ANTIGENICS INC. Waiver of Rights Upon Issuance of OtherSecurities RECITALS
Exhibit 4.6
ANTIGENICS INC.
Waiver of Rights Upon Issuance of Other Securities
RECITALS
| 1. | Reference is made to the Senior Secured Convertible Notes issued on October 30, 2006 (together with any senior secured convertible notes issued in replacement or exchange thereof in accordance with the terms thereof and any senior secured convertible notes issued to pay interest, the “Notes”), by Antigenics, Inc., a Delaware corporation (the “Company”) to Ingalls & Snyder Value Partners L.P. (“Ingalls”) and Penrith LTD (“Perinth” and together with Ingalls, the “Investors”). |
| 2. | Pursuant to an Agreement to be negotiated and executed within 30 days of the date hereof to be entered into between the Company and certain prospective investors, the Company will agree to sell and issue common shares, par value $0.01 per share, (“Common Shares”) in exchange for up to $12,000,000 in gross proceeds, and warrants (“Warrants”) to purchase up to the same number of additional shares of Common Stock (the Common Shares, Warrants and the Common Stock issuable upon exercise of the Warrants, “New Securities”). |
| 3. | Pursuant to Section 7(a) of the Notes, the Investors will have certain anti-dilutive rights upon issuance of the New Securities proposed to be sold and issued (the “Anti-Dilutive Rights”). |
| 4. | The undersigned parties desire to permit the sale and issuance of the New Securities without triggering the Anti-Dilutive Rights and adjust the Fixed Conversion Price (as defined in the Notes) from $3.50 to $3.00. |
| 5. | The undersigned Ingalls holds 2006 Notes representing at least a majority of the aggregate principal amount of the 2006 Notes outstanding as of the date hereof. |
NOW THEREFORE, the undersigned agree as follows:
| 1. | Waiver. The Investors hereby waive all of their rights under Sections 4 and 7(a) of the Notes with respect to the sale, issuance and exercise of the New Securities. |
| 2. | Amendment. The Company and the Investors hereby agree to amend Section 2(b)(ii) of the Notes such that Section 2(b)(ii) shall read as follows: |
“Fixed Conversion Price” means $3.00 (also referred to as the “Initial Fixed Conversion Price”), subject to adjustment as provided herein.
| 3. | Miscellaneous. Other than as specifically set forth herein, this Consent of Rights Upon Issuance of Other Securities shall not be construed as a consent to any future |
| action or a waiver of any right or remedy on any future occasion. This Waiver of Rights Upon Issuance of Other Securities may be executed in one or more counterparts, all of which shall be considered one and the same waiver. |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Waiver of Rights Upon Issuance of Other Securities as of August 3, 2009.
| ANTIGENICS INC. | ||||
| By: | /s/ Shalini Sharp | |||
| Name: | Shalini Sharp | |||
| Title: | CFO | |||
| INVESTORS: | ||
| INGALLS & SNYDER VALUE PARTNERS L.P. | ||
| By: | /s/ Thomas O. Boucher Jr. | |
| Name: | Thomas O. Boucher Jr. | |
| Title: | General Partner | |
