CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 





Exhibit
10.1





 


Asset Purchase and Contribution in Kind Agreement
dated 26 July 2021


  


	 	 	Asset Purchase and Contribution in Kind Agreement
	 	 	 
	 	 	 
	
    dated
		26 July 2021
	 	 	 
	 	 	 
	
    between
	 	AC Immune SA
	 	 	 
	 	 	 
	 	 	
    EPFL Innovation Park, bâtiment B

    

    1015 Lausanne 

    Switzerland

    

	 	 	 
	 	 	 
	 	 	hereinafter: "ACIU"
	 	 	 
	 	 	 
	
    and
	 	Affiris AG
	 	 	 
	 	 	 
	 	 	
    Karl-Farkas-Gasse 22 

    1030 Vienna

    

    Austria 

	 	 	 
	 	 	 
	 	 	
    hereinafter: "Affiris";

     

    

    ACIU and Affiris
together the Parties and each a Party 

	 	 	 
	 	 	 
	concerning	 	the acquisition of the Programs (as defined below) by ACIU




     


     


    

Table of Contents


 


 


	Table of Annexes	3
	Recitals	4
	1	Definitions	5
	2	Construction	9
	3	Object of Purchase: Transfer of the PROGRAMS	9
	 	3.1	General provision	9
	 	3.2	Transfer of Assets	9
	 	3.3	Benefit and Risk	10
	4	Purchase Price	10
	5	Payment of PURCHASE PRICE	10
	6	Actions Prior to Closing	11
	 	6.1	Duty to Cooperate	11
	 	6.2	Approval	11
	 	6.3	Necessary Action by AFFIRIS between signing and CLOSING	11
	7	Conditions Precedent to Closing	12
	 	7.1	Conditions Precedent	12
	 	7.2	Efforts to fulfil the CONDITIONS PRECEDENT	12
	 	7.3	Information relating to the satisfaction of the CONDITIONS PRECEDENT	12
	8	Closing	13
	 	8.1	In general	13
	 	8.2	Closing actions	13
	 	8.3	Closing Memorandum	14
	 	8.4	Termination Right	14
	 	8.5	Post-closing Actions	15
	9	Fiduciary solution	16
	10	Relationship to Contribution in Kind Agreement	16
	11	Representations and Warranties	16
	 	11.1	Representations and Warranties of AFFIRIS	16
	 	11.2	Representations and Warranties of ACIU	19
	12	Remedies	19
	 	12.1	Notice of Breach (Rügefrist)	19
	 	12.2	AFFIRIS' Right to Cure and AFFIRIS' Liability	20
	 	12.3	Term of Representations and Warranties	20
	 	12.4	Limitations on AFFIRIS' Liability for Misrepresentation and Breach of Warranty	21
	 	12.5	Remedies of AFFIRIS	22
	 	12.6	Remedies Exclusive	22
	13	Indemnities	23
	 	13.1	Indemnities by AFFIRIS	23
	 	13.2	Indemnities by ACIU	23
	14	Covenants	24
	 	14.1	PIPE Agreement	24
	 	14.2	Agreements with NECESSARY VENDORS	24
	 	14.3	Licenses for AFFIRIS	24
	 	14.4	Covenant of AFFIRIS regarding ACIU SHARES	24
	 	14.5	Non-Competition / Non-Solicitation	25
	15	Procedure for THIRD PARTY claims	25
	16	Miscellaneous provisions	26
	 	16.1	Announcements	26
	 	16.2	Costs	26
	 	16.3	Taxes	26
	 	16.4	Amendments and modifications	26
	 	16.5	Entire Agreement	27
	 	16.6	Transfer and assignment	27
	 	16.7	Severability	27
	 	16.8	Notices	27
	17	Governing Law and Jurisdiction	28
	 	17.1	Governing law	28
	 	17.2	Jurisdiction	28



 







    2 


     


    




	 	17.2	Jurisdiction	28






	Annex 1	37
	Annex 2	39
	Annex 3	49
	Annex 4	50
	Annex 5	51
	Annex 6	52
	Annex E	53







 


Table of Annexes


 


	Annex 1	Programs IP
	Annex 2	List of Data, Documents, Information and Materials related to the Programs
	Annex 3	Contribution in Kind Agreement  
	Annex 4	PIPE Agreement 
	Annex 5	List of Necessary Vendors
	Annex 6 	Press Releases
	Annex E	Form of Agreement with certain Affiris shareholders




    3 


     


    

Recitals


 


		A)	Affiris AG ("Affiris")
is a stock corporation incorporated under the laws of Austria, registered under no. FN 240538 h in the commercial register
of Austria (Firmenbuch der Republik Österreich), with its registered office at Karl-Farkas-Gasse 22, 1030 Vienna, Austria,
with a fully paid in share capital of EUR 461'391.00 divided into 461'391 unit shares (Stückaktien).



 


		B)	AC Immune SA ("ACIU") is a stock corporation
incorporated under the laws of Switzerland, registered under CHE-109.878.825 in the commercial register of the Canton of Vaud, with its
seat in Ecublens (VD), with a fully paid in share capital of CHF 1'537'748.98 divided into 76'887'449 registered shares.



 


		C)	ACIU intends to
acquire from Affiris the Programs (as defined
below) and Affiris intends to sell the Programs
to ACIU.



 


		D)	Concurrently with the signing of this agreement,
some of the shareholders of Affiris, namely Santo Venture Capital GmbH and FCPB Affi GmbH
acting through First Capital Partner GmbH (collectively, the "PIPE Subscribers")
shall enter into an agreement in the form of Annex 4 hereto (the "PIPE
Agreement") providing for the Pipe Subscribers to acquire a convertible
note issued by ACIU and convertible into ACIU shares upon the terms and conditions set out in the PIPE
Agreement.



 


		E)	The PIPE Subscribers
plus MIG GmbH & Co. Fonds 15 geschlossene Investment-KG, MIG Asset Trust GmbH, MIG GmbH & Co. Fonds 4 KG, MIG GmbH & Co.
Fonds 5 KG i.L., MIG GmbH & Co. Fonds 7 KG i.L., MIG GmbH & Co. Fonds 11 KG i.L., MIG GmbH & Co. Fonds 12 geschlossene Investment-KG,
MIG GmbH & Co. Fonds 13 geschlossene Investment-KG (together with the Pipe Subscribers,
the "Affiris Shareholders") enter concurrently with the signing of this
Agreement into an agreement with ACIU in the form of Annex
E).



 


Based
on the above Recitals, which form an integral part of this , the Parties hereto agree as
follows:


 




    4 


     


    

		1	Definitions



 


When
used in this Agreement in small caps form, the terms set forth below shall have the following
meaning:


 


"ACIU" has the meaning given to
it in Recital B).


 


"Aciu
Shares" has the meaning given to this term in Section 4.


 


"Adjusted
Share Value" has the meaning given to this term in Section 4.


 


"Affiliate"
means any person that directly or indirectly controls, is controlled by or is under common control with the person in question. For purposes
of this definition, control of a person means the power, direct or indirect, to direct the management and policies of such person, whether
by contract or otherwise; in any case control by a person is given if it holds more than 50% of the voting rights of another person.


 


"Affiris"
has the meaning given to it in Recital A).


 


"Affiris
Programs" has the meaning given to this term in Section 14.3.


 


"Affiris
Shareholders" has the meaning given to it in Recital E).


 


"Agreement"
means this asset transfer and contribution in kind agreement (including its Annexes).


 


"Annex"
means an Annex to this Agreement.


 


"Antibody"
means any antibody protein, including variants, modifications, fragments or derivatives thereof, including vectorized antibodies, that
binds to and interacts with or modulates Targets or variants, modifications, derivatives
or fragments of Targets.


 


"Business
Day" means any day (other than a Saturday or Sunday) on which banks are open for general business in Lausanne and Vienna.


 


"Cash"
has the meaning given to this term in Section 3.1.


 


"Cap"
has the meaning given to this term in Section 12.4.2.


 


"Closing"
means the consummation of the Transfer, as further described in Section 8.


 


"Closing
Date" means the date on which the Parties actually consummate the Transfer.


 


"Closing
Memorandum" has the meaning given to this term in Section 8.3.


 


"CO" means the Swiss Code of Obligations
dated 30 March 1911, as amended from time to time (SR 220).


 


"Compositions"
means the compositions of vaccines developed or used in the Programs as more specifically
described in Section 2 of Annex 2.


