ANTIGENICS INC. SECURITIES PURCHASE AGREEMENT

Exhibit 10.1

ANTIGENICS INC.

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “ Agreement ”) is made and entered into as of August 3, 2009, by and among Antigenics Inc., a Delaware corporation (the “ Company ”) and the investors signatory hereto and identified for convenience on Schedule I attached hereto (each, a “ Purchaser ”, and collectively, the “ Purchasers ”).

RECITALS

WHEREAS, the Company desires to issue and sell to the Purchasers, and the Purchasers desire to purchase from the Company, (i) an aggregate of up to 4,385,965 shares of Common Stock, par value $0.01 per share, of the Company (the “ Common Stock ”), (ii) an aggregate of up to 1,973,685 warrants in substantially the form of Exhibit A hereto (the “ 4 Year Warrants ”), each 4 Year Warrant allowing the holder thereof to purchase a share of Common Stock at a strike price of $2.50 per share and (iii) an aggregate of up to 2,192,982 warrants in substantially the form of Exhibit B hereto (the “ 6 Month Warrants ”, and together with the 4 Year Warrants, the “ Warrants ”), each 6 Month Warrant allowing the holder thereof to purchase a share of Common Stock at a strike price of $2.31 per share.

WHEREAS, the Company and each Purchaser are executing and delivering this Agreement in reliance upon exemption from securities registration afforded by Regulation D (“ Regulation D ”) as promulgated by the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”).

NOW, THEREFORE, in consideration of the foregoing, the mutual promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. AGREEMENT TO PURCHASE AND SELL SECURITIES .

(a) Authorization . The Company’s Board of Directors has authorized (i) the issuance and sale, pursuant to the terms and conditions of this Agreement, of an aggregate of up to 4,385,965 shares of Common Stock (the “ Shares ”) and (ii) the issuance and sale, pursuant to the terms and conditions of this Agreement, of an aggregate of up to 1,973,685 of 4 Year Warrants and 2,192,982 6 Month Warrants (the Shares, the Warrants and the Common Stock issuable upon exercise of the Warrants, collectively, the “ Securities ”).

(b) Agreement to Purchase and Sell Securities . Subject to the terms and conditions of this Agreement, each Purchaser, severally and not jointly, agrees to purchase, and the Company agrees to sell and issue to each Purchaser, at the Closing (as defined below), the number of Shares and Warrants identified on the signature pages hereto. The purchase price of each Share, 4 Year Warrant and 6 Month Warrant shall be $2.28 .

(c) Use of Proceeds . The Company intends to use the net proceeds from the sale of the Securities hereunder for working capital and general corporate purposes and not for the satisfaction of any portion of the Company’s long-term debt (other than payment of trade payables, interest payments and accrued expenses, or settlement of intercompany balances in the ordinary course of the Company’s business and consistent with prior practices), or to redeem any Common Stock or other securities of the Company or to settle any outstanding Action.

(d) Obligations Several, Not Joint . The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement. The decision of each of the Purchasers to purchase Securities pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser. Nothing contained herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Purchaser shall be entitled to independently protect and enforce such Purchaser’s rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.

2. CLOSING .

(a) Closing . The purchase and sale of the Shares and Warrants shall take place at the offices of Ropes & Gray LLP, 10:00 a.m., New York City time, on August 4, 2009, or at such other time and place as the Company, on the one hand, and Purchasers purchasing a majority of the Shares mutually agree upon (which time and place are referred to in this Agreement as the “ Closing ”). The date of the Closing is referred to herein as the “ Closing Date ”. On the Closing Date, each Purchaser shall wire the aggregate purchase price for the Shares and Warrants to the Company to such account as it shall designate, and the Company shall, against such payment, irrevocably authorize and instruct its transfer agent to issue to each Purchaser one or more stock certificates (the “ Certificates ”) and Warrants registered in the name of said Purchaser, and bearing the legend set forth in Section 4(j) herein. Notwithstanding the foregoing, payment of the aggregate purchase price may be made promptly after receipt by the Purchasers’ custodian of the Certificates and Warrants, provided that such order of transmission is required by the Purchaser’s established internal policy or procedure.

3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY .

Except as set forth in the SEC Documents (as defined below), the Company hereby represents and warrants to each Purchaser that as of the date hereof (except with respect to any representations and warranties that speak as of a specified date, which shall be true and correct as of such date):

(a) Organization Good Standing and Qualification . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of

 

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Delaware and has all power and authority required to (i) own, operate and occupy its properties and assets and to carry on its business as presently conducted and (ii) enter into this Agreement and the other agreements, instruments and documents contemplated hereby, and to consummate the transactions contemplated hereby and thereby. The Company is qualified to do business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect and, to the Company’s Knowledge, no proceeding has been initiated, pending or threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such qualifications. As used in this Agreement, “ Material Adverse Effect ” means a material adverse effect on, or a material adverse change in, the business, operations, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries, taken as a whole.

(b) Capitalization . The capitalization of the Company, prior to the issuance of the Securities, is as follows:

(i) The authorized capital stock of the Company consists of 250 million shares of Common Stock, par value $0.01 per share, and 25 million shares of Preferred Stock, par value $0.01 per share (the “ Preferred Stock ”).

