CUSIP No. N01045108
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Page 2 of 14 Pages
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1
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NAME OF REPORTING PERSONS
OrbiMed Advisors LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) x
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
AF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
0
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||
8
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SHARED VOTING POWER
5,814,630*
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|||
9
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SOLE DISPOSITIVE POWER
0
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|||
10
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SHARED DISPOSITIVE POWER
5,814,630*
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|||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,814,630
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.24%†
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14
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TYPE OF REPORTING PERSON (See Instructions)
IA
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CUSIP No. N01045108
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Page 3 of 14 Pages
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1
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NAME OF REPORTING PERSONS
OrbiMed Capital GP III LLC
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|||
2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) x
(b) o
|
|
||
3
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SEC USE ONLY
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|||
4
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SOURCE OF FUNDS (See Instructions)
AF
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|||
5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o
|
||
6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
5,760,587*
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
5,760,587*
|
|||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,760,587
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
|
o
|
||
13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.02%†
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|||
14
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TYPE OF REPORTING PERSON (See Instructions)
OO
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CUSIP No. N01045108
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Page 4 of 14 Pages
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1
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NAME OF REPORTING PERSONS
Samuel D. Isaly
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|||
2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) x
(b) o
|
|
||
3
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SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS (See Instructions)
AF
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|||
5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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||
6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
5,814,630*
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
5,814,630*
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,814,630
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.24%†
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|||
14
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TYPE OF REPORTING PERSON (See Instructions)
IN
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Item 1.
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Security and Issuer
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Item 2.
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Identity and Background
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(i)
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name;
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(ii)
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business address;
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(iii)
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present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted;
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(iv)
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citizenship.
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Item 3.
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Source and Amount of Funds or Other Consideration
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Item 4.
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Purpose of Transaction
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Item 5.
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Interest in Securities of the Issuer
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Item 6.
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Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer
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Item 7.
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Materials to Be Filed as Exhibits
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Exhibit
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Description
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1.
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Joint Filing Agreement among OrbiMed Advisors LLC, OrbiMed Capital GP III LLC and Samuel D. Isaly
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2.
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Form of Registration Rights Agreement (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Issuer’s Form F-1 (SEC File No. 333-197097), filed with the SEC on July 17, 2014)
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3.
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Form of Lock-Up Letter Agreement (incorporated by reference to Exhibit A to the Form of Underwriting Agreement, Exhibit 1.1 to Amendment No. 2 to the Issuer’s Form F-1 (SEC File No. 333-197097), filed with the SEC on August 19, 2014)
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4.
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Form of Carve-Out Agreement
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OrbiMed Advisors LLC a Delaware Limited Liability Company |
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By:
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/s/ Samuel D. Isaly | ||
Name: | Samuel D. Isaly | |||
Title: | Managing Member |
OrbiMed Capital GP III LLC a Delaware Limited Liability Company |
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By: |
OrbiMed Advisors LLC
A Delaware Limited Liability Company and its Managing Member
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By:
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/s/ Samuel D. Isaly | |||
Name: | Samuel D. Isaly | |||
Title: | Managing Member |
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By:
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/s/ Samuel D. Isaly | |||
Name: | Samuel D. Isaly |
Name
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Position with Reporting
Person
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Principal Occupation
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Samuel D. Isaly
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Managing Member
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Managing Member
OrbiMed Advisors LLC
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Carl L. Gordon
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Member
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Member
OrbiMed Advisors LLC
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Sven H. Borho
German and Swedish Citizen
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Member
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Member
OrbiMed Advisors LLC
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Jonathan T. Silverstein
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Member
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Member
OrbiMed Advisors LLC
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W. Carter Neild
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Member
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Member
OrbiMed Advisors LLC
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Geoffrey C. Hsu
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Member
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Member
OrbiMed Advisors LLC
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Evan D. Sotiriou
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Chief Financial Officer
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Chief Financial Officer
OrbiMed Advisors LLC
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Exhibit
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Description
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1.
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Joint Filing Agreement among OrbiMed Advisors LLC, OrbiMed Capital GP III LLC and Samuel D. Isaly.
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2.
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Form of Registration Rights Agreement (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Issuer’s Form F-1 (SEC File No. 333-197097), filed with the SEC on July 17, 2014)
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3.