 




    5 


     


    

"Conditions
Precedent" has the meaning given to this term in Section 7.1.


 


"Confidential
Information" has the meaning given to this term in Section 8.5.3.


 


"Copyright"
means any works of authorship, copyrights, database rights and registrations and applications thereof.


 


"De
Minimis" has the meaning given to this term in Section 12.4.1.


 


"Effective
Date" means the date on the title page of this Agreement.


 


"Fairly
Disclosed" means a matter being disclosed in a fair and non-misleading way that it is readily discernible, without
performing factual or additional inquires (but considering the Q&A process in the virtual data room provided by Brainloop that was
part of the due diligence by ACIU), by a prudent buyer who is familiar with the business of Affiris
or such buyer's legal, financial, tax, technical or other professional advisers usually hired for the evaluation of transactions,
assets and companies of the type as contemplated under this Agreement and who are familiar
with the business of Affiris. The concept of fair disclosure as defined herein shall supersede
article 200 CO.


 


"Indemnified
Party" has the meaning given to that term in Section 15.


 


"Intellectual
Property Rights" means all (i) Sequences; (ii) Compositions;
(iii) Antibodies; (iv) Patents; (v) Know-how;
(vi) Copyrights and (vii) Trademarks.


 


"Know-How"
means all existing and available technical information, know-how and data, including inventions (whether patentable or not), discoveries,
trade secrets, specifications, instructions, processes and formulae, including all biological chemical and, pharmacological, biochemical,
toxicological, pharmaceutical, physical, safety, quality control, preclinical and clinical data.


 


"License-Back"
has the meaning given to that term in Section 14.3.


 


"Lien"
means any lien, encumbrance, security interest, retention right, usufruct, servitude, right of first refusal or pre-emption, right in
rem or similar, irrespective of whether such lien arises under any agreement, other instrument, the mere operation law or by means of
a judgment or decree and shall also mean any approval or consent required from a third party to the exercise or full vesting of a right
or title.


 


"Long
Stop Date" has the meaning given to that term in Section 8.4.


 


"Necessary
Vendors" means those suppliers and service providers identified in Annex
5.


 


"Notice
of Defense" has the meaning given to that term in Section 15.


 


"Party"/"Parties"
means either of Affiris and ACIU (or both of them).


 


"Patent"
means any patents, pending patent applications, patent disclosures, future patent applications, and any continuing, divisional, reissue,
reexamination and substitute patents and applications based, in whole or in part, on any of the foregoing patents and patent applications,
together with all continuations, continuations-in-part, divisions, patents of addition, reissues,


 




    6 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 





renewals, extensions, supplementary protection
certificates and complementary protection certificates of any of the foregoing.


 


"PCT
Application" has the meaning given to that term in Section 6.1.


 


"Permits"
has the meaning given to that term in Section 11.1.5.


 


"PIPE
Agreement" has the meaning given to it in Recital D).


 


"PIPE
Subscribers" has the meaning given to it in Recital D).


 


"Product"
means any preparation, substance, formulation, form or dosage comprised, in whole or in part, of a (i) Vaccine,
or (ii) Antibody including as well as their DNA analogues, and/or (iii) any and all improvements
(yielding to better properties such as better potency, efficacy with regard to immunogenicity, or manufacturability) to any of the foregoing
whether patentable or not, targeting alpha-synuclein or [*****], and all combinations of alpha-synuclein and [*****]. Product
is intended for use in both the therapeutics field or diagnostic field, and for any indication.


 


"Programs"
means the research and development programs conducted by or on behalf of Affiris for Products
which constitute therapies and diagnostics including but not limiting to passive and active immunization approaches, alone or in combination
against Targets.


 


"Programs
IP" means any Intellectual Property Rights pertaining to the Programs
as categorized in Annex 1 and further evidenced in Annex
2.


 


"Purchase
Price" has the meaning given to it in Section 4.


 


"Records"
means the details of assets attached to this Agreement consisting of the:


 


		a)	Programs IP;
and



 


		b)	The list of data, documents, information and materials related
to the Programs contained in Annex
2.



 


"Registration"
has the meaning given to it in Section 5 N12.


 


"SOGC" has the
meaning given to it in Section 5.


 


"Sole
Remedy" has the meaning given to it in Section 12.2.


 


"Section"
means a section of this Agreement.


 


"Securities
Act" means the United States Securities Act of 1933, as amended.


 


"Sequences"
means those sequences as written in Section 1 of Annex 2.


 


"Targets"
means alpha-synuclein and [*****] or variants, modifications, derivatives or fragments of alpha-synuclein and [*****], whether targeted
directly or indirectly.


 




    7 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 





"Taxes"
mean all taxes, including corporate income taxes, capital taxes, stamp duties (both on the issuance and on the transfer of securities)
transfer taxes, withholding taxes, value added taxes, sales and use taxes, customs duties, business taxes and all other taxes, duties
and levies, whether for own account or withheld for anybody else, whether contingent or due, known or unknown, and regardless of whether
as primary debtor or based on a secondary liability, as original debtor or successor under any applicable law, payable to any competent
taxing authority in any jurisdiction or any other body authorized to impose taxes, as well as any interest, penalties, costs and expenses
resulting from or arising out therefrom or relating thereto.


 


"Third
Party" means a person or entity of whatever kind other than a Party and
any Affiliate of either Party.


 


"Threshold"
has the meaning given to this term in Section 12.4.1.


 


"Trademarks"
mean any trade name, trademark, trade dress, brand name, word, symbol, logo, corporate name, letter or design, together with all translations,
adaptations, derivations, and combinations thereof, whether or not registered.


 


"to
the Best Knowledge of Affiris" means any fact, matter, circumstance or event that any member of the board of directors
of Affirs, i.e. [*****], and/or any of the following persons [*****], until Closing was
or could have become aware of (Kennen oder Kennenmüssen).


 


"Transfer"
means the transfer of the Programs from Affiris
to ACIU against payment of the Purchase Price (i.e. the registration of the capital increase
regarding the subscribed ACIU Shares by Affiris
in the commercial registry of the Canton of Vaud) pursuant to this Agreement.


 


"Transferred
Assets" means any asset related to the Programs, consisting of:


 


		a)	all assets as set forth or contained in the Records;



 


		b)	all other assets acquired on the account of or created in relation
to the Programs or otherwise belonging to the Programs;
and



 


		c)	all currently unknown claims of Affiris
against a Third Party having their origin within the Programs.



 


"Vaccine"
means any peptide comprising a fragment of Targets, or a portion thereof (such as an epitope
or fragment thereof), including as well derivatives such as DNA analogues, variants, modifications, and/or mimotopes which can exhibit
various percentage of sequence identity with natural peptides derived from Targets, or a
combination thereof or with other antigenic structures whatsoever, and any additional modifications to the peptide including but not limited
to attachment to and/or reconstitution into a carrier, with or without an adjuvant, that, upon administration, induces an immune response,
such as antibody production or cellular immunity, against Targets.


 


"VWAP" means
Volume Weighted Average Price.


 




    8 


     


    

		2	Construction



 


		2	Unless a contrary indication appears, any reference in this Agreement
to:



 


		a)	a "person" includes any individual, company, corporation,
firm, partnership, joint venture, association, organization, trust or agency (in each case, whether or not having separate legal personality);



 


		b)	"including" means including without limitation;



 


		c)	a provision of law is a reference to that provision as amended;



 


		d)	a German term in italics is a reference to a legal term or
concept under Swiss or Austrian law;



 


		e)	a time of day is a reference to Swiss time; and



 


		f)	singular also includes plural and vice versa.



 


		3	Object of Purchase: Transfer of the Programs



 


		3.1	General provision



 


		3	Effective on the Effective
Date and subject to the terms and conditions of this Agreement, Affiris
undertakes to contribute and transfer the Programs as evidenced by the Records,
consisting of the Transferred Assets plus a cash contribution of US$ 5'000'000.00 ("Cash")
to ACIU. ACIU undertakes to take ownership over the Programs and the Cash,
in particular, to accept all legal and non-legal relationships transferred hereunder. Except as otherwise specified in this Section 3,
Affiris hereby assigns and transfers with effect as of Closing
all Transferred Assets belonging to the Programs
as evidenced in the Records.



 


		4	The Parties agree
that no active business (Betrieb) or parts thereof (Teilbetrieb) or independent sub-unit or parts thereof and no known
or unknown liabilities or obligations (whether contingent or actual) are transferred hereunder unless such transfer of liabilities or
obligations is explicitly foreseen in this Agreement.



