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
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(a) o
(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
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
|
||
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
|
NAME OF REPORTING PERSONS
OrbiMed Capital GP III LLC
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
AF
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|||
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
|
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
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.02%†
|
|||
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
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
AF
|
|||
5
|
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
United States
|
|||
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%†
|
|||
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 Amended and Restated Carve Out Agreement
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5.
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Form of Termination 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 | |||
Samuel D. Isaly | ||||
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/s/ Samuel D. Isaly |
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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.
|
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)
|
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 Amended and Restated Carve Out Agreement
|
5.
|
Form of Termination Agreement
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OrbiMed Advisors LLC a Delaware Limited Liability Company |
||||
|
By:
|
/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
|
|||
By:
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/s/ Samuel D. Isaly | |||
Name: | Samuel D. Isaly | |||
Title: | Managing Member | |||
Samuel D. Isaly | ||||
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/s/ Samuel D. Isaly | |||
Name: | Samuel D. Isaly |
1.
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AGUTH Holding GmbH, Schloß-Wolfsbrunnenweg 33, 69118 Heidelberg, Germany
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2.
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[_____]
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(1)
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Upon the effectiveness of this “Amended and Restated Carve Out Agreement” (hereinafter referred to as “this Agreement”), which shall be effective upon the execution of this Agreement by each party hereto and the effectiveness of the termination of the Original Carve Out Agreement, the Shareholder herewith authorizes Affimed N.V. to deposit in trust with Böhret Sehmsdorf GmbH, Dresden, Germany (hereinafter referred to as the “Trustee”) a total of _____ fully paid common shares in Affimed N.V. with a nominal value of EUR 0.01 in the share capital of Affimed N.V. (hereinafter collectively referred to as the “Trust Shares”), whereby the Trustee shall hold the Trust Shares for the time being on behalf and for the benefit of the Shareholder.
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(2)
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As soon as practicable after __________ ___, 201_, the Trustee shall sell, in strict compliance with the safe harbor regulations of Rule 144 under the US Securities Act of 1933, as amended, and/or any other applicable safe harbor regulations, and in strict compliance with the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934 and applicable blue sky laws and insider trading regulations, and in strict compliance with the selling instructions set forth in Exhibit A hereto, __1 % of the Trust Shares – in one or more tranches – in order to cover any and all applicable taxes, social security contributions and other charges as per § 2 below accruing in connection with the grant of the entitlements and/or payments to the Beneficiary. The Beneficiary shall be entitled to change the selling instructions set forth in Exhibit A hereto at any time and from time to time by providing the Trustee and the Shareholder with a revised Exhibit A in writing or by telefax, provided that such change must comply with the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934; such changed selling instructions shall become binding for the Parties five business days after receipt of the revised Exhibit A by the Trustee.
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(3)
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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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(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 Shareholder shall be entitled in his 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. The heirs shall also be subject to the terms and provisions of this Agreement. The heirs shall be obliged to notify their position as heirs to the Shareholder 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.
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(1)
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This 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.
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(2)
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Should individual terms of this Agreement be or become invalid or unenforceable or if this Agreement contains gaps, this shall not affect the validity of the remaining terms of this 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 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)
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Any amendments and additions to this Agreement must be made in writing (including by telefax or email) 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 Agreement.
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(4)
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This 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 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 Agreement, that he knowingly and voluntarily agrees to the terms and conditions of this Agreement and that he has had the opportunity to review this 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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_________________, __________________
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Place, Date
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(AGUTH Holding GmbH)
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_________________, __________________
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Place, Date
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([______])
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Date
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Signature
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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., St. Peters House, Le Bordage, St. Peter Port, Guernsey GY1 1BR, 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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Dr. Florian Fischer, Becker-Gundahl-Straße 11a, 81479 Munich, Germany
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13.
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Affimed GmbH, Im Neuenheimer Feld 582, 69120 Heidelberg, Germany
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_________________,______________________
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Place, Date
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(Prof. Dr. Melvyn Little)
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_________________,______________________
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Place, Date
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(Deutsches Krebsforschungszentrum)
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_________________,______________________
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|||
Place, Date
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(AGUTH Holding GmbH)
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_________________,______________________
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Place, Date
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(KfW)
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_________________,______________________
|
|||
Place, Date
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(tbg Technologie-Beteiligungs-Gesellschaft mbH)
|
||
_________________,______________________
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Place, Date
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(SGR Sagittarius Holding AG)
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||
_________________,______________________
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Place, Date
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(BioMed Invest I Ltd.)
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||
_________________,______________________
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Place, Date
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(OrbiMed Associates III, LP)
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_________________,______________________
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Place, Date
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(OrbiMed Private Investments III, LP)
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_________________,______________________
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Place, Date
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(LSP III Omni Investment Coöperatief U.A.)
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_________________,______________________
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Place, Date
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(Novo Nordisk A/S)
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_________________,______________________
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Place, Date
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(Dr. Florian Fischer)
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_________________,______________________
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Place, Date
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(Affimed GmbH)
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