On June 24, 2014, Advisors and GP III, pursuant to their authority under the limited partnership agreements of OPI III and/or Associates III, as more particularly referred to in Item 6 below, caused OPI III and Associates III to enter into an investment agreement with the Issuer pursuant to which OPI III and Associates III acquired 389,512 and 4,330 shares, respectively, of Series E preferred shares of Affimed Therapeutics AG in exchange for the contribution of an outstanding convertible loan with interest thereon and cash and after giving effect to a price adjustment in connection with the Issuer’s initial public offering.
Prior to the close of the Issuer’s initial public offering on September 17, 2014, Affimed Therapeutics AG underwent a corporate reorganization pursuant to which Affimed Therapeutics AG became a wholly-owned subsidiary of Affimed Therapeutics B.V., a newly formed holding company, and all the equity interests of Affimed Therapeutics AG were exchanged for shares of the Issuer’s Common Stock. In connection with the corporate reorganization, the Reporting Persons and certain other pre-initial public offering shareholders of Affimed Therapeutics AG entered into a Notarial Deed of Issue pursuant to which they agreed to transfer, in exchange for shares of the Issuer’s Common Stock, their Series D preferred shares and Series E preferred shares, at the ratio of 7.543437 shares of the Issuer’s Common Stock for each Series D preferred share, and at the ratio of 13.702654 shares of the
Issuer’s Common Stock for each Series E preferred share.
On September 11, 2014, the Registration Statement on Form F-1 filed with the Securities and Exchange Commission (the “SEC”) by the Issuer (SEC File No. 333-197097) in connection with its initial public offering of 8,000,000 shares was declared effective.
The closing of the offering took place on September 17, 2014, and at such closing Advisors and GP III, pursuant to their authority under the limited partnership agreement of OPI III, as more particularly referred to in Item 6 below, caused OPI III to purchase 933,973 Shares at the initial public offering price of $7.00 per share, and Advisors, pursuant to its authority under the limited partnership agreement of Associates III, as more particularly referred to in Item 6 below, caused Associates III to purchase 8,895 Shares at the initial public offering price of $7.00 per share.
The source of funds for such purchases was the working capital of OPI III and Associates III, as applicable, and capital contributions made to OPI III and Associates III.
As a result of the transactions described in this Item 3, (i) GP III, as the general partner of OPI III, may be deemed to be the beneficial owner of approximately 24.02% of the Issuer’s Shares, (ii) Advisors, as the managing member of GP III and the general partner of Associates III, may be deemed to be the beneficial owner of approximately 24.24% of the Issuer’s Shares, and (iii) Isaly, as the owner of a controlling interest in Advisors, may be deemed to be the beneficial owner of approximately 24.24% of the Issuer’s Shares. None of the Reporting Persons have acquired or disposed of any additional Shares of the Issuer since September 17, 2014.
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Item 4.
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Purpose of Transaction
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The Shares initially had been acquired (and those that continue to be held are held) by the Reporting Persons for the purpose of making an investment in the Issuer and not with the intention of acquiring control of the Issuer’s business on behalf of OPI III or Associates III.
The Reporting Persons from time to time intend to review their investment in the Issuer on the basis of various factors, including the Issuer’s business, financial condition, results of operations and prospects, general economic and industry conditions, the securities markets in general and those for the Issuer’s Common Stock in particular, as well as other developments and other investment opportunities. Based upon such review, the Reporting Persons will take such actions in the future as the Reporting Persons may deem appropriate in light of the circumstances existing from time to time. If the Reporting Persons believe that further investment in the Issuer is attractive, whether because of the market price of the Common Stock or otherwise, they may acquire shares or other securities of the Issuer either in the open market or in privately negotiated transactions. Similarly, depending on market and other factors, the Reporting
Persons may determine to dispose of some or all of the Shares currently owned by the Reporting Persons or otherwise acquired by the Reporting Persons either in the open market or in privately negotiated transactions.
Except as set forth in this Statement, the Reporting Persons have not formulated any plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Issuer or the disposition of securities of the Issuer, (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries, (c) a sale or transfer of a material amount of the assets of the Issuer or any of its subsidiaries, (d) any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board, (e) any material change in the Issuer’s capitalization or dividend policy of the Issuer, (f) any other material change in the Issuer’s business or corporate structure, (g) any change in the Issuer’s charter or bylaws or other instrument
corresponding thereto or other action which may impede the acquisition of control of the Issuer by any person, (h) causing a class of the Issuer’s securities to be deregistered or delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association, (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act or (j) any action similar to any of those enumerated above.