 


		3.2	Transfer of Assets



 


		3.2.1	Transfer of IP



 


		5	Affiris shall transfer,
and hereby assigns and transfers with effect as of Closing, but conditional upon the Purchase
Price being delivered to Affiris (Resolutivbedingung),
the ownership in any Programs IP as categorized in Annex
1 and further evidenced in Annex 2 to ACIU. The Parties
may agree to evidence certain required transfers in separate assignment declarations for Closing.



 


		3.2.2	Transfer of Data, Documents, Information and Materials



 


		6	Affiris shall transfer
all originals or true copies of the data, documents, information and materials related to the Programs
existing at Affiris or under the control of Affiris
as well as electronic



 




    9 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


copies of the existing electronic
data relating to the Programs according to the formats as provided in Annex
2, sections 4 and 5 to ACIU within four weeks from the Closing Date.


 


		3.2.3	Transfer of Cash



 


		7	Affiris shall further
transfer the Cash to ACIU one Business
Day prior to the Closing Date.



 


		8	The Cash shall be paid by wire transfer to a blocked account
("Kapitaleinzahlungskonto") with [*****] as communicated by ACIU to Affiris
at the latest 10 (ten) Business Days prior to the Closing
Date.



 


		3.3	Benefit and Risk



 


		9	Benefit and risk (Nutzen und Gefahr) with respect to the Transferred
Assets pursuant to this Section 3 shall be effective as of the Closing
Date, with the necessary acts of transfer taking place at Closing.



 


		4	Purchase Price



 


		10	The aggregate purchase price for the Programs and the Cash
to be paid by ACIU to Affiris amounts
to US$ 58'702'500.00 ("Purchase Price"). No other payments, such as
milestone payments or royalties payments, are due by ACIU to Affiris for the Programs
and the Cash.



 


		11	The Purchase Price will be paid by ACIU by transferring
a total of 7'106'840 newly issued ACIU shares to Affiris. The Parties
have agreed in determining this number of shares on an underlying share price of US$ 8.26 per ACIU share and agree that any share
price movement in ACIU shares will not affect the number of shares to be delivered by ACIU at Closing,
unless the 1 day VWAP per ACIU share on the day before the Closing Date exceeds US$
9.18. In such a case, the delta between the 1 day VWAP per ACIU share and US$ 9.18 shall be added to US$ 8.26 (the "Adjusted
Share Value"). Eventually, the number of ACIU shares to be delivered as Purchase
Price shall be determined by dividing US$ 58'702'500.00 by such Adjusted Share Value
(the shares, eventually transferred to Affiris to pay the Purchase
Price, the "ACIU Shares").



 


		5	Payment of Purchase Price



 


		12	One Business Day prior to the Closing
Date, Affiris will transfer the Cash
in accordance with Section 3.2.3 and at the Closing
Date and in accordance with Section 8.2 (Closing Actions), Affiris
will transfer the Programs to ACIU as a contribution in kind and ACIU will resolve
on the capital increase required for the issuance of the ACIU Shares to be created with
entry of the capital increase in the commercial registry of the Canton of Vaud (Tagebucheintrag) and to become effective with the
registration of the capital increase in the Swiss Official Gazette of Commerce ("SOGC") in accordance with art. 936a
CO (the "Registration"), each as set forth in Section 8.2 (Closing Actions)
as a payment of the Purchase Price for the Cash and
the contribution in kind in accordance with Section 4.



 


		13	The ACIU Shares to be delivered as Purchase
Price shall rank pari passu with all existing ACIU shares in terms of dividend and voting rights.



 




    10 


     


    




CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


		6	Actions Prior to Closing



 


		6.1	Duty to Cooperate



 


		14	The Parties shall use their reasonable best efforts and
shall cooperate, also following Closing, to give full effect to the provisions of this Agreement
and effect the Transfer (and in particular satisfy the conditions to Closing
set forth in Section 7 (Conditions Precedent to Closing)) in accordance with the terms and conditions set out herein.



 


		15	ACIU shall file the application required under the Austrian
Foreign Direct Investment Control Act (Investitionskontrollgesetz) as soon as reasonably possible after the signing of this Agreement
with the Austrian Ministry of Digital and Economic Affairs (Bundesministerium für Digitalisierung und Wirtschaftsstandort)
to obtain the approval as set forth in Section 7.120 (Conditions to the Obligations of all
Parties). Affiris procures to use its reasonable
best efforts (i) to assist ACIU to obtain such approval and (ii) to provide all information and documents needed or requested for such
approval. In case the Austrian Ministry of Digital and Economic Affairs (Bundesministerium für Digitalisierung und Wirtschaftsstandort)
will only grant the required approval subject to certain conditions or obligations, ACIU shall
be under no obligation to accept any such conditions or obligations.



 


		16	Promptly after the signing of this Agreement, Affiris
shall prepare a PCT patent application based on [*****] ("PCT Application")
[*****], and will submit the draft to ACIU for review. Affiris and ACIU will agree on the
final contents of the PCT Application, and Affiris
will file such PCT Application at its own costs before[*****].



 


		17	As soon as reasonably possible after the signing of this Agreement,
ACIU shall prepare the entire capital increase documentation and submit the draft documentation for pre-approval with the commercial registry
of the Canton of Vaud and, to the extent permissible, request a "hyper-express registration" (Hyperexpressverfahren)
for a same-day registration of the capital increase (Tagebucheintrag) in the commercial register as of the envisaged Closing
Date.



 


		6.2	Approval



 


		18	Prior to signing of this Agreement, Affiris
has delivered to ACIU, and ACIU has delivered to Affiris,
evidence, reasonably satisfactory to the respective other Party that their respective board
of directors (in case of Affiris, its supervisory board and all its shareholders) has approved
the signing of this Agreement and the documents and agreements contemplated herein and Affiris
confirms that its supervisory board and all its shareholders have approved the consummation of the transactions contemplated herein and
therein.



 


		6.3	Necessary Action by Affiris between signing and Closing



 


		19	ACIU intends that certain activities in connection with executing the manufacturing process of the [*****],
should immediately start after signing of this Agreement (whereby, for the avoidance of
doubt, ACIU shall bear all costs, fees and expenses arising from or in connection with such activities) and, Affiris
will make the necessary introductions to the Necessary Vendors as listed in Annex 5.



 




    11 


     


    

		7	Conditions Precedent to Closing



 


		7.1	Conditions Precedent



 


		20	The obligations of the Parties to Closing
are subject to the satisfaction or waiver by all Parties of the following conditions precedent
("Conditions Precedent"):



 


		a)	The approval required under the Austrian Foreign Direct Investment
Control Act (Investitionskontrollgesetz) has been obtained, or any waiting or other time or limitation period in relation to the
Transfer under the Austrian Foreign Direct Investment Control Act (Investitionskontrollgesetz)
having expired, lapsed, waived or otherwise terminated.



 


		b)	ACIU has (i) prepared the entire capital increase documentation
(including the application to the commercial registry of the Canton of Vaud) and (ii) received pre-approval regarding the documents required
for the registration of the capital increase in connection with the payment of the Purchase Price
from the commercial registry of the Canton of Vaud (and to the extent permissible, including the pre-approval for a "hyper-express
registration" pursuant to Section 6.1).



 


		c)	No action, order or injunction is issued, pending or threatened
by any competent court, arbitral or tribunal governmental authority which does or would prohibit the Closing.



 


		21	The obligations of ACIU to Closing is subject to the satisfaction
or waiver by ACIU of the following additional Condition Precedent: No material breach of
any representation or warranty of Affiris set forth in Section
11.1 (Representations and Warranties of Affiris) has occurred.



 


		7.2	Efforts to fulfil the Conditions Precedent



 


		22	The Parties shall use best efforts to effectuate the fulfilment of the Conditions
Precedent set out in Section 7.1.



 


		23	With regard to the Condition Precedent set out in Section 7.1,
ACIU shall duly submit all legally required filings, as soon as reasonably possible after signing of this Agreement.
Affiris shall without any undue delay provide all reasonable cooperation to ACIU in this
regard.



 


		7.3	Information relating to the satisfaction of the Conditions Precedent



 


		24	The Parties shall keep each other informed about the status
of the satisfaction of the relevant Conditions Precedent and immediately notify each other
in writing (including by e-mail) of the fulfilment of a Condition Precedent as soon as they
have become aware thereof, and shall immediately provide each other with copies of the corresponding proofs for the verification of the
proper fulfilment of each Condition Precedent. In addition, the Parties
shall confirm to each other in writing that all Conditions Precedent have been fulfilled
and therefore Closing can occur in accordance with Section 8.1.