(ii) As of July 27, 2009, the issued and outstanding capital stock of the Company consisted of (A) 79,772,240 shares of Common Stock, (B) 31,620 shares of Series A Convertible Preferred Stock and (C) 3,105 shares of Series B Convertible Preferred Stock. The shares of issued and outstanding capital stock of the Company (x) have been duly authorized and validly issued, are fully paid and nonassessable and have not been issued in violation of or are not otherwise subject to any preemptive or other similar rights and (y) have been issued in compliance in all material respects with all applicable federal and state securities laws.

(iii) As of June 30, 2009, the Company had four equity incentive plans: the 1999 Equity Incentive Plan, as amended, the 2009 Equity Incentive Plan, the 1999 Employee Stock Purchase Plan and the 2009 Employee Stock Purchase Plan (each referred to herein as a “ Plan ” and collectively as the “ Plans ”). As of June 30, 2009, the Company had (1) 6,835,131 shares of Common Stock reserved for issuance upon exercise of outstanding options, (2) no shares of Common Stock reserved for issuance upon exercise of outstanding warrants, (3) 1,872,919 shares of Common Stock reserved for issuance upon the vesting of nonvested stock, and (4) 13,778,849 shares reserved for issuance under the Plans. Each stock option granted by the Company under the Plan (i) was granted in accordance with the terms of the Company’s stock option plans, and (ii) was granted with an exercise price at least equal to the fair market value of the Common Stock on the date such option would be considered granted under generally accepted accounting principles in the United States and applicable law and no option has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects. As of June 30, 2009, the Company had a Director Deferred Compensation Plan under which 192,986 shares are issuable under the terms of the plan and 164,068 shares are reserved for issuance.

 

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(iv) As of June 30, 2009, the Company’s outstanding Series A Convertible Preferred Stock was convertible into 2 million shares of Common Stock, the Company’s outstanding 5.25% convertible senior notes due 2025 were convertible into 1,974,917 shares of Common Stock, and the Company’s 8% senior secured convertible notes due 2011 were convertible into 8,806,249 shares of Common Stock.

(v) Except as set forth in Section 3(b)(iii) above or as otherwise set forth in Section 3(b) of the disclosure letter dated August 3, 2009, attached hereto as Exhibit C (the “ Disclosure Letter ”), (i) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company; (ii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (iii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement

With the exception of the foregoing, as of the date hereof, there are no outstanding subscriptions, options, warrants, convertible or exchangeable securities or other rights granted to or by the Company to purchase shares of Common Stock or other securities of the Company, and there are no commitments, plans or arrangements to issue any shares of Common Stock or any security convertible into or exchangeable for Common Stock.

(c) Subsidiary . Except for the subsidiaries listed in Section 3(c) of the Disclosure Letter (the “ Subsidiaries ”), the Company does not have any subsidiaries, and the Company does not own any capital stock of, assets comprising the business of, obligations of, or any other interest (including any equity or partnership interest) in, any person or entity. Each of the Subsidiaries is duly organized and validly existing in good standing under the laws of its respective state of incorporation or organization. Each of the Subsidiaries has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted and is registered or qualified to do business and in good standing in each jurisdiction in which it owns or leases property or transacts business and where the failure to be so qualified would have a Material Adverse Effect and, to the Company’s Knowledge, no proceeding has been initiated, pending or threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such qualifications.

(d) Due Authorization . All corporate actions on the part of the Company necessary for (i) the authorization, execution, delivery of, and the performance of all obligations of the Company under this Agreement and (ii) the authorization, issuance, reservation for issuance and delivery of all of the Securities being sold under this Agreement have been taken, no further consent or authorization of the Company, its Board of Directors or its stockholders is required, and this Agreement and the Warrants each constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms. There are no shareholder agreements, voting agreements, or other similar arrangements, preferred investment terms (other than as expressly set forth in Section 3(b) above) or preemption rights for existing stockholders, with respect to the Company’s capital stock to which the Company is a party or, to the actual knowledge of any of the officers of the Company or any of its Subsidiaries (“ Company Knowledge ” or the “ Company’s Knowledge ”) between or among any of the Company’s stockholders.

 

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(e) Valid Issuance of Securities .

(i) Securities . The Securities will be, upon payment therefor by the Purchasers in accordance with this Agreement, and, if applicable, the Warrant, duly authorized, validly issued, fully paid and non-assessable free and clear from all taxes, liens, claims and encumbrances with respect to the issuance of the Securities and will not be subject to any preemptive rights or similar rights.

(ii) Compliance with Securities Laws . Subject to the accuracy of the representations made by the Purchasers in Section 4 hereof, the Securities will be issued and sold to the Purchasers in compliance with applicable exemptions from (A) the registration and prospectus delivery requirements of the Securities Act and (B) the registration and qualification requirements of all applicable securities laws of the states of the United States and any other jurisdiction represented by a Purchaser in a Questionnaire to be its jurisdiction of residence.

(f) Governmental Consents . No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, or notice to, any federal, state or local governmental authority on the part of the Company is required in connection with the issuance and sale of the Securities to the Purchasers by the Company, or the consummation of the other transactions contemplated by this Agreement, except (i) such filings as have been made prior to the date hereof, (ii) the filing of a notification form with The Nasdaq Stock Market (“ Nasdaq ”) and (iii) the filing of a Notice of Sale of Securities on Form D with the SEC under Regulation D of the Securities Act and such additional post-Closing filings as may be required to comply with applicable federal and state securities laws and the listing requirements of the Nasdaq.

