0001193125-11-321235.txt : 20111123 0001193125-11-321235.hdr.sgml : 20111123 20111123163355 ACCESSION NUMBER: 0001193125-11-321235 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20111123 DATE AS OF CHANGE: 20111123 GROUP MEMBERS: ORBIMED ADVISORS LLC GROUP MEMBERS: ORBIMED ADVISORS LTD GROUP MEMBERS: ORBIMED ASIA GP, L.P. GROUP MEMBERS: ORBIMED CAPITAL GP III LLC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ISALY SAMUEL D CENTRAL INDEX KEY: 0001055949 FILING VALUES: FORM TYPE: SC 13D/A SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RESPONSE BIOMEDICAL CORP CENTRAL INDEX KEY: 0000806888 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-TESTING LABORATORIES [8734] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81850 FILM NUMBER: 111225648 BUSINESS ADDRESS: STREET 1: 1781 - 75TH AVENUE W. CITY: VANCOUVER STATE: A1 ZIP: V6P6P2 BUSINESS PHONE: 604-456-6010 MAIL ADDRESS: STREET 1: 1781 - 75TH AVENUE W. CITY: VANCOUVER STATE: A1 ZIP: V6P6P2 SC 13D/A 1 d259513dsc13da.htm SCHEDULE 13D AMENDMENT NO. 4 Schedule 13D Amendment No. 4

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 4)*

 

 

 

Response Biomedical Corp.

(Name of Issuer)

 

 

 

Common Shares, without par value

(Title of Class of Securities)

 

76123L204

(CUSIP Number)

 

OrbiMed Advisors LLC

OrbiMed Advisors Limited

OrbiMed Asia GP, L.P.

OrbiMed Capital GP III LLC

Samuel D. Isaly

767 Third Avenue, 30th Floor

New York, NY 10017

Telephone: (212) 739-6400

Attn: Alexander M. Cooper

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

November 14, 2011

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7(b) for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a Reporting Person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 76123L204  

 

  1.   

Names of Reporting Persons.

 

OrbiMed Advisors LLC

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions).

(a)  ¨        (b)  ¨

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF (See Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  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

 

9,172,500 (See Items 3, 4 and 5)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

9,172,500 (See Items 3, 4 and 5)

11.

 

Aggregate Amount Beneficially Owned by Each Reporting Person

 

9,172,500 (See Items 3, 4 and 5)

12.

 

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ¨

 

13.

 

Percent of Class Represented by Amount in Row (11)

 

23.5% (See Item 5)

14.

 

Type of Reporting Person (See Instructions)

 

IA

 

-2-


CUSIP No. 76123L204  

 

  1.   

Names of Reporting Persons.

 

OrbiMed Advisors Limited

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions).

(a)  ¨        (b)  ¨

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF (See item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,389,000 (See Items 3, 4 and 5)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,389,000 (See Items 3, 4 and 5)

11.

 

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,389,000 (See Items 3, 4 and 5)

12.

 

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ¨

 

13.

 

Percent of Class Represented by Amount in Row (11)

 

13.8% (See Item 5)

14.

 

Type of Reporting Person (See Instructions)

 

OO

 

-3-


CUSIP No. 76123L204  

 

  1.   

Names of Reporting Persons.

 

OrbiMed Asia GP, L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions).

(a)  ¨        (b)  ¨

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF (See item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,389,000 (See Items 3, 4 and 5)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,389,000 (See Items 3, 4 and 5)

11.

 

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,389,000 (See Items 3, 4 and 5)

12.

 

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ¨

 

13.

 

Percent of Class Represented by Amount in Row (11)

 

13.8% (See Item 5)

14.

 

Type of Reporting Person (See Instructions)

 

OO

 

-4-


CUSIP No. 76123L204  

 

  1.   

Names of Reporting Persons.

 

OrbiMed Capital GP III LLC

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions).

(a)  ¨        (b)  ¨

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF (See item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  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

 

9,086,000 (See Items 3, 4 and 5)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

9,086,000 (See Items 3, 4 and 5)

11.

