Sequans Communications 6-K/A, filed Jun 23, 2025
Sequans Communications (SQNS)
6-K/A
2025-06-23
For: 2025-06-23
View Original
Added on
August 22, 2026
About this 6-K/A
Sequans Communications filed this 6-K/A on June 23, 2025.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K/A
Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 under the Securities Exchange Act of 1934
For the month of June 2025
Commission File Number: 001-35135
Sequans Communications S.A.
(Translation of Registrant’s name into English)
15-55 boulevard Charles de Gaulle
92700 Colombes, France
Telephone : +33 1 70 72 16 00
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F R Form 40-F £
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Yes £ NoR
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Yes £ NoR
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.
The information in this report furnished on Form 6-K shall be incorporated by reference into each of the following Registration Statements under the Securities Act of 1933, as amended, of the registrant: Form S-8 (File Nos. 333-187611, 333-194903, 333-203539, 333-211011, 333-214444, 333-215911, 333-219430, 333-226458, 333-233473, 333-239968, 333-259914 and 333-266481) and Form F-3 (File Nos. 333-255865 and 333-271884).
EXPLANATORY NOTE
Sequans Communications S.A. is filing this Amendment No. 1 to its Form 6-K (this “Amendment”), originally filed with the Securities and Exchange Commission (the “SEC”) on June 23, 2025 (the “Original 6-K”), solely to file exhibits 4.1, 4.2, 4.3, 10.1, 10.2, 10.3, 10.4 and 10.5. This Amendment does not amend or change any of the information previously disclosed in the Original 6-K. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Original 6-K.
EXHIBIT INDEX
The following exhibit is filed as part of this Form 6-K/A:
Exhibit | Description | ||||
| 4.1 | Terms and Conditions of the Pre-Funded Warrants | ||||
| 4.2 | Terms and Conditions of the Warrants | ||||
| 4.3 | Form of Secured Convertible Debenture | ||||
| 10.1 | Form of Securities Purchase Agreement | ||||
| 10.2 | Form of Secured Convertible Debenture Purchase Agreement | ||||
| 10.3 | Form of Registration Rights Agreement | ||||
| 10.4 | Form of Registration Rights Agreement | ||||
| 10.5 | Form of Guaranty and Security Agreement | ||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
SEQUANS COMMUNICATIONS S.A. (Registrant) | ||||||||||||||
| Date: June 23, 2025 | By: | /s/ Deborah Choate | ||||||||||||
| Deborah Choate | ||||||||||||||
| Chief Financial Officer | ||||||||||||||
Exhibit 4.1
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
THESE TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS DO NOT CONSTITUTE A CERTIFICATE REPRESENTING THE PRE-FUNDED WARRANTS.
Sequans Communications 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 450 249 677, with a registered capital of Euros 2,514,089.22 and having its registered office at Les Portes de la Défense, 15-55 boulevard Charles de Gaulle - 92700 Colombes (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 to be held on June 30, 2025, in its fifteenth resolution, to certain Investors (each such person, a “Holder”), on the Issue Date, an aggregate of [__] bons de souscription d’actions (the “Warrants”) to subscribe an aggregate [__] Ordinary Shares (as defined herein) represented by [__] ADSs (as exercised, collectively 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”). For the avoidance of doubt, in all cases, the Warrant Shares shall be represented by ADSs. The Warrants shall not be admitted to trading on any stock exchange or trading market. Each one (1) Warrant is exercisable for ten (10) Ordinary Shares (actions ordinaires) represented by one (1) ADS (the “Exercise Ratio”) for a price per Warrant equal to the Exercise Price (as defined herein).
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); | ||||
Exhibit 4.1
“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; | ||||
“Depositary” | The Bank of New York Mellon, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 among the Company, The Bank of New York Mellon, as depositary, and the owners and holders from time to time of the ADSs issued thereunder; | ||||
“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; | ||||
“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 Company, 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); | ||||
Exhibit 4.1
“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; | ||||
“Issue Date” | the date of issue of these Warrants, being on or about [__], 2025; | ||||
“Nominal Value” | the nominal value from time to time of one Share, being 0.01 Euro as of the Issue Date; | ||||
“Ordinary Shares | the ordinary shares of 0.01 Euro each in the share capital of the Company; | ||||
“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; | ||||
“Securities Act” | The Securities Act of 1933, as amended; | ||||
“Shares” | Ordinary Shares represented by ADSs; | ||||
“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; | ||||
“Terms and Conditions | has the meaning given in the introduction; | ||||
“Trading Market” | The New York Stock Exchange 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 9:30 a.m. (ET) to 4:00 p.m. (ET)); | ||||
“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
Exhibit 4.1
of business on the Issue Date through the lifetime of the Company (the “Exercise Period”).
