EXHIBIT 10.2
ANTIGENICS INC.
SECURITIES EXCHANGE
AGREEMENT
This Securities Exchange Agreement
(this “ Agreement ”) is made as of
June 4, 2009 (the “Effective Date” )
by and between A NTIGENICS I NC . , a
Delaware corporation (the “ Company ”),
and The Conus Fund L.P. (the “ Fund ”),
The Conus Fund Offshore Master Fund Ltd. (the “
Offshore Fund ”), The Conus Fund (QP) L.P. (the
“ QP Fund ”) (collectively, the Fund, the
Offshore Fund and the QP Fund are referred to herein as the “
Bond Holder ”).
R ECITALS
W HEREAS , Bond Holder wishes to exchange a aggregate of
$2,000,000 principal amount of the Company’s 5.25%
convertible senior notes due February 2025 (collectively, the
“Bonds” ), of which an aggregate
principal amount of $891,000 of the Bonds is held by the Fund, an
aggregate principal amount of $213,000 of the Bonds is held by the
Offshore Fund, and an aggregate principal amount of $896,000 of the
Bonds is held by the QP Fund.
W HEREAS , the Company wishes to issue to the Bond
Holder, pursuant to the exemption from registration provided by
Section 3(a)(9) ( “Section 3(a)(9)”
) under the Securities Act of 1933, as amended (the
“Securities Act” ), 666,666 shares of the
Company’s common stock, par value $0.01 per share (the
“Shares” ) in exchange for the Bonds (the
“ Exchange ”) and to cancel the Bonds
upon the terms and conditions set forth herein.
A GREEMENT
1. Exchange; Delivery. Bond Holder hereby
assigns, sells and transfers the Bonds, plus all claims arising out
of or relating to the Bonds, including but not limited to any
accrued but unpaid interest, to the Company in exchange for the
issuance by the Company, effective as of the Effective Date, of the
Shares to the Bond Holder. On the business day immediately
following the Effective Date, the Company shall deliver the Shares
to the Bond Holder via DWAC to an account specified in writing by
the Bond Holder and the Bond Holder shall deliver the Bonds to the
Company via DTC to an account specified in writing by the
Company.
2. Representations and Warranties of the
Company. The Company hereby represents and warrants to the Bond
Holder that as of the Effective Date:
2.1 Organization. The Company is duly
incorporated and validly existing in good standing under the laws
of the State of Delaware. The Company has full corporate 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 is 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 on the Company, and, to the
Company’s knowledge (as defined below), no proceeding has
been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification.
2.2 Due Authorization. The Company has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly authorized and validly executed and delivered by the
Company and no other corporate action on the part of the Company,
its board of directors or its stockholders is necessary to
authorize the execution and delivery by the Company of this
Agreement or the consummation of the transactions contemplated by
this Agreement, including, without limitation, the issuance and
delivery of the Shares. Furthermore, the Company’s board of
directors has duly authorized the execution and delivery by the
Company of this Agreement and the transactions contemplated
hereunder. This Agreement, assuming due and valid authorization,
execution and delivery hereof and thereof by the Bond Holder,
constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution may be limited by
state or federal securities laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally, and except as
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
2.3 Valid Issuance; Reservation of Shares;
Preemptive Rights. The Shares are duly authorized and, when
issued and exchanged in accordance with the terms hereof,
(i) will be duly and validly issued, free and clear of any
liens, claims or encumbrances (“ Liens ”)
imposed by or through the Company or by operation of law of which
the Company has knowledge and (ii) will be issued and
delivered in compliance with all applicable Federal and state
securities laws. Neither the cancellation of the Bonds upon the
Effective Date, nor the Exchange, nor the performance by the
Company of its obligations under this Agreement will trigger any
preemptive, “poison-pill”, anti-takeover,
anti-dilution, reset or other similar rights.
2.4 Non-Contravention. The execution and
delivery of this Agreement, the issuance of the Shares and the
consummation of the transactions contemplated hereby and thereby
will not (a) conflict with or constitute a material violation
of or default (with the passage of time or otherwise) under or give
rise to any right of termination, material amendment, cancellation
or acceleration or loss of any material rights under (i) any
material contracts to which the Company is a party, or
(ii) the certificate of incorporation or the bylaws of the
Company or any similar organizational document of the Company, or
(b) (i) result in the creation or imposition (or the
obligation to create or impose) of any material lien, encumbrance,
claim, security interest, pledge, charge or restriction of any kind
upon any of the properties or assets of the Company or (ii) an
acceleration of indebtedness pursuant to any obligation, agreement
or condition contained in agreement or document to which the
Company is a party or is bound other than the with respect to the
Bonds, or (c) to the Company’s knowledge, violate any
order or decree applicable to the Company, or by which it or any of
its operations are bound, and no such violation or default
currently exists. No consent, approval, authorization or other
order of, or registration, qualification or filing with, any
regulatory body, administrative agency or other governmental body
in the United States is required for the execution and delivery of
the Agreement and the valid issuance of the Shares prior to the
Effective Date except for any securities filings required to be
made under state securities laws.
2
2.5 Exchange Act Compliance. The documents
that the Company filed under the Securities Exchange Act of 1934
(the “ Exchange Act ”) since
December 31, 2008 (including all exhibits included therein and
documents incorporated by reference therein hereinafter being
referred to as the “ Required Documents ”
) complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Securities and
Exchange Commission (“ Commission ”)
promulgated thereunder as of their respective filing dates, and
none of the Required Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
2.6 Non-Public Information. The Bond Holder
has not requested from the Company, and the Company has not
furnished to the Bond Holder, any material non-public information
concerning the Company.
2.7 Exemption from Registration. The Exchange
is exempt from the registration requirements of the Securities Act
pursuant to the provisions of Section 3(a)(9) thereof. The
Company has complied in all material respects with such
provisions