 

Aggregate Amount Beneficially Owned by Each Reporting Person

 

9,086,000 (See Items 3, 4 and 5)

12.

 

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ¨

 

13.

 

Percent of Class Represented by Amount in Row (11)

 

23.3% (See Item 5)

14.

 

Type of Reporting Person (See Instructions)

 

OO

 

-5-


CUSIP No. 76123L204  

 

  1.   

Names of Reporting Persons.

 

Samuel D. Isaly

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions).

(a)  ¨        (b)  ¨

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF (See item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6.  

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

 

9,172,500 (See Items 3, 4 and 5)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

9,172,500 (See Items 3, 4 and 5)

11.

 

Aggregate Amount Beneficially Owned by Each Reporting Person

 

9,172,500 (See Items 3, 4 and 5)

12.

 

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ¨

 

13.

 

Percent of Class Represented by Amount in Row (11)

 

23.5% (See Item 5)

14.

 

Type of Reporting Person (See Instructions)

 

IN

 

-6-


TABLE OF CONTENTS

 

          Page  

Item 1.

  

Security and Issuer

     8   

Item 3.

  

Source and Amount of Funds or Other Consideration

     8   

Item 4.

  

Purpose of Transaction

     8   

Item 5.

  

Interest in Securities of the Issuer

     8   

Item 6.

  

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

     9   

Item 7.

  

Material to Be Filed as Exhibits

     11   

Signature

     12   

EX-99.F

  

EX-99.G

  

 

-7-


Item 1. Security and Issuer

This Amendment No. 4 (the “Amendment No. 4”) to Schedule 13D supplements and amends the Statement on Schedule 13D of OrbiMed Advisors LLC, OrbiMed Advisors Limited, OrbiMed Asia GP, L.P., OrbiMed Capital GP III LLC and Samuel D. Isaly originally filed on August 9, 2010, as amended by Amendment No. 1 to Schedule 13D filed on October 4, 2010, Amendment No. 2 to Schedule 13D filed on October 22, 2010, and Amendment No. 3 to Schedule 13D filed on January 11, 2011 (as amended, the “Schedule 13D”), relating to the common shares, without par value (the “Shares”), of Response Biomedical Corp., a corporation continued under the laws of the Province of British Columbia (the “Issuer”), having its principal executive offices located at 1781 — 75th Avenue W., Vancouver, BC, V6P 6P2 Canada.

Each item below amends and supplements the information disclosed under the corresponding item of the Schedule 13D. Capitalized terms defined in the Schedule  13D are used herein with their defined meanings.

Item 3. Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby amended and supplemented by adding immediately after the last paragraph thereof the following:

Pursuant to its authority under the limited partnership agreement of OPI III, on January 14, 2011, OrbiMed Capital, as general partner of OPI III, caused OPI III to purchase an aggregate of 20,700 Shares using OPI III’s working capital in the aggregate amount of approximately Cdn.$8,280.

Pursuant to its authority under the limited partnership agreement of OAP, on January 14, 2011, OrbiMed Asia caused OAP to purchase an aggregate of 12,700 Shares using OAP’s working capital in the aggregate amount of approximately Cdn.$5,080. Such authority is exercised through OrbiMed Limited as the sole general partner of OrbiMed Asia, which is the sole general partner of OAP.

Pursuant to its authority under the limited partnership agreement of OrbiMed Associates on January 14, 2011, OrbiMed Advisors, as general partner of OrbiMed Associates, caused OrbiMed Associates to purchase an aggregate of 600 Shares using OrbiMed Associates’ working capital in the aggregate amount of approximately Cdn.$240.

Item 4. Purpose of Transaction

Item 4 of the Schedule 13D is hereby amended and supplemented as set forth in Item 6 below.

Item 5. Interest in Securities of the Issuer

Item 5(a) and 5(b) of the Schedule 13D is hereby amended and restated in its entirety by the following:

(a) — (b) The following disclosure assumes that there are 38,950,262 Shares outstanding, which number is based upon information contained in the most recent available filing by the Issuer with the SEC (a Form 6-K filed on August 10, 2011).

