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Joint Venture Agreement

Joint Venture JV Agreement

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Technologie Beteiligungsfonds Bayern GmbH Co

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Title: Joint Venture Agreement
Date: 3/16/2007

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1291

Exhibit 4.13

Joint Venture Agreement

Agreement on the Formation of a Silent Partnership

by and between

Technologie Beteiligungsfonds Bayern GmbH & Co. KG,

Königinstraße 17, 80539 Munich

- hereinafter: "Technofonds Bayern" -

as represented by the sole authorized representative General Partner,

Technologie Beteiligungsfonds Bayern Verwaltungs GmbH,

Königinstraße 17, 80539 Munich,

which, pursuant to its articles of incorporation, is in turn represented by its Management Board

on the one side,

and

Micromet Gesellschaft für biomedizinische Forschung mbH

Am Klopferspitz 19, 82152 Martinsried,

as represented by its Management Board pursuant to its articles of incorporation

- hereinafter: "Investee" –

on the other side.

Micromet GmbH / TFB-BIO Joint Venture Agreement

Page 1

 

 

1291

§1

Basic Terms and Conditions of the Technofonds Bayern Investment

(1)

 

The Bayerische Landesanstalt für Aufbaufinanzierung ("LfA"), Technologie-Beteiligungs-Gesellschaft mbH of the Deutsche Ausgleichsbank ("tbg"), Bayern Kapital Risikokapitalbeteiligungs GmbH ("Bayern Kapital") and Technologie Beteiligungsfonds Bayern Verwaltungs GmbH have founded Technofonds Bayern for the purpose of improving the equity capital position of emerging, growth-oriented business enterprises. It expands the investment portfolio of Bayern Kapital, and places priority on making risk capital available to emerging Bavarian business enterprises for the financing of innovations. As part of its investment policy, it regularly undertakes silent investments for the joint financing of investments and working capital for innovation-related projects at small and medium-sized Bavarian companies in trade and industry that meet the following criteria:

 

a)

 

Preparation/conceptualization and design of a research and development plan, through to undertaking of R&D activities ("Design Phase")

 

     

 

b)

 

Development of a new product/process (including technical services) through to production and testing of prototypes ("R&D Phase")

 

     

 

c)

 

Applied development and preparation for production, including market introduction of technologically new products/processes or technical services ("Development Phase").

(2)

 

The Investee must meet the prerequisites for small and medium-sized enterprises (SMEs) as the European Union defines them in the relevant general regulations. In this respect, it may:

 

-

 

not employ more than 250 employees, and

 

     

 

-

 

either attain an annual sales volume of not more than EUR 40 million, or achieve a balance sheet total of not more than EUR 27 million;

 

     

 

-

 

and at most 25% be in possession of one or more business enterprises that do not conform to this definition. Excepted from the latter criterion are, at most, public joint venture companies, venture capital partnerships and—provided no control is exercised—institutional investors.

 

 

A business is only then construed as a small/medium-sized enterprise if all three aforementioned prerequisites have been met simultaneously.

(3)

 

Technofonds Bayern’s assumption of an investment in the legal form of a silent partnership occurs in cooperation with another investor, which shall co-administer the Technofonds Bayern investment on the basis of a cooperation agreement (hereinafter Lead Investor). In the present case, the Lead Investor function shall be assumed by 3i Group plc, London, on the basis of the Cooperation Agreement dated January 17, 2000 .

 

   

 

 

Also functioning as further cooperating investors for the innovation-related project are: Atlas Venture Germany B.V., Naarden, Netherlands; IDI Venture Ltd., St. Helier, Jersey; Schröder Venture Group [Schröder Ventures International Life Sciences Fund LP 1, Hamilton HM FX Bermuda; Schröder Ventures International Life Sciences Fund Trust, Hamilton HM FX, Bermuda; SUK VK IV Nominees Limited, Gurnsey GY1 3 Qz, Channel Islands] (hereinafter collectively "Coinvestors") on the one hand, and tbg on the other hand.

Micromet GmbH / TFB-BIO Joint Venture Agreement

Page 2

 

 

1291

§2

Legal Relationships of the Investee and Its Partners

(1)

 

Pursuant to the certified Register excerpt from the Commercial Register of the District Court (Amtsgericht) of Munich, under Record No. Commercial Register Part B 105424, the registered Investee operates a commercial enterprise with the following purpose, in accordance with its Partnership Agreement:

 

   

 

 

Administration of biomedical contract research as part of the development of products for the diagnosis and treatment of human illnesses, specifically for the diagnosis and treatment of cancer-related diseases and other diseases whose diagnosis or treatment occurs by using immunology-based methods.

 

   

(2)

 

Within the scope of the business purpose of this partnership, the Investee is engaged in the research project "Molecular genetic identification of target molecules on micro-metastatic carcinoma cells for the development of diagnostic and therapeutic measures for the prevention of metastasization," and in the further development of products ("Clinical Phase") for the treatment of minimally residual carcinoma diseases, as well as the development of a product to treat cancer of the lymphatic system (Non-Hodgkin’s lymphoma).

