DBV Technologies S.A 8-K, filed Jun 13, 2022
DBV Technologies S.A. (DBVT)
About this 8-K
DBV Technologies S.A filed this 8-K on June 13, 2022, reporting on events of June 8, 2022.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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| n/a | * | |||
* Not for trading, but only in connection with the listing of the American Depositary Shares on The Nasdaq Stock Market LLC.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
Securities Purchase Agreement
On June 8, 2022, DBV Technologies S.A. (the “Company”) entered into a securities purchase agreement (the “Securities Purchase Agreement”) with the investors named therein (each an “Investor,” and together, the “Investors”), pursuant to which the Company agreed to issue and sell to the Investors in a private placement (the “Private Placement”) (i) 32,855,669 ordinary shares (the “Purchased Shares”), of the Company’s ordinary shares, nominal value €0.10 per share (the “Ordinary Shares”) at a price per Ordinary Share of €3.00 (corresponding to $3.22 on the basis of an exchange rate of $1.0739 = €1.00 published by the European Central Bank on June 8, 2022), and (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase an aggregate of 28,276,331 Ordinary Shares (the “Warrant Shares”) at a pre-funded price per pre-funded warrant of €2.90 (corresponding to $3.11), which equals the per share price of the Ordinary Shares less the exercise price of €0.10 per Pre-Funded Warrant. Each Pre-Funded Warrant has an exercise price of €0.10 per Warrant Share. The Pre-Funded Warrants are exercisable at any time after their original issuance and will expire ten years following their issuance.
The Pre-Funded Warrants issued in the Private Placement provide that the holder of the Pre-Funded Warrants will not have the right to exercise any portion of its Pre-Funded Warrants if such holder, together with its affiliates, would beneficially own in excess of 9.99% of the number of Ordinary Shares outstanding immediately after giving effect to such exercise (the “Beneficial Ownership Limitation”). The holder may increase or decrease the Beneficial Ownership Limitation, provided, however, that the holder may only increase the Beneficial Ownership Limitation by (i) obtaining authorization from the French Ministry of Economy in the event the Beneficial Ownership Limitation is being raised above 9.99%, and (ii) by providing 61 days’ notice to the Company, except that in no event will the Beneficial Ownership Limitation exceed 19.99%.
The Private Placement closed on June 13, 2022. The Company received aggregate gross proceeds from the Private Placement of approximately $194 million, before deducting private placement expenses payable by the Company.
The foregoing descriptions of the Securities Purchase Agreement, the Purchased Shares and the Pre-Funded Warrants do not purport to be complete and are qualified in their entirety by reference to the Securities Purchase Agreement, a copy of which is filed as Exhibit 10.1 hereto, and incorporated by reference herein.
Registration Rights Agreement
On June 8, 2022, the Company also entered into a registration rights agreement (the “Registration Rights Agreement”) with the Investors, pursuant to which the Company agreed to register the Purchased Shares and Warrant Shares for resale (together, the “Registrable Securities”). Under the Registration Rights Agreement, the Company has agreed to file a registration statement covering the resale of the Registrable Securities by no later than August 12, 2022 (the “Filing Deadline”) and to use commercially reasonable efforts to cause such registration statement to be declared effective as soon as practicable, but no later than October 11, 2022 (the “Effectiveness Deadline”). The Company also agreed to use commercially reasonable efforts to keep such registration statement effective until the date the Registrable Securities covered by such registration statement have been sold or may be resold pursuant to Rule 144 without restriction. The Company has agreed to be responsible for all reasonable fees and expenses incurred in connection with the registration of the Registrable Securities.
In the event (i) the registration statement has not been filed by the Filing Deadline, (ii) the registration statement has not been declared effective prior to the earlier of (A) 10 business days after the date which the Company is notified by the U.S. Securities and Exchange Commission (the “SEC”) that the registration statement will not be reviewed by the SEC staff or is not subject to further comment by the SEC staff and (B) the Effectiveness Deadline, or (iii) after the registration statement has been declared effective by the SEC, sales cannot be made pursuant to the registration statement for any reason (including by reason of a stop order or the Company’s failure to update such registration statement), subject to certain limited exceptions, then the Company has agreed to make pro rata payments to the Investor as liquidated damages in an amount equal to 1% of the aggregate amount paid by the Investors pursuant to the Securities Purchase Agreement per 30-day period or pro rata for any portion thereof following the date by which such registration statement should have been filed or effective, as applicable, subject to certain caps set forth in the Registration Rights Agreement.
The Company has granted the Investors customary indemnification rights in connection with the registration statement. The Investors have also granted the Company customary indemnification rights in connection with the registration statement.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the Registration Rights Agreement, a copy of which is filed as Exhibit 10.2 hereto and incorporated by reference herein.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 relating to the Private Placement is hereby incorporated by reference into this Item 3.02. None of the Purchased Shares, the Pre-Funded Warrants or the Warrant Shares are registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. The Company has relied on the exemption from the registration requirements of the Securities Act by virtue of Section 4(a)(2) thereof. In connection with the Investors’ execution of the Securities Purchase Agreement, each Investor represented to the Company that it is either an “accredited investor” as defined in Regulation D of the Securities Act or a “qualified institutional buyer” as defined in Rule 144A of the Securities Act and that the Purchased Shares and the Pre-Funded Warrants purchased by it were acquired solely for its own account and for investment purposes and not with a view to the future sale or distribution.
Neither this Current Report on Form 8-K nor any exhibit attached hereto is an offer to sell or the solicitation of an offer to buy Ordinary Shares or other securities of the Company.
| Item 8.01 | Other Events. |
On June 9, 2022, the Company issued a press release announcing the Private Placement. A copy of the press release is attached as Exhibit 99.1 hereto and is incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
Description | |
| 4.1 | Terms and Conditions of the Pre-Funded Warrant (incorporated by reference to Annex II of the Securities Purchase Agreement filed as Exhibit 10.1 hereto) | |
| 10.1* | Securities Purchase Agreement, dated June 8, 2022, by and between DBV Technologies S.A. and the investor parties thereto | |
| 10.2 | Registration Rights Agreement, dated June 8, 2022, by and between DBV Technologies S.A. and the investor parties thereto | |
| 99.1 | Press Release, dated June 9, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
| * | Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: June 13, 2022 | DBV TECHNOLOGIES S.A. | |||||
| By: | /s/ Sébastien Robitaille | |||||
| Name: | Sébastien Robitaille | |||||
| Title: | Chief Financial Officer | |||||
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
DBV TECHNOLOGIES S.A.
177-181 avenue Pierre Brossolette
92120 Montrouge
France
The undersigned (the “Subscribers”) hereby confirm their agreement with you as follows:
| 1. | This Securities Purchase Agreement (the “Agreement”) is made as of the date set forth below between DBV Technologies S.A., a societé anonyme organized under the laws of the French Republic, with a share capital of € 6.116.391,00 consisting of 61,163,910 shares of €0.10 nominal value each and a registered office at 177-181 avenue Pierre Brossolette, 92120 Montrouge, France, registered with the Commerce and Companies Registry (Registre du commerce et des sociétiés) of Nanterre under the number 441 722 522, the ordinary shares of which are listed on Euronext Paris – ISIN FR0010417345 and on the Nasdaq Global Select Market (“Nasdaq”) in the form of American Depositary Shares (the “Company”), and the Subscribers set forth in Schedule I to this Agreement. |
| 2. | Each Subscriber wishes to purchase, severally and not jointly, and the Company wishes to issue, upon the terms and conditions stated in this Agreement (the “Reserved Issuance”) and in accordance with the amounts set forth in Schedule I opposite the name of the Subscribers, without preferential subscription rights to specified categories of investors (i) ordinary shares, nominal value €0.10 per share (each, a “Share”), and (ii) pre-funded warrants, each such warrant to purchase one Share (each, a “Warrant”), whose terms and conditions (the “Terms and Conditions of the Warrant”) are attached hereto as Annex I (as exercised, collectively the “Warrant Shares”), pursuant to the 18th resolution of the combined general meeting of the shareholders of the Company held on May 12, 2022 (the “18th Resolution”). The Shares and Warrants shall be subscribed for pursuant to, and the manner of settlement shall be as set forth in, the Terms and Conditions for Subscription of the Shares and Warrants attached hereto as Annex I and incorporated herein by this reference as if fully set forth herein. |
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Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| Agreed and accepted June 8, 2022: | ||
| DBV TECHNOLOGIES S.A. | ||
| By: | /s/ Daniel Tassé | |
| Name: Daniel Tassé | ||
| Title: Chief Executive Officer (Directeur général) | ||
2
Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| 667, L.P. | ||
| BY: BAKER BROS. ADVISORS LP, management company and investment adviser to 667, L.P., pursuant to authority granted to it by Baker Biotech Capital, L.P., general partner to 667, L.P., and not as the general partner. | ||
| By: | /s/ Scott Lessing | |
| Print Name: Scott Lessing | ||
| Title: President | ||
| Address: c/o Baker Bros. Advisors, 860 Washington St., 3d Floor, New York, NY 10014, United States | ||
| BAKER BROTHERS LIFE SCIENCES, L.P. | ||
| By: BAKER BROS. ADVISORS LP, management company and investment adviser to Baker Brothers Life Sciences, L.P., pursuant to authority granted to it by Baker Brothers Life Sciences Capital, L.P., general partner to Baker Brothers Life Sciences, L.P., and not as the general partner. | ||
| By: | /s/ Scott Lessing | |
| Print Name: Scott Lessing | ||
| Title: President | ||
| Address: c/o Baker Bros. Advisors, 860 Washington St., 3d Floor, New York, NY 10014, United States | ||
3
Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| BPIFRANCE PARTICIPATIONS | ||
| By: | /s/ Mailys Ferrere | |
| Name: Mailys Ferrere | ||
| Title: Directrice Pôle Investissement Large Venture Authorised Signatory | ||
| Address: 27-31 avenue du Général Leclerc 94710 Maisons-Alfort Cedex France | ||
4
Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| Braidwell Partners Master Fund LP | ||
| By its Investment Manager, Braidwell LP | ||
| /s/ Colin Bettison | ||
| Colin Bettison | ||
| Head of Finance & Operations | ||
| /s/ Manish K. Mital | ||
| Manish K. Mital | ||
| Chief Operating Officer & General Counsel | ||
5
Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| FAIRMOUNT HEALTHCARE FUND L.P. | ||
| By: | /s/ Peter Harwin | |
| Print Name: Peter Harwin | ||
| Title: Managing Member, authorized agent of Subscriber | ||
| Address: | ||
| c/o Fairmount Funds Management LLC 2001 Market Street | ||
| Suite 2500 | ||
| Philadelphia, PA 19103 | ||
| FAIRMOUNT HEALTHCARE FUND II L.P. | ||
| By: | /s/ Peter Harwin | |
| Print Name: Peter Harwin | ||
| Title: Managing Member, authorized agent of Subscriber | ||
| Address: | ||
| c/o Fairmount Funds Management LLC | ||
| 2001 Market Street Suite 2500 | ||
| Philadelphia, PA 19103 | ||
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Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| Invus Public Equities, L.P. | ||
| By: | /s/ Khalil Barrage | |
| Print Name: Khalil Barrage | ||
| Title: Vice President of the General Partner | ||
| Address: | ||
| 750 Lexington Ave, 30th Floor | ||
| New York, NY 10022 | ||
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Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| RA CAPITAL HEALTHCARE FUND, L.P. | ||
| By: RA Capital Healthcare Fund GP, LLC | ||
| Its: General Partner | ||
| By: | /s/ Peter Kolchinsky | |
| Print Name: Peter Kolchinsky | ||
| Title: Manager, authorized agent of Subscriber | ||
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Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| VENROCK HEALTHCARE CAPITAL PARTNERS EG, L.P. | ||
| By: VHCP Management EG, LLC, its general partner | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: Authorized Signatory | ||
| VENROCK HEALTHCARE CAPITAL PARTNERS III, L.P. | ||
| By: VHCP Management III, LLC, its general partner | ||
| By:VR Advisor, LLC, its manager | ||
| VHCP CO-INVESTMENT HOLDINGS III, LLC | ||
| By: VHCP Management III, LLC, its manager | ||
| By: VR Advisor, LLC, its manager | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: | Authorized Signatory | |
| VENROCK HEALTHCARE CAPITAL PARTNERS II, L.P. | ||
| By: VHCP Management II, LLC, its general partner | ||
| By:VR Advisor, LLC, its manager | ||
| VHCP CO-INVESTMENT HOLDINGS II, LLC | ||
| By: VHCP Management II, LLC, its manager | ||
| By: VR Advisor, LLC, its manager | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: | Authorized Signatory | |
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Please confirm that Schedule I correctly sets forth the agreement between the Company and the Subscribers by signing in the space provided below for that purpose.
Dated as of: June 8, 2022
| Vivo Opportunity Fund Holdings, L.P. | ||
| By: Vivo Opportunity, LLC, General Partner | ||
| By: | /s/ Gaurav Aggarwal | |
| Name: Gaurav Aggarwal | ||
| Title: Managing Member | ||
| Address: 192 Lytton Ave. Palo Alto, CA 94301 | ||
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ANNEX I
TERMS AND CONDITIONS FOR SUBSCRIPTION OF THE SHARES AND WARRANTS
| 1. | Authorization and Issue of the Shares and Warrants |
Subject to the terms and conditions of this Agreement, the Company has duly authorized the issue of the number of Shares and Warrants in Schedule I. Each Warrant shall entitle the Subscribers to subscribe for one (1) new Share of the Company at a subscription price of €0. 10 per Share.
The Company will cause the listing of the Shares, including the Shares to be issued upon exercise of the Warrants, on Euronext Paris (“Euronext”) on or prior to the Closing Date.
| 2. | Agreement to Issue and Subscribe for the Shares and Warrants – Placements Agents |
| 2.1 | The Shares and Warrants are being or will be offered (i) in the United States of America, to a limited number of investors who have represented that they are “qualified institutional buyers” (“QIB”) within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”) or institutional “accredited investors” within the meaning of Rule 501(a) under the Securities Act, pursuant to the exemption from registration under Regulation D of the Securities Act; and, as the case may be, (ii) outside of the United States of America (A) in the European union (including in France), to specified categories of investors under the provisions of Article L.225-138 of the French Commercial Code and which qualify as “qualified investors” within the meaning of Article 2(e) of the Prospectus Regulation (EU) 2017/1129 (the “Prospectus Regulation”) and (B) outside of the European Union (and outside of Canada, Australia and Japan), pursuant to applicable private placement exemptions, all in reliance on Regulation S under the Securities Act. |
| 2.2 | At the Closing Date, the Company will issue and sell to the Subscribers, and the Subscribers will subscribe from the Company, upon the terms and conditions set forth herein, (i) the number of Shares set forth opposite the name of such Subscriber under the heading “Number of Ordinary Shares to be Purchased” on the Schedule I in exchange for consideration equal to €3.00 per Share and (ii) the number of Warrants set forth opposite the name of such Subscriber under the heading “Number of Warrants to be Purchased” on Schedule I, each exercisable for one Share, in exchange for consideration equal to €2.90 per Share subject to such Warrant. |
| 2.3 | The Subscribers acknowledge that the Company intends to pay Goldman Sachs Bank Europe SE and SVB Securities LLC (the “Placement Agents”) a fee in connection with the Reserved Issuance, pursuant to an engagement letter entered into by the Company and the Placement Agents. |
| 2.4 | All representations and warranties, covenants and agreements made or given by the Company to the Subscribers herein, and specifically as made or given in this Annex I, are also irrevocably made and given for the benefit of the Placement Agents and that the Placement Agents are entitled to rely on the same in connection with the Reserved Offering. |
| 3. | Closings and Delivery of the Shares and Warrants and Funds |
| 3.1 | Closing |
The time and date of closing shall be at 11 A.M., Paris Time, on June 13, 2022, or such later date after such date (the “Closing Date”) as agreed by the Company and the Subscribers.
The Company has appointed Société Générale Securities Services as “banque centralisatrice” and “dépositaire” (the “Centralizing Bank”) to receive the subscriptions and payment for the subscription of the Shares and Warrants in accordance with Section 3.3 below.
| 3.2 | (a) Conditions to the Company’s Obligations |
The Company’s obligation to issue the Shares or Warrants, as applicable, to each Subscriber will be subject to the receipt of: (i) the subscription price for the Shares and Warrants being subscribed for hereunder as set forth on Schedule I and (ii) the accuracy of the representations and warranties made by such Subscriber and the fulfillment of those undertakings of such Subscriber to be fulfilled prior to the date of the Closing Date.