 




    12 


     


    

		8	Closing



 


		8.1	In general



 


		25	The Parties undertake to use their best efforts to do everything,
not to forbear anything and to support each other to ensure that the Closing can occur.



 


		26	The Closing shall take place within 10 (ten) Business
Days after all Conditions Precedent as set out in Section 7.1
have been satisfied or, where permissible, waived by the Party whose performance is subject
to such condition, or on such other date as the Parties may agree, but in no event later
than the Long Stop Date.



 


		27	The Closing shall take place at the offices of ACIU in Lausanne
or at any other place as mutually agreed between the Parties (but, for the avoidance of
doubt, not in Austria).



 


		8.2	Closing actions



 


		8.2.1	Actions by Affiris



 


		28	As part of the Closing,
but one day prior to the Closing Date, Affiris
shall transfer the Cash to a blocked account (Kapitaleinzahlungskonto) as specified
in Section 3.2.3. On the Closing Date,
Affiris shall – concurrently with, and in exchange for, the closing actions of ACIU
("Zug um Zug"):



 


		a)	Execute all required declarations and agreements in order to evidence certain transfers in separate assignment
declarations or agreements in the required form;



 


		b)	Transfer to ACIU any Records in tangible or electronic format
(with the exception of Annex 2, sections 4 and 5, which will be transferred to ACIU in accordance with Section
3.2.2.;



 


		c)	Subscribe for the ACIU Shares (Zeichnungsschein)
to be created with entry of the capital increase in the commercial registry of the Canton of Vaud (Tagebucheintrag) and
to become effective with the registration of the capital increase in the Swiss Official Gazette of Commerce ("SOGC")
in accordance with art. 936a CO;



 


		d)	Affiris signs a contribution in kind agreement substantially
as evidenced in Annex 3 for the registering of the capital increase as required
for the issuance of newly issued shares of ACIU in connection with the payment of the Purchase
Price in the commercial registry of the Canton of Vaud.



 


		e)	Make all other declarations, perform all acts and conclude all contracts necessary for the execution of
this agreement.



 


		8.2.2	Actions by ACIU



 


		29	On the Closing Date, ACIU shall – concurrently with
and in exchange for the closing actions of Affiris ("Zug um Zug"):



 


		a)	Execute all required declarations and agreements in order to
evidence certain transfers in separate assignment declarations or agreements in the required form;



 




    13 


     


    

		b)	ACIU signs a contribution in kind agreement substantially
as evidenced in Annex 3 for the registering of the capital increase as required
for the issuance of newly issued shares of ACIU in connection with the payment of the Purchase
Price in the commercial registry of the Canton of Vaud.



 


		c)	Provide a (i) duly executed board resolution resolving on the capital increase based on the existing authorized
capital of ACIU (including the withdrawal of pre-emptive rights in accordance with the articles of association of ACIU) (ii) a copy
of the capital increase report, (iii) a duly signed audit confirmation report (Prüfungsbestätigung) from the auditors
of ACIU and (iv) the public deed on the resolution of the board of directors asserting the capital increase (öffentliche Urkunde
über den Feststellungsbeschluss) together with the new articles of association of ACIU to be filed with the commercial registry;




 


		c)	Provide and file the duly signed application and all necessary enclosures to the commercial registry of
the Canton of Vaud with the request, if permissible, of a same-date registration of the capital increase (Tagebucheintrag) by a
hyper-express registration (Hyperexpressverfahren).



 


		8.3	Closing Memorandum



 


		30	Upon the due performance of the closing actions pursuant to Section 8.2,
the Parties shall sign minutes of the closing procedure to confirm that all Conditions
Precedent have been fulfilled, maintained or waived, as applicable, all closing actions have been implemented and the sale and
transfer of the Programs has become legally effective subject to Registration
(the "Closing Memorandum"). Copies of evidence of the fulfilment
of the Conditions Precedent shall be attached to the Closing
Memorandum.



 


		31	No later than 5 (five) Business Days prior to Closing,
ACIU's legal counsel shall prepare, in cooperation with Affiris' legal counsel, such Closing
Memorandum.



 


		8.4	Termination Right



 


		32	Should the Conditions Precedent set forth in Section
7.1 not be satisfied within 6 (six) months from the date hereof (the "Long Stop
Date"), each Party (in case of Section
7.1, N 20) respectively ACIU (in case of Section 7.1, N 21) shall have
the right to terminate this Agreement by giving notice to the other Party
unless it has itself, by willful misconduct or gross negligence, caused or permitted the non-satisfaction of such Condition
Precedent. Once Registration has occurred, no Party shall any longer be entitled
to withdraw from this Agreement pursuant to this section 8.4 N 32.



 


		33	In addition to the termination right set forth in section 8.4 N 32
and prior to Registration, this Agreement
may be terminated only (a) by mutual written consent of all Parties, or (b) by Affiris,
if (x) the Registration has not occurred within
two weeks from Closing, provided that Affiris
has met its own obligations hereunder required therefor or (y) Closing has not occurred
within 3 (three) Business Days after Affiris
has transferred the Cash to the blocked account pursuant to Section 3.2.3
or, if the delay is not attributable to ACIU within 5 (five) Business Days. In case this
Agreement is terminated pursuant to this Section 8.4 N 33,
the Parties shall undertake all required actions to unwind all closing actions, confirm
to each other and acknowledge in writing that the capital increase and any action pertaining to the Registration
shall not be taken, and Affiris shall return the original subscription declaration to ACIU
which shall destroy it (in each



 




    14 


     


    

case to the extent that these
closing actions have already been implemented) and ACIU shall repay the Cash received from
Affiris.


 


		34	If this Agreement is terminated pursuant to this Section 8.4
(Termination Right) such termination shall be without liability of one Party to the other
Party; provided that if such termination results from the willful or grossly negligent failure
of a Party (i) to fulfill the respective Condition
Precedent (to the extent such Party would be in a position to cause the Condition
Precedent to be fulfilled) or (ii) to perform an obligation under this Agreement,
such Party shall be liable for all damages, costs and expenses incurred by the other Party
as a result of such failure or breach.



 


		35	If this Agreement is terminated pursuant to this Section
8.4 (Termination Right), all provisions of this Agreement shall cease to be effective
except for Sections 1 (Definitions), 8.4 (Termination
Right), 16 (Miscellaneous), and 17 (Governing Law and Jurisdiction).



 


		8.5	Post-closing Actions



 


		8.5.1	Share Registry of ACIU



 


		36	Upon Registration, ACIU will provide Affiris
with a copy of the new excerpt from the commercial registry of the Canton of Vaud and upon publication of the capital increase in the
SOGC ACIU will provide to Affiris a copy of the share registry of ACIU evidencing Affiris
as shareholder of ACIU.



 


		8.5.2	In General



 


		37	Affiris shall, at the request of ACIU and insofar reasonable,
provide support to ACIU, and therefore, in particular execute any further instrument, declaration or other document, that may be required
under any applicable law or otherwise be reasonably requested by ACIU to give full effect,
evidence or support the Transfer agreed hereunder.



 


		38	Each Party is hereby authorized to notify each holder (or
debtor as the case may be) of a Transferred Asset (including of any receivable belonging
to the Programs) of the Transfer.



 


		8.5.3	Confidentiality



 


		39	Affiris acknowledges that after the Closing
Date, all information relating to the Programs (the "Confidential
Information") will belong to ACIU.



 


		40	Affiris shall keep and shall ensure that all its directors,
officers, employees, or agents will keep the Confidential Information strictly confidential
and shall not disclose or reveal it in whole or in part to any Third Party and shall not
make use of any such information which remain in its possession after the Closing Date.



 


		41	The foregoing undertakings shall be continuing obligations and shall remain in full force and effect with
the exception that such undertakings shall not apply to such Confidential Information as:



 


		a)	at the time of being obtained by ACIU, was within the public domain;



 


		b)	after being obtained by ACIU, comes into the public domain other than by reason of a breach of the undertakings
contained in this Agreement;



 




    15 


     


    

		c)	is required to be disclosed by any law or by an order of any court of competent jurisdiction;



 


		d)	is required to be disclosed by the regulations of, or at the request of, any regulatory, supervisory or
other governmental authority having jurisdiction over Affiris; or



 


		e)	is disclosed with the prior consent of ACIU.