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Item 5.
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Interest in Securities of the Issuer
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(a)-(b) As of the date of this filing, Advisors, GP III and Isaly may be deemed, for purposes of Rule 13d-3 of the Act, directly or indirectly, including by reason of their mutual affiliation, to be the beneficial owners of the Common Stock described in Item 6 below. Based upon information contained in the most recent available filing by the Issuer with the SEC, such Common Stock deemed to be indirectly beneficially owned by GP III constitutes approximately 24.02% of the issued and outstanding Common Stock, and such Common Stock deemed to be indirectly beneficially owned by Advisors and Isaly constitutes approximately 24.24% of the issued and outstanding Common Stock. Advisors, pursuant to its authority as the sole managing member of GP III, which is the sole general partner of OPI III, and as the sole general partner of Associates III, may be deemed to indirectly beneficially own the Common Stock held by
OPI III and Associates IIII. GP III, pursuant to its authority as the general partner of OPI III, may be deemed to indirectly beneficially own the Common Stock held by OPI III. Isaly, pursuant to his authority as the managing member of Advisors and owner of a controlling interest in Advisors, pursuant to its limited liability company agreement, may be deemed to also indirectly beneficially own the Common Stock attributable to Advisors. As a result, Isaly, Advisors and GP III share the power to direct the vote and the disposition of the Shares held by OPI III described in Item 6 below, and Isaly and Advisors share the power to direct the vote and the disposition of the Shares held by Associates III described in Item 6 below.
In addition, Advisors and GP III, pursuant to their authority under the limited partnership agreements of OPI III and/or Associates III, as more particularly referred to in Item 6 below, prior to the date of this filing, caused OPI III and Associates III, as applicable, together with Prof. Dr. Melvyn Little, Deutsches Krebsforschungszentrum, AGUTH Holding GmbH, KfW, tbg Technologie-Beteiligungs-Gesellschaft mbH, SGR Sagittarius Holding AG, BioMed Invest I Ltd., Novo Nordisk A/S and LSP III Omni Investment Coöperatief U.A. (collectively, the “Selling Shareholders”) to enter into agreements substantially in the form attached hereto as Exhibit 4 (the “Carve-Out Agreements”) with the Issuer’s managing directors and certain of the Issuer’s supervisory directors and consultants (the “Beneficiaries”), as described in Item 6 below.
(c) Except as disclosed in Item 3, the Reporting Persons have not effected any transactions in the Shares during the past sixty (60) days.
(d) Not applicable.
(e) Not applicable.
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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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In addition to the relationships between the Reporting Persons described in Items 2, 3 and 5 above, GP III is the sole general partner of OPI III, pursuant to the terms of the limited partnership agreement of OPI III. Advisors is the sole managing member of GP III, pursuant to the terms of the limited liability company agreement of GP III, and the sole general partner of Associates III, pursuant to the terms of the limited partnership agreement of Associates III. Pursuant to these agreements and relationships, Advisors and GP III have discretionary investment management authority with respect to the assets of OPI III, and Advisors has discretionary investment management authority with respect to the assets of Associates III. Such authority includes the power of GP III and Advisors to vote and otherwise dispose of securities purchased by OPI III, and the power of Advisors to vote and otherwise dispose of securities purchased
by Associates III. The number of outstanding Shares held of record by OPI III is 5,760,587, and the number of outstanding Shares held of record by Associates III is 54,043. Advisors may be considered to hold indirectly 5,814,630 Shares, and GP III may be considered to hold indirectly 5,760,587 Shares.
Michael B. Sheffery, a Partner Emeritus of Advisors, has been a member of the supervisory board of the Issuer or its predecessors since July 2007. Because of his relationship with Advisors, the Reporting Persons may be considered to have the ability to affect and influence control of the Issuer.