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| (b) | Conditions to Each Subscriber’s Obligations |
Each Subscriber’s obligation to subscribe for the Shares or Warrants, as applicable, will be subject to the following conditions precedent: (i) approval of the French Financial Markets Authority (Autorité des marchés financiers) (the “AMF”) on the Listing Prospectus (as defined in Section 4.5), (ii) publication of the Euronext notice relating to the listing of the Shares, (iii) accuracy of the representations and warranties made by the Company and the fulfillment of the undertakings of the Company to be fulfilled prior to the Closing Date (iv) execution and delivery of the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the Subscribers, in substantially the form set forth on Exhibit IV and (v) delivery of legal opinions of Cooley LLP and McDermott Will & Emery AARPI, legal counsels to the Company, in a form reasonably acceptable to the Subscribers.
| (c) | Conditions to Either Party’s Performance |
The Company’s and each Subscriber’s obligation to issue and subscribe for, respectively, the Shares or Warrants, as applicable, will be subject to the following condition precedent: no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the subscription of the Shares or Warrants.
| 3.3 | Delivery of the funds |
| a) | No later than two (2) business days following date on which this Agreement is executed, each Subscriber shall wire transfer in Euros such Subscriber’s aggregate subscription price, with value date on the Closing Date, to the “augmentation de capital” bank account opened in the books of the Centralizing Agent in the name of the Company set forth in Exhibit III hereto and shall notify the Company of (i) the account from which the aggregate subscription price will be wired to the account of the Company opened in the books of the Centralizing Bank, and (ii) the account opened in the name of the Subscriber and to which the Shares or Warrants, as applicable, will be credited by the Centralizing Bank. Such notification shall be effected using the Form of Notice set forth in Exhibit II hereto. |
| b) | Prior to the Closing Date, the Company shall have furnished to the Subscribers such other further information, certificates and documents as the Subscribers may reasonably request for the purposes of subscribing for the Shares and Warrants. Prior to the Closing Date, the Subscribers shall have furnished to the Company such other further information, certificates and documents as the Company may reasonably request for the purposes of issuing the Shares and Warrants. |
| 3.4 | Delivery of Shares and Warrants |
On the Closing Date, subject to and upon receipt of the aggregate subscription amount of the Reserved Issuance on the Closing Date and the issuance of the depositary certificate (certificat du dépositaire des fonds) required by Article L. 225-146 of the French Commercial Code by the Centralizing Bank, all of the Shares and Warrants subscribed in accordance with Schedule I will be created and registered, and such process shall be fully completed no later than close of business on the Closing Date. All such Shares and Warrants shall be delivered by the Centralizing Bank to each Subscriber to the respective accounts specified by the Subscribers pursuant to Section 3.3(a).
| 4. | Representations, Warranties and Covenants of Each Subscriber |
| 4.1 | Each Subscriber represents and warrants to, and covenants with, the Company that: |
| (a) | Such Subscriber: |
| (i) | regularly invests in the pharmaceutical, biotechnological or medical technologies sectors, as the case may be; and |
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| (ii) | is either (i) an “accredited investor” as defined in Rule 501 of Regulation D of the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act; |
| (b) | Such Subscriber is knowledgeable, sophisticated and experienced in financial, business and international investment matters as to be capable of evaluating the merits and risks of purchasing the Shares and Warrants and such Subscriber is experienced in investing in securities of this nature. Such Subscriber has relied on its own independent examination and due diligence of the Company and its subsidiaries, the terms of the Reserved Issuance, the representations, warranties and covenants of the Company as disclosed below in Section 5, and the merits and risks involved. Such Subscriber has: (i) made Subscriber’s own assessment, to Subscriber’s satisfaction, concerning legal, regulatory, tax, business and financial considerations in connection with the Reserved Issuance, (ii) had access to review all publicly available information concerning the Company and its subsidiaries that they consider necessary or appropriate and sufficient in making an investment decision, (iii) reviewed such information as they believe are necessary or appropriate in connection with Subscriber’s purchase of the Shares and Warrants and (iv) made Subscriber’s investment decision based solely upon Subscribers own judgement, due diligence and analysis, and the representations, warranties and covenants of the Company. |
| (c) | Such Subscriber is acquiring its number of Shares and Warrants, as applicable, set forth opposite its name on Schedule I in the ordinary course of Subscribers business and for Subscriber’s own account for investment only and with no present intention of distributing any of such Shares or Warrants, as applicable, or any arrangement or understanding with any other persons regarding the distribution of such Shares or Warrants; provided however, that such Subscriber does not agree, or make any representation or warranty, to hold the Shares or Warrants, as applicable, for any minimum or other specified term. |
| (d) | Such Subscriber will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares or Warrants, as applicable, except in compliance with the laws of France, the Securities Act, and applicable state securities laws and the respective rules and regulations promulgated thereunder. |
| (e) | Such Subscriber’s information on the Signature Page hereto may be used in connection with the admission to trading and listing of the Shares on Euronext and the information thereon is true and correct as of the date hereof and will be true and correct as of the Closing Date. |
| (f) | Such Subscriber will notify the Company immediately if any of the representations, warranties or undertakings set forth in Section 4.1(a) through (e) become no longer true until such time as the Shares become listed on the regulated market of Euronext or when such Subscriber has sold all of its Shares, whichever occurs first. |
| (g) | Such Subscriber has, in connection with Subscriber’s decision to purchase the number of Shares and Warrants set forth opposite its names in Schedule I, relied only upon (i) information made available by the Company or its affiliates, directors, officers, employees, financial advisors, and agents (collectively, its “Representatives”) to such Subscriber, including without limitation, the representations and warranties contained in Exhibit I attached hereto, (ii) the URD (as defined below in 4.5) incorporating the annual financial statements for the year ended December 31, 2021, and (iii) the SEC Filings (as defined below) (the SEC Filings together with the URD, the “Disclosure Materials”). Such Subscriber acknowledges that certain Disclosure Materials, including those available on the Company’s website or elsewhere in the public domain, have been published only in French. Such Subscriber has carefully considered the potential risks relating to the Company and a purchase of the Shares and Warrants, and fully understands that the Shares and Warrants are speculative investments which involve a high degree of risk of loss of such Subscriber’s entire investment. |
| (h) | Such Subscriber acknowledges that they are not relying upon, and have not relied upon, any statement, representation or warranty made by the Placement Agents, any of their respective affiliates or any of their respective control persons, officers, directors and employees in making such Subscribers investment or decision to invest in the Company. Such Subscriber agrees that no Placement Agent shall be liable to such Subscriber for any action heretofore or hereafter |
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| taken or omitted to be taken by any of them or have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by such Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to such Subscriber, or to any person claiming through such Subscriber, in respect of the transactions contemplated by this Agreement. Such Subscriber hereby acknowledges and agrees that (a) each Placement Agent is acting solely as the Company’s placement agent in connection with the transactions contemplated by this Agreement and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for such Subscriber, the Company or any other person or entity in connection with the transactions contemplated by this Agreement, (b) no Placement Agent has made or will make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the transactions contemplated by this Agreement, and (c) no Placement Agent will have any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the transactions contemplated by this Agreement or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the transactions contemplated by this Agreement. |
| (i) | Such Subscriber is able to bear the economic risk of loss of such investment, including the complete loss of such investment. Such Subscriber further represents that they have previously invested in securities similar to those as the Shares and Warrants and fully understands the limitations on transfer and restrictions on sales and other dispositions set forth in this Agreement. |
| (j) | Such Subscriber is not purchasing the Shares or Warrants, as applicable, as a result of any advertisement, article, notice or other communication regarding the Shares and Warrants published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to such Subscriber’s knowledge, any other general solicitation or general advertisement. |
| 4.2 | Each Subscriber further represents, warrants, acknowledges and agrees that, if such Subscriber is acting on behalf of investment funds or other legal entities managed or advised by it, the representations made under Section 4 shall also apply to each such fund or legal entity and such Subscriber shall further ensure compliance thereof by each such fund or entity in connection with the initial distribution of the Shares and Warrants. |
| 4.3 | Such Subscriber acknowledges that there may be certain consequences under U.S. and other tax laws resulting from an investment in the Shares and Warrants and will make such investigations and consult such tax and other advisors with respect thereto as they deem appropriate and prior to purchasing the Shares or Warrants, as applicable, they will have satisfied itself, without limitation, concerning the effects of U.S. federal, state and local income tax laws and foreign tax laws concerning Subscribers investment in the Shares and Warrants. Such Subscriber understands that nothing in this Agreement or any other materials presented to such Subscriber in connection with the subscription and sale of the Shares and Warrants constitutes legal, tax or investment advice. |
| 4.4 | Such Subscriber acknowledges that, prior to the execution and delivery of this Agreement to the Company, such Subscribers have had adequate time to review the Disclosure Materials prior to making Subscriber’s decision to purchase the Shares or Warrants, as applicable, and has had a full opportunity to ask questions of and receive answers from the Company or any person or persons acting on behalf of the Company concerning the terms and conditions of an investment in the Company. Such Subscriber further acknowledges that any such information consisting of financial estimates, projected financial information and other forward-looking information provided by the Company or its affiliates or representatives is based on a number of assumptions and estimates that are inherently subject to significant business, economic and competitive risks, uncertainties and contingencies which are beyond the control of the Company, and that it is understood that such projections, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such projections may differ significantly from the projected results and that such difference may be material and that such projections are not a guarantee of financial performance. |
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| 4.5 | Such Subscriber acknowledges that the Company has for the purpose of listing the Shares (including the Shares issuable upon exercise of the Warrants) on the regulated market of Euronext, prepared with the AMF a French-language prospectus consisting of (i) the universal registration document, which was filed with the AMF on March 9, 2022 under the number D.22-0081 (document d’enregistrement universel) (the “URD”), as amended by an amendment which is to be filed with the AMF on June 9, 2022 (the “Amendment to the URD” and together with the URD, the “2021 URD”) (ii) a securities note (Note d’opération) (the “Note d’Opération”) and (iii) a summary of such listing prospectus (included in the Note d’Opération) (collectively, the “Listing Prospectus”), which is expected to receive the approval (approbation) of the AMF on June 9, 2022. |
| 4.6 | Such Subscriber acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction, including the Republic of France, which would permit a public offering of the Shares and Warrants (other than to such Subscriber), or possession or distribution of offering materials in connection with the issue of the Shares and Warrants in any jurisdiction where action for that purpose is required. Each Subscriber will comply with all applicable laws and regulations in each jurisdiction in which it subscribes, offers, sells or delivers Shares or Warrants, as applicable, or has in its possession or distributes any offering material, in all cases at its own expense. |
| 4.7 | Such Subscriber further represents and warrants to, and covenants with, the Company that (a) such Subscriber has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of such Subscriber enforceable against such Subscriber in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). |
| 4.8 | Such Subscriber understands that (a) its acquisition of the Shares (or the Warrant Shares) has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, and (b) that the Shares (or the Warrant Shares) therefore cannot be resold in the United States unless they are registered under the Securities Act or disposed of pursuant to a valid exemption from the registration requirements of the Securities Act. Such Subscriber further understands that no public offering has been conducted in France with respect to the Shares (or the Warrants) and the Shares (and the Warrant Shares) have not yet been approved for admission to trading or listed on the regulated market of Euronext. |
| 4.9 | Such Subscriber represents and warrants that the subscription price will not be derived from sources prohibited under the OFAC Programs (as defined below) and that the operations of such Subscriber is, and have been conducted at all times, in compliance with applicable financial record keeping and reporting requirements of the anti-money laundering laws and regulations of United States. |
| 4.10 | Such Subscriber (to the exception of BpiFrance Participations SA and FPCI Innobio which are deemed “in concert”) does not act “in concert” (within the meaning of Article L233-10 of the Code of Commerce) with any Company’s shareholder or third party. |
| 4.11 | Such Subscriber represents and warrants that they have not offered, sold, contracted to sell, pledged or otherwise disposed of, and has not engaged in any short selling of the Company’s Shares and Warrants, or established or increased any “put equivalent position” as defined in rule 16(a) - 1(h) under the Exchange Act of 1934, as amended (the “Exchange Act”), with respect to the Company’s Shares and Warrants for the longer of (i) the past 10 Trading Days or (ii) since such Subscriber became aware of the Reserved Issuance. |
| 4.12 | Such Subscriber acknowledges that certificates evidencing the Shares and Warrant Shares shall bear a restrictive legend in substantially the following form (and including related stock transfer instructions and record notations): |
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR
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IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY.
| 4.13 | Such Subscriber’s offices in which Subscriber’s investment decision with respect to the Company’s Shares or Warrants, as applicable, was made are in the jurisdiction set forth immediately below such Subscriber’s name on the signature pages hereto. |
| 4.14 | Such Subscriber has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act. |
| 5. | Representations, Warranties and Covenants of the Company |
| 5.1 | The Company represents and warrants to, and covenants with, the Subscribers that: |
| (a) | (A) The shareholders of the Company, at the Extraordinary General Meeting of Shareholders of May 12, 2022 waived their preferential subscription rights in favor of certain investors who: (i) natural person(s) or legal entity(ies), including companies, trusts, investment funds or other investment vehicle(s), regardless of their form, under French or foreign law, investing on a regular basis in the pharmaceutical, biotechnological or medical technology sector, and/or (ii) French or foreign companies, institutions or entities of any form, carrying out a significant portion of their business in these sectors or in the cosmetics or chemical sector or in the field of medical devices or research in these areas; and/or (iii) any individual(s) or legal entity(ies), including any company(ies), institution(s), entity(ies), trust(ies), investment fund(s) or other investment vehicle(ies) in any form whatsoever, under French or foreign law, when entering into an industrial, commercial, licensing, research or partnership agreement with the Company; and/or (iv) any credit institution, any French or foreign investment service provider or member of a banking syndicate or any company or investment fund that undertakes to subscribe to any issue likely to result in a future capital increase that may be carried out pursuant to this delegation heretofore in connection with the implementation of an equity or bond financing line; and/or (v) French or foreign investment service provider(s), or any foreign establishment(s) with equivalent status, likely to guarantee the completion of an issue intended to be placed with the persons referred to in (i) and/or (ii) above and, in this context, to subscribe for the securities issued, and (B) that, subject to Subscribers’ representations in Section 4.1(a) of this Agreement being true, the Subscribers falls within said category. |
| (b) | The Company will cause the Shares (including the Warrant Shares issuable upon exercise of the Warrants) to be approved for admission to trading and listed on the regulated market of Euronext on or prior to the Closing Date. |
| 5.2 | Except in respect of Exempt Issuance, from the date hereof until 90 days following the Closing Date, neither the Company nor any of its direct or indirect subsidiaries shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of, any debt or equity securities or any securities convertible, exercisable or exchangeable into debt or equity securities, including, but not limited to, additional Shares and Warrants. As used herein, an “Exempt Issuance” means (a) the Reserved Issuance and the issue of Shares and Warrants to the Subscribers, (b) the issuance of ordinary shares of the Company or options to employees, officers or directors of the Company pursuant to any stock, performance share, option plan or free share plan existing on the date hereof as disclosed in the Disclosure Materials or duly adopted for such purpose, by the Board of Directors, and (c) securities issued upon the exercise or exchange of or conversion of any securities issued hereunder or to the benefit of the Subscribers and/or other securities exercisable or exchangeable for or convertible into ordinary shares of the Company issued and outstanding on the date of this Agreement, provided that Warrants have not been amended since the date of this Agreement to increase the number of such Shares or to decrease the exercise price, exchange price or conversion price of such Warrants (other than in connection with stock splits or combinations) or to extend the term of such Warrants. |
| 5.3 | The representation and warranties of the Company attached hereto as Exhibit I (the “Representations and Warranties”) may be relied upon by the Subscribers and the Subscribers shall be a beneficiary of such representations and warranties and shall be deemed to have accepted the benefit of such representations and warranties. |
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| 5.4 | The Company shall, on or before 8:30 a.m. CET on the first (1st) business day after the date of this Agreement, publish, subject to the AMF approval, the Listing Prospectus in accordance with any applicable laws and regulations (including Regulation 2017/1129/EU, as amended). From the publication of the Listing Prospectus, the Company shall have disclosed all material, non-public information (if any) delivered to the Subscribers by the Company, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by this Agreement. |
| 6. | Other Covenants |
| 6.1 | Each Subscriber covenants that the Shares and Warrants will only be sold, offered for sale, pledged, loaned, or otherwise disposed of pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any applicable state securities laws. In connection with any transfer of Shares and Warrants other than pursuant to an effective registration statement or Rule 144, the Company may require such Subscribers to provide to the Company an opinion of counsel selected by such Subscribers, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act. |
| 6.2 | The Subscribers shall take no action to become a group such that any transactions contemplated by this Agreement would require shareholder approval prior to Closing. |
| 6.3 | The Subscribers shall not issue any press releases or any other public statements with respect to the transactions contemplated hereby except as may be reviewed and approved by the Company; provided, however, that the Company shall be entitled, without the prior approval of any Subscribers, to make any press release or other public disclosure with respect to the transactions contemplated hereby and publicly disclose the name of any Subscribers and any affiliate of any Subscribers. |
| 6.4 | By 8:00 a.m. (Paris time) on the business day immediately following the date this Agreement is executed, the Company shall issue a press release disclosing all material terms of the transactions contemplated by this Agreement and any other material nonpublic information or insider information that the Company may have provided any Subscriber at any time prior to the filing of such press release (the “Press Release”). From and after the issuance of the Press Release, no Subscriber shall be in possession of any material nonpublic information and/or inside information received from the Company, its subsidiaries or any of their respective officers, directors, employees or agents (including the Placement Agent). In addition, the Company will make such other filings and notices in the manner and time required by the SEC, the AMF or Euronext. The Company shall not, and shall cause each of its officers, directors, employees and agents not to, provide any Subscriber with any such material nonpublic information or insider information regarding the Company from and after the filing of the Press Release without the express prior written consent of such Subscriber. |
| 6.5 | The Company shall timely file a Form D with respect to the Shares and Warrants as required under Regulation D of the Securities Act. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Shares and Warrants for, sale to the Subscribers at the Closing under applicable securities or “Blue Sky” laws of the states of the United States. |
| 7. | United States Tax Matters |
The Company shall:
| (a) | engage PriceWaterhouseCoopers LLP; Deloitte & Touche LLP; Ernst & Young LLP; or KPMG LLP. (a “Big Four Accounting Firm”) to, as soon as practicable, but in any event within ninety days after the end of each fiscal year of the Company, examine whether the Company is a PFIC or a CFC, in each case for U.S. federal income tax purposes, for any applicable fiscal year; and |
| (b) | promptly notify the Subscribers if, as a result of the analysis of the Big Four Accounting Firm, the Company becomes aware of any change in the PFIC or CFC status of the Company for any taxable year. |
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| 8. | Survival of Representations, Warranties and Agreements |
Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company and the Subscribers herein will survive the execution of this Agreement, the delivery to the Subscribers of the Shares and Warrants being subscribed and the payment therefor.