(b) Exercise Price
The aggregate price of the Warrants, except for a nominal exercise price of 0.01 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, except in the context of a “Cashless Exercise” under Condition 2 (c) below. The remaining unpaid exercise price per Warrant Share under the Warrants shall be 0.01 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
(1) In order to exercise the Warrants, the Holder through its intermediary shall (i) send at any time prior to 5.00 p.m., Paris time, on any Business Day during the Exercise Period, a notice to the Company, to the attention of Deborah Choate (Chief Financial Officer), 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 dedicated account of the Company with BNPParibas 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 or by way of a “Cashless Exercise” if so indicated in the Exercise Notice pursuant to Condition (2)(c)(2) below. For the avoidance of doubt the Holder may exercise all or part 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).
(2) Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “Cashless Exercise” by way of set-off of receivables (“compensation de créances”) in accordance with applicable French laws and regulations. In such event, the Holder shall elect to exercise a certain number of Warrants, and the Company shall issue to the Holder the corresponding number of Warrant Shares in consideration of the cancellation of an additional number of Warrants held by the Holder. The Exercise Price for such Warrant Shares shall be paid by cancelling a number of Warrants held by the Holder, calculated by using the formula immediately below, such that the aggregate prefunded amount of the cancelled Warrants is at least equal
Exhibit 4.1
to the total Exercise Price and shall be applied against such Exercise Price by way of set-off of receivables (“compensation de créances”) in accordance with applicable French laws and regulations, it being specified that any fractional entitlements of Holder resulting from a single Exercise Notice and application of the formula immediately below shall be settled by the Company to the Holder in euros up to but not exceeding two hundred and fifty euros (EUR 250).
X = (Y * A) / B
where:
“X” equals the number of Warrant Shares to be cancelled;
“Y ” equals the number of Warrant Shares to be exercised by the Holder;
“A” equals the Exercise Price per Warrant Share (in euros); and
“B” equals the prefunded amount per cancelled Warrant Share (in euros).
If the result of the above calculation is not a whole number, the number of Warrant Shares to be cancelled shall be rounded up to the nearest whole number, and any excess value resulting from such rounding shall be settled in cash, based on the closing price of the Company’s shares on the trading day immediately preceding the Exercise Date.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the Original Issuance Date (provided that the Securities and Exchange Commission continues to take the position that such treatment is proper at the time of such exercise). In the event that a registration statement registering the issuance of Warrant Shares is, for any reason, not effective at the time of exercise of this Warrant, then this Warrant may only be exercised through a cashless exercise, as set forth in this Section 10. If the Warrant Shares are issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares issued in such exercise shall take on the registered characteristics of the Warrants being exercised and may be tacked on to the holding period of the Warrants being exercised. Except as set forth in Section 5(b) (buy-in remedy) and Section 12 (No Fractional Shares), in no event will the exercise of this Warrant be settled in cash.
(d) Confirmation of Exercise
Upon receipt by the Company of an Exercise Notice and the corresponding Aggregate Exercise Price in accordance with Condition 2(c), the Company shall as soon as practicable, but in no event later than 5:00 p.m. Paris time, on the first Business Day immediately following the Exercise Date, send by email 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.
(e) Issue of Warrant Shares Upon Exercise
Exhibit 4.1
The Company shall, or shall cause to, on or before the third Business Day (the “Exercised Shares Delivery Date”) following the Exercise Date, deposit the Shares subject to such exercise with the Depositary, and cause the Depositary to credit such aggregate number of Warrant Shares to which the Holder shall be entitled to and as notified in the Exercise Notice to the Holder in uncertificated form on the Depositary’s register in the name of the Holder.
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 represented by ADS.
(f) Holder’s Exercise Limitations.
The Company shall not 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 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
Exhibit 4.1
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 20-F or any other public filing with the Commission, (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 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 (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 [4.99%][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 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. 151-1 and seq., R. 151-1 and seq. of the French code monétaire et financier, 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, the authorization (express or tacit) to proceed with the Crossing Event. 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
Exhibit 4.1
other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Condition 2(g) of this Warrant.
(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 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”). The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless prior to, simultaneously with or promptly following the consummation thereof, any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant.
3. Warrant Shares
(a) Form of Warrant Shares
The Warrant Shares will be, upon issuance by the Company in nominative form (au nominatif), in the securities account opened in the name of the Depositary in the books of the Company.