(g) Non-Contravention . The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby (including issuance of the Securities), do not (i) contravene or conflict with the Certificate of Incorporation (the “ Certificate of Incorporation ”) or Bylaws (the “ Bylaws ”) of the Company or any Subsidiary; (ii) assuming the accuracy of the representations and warranties made by the Purchasers in Section 4 hereof, constitute a violation in any material respect of any provision of any federal, state, local or foreign law, rule, regulation, order, judgment or decree applicable to the Company or any Subsidiary or by which any of the Company’s or any Subsidiary’s assets are bound or affected; or (iii) constitute a default or require any consent under, give rise to any right of termination, cancellation or acceleration of, or to a loss of any material benefit to which the Company or any Subsidiary is entitled under, or result in the creation or imposition of any material lien, claim or encumbrance on any assets of the Company or any Subsidiary under, any agreement, credit facility, debt or other instrument or other understanding to which the Company or any Subsidiary is a party or is bound or any permit, license or similar right relating to the Company or any Subsidiary or by which the Company or any Subsidiary may be bound or affected. The transactions contemplated under this Agreement (together with any issuance by the Company or entering into by the Company of any options or

 

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other derivative securities in respect of its stock, whether or not undertaken as part of the transactions entered into under this Agreement), is not intended to be, and do not constitute, fraudulent, deceptive, manipulative or otherwise unlawful acts, practices or trading activities by the Company for purposes of applicable U.S. federal and state securities laws and regulations and all rules and regulations of any exchange on which the Company’s stock is listed, including, without limitation, any actions or omissions which would violate or require the disgorgement of profits under any of: (i) Sections 9(a), 10(b) or 16 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or any rules or regulations adopted thereunder; (ii) Regulation M under the Securities Act; or (iii) Rule 5250(b)(1) of the Nasdaq.

(h) Litigation . Except as set forth in Section 3(h) of the Disclosure Letter, there is no action, suit, proceeding, claim, arbitration or investigation (“ Action ”) pending or, to the Company’s Knowledge, threatened: (i) against the Company or any Subsidiary, their activities, properties or assets, or any officer, director or employee of the Company or any Subsidiary in connection with such officer’s, director’s or employee’s relationship with, or actions taken on behalf of, the Company or any Subsidiary that individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect, or (ii) that seeks to prevent, enjoin, alter, challenge or delay or would otherwise adversely effect the transactions contemplated by this Agreement (including the issuance of the Securities). Neither the Company nor any Subsidiary, to the Company’s Knowledge, is a party to or subject to the provisions of, any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. The Company and each Subsidiary has, in all material respects, complied with all laws, regulations and orders applicable to their respective businesses, including Pharmaceutical Laws (as defined below), and have all material permits and licenses required thereby. For purposes of this Agreement, “ Pharmaceutical Laws ” shall mean any federal, state, local or foreign law, statute, rule or regulation relating to the development, commercialization and sale of pharmaceutical and biotechnology products and devices, including all applicable regulations of the U.S. Food and Drug Administration (the “ FDA ”).

(i) Compliance with Law and Charter Documents . Neither the Company nor any Subsidiary is in violation or default of any provisions of its Certificate of Incorporation, Bylaws or similar organizational document, as applicable. Each of the Company and its Subsidiaries have materially complied and is currently in material compliance with all applicable statutes, laws, rules, regulations and orders of the United States of America and all states thereof, foreign countries and other governmental bodies and agencies having jurisdiction over the Company’s and the Subsidiaries’ businesses or properties, and neither the Company nor any of its Subsidiaries has received notice that it is in violation of, any statute, rule or regulation of any governmental authority applicable to them, including without limitation, all applicable rules and regulations of the FDA. Neither the Company nor any Subsidiary is in default (and there exists no condition which, with or without the passage of time or giving of notice or both, would constitute a default) in any respect in the performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or by which the properties of the Company or any Subsidiary are bound, which default would be reasonably likely to have a Material Adverse Effect.

 

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(j) SEC Documents .

(i) Reports . Except as set forth in Section 3(j) of the Disclosure Letter, the Company has filed in a timely manner all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company has filed on the SEC’s EDGAR system, prior to the date hereof, its Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (the “ Form 10-K ”), its quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2009 (the “ Form 10-Q ”), its Proxy Statement for its Annual Meeting of Stockholders held on June 10, 2009 (the “ Proxy Statement ”), and any Current Report on Form 8-K (“ Form 8-Ks ”) required to be filed by the Company with the SEC for events occurring since January 1, 2008 and prior to the date of this Agreement (the Form 10-K, Form 10-Q, Proxy Statement and Form 8-Ks, together with all exhibits, schedules and other attachments that are filed with such documents, are collectively referred to herein as the “ SEC Documents ”). Each SEC Document, as of its date (or, if amended or superseded by a filing prior to the applicable Closing Date, then on the date of such filing), did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Each SEC Document, as it may have been subsequently amended by filings made by the Company with the SEC prior to the date hereof, complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Document. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form and substance in all material respects with applicable accounting requirements and published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied in the United States (“ GAAP ”), during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), correspond to the books and records of the Company and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended. The Company is not required to file and will not be required to file any agreement, note, lease, mortgage, deed or other instrument entered into prior to the date of this Agreement and to which the Company is a party or by which the Company is bound which has not been previously filed or incorporated by reference as an exhibit to the SEC Documents.