| 9. | Notices |
All notices, requests, consents and other communications hereunder will be in writing, will be sent by email, or mailed, or by International Federal Express or facsimile, and will be deemed given (i) if delivered by International Federal Express, two business days after so mailed, (ii) if delivered by email, upon delivery as long the sender does not receive an automated message from the recipient’s email server that the email cannot be delivered, and will be delivered as addressed as follows:
| (a) | if to the Company, to: |
DBV Technologies S.A.
177-181, avenue Pierre Brossolette
92120 Montrouge, France
Attention: Legal Department
Facsimile: +33 (0)1 43 26 10 83
E-mail : Legal@dbv-technologies.com
| (b) | if to the Subscribers, at Subscribers address on the Signature Page hereto, or at such other address or addresses as may have been furnished to the Company in writing. |
| 10. | Changes |
This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Subscribers.
| 11. | Headings |
The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.
| 12. | Severability |
In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
| 13. | Governing Law and Jurisdiction |
This Agreement will be governed by, and construed in accordance with, the laws of France. Any dispute or suit relating to the interpretation, validity and performance of this Agreement, or arising out of or as a consequence hereof, shall be subject to the non-exclusive jurisdiction of the Tribunal de commerce of Paris.
| 14. | Expenses |
The parties hereto shall pay their own costs and expenses in connection herewith regardless of whether the transactions contemplated hereby are consummated; it being understood that each of the Company and each Subscriber has relied on the advice of its own respective counsel.
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| 15. | Fees and Stamp Taxes |
The Company shall pay any and all documentary, stamp, transfer and other similar taxes which may be payable under French laws as a result of the signing of this Agreement or with respect to the transfer of the Shares or Warrant Shares to ADSs.
| 16. | No Hardship |
Each party to this Agreement hereby acknowledges that the provisions of Article 1195 of the French Code civil shall not apply to it with respect to its obligations under this Agreement and that it shall not be entitled to make any claim under Article 1195 of the French Code civil.
| 17. | Execution of Agreement |
This Agreement has been executed in two originals, one for each party.
| 18. | Termination |
Notwithstanding anything contained in this Agreement, the Subscribers, may, by notice to the Company in accordance with the provisions of Section 8 above, terminate this Agreement if, at any time on or before the Closing Date, any of the following events or circumstances has occurred:
| (a). | there has been any material breach of, or any event rendering untrue or incorrect, in any material respect, any of the representations and warranties contained in Section 5 or any failure to perform any of the Company’s covenants, undertakings or agreements in this Agreement; |
| (b). | any of the conditions specified in Section 3.2(b) has not been satisfied or waived by the Subscribers; |
| (c). | there shall have been, since the date of this Agreement any material suspension or material limitation of trading on, or by, as the case may be, any of Euronext Paris or the Nasdaq or any setting of minimum prices for trading on any such exchange, by any such exchange or by any other governmental authority having jurisdiction, which makes it, in the reasonable judgment of the Subscribers and the Company, impracticable or impossible to proceed with the Reserved Issuance or the issue, sale or delivery of the Shares and Warrants, materially on the terms and in the manner contemplated in this Agreement. |
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ANNEX II
Terms and Conditions of the Warrants
NEITHER THE WARRANTS NOR THE WARRANT SHARES INTO WHICH THESE WARRANTS ARE EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, UNTIL THE WARRANTS AND THE WARRANT SHARES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, OR APPLICABLE STATE SECURITIES LAWS, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
THESE TERMS AND CONDITIONS OF THE WARRANTS DO NOT CONSTITUTE A CERTIFICATE REPRESENTING THE PRE-FUNDED WARRANTS.
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
DBV Technologies S.A., a société anonyme organized under the laws of France and registered with the Register of Commerce and Companies (Registre du Commerce et des Sociétés) of Nanterre under number 441 772 522, with a registered capital of Euros 6,116,391.00 and having its registered office at 177-181 avenue Pierre Brossolette – 92120 Montrouge (the “Company”), hereby issues by decisions of the Board of Directors and, upon subdelegation, of the Chief Executive Officer (Directeur Général) acting pursuant to the power delegated by the Company’s shareholders at the general meeting held on May 12, 2022, in its 18th resolution, to the Investors named in the Subscription Agreements (as defined herein) and in accordance with the terms thereof (each such person, a “Holder”), on the Issue Date, an aggregate of 28,276,331 bons de souscription d’actions (the “Warrants”) to subscribe an aggregate of 28,276,331 Shares (the “Warrant Shares”) at the Exercise Price (as defined herein) per Warrant Share, on the terms and conditions herein (the “Terms and Conditions” or the “Conditions”). The Warrants shall not be admitted to trading on any stock exchange or trading market. Each one (1) Warrant is exercisable for one (1) ordinary share of the Company (action ordinaire) (each, a “Share”) (the “Exercise Ratio”) for a price per share equal to the Exercise Price (as defined herein).
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| 1. | Interpretation |
For the purposes of these Conditions, unless the context otherwise requires, the following words shall have the meaning set out opposite them:
| “Admission” |
means admission to trading on the Trading Market, and the terms “Admit” and “Admitted” shall be construed accordingly; | |
| “ADS” |
has the meaning given in Condition 2(e); | |
| “Affiliate” |
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act or, in respect of any French law aspect, under L233-3 of the French Code of commerce (Code de commerce); | |
| “Aggregate Exercise Price” |
has the meaning given in Condition 2(c); | |
| “Attribution Parties” |
means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issue Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of Shares would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Beneficial Ownership Limitation (as defined in Condition 2(f)). | |
| “Business Day” |
a day, other than a Saturday, Sunday, U.S. federal holiday or a day on which banks in Paris, France or The City of New York are authorized or required by law to be closed to the public; | |
| “Company” |
has the meaning given in the introduction; | |
| “Euroclear France” |
has the meaning given in Condition 6; | |
| “Euronext” |
the regulated market of Euronext in Paris; | |
| “Excess Shares” |
means the number of Shares so issued by which the Holder’s and its Attribution Parties’ aggregate beneficial ownership exceeds the Beneficial Ownership Limitation; | |
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| “Exchange Act” |
the Securities Exchange Act of 1934, as amended; | |
| “Exercise Date” |
in relation to any exercise of these Warrants, the date on which the Aggregate Exercise Price for the Warrants is received by the Registrar, together with a copy of a duly completed Exercise Notice in accordance with Conditions 2(c) and 2(d); | |
| “Exercise Notice” |
has the meaning given in Condition 2(c); | |
| “Exercise Period” |
has the meaning given in Condition 2(a); | |
| “Exercise Price” |
has the meaning given in Condition 2(b); | |
| “Exercise Ratio” |
has the meaning given in the introduction; | |
| “Exercised Shares” |
has the meaning given in Appendix A; | |
| “Exercised Shares Delivery Date” |
has the meaning given in Condition 2(e); | |
| “French Commercial Code” |
the French Code de Commerce; | |
| “French Monetary and Financial Code” |
the French Code monétaire et financier; | |
| “Fundamental Transaction” |
has the meaning given in Condition 2(g). | |
| “Group” |
means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder. | |
| “Holder” |
has the meaning given in the introduction; | |
| “Investor” |
the investor(s) purchasing Warrants pursuant to the Subscription Agreements; | |
| “Issue Date” |
the date of issue of these Warrants, being on or about June 13, 2022; | |
| “Nominal Value” |
the nominal value from time to time of one Share, being 0.10 Euro as of the Issue Date; | |
| “Person(s)” |
an individual or a corporation, a general or limited partnership, a trust, an incorporated or unincorporated association, a joint venture, a limited liability company, a limited liability partnership, a joint stock company, a government (or any agency or political subdivision thereof) or any other entity of any kind; | |
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| “Registrar” |
the registrar of the Warrants on behalf of the Company from time to time as specified in writing by the Company to the Holders of the Warrants and, as of the Issue Date, currently Société Générale Securities Services; | |
| “Securities Act” |
The Securities Act of 1933, as amended; | |
| “Shares” |
the ordinary shares of 0.10 Euro each in the share capital of the Company; | |
| “Share Equivalents” |
means any securities of the Company or the subsidiaries which would entitle the holder thereof to acquire at any time Shares or ADSs, including, without limitation, any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Shares or ADSs; | |
| “Subscription Agreements” |
the securities purchase agreement dated June 8, 2022 by and between the Company and each of the Investors thereto; | |
| “Terms and Conditions” |
has the meaning given in the introduction; | |
| “Trading Market” |
Euronext or any stock exchange on which the Shares (and, as applicable, any of the Securities referred to in Condition 5) are admitted to trading; | |
| Transaction |
has the meaning given in Condition 5; | |
| VWAP |
has the meaning for any date, the price determined by the following: the daily volume weighted average price of the Shares for such date (or the nearest preceding date) on Trading Market on which the Shares are then listed or quoted as reported by Bloomberg L.P. (based on a trading day from 9:00 a.m. (Paris time) to 5.30 p.m. (Paris time)); | |
| “Warrant Shares” |
has the meaning given in the introduction; and | |
| “Warrants” |
has the meaning given in the introduction. | |
Condition headings are included for the convenience of the parties only and do not affect the interpretation of the Warrants.
| 2. | Exercise |
| (a) | Exercise Period |
Subject to the conditions and limitations specifically provided herein, the Warrants may be exercised by the Holder, in whole or in part, for cash, at any time and from time to time on any Business Day during the period commencing on or after the opening of business on the Issue Date until 10 years following the Issue Date (the “Exercise Period”).
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| (b) | Exercise Price |
Under the Subscription Agreement, the aggregate price of the Warrants, except for a nominal exercise price of 0.10 Euro per Warrant Share, was pre-funded to the Company on or prior to the Issue Date and, consequently, no additional consideration (other than the Exercise Price) shall be required to be paid by the Holder to any Person to effect any exercise of the Warrants. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason whatsoever. The remaining unpaid exercise price per Warrant Share under the Warrants shall be 0.10 Euro, subject to any adjustment to the Exercise Ratio as provided in Condition 5 (or, as the case may be, Condition 9) (the “Exercise Price”).
| (c) | Terms of exercise |
In order to exercise the Warrants, the Holder through its intermediary shall (i) send by facsimile transmission to the Registrar at +33 (0) 2.51.85.61.66 or by their secured platform SecureHub at any time prior to 5.00 p.m., Paris time, on any Business Day during the Exercise Period, a notice to the Registrar, with a copy to the Company, to the attention of Sébastien Robitaille (finance@dbv-technologies.com) or such other Company representatives as identified by the Company, in the form of the exercise notice (bulletin de souscription) set forth in Appendix A (each an “Exercise Notice”), of the Holder’s election to exercise the Warrants, which Exercise Notice shall specify the number of Warrants to be exercised and the number of Warrant Shares to be subscribed for, and (ii) make payment to the Registrar for the account of the Company of an amount equal to the Exercise Price multiplied by the number of Exercised Shares in respect of which the Warrants are being exercised (the “Aggregate Exercise Price”) by wire transfer of immediately available funds in Euros as set forth in Condition 2(e) below. For the avoidance of doubt the Holder may exercise all or parts of its Warrants in one or several times within the Exercise Period, it being specified that each Warrant shall be exercised only once. No ink-original Exercise Notice shall be required, nor shall any type of guarantee or notarization of any Exercise Notice be required. The Aggregate Exercise Price shall be paid, if applicable, at the latest on the Exercised Shares Delivery Date (as defined below).
| (d) | Confirmation of Exercise |
Upon receipt by the Registrar of an Exercise Notice and the corresponding Aggregate Exercise Price in accordance with Condition 2(c), the Registrar shall as soon as practicable, but in no event later than 5:00 p.m. Paris time, on the second Business Day immediately following the Exercise Date, send, by facsimile transmission or by email, with a copy to the Company, a confirmation of receipt of such Aggregate Exercise Price (if applicable) and Exercise Notice in the form of the notice at Appendix B to the Holder through its intermediary.
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| (e) | Issue of Warrant Shares Upon Exercise |
In the event of any exercise of the rights represented by the Warrants in accordance with Condition 2(c), the Company shall allot and issue to the Holder the Warrant Shares to which the Holder thereby becomes entitled on or with effect from the Exercise Date. In such event the Company shall cause the Registrar to, on or before the third Business Day (the “Exercised Shares Delivery Date”) following the Exercise Date, credit such aggregate number of Warrant Shares to which the Holder shall be entitled to and as notified in the Exercise Notice (i) to the Holder’s securities account opened in the name of the Holder with the Registrar, or (ii) to the Holder’s securities account opened in the name of the Holder with any other financial intermediary and indicated in the Exercise Notice,. Notwithstanding the foregoing, with respect to any Exercise Notice delivered on or prior to 4:00 p.m. (New York City time) on the trading date prior to the Issue Date, which may be delivered at any time after the time of execution of the relevant Subscription Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Issue Date and the Issue Date shall be the Exercised Shares Delivery Date for purposes hereunder, provided that, if applicable, payment of the Aggregate Exercise Price is received by such Exercised Shares Delivery Date.
The Company’s obligation to issue Warrant Shares upon exercise of the Warrants shall not be subject to (i) any set-off or defense or (ii) any claims against any holder of Warrants however arising.