The 5,389,000 Shares held by OAP constitute approximately 13.8% of the issued and outstanding Shares. OrbiMed Asia is the sole general partner of OAP pursuant to the terms of the limited partnership agreement of OAP and OrbiMed Limited is the sole general partner of OrbiMed Asia pursuant to the terms of the limited partnership agreement of OrbiMed Asia. As a result, OrbiMed Asia has the power to direct the vote and to direct the disposition of the Shares held by OAP described in Item 3 and such power is exercised through OrbiMed Limited. OrbiMed Limited exercises this investment power through an investment committee (the “Committee”) comprised of Isaly, Carl L. Gordon, Nancy T. Chang and Sunny Sharma, each of whom disclaims beneficial ownership of the Shares held by OAP, except to the extent of their pecuniary interest therein, if any. As a result,

 

-8-


OrbiMed Asia and OrbiMed Limited may be deemed directly or indirectly, including by reason of their mutual affiliation, to be the beneficial owners of the Shares held by OAP and to share power to direct the vote and the disposition of the Shares held by OAP.

As of the date of this filing, OrbiMed Capital, OrbiMed Advisors and Isaly may be deemed directly or indirectly, including by reason of their mutual affiliation, to be the beneficial owners of the Shares held by OPI III described in Item 3. The 9,086,000 Shares held by OPI III constitute approximately 23.3% of the issued and outstanding Shares. Isaly owns a controlling interest in OrbiMed Advisors pursuant to the terms of its limited liability company agreement. OrbiMed Advisors is the sole managing member of OrbiMed Capital and OrbiMed Capital is the sole general partner of OPI III. As a result, Isaly, OrbiMed Advisors and OrbiMed Capital share power to direct the vote and to direct the disposition of the Shares held by OPI III described in Item 3.

As of the date of this filing, OrbiMed Advisors and Isaly may be deemed directly or indirectly, including by reason of their mutual affiliation, to be the beneficial owners of the Shares held by OrbiMed Associates described in Item 3. The 86,500 Shares held by OrbiMed Associates constitute approximately 0.2% of the issued and outstanding Shares. Isaly owns a controlling interest in OrbiMed Advisors pursuant to the terms of its limited liability company agreement. As a result, Isaly and OrbiMed Advisors share power to direct the vote and to direct the disposition of the Shares held by OrbiMed Associates described in Item 3.

Item 5(c) of the Schedule 13D is hereby amended and supplemented by adding immediately at the end of such section the following:

The following table sets forth all transactions with respect to the Shares effected by the Reporting Persons since January 11, 2011 (the date Amendment No. 3 to Schedule 13D was originally filed). All of the following transactions were effected in the open market.

 

Date of Transaction

   Purchasing Entity    Number of
Shares
Acquired
     Price per
Share(1)

January 14, 2011

   OPI III      20,700       Cdn.$0.40

January 14, 2011

   OAP      12,700       Cdn.$0.40

January 14, 2011

   OrbiMed Associates      600       Cdn.$0.40

 

(1) Represents weighted average price per share paid on such date. The Reporting Persons undertake to provide upon request of the staff of the SEC full information regarding the number of Shares purchased at each separate price used to calculate the average price.

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Items 6 of the Schedule 13D is hereby amended and supplemented as follows:

David Wang, M.D. has replaced Jonathan J. Wang, as one of individuals designated by OPI III to sit on the Issuer’s Board.

