<PAGE> 1
Exhibit 10.1
SUBSCRIPTION AGREEMENT
FOR
LIMITED PARTNERSHIP INTEREST
IN
APPLIED GENOMIC TECHNOLOGY CAPITAL FUND, L.P.
<PAGE> 2
IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION, OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
EXCEPT AS OTHERWISE PROVIDED IN THE LIMITED PARTNERSHIP AGREEMENT FOR APPLIED
GENOMIC TECHNOLOGY CAPITAL FUND, L.P. (THE "PARTNERSHIP"), A LIMITED PARTNER MAY
NOT SELL, ASSIGN, TRANSFER, PLEDGE OR OTHERWISE DISPOSE OF ALL OR ANY PART OF
ITS INTEREST IN THE PARTNERSHIP UNLESS THE GENERAL PARTNER (AS DEFINED HEREIN)
HAS CONSENTED THERETO.
FOR FLORIDA RESIDENTS ONLY:
--------------------------
THE SECURITIES BEING OFFERED HAVE NOT BEEN REGISTERED WITH THE FLORIDA DIVISION
OF SECURITIES. IF SALES ARE MADE TO FIVE OR MORE FLORIDA PURCHASERS, EACH SALE
IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS AFTER THE FIRST TENDER OF
CONSIDERATION IS MADE BY SUCH PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER OR
WITHIN THREE DAYS AFTER AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
FOR NON-U.S. RESIDENTS:
----------------------
NO ACTION HAS BEEN, OR WILL BE, TAKEN TO COMPLY WITH THE SECURITIES LAWS OF ANY
JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA (THE "U.S."). IT IS THE
RESPONSIBILITY OF ANY PERSON WISHING TO PURCHASE A LIMITED PARTNERSHIP INTEREST
TO SATISFY HIMSELF AS TO FULL OBSERVANCE OF THE LAWS OF ANY RELEVANT TERRITORY
OUTSIDE THE U.S. IN CONNECTION WITH ANY SUCH PURCHASE, INCLUDING OBTAINING ANY
REQUIRED GOVERNMENTAL OR OTHER CONSENTS OR OBSERVING ANY OTHER APPLICABLE
FORMALITIES.
i
<PAGE> 3
Investor Name: Antigenics Inc.
APPLIED GENOMIC TECHNOLOGY CAPITAL FUND, L.P.
SUBSCRIPTION AGREEMENT
Date: May 18, 2000
To: Applied Genomic Technology Capital Fund, L.P.
(the "Partnership")
c/o NewcoGen Group
150 CambridgePark Drive
Cambridge, MA 02140
Dear Sir or Madam:
Reference is made to the Limited Partnership Agreement of the Partnership
(the "Partnership Agreement") heretofore furnished to the undersigned with
respect to the offering of Limited Partnership Interests in the Partnership
(such Agreement, together with the other offering materials provided to the
undersigned subscribing investor (the "Investor") being sometimes herein
collectively called the "Offering Materials"). Capitalized terms used, but not
defined, herein shall have the respective meanings given them in the Offering
Materials.
The Investor hereby agrees as follows:
1. SUBSCRIPTION FOR A LIMITED PARTNERSHIP INTEREST.
(a) PURCHASE OF INTERESTS. Subject to the terms and conditions set
forth in this Subscription Agreement and in the Partnership Agreement, the
Investor agrees (i) to purchase from the Partnership the Limited Partnership
Interest (the "Interest") in the Partnership in the amount set forth on the
signature page below (except to the extent that a lesser Interest has been
accepted by the General Partner pursuant to Section 9) at a purchase price equal
to 100% of such Interest, payable in the manner and at the times provided in the
Partnership Agreement, (ii) to become a party to the Partnership Agreement and
(iii) to become a Limited Partner of the Partnership. In the event that the
General Partner elects pursuant to Section 2.3 of the Partnership Agreement to
form a Parallel Fund this Subscription Agreement, may, with the consent of the
Investor, be deemed a subscription for an Interest in the Parallel Partnership
and all references herein to the "Partnership" and the "Partnership Agreement"
shall be deemed references to the Parallel Fund and to the limited partnership
agreement of the Parallel Fund, respectively.