The Company shall pay all applicable fees and expenses of the depositary for the Company’s ADS in connection with the issuance of the Warrant Shares in the form of ADS or the conversion of Warrant Shares in the form of Shares into ADS.
| (f) | Holder’s Exercise Limitations. |
Neither the Company nor the Registrar shall effect any exercise of the Warrants, and the Holder shall not have the right to exercise any portion of the Warrants, pursuant to Condition 2 or otherwise, to the extent that immediately prior to or after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Holder (together with its Attribution Parties), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Shares beneficially owned by the Holder and its Attribution Parties shall include the number of Shares held by the Holder and its Attribution Parties plus the number of Warrant Shares issued upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of
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Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of Warrants beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein that are beneficially owned by the Holder or any of its Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Condition 2(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Condition 2(f) applies, the determination of whether the Warrants are exercisable (in relation to other securities owned by the Holder together with any Attribution Parties) and of which portion of the Warrants is exercisable shall be in the sole discretion of the Holder, and the submission of an Exercise Notice shall be deemed to be the Holder’s determination of whether the Warrants are exercisable (in relation to other securities owned by the Holder together with any Attribution Parties) and of which portion of the Warrants is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrants that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrants that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Condition 2(f), in determining the number of outstanding Shares the Holder may acquire upon exercise of the Warrants without exceeding the Beneficial Ownership Limitation, the Holder may rely on the number of outstanding Shares as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q and Current Reports on Form 8-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company setting forth the number of Shares outstanding. Upon the written request of the Holder, the Company shall within one (1) Business Day confirm in writing or by electronic mail to the Holder the number of Shares then outstanding. In any case, the number of outstanding Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Attribution Parties since the date as of which such number of outstanding Shares was reported. In the event that
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the issuance of Warrant Shares to the Holder upon exercise of the Warrants results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Beneficial Ownership Limitation of the number of outstanding shares of Shares (as determined under Section 13(d) of the Exchange Act), the Excess Shares shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the Exercise Price paid by the Holder for the Excess Shares. The “Beneficial Ownership Limitation” shall be 9.99% of the number of Shares outstanding immediately after giving effect to the issuance of Shares issuable upon exercise of the Warrants. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Condition 2(f), provided that (a) to the extent required by law, in the cases of Beneficial Ownership Limitation increased above 9.99%, the Holder has obtained from the French Ministry of Economy through an authorization request or prior notification, in accordance with Article L. 151-3 and seq., R. 151-3 and seq. of the French code monétaire et financier and Decree no. 2020-892 of July 22, 2020, either (i) a written response from the French Ministry of Economy confirming that the exercise of the Warrant and, therefore, the acquisition of Warrant Shares that would cause the Holder to beneficially own Shares (including Warrant Shares) in excess of 9.99% of the voting rights of the Company (the “Crossing Event”) is not subject to the prior authorization procedure referred to in Articles R. 151-5 and seq. of the French code monétaire et financier or (ii), in accordance with Article R. 151-6 and seq. of the French code monétaire et financier or Article 2 of Decree no. 2020-892 of July 22, 2020, the authorization (express or tacit) to proceed with the Crossing Event and (b) the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of Shares outstanding immediately after giving effect to the issuance of Warrant Shares upon exercise of the Warrants held by the Holder and the provisions of this Condition 2(f) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the sixty first (61st) day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Condition 2(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of the Warrants. This Condition 2(f) shall not restrict the number of Shares which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Condition 2(g) of this Warrant.
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| (g) | Fundamental Transactions |
If, at any time while this Warrant is outstanding (i) the Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person), holders of share capital tender shares representing more than 50% of the voting power of the share capital of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the share capital of the Company (except for any such transaction in which the shareholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Shares or any compulsory share exchange pursuant to which the Shares are effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”), then following such Fundamental Transaction and subject to French law, the Holder shall have the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations on exercise contained herein (the “Alternate Consideration”).
| 3. | Warrant Shares |
| (a) | Form of Warrant Shares |
The Warrant Shares will be, upon issuance by the Registrar in bearer form (au porteur), in the securities account opened in the name of the Holder in the books of the Holder’s financial intermediary.
| (b) | Dividend Due Date and Rights Attached to the Warrant Shares |
Upon issue, Warrant Shares allotted pursuant to an Exercise Notice will grant the same rights, including, as from their date of issuance, the right to any dividend or any other distribution decided or to be paid, as are granted to holders of the Shares, and will be entirely assimilated to the Shares.
Warrant Shares shall be subject to all the Company’s by-laws’ provisions and to the decisions of the shareholders’ meetings.
Once issued, application will be made, on date of issuance, by the Registrar on behalf of the Company for the Warrant Shares to be admitted to trading on Euronext, on the same quotation line as the Shares.
| (c) | Transfer of Warrant Shares |
Subject to compliance with any applicable securities laws, Warrant Shares will, upon issuance, be freely negotiable and transferable as from the date of their entry in a securities account.
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In accordance with the provisions of Articles L. 211-15 and L. 211-17 of the French Monetary and Financial Code, Shares are transferred from account to account and transfer of ownership of the Warrant Shares will result from the moment they are registered in the name of the transferee or by book entry, as applicable.
Application will be made for all the Warrant Shares to be admitted to Euroclear France.
| 4. | Fractional Interests |
No fractional Shares shall be issuable upon the exercise of a Warrant, including fractional interests in ADSs.
In case of adjustments made in accordance with paragraphs 1 to 9 mentioned in Condition 5 (or, as the case may be, Condition 9), the new Exercise Ratio will be determined with two decimals rounded to the next 1/100th (0.005 rounded up to the next 1/100th, i.e. 0.01). Possible subsequent adjustments will be effected based on the preceding Exercise Ratio as so calculated and rounded. The Warrant Shares, however, may only be delivered in a whole number of Shares.
If the number of Warrant Shares thus calculated is not a whole number, the Holder may request delivery of either:
| (a) | the next lower number of Warrant Shares; in which case the Holder will receive from the Company a cash payment equal to the product of the remaining fractional share multiplied by the value of a Share, equal to the last price quoted on Euronext Paris on the last trading day preceding the Exercise Date; or |
| (b) | the next greater number of Warrant Shares, provided that in such case the Holder pays to the Company an amount equal to the value of the additional fraction of a Share thus delivered, calculated on the basis set out in the preceding paragraph. The calculation of such amount made by the Holder shall not be binding on the Company and the Registrar, and the Company or the Registrar will be entitled to disregard the choice of the Holder to apply this paragraph (b), and therefore apply paragraph (a) if either of them disagree with this calculation, in which case they will refund the Holder of the amount in question. |
If the Holder does not state a choice, it will receive a number of Shares rounded down to the nearest whole number, and the remainder in cash as described above.
The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this Condition, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
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| 5. | Adjustments of Exercise Ratio and Exercise Price |
Warrants issued by the Company are securities giving access to the share capital of the Company within the meaning of Article L. 228-91 et seq. of the French Commercial Code.
The Exercise Price and/or the number of Warrant Shares will be subject to adjustment from time to time according to mandatory legal requirements imposed by the French Commercial Code and in particular by articles L. 228-98 to L. 228-101 (with the exception of the provisions of Articles L. 228-99 1°) and L. 228-99 2°)) and articles R. 228-90 to R. 228-92 of this Code.
In accordance with the provisions of Article R. 228-92 of the French Commercial Code, if the Company decides to issue new Shares or securities giving access to the capital with preferential subscription rights limited to its shareholders, to distribute reserves (in cash or in kind) and share premiums or to change the allocation of its profits by creating preferred Shares, or to otherwise carry out any of the Transactions listed below, it will inform (as long as the current regulation so requires) the Holders via an announcement in the Bulletin des Annonces Légales Obligatoires.
If the Company is absorbed by a company or merges or consolidates with (fusions) one or several other companies to participate in the incorporation of a new entity, or proceed with a split (scission), the Holders shall exercise their rights in the entity(ies) that is/are the beneficiary(ies) of the contributions in accordance with the provisions of Article L. 228-101 of the French Commercial Code.
So long as any Warrants are outstanding and upon contemplation of the following transactions (each, a “Transaction”):
| • | financial transactions (issuance of Shares or any other securities of any nature) with listed preferential subscription rights or by free allocation of listed subscription warrants; |
| • | free allocation of Shares to shareholders, regrouping or splitting Shares; |
| • | incorporation of reserves, profits or premiums into equity, by increasing the nominal value of the Shares; |
| • | distribution of reserves and of any Share premium, in cash or in kind; |
| • | free allocation, to the shareholders of the Company of any securities of the Company (except Shares); |
| • | merger by acquisition (fusion par absorption), merger (fusion par création d’une nouvelle société), spin-off, or division (scission) of the Company; |
| • | buyback of its own Shares at a price higher than the Trading Market price; |
| • | amortization of the share capital; and |
| • | change in the allocation of profits and/or creation of preferred Shares; |
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which the Company can effect from the Issue Date, and for which the date on which the holding of Shares is established in order to determine the shareholders benefitting from a Transaction, is before the Exercise Date, the maintenance of the rights of the Holders will be ensured by proceeding to an adjustment of the Exercise Ratio in accordance with the conditions below.
| 1. |
(a) | For financial transactions (issuance of Shares or any other securities of any nature) with listed preferential right to subscription, the new Exercise Ratio will equal the product of the Exercise Ratio applicable before the start of the Transaction at issue and the following ratio: |
Value of a Share after detachment of the preferential subscription right
+Value of the preferential subscription right
Value of a Share after detachment of the preferential subscription right
To calculate this ratio, the value of a Share after detachment of the preferential subscription right and the value of the preferential subscription right are equal to the average of the opening prices listed on the Trading Market as reported by Bloomberg L.P. during all trading days included in the subscription period during which the Shares and the subscriptions rights are simultaneously listed.
| (b) | For financial transactions carried out through the free allocation of listed subscription warrants to shareholders with a correlative ability to sell the securities resulting from subscription warrants not exercised by their holders during the period of subscription which has opened to them, the new Exercise Ratio will be equal to the product of the Exercise Ratio before the start of the Transaction contemplated and of the following ratio: |
Value of a Share after detachment of the subscription warrant
+Value of the subscription warrant
Value of a Share after detachment of the subscription warrant
| • | THE VALUE OF A SHARE AFTER DETACHMENT OF THE SUBSCRIPTION WARRANT WILL BE EQUAL TO THE VWAP OF (I) THE PRICES OF THE COMPANY’S SHARES LISTED ON THE TRADING MARKET DURING ALL TRADING DAYS INCLUDED IN THE SUBSCRIPTION PERIOD, AND, IF THERE IS A RUMP PLACEMENT, (II) EITHER (A) THE SALE PRICE OF THE SHARES SOLD IN THE RUMP PLACEMENT, OR (B) THE VWAP OF THE SHARES ON THE TRADING MARKET ON THE DAY THE SALE PRICE FOR THE SECURITIES SOLD IN THE RUMP PLACEMENT IS FIXED, IF SUCH SECURITIES ARE NOT FUNGIBLE WITH THE SHARES; |
| • | THE VALUE OF THE SUBSCRIPTION WARRANT WILL BE EQUAL TO THE VWAP OF (I) THE PRICES OF THE SUBSCRIPTION WARRANTS LISTED ON THE TRADING MARKET ON EACH TRADING DAY INCLUDED IN THE SUBSCRIPTION PERIOD, AND (II) THE |
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| IMPLICIT VALUE OF THE SUBSCRIPTION WARRANTS, BEING EQUAL TO EITHER (A) THE DIFFERENCE, IF POSITIVE, ADJUSTED BY THE WARRANT EXERCISE RATIO, BETWEEN THE SALE PRICE OF THE SECURITIES SOLD IN THE RUMP PLACEMENT AND THE SUBSCRIPTION PRICE OF THE SECURITIES UPON THE EXERCISE OF THE SUBSCRIPTION WARRANTS, OR (B) IF SUCH DIFFERENCE AS AFORESAID IS NOT POSITIVE, ZERO (0). |
| 2. | In case of a free allocation of Shares to shareholders, and also in case of regrouping or splitting of Shares, the new Exercise Ratio will be equal to the product of the Exercise Ratio applicable before the start of the Transaction contemplated and of the following ratio: |
Number of Shares forming the share capital after the Transaction
Number of Shares forming the share capital before the Transaction
| 3. | In case of a capital increase by incorporation of reserves, profits or premiums carried out by increasing the nominal value of the Shares, the nominal value of the Warrant Shares the Holders could obtain by exercising their Warrants will be increased in due proportion. |
| 4. | In case of a distribution of reserves and of any share premiums, either in cash or in kind (securities in portfolio...), the new Exercise Ratio will be equal to the product of the Exercise Ratio applicable before the start of the Transaction contemplated and of the following ratio: |
Value of a Share before distribution
Value of a Share before distribution
- Amount per Share of the distribution or value of securities or assets distributed per Share.
For the calculation of this ratio:
| • | THE VALUE OF A SHARE BEFORE THE DISTRIBUTION WILL BE EQUAL TO THE VWAP OF THE PRICES OF THE SHARES LISTED ON THE TRADING MARKET DURING THE LAST THREE TRADING DAYS PRECEDING THE DAY THE SHARES ARE LISTED EX-DISTRIBUTION; |
| • | IF DISTRIBUTION IS MADE IN KIND: |
| • | IN CASE OF DELIVERY OF SECURITIES ALREADY LISTED ON A TRADING MARKET, THE VALUE OF THE SECURITIES WILL BE DETERMINED AS ABOVE, |
| • | IN CASE OF DELIVERY OF SECURITIES NOT YET LISTED ON A TRADING MARKET, THE VALUE OF SECURITIES REMITTED WILL BE EQUAL, IF THEY SHOULD BE LISTED ON A TRADING MARKET DURING THE TEN TRADING DAY PERIOD STARTING FROM THE DATE ON WHICH THE SHARES ARE LISTED EX-DISTRIBUTION, TO THE VWAP OF THE SHARES LISTED ON SUCH TRADING MARKET DURING THE THREE FIRST TRADING DAYS INCLUDED IN THIS PERIOD DURING WHICH THE SAID SECURITIES ARE LISTED, AND |
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| • | IN ALL OTHER CASES (SECURITIES DELIVERED NOT LISTED ON A TRADING MARKET OR LISTED DURING LESS THAN THREE TRADING DAYS WITHIN THE TEN TRADING DAY PERIOD MENTIONED ABOVE OR DISTRIBUTION OF ASSETS), THE VALUE OF THE SECURITIES OR THE ASSETS DELIVERED PER SHARE SHALL BE DETERMINED BY AN INDEPENDENT EXPERT OF INTERNATIONAL REPUTATION APPOINTED BY THE COMPANY. |
| 5. | In case of a free allocation to shareholders of securities, other than Shares and subject to paragraph 1 b) above, the new Exercise Ratio will be equal to: |
| (a) | if the rights to the free allocation of securities were listed on the Trading Market, the product of the Exercise Ratio applicable before the start of the Transaction contemplated and of the following ratio: |
Share price ex-right to free allocation + value of the right to free allocation
Share price ex-right to free allocation
For the calculation of this ratio:
| • | THE VALUE OF THE SHARE PRICE EX-RIGHT OF FREE ALLOCATION WILL BE EQUAL TO THE VWAP OF THE SHARES LISTED ON THE TRADING MARKET OF THE SHARE EX-RIGHT OF FREE ALLOCATION DURING THE FIRST TEN TRADING DAYS STARTING ON THE DATE ON WHICH THE SHARES ARE LISTED EX-RIGHT OF FREE ALLOCATION; |
| • | THE VALUE OF THE RIGHT TO FREE ALLOCATION WILL BE DETERMINED AS IN THE ABOVE PARAGRAPH. |
If the right to free allocation is not listed during each of the ten trading days, its value will be determined by an independent expert of international reputation appointed by the Company.
| (b) | if the right to free allocation of securities were not listed on the Trading Market, the product of the Exercise Ratio applicable before the start of the Transaction contemplated and of the following ratio: |
Share price ex-right to free allocation
+ Value of that/those security(ies) allocated per Share
Share price ex-right to free allocation
For the calculation of this ratio:
| • | THE SHARE PRICE EX-RIGHT TO ALLOCATION WILL BE DETERMINED AS IN PARAGRAPH A) ABOVE. |
| • | IF THESE SECURITIES ARE LISTED OR CAN BE LISTED ON THE TRADING MARKET WITHIN TEN TRADING DAYS STARTING FROM THE DAY SHARES ARE LISTED EX-DISTRIBUTION, THE VALUE OF THE SECURITIES ALLOCATED BY SHARE WILL BE EQUAL TO THE VWAP OF THESE SECURITIES LISTED ON SAID MARKET DURING THE THREE FIRST TRADING |
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| DAYS INCLUDED IN THIS PERIOD DURING WHICH SAID SECURITIES ARE LISTED. IF THE ALLOCATED SECURITIES ARE NOT LISTED DURING EACH OF THESE THREE MARKET TRADING DAYS, THE VALUE OF THESE SECURITIES WILL BE DETERMINED BY AN INDEPENDENT EXPERT OF INTERNATIONAL REPUTATION APPOINTED BY THE COMPANY. |
| 6. | In case of an absorption of the Company by another company (fusion par absorption) or a merger with one or more companies resulting in the incorporation of a new company(fusion par creation d’une nouvelle societe), a spin-off or division (scission) of the Company, the exercise of the Warrants will allow allocation of shares of the absorbing company or the new company(ies) or the company(ies) resulting from any division or spin-off. |
The new Exercise Ratio will be determined by multiplying the Exercise Ratio applicable before the start of the contemplated Transaction by the exchange ratio of the Shares against the shares of the absorbing company or the new company(ies) or the company(ies) resulting from any division or spin-off. These companies will be fully subrogated to the Company’s rights and obligations towards the Holders.
| 7. | In case of a buyback of the Company of its own Shares (except for buyback made pursuant to article L.225-209 al. 2 of the French Commercial Code) at a price higher than the stock exchange price, the new Exercise Ratio will be equal to the product of the Exercise Ratio applicable before the buyback and the following ratio: |
Share price x (1-Pc%)
Share price – Pc% x Buyback price
For the calculation of this ratio:
| • | Share price means the VWAP of the Shares listed on the Trading Market during the three last trading days preceding the buyback (or the ability of buyback): |
| • | Pc% means the percentage of total share capital repurchased; and |
| • | Buyback price means the effective buyback price. |
| 8. | In case of amortization of the share capital of the Company, the new Exercise Ratio will be equal to the product of the Exercise Ratio on the date before the start of the contemplated Transaction and of the following ratio: |
Value of a Share before amortization
Value of a Share before amortization—amount of the amortization per Share
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For the calculation of the ratio, the Share value before amortization will be equal to the VWAP of the Shares listed on the Trading Market during the three last trading days preceding the trading day the Shares are listed ex- amortization.
| 9. | (a)In case of a change in the allocation of profits and/or creation of new preferred shares resulting in such modification by the Company, the new Exercise Ratio will be equal to the product of the Exercise Ratio before the start of the contemplated Transaction and the following ratio: |
Share price before modification
Share price before modification—reduction per Share of the right to profits.