Rights Offering

OrbiMed Advisors LLC and the Issuer have entered into a term sheet (the “Term Sheet”) setting forth non-binding terms on which certain affiliates of OrbiMed Advisors LLC (the “OrbiMed Purchasers”) expect to participate in a proposed rights offering (the “Rights Offering”) by the Issuer. In the proposed Rights Offering, the Issuer would distribute, for no consideration, transferable subscription rights to its shareholders of record as of the date that is the eighth day after the final prospectus in respect of the Rights Offering has been cleared by the Toronto Stock Exchange and all other requisite approvals have been obtained (the “Record Date”). Such subscription rights would entitle holders thereof to purchase units (“Units”) each consisting of one common share and a warrant to purchase one common share of the Issuer. The number of Units proposed to be sold would be

 

-9-


equal to (i) Cdn.$8,000,000 divided by (ii) the product of (A) the Subscription Price (defined below) and (B) the number of common shares of the Issuer issued and outstanding as of the Record Date. Each shareholder to whom subscription rights are issued (or person to whom subscription rights are transferred in accordance with applicable securities laws) would have the right to purchase their respective pro rata number of such Units. To the extent that holders of subscription rights fail to take up and exercise their basic subscription privilege, those rights holders that exercise their basic subscription privilege in full would be able to subscribe for additional Units.

It is expected that the OrbiMed Purchasers would enter into a standby purchase agreement (the “Standby Purchase Agreement”) with the Issuer pursuant to which they would agree to exercise their respective basic subscription privileges in full and purchase additional Units (“Additional Units”) such that the aggregate gross proceeds from the sale of Units to the OrbiMed Purchasers would be $5.0 million. The number of Additional Units (and the aggregate gross proceeds of the Units sold to the OrbiMed Purchasers) might be cut back depending on the level of participation in the Rights Offering. In no event would the aggregate gross proceeds from the sale of Units in the Rights Offering and sale of Additional Units (if any) to all rights holders and the OrbiMed Purchasers exceed $8.0 million and $5.0 million, respectively.

The subscription price (the “Subscription Price”) for the Units would equal (50%) of the 10-day trailing volume-weighted average price ending and including (i) the date of the Term Sheet and (ii) the date of the final prospectus in respect of the Rights Offering, whichever is the least. The warrants that form a part of the Units would have an exercise price equal to the subscription price of the Units and be exercisable at any time and from time to time for five years following the issuance of the warrants, and the exercise price and number of underlying common shares would be subject to customary adjustments.

The Units would be offered (i) in Canada pursuant to a prospectus and in accordance with the rules and regulations of the Toronto Stock Exchange and provincial and Canadian federal securities law and in accordance with the exemption from the registration requirements of the U.S. Securities Act of 1933 (the “1933 Act”) afforded by Rule 903 of Regulation S thereunder and (ii) in the United States in accordance with the exemption from the registration requirements of the 1933 Act afforded by Rule 506 of Regulation D thereunder to persons that are shareholders of the Issuer on the Record Date and that certify to the Issuer’s satisfaction that they are “accredited investors” as defined under U.S. securities laws. The rights and obligations of the OrbiMed Purchasers would be subject to certain conditions, including, among other things, the requisite approval by securities regulators and compliance with applicable securities laws.

 

-10-


The number of common shares to be beneficially owned by the OrbiMed Purchasers, and the percentage of common shares represented by such number is dependent on future events, such as the calculation of the Subscription Price and number of Units to be sold and the level of participation by other shareholders in the Rights Offering; however, participation by the OrbiMed Purchasers in the Rights Offering and sales, if any, of Units to the OrbiMed Advisors pursuant to the terms of the Standby Purchase Agreement, could result in the reporting persons acquiring control of the Issuer.

Bridge Financing

In addition, the Issuer and the OrbiMed Purchasers have entered into an agreement (the “Note Purchase Agreement”) pursuant to which the OrbiMed Purchasers have agreed to loan up to Cdn.$2 million to the Issuer. Concurrently with the execution and delivery of the Note Purchase Agreement, the Issuer issued secured promissory notes to the OrbiMed Purchasers with an aggregate principal amount of Cdn.$275,000. Subject to the satisfaction of certain conditions, the Issuer may cause the OrbiMed Purchasers to purchase additional notes in up to three subsequent closings. The aggregate principal amount of notes issuable in each such subsequent closing would be Cdn.$575,000. The purchase price for the notes is equal to the face amount thereof.