(b) ACCESS. It is understood that all materials pertaining to this
investment have been made available for inspection by the Investor and
representatives of the Investor and that the books and records of the
Partnership will be available, upon reasonable notice, for inspection by Limited
Partners during normal business hours at its principal office in accordance with
the Partnership Agreement.
2. REPRESENTATIONS OF THE INVESTOR. The Investor hereby represents and
warrants to the Partnership and to the General Partner as follows:
<PAGE> 4
(a) SUITABILITY. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THE
OFFERING MATERIALS AND HAS CONSULTED ITS OWN ATTORNEY, ACCOUNTANT OR INVESTMENT
ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY
FOR THE INVESTOR. ANY SPECIFIC ACKNOWLEDGMENT SET FORTH BELOW WITH RESPECT TO
ANY STATEMENT CONTAINED IN THE OFFERING MATERIALS SHALL NOT BE DEEMED TO LIMIT
THE GENERALITY OF THIS REPRESENTATION AND WARRANTY.
(b) OPPORTUNITY TO VERIFY INFORMATION. The Investor acknowledges that
representatives of the Partnership have made available to the Investor, during
the course of this transaction and prior to the purchase of any Interests, the
opportunity to ask questions of and receive answers from them concerning the
terms and conditions of the offering described in the Offering Materials, and to
obtain any additional information necessary to verify the information contained
in the Offering Materials or otherwise relative to the proposed activities of
the Partnership or to otherwise evaluate the merits and risks of an investment
in the Interest.
(c) PURCHASE FOR INVESTMENT. The Investor understands and agrees: (i)
that the Investor must bear the economic risk of its investment until the
termination of the Partnership; (ii) that the Interest has not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and,
therefore, cannot be resold or otherwise disposed of unless it is subsequently
registered under the Securities Act or unless an exemption from such
registration is available; (iii) that the Partnership is not being registered as
an "investment company" as the term "investment company" is defined in Section
3(a) of the U.S. Investment Company Act of 1940, as amended; (iv) that the
Investor is purchasing the Interest for its own account and without a view
towards distribution thereof; (v) that the Investor shall not resell or
otherwise dispose of all or any part of the Interest purchased by the Investor,
except as permitted by law, including, without limitation, any and all
applicable provisions of the Partnership Agreement and any regulations under the
Securities Act; (vi) that the transfer of the Interest and the substitution of
another Limited Partner for the Investor are restricted by the terms of the
Partnership Agreement; (vii) that the Partnership does not have any intention of
registering the Partnership as an "investment company" under the Investment
Company Act or of registering the Interest under the Securities Act or of
supplying the information which may be necessary to enable the Investor to sell
the Interest, except upon a request in compliance with Rule 1 44A(d)(4)(i) under
the Securities Act; (viii) that neither the General Partner nor its partners nor
any other person or entity selected by the General Partner to act as agent or
adviser of the Partnership with respect to managing the affairs of the
Partnership will be registered as an investment adviser under the Investment
Advisers Act of 1940, as amended; and (ix) that Rule 144 under the Securities
Act may not be available as a basis for exemption from registration of any
Interest. The Investor understands that there is no public or other market for
the Interest, and it is not anticipated that such a market will ever develop.
The Investor further understands that for the foregoing reasons, an Investor
will be required to retain ownership of the Interest and bear the economic risk
of this investment for an indefinite period of time.
(d) FULL CONTRIBUTION. The Investor understands that, except as
otherwise provided in the Partnership Agreement, the Investor may not make less
than the full amount of any required capital contribution, and that default
provisions with respect thereto, pursuant to which the Investor may lose a
material portion of its investment in the Partnership, are contained in the
Partnership Agreement.