(ii) Sarbanes-Oxley . The Chief Executive Officer and the Chief Financial Officer of the Company have signed, and the Company has furnished to the SEC, all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002. Such certifications contain no exceptions to the matters certified therein and have not been modified or withdrawn; and neither the Company nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy of such certifications. The Company is in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations issued thereunder by the SEC.

 

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(k) Absence of Certain Changes . Since January 1, 2009, the business and operations of the Company and each of its Subsidiaries have been conducted in the ordinary course consistent with past practice, and there has not been:

(i) any declaration, setting aside or payment of any dividend or other distribution of the assets of the Company with respect to any shares of capital stock of the Company; or

(ii) any repurchase, redemption or other acquisition by the Company or any Subsidiary of any outstanding shares of the Company’s capital stock;

(iii) any damage, destruction or loss to the Company’s or its Subsidiaries’ properties or assets, whether or not covered by insurance, except for such occurrences, individually and collectively, that have not had, and would not reasonably be expected to have, a Material Adverse Effect;

(iv) any waiver by the Company or any Subsidiary of a valuable right or of a material debt owed to it;

(v) any material change by the Company in its accounting principles, methods or practices or in the manner in which it keeps its accounting books and records, except any such change required by a change in GAAP or by the SEC; or

(vi) any material change or amendment to, or any waiver of any material right under a material contract or arrangement by which the Company, any Subsidiary or any of their assets or properties is bound or subject;

(vii) the Company has not incurred any liabilities (contingent or otherwise) other than trade payables, accrued expenses and other liabilities incurred in the ordinary course of business consistent with past practice;

(viii) the Company has not issued any equity securities to any officer, director or affiliate, except securities issued pursuant to existing Company stock option or purchase plans or executive and director corporate arrangements disclosed in the SEC Reports; and

(ix) any other event or condition of any character, except for such events and conditions that have not resulted, and are not reasonably expected to result either individually or collectively, in a Material Adverse Effect.

(l) Intellectual Property . The Company and each Subsidiary owns or possesses sufficient rights to use all patents, patent rights, inventions, trade secrets, know-how, trademarks, service-marks, copyrights Internet domain names and other intellectual property (collectively, “ Intellectual Property ”), for the conduct of their businesses as currently conducted. Neither the Company nor any Subsidiary has received any notice of, and has no Company Knowledge of, any infringement by others of any Intellectual Property of the Company or any of its Subsidiaries which is reasonably expected to have a Material Adverse Effect and the Company is not aware of the unenforceability or invalidity of any patents owned or licensed by

 

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the Company or any Subsidiary, which is reasonably expected to have a Material Adverse Effect. There is no pending, or to the Company’s Knowledge threatened, claim, action or proceeding against the Company or any of its Subsidiaries with respect to any Intellectual Property. Neither the Company nor any Subsidiary has Company Knowledge of any infringement or improper use by any third party with respect to any Intellectual Property of the Company or its Subsidiaries which is reasonably expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property. All of the licenses and sublicenses and consent, and patent assignments, royalty or other agreements concerning the Intellectual Property which are necessary for the conduct of the Company’s or any of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted to which the Company or any Subsidiary is a party or by which any of their assets are bound (other than generally commercially available, non-custom, off-the-shelf software application programs having a retail acquisition price of less than $25,000 per license) (collectively, “ License Agreements ”) are valid and binding obligations of the Company or its Subsidiaries that are parties thereto and, to the Company’s Knowledge, the other parties thereto, enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally, and there exists no event or condition which will result in a material violation or material breach of or constitute (with or without due notice or lapse of time or both) a material default by the Company or any of its Subsidiaries under any such License Agreement.

(m) Registration Rights . Except as provided in Section 5 herein or as set forth on Section 3(m) of the Disclosure Letter, the Company is not currently subject to any agreement providing any person or entity any rights (including piggyback registration rights) to have any securities of the Company registered with the SEC or registered or qualified with any other governmental authority.

(n) Title to Property and Assets . Except as set forth on Section 3(n) of the Disclosure Letter, the properties and assets of the Company and its Subsidiaries are owned by the Company and its Subsidiaries free and clear of all mortgages, deeds of trust, liens, charges, encumbrances and security interests except for (i) statutory liens for the payment of current taxes that are not yet delinquent and (ii) liens, encumbrances and security interests that are in the ordinary course of business and do not materially detract from the value of the properties and assets of the Company and its Subsidiaries, taken as a whole. With respect to the property and assets it leases, each of the Company and its Subsidiaries are in compliance with such leases in all material respects.

(o) Taxes . Except as set forth in Section 3(o) of the Disclosure Letter, the Company and each of its Subsidiaries have filed or have obtained currently effective extensions with respect to all federal, state, county, local and foreign tax returns which are required to be filed by it, such returns are complete and accurate and all taxes shown thereon to be due have been timely paid. No controversy with respect to taxes of any type with respect to the Company and its Subsidiaries is pending or, to the Company’s Knowledge, threatened. The Company and each of its Subsidiaries has withheld or collected from each payment made to its employees the amount of all taxes required to be withheld or collected therefrom and has paid all

 

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such amounts to the appropriate taxing authorities when due (including, but not limited to, federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes). The Company has no Company Knowledge of any liability of any tax to be imposed upon the income, properties or assets of the Company or any Subsidiary that is not adequately provided for.