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Form of Lock-Up Letter Agreement (incorporated by reference to Exhibit A to the Form of Underwriting Agreement, Exhibit 1.1 to Amendment No. 2 to the Issuer’s Form F-1 (SEC File No. 333-197097), filed with the SEC on August 19, 2014)
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4.
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Form of Carve Out Agreement
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OrbiMed Advisors LLC a Delaware Limited Liability Company |
||||
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By:
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/s/ Samuel D. Isaly | ||
Name: | Samuel D. Isaly | |||
Title: | Managing Member |
OrbiMed Capital GP III LLC a Delaware Limited Liability Company |
||||
By: |
OrbiMed Advisors LLC
A Delaware Limited Liability Company and its Managing Member
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|||
By:
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/s/ Samuel D. Isaly | |||
Name: | Samuel D. Isaly | |||
Title: | Managing Member | |||
Samuel D. Isaly | |||
By:
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/s/ Samuel D. Isaly | ||
Samuel D. Isaly |
1.
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Prof. Dr. Melvyn Little, Immenseeweg 17, 25826 St. Peter-Ording, Germany
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2.
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Deutsches Krebsforschungszentrum, Im Neuenheimer Feld 280, 69120 Heidelberg, Germany
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3.
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AGUTH Holding GmbH, Schloß-Wolfsbrunnenweg 33, 69118 Heidelberg, Germany
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4.
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KfW, Ludwig-Erhard-Platz 1-3, 53179 Bonn, Germany
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5.
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tbg Technologie-Beteiligungs-Gesellschaft mbH, Ludwig-Erhard-Platz 1-3, 53179 Bonn, Germany
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6.
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SGR Sagittarius Holding AG, Poststrasse 30, 6301 Zug, Switzerland
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7.
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BioMed Invest I Ltd., Suite 7, Provident House, Havilland Street, St. Peter Port, Guernsey, GY1 2QE, Channel Islands
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8.
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OrbiMed Associates III, LP, 601 Lexington Avenue, 54th Floor, New York, NY 10022, USA
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9.
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OrbiMed Private Investments III, LP, 601 Lexington Avenue, 54th Floor, New York, NY 10022, USA
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10.
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LSP III Omni Investment Coöperatief U.A., Johannes Vermeerplein 9, 1071 DV Amsterdam, The Netherlands
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11.
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Novo Nordisk A/S, Novo Allé, 2880 Bagsværd, Denmark
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12.
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________________, ________________, ________________
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13.
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Affimed Therapeutics AG, Im Neuenheimer Feld 582, 69120 Heidelberg, Germany
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(1)
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Upon the respective Payment Date (as defined below) of the first Transaction (as defined below) after the date hereof, the Beneficiary shall be entitled to a payment claim against the Shareholders gross (brutto) (the “Carve Out”) calculated in accordance with the following equation:
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(2)
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___ % of the Carve Out granted hereunder have vested immediately upon the conclusion of this Carve Out Agreement. ___ % of the Carve Out granted hereunder shall be subject to the time-based vesting under (a) below. ___ % of the Carve Out granted hereunder shall be subject to the milestone-based vesting under (b) below.
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(a)
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___ % of the Carve Out granted hereunder (the “Time-based Carve Out”) shall vest over a total period of time of _____ months/years beginning on ____________ ___, 20___, whereby ___ % of the Time-based Carve Out shall vest after the expiry of ____________ ___, 20___, a further ___ % of the Time-based Carve Out shall vest after the expiry of ____________ ___, 20___ and the remaining ___ % of the Time-based Carve Out shall vest after the expiry of ____________ ___, 20___.
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(b)
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___ % of the Carve Out granted hereunder (the “Milestone-based Carve Out”) shall vest, and shall only vest, if either (i) the Beneficiary has not left (as defined above) his service or employment relationship with the Company for any reason whatsoever prior to the Consummation of the first Transaction after the date hereof or (ii) the Company terminates the service or employment relationship of the Beneficiary without cause for which the Beneficiary is responsible after the Relevant Date, in which case 100 % of the Milestone-based Carve Out shall vest immediately upon the Consummation of such Transaction.