(e) ACCREDITED INVESTOR AND QUALIFIED PURCHASER STATUS. One or more
of the categories set forth in EXHIBIT 1 and EXHIBIT 2 hereto correctly and in
all respects describes the Investor, and
<PAGE> 5
the Investor has so indicated by signing on the blank line or lines following a
category on each such Exhibit which so describes it.
(f) NO NEED FOR LIQUIDITY. The Investor has no need for liquidity in
connection with its purchase of the Interest, and is able to bear the risk of
loss of its entire investment in the Interest.
(g) INVESTMENT OBJECTIVES. The purchase of the Interest by the
Investor is consistent with the general investment objectives of the Investor.
(h) SECURITIES LAWS. The Investor received the Offering Materials and
first learned of the Partnership in the state listed as the address of the
Investor set forth on the Investor's signature page hereto, and intends that the
state securities laws of that state alone shall govern this transaction.
(i) INVESTMENT COMPANY ACT REPRESENTATIONS. If the Investor is a
corporation, trust, partnership or other organization:
(1) The Investor was not, or will not be, formed or
"recapitalized" (as defined below) for the specific purpose of acquiring the
Interest;
(2) The Investor's stockholders, partners or other beneficial
owners have no individual discretion as to their participation or
non-participation in the Interest and will have no individual discretion as to
their participation or non-participation in particular investments made by the
Partnership;
(3) The Investor has not and will not invest more than 40% of
its "committed capital" (as defined below) in any single entity, including the
Partnership, which is excluded from the definition of "investment company"
solely by reason of Section 3(c)(l) of the Investment Company Act; and
(4) If the Investor is contributing 10% or more of the total
capital to be contributed by the Limited Partners to the Partnership, either (i)
all of the outstanding securities (other than short-term paper) of such Investor
are beneficially owned by one natural person, or (ii) such Investor is not an
"investment company" under Section 3(a) of the Investment Company Act or an
entity which would be an "investment company" but for the exception provided for
in Section 3(c)(l) or Section 3(c)(7) of the Investment Company Act.
For purposes of this Section 2(i), the following definitions shall apply:
"Committed capital" includes all amounts which have been contributed to the
Investor by its shareholders, partners or other equity holders plus all amounts
which such persons remain obligated to contribute to it. The term
"recapitalized" shall include new investments made in the Investor solely for
the purpose of financing its acquisition of the Interest and not made pursuant
to a prior financial commitment.
(j) POWER AND AUTHORITY; NO CONFLICTS. If the Investor is a
corporation, trust, partnership or other organization: (i) it has the requisite
power and authority to execute and deliver this Subscription Agreement and the
Partnership Agreement; (ii) the person signing the Subscription Agreement on
behalf of the Investor has been duly authorized to execute this Subscription
Agreement and the Partnership Agreement; and (iii) such execution and delivery
does not violate, or conflict with, the terms of any material agreement or
instrument to which the Investor is a party or by which it is bound. This
Subscription Agreement has been duly executed by the Investor and constitutes,
and the Partnership
<PAGE> 6
Agreement, when the Investor is admitted as a Limited Partner, will constitute,
a valid and legally binding agreement of the Investor.
(k) KNOWLEDGE AND EXPERIENCE. The Investor and its purchaser
representative (if any) currently have, and (unless the Investor has a purchaser
representative) the Investor had immediately prior to receipt of any offer
regarding the Partnership, such knowledge and experience in financial and
business matters as to be able to evaluate the merits and risks of an investment
in the Partnership.
(l) PURCHASER REPRESENTATIVE. If the Investor has utilized a
purchaser representative, the Investor has previously given the Partnership
notice in writing of such fact, specifying that such representative would be
acting as the Investor's "purchaser representative" as defined in Rule 501(h) of
Regulation D under the Securities Act.
(m) NO VIEW TO TAX BENEFITS. The Investor is not acquiring the
Interest with a view to realizing any benefits under United States federal
income tax laws, and no representations have been made to the Investor that any
such benefits will be available as a result of the Investor's acquisition,
ownership or disposition of the Interest.