 


		42	For the avoidance of doubt, the release from confidentiality
undertakings under this Agreement is without prejudice to any other confidentiality obligations
under applicable law.



 


		9	Fiduciary solution



 


		43	In the event that the consummation of the Transfer with
respect to certain Transferred Assets does not occur at the Closing
Date, the Parties shall endeavor to promptly achieve such consummation by further
closing actions pursuant to Section 8. Pending such consummation (or if consummation cannot
be reasonably achieved) and to the fullest extent permitted by applicable law and contracts with third parties, Affiris
will continue to be the owner of the respective Transferred Assets in its own name but on
behalf and at the risk of ACIU, i.e. on a fiduciary basis. Affiris will only exercise its
rights and perform its duties in respect of such Transferred Assets in accordance with the
instructions of ACIU. Affiris is, however, solely required to follow such instructions unless
compliance with such instructions is unlawful or could cause any Damages for Affiris.



 


		44	Where Affiris is not lawfully able to hold any such Transferred
Assets on a fiduciary basis in accordance with the paragraph above, the Parties shall
cooperate to establish an arrangement reasonably satisfactory to each of them which corresponds economically to a transfer of the relevant
Transferred Assets such as e.g., concluding back-to-back contracts between Affiris
and ACIU.



 


		45	Affiris shall as soon as reasonably possible but at the
latest within 20 (twenty) Business Days transfer all (net) profits and assets generated
under such fiduciary solution to ACIU and ACIU shall assume all costs and liabilities arising thereunder. ACIU shall pay to Affiris
an at arm's length fee for the performance of its services.



 


		10	Relationship to Contribution in Kind Agreement



 


		46	The Parties agree that in case of contradiction or other
ambiguity between this Agreement and the contribution in kind agreement to be signed substantially
in the format evidenced in Annex 3, the provisions of this Agreement
shall prevail. The Parties agree that the contribution in kind agreement has been deliberately
drafted in a concise manner for filing with the commercial register and must be read together with this Agreement
for interpretation.



 


		11	Representations and Warranties



 


		11.1	Representations and Warranties of Affiris



 


		47	Subject to the limitations set forth in Section 12 (Remedies),
Affiris hereby represents and warrants to ACIU
that the representations and warranties set forth in this Section 11.1 (Representations
and Warranties of Affiris) are true and accurate in all respects as of Signing and as of
Closing, unless explicitly otherwise specified hereafter.



 




    16 


     


    

		11.1.1	Capacity, No Authorizations



 


		48	Affiris has the right and capacity to execute this Agreement
and perform its obligations thereunder. This Agreement constitutes valid and binding obligations
of Affiris, enforceable in accordance with its terms. Other than set forth in Section 7.1,
no governmental or other authorization, permit or consent is required for the execution and consummation of this Agreement.



 


		49	The execution and consummation of this Agreement does not
result in a breach of any (i) applicable law or regulation, (ii) decision or decree of any court, arbitral tribunal or governmental authority
applicable to Affiris, (iii) constitutional documents of Affiris
or (iv) contracts binding for Affiris. To
the best knowledge of Affiris there are no proceedings pending or threatened against Affiris
seeking to prohibit or limit the consummation of the Transfer.



 


		11.1.2	Transferred Assets



 


		50	Affiris is the sole legal and beneficial owner of the Transferred
Assets, and the Transferred Assets are clear and free of any Lien,
except for Liens resulting by operation of law in the ordinary course of business.



 


		51	Affiris owns or otherwise has the valid right to use all
Transferred Assets. There has been no termination, or threat of termination of right to
use the Transferred Assets, nor are there, to the
best knowledge of Affiris,any circumstances likely to result in such termination.



 


		11.1.3	Employees of Affiris



 


		52	The staff reductions of Affiris in 2018 and 2020 have occurred
in accordance with applicable law and Affiris has fulfilled all obligations and liabilities
under the respective social plans as well as the cooperation agreement with Wiener ArbeitnehmerInnen Förderungsfonds dated
30 January 2019.



 


		53	All current and previous individuals employed or otherwise engaged by Affiris
or on behalf of Affiris have documented in written records held by Affiris
all Know-How generated for Affiris and pertaining
to the Programs.



 


		11.1.4	Intellectual Property



 


		54	Annex 1 contains a correct list of all Intellectual
Property Rights owned and used by Affiris in connection with the Programs.
Affiris is the sole legal and beneficial owner of all Intellectual
Property Rights contained in Annex 1, which are all free and clear
of any Lien (including rights of employees, inventors and authors).
Annex 2 contains a correct list of all Intellectual
Property Rights owned and used or only used by Affiris in connection with the Programs.
In case such Intellectual Property Rights as contained in Annex
2 are owned by Affiris, Affiris
is the sole legal and beneficial owner of the Intellectual Property Rights, which are all
free and clear of any Lien (including rights of employees, inventors and authors).
All steps to prosecute the applications and maintain the registrations for the Intellectual Property
Rights that are obtained or enhanced by registration, have been duly and timely made; including the payment of any fees related
to Patents, patent applications and Trademarks
and the genuine use of the Trademarks and Patents.



 




    17 


     


    




CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


		55	To the best knowledge of Affiris, for any Intellectual
Property Rights owned or controlled by a Third Party or proprietary information or
proprietary materials owned or controlled by a Third Party used or incorporated in the Programs,
suitable licenses from such Third Parties have been obtained that permit ACIU to exercise
the Programs IP listed in Annex
1 and Annex 2.



 


		56	No claims have been made or threatened challenging the use, validity, subsistence or enforceability of
the Intellectual Property Rights owned or used by Affiris.



 


		57	To the best knowledge of Affiris: (i) the Programs
do not infringe on any Third Party Intellectual Property Rights; (ii) in particular, the
research, development, testing, making, selling, using, importing, offering for sale, keeping, and selling of Products
within the Programs pursuant to this Agreement
do not infringe or conflict with any patent rights of a Third Party. To the actual knowledge
of the board of directors of Affiris no Third
Party infringes on Affiris' Intellectual Property
Rights.



 


		58	Affiris has taken all reasonable measures to protect their
Intellectual Property Rights, including measures to prevent disclosure of any of their know-how,
trade secrets and business and technical information. Affiris has ensured that all Intellectual
Property Rights in work results created or developed by their employees or consultants in the course of their activities for Affiris,
have vested in Affiris. Affiris has paid all
due remuneration to persons entitled to any compensation under the Austrian Patent Act 1970 (Patentgesetz 1970) in relation to
employee inventions or agreements entered into until Closing.



 


		11.1.5	Compliance with Laws



 


		59	To the best knowledge of Affiris and only with regards to
matters having a negative impact on the Transferred Assets, Affiris
is and has in the past 5 (five) years always been in compliance with the relevant applicable laws, regulations (including environmental,
employment, antitrust and data protection laws and regulations) in order to use the Transferred
Assets. To the best knowledge of Affiris and only with regards to matters having
a negative impact on the Transferred Assets, there are no administrative, criminal or other
investigations or proceedings pending or threatened in writing against Affiris , which would
result in a restriction of the use of the Transferred Assets.



 


		60	Affiris has, and has in the past 5 (five) years always had,
all authorizations, permits, licenses and certificates granted or issued by a governmental authority or private institution ("Permits")
necessary to use the Programs in accordance with applicable laws. All such Permits
still needed to use the Programs in accordance with applicable laws are in full force and
effect and there are, to the best knowledge of Affiris, no circumstances likely to result
in, any partial or full suspension, revocation, adverse modification or non-renewal of any such Permits
still needed.



 


		11.1.6	Fair Disclosure



 


		61	All facts and circumstances which have been Fairly Disclosed
in the virtual data room provided by Brainloop under [*****] are correct.



 




    18 


     


    

		11.2	Representations and Warranties of ACIU



 


		62	Subject to the limitations set forth in Section 12 (Remedies),
ACIU hereby represents and warrants to Affiris
that the representations and warranties set forth in this Section 11.2 (Representations
and Warranties of ACIU) are true and accurate in all respects as of signing and as of Closing,
unless explicitly otherwise specified hereafter.



 


		11.2.1	Capacity



 


		63	ACIU has the right and capacity to execute this Agreement
and perform its obligations thereunder. This Agreement constitutes valid and binding obligations
of ACIU, enforceable in accordance with its terms.



 


		64	ACIU is duly established, duly registered, validly incorporated and validly existing under the applicable
laws of Switzerland.