Registration Rights Agreement
The Issuer is party to a registration rights agreement among OPI III, Associates III, SGR Sagittarius Holding AG, BioMed Invest I Ltd., LSP III Omni Investment Coöperatief U.A. and Novo Nordisk A/S dated September 17, 2014 (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement and subject to the terms and conditions therein, the parties agreed that:
Demand Registration Rights
After the expiration of the 180-day period following the completion of the Issuer’s initial public offering, the shareholders party to the Registration Rights Agreement will be entitled to certain demand registration rights. Beginning 180 days following the effectiveness of the Issuer’s registration statement, the holders of at least 40% of the shares held by such parties can, no more often than once within any six-month period, and on not more than four occasions, request that the Issuer register all or a portion of their shares. Such request for registration must cover a number of shares with an anticipated aggregate offering price of at least $20 million. Additionally, the Issuer will not be required to effect a demand registration during the 180 days following the effectiveness of a company-initiated registration statement relating to an initial public offering of its securities, provided that the Issuer has complied
with certain notice requirements to the holders of these shares.
Piggyback Registration Rights
Based on the number of shares outstanding as of September 17, 2014 after the consummation of the Issuer’s initial public offering, in the event that the Issuer determines to register any of its securities under the Securities Act of 1933, as amended (the “Securities Act”) (subject to certain exceptions), either for its own account or for the account of other security holders, the shareholders party to the Registration Rights Agreement, including the Reporting Persons, will be entitled to certain “piggyback” registration rights allowing the holders to include their shares in such registration, subject to certain marketing and other limitations. As a result, whenever the Issuer proposes to file a registration statement under the Securities Act, other than with respect to a registration related to employee benefit plans, the offer and sale of debt
securities, or corporate reorganizations or certain other transactions, the holders of these shares are entitled to notice of the registration and have the right, subject to limitations that the underwriters may impose on the number of shares included in the registration, to include their shares in the registration, subject to certain limitations.
Form S-3 Registration Rights
After the first anniversary following the completion of the Issuer’s initial public offering, the shareholders party to the Registration Rights Agreement, including the Reporting Persons, will be entitled to certain Form S-3 registration rights. As a result, holders of these shares can make a written request that the Issuer register their shares on Form S-3 if the Issuer is eligible to file a registration statement on Form S-3. These stockholders may make an unlimited number of requests for registration on Form S-3, subject to specified exceptions.
Expenses of Registration
The Issuer will pay the registration expenses of the holders of the shares registered pursuant to the demand, piggyback and Form S-3 registration rights described above.
Lock-Up Agreement
In connection with the Reporting Persons’ receipt of Shares of the Issuer in exchange for Series D and Series E preferred shares of Affimed Therapeutics AG, the Reporting Persons entered into a lock-up letter agreement (the “Lock-Up Agreement”). The Lock-Up Agreement provides that, subject to limited exceptions, without the prior written consent of each of Jeffries LLC and Leerink Partners LLC, the Reporting Persons will not for a period of 180 days from the date of the Issuer’s prospectus relating to its initial public offering (the “Lock-Up Period”) (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares beneficially owned (as such term is used in Rule 13d-3 of the Act) by the Reporting
Persons or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
After the Lock-Up Period expires, the Reporting Persons’ Shares will be eligible for sale in the public market, subject to any applicable limitations under Rule 144 under the Securities Act and other applicable U.S. securities laws.
The foregoing description of the Lock-Up Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Lock-Up Agreement, a copy of which is filed as Exhibit 3 and incorporated herein by reference.
Carve-Out Agreements
The Carve-Out Agreements grant each Beneficiary the right to receive a payment equal to a certain percentage of the fair value of the Issuer contingent upon the occurrence of a defined event, including an initial public offering. Following the expiration of applicable lock-up agreements, it is expected that (i) the Carve-Out Agreements will be satisfied through a transfer to the Beneficiaries of an amount of shares of Common Stock in the aggregate amount of 1,243,568 shares, equal to 7.78% of the Common Stock owned by the Selling Shareholders subsequent to the consummation of the Issuer’s corporate reorganization and immediately prior to the consummation of the Issuer’s initial public offering, and that (ii) a portion of these shares will be sold pursuant to Rule 144 to satisfy withholding taxes triggered by the transfer and delivered to the Beneficiaries with the net amount of shares to which each Beneficiary is entitled
to receive pursuant to his or her individual Carve-Out Agreement.
The foregoing description of the Carve-Out Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Carve-Out Agreement, a copy of which is filed as Exhibit 4 and incorporated herein by reference. Other than as described in this Schedule 13D, to the best of the Reporting Persons’ knowledge, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any 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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3.
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4.
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Form of Carve-Out Agreement
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