(n) PUBLICLY TRADED PARTNERSHIP. The following representations are
included with the intention of enabling the Partnership to qualify for the
benefit of a "safe harbor" under Treasury Regulations from treatment of the
Partnership as an entity subject to corporate income tax. Either:
(1) The Investor is not a partnership, grantor trust, or
Subchapter S corporation for federal income tax purposes, or
(2) The Investor is a partnership, grantor trust, or Subchapter
S corporation, but (i) at no time during the term of the Partnership will 65% or
more of the value of any beneficial owner's direct or indirect interest in the
Investor be attributable to the Investor's interests in the Partnership, (ii)
less than 65% of the value of the Investor is attributable to the Investor's
interests in the Partnership, and (iii) permitting the Partnership to satisfy
the 100-partner limitation set forth in Section l.7704-I(h)(1)(ii) of the
Treasury Regulations is not a principal purpose of any beneficial owner of the
Investor in investing in the Partnership through the Investor.
If the Investor is unable to make either of such representations, the Investor
hereby agrees to provide the General Partner, prior to the effective date of the
purchase of the Interest, with evidence (including opinions of counsel)
satisfactory in form and substance to the General Partner relating to the status
of the Partnership under Section 7704 of the Code.
(o) NO BORROWINGS. The Investor has not borrowed any portion of its
contribution to the Partnership, either directly or indirectly, from the
Partnership, the General Partner, or any affiliate of the foregoing.
(p) PARTNERSHIP COUNSEL DOES NOT REPRESENT INVESTORS. The Investor
understands and acknowledges that Testa, Hurwitz & Thibeault, LLP represents
only the Partnership and the General Partner, and not the Investor, in
connection with the formation of the Partnership.
3. CAPITAL CONTRIBUTIONS. Subject to the terms and conditions of the
Partnership Agreement, the initial capital contribution for the purchase of the
Investor's Interest shall take place on such date and at
<PAGE> 7
such place, as shall be selected by the General Partner upon 10 Business Days'
prior written notice to the Investor in accordance with Article 6 of the
Partnership Agreement.
4. AGREEMENTS WITH OTHER LIMITED PARTNERS. The Partnership represents
that each other Limited Partner has or will execute and deliver a subscription
agreement substantially identical to this Subscription Agreement (except as to
the amount of the Interest to be purchased), in which each such other Limited
Partner agrees to subscribe for and purchase an interest from the Partnership
and makes the same representations and warranties as are made by the Investor in
Section 2 hereof, only with changes that are appropriate to reflect the legal
form of such Limited Partner. The purchases of the Interests by the Investor and
the other Limited Partners are to be separate purchases from the Partnership and
the sales of the Interests to the Investor and the other Limited Partners are to
be separate sales by the Partnership. This Subscription Agreement and such other
subscription agreements are sometimes collectively referred to herein as the
"Subscription Agreements."
5. CONDITIONS TO CLOSING. The Investor's obligation to purchase the
Interest at the closing is subject to the fulfillment prior to or at the
closing, of each of the following conditions:
5.1. MINIMUM SUBSCRIPTIONS. The Partnership (together with any
Parallel Funds) shall have received aggregate capital commitments, including the
capital commitment of the General Partner, of at least $70,000,000 within sixty
(60) days of May 11, 2000.
5.2. SALE OF INTERESTS. The Investor shall have been duly admitted to
the Partnership as a Limited Partner.
5.3. REPRESENTATIONS AND WARRANTIES. The Partnership and the General
Partner shall represent and warrant to the Investor that, at the time of the
closing:
(a) ORGANIZATION AND STANDING OF THE PARTNERSHIP. The Partnership is
duly and validly organized and validly existing as a limited partnership under
the laws of the State of Delaware and has all requisite power and authority
under the Partnership Agreement, its Certificate of Limited Partnership and such
laws to enter into and carry out the terms of the Subscription Agreements, to
conduct its activities as described in the Partnership Agreement, to admit
partners to the Partnership and to issue and sell Interests in the Partnership.