All amounts owing under the Note Purchase Agreement are secured by a general charge over all of the Issuer’s assets. The notes accrue interest at the rate of 4.5% per annum and the Issuer is further obligated to pay a commitment fee to the OrbiMed Purchasers of Cdn.$80,000 at maturity of the notes.

All amounts owing pursuant to the notes will become due and payable on the earliest of: (i) March 31, 2012; (ii) the occurrence of an event of default followed by a declaration by the OrbiMed Purchasers that such amounts are due and payable (or such amounts become payable automatically under certain circumstances); and (iii) the completion date of the Rights Offering.

Pursuant to the terms of the Note Purchase Agreement, the OrbiMed Purchasers have the right to appoint an additional director to the Issuer board of directors (giving OrbiMed Advisors LLC and its affiliates the right to appoint a total of three members of the board).

In addition, the OrbiMed Purchasers have a right to participate in subsequent financings by the Issuer for a period of up to 24 months so as to maintain their relative ownership interest in the Issuer after completion of such financing.

Item 7.  Material to Be Filed as Exhibits

Item 7 of the Schedule 13D is hereby amended and supplemented by adding at the end thereto the following:

 

Exhibit

  

Title

F    Joint Filing Agreement, dated as of November 23, 2011, by and among OrbiMed Advisors LLC, OrbiMed Advisors Limited, OrbiMed Asia GP, L.P., OrbiMed Capital GP III LLC and Samuel D. Isaly.
G    Summary of Key Terms for Proposed Rights Offering of Securities of Response Biomedical Corp., dated as of November 14, 2011, by and among Response Biomedical Corp. and OrbiMed Advisors LLC.
H    Note Purchase Agreement, dated as of November 22, 2011 by and among Response Biomedical Corp. and the OrbiMed Purchasers (incorporated by reference to Exhibit 99.1 of the Issuer’s Form 6-K filed with the Securities and Exchange Commission on November 23, 2011).
I    Form of Secured Promissory Note of Response Biomedical Corp. (included as Exhibit A to the Note Purchase Agreement) (incorporated by reference to Exhibit 99.1 of the Issuer’s Form 6-K filed with the Securities and Exchange Commission on November 23, 2011).
J    Security Agreement, dated as of November 22, 2011 by and between Response Biomedical Corp. and OrbiMed Advisors LLC, as collateral agent (included as Exhibit B to the Note Purchase Agreement) (incorporated by reference to Exhibit 99.1 of the Issuer’s Form 6-K filed with the Securities and Exchange Commission on November 23, 2011).

 

-11-


Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: November 23, 2011

  ORBIMED ADVISORS LLC
  a Delaware limited liability company
  By:  

/s/ Samuel D. Isaly

    Samuel D. Isaly
    Managing Member
  ORBIMED ADVISORS LIMITED
  a Cayman Islands corporation
  By:  

/s/ Samuel D. Isaly

    Samuel D. Isaly
    Director
  ORBIMED ASIA GP, L.P.
  a Cayman Islands limited partnership
  By:  

ORBIMED ADVISORS LIMITED, its

general partner

  By:  

/s/ Samuel D. Isaly

    Samuel D. Isaly
    Director
  ORBIMED CAPITAL GP III LLC
  a Delaware limited liability company
  By:  

ORBIMED ADVISORS LLC, its managing

member

  By:  

/s/ Samuel D. Isaly

    Samuel D. Isaly
    Managing Member
  SAMUEL D. ISALY
  By:  

/s/ Samuel D. Isaly

    Samuel D. Isaly

 