For the calculation of this ratio:
| • | THE SHARE PRICE BEFORE MODIFICATION MEANS THE VOLUME-WEIGHTED AVERAGE OF THE PRICES OF THE COMPANY’S SHARES LISTED ON THE TRADING MARKET DURING THE LAST THREE TRADING DAYS PRECEDING THE DATE OF MODIFICATION; |
| • | THE REDUCTION BY SHARE ON THE RIGHT TO PROFITS WILL BE DETERMINED BY AN INDEPENDENT EXPERT OF INTERNATIONAL REPUTATION APPOINTED BY THE COMPANY AND WILL BE SUBMITTED TO THE APPROVAL OF THE HOLDERS’ GENERAL MEETING (AS DEFINED IN CONDITION 7). |
If however these preferred Shares are issued with shareholders’ preferential subscription rights or by free distribution of Warrants to subscribe to such preferred shares, the new Exercise Ratio will be adjusted in accordance to paragraphs 1 or 5 above.
| (b) | in case of creation of preferred shares without a modification in the distribution of profits, the adjustment of the Exercise Ratio that would be necessary will be determined by an independent expert of international reputation appointed by the Company. |
If the Company were to carry out Transactions where an adjustment had not been completed under paragraphs 1 to 9 above, and a later law or regulations require an adjustment, the Company shall undertake such adjustment in accordance with the law or regulations then applicable and the market practice observed in France.
In the event of an adjustment, the new exercise conditions will be brought to the prompt attention of the Holders within three Business Days of the effectiveness of the adjustment.
The Company’s Board of Directors will report the calculation and results of any adjustment in the annual report following such adjustment.
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| 6. | Form, Title and Transfer of Warrants |
The Warrants will be issued in dematerialised (dématérialisé) bearer form (au porteur).
Subject to compliance with any applicable securities laws, the Warrants are freely negotiable.
Warrants shall not be listed on Euronext or on any other stock exchange.
Title to the Warrants held by the Holders will be established and evidenced in accordance with Article L.211-3 and R.211-1 of the French Monetary and Financial Code by book-entries (inscription en compte). No physical document of title (including certificats représentatifs pursuant to Article R.211-7 of the French Monetary and Financial Code) will be issued in respect of the Warrants.
The Warrants will, upon issue, be inscribed in the books of Euroclear France SA (“Euroclear France”), which shall credit the accounts of the intermediary institution entitled to hold, directly or indirectly, accounts on behalf of its customers with Euroclear France, and includes the depositary bank for Clearstream Banking, S.A. and Euroclear Bank SA/NV. In accordance with the provisions of Articles L. 211-15 and L. 211-17 of the French Monetary and Financial Code, title to the Warrants shall be evidenced by entries in the books of such intermediary institutions, and transfer of the Warrants may only be effected through registration of the transfer in their books.
| 7. | Representation of Holders |
The Holders will be grouped automatically in a collective group with legal personality (the “Masse”) to defend their common interests.
The Masse will be governed by the provisions of the French Commercial Code (with the exception of the provisions of Article L.228-48 thereof), subject to the following provisions:
The Masse will be a separate legal entity by virtue of Article L.228-103 of the French Commercial Code, acting in part through a representative (the “Representative”) elected by the Holders’ General Meeting (as defined hereafter) and in part through a holders’ general meeting (the “Holders’ General Meeting”).
The Masse alone, to the exclusion of all individual Holders, shall exercise the common rights, actions and benefits which now or in the future may accrue with respect to the Warrants. The Holders’ General Meeting shall be called upon to authorize any changes to the Terms and Conditions and to approve any decision that has an impact on the conditions for subscription of the Warrant Shares determined within the scope of these Terms and Conditions.
In accordance with Articles L. 228-59 and R. 228-67 of the French Commercial Code, notice of date, hour, place and agenda of any Holders’ General Meeting will be given by way of a press release published by the Company which will also be posted on its website (www.dbv-technologies.com) not less than fifteen (15) calendar days prior to the date of such general meeting on first notice, and five (5) calendar days on second notice.
Each Holder has the right to participate in a Holders’ General Meeting in person, by proxy, by correspondence and, in accordance with Article L. 228-61 of the French Commercial Code by videoconference or by any other means of telecommunication allowing the identification of participating Holders, as provided mutatis mutandis by Article R. 223-30-1 of the French Commercial Code.
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Decisions of the Holders’ General Meetings once approved will be published by way of a press release posted by the Company on its website (www.dbv-technologies.com).
| 8. | Suspension of the ability to exercise the Warrants |
In case of a capital increase, absorption, merger, spin-off or issue of new Shares or securities giving access to the share capital, or any other financial transaction involving a preferential subscription right or reserving a priority subscription period for the benefit of the Company’s shareholders, the Company will be entitled to suspend the exercise of the Warrants for a period that may not exceed the shorter of three months or any other required (rather than recommended) period set by the applicable regulations. The Company’s decision to suspend the ability to exercise the Warrants will be published (to the extent that such publication is required under French law or any other form of communication compliant with applicable regulations) in the Bulletin des annonces légales obligatoires. This notice will be published at least seven (7) calendar days (so long as required by French law) before the suspension becomes effective and will indicate the dates on which the suspension exercise of the Warrants will begin and end. This information will also be the object of a notice published by the Company and a notice published by Euronext Paris.
| 9. | Modification of the rules for profit distribution, capital amortization, modification of the legal form or corporate purpose of the Company—reduction of the Company’s share capital due to losses |
Pursuant to the provisions of Article L. 228-98 of the French Commercial Code and to the extent not already covered by the provisions of Condition 5:
| (i) | the Company may modify its form or corporate purpose without the approval of the Holders’ General Meeting; |
| (ii) | the Company may, without requesting the approval of the Holders’ General Meeting, amortize its share capital, modify the allocation of its profits or issue preferred shares, as long as there are outstanding/unexercised Warrants, provided that it has taken the necessary measures to preserve the rights of the Holders (see Condition 5 above); |
| (iii) | in case of a reduction in the Company’s share capital motivated by losses and carried out by reducing the nominal amount or the number of shares making up the share capital, the rights of the Holders will be reduced accordingly, as if they had exercised the Warrants before the date on which the capital reduction became effective. In case of a reduction in the Company’s share capital by reducing the number of shares, the new Exercise Ratio will be equal to the product of the Exercise Ratio in force before the reduction in the number of shares and the ratio of the number of shares outstanding to the number of shares and the following ratio: |
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Number of Shares forming the share capital after the transaction
Number of Shares forming the share capital before the transaction
| 10. | New issues and assimilation |
The Company may, without requiring the consent of the Holders’ General Meeting, issue other warrants similar to the Warrants to the extent that these warrants and the Warrants will confer identical rights in all respects and that the terms and conditions of these warrants are identical to those of the Warrants.
In this case, the Holders and the holders of these warrants will be regrouped in a single mass for the defense of their common interests.
| 11. | Absence of restriction in the Company’s by-laws on the free negotiability of the Warrants and the Warrant Shares to be issued upon exercise |
Nothing in the Company’s by-laws’ provisions restricts the free negotiability of the Warrants and the Shares comprising the Company’s share capital.
| 12. | Taxes |
The Company shall pay any and all documentary, stamp, transfer and other similar taxes which may be payable under French laws with respect to the issue and delivery of Warrant Shares upon exercise of the Warrants.
| 13. | Successor and Assigns |
These Terms and Conditions shall be binding upon and inure to the benefit of the Holders and their assigns, and shall be binding upon any entity succeeding to the Company by consolidation, merger or acquisition of all or substantially all of the Company’s assets (including by way of contribution, spin-off or partial spin-off).
| 14. | Third Party Rights |
These Warrants confer no right on any person other than the Holder thereof to enforce any of these Terms and Conditions or any other term of these Warrants.
| 15. | Governing Law |
These Terms and Conditions shall be interpreted, governed by and construed in accordance with the law of France.
Any suit, action or proceeding arising out of or based upon the Warrants or the transactions contemplated by these Terms and Conditions will be submitted to the exclusive jurisdiction of the Paris commercial court (Tribunal de commerce de Paris), and, to the extent permitted by law, the Company and the Holders irrevocably waive any objection it may now or hereafter have to personal jurisdiction the laying of venue of any such suit, action or proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
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Appendix A
Form of Exercise Notice
To: [Registrar]
Attention: [•]
Copy to: Company
Attention: Finance Department—DBV (finance@dbv-technologies.com)
EXERCISE NOTICE
Reference is made to the Warrants (ISIN code: [_]), issued on June 8, 2022, by DBV Technologies S.A., a société anonyme organized under the laws of France and registered with the Register of Commerce and Companies (Registre du Commerce et des Sociétés) of Nanterre under number 441 772 522, with a registered capital of Euros 6,116,391.00 and having its registered office at 177-181 avenue Pierre Brossolette – 92120 France (the “Company”).
The undersigned, [•], residing [•], having a full knowledge of the Company’s by-laws and the terms of and conditions of the Warrants, benefitting from the cancellation of the preferential subscription right, and, in accordance with and pursuant to the terms of the Warrants, it being understood and agreed that one Warrant is exercisable for [one]1 Share, the undersigned hereby elects to exercise [LETTERS] ([NUMBERS]) Warrants out of the ___________________ Warrants held by the undersigned.
[In addition, pursuant to Condition 4, the undersigned elects to receive2:
| (a) | the next lower number of Warrant Shares to which the exercise of the number of Warrants indicated above gives right; in which case the undersigned will receive from the Company a cash payment equal to the product of the remaining fractional share multiplied by the value of a Share, equal to the last price quoted on Euronext Paris3 on the last trading day preceding the Exercise Date, such amount to be paid by the Company by wire transfer of immediately available funds in Euros to on the following account number [•]4; |
| (b) | the next greater number of Warrant Shares to which the exercise of the number of Warrants indicated above gives right, and the undersigned pays to the Company an amount equal to the value of the additional fraction of a share thus delivered, calculated on the basis set out in (a) and equal to €[•]5.] |
| 1 | This corresponds to the Exercise Ratio on the issue date – to be modified if the Exercise Ratio is adjusted pursuant to Condition 5 (or, as the case may be, Condition 9). |
| 2 | Please modify according to your choice. Pursuant to Condition 4, If no choice is made, you will receive a number of Shares rounded down to the nearest whole number, and the remainder in cash as described in (a). |
| 3 | To be modified as the case may be. |
| 4 | To be filled-in by the undersigned. |
| 5 | The calculation of such amount made by the Holder shall not be binding on the Company and the Registrar, and the Company or the Registrar will be entitled to disregard the choice of the Holder to apply this paragraph (b), and therefore apply paragraph (a) if either of them disagree with this calculation, in which case they will refund the Holder of the amount in question. |
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As a result of the above, the undersigned:
| • | hereby subscribes to [LETTERS] ([NUMBERS]) Warrant Shares (the “Exercised Shares”), |
| • | pays in whole and immediately an Aggregate Exercise Price (as defined in Condition 2(b)) amounting to €[LETTERS] (€[NUMBERS])[, plus an amount of €[LETTERS] (€[NUMBERS]) as per paragraph b) above, amounting to a total of €[LETTERS] (€[ • NUMBERS])] by wire transfer of immediately available funds in Euros to on the account number [__•__] open in the name of the Company at Registrar, bank code [__•__], guichet code [__•__], RIB key [__•__], Swift [__•__], IBAN [__•__] of the corresponding amount; |
Pursuant to Condition 2(e), on the Exercised Shares Delivery Date, the Exercised Shares will be credited:
| (i) | to the undersigned’s securities account opened in the name of the undersigned with the Registrar, or |
| (ii) | to the following undersigned’s securities account [__•__] |
Subscription Date:________________________________
Name:_________________________________
| By:________________________7 |
| Name:_____________________ |
| Title:_______________________ |
| Dated:_____________________
|
| 6 | Please modify according to your choice. |
| 7 | Please insert the following handwritten note above the signature ”Valid for the subscription of [•] ([•]) Exercised Shares”. |
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Appendix B
Form of acknowledgement by the Registrar
To: [Holder]
Attention: [•]
Copy to: Company
Attention: Sébastien Robitaille (finance@dbv-technologies.com)
The Registrar hereby acknowledges this Exercise Notice attached hereto.