The General Partner is duly and validly organized and validly existing as a
limited partnership under the laws of the State of Delaware and has all
requisite power and authority under its limited partnership agreement,
certificate of limited partnership and such laws to conduct its activities and
to enter into and perform the Partnership Agreement.
(b) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the Partnership nor
the General Partner is in violation of any term of its respective partnership
agreement or other governing documents or the Subscription Agreements, and
neither the Partnership nor the General Partner is in violation of any term of
any mortgage, indenture, contract, agreement, instrument, judgment, decree,
order, statute, rule or regulation applicable to it resulting in any material
adverse change in the business, prospects, condition, affairs or operations of
the Partnership or in any material liability on the part of the Partnership or
the General Partner. The execution and delivery of the Partnership Agreement and
the Subscription Agreements do not result in the violation of, constitute a
default under, or conflict with, any mortgage, indenture, contract, agreement,
instrument, judgment, decree, order, statute, rule or regulation applicable to
<PAGE> 8
the Partnership or the General Partner, or result in the creation of any
mortgage, lien, encumbrance or charge upon any of the properties or assets of
the Partnership or the General Partner.
(c) GOVERNMENTAL AND REGULATORY APPROVAL. Neither the execution and
delivery of the Subscription Agreements, nor the offer or sale of the Interests,
requires any consent, approval or authorization from, or filing, registration or
qualification with, any federal, state or local governmental or regulatory
authority (including, without limitation, registration under the Securities
Act), on the part of the Partnership or the General Partner, except for (i) the
filing of the Certificate of Limited Partnership as provided in the Partnership
Agreement, (ii) the requisite organizational filings of the General Partner and
(iii) compliance by the Partnership and the General Partner with the
requirements of any applicable state securities ("Blue Sky") laws.
(d) LITIGATION. There are no actions, proceedings or investigations
pending or threatened which have a substantial possibility of resulting in any
material adverse change in the business, prospects, condition, affairs or
operations of the Partnership or in any material liability on the part of the
Partnership or the General Partner.
(e) DISCLOSURE. Neither the Offering Materials nor this Subscription
Agreement furnished to any Limited Partner by or on behalf of the General
Partner or the Partnership in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein not
misleading in light of the circumstances under which they are or were made. The
Investor understands and acknowledges that his or its investment in the
Partnership shall be subject to the terms and conditions of this Subscription
Agreement and the Partnership Agreement in such final forms as shall be executed
by the parties thereto, and as the same may be amended from time to time in
accordance with their respective terms.
(f) PARTNERSHIP LIABILITIES. Except as set forth in the Offering
Materials or as otherwise disclosed to the Investor, the Partnership has not
engaged in any material transactions and does not have any material liabilities
or obligations of any nature, whether accrued, absolute, contingent or otherwise
(including, without limitation, liabilities as guarantor or otherwise with
respect to obligations of others) and whether due or to become due (other than
liabilities and obligations arising out of the offering under the Offering
Materials and the transactions described therein, including expenses of the
offering, legal and accounting fees, and travel and travel-related expenses).
(g) SALE OF THE INTERESTS. All action required to be taken by the
General Partner and the Partnership as a condition to the sale of the Interest
purchased by the Investor has been taken, such Interest will represent a duly
and validly issued limited partnership interest in the Partnership and the
Investor will be a Limited Partner of the Partnership entitled to all the
benefits, and subject to all the obligations, of a Limited Partner under the
Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act.
(h) CERTIFICATE OF LIMITED PARTNERSHIP. The Certificate of Limited
Partnership of the Partnership has been duly filed for record with the Secretary
of State of Delaware.
(i) INVESTMENT COMPANY ACT STATUS. Based in part upon the
representations of the Investors contained in the Subscription Agreements, the
Partnership is not required to be registered as an
<PAGE> 9
Investment Company within the meaning of the Investment Company Act, after
giving effect to the transactions contemplated in the Offering Materials.