(p) Insurance . The Company and each of its Subsidiaries maintains insurance of the types and in the amounts that the Company reasonably believes is prudent and adequate for its business, all of which insurance is in full force and effect. Neither the Company nor any Subsidiary has Company Knowledge that it will be unable to renew its existing insurance coverage as and when the coverage expires.

(q) Labor Relations . No material labor dispute exists or, to the Company’s Knowledge, is imminent with respect to any of the employees of the Company or any Subsidiary. None of the Company’s or any Subsidiary’s employees is a member of a union that relates to such employee’s relationship with the Company, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and each Subsidiary believes that its relationship with its employees is good. No executive officer of the Company (as defined in Rule 501(f) of the 1933 Act) has notified the Company or any Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such officer’s employment with the Company or any such Subsidiary. No executive officer, to the Company’s Knowledge, is in violation of any term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company or any Subsidiary to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect.

(r) Internal Accounting Controls . The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(s) Transactions with Officers and Directors . None of the officers or directors of the Company has entered into any transaction with the Company or any Subsidiary that would be required to be disclosed pursuant to Item 404(a) of Regulation S-K of the SEC.

(t) General Solicitation . Neither the Company nor any other person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Securities.

 

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(u) No Integrated Offering . Neither the Company, nor any affiliate of the Company, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of the Securities Act, or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of the Nasdaq.

(v) Nasdaq Listing Matters . The Common Stock of the Company is quoted on the Nasdaq Capital Market under the ticker symbol “AGEN.” The Company has not received any notice that, and has no reason to believe that, it is not in compliance with the listing or maintenance requirements of Nasdaq. The issuance and sale of the Securities under this Agreement do not contravene the rules and regulations of Nasdaq.

(w) Investment Company . The Company is not now, and after the sale of the Securities under this Agreement and the application of the net proceeds from the sale of the Securities will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(x) Registration Statement Matters . Assuming the completion and timely delivery of the Registration Statement/Suitability Questionnaire, attached hereto as Appendix I (the “ Questionnaire ”), by each Purchaser to the Company, the Company is not aware of any facts or circumstances that would prohibit or delay the preparation and filing of a registration statement with respect to the Registrable Shares.

(y) Market . The Company has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock of the Company to facilitate the sale or resale of the Securities.

(z) Application of Anti-Takeover Provisions . There is no control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar charter documents) that would become applicable to the Purchasers as a result of the issuance of the Securities.

(aa) Registration Matters . The Company has taken no action and does not anticipate taking any action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock under the Exchange Act and the Company has not received any notification that the SEC is contemplating terminating such registration.

(bb) Environmental Matters .

(i) The Company and each of its Subsidiaries have complied in all material respects with all applicable Environmental Laws (as defined below). There is no pending or, to the Company’s Knowledge, threatened civil or criminal litigation, violation,

 

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formal administrative proceeding, or investigation, inquiry or information request by any Governmental Entity, relating to any Environmental Law involving the Company or any Subsidiary. For purposes of this Agreement, “ Environmental Law ” means any federal, state, local or foreign law, statute, rule or regulation or the common law relating to the environment or occupational health and safety, including any statute, regulation, administrative decision or order pertaining to (A) treatment, storage, disposal, generation and transportation of industrial, toxic or hazardous materials or substances or solid or hazardous waste; (B) air, water and noise pollution; (C) groundwater and soil contamination; (D) the release or threatened release into the environment of industrial, toxic or hazardous materials or substances, or solid or hazardous waste, including emissions, discharges, injections, spills, escapes or dumping of pollutants, contaminants or chemicals; (E) the protection of wild life, marine life and wetlands, including all endangered and threatened species; (F) storage tanks, vessels, containers, abandoned or discarded barrels and other closed receptacles; (G) health and safety of employees and other persons; or (H) manufacturing, processing, using, distributing, treating, storing, disposing, transporting or handling of materials regulated under any law as pollutants, contaminants, toxic or hazardous materials or substances, or oil or petroleum products or solid or hazardous waste. As used above, the terms “release” and “environment” shall have the meaning set forth in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“ CERCLA ”).

(ii) Neither the Company nor any Subsidiary have any material liabilities or material obligations arising from the release of any Materials of Environmental Concern (as defined below) into the environment. For purposes of this Agreement, “ Materials of Environmental Concern ” shall mean any chemicals, pollutants or contaminants, hazardous substances (as such term is defined under CERCLA), solid wastes and hazardous wastes (as such terms are defined under the Resource Conservation and Recovery Act), toxic materials, oil or petroleum and petroleum products or any other material subject to regulation under any Environmental Law.

(iii) Neither the Company nor any Subsidiary is a party to or bound by any court order, administrative order, consent order or other agreement between the Company, a Subsidiary and any Governmental Entity entered into in connection with any legal obligation or liability arising under any Environmental Law.

(iv) The Company is not aware of any material environmental liability of any solid or hazardous waste transporter or treatment, storage or disposal facility that has been used by the Company or any Subsidiary.