| Date: ____________________________________ |
| By: _______________________________________ |
| Name: ____________________________________ |
| Title: ______________________________________ |
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SCHEDULE I
| Subscriber |
Number of Ordinary Shares to be Purchased |
Number of Warrants to be Purchased |
Aggregate Purchase Amount | |||||||||
| 667, L.P. |
1,252,432 | 1,383,352 | € | 7,769,016.80 | ||||||||
| Baker Brothers Life Sciences, L.P. |
10,622,568 | 11,732,979 | € | 65,893,343.10 | ||||||||
| BPIFrance Participations |
2,483,161 | 0 | € | 7,449,483.00 | ||||||||
| Braidwell Partners Master Fund LP |
3,300,000 | 6,010,000 | € | 27,329,000.00 | ||||||||
| Fairmount Healthcare Fund L.P. |
30,560 | 0 | € | 91,680.00 | ||||||||
| Fairmount Healthcare Fund II L.P. |
900,626 | 0 | € | 2,701,878.00 | ||||||||
| Invus Public Equities, L.P. |
1,862,371 | 0 | € | 5,587,113.00 | ||||||||
| RA Capital Healthcare Fund, L.P. |
1,862,370 | 0 | € | 5,587,110.00 | ||||||||
| Venrock Healthcare Capital Partners II, L.P. |
951,439 | 936,093 | € | 5,568,986.70 | ||||||||
| VHCP Co-Investment Holdings II, LLC |
385,717 | 379,496 | € | 2,257,689.40 | ||||||||
| Venrock Healthcare Capital Partners III, L.P. |
2,093,431 | 2,059,666 | € | 12,253,324.40 | ||||||||
| VHCP Co-Investment Holdings III, LLC |
209,422 | 206,044 | € | 1,225,793.60 | ||||||||
| Venrock Healthcare Capital Partners EG, L.P. |
5,659,991 | 5,568,701 | € | 33,129,205.90 | ||||||||
| Vivo Opportunity Fund Holdings, L.P. |
1,241,581 | 0 | € | 3,724,743.00 | ||||||||
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EXHIBIT I
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
| (a) | Good Standing of the Company. The Company is duly constituted as a French public limited company (société anonyme) with a board of directors and registered with the Trade and Companies Registry of Nanterre under the unique identification number of 441 772 522. The Company exists validly, operates in all material respects in accordance with the laws and regulations that apply to it and has made all the filings, statements and registrations required by the competent authorities for the purpose of its activities. Each member of the Board of Directors (Conseil d’administration), the Chairman of the Board of Directors (Président du Conseil d’administration) and the Chief Executive Officer (Directeur Général ) have been lawfully appointed or elected and are validly in office in accordance with the law and, perform their respective duties in compliance with French law and the Company’s by-laws (statuts) and internal regulations. The Subsidiary (as defined below) has been duly constituted under the laws of the State of Delaware. The Company and the Subsidiary are fully empowered to hold and use their assets. |
| (b) | Good Standing of Subsidiaries. DBV Technologies Inc., a Delaware corporation (the “Subsidiary”) is the Company’s only significant subsidiary (as defined under Rule 1-02 of Regulation S-X). Each of the Company and the Subsidiary have been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized (to the extent the concept of “good standing” or such equivalent concept exists under the laws of such jurisdiction), with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Materials, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”) (to the extent the concepts of “due qualification” and/or “good standing” or such equivalent concepts exists under the laws of such jurisdiction). With respect to the Company or to the Subsidiary (a) no application for the appointment of an ad hoc representative (mandataire ad hoc) has been made, (b) no application to enter into a safeguard procedure (procédure de sauvegarde) has been made, (c) no application to enter into an accelerated safeguard procedure (procédure de sauvegarde accelérée) has been made, (d) no application to enter into a conciliation procedure (procédure de conciliation) has been made, (e) no application for the transfer of whole of the business (cession totale de l’entreprise) has been made, (f) no notice of judicial reorganisation (redressement judiciaire), judicial liquidation (liquidation judiciaire) or voluntary liquidation has been filed, (g) no conveyance, assignment or other arrangement for the benefit of, or enters into a composition with, its creditors has been made and (h) no proceedings under any applicable laws before a court having competent jurisdiction over the Company or such Subsidiary which has analogous effect to any of the proceedings referred to in this paragraph (j) is commenced, threatened or pending. |
| (c) | Financial Statements. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in the Disclosure Materials present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and its results of operations and cash flows for the periods indicated, and comply as to form in all material respects with the applicable accounting requirements of the Securities Act and French laws and regulations, and have been prepared in conformity with generally accepted accounting principles applied in the United States (“GAAP”) on a consistent basis throughout the periods involved (except (i) as otherwise noted therein and (ii) in the case of unaudited financial statements, which are subject to normal year-end adjustments and do not contain certain footnotes as permitted by the applicable rules of the Securities and Exchange Commission (the “Commission”)). |
| (d) | Independent Accountants. KPMG S.A. and Deloitte & Associés, who have audited certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements (which term as used in this Agreement includes the related notes thereto) included directly or incorporated by reference in the Disclosure Materials are independent public accountants with respect to the Company within the meaning of the Securities Act and as required by the AMF General Regulations and under the professional rules of the “Compagnie Nationale des Commissaires aux Comptes.” |
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| (e) | Authorization of the Reserved Issuance. The issuance of the Shares and Warrants have been duly authorized by the Company pursuant to resolutions passed at the Extraordinary General Meeting of the Shareholders of the Company held on May 12, 2022 (the “Annual General Meeting”) and the appropriate decisions of the Board of Directors dated June 8 , 2022. When delivered and paid for in the manner contemplated by this Agreement, (i) the Shares will have been duly and validly issued and fully paid and (ii) the Warrants will have been duly and validly issued. Upon exercise of the Warrants and payment of the exercise price, the Warrant Shares will have been duly and validly issued. The shareholders of the Company have no preemptive or other rights to acquire the Shares and Warrants other than preemptive rights (droits préférentiels de souscription) arising pursuant to the French Code de commerce which were validly waived in respect of such Shares and Warrants by the 18th Resolution and there are no restrictions on transfers of the Shares and Warrants under the laws of France or the statuts of the Company and at the time the Shares and Warrants are issued and delivered to the Subscribers they will be free and clear from any other claim, lien, encumbrance, security interest, defect or right of any third party. |
| (f) | Admission to Listing. Prior to the Closing Date and subject to the approval by the AMF of the Listing Prospectus, an application shall be made to Euronext to have the Shares (including the ordinary shares underlying the Warrants) admitted to trading and listed on Euronext. The Company has taken no action designed to, or likely to, have the effect of preventing the listing of the Shares (including the ordinary shares underlying the Warrants) on Euronext and the Company has not received any information (whether orally or in writing) suggesting that Euronext is contemplating refusing the listing of the Shares (including the ordinary shares underlying the Warrants). |
| (g) | Capitalization. The Company’s share capital is as disclosed in the Disclosure Materials; the ordinary shares composing the share capital of the Company and any outstanding American Depositary Shares (“ADSs”) as at the date hereof have been duly and validly authorized and issued and are fully paid, non-assessable and freely negotiable and have been issued in compliance with French law and, to the extent applicable, all United States federal, state and local securities laws; the holders of outstanding ordinary shares are not entitled to preemptive rights (droit préférentiel de souscription), priority rights (délai de priorité) or other similar rights to subscribe for securities of the Company, except for any such rights as have been effectively waived or complied with; and, except as set forth in the Disclosure Materials, no options, warrants, preemptive rights, rights of first refusal or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, any share capital of or ownership interests in the Company are outstanding. All the outstanding shares of the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of the Subsidiary are directly owned by the Company free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. As used herein with respect to the Shares of the Company, “non-assessable” means that no present or future holder of ordinary shares will be subject to personal liability, by reason of being such a holder, for additional payments or calls for further funds by the Company or any other person after the issuance of the ordinary shares. |
| (h) | French Disclosure. All information and other disclosure materials made publicly available by the Company were, as of the date they were made publicly available, true, complete and accurate in all material respects, and complied with the requirements of applicable French law, including French securities law, the Autorité des Marchés Financiers’s (“AMF”) regulation and guidelines, the European Commission Delegated Regulation (EU) no. 2019/980 and the European Commission Delegated Regulation (EU) no. 2019/979. |
| (i) | SEC Filings. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (the “SEC Filings”). As of the date hereof, such SEC Filings complied as to form in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and, as of their respective dates, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. |
| (j) | Authorization of this Agreement. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The Company has full power and capacity to enter into this Agreement; the execution and the completion of the operations described in this Agreement, and the issuance of the Shares and Warrants have been validly authorized pursuant to the 18th Resolution and the appropriate decisions of the Board of Directors (Conseil d’administration) made on June 8, 2022 and has been validly authorized by the Chief Executive Officer (Directeur Général) of the Company and all ceilings applicable to these authorizations have been respected; all the notices, authorizations and approvals necessary to proceed with the valid issuance of the Shares and Warrants, and those necessary for execution by the Company of its obligations hereunder have been duly obtained and will remain in force on the Closing Date. |
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| (k) | Corporate Purpose. The sale of the Shares and of the Warrants pursuant to this Agreement are in the Company’s corporate interest and serving the Company’s corporate purpose (objet social) as set forth in the Company’s by-laws (statuts) or other constitutional documents and are on an arm’s-length basis between the Company, on the one hand, and the Placement Agents and any of their respective affiliates through which they may be acting, on the other. |
| (l) | Absence of Violations, Defaults and Conflicts. Neither the Company nor the Subsidiary is in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiary or any of its properties, as applicable, except in the case of clauses (ii) and (iii), for such violation or default as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the issuance and sale of the Shares, Warrants or Warrant Shares nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiary pursuant to, (A) the charter or by-laws of the Company or the Subsidiary, (B) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Subsidiary is a party or bound or to which its or their property is subject, or (C) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiary or any of its or their properties, except in the case of clause (B) and (C), as would not reasonably be expected to have a Material Adverse Effect on the Company’s ability to consummate the transactions contemplated hereby. |
| (m) | Absence of Labor Dispute. No labor problem or dispute with the employees of the Company or the Subsidiary exists or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or the Subsidiary’s principal suppliers, contractors or customers, that would reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Materials. |
| (n) | Absence of Proceedings. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its or their property is pending or, to the knowledge of the Company, threatened that (i) would reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) would reasonably be expected to have a Material Adverse Effect, except as set forth in or incorporated by reference into the Disclosure Materials. |
| (o) | Absence of Further Requirements. Except as set forth in the Terms and Conditions of the Warrants and this Agreement, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the performance by the Company of its obligations hereunder in respect of the Reserved Issuance or the issuance of the Warrant Shares, except such as have already been obtained, and such as may be required under the Securities Act or the blue sky laws of any jurisdiction. |
| (p) | Possession of Licenses and Permits. The Company and the Subsidiary possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, except in each case, the lack of which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and neither the Company nor the Subsidiary have received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect except as set forth in or contemplated in the Disclosure Materials. |
| (q) | Compliance with Regulatory Laws. Except as described in the Disclosure Materials, as applicable, the Company and the Subsidiary (i) are and at all times have been in compliance with all applicable statutes, rules and regulations in the United States or any other jurisdiction applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product candidate under |
45
| development, manufactured or distributed by the Company, including, without limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the exclusion law (42 U.S.C. § 1320a-7), the statutes, regulations and directives of Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act) and all other government funded or sponsored healthcare programs including the TRICARE program (32 C.F.R. § 199.17), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, the regulations promulgated pursuant to such laws, including, without limitation, the collection and reporting requirements, and the processing of any applicable rebate, chargeback or adjustment, under applicable rules and regulations relating to the VA Federal Supply Schedule (38 U.S.C. § 8126) or under any U.S. Department of Veterans Affairs agreement, and any successor government programs, and comparable state laws, regulations relating to Good Clinical Practices and Good Laboratory Practices and all other local, state, federal, national, supranational and foreign health care laws, manual provisions, policies and administrative guidance, in each case relating to the regulation of the Company or the Subsidiary (collectively, the “Applicable Laws”), except for such non-compliance as would not, individually or in the aggregate, have a Material Adverse Effect; (ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third party alleging or asserting non-compliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits, registrations and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”), except for such non-compliance as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations, except for such violations as would not, individually or in the aggregate, have a Material Adverse Effect; (iv) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations nor, to the Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened; (v) have not received written notice that any court or arbitrator or governmental or regulatory authority has taken, is taking or intends to take action to materially limit, suspend, materially modify or revoke any Authorizations nor, to the Company’s knowledge, is any such limitation, suspension, modification or revocation threatened; (vi) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all material respects (or were corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority. |
| (r) | Pre-Clinical and Clinical Studies. The nonclinical studies and clinical trials conducted by or on behalf of or sponsored by the Company or the Subsidiary, or in which the Company or the Subsidiary have participated, that are described in the Disclosure Materials or the results of which are referred to in the Disclosure Materials, as applicable, and are intended to be submitted to Regulatory Authorities (as defined below) as a basis for product approval, were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific research procedures and all applicable statutes, rules and regulations of the U.S. Food and Drug Administration (“FDA”) and comparable drug regulatory agencies outside of the United States (including the Agence Nationale de Securité et du Médicament (“ANSM”)) to which they are subject (collectively, the “Regulatory Authorities”), including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58, and 312, and Good Clinical Practices and Good Laboratory Practices; the descriptions in the Disclosure Materials of the results of such studies, tests and trials are accurate and complete in all material respects and fairly present the data derived from such studies, tests and trials; the Company has no knowledge of any other trials the results of which are inconsistent with or otherwise call into question the results described or referred to in the Disclosure Materials; the Company and the Subsidiary have operated and are currently in compliance in all material respects with all applicable statutes, rules and regulations of the Regulatory Authorities; neither the Company nor the Subsidiary have received any written notices, correspondence or other communication from the Regulatory Authorities or any other governmental agency which could lead to the termination or suspension of any nonclinical studies or clinical trials that are described in the Disclosure Materials or the results of which are referred to in the Disclosure Materials, other than ordinary course communications, and, to the Company’s knowledge, there are no reasonable grounds for same. Except as set forth in the Disclosure Materials, the Company possesses all licenses, certificates, |
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| permits and other authorizations (collectively, “Permits”) issued by, and has made all declarations and filings with, the applicable federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of its properties or the conduct of its businesses as described in the Disclosure Materials, or to permit all nonclinical studies and clinical trials conducted by or on behalf of the Company, including, without limitation, all necessary FDA and applicable foreign regulatory agency approvals; the Company is not in violation of, or in default under, any such Permit, except as set forth in or contemplated in the Disclosure Materials; and the Company has not received notice of any revocation or modification of any such Permit and does not have any reason to believe that any such Permit will not be renewed in the ordinary course, except as set forth in or contemplated in the Disclosure Materials. The Company (i) is, and at all times has been, in compliance with all Applicable Laws, and (ii) has not received any FDA Form 483, written notice of adverse finding, warning letter, untitled letter or other correspondence or written notice from any Regulatory Authority alleging or asserting material non-compliance with (A) any Applicable Laws or (B) any Permits required by any such Applicable Laws. To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in all material respects with all applicable statutes, rules, regulations and policies of the Regulatory Authorities. |
| (s) | Title to Property. Each of the Company and the Subsidiary owns or leases all such properties as are necessary to the conduct of its operations as presently conducted in all material respects. |
| (t) | Possession of Intellectual Property. The Company and the Subsidiary own, possess, license or have other rights to use all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed to be conducted in the Disclosure Materials. Except as set forth in the Disclosure Materials, (i) there are no rights of third parties to any such Intellectual Property, except any rights which have not had and are not reasonably likely to result in a Material Adverse Effect; (ii) to the Company’s knowledge, there is no material infringement by third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any fact which would form a reasonable basis for any such claim; (vi) to the Company’s knowledge, there is no patent or published patent application in the United States which contains claims that interfere with the issued or pending claims of any Intellectual Property described in the Disclosure Materials as being owned by or licensed to the Company; and (vii) there is no prior art of which the Company is aware that is reasonably likely to render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office. |
| (u) | Environmental Laws. The Company and the Subsidiary are (i) in compliance in all material respects with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance in all material respects with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Materials. Except as set forth in the Disclosure Materials, neither the Company nor the Subsidiary have been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended. |
| (v) | Accounting Controls and Disclosure Controls. The Company and its consolidated subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Such internal controls |
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| over financial reporting are effective at the reasonable assurance level and the Company is not aware of any material weakness in internal controls over financial reporting. The Company and its consolidated subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective at the reasonable assurance level. |
| (w) | Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 relating to loans and Sections 302 and 906 relating to certifications. |
| (x) | Payment of Taxes. The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect or except as set forth in or contemplated in the Disclosure Materials) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect or except as set forth in or contemplated in the Disclosure Materials. |
| (y) | Insurance. The Company and the Subsidiary are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or the Subsidiary or its respective businesses, assets, employees, officers and directors are in full force and effect; the Company and the Subsidiary are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company or the Subsidiary under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor the Subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor the Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain coverage from insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Materials. |
| (z) | ERISA Compliance. None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan (as defined below), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the U.S. Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or the Subsidiary that would reasonably be expected to have a Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or the Subsidiary that would reasonably be expected to have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and the Subsidiary compared to the amount of such contributions made in the most recently completed fiscal year of the Company and the Subsidiary; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and the Subsidiary compared to the amount of such obligations in the most recently completed fiscal year of the Company and the Subsidiary; (iii) any event or condition giving rise to a liability under Title IV of ERISA that would reasonably be expected to have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or the Subsidiary related to their employment that would reasonably be expected to have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or the Subsidiary may have any liability. |
| (aa) | Brokers. Except as otherwise disclosed in that certain Engagement Letter dated June 7, 2022 by and among the Company and Placement Agents, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement. |
| (bb) | [Reserved]. |
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| (cc) | Investment Company Act. The Company is not, and after giving effect to the transactions contemplated by this Agreement, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”). |
| (dd) | Absence of Manipulation. Neither the Company nor the Subsidiary have taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or European Union and French laws, stabilization or manipulation of the price of the Shares or any security of the Company to facilitate the sale or resale of the Shares. |
| (ee) | No Market Abuse. The Company has complied and complies with any and all applicable rules relating to market abuse (including insider trading) and has taken adequate measures and has adequate procedures in place in order to ensure such compliance, and the sale of the Shares and the consummation of the transactions contemplated by this Agreement will not constitute a violation by the Company of any applicable “insider dealing,” “insider trading” or similar legislation, and no person acting on its behalf has done any act or engaged in any course of conduct constituting such violation. |
| (ff) | Related-Party Transactions. There are no business relationships or related-party transactions, including conventions réglementées under Article L. 225-38 et seq. of the French Commercial Code, involving the Company or any of its subsidiaries or any other person required to be described in the Disclosure Materials that have not been described as required. All related party transactions described therein have been duly authorized and executed by the Company or one of its subsidiaries, as the case may be. Neither the Company nor any of its subsidiaries is engaged in any material transaction with their respective directors, officers, management shareholders or any other person, including persons formerly holding such positions, on terms that are not available from or to other parties on an arm’s-length basis. |
| (gg) | No Unlawful Payments. Neither the Company nor the Subsidiary nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or the Subsidiary is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, the rules and regulations thereunder or the U.K. Bribery Act 2010, and Articles 432-11 et seq., 433-1 and 433-2, 433-22 to 433-25, 435-1 et seq. and 445-1 et seq. of the French Criminal Code or similar law of any other relevant jurisdiction (“Anti-Corruption Laws”); and neither the Company nor the Subsidiary nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or the Subsidiary is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a sanction for violation by such persons of the Anti-Corruption Laws; and prohibition of noncompliance therewith is covered by the codes of conduct or other procedures instituted and maintained by the Company and the Subsidiary. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary with respect to the Anti-Corruption Laws is pending or, to the knowledge of the Company, threatened. Neither the Company nor the Subsidiary will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws. |
| (hh) | Compliance with Anti-Money Laundering Laws. The operations of the Company and the Subsidiary are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. |
| (ii) | No Conflicts with Sanctions Laws. Neither the Company nor the Subsidiary nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or the Subsidiary (i) is currently the subject of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, the United Kingdom (including sanctions administered or controlled by Her Majesty’s Treasury) or France (including sanctions administered or controlled by the French Treasury) (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the offering and sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in any manner that will result in a violation of any applicable Sanctions by, or would reasonably be expected to result in the imposition of Sanctions against, any person (including any person participating in the offering, whether as an underwriter, |
49
| advisor, investor or otherwise). Neither the Company nor the Subsidiary nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or the Subsidiary, is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (including, but not limited to, Crimea, the so-called Donetsk People’s Republic or the so-called Luhansk People’s Republic, Cuba, Iran, Iraq, North Korea and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”). Neither the Company nor the Subsidiary have engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three years, nor does the Company or the Subsidiary have any plans to increase its dealings or transactions with Sanctioned Persons, or with or in Sanctioned Countries. |
| (jj) | Lending Relationship. Except as disclosed in the Disclosure Materials, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of the Placement Agents and (ii) does not intend to use any of the proceeds from the sale of the Shares and Warrants to repay any outstanding debt owed to any affiliate of the Placement Agents. |
| (kk) | [Reserved]. |
| (ll) | No Immunity. Neither the Company nor the Subsidiary nor any of their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise). |
| (mm) | No Marketing Approval. None of the Company’s product candidates have received marketing approval from any regulatory authority. |
| (nn) | Cybersecurity. Except as disclosed in the Disclosure Materials, (x) to the Company’s knowledge, there has been no material security breach or other material compromise of or relating to any of the Company’s or the Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third-party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and the Subsidiary have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or other material compromise to their IT Systems and Data; (ii) the Company and the Subsidiary are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and (iii) the Company has implemented backup and disaster recovery technology consistent with generally accepted industry standards and practices for companies of a similar size and stage of development. |
| (oo) | Privacy. The Company and the Subsidiary are, and at all times have been, in material compliance with all applicable data privacy and security laws and regulations, including the European Union General Data Protection Regulation (EU 2016/679) (collectively, the “Privacy Laws”). The Company and the Subsidiary have at all times made all material disclosures to users or customers required by Privacy Laws, and such disclosures have been accurate in all material respects and not in violation of any Privacy Law. To the knowledge of the Company, the execution, delivery and performance of this Agreement or any other agreement referred to in this Agreement will not result in a breach or violation of any Privacy Laws. The Company and the Subsidiary (i) have not received written notice from any governmental authority of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (ii) are not currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law, and (iii) are not a party to any order or decree that imposes any obligation or liability under any Privacy Law. |
| (pp) | Stock Exchange Listing. The company’s ordinary shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the ADSs are listed on the Nasdaq or such other national securities exchange on which the ADSs are then listed (the “Principal Market”), and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the ordinary shares under the Exchange Act or delisting the ADSs from the Principal Market, nor has the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market and of Euronext. |
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| (qq) | No Unlawful Contributions or Other Payments. Except as otherwise disclosed in the Disclosure Materials, neither the Company nor any of the Subsidiary nor, to the best of the Company’s knowledge, any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation of any law or of the character required to be disclosed in the Disclosure Materials. |
| (rr) | Duties, Transfer Taxes, Etc. No transaction, stamp, documentary, capital, issuance, registration, transfer, (including, for the avoidance of doubt, financial transaction tax as set out in Article 235 ter ZD of the Code général des impôts) are payable by or on behalf of the Placement Agents, the Company or the Subsidiary in France or to any taxing authority thereof or therein in connection with (i) the issuance, sale and delivery of the Shares and Warrants by the Company; (ii) the transfer of the Shares or Warrants by the Placement Agents; or (iii) the execution, delivery and performance of this Agreement or any other document to be furnished hereunder. |
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EXHIBIT II
Form of Notice
Bank account from which the aggregate Subscription Price will be wired:
[•]
Securities account to which the Shares will be transferred:
[•]
Securities account to which the Warrants will be transferred:
[•]
Aggregate Subscription Price: €[-]
Number of Shares: [-]
Number of Warrants: [-]
52
EXHIBIT III
Details of the “augmentation de capital” bank account opened in the books of the Centralizing Agent
[***]
53
EXHIBIT IV
REGISTRATION RIGHTS AGREEMENT
[Registration Rights Agreement separately filed]
54
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of June 8, 2022 by and among DBV Technologies S.A., a société anonyme organized under the laws of the French Republic (the “Company”), and the “Investors” named in the Securities Purchase Agreement, dated as of the date hereof, by and among the Company and the Investors identified on Schedule I attached thereto (the “Purchase Agreement”). Capitalized terms used herein have the respective meanings ascribed thereto in the Purchase Agreement unless otherwise defined herein.
The parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall have the following meanings:
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“ADSs” means American Depositary Shares, each representing one-half of one Ordinary Share.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York are open for the general transaction of business.
“Closing Date” means the last “Closing Date,” as defined in the Purchase Agreement, with respect to the purchase and sale of all Securities set forth on Schedule I to the Purchase Agreement.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Investors” means the Investors identified in the Purchase Agreement and any Affiliate or permitted transferee of any such Investor who is a subsequent Holder of Registrable Securities.
“Ordinary Shares” means the Company’s ordinary shares, of €0.10 nominal value each and includes ordinary shares in the form of ADSs.
“Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.
“Purchased Shares” means the Ordinary Shares purchased by the Investors pursuant to the Purchase Agreement.
“Prospectus” means (i) the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the 1933 Act.
“Register,” “registered” and “registration” refer to a registration made by preparing and filing a Registration Statement or similar document in compliance with the 1933 Act, and the declaration or ordering of effectiveness of such Registration Statement or document.
“Registrable Securities” means (i) the Purchased Shares, (ii) the Warrant Shares then issued or issuable upon exercise of the Warrants (without regard to any exercise limitations therein), and (iii) any other Ordinary Shares issued as a dividend or other distribution with respect to, in exchange for or in replacement of the Purchased
Shares or the Warrant Shares, in each case issued and sold pursuant to the Purchase Agreement; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) upon the first to occur of (A) a Registration Statement with respect to the sale of such Registrable Securities being declared effective by the SEC under the 1933 Act and such Registrable Securities having been disposed of by the Holder thereof in accordance with such effective Registration Statement, (B) such Registrable Securities having been sold in accordance with Rule 144 (or another exemption from the registration requirements of the 1933 Act), (C) such Registrable Securities becoming eligible for resale without volume or manner-of-sale restrictions and without current public information requirements pursuant to Rule 144 and (D) the fifth anniversary of the Closing Date. For the avoidance of doubt, any provision herein requiring the calculation of the number of Registrable Securities as of any date, or the computation of a percentage of Registrable Securities, shall be deemed to refer to the number of Ordinary Shares constituting Registrable Securities as of such date, assuming the Warrants are exercisable without regard to any exercise limitations.
“Registration Statement” means any registration statement of the Company under the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all material incorporated by reference in such Registration Statement.
“Required Investors” means the Investors holding a majority of the Registrable Securities outstanding from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the SEC staff, or any comments, requirements or requests of the SEC staff and (ii) the 1933 Act.
“Securities” means, collectively, the Purchased Shares and the Warrants.
“Selling Stockholder Questionnaire” means the Selling Stockholder Notice and Questionnaire, in the form attached hereto as Annex B (or similar form reasonably satisfactory to the Company and sufficient in substance for the Company to obtain the information necessary to effect the transactions contemplated by the Transaction Documents).
“Trading Day” means a day on which the Ordinary Shares are listed, quoted and traded on the Nasdaq Global Select Market in the form of ADSs; provided, that in the event that the Ordinary Shares in the form of ADSs are not listed or quoted as set forth in the foregoing sentence, then Trading Day shall mean a Business Day.
“Transaction Documents” means this Agreement and the Purchase Agreement.
“Warrants” has the meaning ascribed to it in the Purchase Agreement.
“Warrant Shares” means Ordinary Shares issuable upon exercise of the Warrants.
2. Registration.
(a) Registration Statements.
(i) No later than sixty (60) calendar days after the Closing Date (the “Filing Deadline”), the Company shall prepare and file with the SEC one Registration Statement covering the resale of all of the Registrable Securities which, for the avoidance of doubt, may also register the sale or issuance of primary securities. Subject to any SEC comments, such Registration Statement shall include the plan of distribution, substantially in the form and substance attached hereto as Annex A. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional Ordinary Shares resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement (and each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investors prior to its filing or other submission. If a Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline, the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for each 30-day period or pro rata for any portion thereof following the Filing Deadline for which no Registration Statement is filed with respect to the Registrable Securities. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. Such payments shall be made to each Investor in cash no later than five (5) Business Days after the end of each such 30-day period (the “Payment Date”). Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(a)(i) with respect to any Warrant Shares prior to the issuance thereof.
(ii) The Company shall take reasonable efforts to register the Registrable Securities on Form S-3 if such form is available for use by the Company, provided that if at such time the Registration Statement is on Form S-1, the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC.
(b) Expenses. The Company will pay all expenses associated with each Registration Statement, including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws and listing fees, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold. Except as provided in Section 6 hereof, the Company shall not be responsible for legal fees incurred by Holders of Registrable Securities in connection with the performance of its rights and obligations under the Transaction Documents.
(c) Effectiveness.
(i) The Company shall use commercially reasonable efforts to have the Registration Statements declared effective as soon as reasonably practicable after the filing thereof. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) ten Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and (ii) the 60th day after the Closing Date (or the 120th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid in cash no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period (the “Blackout Period Payment Date”). Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(c)(i) with respect to any Warrant Shares prior to the issuance thereof.
(ii) Notwithstanding anything to the contrary contained herein, (i) the Company shall not be required to file a Registration Statement (or any amendment thereto) or, if a Registration Statement has been filed but not declared effective by the SEC, request effectiveness of such Registration Statement, for a period of up to forty-five (45) days, if (A) the Company determines in good faith that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company, or any proposed financing, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company), (B) the Company determines such registration would render the Company unable to comply with applicable securities laws, (C) the Company determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (D) audited financial statements as of a date other than the fiscal year end of the Company would be required to be prepared; and (ii) the Company may, upon written notice to any Holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall Holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 180-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to Holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
(d) Rule 415; Cutback. If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the 1933 Act (provided, however, the Company shall be obligated to use commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) or requires any Investor to be named as an “underwriter,” the Company shall (i) promptly notify each Holder of Registrable Securities thereof and (ii) make commercially reasonable efforts to persuade the SEC that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Investors is an “underwriter.” The Investors shall have the right to select one legal counsel designated by the Required Investors, at such Investors’ expense, to review and oversee any registration or matters pursuant to this Section 2(d), including participation in any meetings or discussions with the SEC regarding the SEC’s position and to comment on any written submission made to the SEC with respect thereto. No such written submission with respect to this matter shall be made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i) remove from such Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) as provided below and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”). Unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows (unless the SEC Restrictions otherwise require or provide or the Holders otherwise agree):
| a. | First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities; |
| b. | Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and |
| c. | Third, the Company shall reduce Registrable Securities represented by Purchased Shares (applied, in the case that some Purchased Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Purchased Shares held by such Holders). |
No liquidated damages shall accrue as to any Cut Back Shares until such date as the Company is able to effect the registration of such Cut Back Shares in accordance with any SEC Restrictions applicable to such Cut Back Shares (such date, the “Restriction Termination Date”). In furtherance of the foregoing, each Investor shall provide the Company with prompt written notice of its sale of substantially all of the Registrable Securities under such Registration Statement such that the Company will be able to file one or more additional Registration Statements covering the Cut Back Shares. From and after the Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this Section 2 (including the Company’s obligations with respect to the filing of a Registration Statement and its obligations to use reasonable efforts to have such Registration Statement declared effective within the time periods set forth herein and the liquidated damages provisions relating thereto) shall again be applicable to such Cut Back Shares; provided, however, that (i) the Filing Deadline for such Registration Statement including such Cut Back Shares shall be ten (10) Business Days after such Restriction Termination Date, and (ii) the date by which the Company is required to obtain effectiveness with respect to such Cut Back Shares shall be the 60th day immediately after the Restriction Termination Date (or the 120th day if the SEC reviews such Registration Statement).
(e) Other Limitations. Notwithstanding any other provision herein or in the Purchase Agreement, (i) the Filing Deadline and each Effectiveness Deadline for a Registration Statement shall be extended and any Maintenance Failure shall be automatically waived by no action of the Investors, in each case, without default by or liquidated damages payable by the Company to an Investor hereunder in the event that the Company’s failure to make such filing or obtain such effectiveness or a Maintenance Failure results from the failure of such Investor to timely provide the Company with information requested by the Company and necessary to complete a Registration Statement in accordance with the requirements of the 1933 Act (in which case any such deadline would be extended, and a Maintenance Failure waived, with respect to all Registrable Securities until such time as the Investor provides such requested information), it being understood that the failure of such Investor to timely provide such information to the Company shall not affect the rights of other Investors herein, and (ii) in no event shall the aggregate amount of liquidated damages (or interest thereon) paid under this Agreement to any Investor exceed, in the aggregate, 5% of the aggregate purchase price of the Securities purchased by such Investor under the Purchase Agreement or pursuant to the exercise of the Warrants.
3. Company Obligations. The Company will use commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Company will, as expeditiously as possible:
(a) use commercially reasonable efforts to cause such Registration Statement to become effective and to remain continuously effective until such time as there are no longer Registrable Securities held by the Investors (the “Effectiveness Period”) and advise the Investors promptly in writing when the Effectiveness Period has expired;
(b) prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement and the related Prospectus as may be necessary to keep such Registration Statement effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the 1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;
(c) provide via email to the Investors who have supplied the Company with email addresses each Registration Statement and all amendments and supplements thereto not less than three (3) Trading Days prior to their filing with the SEC and reflect in each such document when so filed with the SEC such comments regarding the Investors and the plan of distribution as the Investors may reasonably and promptly propose no later than two (2) Trading Days after the Investors have been so furnished with copies of such documents as aforesaid;
(d) furnish to each Investor whose Registrable Securities are included in any Registration Statement (i) promptly after the same is prepared and filed with the SEC, if requested by such Investor, one (1) copy of any Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as each Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor (it being understood and agreed that such documents, or access thereto, may be provided electronically);
(e) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such order at the earliest possible moment;
(f) prior to any public offering of Registrable Securities, use reasonable best efforts to assist or cooperate with the Investors and their counsel in connection with their registration or qualification of such Registrable Securities for the offer and sale under the securities or blue sky laws of such jurisdictions reasonably requested by the Investors; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3(f), or (iii) file a general consent to service of process in any such jurisdiction;
(g) use commercially reasonable efforts to cause all Registrable Securities covered by a Registration Statement to be listed on The Nasdaq Global Select Market (or the primary securities exchange, interdealer quotation system or other market on which the Ordinary Shares are then listed);
(h) promptly notify the Investors, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and as promptly as reasonably practicable, prepare, file with the SEC and furnish to such Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(i) comply with all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act, including, without limitation, Rule 172 under the 1933 Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the 1933 Act, promptly inform the Investors in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Investors are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and
(j) with a view to making available to the Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investors to sell Ordinary Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable Securities may be sold without restriction by the Holders thereof pursuant to Rule 144 or any other rule of similar effect or (B) such date as there are no longer Registrable Securities; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the 1934 Act; and (iii) furnish electronically to each Investor upon request, as long as such Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the 1934 Act, (B) a copy of or electronic access to the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail such Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.
4. Due Diligence Review; Information. If any Investor is required under applicable securities laws to be described in a Registration Statement as an “underwriter,” the Company shall, upon reasonable prior notice, make available, during normal business hours, for inspection and review by the Investors, advisors to and representatives of the Investors (who may or may not be affiliated with the Investors and who are reasonably acceptable to the Company) (collectively, the “Inspectors”), all pertinent financial and other records, and all other corporate documents and
properties of the Company (collectively, the “Records”) as may be reasonably necessary for the purpose of such review, and cause the Company’s officers, directors and employees, within a reasonable time period, to supply all such information reasonably requested by the Inspectors (including, without limitation, in response to all questions and other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of such Registration Statement for the sole purpose of enabling such Investor and its accountants and attorneys to conduct such due diligence solely for the purpose of establishing a due diligence defense to underwriter liability under the 1933 Act; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to such Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this Agreement or the Purchase Agreement. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and any Investor) shall be deemed to limit the Investors’ ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
Notwithstanding the foregoing, the Company shall not disclose material nonpublic information to the Investors, or to advisors to or representatives of the Investors, unless prior to disclosure of such information the Company identifies such information as being material nonpublic information and provides the Investors, such advisors and representatives with the opportunity to accept or refuse to accept such material nonpublic information for review and any Investor wishing to obtain such information enters into an appropriate confidentiality agreement with the Company with respect thereto.