 


		65	Upon Registration, (i) ACIU will convey to Affiris
and Affiris will acquire valid title to ACIU
Shares, free and clear of any Lien, except for Liens
resulting by an agreement between ACIU and the Affiris Shareholders as evidenced in Annex E),
and (ii) Affiris shall, subject to the rights and obligations contained in the agreement
with the Affiris shareholders as evidenced in Annex
E), be entitled to all of the rights attached to or arising from the ACIU Shares that are
ranked pari passu with all existing ACIU shares in terms of dividend and voting rights.



 


		66	With respect to ACIU, neither any bankruptcy, insolvency or similar proceeding has been initiated or threatened,
nor has the initiation of such proceedings been rejected due to the lack of sufficient assets. There are no events and no facts, matters,
circumstances or events that any member of the board of directors of ACIU was or could have
become aware of (Kennen oder Kennenmüssen) that under Swiss laws would necessitate or justify the initiation of any bankruptcy,
insolvency or similar proceeding with respect to ACIU (cf., e.g. Art. 725 CO).



 


		11.2.2	No Proceedings



 


		67	There are no proceedings pending against the ACIU seeking
to prohibit or limit the consummation of the Transfer.



 


		11.2.3	ACIU's Due Diligences



 


		68	ACIU is not aware of any matter or circumstance that constitutes,
or could reasonably be expected to constitute the basis of a misrepresentation or breach of warranty pursuant to Section
11.1 (Representations and Warranties of Affiris).



 


		12	Remedies



 


		12.1	Notice of Breach (Rügefrist)



 


		69	Within 20 (twenty) Business
Days after ACIU having obtained knowledge of a misrepresentation or breach of warranty
pursuant to Section 11.1 (Representations and Warranties of Affiris)
and the resulting damage, ACIU shall deliver to Affiris
a notice in writing describing in reasonable



 




    19 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


details (including a good faith
estimate of the Damages claimed) the underlying facts of the misrepresentation to the extent
then known ("Notice of Breach"). For the avoidance of doubt, such notification
period shall in no event start before Closing.


 


		70	Failure to give duly and timely notice as set forth in the preceding paragraph shall not exclude or limit
Affiris' liability related to such breach, except to the extent ACIU
's failure to duly and timely notify Affiris caused and/or increased the potential
damage.



 


		71	This Section 12.1 (Notice of Breach (Rügefrist))
shall be in lieu of, and supersede, article 201 CO, the applicability of which is hereby waived in full by the Parties.



 


		12.2	Affiris' Right to Cure and Affiris' Liability



 


		72	With respect to a misrepresentation or breach of warranty notified by ACIU
to Affiris pursuant to Section 12.1 (Notice
of Breach (Rügefrist)), Affiris shall have the right (but not the obligation),
within 30 (thirty) Business Days after receipt of the respective Notice
of Breach, to bring ACIU in the same position in which it would have been if no misrepresentation
or breach of warranty had occurred (Naturalrestitution).



 


		73	If and to the extent such cure cannot or is not effected within such time period pursuant to Section 12.2,
Affiris shall, irrespective of any fault, be liable to, and compensate, ACIU
for direct damages (Direkter Schaden) (which for the avoidance of doubt include contractual cancellation fees which ACIU has to
pay as a result of a misrepresentation or breach of warranty by Affiris) ("Damage"),
incurred or sustained by ACIU to establish the state represented in Section
11.1 (Representations and Warranties of Affiris) or otherwise incurred by such misrepresentation
or breach of warranty. For the avoidance of doubt, ACIU shall not be entitled to claim any indirect and consequential damages (including
loss of profits, interest or penalties or any multiplies, if any, applied by ACIU to determine the Purchase
Price).



 


		74	Affiris has in its sole discretion the right (but not the
obligation) to compensate such Damage either by (i) a payment in cash or (ii) returning
to ACIU ACIU Shares corresponding to the Damage;
in the latter case (i.e. (ii)) the calculation of the compensation (i.e. the amount of ACIU Shares
to be returned to ACIU) is made at a valuation of US$ 8.26 per ACIU share or at the Adjusted
Share Value, if such Adjusted Share Value was used for the payment of the Purchase
Price in accordance with Section 4 (the "Sole
Remedy"). For the avoidance of doubt, Affiris is not obliged to compensate
any Damage by a payment in cash.



 


		12.3	Term of Representations and Warranties



 


		75	The representations and warranties set forth in Section
11.1 (Representations and Warranties of Affiris) shall continue to be in effect as follows:



 


		a)	the representations in Section 11.1.1 (Capacity, No Authorizations)
shall expire [*****] years from Closing;



 


		b)	all other representations in Section 11.1 (Representations
and Warranties of Affiris) shall [*****] months from Closing;



 


		76	It being understood, that ACIU shall not be excluded from
bringing any claim against Affiris for misrepresentation or breach of warranty after such
dates, if such claim has been notified by ACIU



 




    20 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


to Affiris
in accordance with Section 12.1 (Notice of Breach
(Rügefrist)) before the applicable expiry date.


 


		77	This Section 12.3 (Term of Representations and Warranties)
shall be in lieu of, and supersede, article 210 CO, the applicability of which is hereby waived by the Parties.



 


		12.4	Limitations on Affiris' Liability for Misrepresentation and Breach of Warranty



 


		12.4.1	De Minimis and Threshold



 


		78	Subject to the provisions below, Affiris
shall not be liable for claims of ACIU for misrepresentations or breaches of warranties
under Section 11.1 (Representations and Warranties of Affiris)
unless



 


		i)	each such claim equals or exceeds, on a stand-alone basis,
the amount of US$ [*****] ("De Minimis");
it being understood that for the calculation of the De Minimis, a series of claims shall be regarded as one single claim if such claims
are based on substantially the same factual circumstances after application of all other limitation pursuant to this Section 12,
irrespective of whether they are brought by one or several claimants; and



 


		ii)	the aggregate amount of the individual amounts described in
i) equals or exceeds US$ [*****] ("Threshold"),



 


		79	whereupon any amount that is less the De Minimis or the
Threshold shall be disregarded for all purposes.



 


		80	However, the above limitations shall not apply for claims brought under Sections
11.1.1 (Capacity, No Authorizations), or in case of willful misconduct or gross negligence of Affiris,
for which claims Affiris shall be liable from the first US$ on in any case.



 


		12.4.2	Cap



 


		81	Subject to the provisions below, Affiris' liability for
claims of ACIU for misrepresentations or breaches of warranties under Section
11.1 (Representations and Warranties of Affiris) shall in aggregate be limited to [*****]%
of the Purchase Price ("Cap").



 


		82	However, the above Cap shall not apply to claims brought
under Sections 11.1.1 (Capacity, No Authorizations)
or in case of willful misconduct of Affiris, for which claims the Cap
shall be equal to 100% of the Purchase Price.



 


		12.4.3	Further Limitations



 


		83	Affiris' liability for a claim for misrepresentations or
breaches of warranties under Section 11.1 (Representations and Warranties of Affiris)
shall be reduced or excluded, as the case may be, if and to the extent:



 




    21 


     


    

		a)	ACIU has failed to mitigate the loss or damage as required
under Swiss law regarding such claim (in particular has failed to notify Affiris of a claim
in accordance with Section 12.1 of this Agreement);



 


		b)	ACIU has recovered from a third
party, in particular an insurance, compensation with respect to the subject matter of such claim (net of all related costs and
premium increases which shall be compensated by Affiris as part of the Damage);



 


		c)	that the facts, matters, events or circumstances forming the basis for such claim (i) are contained in
this Agreement, (ii) were known to ACIU at signing, (iii) were available in the following
public registers one Business Day prior to the date of this Agreement:
the registers in the main ledger (Hauptbuch) of the Austrian commercial registry (Firmenbuch) under registration number
FN 240538 h, excluding and without reference to the documents contained in the ledger of documents (Urkundensammlung)
or in the following trademark registers (x) Registry of the European Union Intellectual Property Office (EUIPO), (y) Registry of the World
Intellectual Property Organization (WIPO) (z) Austrian Trademark Register (Österreichisches Markenregister), or (iv) were
Fairly Disclosed to ACIU and/or its advisors;



 


		d)	such liability is resulting from a change in law after Closing;
or



 


		e)	ACIU has received a repayment, set-off or reduction of Taxes
which they would not have received but for the circumstances giving rise to the respective claim.