 

   

 

 

As of the date of the closing of this Agreement, these innovation-related projects are in the R&D Phase.

 

   

(3)

 

The Investee’s nominal capital is currently allocated among the Investee’s partners (hereinafter collectively "Investee Partners") as follows:

 

 

 

 

 

 

 

 

 

 

 

Original Capital

 

 

 

 

Contribution

 

 

Investee Partner

 

(Value in DM):

 

In %

 

Prof. Dr. Gerhard Riethmüller

 

 

23,100

 

 

 

21.21

 

Dr. Erich Felber

 

 

12,300

 

 

 

11.29

 

Prof. Dr. Günther Schlimok

 

 

6,500

 

 

 

5.97

 

Dr. Klaus Pantel

 

 

3,800

 

 

 

3.49

 

Dr. Bäuerle

 

 

4,300

 

 

 

3.95

 

Micromet Beteiligungs GbR

 

 

4,800

 

 

 

4.41

 

Lead Investor:

 

 

 

 

 

 

 

 

3i Group plc, London

 

 

16,800

 

 

 

15.43

 

Coinvestors:

 

 

 

 

 

 

 

 

Atlas Venture Germany B.V., Naarden, Netherlands

 

 

26,400

 

 

 

24.25

 

IDI Venture Ltd., St. Helier, Jersey

 

 

5,100

 

 

 

5.07

 

SChroder Venture Group

 

 

5,800

 

 

 

5.33

 

 

 

 

 

 

 

 

 

 

 

Total Nominal Capital:

 

 

108,900

 

 

 

100

%

 

Micromet GmbH / TFB-BIO Joint Venture Agreement

Page 3

 

 

1291

     The following premiums were paid by the Investee Partners for each partnership share:

 

 

 

 

 

 

 

 

 

 

 

 

Current Premium

 

 

Investee Partner

 

(value in DM):

 

in %

 

Atlas Venture Germany B.V., Naarden, Netherlands

 

 

2,887,224

 

 

 

31.72

 

IDI Venture Ltd., St. Helier, Jersey

 

 

341,131

 

 

 

3.75

 

3i Group plc, London

 

 

4,365,809

 

 

 

47.97

 

Schroder Ventures Group

 

 

1,507,193

 

 

 

16.56

 

 

Total Premium:

 

 

9,101,357

 

 

 

100.00

 

 



 

 

In accordance with the notarized record dated October 15, 1998, if a Development Agreement is concluded with Centocor Inc., 200 Great Valley Parkway, Malvern, PA 19355, USA, the Investee Partners have further committed to provide this company with an investment of up to DM 3,000 in the nominal capital of the Investee, upon payment of a premium equal to at least DM 782,600, and with the exclusion of the purchase option rights of the Investee Partners.

 

   

(4)

 

According to the balance sheet dated December 31, 1998, the Investee possesses capital and reserves subject to company law of DM 3,309,165.50. The Management Board of the Investee warrants that, in the balance sheet dated December 31, 1998, all assets and liabilities to be reflected in the balance sheet are contained therein, that the stated amounts in the balance sheet conform with the generally accepted practices and principles of prudent bookkeeping and balance sheet accounting, and where applicable, are in observance of the more stringent tax provisions, and that specifically any possible reallocation of values between the Investee and the Investee Partners are shown. Moreover, it confirms that it is authorized to enter into this Agreement on behalf of the partners.

 

   

(5)

 

The Investee warrants that, with the exception of the following cases expressly enumerated, no silent partnerships, no participating loans, and no other obligations exist that involve an interest in the earnings performance of the Investee:

 

-

 

Joint Venture Agreement dated October 25, 1996, between Investee and tgb, in the amount of DM 1,746,700.00;

 

     

 

-

 

Joint Venture Agreement dated July 1, 1997, between Investee and Bayern Kapital Risikokapitalbeteiligungs GmbH in the amount of DM 1,746,700.

 

 

Such profit sharing may also be permitted in the future, however only with the consent of Technofonds Bayern . § 5, par. 3 shall apply mutatis mutandis.

 

   

(6)

 

Any substantially ongoing warranties or guarantees by the Investee to the Lead Investor and/or the other cooperating investors (§ 1, para. 3) shall also be considered to have been extended to Technofonds Bayern .

 

   

(7)

 

If false or misleading information has been given in connection with this Agreement, or in the event of nonperformance on guarantees from this Agreement, the Investee is obligated to compensate Technofonds Bayern to the full extent of damages, without prejudice to potential further claims.