-12-

EX-99.F 2 d259513dex99f.htm JOINT FILING AGREEMENT Joint Filing Agreement

Exhibit 99.F

Exhibit F

JOINT FILING AGREEMENT

The undersigned hereby agree that the Statement on Schedule 13D, dated August 9, 2010, as amended by Amendment No. 1 to Schedule 13D originally filed on October 4, 2010, Amendment No. 2 to Schedule 13D originally filed on October 22, 2010, Amendment No. 3 to Schedule 13D originally filed on January 13, 2011, (as amended, the “Schedule 13D”), and this Amendment No. 4 to Schedule 13D, dated November 23, 2011 (the “Amendment No. 4”) (including any subsequent amendments, restatements, supplements, and/or exhibits thereto) with respect to the common shares, without par value, of Response Biomedical Corp. was and is filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, and that this Agreement shall be included as an Exhibit to Amendment No. 4. Each of the undersigned agrees to be responsible for the timely filing of the Amendment No. 4, and for the completeness and accuracy of the information concerning itself contained therein. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 23rd day of November, 2011.

 

Dated: November 23, 2011       ORBIMED ADVISORS LLC
      a Delaware limited liability company
      By:  

/s/ Samuel D. Isaly

        Samuel D. Isaly
        Managing Member
      ORBIMED ADVISORS LIMITED
      a Cayman Islands corporation
      By:  

/s/ Samuel D. Isaly

        Samuel D. Isaly
        Director
      ORBIMED ASIA GP, L.P.
      a Cayman Islands limited partnership
      By:  

ORBIMED ADVISORS LIMITED, its

general partner

      By:  

/s/ Samuel D. Isaly

        Samuel D. Isaly
        Director
      ORBIMED CAPITAL GP III LLC
      a Delaware limited liability company
      By:  

ORBIMED ADVISORS LLC, its managing

member

      By:  

/s/ Samuel D. Isaly

        Samuel D. Isaly
        Managing Member
      SAMUEL D. ISALY
      By:  

/s/ Samuel D. Isaly

        Samuel D. Isaly
EX-99.G 3 d259513dex99g.htm SUMMARY OF KEY TERMS FOR PROPOSED RIGHTS Summary of Key Terms for Proposed Rights

Exhibit 99.G

Summary of Key Terms for Proposed Rights Offering of

Securities of Response Biomedical Corp.

Except with respect to the provisions entitled “Exclusivity” and “Governing Law”, which are intended to be, and are, legally binding agreements among the parties hereto, this Summary of Key Terms (this “Term Sheet”) represents only the current thinking of the parties with respect to certain of the major issues relating to a proposed rights offering of securities and does not constitute a legally binding agreement. This Term Sheet does not constitute an offer to sell or a solicitation of an offer to buy securities in any jurisdiction.

 

Issuer

Response Biomedical Corp., a British Columbia corporation (the “Issuer”).

 

Purchasers

The several holders of the Issuer’s common shares as of the Record Date (or such persons as may subsequently acquire the rights to be issued to such holders as contemplated hereby) that exercise the rights to be issued in connection with the rights offering contemplated hereby (each, a “Purchaser” and, collectively, the “Purchasers”).

 

Securities Offered

The Issuer will distribute for no consideration and on the basis of one right for each common share already held, transferable subscription rights to purchase common shares and warrants to purchase common shares (together the “Securities”) of the Issuer. Each right shall entitle each holder as of the Record Date to purchase a number of shares equal to (i) Cdn.$8,000,000 divided by (ii) the product of (A) the Purchase Price (defined below) and (B) the number of common shares of the Issuer issued and outstanding as of the Record Date; provided that in no event shall fractional shares be issued. For U.S. purposes, the rights will be transferable pursuant to Regulation S under the U.S. Securities Act of 1933, as amended (the “1933 Act”).

 

  The Securities will be offered in Canada pursuant to a prospectus and in accordance with the rules and regulations of the Toronto Stock Exchange and applicable securities laws and in the United States only pursuant to exemptions from registration under the 1933 Act and applicable state securities laws, to persons that are shareholders of the Issuer on the Record Date and that certify to the Issuer’s satisfaction that they are “accredited investors” as defined under U.S. securities laws.

 

Record Date

The rights shall be distributed to the holders of the Issuer’s issued and outstanding shares as of the date that is the 8th day after the final prospectus in respect of the rights offering has been cleared and all other requisite approvals for the rights offering have been obtained.