 


		12.5	Remedies of Affiris



 


		84	The provisions of Section 12.1 (Notice
of Breach (Rügefrist)) to 12.4 (Limitations on Affiris' Liability for Misrepresentation and Breach of Warranty) shall
apply mutatis mutandis with respect to any misrepresentation or breach of warranty by ACIU
under Section 11.2 (Representations and Warranties of ACIU),
except of that Section 12.2 shall explicitly not apply and ACIU shall compensate any
Damage in cash.



 


		12.6	Remedies Exclusive



 


		85	The remedies in this Section 12 (Remedies) for misrepresentations
or breach of warranties under Section 11 (Representations and Warranties) shall be in lieu
of, and not in addition to, the remedies provided by applicable statutory law. All other remedies, including, but not limited to, the
right to rescind this Agreement following Closing,
shall not apply and are hereby explicitly waived and excluded to the greatest extent permissive under applicable law. In particular, and
without limitation to the foregoing, the Parties explicitly waive and exclude any further
claims and remedies irrespective of their nature, amount or legal basis arising out or in connection with this Agreement.
the right of contract rescission and of purchase price reduction under article 205 CO and article 24 CO. For the avoidance of doubt, this
Section 12.6 (Remedies Exclusive) does not exclude articles 28 CO and 199 CO.



 


		86	Should ACIU claim a breach of a representation or warranty of Affiris
(as contained in Section 11.1) because of certain facts, matters, circumstances or
events and should such breach arguably relate to more than one of those representations and warranties with different trigger



 




    22 


     


    

conditions (e.g. one containing
a knowledge qualifier and the other not), then the trigger conditions of the more specific representation and warranty shall also apply
to any other potentially applicable representation or warranty of Affiris.


 


		87	For the avoidance of doubt, the limitations set forth in this Section
12 (Remedies) shall not limit any liability or obligation of Affiris under this Agreement
other than for misrepresentations or breach of warranties under Section 11.1 (Representations
and Warranties of Affiris). Notwithstanding anything to the contrary in this Agreement,
no claim or right of ACIU shall be limited in any way due to the fact that any Party
conducts any investigation (including on site environmental investigations), correctly informs any authority regarding any facts or correctly
follows accounting principles, be it prior or following Closing.



 


		13	Indemnities



 


		13.1	Indemnities by Affiris



 


		88	Affiris shall, with effect from the date of this Agreement
and to the fullest extent permitted by applicable law, indemnify on demand and hold harmless ACIU for any liabilities or expense suffered
or incurred by any of them and resulting from:



 


		89	Any claim made or brought by a Third Party against or with
respect to any obligations, liabilities, contracts or other parts of the business of Affiris
not transferred hereunder, but made or brought against ACIU (including for the avoidance of doubt and to the extent applicable
any claims made on the basis of any statutory provisions prescribing liability for acquirers regarding parts of the business of Affiris
not transferred hereunder); for the avoidance of doubt, Affiris
shall not be liable (and therefore shall not indemnify and hold harmless ACIU) for any claims arising from or in connection with any rights
and assets transferred under or in connection with this Agreement from Affiris
to ACIU;



 


		90	Any claim made or brought by a Third Party under the Advisory
Services Agreement dated 17 October 2019 between Affiris and Lynx Financial, Shanghai, against
ACIU. For the avoidance of doubt, the Parties note that the Advisory Services Agreement
between Affiris and Lynx Financial or any obligations and rights thereunder shall not transfer
to ACIU under this Agreement;



 


		91	Any claim pertaining to Taxes of Affiris
(regardless of whether as primary debtor or based on a secondary liability, as original debtor or successor in each case under
any applicable law).



 


		13.2	Indemnities by ACIU



 


		92	ACIU shall, with effect from the date of this Agreement
and to the fullest extent permitted by applicable law, indemnify on demand and hold harmless Affiris
for any liabilities or expense suffered or incurred by any of them and resulting from:



 


		93	The fact that Affiris has maintained the Transferred
Assets in its own name but on behalf and at the risk of ACIU, i.e. on a fiduciary basis pursuant to Section 9.



 


		94	The performance of the actions under Section 6.3 of this
Agreement.



 


		95	Any claim made or brought by a Third Party against or with
respect to the Transferred Assets, but made or brought against Affiris.



 




    23 


     


    




CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


		14	Covenants



 


		14.1	PIPE Agreement



 


		96	Concurrently with the signing of this Agreement, the Affiris
Shareholders and ACIU will sign an agreement in the form of Annex
4 providing for the Affiris Shareholders to acquire a convertible note issued by ACIU
and convertible into ACIU shares to be issued by ACIU upon terms and conditions of such Pipe Agreement.



 


		14.2	Agreements with Necessary
Vendors



 


		97	With effect as of Closing, Affiris uses its best efforts
to support ACIU in placing work orders to book manufacturing slots with each of the Necessary Vendors
and to agree on contractual terms with the Necessary Vendors for manufacturing services,
either according to the terms and conditions of the master service agreements that each of these Necessary
Vendors has with Affiris, or, if preferable to both ACIU
and the respective Necessary Vendors, such Necessary
Vendor’s terms and conditions.



 


		14.3	Licenses for Affiris



 


		98	Effective upon and subject to Closing, ACIU hereby provides
an irrevocable and non-terminable (except for a termination for good cause) (unwiderruflich und unkündbar) license to Affiris
for the use of the Trademarks, the Know-How
and of the specific Patents derived from the [*****] patent family ("License-Back"),
such License-Back to be strictly limited to
allow Affiris to research, develop and commercialize its [*****] programs ("Affiris
Programs"); for the avoidance of doubt the License-Back may not be used
in a manner which could damage the other Transferred Assets that are not covered by the
license-back. The License-Back will be exclusive
to Affiris (with the right to grant sublicenses) in the field of the Affiris
Programs, fully paid-up, royalty-free (unentgeltlich) and perpetual (except for a material breach of this Agreement
by Affiris). Affiris hereby accepts such license
and undertakes not to challenge the validity of any Programs IP. Affiris
shall be authorized to transfer or sublicense the License-Back to a Third
Party acquirer or licensee of the Affiris Programs without ACIU’s prior consent,
provided that such transfer or sublicense of the License-Back to the acquirer or licensee
will be conditional upon such acquirer or licensee confirming to ACIU in writing that it agrees to practice the License-Back
subject to the conditions provided herein, and that it shall not challenge the validity of any Programs
IP.



 


		99	The Parties shall execute all documents or statements and
give all declarations regarding the rights and licenses granted under and required for Affiris,
its sub-licensees and assignees for the use of the License-Back.



 


		14.4	Covenant of Affiris
regarding ACIU Shares



 


		100	Affiris understands that (i) the ACIU Shares
issuable as Purchase Price hereunder will be issued in a transaction not involving any public
offering within the meaning of the Securities Act and that such ACIU Shares
have not been registered under the Securities Act, (ii) such ACIU Shares
may not be resold, transferred, pledged or otherwise disposed of by Affiris absent an effective
registration statement under the Securities Act, except, subject to the holding period of
the ACIU Shares agreed to between ACIU and the Affiris
Shareholders, (a) to ACIU or a subsidiary thereof, (b) to non-U.S. persons pursuant to offers and sales that occur solely outside
the United



 




    24 


     


    

CERTAIN
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY
TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED
BY THE MARK “[*****]”.


 


States within the meaning of
Regulation S under the Securities Act or (c) pursuant to another applicable exemption from
the registration requirements of the Securities Act, and in each of cases ‎(a),
(b) and ‎(c), in accordance with any applicable securities
laws of the United States and any other jurisdiction, and (iii) such ACIU Shares shall be
subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions
of Rule 144 promulgated under the Securities Act).


 


		101	Affiris hereby undertakes to observe, and to procure that
its beneficial owners observe, respectively, the disclosure requirements for significant shareholdings in accordance with the applicable
securities and corporate laws and any other requirements imposed by applicable laws or regulations in connection with the issuance of
the ACIU Shares.



 


		102	Affiris undertakes not to take any action, and to procure
that none of its affiliates or any person acting on its behalf takes any action, in any
jurisdiction that would constitute a public offering of the ACIU Shares pursuant to any
applicable law or regulation.