5.4. PERFORMANCE OF THE PARTNERSHIP AND THE GENERAL PARTNER. The
Partnership and the General Partner shall have performed and complied with all
agreements and conditions required by this Subscription Agreement and the
Partnership Agreement to be performed or complied with by them prior to or at
the closing and there shall exist no condition or event which constitutes a
default under the Partnership Agreement or the Subscription Agreement or which
with notice or lapse of time, or both, would constitute such a default.
5.5. COMPLIANCE CERTIFICATE. The Partnership and the General Partner
shall have executed and delivered to the Investor a certificate certifying the
fulfillment of the conditions specified in Sections 5.1, 5.2, 5.3 and 5.4.
5.6. OPINION OF COUNSEL FOR THE PARTNERSHIP AND THE GENERAL PARTNER.
The Investor shall have received an opinion, dated the closing date, from Testa,
Hurwitz & Thibeault, LLP, counsel to the Partnership and the General Partner,
satisfactory in substance and form to the Investor, with respect to the due
formation of the Partnership, limited liability of the Limited Partners and
compliance with the Securities Act.
5.7. TERMINATION OF OBLIGATIONS. If at the closing the General Partner
fails to tender to the Investor the documents specified herein which are
required to be delivered to the Investor at the closing or if at the closing any
of the conditions specified in this Section 5 shall not have been fulfilled, the
Investor shall, at its election, be relieved of all further obligations under
this Subscription Agreement.
6. DELIVERY OF CLOSING DOCUMENTS. As soon as practicable following the
Closing, the General Partner will deliver to the Investor a composite conformed
copy of the Partnership Agreement and a counterpart of this Subscription
Agreement, executed by the Investor and the General Partner.
7. EXPENSES. Each party hereto will pay its own expenses relating to this
Subscription Agreement and the purchase of the Investor's Interest in the
Partnership hereunder.
8. AMENDMENTS. Neither this Subscription Agreement nor any term hereof
may be changed, waived, discharged or terminated except with the written consent
of the Investor and the General Partner.
9. REJECTION OF SUBSCRIPTION. The Investor acknowledges that the
subscription for the Interest contained herein may be reduced or rejected by the
General Partner of the Partnership in its sole discretion at any time prior to
the closing.
10. ADDITIONAL INVESTOR INFORMATION; INDEMNITY. The Investor understands
that the information provided herein (including Exhibit 1 and Exhibit 2 hereto)
will be relied upon by the Partnership and the General Partner for the purpose
of determining the eligibility of the Investor to purchase Interests in the
Partnership. The Investor agrees to provide, if requested, any additional
information that may reasonably be required to determine the eligibility of the
Investor to purchase Interests in the Partnership. The Investor agrees to
indemnify and hold harmless the Partnership, the General Partner, any Affiliate
of the Partnership or the General Partner, and any director, officer, employee,
or agent of any such party against any loss, damage, or liability due to or
arising out of a breach of any representation, warranty or agreement of the
Investor contained in this Subscription Agreement (including Exhibit 1 and
Exhibit 2
<PAGE> 10
hereto) or in any other documents provided by the Investor to the Partnership or
the General Partner in connection with the Investor's investment in the
Interest.
11. GENERAL. This Agreement (i) shall be binding upon the Investor and the
legal representatives, successors and assigns of the Investor, (ii) shall
survive the admission of the Investor as a Limited Partner of the Partnership,
(iii) shall not be assignable by the Investor without the written consent of the
General Partner and (iv) shall, if the Investor consists of more than one
person, be the joint and several obligation of all such persons. Two or more
duplicate originals of this Agreement may be executed by the undersigned and
accepted by the Partnership, each of which shall be an original, but all of
which together shall constitute one and the same instrument. Upon request, the
General Partner agrees to provide the Investor, or any proposed transferee of an
Investor, with information concerning the Partnership of the nature described in
Rule 144A(d)(4)(i) under the Securities Act for purposes of complying with the
requirements of said Rule 144A. This Agreement shall be governed by the laws of
the State of Delaware. Any term or provision of this Subscription Agreement that
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Subscription Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Subscription Agreement in any other jurisdiction.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[INVESTORS MUST COMPLETE THE
FOLLOWING SIGNATURE PAGE AND EXHIBITS 1 AND 2]
<PAGE> 11
The foregoing Subscription Agreement is hereby accepted by the undersigned as of
the date set forth below:
APPLIED GENOMIC TECHNOLOGY CAPITAL FUND, L.P.