Expiry Date and Time

The rights shall expire at 5:00 p.m. (Eastern time) on the expiry date (at least 21 days after the Record Date). Rights not exercised by the Expiry Time will be void and have no value.

 

Purchase Price

Fifty percent (50%) of the 10-day trailing VWAP ending and including (i) the date of this Term Sheet, (ii) the date of the public announcement of the rights offering contemplated hereby, and (iii) the date of the final prospectus in respect of the rights offering (the “Trading Observation Periods”), whichever is the least; provided that it is acknowledged and agreed that at least 10 trading days will elapse between the public announcement of the rights offering and the date of the final prospectus. “VWAP” means the per share volume-weighted average price of the Issuer’s common shares, calculated by dividing the aggregate dollar amount of the trades of the shares on the Toronto Stock Exchange during a Trading Observation Period by the aggregate number of such shares traded during the Trading Observation Period, as reported by Bloomberg screen “RBC CN [Equity] VWAP” for the Trading Observation Period (or if such volume-weighted average price is unavailable, the market value of one Issuer common share on such trading day as determined using a volume-weighted average price method by Issuer’s board of directors (or a committee thereof), exercising reasonable discretion).

 

Additional Subscription Privilege

Each Purchaser who exercises all of the rights issued to such Purchaser will have the right to subscribe for additional Securities available as a result of rights that are not exercised. If enough Securities being offered in the rights offering are available after satisfying all exercises of the basic subscription privilege, the Issuer will satisfy all additional subscription requests. However, if additional subscription requests exceed the remaining number of Securities, the number of additional Securities to be sold to each Purchaser submitting an additional subscription request will be calculated as the lesser of (i) the number of additional Securities subscribed for by that Purchaser under the additional subscription request and (ii) a pro rata number of Securities calculated by multiplying the remaining number of Securities available through unexercised rights by a fraction, the numerator of which is equal to the number of rights previously exercised by such Purchaser and the denominator of which is the total number of rights previously exercised by all Purchasers making an additional subscription request.

 

Stand-by Commitment

Holders of Issuer common shares affiliated with OrbiMed Advisors LLC shall provide a stand-by commitment to purchase Securities (together with Securities purchased pursuant to such holders’ basic subscription privilege) that in the aggregate would generate at least $5.0 million in gross proceeds; provided that if the exercise of the basic and additional subscription privileges would otherwise cause

 

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the gross proceeds from the sale of Securities (when combined with the Securities sold pursuant to the standby commitment) to exceed $8.0 million, the standby commitment will be reduced on a proportionate basis.

 

Warrants

The Issuer will issue to each Purchaser a warrant to purchase a number of common shares equal to the aggregate number of common shares purchased by such Purchaser in the rights offering, rounded down to the nearest whole share. The per share exercise price shall equal the Purchase Price. Each warrant may be exercised only on a “net” (cashless exercise) basis. The warrants shall expire on the fifth anniversary of the original issuance thereof

 

  The sale and issuance of the common shares underlying the warrants will not be (i) registered under the 1933 Act, or (ii) similarly registered or qualified under the securities laws of any other jurisdiction and the shares underlying the warrants will therefore be subject to restrictions on transfer in accordance with applicable securities laws.

 

Anti-Dilution Adjustments

The exercise price of the warrants will be subject to appropriate adjustment in the event of stock splits or consolidations and certain dividends and distributions, reorganizations and similar events affecting the common shares.

 

  The exercise price per share will also be subject to adjustment for certain dilutive issuances of equity securities, other than excluded securities (i) on a full ratchet basis for two years after the date of original issuance of the securities, and (ii) on a volume-weighted basis thereafter.