5. Obligations of the Investors.
(a) Each Investor shall execute and deliver a Selling Stockholder Questionnaire prior to the Closing Date. Each Investor shall additionally furnish in writing to the Company such other information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least seven (7) Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Investor of the additional information the Company requires from such Investor if such Investor elects to have any of the Registrable Securities included in such Registration Statement (the “Registration Information Notice”). An Investor shall provide such information to the Company no later than five (5) Business Days following receipt of a Registration Information Notice if such Investor elects to have any of the Registrable Securities included in such Registration Statement. It is agreed and understood that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Investor that (i) such Investor furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the effectiveness of the registration of such Registrable Securities, and (ii) such Investor execute such documents in connection with such registration as the Company may reasonably request, including, without limitation, a waiver of its registration rights hereunder to the extent an Investor elects not to have any of its Registrable Securities included in a Registration Statement.
(b) Each Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Investor has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(h) hereof, such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement covering such Registrable Securities, until the Investor is advised by the Company that such dispositions may again be made.
(d) Each Investor covenants and agrees that it will comply with the prospectus delivery requirements of the 1933 Act as applicable to it or an exemption therefrom in connection with sales of Registrable Securities pursuant to any Registration Statement.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold harmless each Investor and its officers, directors, members, managers, partners, trustees, employees and agents and other representatives, successors and assigns, and each other Person, if any, who controls such Investor (within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act) and the officers, directors, partners, members, managers, trustees and employees of each such controlling Person, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement or omission or alleged omission of any material fact contained in any Registration Statement, any preliminary Prospectus or final Prospectus, or any amendment or supplement thereof, (ii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement; provided, however, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Investor or any such controlling person in writing specifically for use in such Registration Statement or Prospectus, (ii) the use by an Investor of an outdated or defective Prospectus after the Company has notified such Investor in writing that such Prospectus is outdated or defective or (iii) an Investor’s failure to send or give a copy of the Prospectus or supplement (as then amended or supplemented), if required (and not exempted) to the Persons asserting an untrue statement or omission or alleged untrue statement or omission at or prior to the written confirmation of the sale of Registrable Securities.
(b) Indemnification by the Investors. Each Investor agrees, severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors, officers, employees, stockholders and each person who controls the Company (within the meaning of the 1933 Act) against any losses, claims, damages, liabilities and expense (including reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of a material fact required to be stated in any Registration Statement or Prospectus or preliminary Prospectus or amendment or supplement thereto or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information regarding such Investor and furnished in writing by such Investor to the Company specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement thereto. In no event shall the liability of an Investor be greater than the dollar amount of the proceeds received by such Investor upon the sale of the Registrable Securities included in such Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to indemnification hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (A) the indemnifying party has agreed to pay such fees or expenses, (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (C) in the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and provided, further that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable
for fees or expenses of more than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying party will, except with the consent of the indemnified party, which shall not be unreasonably withheld or conditioned, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 6 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a writing signed by the Company and the Required Investors. Notwithstanding the foregoing, this Agreement may not be amended and the observance of any term of this Agreement may not be waived with respect to any Investor without the written consent of such Investor unless such amendment or waiver applies to all Investors in the same fashion. The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of the Required Investors and such amendment, action or omission is applicable to, or impacts, all Investors in the same fashion.
(b) Notices. All notices and other communications provided for or permitted hereunder shall be made as set forth in Section 8 of the Purchase Agreement.
(c) Assignments and Transfers by Investors. The provisions of this Agreement shall be binding upon and inure to the benefit of the Investors and their respective successors and permitted assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more persons its rights hereunder (but only with all related obligations) in connection with the transfer of Registrable Securities by such Investor to such person, provided that (i) the Investor agrees in writing with the transferee or assignee to assign such rights and a copy of such agreement is furnished to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (A) the name and address of such transferee or assignee and (B) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the 1933 Act or applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; (v) such transfer shall have been made in accordance with the applicable requirements of the Purchase Agreement; and (vi) unless the transferee or assignee is an Affiliate of, and after such transfer or assignment continues to be an Affiliate of, such Investor, the amount of Registrable Securities transferred or assigned to such transferee or assignee represents at least $5.0 million of Registrable Securities (based on the then-current market price of the Ordinary Shares).
(d) Assignments and Transfers by the Company. This Agreement may not be assigned by the Company (whether by operation of law or otherwise) without the prior written consent of the Required Investors, provided, however, that in the event that the Company is a party to a merger, consolidation, share exchange or similar business combination transaction in which the Ordinary Shares are converted into the equity securities of another Person, from and after the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person and the term “Registrable Securities” shall be deemed to include the securities received by the Investors in connection with such transaction unless such securities are otherwise freely tradable by the Investors after giving effect to such transaction.
(e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
(f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(g) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof (other than sections 5-1401 and 5-1402 of the General Obligations Law). Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(l) Interpretation. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. All article, section, paragraph or clause
references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex, letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to this Agreement. In addition, the word “or” is not exclusive; the words “including,” “includes,” “included” and “include” are deemed to be followed by the words “without limitation”; and the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision.
(m) Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor hereunder are several and not joint with the obligations of any other Investor hereunder, and no Investor shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Investors are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Investors are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions. Each Investor shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or decision of any Investor, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Investor. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and an Investor, solely, and not between the Company and the Investors collectively and not between and among Investors.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| DBV TECHNOLOGIES S.A. | ||
| By: | /s/ Daniel Tassé | |
| Name: | Daniel Tassé | |
| Title: | Chief Executive Officer | |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: | ||
| 667, L.P. | ||
| BY: BAKER BROS. ADVISORS LP, management company and investment adviser to 667, L.P., pursuant to authority granted to it by Baker Biotech Capital, L.P., general partner to 667, L.P., and not as the general partner. | ||
| By: | /s/ Scott Lessing | |
| Name: | Scott Lessing | |
| Title: | President |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: | ||
| BAKER BROTHERS LIFE SCIENCES, L.P. | ||
| By: BAKER BROS. ADVISORS LP, management company and investment adviser to Baker BrothersLife Sciences, L.P., pursuant to authority granted to it by Baker Brothers Life Sciences Capital, L.P., general partner to Baker Brothers Life Sciences, L.P., and not as the general partner. | ||
| By: | /s/ Scott Lessing | |
| Name: | Scott Lessing | |
| Title: | President |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: | ||
| BPIFRANCE PARTICIPATIONS | ||
| By: | /s/ Mailys Ferrere | |
| Name: Mailys Ferrere | ||
| Title: Directrice Pôle Investissement Large Venture Authorised Signatory | ||
| Address: | ||
| 27-31 avenue du Général Leclerc 94710 Maisons-Alfort Cedex France | ||
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: |
| Braidwell Partners Master Fund LP |
| By its Investment Manager, Braidwell LP |
| /s/ Colin Bettison |
| Colin Bettison |
| Head of Finance & Operations |
| /s/ Manish K. Mital |
| Manish K. Mital |
| Chief Operating Officer & General Counsel |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: FAIRMOUNT HEALTHCARE FUND L.P. | ||
| By: | /s/ Peter Harwin | |
| Print Name: | Peter Harwin |
| Title: | Managing Member |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: FAIRMOUNT HEALTHCARE FUND II L.P. | ||
| By: | /s/ Peter Harwin | |
| Print Name: | Peter Harwin |
| Title: | Managing Member |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: Invus Public Equities, L.P. | ||
| By: | /s/ Khalil Barrage | |
| Print Name: | Khalil Barrage |
| Title: | Vice President of the General Partner |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: | ||
| RA CAPITAL HEALTHCARE FUND, L.P. | ||
| By: RA Capital Healthcare Fund GP, LLC | ||
| Its: General Partner | ||
| By: | /s/ Peter Kolchinsky | |
| Name: | Peter Kolchinsky | |
| Title: | Manager |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| INVESTOR: | ||
| VENROCK HEALTHCARE CAPITAL PARTNERS EG, L.P. | ||
| By: VHCP Management EG, LLC, its general partner | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: | Authorized Signatory | |
| VENROCK HEALTHCARE CAPITAL PARTNERS III, L.P. | ||
| By: VHCP Management III, LLC, its general partner | ||
| By: VR Advisor, LLC, its manager | ||
| VHCP CO-INVESTMENT HOLDINGS III, LLC | ||
| By: VHCP Management III, LLC, its manager | ||
| By: VR Advisor, LLC, its manager | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: | Authorized Signatory | |
| VENROCK HEALTHCARE CAPITAL PARTNERS II, L.P. | ||
| By: VHCP Management II, LLC, its general partner | ||
| By: VR Advisor, LLC, its manager | ||
| VHCP CO-INVESTMENT HOLDINGS II, LLC | ||
| By: VHCP Management II, LLC, its manager | ||
| By: VR Advisor, LLC, its manager | ||
| By: | /s/ Nimish Shah | |
| Name: | Nimish Shah | |
| Title: | Authorized Signatory | |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| Vivo Opportunity Fund Holdings, L.P. | ||
| By: Vivo Opportunity, LLC, General Partner | ||
| By: | /s/ Gaurav Aggarwal | |
| Name: | Gaurav Aggarwal | |
| Title: | Managing Member |
[Signature Page to Registration Rights Agreement]
Annex A
Plan of Distribution
Each Selling Stockholder (the “Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on The Nasdaq Global Select Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| • | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | privately negotiated transactions; |
| • | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
| • | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| • | a combination of any such methods of sale; or |
| • | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM 2121.01.
In connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities; provided, however, that each Selling Stockholder will pay all underwriting discounts and selling commissions, if any, and any related legal expenses incurred by it. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act. The Company may be indemnified by the Selling Stockholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to the Company by the Selling Stockholders specifically for use in this prospectus in accordance with the related Registration Rights Agreement, or the Company may be entitled to contribution.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect or (ii) the date on which all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the ordinary shares for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the ordinary shares by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
Annex B
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner of ordinary shares, including in the form of American Depositary Shares, and/or ordinary shares acquirable upon exercise of certain outstanding warrants (the “Registrable Securities”) of DBV Technologies S.A., a société anonyme organized under the laws of the French Republic (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement.
QUESTIONNAIRE
The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
| 1. | Name. |
(a) Full Legal Name of Selling Stockholder:
(b) Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held:
(c) Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
| 2. | Address for Notices to Selling Stockholder: |
Telephone:
Fax:
Contact Person:
| 3. | Broker-Dealer Status: |
(a) Are you a broker-dealer?
Yes ☐ No ☐
(b) If “yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to the Company?
Yes ☐ No ☐
Note: If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
Yes ☐ No ☐
(d) If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
Yes ☐ No ☐
Note: If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
| 4. | Beneficial Ownership of Securities of the Company Owned by the Selling Stockholder. |
Except as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable pursuant to the Purchase Agreement.
(a) Type and Amount of other securities beneficially owned by the Selling Stockholder:
| 5. | Relationships with the Company: |
Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
The undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
| Beneficial Owner: | ||||||||
| Date: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
PLEASE EMAIL A PDF COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Exhibit 99.1
Montrouge, France, June 9, 2022
DBV Technologies Announces Private Placement Financing of $194 Million
DBV Technologies (Euronext: DBV – ISIN: FR0010417345 – Nasdaq Global Select Market: DBVT), a clinical-stage biopharmaceutical company, today announced an aggregate $194 million private investment in public equity (PIPE) financing (corresponding to €181 million on the basis of an exchange rate of $1.0739 = €1.00 published by the European Central Bank on June 8, 2022) from the sale of 32,855,669 ordinary shares, as well as pre-funded warrants to purchase up to 28,276,331 ordinary shares. The ordinary shares will be sold to the purchasers at a price per ordinary share of €3.00 (corresponding to $3.22), and the pre-funded warrants will be sold to the purchasers at a pre-funded price of €2.90 (corresponding to $3.11) per pre-funded warrant, which equals the per share price for the ordinary shares less the remaining €0.10 exercise price for each such pre-funded warrant. Gross proceeds from the PIPE financing total approximately $194 million (corresponding to €181 million), before deducting private placement expenses. The closing of the PIPE financing is subject to customary closing conditions and is expected to close on June 13, 2022.
The ordinary shares, including the ordinary shares issuable upon exercise of the pre-funded warrants, have not been registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements. The Company has agreed to file a registration statement with the Securities and Exchange Commission registering the resale of the ordinary shares, including the ordinary shares underlying the pre-funded warrants.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.
Goldman Sachs Bank Europe SE and SVB Securities LLC acted as placement agents in the private placement.
Braidwell LP, funds advised by Baker Bros. Advisors LP and BpiFrance Participations SA, each a current shareholder of the Company, and Venrock Healthcare Capital Partners, have subscribed respectively an aggregate of $11 million, $38 million, $8 million and $30 million of ordinary shares. Braidwell LP, Baker Bros. Advisors LP and Venrock Healthcare Capital Partners have subscribed respectively an aggregate of $19 million, $41 million, $28 million of pre-funded warrants. Other investors in the private placement include Fairmount, RA Capital Management and Vivo Capital. The price of the ordinary shares and the price of the pre-funded warrants was equal to the average of the closing prices of the Company’s ordinary shares on Euronext Paris over the five (5) trading days prior to the launch of the global offering (i.e. June 8th, 7th, 6th, 3rd and 2nd), with a premium of 0.8%. The new ordinary shares and pre-funded warrants will be issued through a capital increase without shareholders’ pre-emptive rights by means of a reserved offering to specific categories of investors under the provision of Article L. 225-138 of the French Commercial Code and pursuant to the decisions of the Chief Executive Officer dated June 9, 2022 and the Company’s Board of Directors (Conseil d’Administration) dated June 8, 2022, in accordance with the delegations granted pursuant to resolution 18 adopted at the 2022 ordinary and extraordinary meeting of the Company’s shareholders (Assemblée Générale Mixte) held on May 12, 2022. The representatives of Baker Bros. Advisors LP and BpiFrance Participations SA to the Company’s Board of Directors (Conseil d’Administration) did not take part in the vote on the decisions at the meeting of the Board of Directors held on June 8, 2022.
Application will be made to list the new ordinary shares to be issued pursuant to the PIPE financing on the regulated market of Euronext Paris pursuant to a listing prospectus subject to the approval by the Autorité des Marchés Financiers (“AMF”) and comprising (i) the 2021 universal registration document filed with the AMF on March 9, 2022 (document d’enregistrement universel 2021) under number D. 22-0081, as completed by an amendment to the 2021 universal registration document to be filed with the AMF on June 9, 2022 and (ii) a Securities Note (Note
d’opération), including (iii) a summary of the prospectus. Copies of the Company’s 2021 universal registration document, as amended, will be available free of charge at the Company’s head office located at 177-181 avenue Pierre Brossolette – 92120 Montrouge – France. The listing prospectus will be published on the AMF’s website at www.amf-france.org.
About DBV Technologies
DBV Technologies is developing Viaskin™, an investigational proprietary technology platform with broad potential applications in immunotherapy. Viaskin is based on epicutaneous immunotherapy, or EPIT™, DBV Technologies’ method of delivering biologically active compounds to the immune system through intact skin. With this new class of non-invasive product candidates, the Company is dedicated to safely transforming the care of food allergic patients. DBV Technologies’ food allergies programs include ongoing clinical trials of Viaskin Peanut. DBV Technologies has global headquarters in Montrouge, France, and North American operations in Basking Ridge, NJ. The Company’s ordinary shares are traded on segment B of Euronext Paris (Ticker: DBV, ISIN code: FR0010417345) and the Company’s ADSs (each representing one-half of one ordinary share) are traded on the Nasdaq Global Select Market (Ticker: DBVT).
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as “anticipate,” “could,” “expect,” “look forward,” “target,” “will,” and similar expressions (as well as other words or expressions referencing future events, conditions or circumstances) are intended to identify forward-looking statements. These statements relate to future events and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future performances or achievements expressed or implied by the forward-looking statements. Each of these statements is based only on current information, assumptions and expectations that are inherently subject to change and involve a number of risks and uncertainties. Forward-looking statements include, but are not limited to, statements related to the anticipated proceeds to be received in the proposed PIPE financing, expected timing of closing of the proposed PIPE financing and the size and completion of the proposed PIPE financing. Detailed information regarding risk factors that may cause actual results to differ materially from the results expressed or implied by statements in this press release may be found in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 9, 2022 and in the Company’s 2021 universal registration document filed with the AMF on March 9, 2022 (document d’enregistrement universel 2021) under number D. 22-0081, and subsequent filings made by the Company with the Securities and Exchange Commission and the AMF. These forward-looking statements speak only as of the date hereof. The Company disclaims any obligation to update these forward-looking statements except as required by law.
Investor Contact
Anne Pollak
DBV Technologies
+1 857-529-2363
anne.pollak@dbv-technologies.com
Media Contacts
Angela Marcucci
DBV Technologies
+1 646-842-2393
angela.marcucci@dbv-technologies.com