 


		14.5	Non-Competition / Non-Solicitation



 


		103	Affiris hereby undertakes for a period of [*****] years
from Closing, not to directly or indirectly, be it as principal, employee, consultant or
otherwise



 


		i)	compete with ACIU with regard to the Programs,
including, for clarity, with regard to Targets in any way;



 


		ii)	invest in, or lend money to, any Third
Party directly or indirectly competing with ACIU (other than investments in a listed company not exceeding 5% of its voting rights);



 


		iii)	solicit or entice away any employee, customer, supplier or
other business partner of ACIU or discourage any Third Party from doing business with ACIU;
or



 


		iv)	assist any Third Party
in doing, or facilitate, any of the above.



 


		15	Procedure for Third Party claims



 


		104	In case of any claim brought or threatened by a Third Party,
including claims brought by any public authority, against one Party (such Party
the "Indemnified Party") which is subject to an obligation of indemnification
by the other Party under this Agreement in
accordance with Sections 11-13 of this Agreement,
the Indemnified Party shall give the other Party
immediately (but in no event later than 7 (seven) Business Days after becoming aware of
the relevant facts, matters, circumstances or events) a written notice describing the claim of a Third
Party in detail, including copies of all material written evidence thereof and indicating the estimated amount of Damage
of such Third Party claim or proceeding. Failure to give such notice shall not, however,
affect the Indemnified Party's right to indemnification except to the extent the other Party
is prejudiced by such failure. No admissions in relation to such claim of a Third Party
shall be made by or on behalf of the Indemnified Party and the claim of such Third
Party shall not be compromised, disposed of or settled without the prior written consent of the respective other Party.



 


		105	The other Party shall then have twenty (20) Business
Days after receipt of such notice to notify the Indemnified Party that it elects
to conduct and control the defense of such Third Party claims (the "Notice
of Defense"). If the other Party does not give a Notice
of Defense, the Indemnified Party shall have the right to defend or settle such claims
or proceedings in its exclusive discretion



 




    25 


     


    

and the other Party
shall, upon request from the Indemnified Party, promptly indemnify the Indemnified
Party.


 


		16	Miscellaneous provisions



 


		16.1	Announcements



 


		106	The Parties have agreed upon the content of the press releases
set forth in Annex 6 hereto, each of which shall be issued substantially
in the forms attached hereto as Annex 6, the release of which the Parties
shall coordinate in order to accomplish such release promptly upon execution of this Agreement.
Neither Party shall issue any other public announcement, press release or other public disclosure
regarding this Agreement or its subject matter without the other Party’s
prior written consent, except for any such disclosure that is, in the opinion of the disclosing Party’s
counsel, required by applicable law or the rules of a stock exchange on which the securities of the disclosing Party
are listed.



 


		16.2	Costs



 


		107	Unless otherwise expressly agreed between the Parties, each
Party shall bear its own costs incurred in relation to this Agreement
and the Transfer (including fees of attorneys, experts and advisors).



 


		108	All documented costs and expenses in connection with the transfer of the Transferred
Assets and the Programs (such as for IP, data, documents, information and materials,
but, for the avoidance of doubt, excluding any fees of attorneys, experts and advisors) exceeding EUR 10'000 (Euro ten thousand)
shall be borne by ACIU after pre-approval of such costs and expenses exceeding EUR 10'000 (Euro ten thousand) by ACIU.



 


		16.3	Taxes



 


		109	Each Party shall bear all Taxes
for which it is liable under applicable law incurred in connection with the Transfer or
any part thereof.



 


		110	This Agreement is established outside of Austria and the
Parties commit not to set actions that would trigger Austrian stamp duty, except in case
required to prove genuity of the document by official authorities or courts or in case genuity of the document is disputed by another
Party. Any possible Austrian stamp duty shall be borne equally by the Parties.



 


		111	The Parties agree that the Swiss stamp duty on the issuance
of the ACIU Shares (Emissionsabgabe) shall be borne by ACIU.



 


		112	All sums payable under this Agreement are (unless expressly
stated otherwise) exclusive of any applicable VAT.



 


		16.4	Amendments and modifications



 


		113	This Agreement, including this Section
16.4, may only be amended or modified by a document in writing duly executed by the Parties
(and, if required, notarized in a public deed, but only if the amendments or modifications relate to parts of this Agreement
which mandatorily require to be notarized in a public deed).



 




    26 


     


    

		16.5	Entire Agreement



 


		114	This Agreement together with its Annexes
and all documents and agreements it refers to constitutes the entire agreement between the Parties
with respect to the subject matter of this Agreement and shall replace all other prior agreements
or understandings of the Parties relating thereto.



 


		16.6	Transfer and assignment



 


		115	No Party may transfer or assign, in whole or in part, this
Agreement or any of its rights or obligations under this Agreement
to any person without the prior written consent of the other Party, which shall not be unreasonably
withheld. Any transfer or assignment made without such approval shall be null and void.



 


		116	However, notwithstanding the above, after Registration ACIU
may assign or otherwise transfer this Agreement or its rights or obligations under this
Agreement, in whole or in part, without Affiris’
consent (a) in connection with the transfer or sale of all or substantially all of the assets of ACIU to a Third
Party, whether by merger, sale of stock, sale of assets or otherwise, provided that such Third
Party agrees to be bound by, and assumes and succeeds to, all of the obligations of ACIU under this Agreement
or (b) to an Affiliate, in each case provided that ACIU shall remain liable and responsible
to Affiris for the performance and observance of all obligations under this Agreement
by such Affiliate or such Third Party (as
the case may be).



 


		16.7	Severability



 


		117	If a provision of this Agreement should be or become invalid
in whole or in part, or if one or several of the Transferred Assets could not be transferred,
or if this Agreement should contain contractual gaps, this shall not affect the validity
of the remaining provisions. In lieu of the invalid provision, such reasonable provision shall apply which, as far as legally permissible,
best reflects the Parties' intentions. For the purpose of filling a contractual gap such
reasonable provision shall apply which the Parties would have intended in view of the scope
and purpose of this Agreement had they considered the issue.



 


		16.8	Notices



 


		118	All notices in connection with this Agreement shall be given
to the following addresses, or to such other address outside of Austria as communicated by either Party
from time to time:



 


		119	All notices, requests or other communications to be given to any Party
under or in connection with this Agreement shall be made in writing and shall be delivered
by (i) registered mail (return receipt requested), (ii) an internationally recognized courier, such as Federal Express, DHL or UPS, or
(iii) by e-mail to the following addresses:



 




    27 


     


    

	If to Affiris:	
    Affiris AG

    

    c/o MLL Meyerlustenberger Lachenal Froriep AG 

    Attn. Andrea Sieber, lic. iur. HSG, LL.M.

    

    Schiffbaustrasse 2 

    CH-8031 Zürich

     

    Email: Andrea.Sieber@mll-legal.com

    

	 	 
	If to ACIU	
    AC Immune SA 

    Attn. Prof. Andrea Pfeifer, PhD

    

    EPFL
Innovation Park, bâtiment B 

    CH-1015 Lausanne

     

    E-Mail: Andrea.Pfeifer@acimmune.com

    

	 	 
	with a copy to:	
    Bär & Karrer AG

    

    Attn. Prof. Dr. Rolf Watter 

    Brandschenkestrasse 90

    

    CH-8027 Zurich 

     

    E-Mail: rolf.watter@baerkarrer.ch

    

	 	 


or such other address as any
of the Parties may notify to the other Parties
in accordance with the above.


 


		91	Notices shall be deemed delivered and effective at the date of personal delivery, deposition in the mail
or with the courier or successful transmission of an e-mail addressed as set forth above.



 


		17	Governing Law and Jurisdiction



 


		17.1	Governing law



 


		92	This Agreement
and the legal relationships established by or otherwise arising out or in connection with this Agreement
shall be governed by and construed in accordance with the substantive laws of Switzerland (to the exclusion of Swiss private international
law and of international treaties, in particular, the Vienna Convention on the International Sale of Goods dated 11 April 1980).



 


		17.2	Jurisdiction



 


Except as otherwise provided in this Agreement,
any dispute, controversy or claim arising out of or in connection with this Agreement, including
disputes on its conclusion, binding effect, amendment and termination, shall be exclusively resolved by the ordinary courts of Zurich
venue 1.


 


(Signatures on next page)


 




    28 


     


    

Signatures 


	 	 	 
	 	 	 
	 	 	 
	Affiris AG
	 	 	 
	 	 	 
	
    Name: Philipp Falk

    

    Place: Zürich 
	 	 
	 	 	 
	 	 	 
	 	 	 
	AC Immune SA 
	 	 	 
	 	 	 
	
    Name: Andrea Pfeifer

    

    Place: Lausanne 
	 	
    Name: Martin Velasco

    

    Place: Lausanne