(cc) United States Real Property Holding Company .

(i) The Company is not now and has never been a “United States real property holding corporation,” as defined in §897(c)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and Treasury Regulation §1.897-2(b), and the Company has filed with the Internal Revenue Service all statements, if any, with its United States income tax returns, which are required under Treasury Regulation §1.897-2(h).

 

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(ii) The Company hereby agrees to provide prompt notice to each Purchaser following any “determination date” (as defined in Treasury Regulation Section 1.897-2(c)(1)) on which the Company becomes a United States real property holding corporation. In addition, upon a written request by a Purchaser, the Company shall provide such Purchaser with a written statement informing the Purchaser whether the Purchaser’s interest in the Company constitutes a United States real property interest. The Company’s determination shall comply with the requirements of Treasury Regulation Section 1.897-2(h)(1) or any successor regulation, and the Company shall provide timely notice to the Internal Revenue Service, in accordance with and to the extent required by Treasury Regulation Section 1.897-2(h)(2) or any successor regulation, that such statement has been made. The Company’s written statement to the Purchaser shall be delivered to the Purchaser within ten (10) Business Days of the Purchaser’s written request therefor. For purposes of this Agreement, “ Business Day ” means a day that is not a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.

(dd) Benefit Plans . Except as set forth in Section 3(dd) of the Disclosure Letter, neither the Company nor any Plan Affiliate (as defined below) has maintained, sponsored, adopted, made contributions to or obligated itself to make contributions to or to pay any benefits or grant rights under or with respect to any Employee Benefit Plan (as defined below), whether written, oral, voluntary or pursuant to a collective bargaining agreement or law, under which the Company has a material unfunded liability, nor has the Company otherwise failed to meet any of its obligations under any employee benefit plan. As used herein, “ Plan Affiliate ” means any person or entity with which the Company constitutes all or part of a controlled group of corporations, a group of trades or businesses under common control or an affiliated service group, as each of those terms are defined in Section 414 of the Code. As used herein, “ Employee Benefit Plan ” means, collectively, each bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, health or other medical, life, disability or other insurance, supplemental unemployment benefit, profit sharing, pension, retirement, supplemental retirement or other employee benefit plan, program, agreement or arrangement, whether written or unwritten, formal or informal, maintained or contributed to or required to be contributed to by any person for the benefit of any employee or former employee of the Company or its affiliates or their dependants or beneficiaries, as well as the compensation practices and policies regarding vacations, sick leaves, leaves of absence and all perquisites of employment other than those mandated by any legal requirement and shall include to the extent applicable to the Company, without limitation, “Employee Pension Benefit Plans” (as defined in Section 3(2) of ERISA (as defined below), “Employee Welfare Benefit Plan” (as defined in Section 3(1) of ERISA) and “Multi-employer Plan” (as defined in Section 3(37) of ERISA)). As used herein, “ ERISA ” means the Employee Retirement Income Security Act of 1974 and any law of any foreign jurisdiction of similar import. The Company has made all “matching” contributions required pursuant to the terms of the Company’s 401(k) plan or otherwise promised to employees (in writing or orally).

(ee) Foreign Corrupt Practices Act; Etc . Each of the Company and its Subsidiaries and, to the Company’s Knowledge, their respective officers, directors, employees and agents are in compliance with and have not violated the Foreign Corrupt Practices Act of 1977, as amended, or any rules and regulations thereunder, or any similar laws of any foreign jurisdiction. To the Company’s Knowledge, no governmental or political official in any country

 

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is or has been employed by, or acted as a consultant to or held any material beneficial ownership interest in the Company or any Subsidiary. The Company and its Subsidiaries and, to the Company’s Knowledge, their respective officers, directors, employees and agents are in compliance with and have not violated the U.S. money laundering laws or regulations, the U.S. Bank Secrecy Act, as amended by the USA Patriot Act of 2001 (including any recordkeeping or reporting requirements thereunder), or the anti-money laundering laws or regulations of any jurisdiction.

(ff) Brokers . Other than Rodman & Renshaw, LLC, the Company has not engaged any brokers, finders or agents, or incurred, or will incur, directly or indirectly, any liability for brokerage or finder’s fees or agents’ commissions or any similar charges in connection with this Agreement and the transactions contemplated hereby.

(gg) Regulatory Permits . The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct its respective business as described in the SEC Reports, except where the failure to possess such permits, individually or in the aggregate, has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (“ Material Permits ”), and (i) neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Material Permits, and (ii) the Company is unaware of any facts or circumstances that the Company would reasonably expect to give rise to the revocation or modification of any Material Permits.

(hh) Disclosure . Except as set forth in Section 3(hh) of the Disclosure Letter, the Company confirms that neither it nor any of its officers or directors nor any other person or entity acting on its or their behalf has provided, any Purchaser or its respective agents or counsel with any information that it believes constitutes or could reasonably be expected to constitute material, non-public information except insofar as the existence, provisions and terms of this Agreement, the Warrants and the documents contemplated hereby (collectively, the “ Transaction Documents ”) and the proposed transactions hereunder may constitute such information, all of which will be disclosed by the Company in the Press Release as contemplated by Section 9(l) hereof. The Company understands and confirms that the Purchasers will rely on the foregoing representations in effecting transactions in securities of the Company. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, operations or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed (assuming for this purpose that the Company’s reports filed under the Exchange Act are being incorporated into an effective registration statement filed by the Company under the Securities Act), except for the announcement of this Agreement and related transactions.