By: AGTC Partners, L.P.
General Partner
(For itself and for the Partnership)
By: NewcoGen Group Inc.
Its General Partner
By: /s/ Noubar B. Afeyan
-----------------------------------------
Noubar B. Afeyan, President
Date of Acceptance: May 18, 2000
<PAGE> 12
LIMITED PARTNER SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has executed (his Agreement for the
purchase of a limited partnership interest in Applied Genomic Technology Capital
Fund, LP. (the "Partnership"). This page constitutes the signature page for each
of (i) the Subscription Agreement for the purchase of the Interest in the
Partnership in the amount set forth, and (ii) the Limited Partnership Agreement
of the Partnership in which the undersigned shall be admitted as a Limited
Partner of the Partnership. Upon acceptance below by the General Partner, the
undersigned shall be admitted as a Limited Partner of the Partnership and hereby
authorizes this signature page to be attached to a counterpart of the Limited
Partnership Agreement executed by the General Partner.
Subscription Antigenics Inc.
----------------------------------------
Amount of Interest Purchased: (Print or type Name of Investor)
$ 3,000,000 [Sign Here]:
----------------------------------
Social Security or By: /s/ Garo Armen
Federal Tax Identification No.: ------------------------------------
(Title, if applicable)
06-1562417 --------------
------------------------------
Typed or printed name arid Preferred address for receiving
address of Investor: communications (Do not complete
if already listed on prior column):
Antigenics Inc.
------------------------------------ ----------------------------------------
630 Fifth Avenue, New York, NY 10111
------------------------------------ ----------------------------------------
Type of Entity (e.g. individual,
corporation, estate, trust, partnership,
exempt organization, nominee,
custodian):
Telecopier No.: 212-332-4778 Corporation
--------------------- ----------------------------------------
Employee benefit plan: Yes No X NASD member or related person: Yes No X
--- --- -- ---
ACKNOWLEDGMENT OF SIGNATURE
STATE/COUNTRY OF NEW YORK )
)
COUNTY/PROVINCE OF NEW YORK )
On this 4th day of May, 2000, before me personally came Garo Armen, known
to me to be the CHIEF ESECUTIVE OFFICER of the Limited Partner named above, or
the individual so named above, and made oath
<PAGE> 13
that lie or she executed the above instrument as his or her own free act and
deed, and iii the capacity therein stated, as the authorized representative of
the person or entity set Forth above, or in any individual capacity.
[NOTARIAL SEAL]
/s/ Ma Naomi Sui Hong
------------------------------------------
Notary Public
My commission expires: June 12, 2001
<PAGE> 14
EXHIBIT 1
The Investor hereby represents and warrants, pursuant to Section 2(e) of
the attached Subscription Agreement, that he, she or it is correctly and in all
respects described by the category or categories set forth below directly under
which the Investor has signed his, her or its name.
[SIGN BELOW THE CATEGORY OR CATEGORIES WHICH DESCRIBES YOU]
1. The Investor is a natural person whose net worth, either individually
or jointly with such person's spouse, at the time of his purchase, exceeds
$1,000,000.
----------------
2. The Investor is a natural person who had individual income in excess
of $200,000, or joint income with that person's spouse in excess of $300,000, in
1998 and 1999 and reasonably expects to reach the same income level in 2000.
----------------
3. The Investor is a corporation, partnership or other organization
described in Section 501(c)(3) of the Internal Revenue Code, or Massachusetts or
similar business trust, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000.