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(3)
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The Carve Out shall be paid by the Shareholders in accordance with the following provisions as partial debtors (Teilschuldner) under exclusion of any joint and several liability (unter Ausschluss jeglicher gesamtschuldnerischer Haftung) in proportion to (i) in case of an IPO: the number of shares of the Company or its holding company held by them immediately prior to the Consummation of the IPO (but excluding, for the avoidance of doubt, any shares purchased in the course of the IPO) inter se, and (ii) in case of a Trade Sale, Asset Deal, Merger, RTO or Liquidation (collectively the “Exit”) or Further Exit: the total Net Proceeds of such Exit or Further Exit received by the respective Shareholder in relation to the total Net Proceeds of such Exit or Further Exit received by all Shareholders in the aggregate.
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(4)
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Upon the Consummation of the IPO, each of the Shareholders shall deposit with one common trustee designated jointly by all of the Shareholders (the “Trustee”) such number of shares of the Company or its holding company as is equal to V x P multiplied by the total number of shares of the Company or its holding company held by the respective Shareholder immediately prior to the Consummation of the IPO (but excluding, for the avoidance of doubt, any shares purchased in the course of the IPO) (the “Individual Trust Shares”), whereby the Trustee shall hold the Individual Trust Shares for the time being on behalf and for the benefit of the respective Shareholder. The Beneficiary is aware that the Shareholders have granted a participation in their proceeds of an exit also to several other persons (the “Other Beneficiaries”). As a result, the Trustee will not only hold in trust the Individual Trust Shares, but also further shares of the Company or its holding company with respect to the claims of the Other Beneficiaries (the Individual Trust Shares and such further shares of the Company or its holding company held in trust by the Trustee collectively the “Trust Shares”).
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(5)
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In case of an Exit or Further Exit, the Carve Out shall come into existence under the condition precedent that, and shall be paid to the Beneficiary 20 Bank Working Days after, the shareholders of the Company have actually received the Net Proceeds of the Exit or Further Exit; provided, however, that to the extent that the Net Proceeds of the Exit or Further Exit consist of shares in companies listed on a stock exchange which are subject to any applicable waiting periods, lock-up periods and similar restrictions, the Carve Out shall come into existence under the condition precedent that, and shall be paid to the Beneficiary 20 Bank Working Days after, the shareholders of the Company have actually received the Net Proceeds of the Exit or Further Exit and any applicable waiting periods, lock-up periods and similar restrictions have expired (the “Payment Date”). If the shareholders of the Company receive the Net Proceeds of the Exit or Further Exit in several tranches and/or such Proceeds are contingent upon conditions and/or deferred and/or paid into an escrow account, then the Carve Out shall come into existence under the condition precedent that, and shall be paid to the Beneficiary only if and 20 Bank Working Days after, the shareholders of the Company themselves have actually received the respective tranche of such Proceeds or such Proceeds contingent upon conditions or such deferred Proceeds or such Proceeds paid into an escrow account and, to the extent that such Proceeds consist of shares in companies listed on a stock exchange, after any applicable waiting periods, lock-up periods and similar restrictions have expired (the “Payment Date”).
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(6)
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The rights of the Beneficiary hereunder are a one-time benefit, which shall be fulfilled and exhausted upon the Consummation of the first Transaction after the date hereof, regardless of the actual entitlement of the Beneficiary to receive a Carve Out upon the Consummation of such Transaction or actual receipt of payments hereunder, subject to the following provisions of this § 1 (6).
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(7)
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The rights of the Beneficiary hereunder do not constitute shares or other equity instruments of the Company and do not grant the right to subscribe for or otherwise receive shares or other equity instruments of the Company, and thus do not entitle the Beneficiary, whether as of the date hereof, upon the occurrence of a Transaction or Further Exit or otherwise, to any shareholder rights, including, without limitation, voting rights, information rights, dividend entitlement or rights on liquidation. The rights hereunder shall entitle the Beneficiary only to a payment claim, if any, against the Shareholders upon the Payment Date of a Transaction and possibly a Further Exit, subject to the terms and conditions set forth herein.