(ii) Off Balance Sheet Arrangements . There is no transaction, arrangement, or other relationship between the Company (or any Subsidiary) and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise would have a Material Adverse Effect.

 

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(jj) Acknowledgment Regarding Purchasers’ Purchase of Securities . Except as set forth in Section 3(jj) of the Disclosure Letter, the Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby or thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.

4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE PURCHASER . Each Purchaser hereby represents and warrants to the Company as of the date hereof, and agrees that:

(a) Organization Good Standing and Qualification . The Purchaser has all power and authority required to enter into this Agreement and the other agreements, instruments and documents contemplated hereby, and to consummate the transactions contemplated hereby and thereby.

(b) Authorization . The execution of this Agreement has been duly authorized by all necessary action on the part of the Purchaser. This Agreement constitutes the Purchaser’s legal, valid and binding obligation, enforceable in accordance with its terms, except (i) as may be limited by (A) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (B) the effect of rules of law governing the availability of equitable remedies and (ii) as rights to indemnity or contribution may be limited under federal or state securities laws or by principles of public policy thereunder.

(c) Litigation . There is no action pending, or to its knowledge, threatened, to which such Purchaser is a party that is reasonably likely to prevent, enjoin, alter or delay the transactions contemplated by this Agreement.

(d) Purchase for Own Account . The Securities are being acquired without a view to the public resale or distribution thereof within the meaning of the Securities Act. The Purchaser represents that it has not been formed for the specific purpose of acquiring the Securities. Notwithstanding the foregoing, the parties hereto acknowledge the Purchaser’s right at all times to sell or otherwise dispose of all or any part of such securities in compliance with applicable federal and state securities laws and the laws of any other applicable jurisdiction, and as otherwise contemplated by this Agreement.

(e) Investment Experience . The Purchaser understands that the purchase of the Securities involves substantial risk. The Purchaser has experience as an investor in securities of companies and acknowledges that it can bear the economic risk of its investment

 

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in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of this investment in the Securities and protecting its own interests in connection with this investment.

(f) Accredited Investor Status . The Purchaser is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.

(g) Reliance Upon Purchaser’s Representations . The Purchaser understands that the issuance and sale of the Securities to it will not be registered under the Securities Act, the securities laws of any State of the United States or the securities laws of any other applicable jurisdiction, on the ground that such issuance and sale will be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and exempt from any comparable registration requirement under the securities laws of any other applicable jurisdiction, and that the Company’s reliance on such exemption is based on each Purchaser’s representations set forth herein.

(h) Receipt of Information . The Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance and sale of the Securities, and the business, properties, prospects and financial condition of the Company and to obtain any additional information requested and has received and considered all information it deems relevant to make an informed decision to purchase the Securities. Neither such inquiries nor any other investigation conducted by or on behalf of such Purchaser or its representatives or counsel shall modify, amend or affect such Purchaser’s right to rely on the truth, accuracy and completeness of such information and the Company’s representations and warranties contained in this Agreement.

(i) Restricted Securities . The Purchaser understands that the Securities have not been registered under the Securities Act, the securities laws of any State of the United States or the securities laws of any other applicable jurisdiction.

(j) Legend . (i) The Purchaser agrees that the Certificates for the Shares (and any shares of Common Stock issuable upon exercise of a Warrant) shall bear the following legend:

“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 ”), 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 ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY EVIDENCE REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE FORM AND SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.”

 

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Certificates evidencing the Shares or any other securities shall not contain any legend, (i) while a registration statement (including any Registration Statement (as defined in Section 5(a)(i) below)) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Shares or securities pursuant to Rule 144, (iii) if such Shares or securities are eligible for sale under Rule 144 not subject to volume limitations or (iv) if such legend is not required under applicable requirements of the Securities Act. The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent promptly after the date on which a Registration Statement is declared effective (the “ Effective Date ”) if such legal opinion is required by the Company’s transfer agent to effect the removal of the legend hereunder. The Company agrees that following an Effective Date or at such time as such legend is no longer required under this Section 4(j), it will, no later than three (3) Business Days following the delivery by a Purchaser to the Company or to the Company’s transfer agent of a certificate representing shares issued with a restrictive legend, deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other restrictive legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in Section 4(i) or this Section 4(j). Any fees associated with the removal of the legend referred to in this Section 4(j) shall be borne by the Company.

Each Purchaser, severally and not jointly with the other Purchasers, agrees that the removal of the restrictive legend from certificates representing the Shares or securities as set forth in this Section 4(j) is predicated upon the Purchaser’s covenant that the Purchaser only will sell any Shares or securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom.