(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
Exhibit 4.1
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, one (1) Business Day following the date of issuance, by the Company for the Warrant Shares to be admitted to trading on the New York Stock Exchange, 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.
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 in the name of the depository for the ADSs or by book entry, as applicable.
All actions and application will be made by the Company to facilitate the delivery of the underlying ordinary shares to the Depositary and the Warrants Shares represented by ADSs through the Depositary Trust Company (“DTC”).
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. As a result, Warrants shall be exercised by multiple of 10.
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 the New York Stock Exchange 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,
Exhibit 4.1
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 Company 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.
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 L. 228-99 and 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 provide at least 14 calendar days’ prior written notice to the Holders of the end of the applicable subscription period.
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 ;
–free allocation of Shares to shareholders, regrouping or splitting Shares;
–distribution of reserves and of any Share premium, in cash or in kind;
–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;
Exhibit 4.1
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.For financial transactions (issuance of Shares or any other securities of any nature) with listed preferential right to subscription, the new Exercise Ratio will be adjusted on the following formula :
ER’ = ER0 x OS’ + FMV
OS’
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the last trading day of the subscription period for the preferential subscription rights (the “Subscription Period”);
ER’ = the Exercise Ratio in effect immediately after the close of business on the last trading day of such Subscription Period;
OS’ = the Value of the Shares Ex-Right; and
FMV = the Value of the Preferential Subscription Right.
“Value of the Shares Ex-Right” means the arithmetic average of the daily VWAP (divided by the number of Shares then represented by one ADS) on each trading day included in the applicable Subscription Period.
“Value of the Preferential Subscription Right” means (i) the arithmetic average of the opening trading prices on any Trading Market for such preferential subscription rights on a per right basis, or on a similar market on which the preferential subscription rights have their principal listing on each trading day included in the applicable Subscription Period, or (ii) if the preferential subscription rights are not listed on a Trading Market or similar market, the value of such preferential subscription rights will be calculated as reasonably determined by the Company or, at the Company’s option, an independent expert taking into account the fair market value or trading price of any corresponding ADS rights.
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 adjusted on the following formula:
ER’ = ER0 x OS’
OS0
where,
ER0 = the Exercise Ratio in effect immediately prior to the New York close of business on the Record Date of such dividend or distribution, or immediately prior to the New York open of business on the Effective Date of such share split or reverse share split, as applicable;
Exhibit 4.1
ER’ = the Exercise Rate in effect immediately after the New York close of business on the Record Date of such distribution, or immediately after the New York open of business on the Effective Date of such share split or reverse share split, as applicable;
OS’ = the number of Shares comprising the share capital immediately after the New York close of business on the Record Date of such dividend or distribution or after the New York open of business on the Effective Date of such share split or reverse share split, as applicable; and
OS0 = the number of Shares comprising the share capital immediately prior to the New York close of business on the Record Date of such dividend or distribution or immediately prior to the New York open of business on the Effective Date of such share split or reverse share split, as applicable.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of the Shares (directly or in the form of ADSs) (or other applicable security) have the right to receive any cash, securities or other property or in which the Shares (directly or in the form of ADSs) (or such other security) are exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of security holders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).
“Effective Date” means the date upon which the applicable transaction or event is effective or consummated.
3. 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 adjusted based on the following formula:
ER’ = ER0 x OS’
OS’ - C
where,
ER0 = the Exercise Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
ER’ = the Exercise Ratio in effect immediately after the open of business on the Ex-Dividend Date for such distribution;
OS’ = the Value of the Share Immediately prior to the Close of Business on the Date of such Distribution; and
C = the cash amount distributed per Share or, if the distribution consists of assets other than cash, the Value of the Securities or Assets Distributed per Share.
“Ex-Dividend Date” means the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
Exhibit 4.1
“Value of the Share Immediately prior to the Close of Business on the Date of such Distribution” means the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Ex-Dividend Date for such distribution.
“Value of the Securities or Assets Distributed per Share” means:
(a) in the event of a distribution of securities that are already listed on The New York Stock Exchange, other U.S. national or regional securities exchange, the arithmetic average of the Distributed Securities Daily VWAP of such securities during the three trading days immediately preceding the Ex-Dividend Date for such distribution;
(b) in the event of a distribution of securities that are not already listed on the New York Stock Exchange, other U.S. national or regional securities exchange, but that are expected to be listed on any such market for at least three trading days within 10 Trading Days starting on the Ex-Dividend Date For such distribution, the arithmetic average of the Distributed Securities Daily VWAP of such securities during the first three trading days included within this 10 trading day period during which such securities are listed on the New York Stock Exchange, other U.S. national or regional securities exchange; and
(c) in all other cases not addressed in clause (a) or (b) of this definition, such value that is determined reasonably by the Company or, at the Company’s option, an independent expert, no later than the trading day immediately preceding the Ex-Dividend Date for such distribution.
