone Stock (as defined in Exhibit A-3),
[** ] times, such times to be during the period beginning
with the Company’s payment of the first common stock payment
under Exhibit A-3 of the Agreement and ending on the date which is
[** ] days after the Company pays the final common stock
payment under Exhibit A-5 of the Agreement.
B. Notwithstanding anything in this
Agreement to the contrary, the Company may, by written notice to
Raifarm Limited, suspend sales under a Registrat