(k) Restrictions on Short Sales . The Purchaser represents, warrants and covenants that it has not and will not, directly or indirectly, during the period beginning on the date on which the Company or any agent of the Company first contacted such Purchaser regarding the transactions contemplated by this Agreement and ending on the issuance of the Press Release, engage in (i) any “short sales” (as such term is defined in Rule 200 of Regulation SHO promulgated under the Exchange Act) of the Common Stock, including, without limitation, the maintaining of any short position with respect to, establishing or maintaining a “put equivalent position” (within the meaning of Rule 16a-1(h) under the Exchange Act) with respect to, entering into any swap, derivative transaction or other similar arrangement (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) that transfers to another, in whole or in part, any economic consequences or ownership, or otherwise disposes of, any of the Securities by the Purchaser or (ii) any hedging transaction which establishes a net short position with respect to the Securities (clauses (i) and (ii) together, a “ Short Sale ”); except for (1) Short Sales by a Purchaser which was, prior to the date on which such Purchaser was first contacted by the Company or any agent of the Company, regarding the transactions contemplated by this Agreement, a market maker for the Common Stock, provided that such Short Sales are in the ordinary course of business of such Purchaser and are in compliance with the Securities Act, the rules and regulations of the Securities Act and such other securities laws as may be applicable, (2) Short Sales by the Purchaser which by virtue

 

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of the procedures of such Purchaser are made without knowledge of the transactions contemplated by this Agreement, or (3) Short Sales by the Purchaser to the extent that such Purchaser is acting in the capacity of a broker-dealer executing unsolicited third-party transactions.

(l) Questionnaires . The Purchaser has completed or caused to be completed the Questionnaire for use in preparation of a Registration Statement, and the answers to such Questionnaires are true and correct as of the date of this Agreement in all material respects; provided , that the Purchasers shall be entitled to update such information by providing written notice thereof to the Company at least 48 hours before effective date of such Registration Statement.

5. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT .

(a) Registration of the Securities . The Company hereby agrees that it shall prepare and file with the SEC no later than 30 calendar days following the date the initial registration statement filed in connection with the securities purchase agreement dated July 30, 2009 between the Company and the investor signatory thereto is declared effective by the SEC (the “ Filing Deadline ”), a registration statement on Form S-1 or Form S-3 (together with any other registration statements filed under this Section 5 and any preliminary or final prospectus, exhibit, supplement or amendment included therein, the “ Registration Statements ”), to enable the resale of the Shares and shares of Common Stock underlying the Warrants (the shares of Common Stock underlying the Warrants the “ Warrant Shares ”) (together with any shares of Common Stock issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of, the Shares or the Warrant Shares, the “ Registrable Shares ”) by holders of such Shares and/or Warrant Shares from time to time on a continuous basis pursuant to Rule 415 under the Securities Act. The Company shall use commercially reasonable efforts to cause a Registration Statement to be declared effective, within sixty (60) days following the Filing Deadline (the “ Required Effective Date ”) or, in the event of a review of such Registration Statement by the SEC, the Required Effective Date will be within ninety (90) days following the Filing Deadline and, subject to exceptions provided herein, to remain continuously effective until the earlier of (A) the fifth anniversary of the effective date of such Registration Statement, (B) the date on which all Registrable Shares have been publicly sold thereunder, or (C) the date on which all of the Registrable Shares (other than Registrable Shares held by an individual who is not an affiliate of the Company due to his or her status as an executive of the Company), can be sold pursuant to Rule 144 promulgated under the Securities Act (as such rule may be amended from time to time) not subject to volume limitations (the “ Registration Period ”). If the Company receives notification from the SEC that a Registration Statement will receive no action or review from the SEC, then the Company will use its commercially reasonable efforts to cause such Registration Statement to become effective within three (3) Business Days after such SEC notification;

(b) Registration Procedures . In connection with the Company’s registration obligations hereunder, the Company shall:

(i) Not less than two (2) Business Days prior to the filing of a Registration Statement and not less than one Business Day prior to the filing of any related

 

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prospectus (a “ Prospectus ”) or any amendment or supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports), furnish to each Purchaser or Person to whom Registrable Shares have been transferred (each, a “ Holder ”) copies of such Registration Statement, Prospectus or amendment or supplement thereto, as proposed to be filed, which documents will be subject to the review of such Holder. The Company shall make a good faith effort to accommodate any reasonable objection to any Registration Statement or amendment or supplement thereto, provided that, the Company is notified of such objection in writing no later than one (1) Business Days after the Holders have been so furnished copies of such documents.

(ii) (A) Prepare and file with the SEC such amendments (including post effective amendments) and supplements to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Shares for the Registration Period and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Shares; (B) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424; (C) respond as promptly as reasonably practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the SEC relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company; and (D) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Shares covered by a Registration Statement until such time as all of such Registrable Shares shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus as so supplemented. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 5(b)(ii)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report which created the requirement for the Company to amend or supplement such Registration Statement was filed.

(iii) Notify the Holders (which notice shall, pursuant to clauses (C) through (F) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (A)(1) below, not less than three Business Days prior to such filing, in the case of (C) and (D) below, not more than one Business Day after such issuance or receipt and in the case of (E) below, not less than three Business Days prior to the financial statements in any Registration Statement becoming ineligible for inclusion therein and, in the case of (F) below not more than one Business Day after the occurrence or existence of such corporate development) and (if requested by any such Person) confirm such notice in writing no later than one Business Day following the day (A)(1) when a Prospectus or any Prospectus supplement or post effective

 

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amendment to a Registration Statement is proposed to be filed; (2) when the SEC notifies the Company whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on any Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a “Selling Stockholder” or to the “Plan of Distribution”, but not information which the Company believes would constitute material and non-public information); and (3) with respect