Micromet GmbH / TFB-BIO Joint Venture Agreement

Page 4

 

 

1291

§3

Contribution, Application and Drawing of Funds

(1)

 

Technofonds Bayern is securing a holding in the Investee as a silent partner, for the exclusive purpose of joint financing the innovation-related project described in paragraph 2, and on the basis of statements made by the Investee in the Investment Solicitation dated February 18, 1999, together with exhibits (including the documentation submitted by March 18, 1999); Technofonds Bayern shall issue its contribution in the total amount of

DM 3,250,000.00

(in words: three million two hundred fifty-thousand Deutschmarks),           <

 

 

provided the following agreements (which have meanwhile become legally enforceable) exist and, to the extent possible, have been substantiated by Investee:

 

-

 

Joint Venture Agreement dated October 15, 1998 (Record No.: 3152/1998), in the amount of DM 9,101,355.70, between the Investee and the Investee Partners, whereupon the Lead Investor and Coinvestors commit 1) to acquire partnership shares in the Investee totaling DM 54,100, by notary-certified declarations, and 2) in addition to the nominal value of the new partnership shares, commit to pay a premium in the total amount of DM 9,101,355.70.

 

     

 

-

 

Cooperation Agreement between Technofonds Bayern on one side, and the Lead Investor with the Coinvestors on the other side.

 

     

 

-

 

Joint Venture Agreements dated March 2, 1999 in the amount of DM 1,486,726, DM 321,643, DM 931,657 and DM 513,274 between the Investee and tbg.

 

 

and provided that all other payment conditions have been met.

 

   

(2)

 

For the innovation-related project described in item 4 of the Investment Solicitation dated February 18, 1999, and in the supplemental exhibits, the Investee has a capital requirement totaling DM 21,541,490 for the period from September 1, 1998 until December 31, 2000, and will use the investment funds made available to it pursuant to Exhibit 1 to this Agreement ("Project-Related Budget").

 

   

 

 

The Investee shall provide an accounting on the use of the funds in accordance with the terms of this Agreement, furnished with a corresponding confirmation from the Lead Investor, to the Lead Investor at any time, however unsolicited at least once by year end, as well as to Technofonds Bayern upon request, however no later than after conclusion of the project.

 

   

(3)

 

If the costs of the project decline in comparison to current indications and/or if further public funds subsequently become additionally available as part of this project, then the Investee is obliged to provide information immediately thereof, and Technofonds Bayern is entitled to cut back its contribution. This cutback shall occur in accordance with the modification that results as a consequence of consideration given to the aforementioned factors when covering the total financing amount.

 

   

(4)

 

The investment enrollment of the Technofonds Bayern shall occur within the framework of a cash deposit that the Investee may request, after compliance with all payment preconditions, in two tranches, whereby the first tranche of DM 1,000,000 shall be payable immediately, and the second tranche of DM 2,250,000 shall be payable no earlier than April 1, 2000. In any case, Technofonds Bayern is not subject to any further obligation to issue additional capital contributions. The Investee may draw on the contribution in the scheduled partial amounts after the commencement of the partnership, via wire transfer to an as yet undesignated special account, provided that 1) immediate use of funds in accordance with the terms of this Agreement is guaranteed, as well as 2) proportionate utilization of funds with the other financing resources as intended per Exhibit 1, and 3) the total financing of the innovation-related project per Exhibit 1. A draw may occur only if the Lead Investor has verified that all draw conditions have been met and that the feasibility of the innovation-related project continues to exist, and such confirmation is attached to the draw. Upon the first partial draw, Technofonds Bayern, for its surrender of capital, is entitled to withhold a one-time investment fee equal to 1% of the total contribution stipulated in this Agreement, however no more than DM 20,000, whichever of both amounts is lower (Initial Fee). The draw on further tranches of the contribution to be rendered by

Micromet GmbH / TFB-BIO Joint Venture Agreement

Page 5

 

 

1291

 

 

Technofonds Bayern requires that the Investee has fully complied with the reporting, information, and documentation obligations toward Technofonds Bayern required to that point.

 

   

(5)

 

Technofonds Bayern’s duty to issue payment shall not apply if the first tranche of DM 1,000,000 fails to be fully drawn by no later than September 30, 1999 and the second tranche of DM 2,250,000 fails to be fully drawn by no later than June 30, 2000, in accordance with the Agreement, or if grounds for termination of the silent partnership by Technofonds Bayern are present. If, despite expectations, the funds are unable to be used in full as intended, they must be repaid immediately to Technofonds Bayern , whether in whole or in part. The funds may only be drawn again if the preconditions for their use are present within 14 days from the draw request.

 

   

(6)

 

The Technofonds Bayern contribution must be held by Investee in a separate Deposit Account, and must be shown separately as a silent deposit.

§ 4

Commencement and Duration of the Partnership

(1)

 

The Silent Partnership shall commence as soon as this Agreement has been executed by all contract partners.

 

   

(2)

 

The Silent Partnership is set to terminate on December 31, 2008.

 

   

(3)

 

Upon termination of the Partnership Relationship, the Technofonds Bayern contribution shall be immediately due and payable to Technofonds Bayern , together with its investment fees not yet paid by that point, specifically profit shares and other receivables to Technofonds Bayern .

 

   

(4)

 

If the investments agreed by Investee with the Lead Investor and Coinvestors (cf. § 1, par. 3; §2, par. 3) have not been collected or end before December 31, 2008, or if the contributionss or other financing resources made available to Investee by the aforementioned i


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