/s/ Garo Armen
-----------------
4. The Investor is an entity which falls within one of the following
categories of accredited investors set forth in Rule 501(a) of Regulation D
under the Securities Act ("Regulation D"):
(a) A bank as defined in Section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in its individual or a fiduciary
capacity.
----------------
(b) A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
----------------
<PAGE> 15
(c) An insurance company as defined in Section 2(13) of the
Securities Act.
----------------
(d) An investment company registered under the Investment Company Act
of 1940 or as a business development company as defined in Section 2(a)(48) of
that Act.
----------------
(e) A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
----------------
(f) Any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such a plan has total assets
in excess of $5,000,000.
----------------
(g) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
----------------
(h) An employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(2 1) of such act, which is
either a bank, savings and loan association, insurance company or registered
investment adviser or if the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment decisions made solely by
persons that are accredited investors.
----------------
(i) A trust, with total assets in excess of $5,000,000 not formed for
the specific purpose of acquiring the securities offered, whose purpose is
directed by a sophisticated person as described in Rule 506(b)(2){ii) of
Regulation D.
----------------
5. The Investor is an entity in which all of the equity owners are
accredited investors and described in one or more of the categories set forth in
paragraphs 1 through 4 above.
----------------
<PAGE> 16
EXHIBIT 2
The Investor hereby represents and warrants, pursuant to Section 2(e) of
the attached Subscription Agreement, that he, she or it is correctly and in all
respects described by the category or categories set forth below directly under
which the Investor has signed his, her or its name.
(SIGN BELOW THE CATEGORY OR CATEGORIES WHICH DESCRIBES YOU]
QUALIFIED PURCHASER STATUS
A. The Investor is a "qualified purchaser" as defined in Section
2(a)(51)(A) of the Investment Company Act:
1. The Investor is a natural person who owns not less than $5,000,000 in
investments.(1)
----------------
2. The Investor is a company that owns not less than $5,000,000 in
investments1 that is owned directly or indirectly by or for two (2) or more
natural persons who are related as siblings or spouse (including former
spouses), or direct lineal descendants by birth, adoption, spouses of such
persons, the estates of such persons, or foundations, charitable organizations
or trusts established by or for the benefit of such persons.
----------------
3. The Investor is a trust not covered by clause (2) above that was not
formed for the purpose of acquiring the securities offered, as to which the
trustee or other person authorized to make decisions with respect to the trust,
and each settlor or other person who has contributed assets to the trust is a
person described in clauses (I), (2) above or (4) below.
----------------
4. The Investor is either (x) a person(2), acting for its own account or
the accounts of other qualified purchasers, who in the aggregate owns and
invests on a discretionary basis not Less than $25,000,000 in investments or (y)
a qualified institutional buyer (as defined in paragraph (a) of Rule 144A
----------------
(1) For definition of investments", see Rule 2a5 1-I promulgated under the
Investment Company Act.
(2) If such person is a company that, but for the exceptions provided for in
paragraph (1) or (7) of Section 3(c) of the Investment Company Act, would be an
investment company (an "excepted investment company"), all beneficial owners of
its outstanding securities (other than short-term paper), determined in
accordance with Section 3(c)(1)(A) on the Investment Company Act, that acquired
such securities on or before April 30, 1996 (as "pre-amendment beneficial
owners"), and all pre--amendment beneficial owners of the outstanding securities
(other than short-term paper) of any excepted investment company that, directly
or indirectly owns any outstanding securities of such excepted investment
company, have consented to its treatment as a qualified purchaser. See Rule
2a51-2(e).
<PAGE> 17
promulgated under the Securities Act) meeting the requirements of Rule 2a5
1-1(g) promulgated under the Investment Company Act.
----------------
5. The Investor is a company all of the securities of which are
beneficially owned by "qualified purchasers."
----------------
B. The Investor is not a "qualified purchaser" as described in any of the
above categories.
----------------