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(8)
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The rights of the Beneficiary hereunder shall lapse immediately and without compensation in the event of the opening of insolvency proceedings over the assets of the Beneficiary or the refusal of the opening of such proceedings for lack of assets or in the event that the rights of the Beneficiary hereunder are attached by one of the creditors of the Beneficiary or execution in the rights of the Beneficiary hereunder otherwise takes place and the execution measure is not lifted before the realization of the rights of the Beneficiary hereunder or within three months, whichever is earlier.
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(9)
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The rights of the Beneficiary hereunder shall lapse immediately and without compensation in the event that no Transaction is Consummated on or before the tenth anniversary of the date of the conclusion of this Carve Out Agreement.
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(1)
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The Beneficiary expressly acknowledges and agrees that upon demand of the Shareholders, the Beneficiary shall become a party to the investment and shareholders’ agreements by and between the shareholders of the Company and/or of the acquiring company or surviving entity of a Merger and, if applicable, the Company and/or such acquiring company or surviving entity following the issuance of shares of the Company or this acquiring company or surviving entity to the Beneficiary hereunder, which may provide for transfer restrictions, voting agreements as well as preference payments of the holders of preferred shares, inter alia.
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(2)
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The Beneficiary expressly acknowledges and agrees that he shall agree to and comply with the waiting periods, lock-up periods and similar restrictions in case of a swap or contribution of shares or assets of the Company to, or a merger, consolidation or acquisition, or any other event involving the Company, with, a company listed on a stock exchange, regarding all shares and/or option rights issued or to be issued or transferred or to be transferred to the Beneficiary in the course of such transaction, which are required on the specific market segment or by the underwriting banks, and also to perform any actions, give any declarations and accept any obligations which are necessary or appropriate for such transaction.
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(1)
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The rights of the Beneficiary hereunder are not transferable. In the same way, other disposals of the rights of the Beneficiary hereunder as well as entering into any obligation to dispose of the rights of the Beneficiary hereunder, in particular, without limitation, the grant of sub-participations or the establishment of trusts, the entering into short positions by passing on the rights of the Beneficiary hereunder to third parties as well as similar position-closing transactions which commercially result in a disposal of the rights of the Beneficiary hereunder, are also not permitted. In case of a breach of the preceding provisions, the rights of the Beneficiary hereunder shall lapse immediately and without compensation. In exceptional cases, the Shareholders shall be entitled in their sole and free discretion to approve of a disposal of the rights of the Beneficiary hereunder.
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(2)
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The rights of the Beneficiary hereunder are freely inheritable to the extent vested in accordance with the terms and provisions of this Carve Out Agreement at the time of the death of the Beneficiary. The heirs shall also be subject to the terms and provisions of this Carve Out Agreement. The heirs shall be obliged to notify their position as heirs to the Shareholders and to legitimize their claim pursuant to § 35 German Land Register Code (GBO). If the rights of the Beneficiary hereunder are jointly owned by a community of heirs (Erbengemeinschaft) or a community of legatees (Vermächtnisnehmer), they shall be obliged to jointly exercise their rights hereunder and to authorize a joint representative for this purpose. If the Beneficiary should die and the prerequisites for the inheritance of the rights of the Beneficiary hereunder under sentence 1 above are not fulfilled, this Carve Out Agreement and the rights of the Beneficiary hereunder shall lapse immediately and without compensation.
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(1)
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The grant of the rights hereunder is made on a voluntary basis and with the reservation of its optional nature, and shall not create any continuous business practice (keine betriebliche Übung) and thus shall not create any legal entitlement to the grant of further rights (or other participations or bonuses) in the future even if rights (or other participations or bonuses) are granted repeatedly.
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(2)
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Nothing contained herein or in any other document related to the Carve Out shall imply or infer any right or entitlement on the part of the Beneficiary to any service or employment with the Company or its affiliated companies. Without limiting the generality of the foregoing, the Company’s and its affiliated companies’ right to terminate the service or employment relationship of the Beneficiary at any time for any reason or no reason in accordance with the applicable legal provisions shall not in any way be limited or restricted.
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(1)
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In case of a transfer of shares of the Company or its holding company, as applicable, the transferring Shareholder shall be entitled and obliged to transfer his rights and obligations under this Carve Out Agreement together with the shares of the Company or its holding company, as applicable, without requiring the consent of any of the other Parties, provided that such transfer of shares of the Company or its holding company, as applicable, occurs in accordance with the provisions of the Articles of Association of the Company or its holding company, as applicable, and the shareholders’ agreement by and between the shareholders of the Company or its holding company, as applicable, and the Company or its holding company, as applicable, in effect from time to time. This § 7 (1) shall not apply in case of a transfer of shares of the Company to a holding company of the Company.