 

  For this purpose, “excluded securities” means any of securities of Issuer issued or issuable: (i) in connection with any benefit plan approved by the Issuer’s board of directors; (ii) upon the exercise of the warrants; (iii) upon conversion of any options or securities convertible into or exercisable or exchangeable for shares of common shares which are outstanding on the day immediately preceding the date of original issuance of the warrants, provided that the terms of such options or securities are not amended, modified or changed on or after such date to increase the shares issuable thereunder or reduce the price per share payable thereunder; (iv) in connection with mergers, acquisitions, partnering transactions, strategic business partnerships or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length basis approved by the Issuer’s board of directors.

 

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Conditions

Completion of the sale and issuance of the rights and the Securities issuable upon exercise of the rights will be subject to a number of conditions, including:

 

  (a) the Issuer shall have obtained approval from the Toronto Stock Exchange and applicable Canadian securities regulators for the transactions contemplated hereby, including the issuance of a receipt for the final prospectus related to the issuance of the rights and the Securities issuable upon exercise of the rights;

 

  (b) the issuance of the Securities is exempt from registration under the 1933 Act and applicable state securities laws; and

 

  (c) the issuer shall have received approval for the listing of the rights and additional common shares issuable upon exercise of the rights and warrants on the Toronto Stock Exchange.

 

Listing

The rights and common shares issuable upon exercise of the rights and warrants will be listed on the Toronto Stock Exchange. The warrants issuable upon exercise of the rights will not be listed for trading.

 

Expenses

The definitive agreement relating to the stand-by commitment will include a provision that, as compensation for affiliates of OrbiMed Advisors LLC entering into the stand-by commitment, the Issuer will be responsible for the reasonable, out-of-pocket expenses (including legal fees and expenses but excluding brokerage and other similar fees) incurred by such affiliates in connection with the transactions contemplated hereby and by the definitive stand-by commitment agreement.

 

Closing

It is anticipated that the closing of the sale of the Securities will occur on or about December 21, 2011 (or as soon as possible after obtaining all required approvals and the expiration of any period that the rights offering is required to remain open) (the “Closing Date”).

 

Exclusivity

From the date of the execution of this Term Sheet until the earliest of (i) December 31, 2011, (ii) notice in writing of termination of negotiations by OrbiMed Advisors LLC in connection with this Term Sheet and (iii) the issuance of the rights pursuant to the rights offering contemplated hereby (such period referred to as the “Restricted Period”), neither the Issuer nor any of its directors, officers, employees or agents will solicit, or participate in negotiations or discussions with respect to any other investment or acquisition of equity securities of the Issuer, or securities convertible or exchangeable into, or exercisable for, common shares of the Issuer without the prior written consent of OrbiMed Advisors LLC. For greater certainty, such restrictions will not apply to any issuance of common shares pursuant to: (A) the grant or exercise of

 

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any options or other securities outstanding from time to time under the Issuer’s stock option or other incentive plans; or (B) the exercise of any other convertible securities of the Issuer outstanding as of the date hereof.

 

  Notwithstanding the foregoing restrictions, during the Restricted Period if the Issuer reasonably determines that it requires bridge financing to provide it with sufficient working capital to maintain its operations until the Closing Date, it will provide OrbiMed Advisors LLC with the first opportunity to provide such bridge financing, including a full description of the terms under which such financing would be provided. In the event that OrbiMed Advisors LLC does not agree, within 3 business days of being offered such opportunity, to provide such financing, the Issuer will be free to seek such bridge financing from one or more other investors provided the terms offered to such other investors are no more favorable to such other investors than the terms offered to OrbiMed Advisors LLC.

 

Governing Law

State of New York.

This term sheet may be executed in counterparts and may be delivered by facsimile or other electronic transmission. Facsimile and other electronically transmitted signatures shall have the same legal effect as original signatures.

 

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Please confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this Term Sheet enclosed herewith.

 

Very truly yours,
Response Biomedical Corp.
By:  

/s/ Lewis J. Shuster

Name:   Lewis J. Shuster
Title:   Board Member

Accepted and agreed to this 14th day

of November, 2011:

 

OrbiMed Advisors LLC
By:  

/s/ Carl L. Gordon

Name:   Carl L. Gordon
Title:   Member

 

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