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(2)
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The Shareholders and the Beneficiary agree that each future shareholder of the Company or its holding company, as applicable, may become a party to this Carve Out Agreement prior to or concurrently with the acquisition of shares of the Company or its holding company, as applicable, with the rights and obligations of a Shareholder.
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(3)
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All Shareholders and the Beneficiary hereby declare their consent, and hereby offer, to an acquirer of shares of the Company or its holding company, as applicable, under § 7 (1) or (2) above to become a party to this Carve Out Agreement and, if applicable, to the transferor to cease to be a party to this Carve Out Agreement, in each case provided that such acquisition and, if applicable, transfer of shares of the Company or its holding company, as applicable, occurs in accordance with the provisions of § 7 (1) or (2) above. Each of the Shareholders waives the requirement that they are notified of such accession and, if applicable, leaving pursuant to § 151 sentence 1 of the German Civil Code (Verzicht auf den Zugang der Beitritts- und gegebenenfalls Austrittserklärung gemäß § 151 Satz 1 BGB), which shall become effective upon receipt by the Beneficiary of a corresponding instrument duly executed in writing by the acquirer and, if applicable, the transferor of shares of the Company or its holding company, as applicable.
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(1)
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This Carve Out Agreement supersedes all prior representations, arrangements, understandings and agreements between the Parties and each of them relating to the subject-matter thereof, and sets forth the entire, complete and exclusive agreement and understanding between the Parties and each of them relating to the subject-matter thereof. In particular, this Carve Out Agreement shall totally replace the Interim Grant Agreement dated ____________ by and between the Beneficiary and the Company which shall be of no further force or effect. The Beneficiary hereby irrevocably waives the 13,081 stock options granted to him under the Stock Option Equity Incentive Plan 2007 of the Company, as amended, and any and all rights out of or in connection with such stock options and its grant; such waiver is hereby accepted by the Company; the option agreement for the granting of such stock options is hereby terminated with immediate effect by mutual agreement, and the Beneficiary and the Company are in agreement that no further rights and obligations among the Beneficiary and the Company under or in connection with this option agreement, whether actual or contingent, exist.
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(2)
|
Should individual terms of this Carve Out Agreement be or become invalid or unenforceable or if this Carve Out Agreement contains gaps, this shall not affect the validity of the remaining terms of this Carve Out Agreement. In place of the invalid, unenforceable or missing term, such valid term which comes closest to what was intended according to the sense and purpose of the invalid, unenforceable or missing term shall be deemed to have been agreed. Should a term of this Carve Out Agreement be or become invalid because of the scope or time of performance for which it provides, then the scope or time of performance shall be amended to correspond to such scope or time of performance which comes closest within what is legally permissible.
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(3)
|
Any amendments and additions to this Carve Out Agreement must be made in writing in order to be effective, to the extent that notarization is not required by applicable law. This shall also apply to a waiver of the written form requirement as well as to a waiver of any right or claim under or in connection with this Carve Out Agreement.
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(4)
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This Carve Out Agreement shall be governed by the laws of the Federal Republic of Germany without regard to the conflicts of laws provisions thereof. To the extent that such an agreement is legally valid, the courts at the registered seat of the Company shall have non-exclusive jurisdiction over this Carve Out Agreement.
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(5)
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The Beneficiary hereby confirms that he has carefully read and fully understands all of the provisions of this Carve Out Agreement, that he knowingly and voluntarily agrees to the terms and conditions of this Carve Out Agreement and that he has had the opportunity to review this Carve Out Agreement and to consult with an attorney, tax advisor and financial advisor regarding it. The Beneficiary further confirms that his employer has not made any recommendation in relation to the acceptance of the rights hereunder.
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_________________, __________________
Place, Date
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_________________________________
(________________)
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_________________, __________________
Place, Date
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_________________________________
(________________)
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_________________, __________________
Place, Date
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_________________________________
(________________)
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_________________________________
(________________)
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