“Distributed Securities Daily VWAP” means the per security volume-weighted average price as displayed under the heading “Bloomberg VWAP” on the Bloomberg page applicable to the security in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such trading day (or if such volume-weighted average price is unavailable for such security, the market value of such security on a per security basis on such trading Day reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by Company), in each case to the extent such volume-weighted average price is not already reflected in euros, converted into euros at the Bloomberg screen EURUSD Currency rate (or its equivalent successor if such page is not available) at 4:00 p.m., New York City time on such Trading Day. The “Distributed Securities Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
For the avoidance of doubt, in the event of a capital increase by incorporation of reserves or premiums (as such terms are understood under Article R. 228-91(3°) of the French Commercial Code) achieved by increasing the nominal value of the Ordinary Shares instead of a distribution of such reserves or premiums, the nominal value of the Ordinary Shares underlying ADS delivered to the Holders of the Notes upon conversion thereof will be increased accordingly and no adjustment to the Conversion Rate will be made in respect thereof.
Exhibit 4.1
4. 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 adjusted based on the following formula :
ER’ = ER0 x OS’ x (1 - PC%)
OS’ - (PC% x RP)
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the date such Shares (directly or in the form of ADS) are repurchased (the “Share Repurchase Date”);
ER’ = the Exercise Ratio in effect immediately after the close of business on the Share Repurchase Date;
OS’ = the arithmetic average of the daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Share Repurchase Date;
PC% = means the percentage of the Company’s outstanding Share capital (directly or in the form of ADS) repurchased, expressed as a decimal rounded to the nearest hundredth (with 0.005 being rounded upwards to the nearest hundredth, i.e., 0.01); and
RP = the actual price (consisting of cash and/or other consideration (the fair market value of which other consideration is reasonably determined by the Company or, at the Company’s option, an independent expert)) at which the Shares are repurchased on a per share basis.
5. In case of amortization of the share capital of the Company, the new Exercise Ratio will be adjusted based on the following formula:
ER’ = ER0 x OS’
OS’ - RP
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the trading day immediately preceding the Ex-Redemption Date;
CR’ = the Exercise Ratio in effect immediately after the close of business on the trading day immediately preceding the Ex-Redemption Date;
OS’ = the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Ex-Redemption Date; and
RP = the amount of redemption (amortissement) per Ordinary Share.
A “redemption (amortissement)” is a reimbursement to the shareholders of all or part of the nominal value of the Shares but without triggering any Share capital decrease.
Exhibit 4.1
“Ex-Redemption Date” means (a) the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to the redemption in question from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market or (b) if the ADSs do not trade on any exchange or market, the Paris business day on which the redemption in question occurs.
6. (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 adjusted based on the following formula :
ER’ = ER0 x OS’
OS’ - C
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the Effective Date of such modification by the Company of the distribution of its profits;
ER’ = the Exercise Ratio in effect immediately after the close of business on the Effective Date of such modification by the Company of the distribution of its profits;
OS’ = the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Effective Date of such modification by the Company of the distribution of its profits; and
C = the reduction per Share of the rights to profits, as reasonably determined by the Company or, at the Company’s option, an independent expert.
Notwithstanding the above, if any modification by the Company of the distribution of its profits results from the issuance of preferential subscription rights for preferred shares that results in an adjustment to the Exercise Ratio pursuant to Condition 5.1(a), no adjustment to the Exercise Ratio will be made pursuant to this Condition 5.8.
(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 6 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.
6. Form, Title and Transfer of Warrants
The Warrants will be issued in dematerialised (dématérialisé) nominative form (au nominatif).
Exhibit 4.1
Subject to compliance with any applicable securities laws, the Warrants are freely negotiable.
The Warrants shall not be listed on the New York Stock Echange 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.
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 (https://sequans.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.
Exhibit 4.1
8. Suspension of the ability to exercise the Warrants
Pursuant to Article L.228-99 of the French Commercial Code, and solely in case of a capital increase, absorption, merger, spin-off, public tender offer for the Company’s shares or the issuance of new Shares or securities giving access to the share capital of the Company, 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 may suspend the exercise of the Warrants for a period that may not exceed the shorter of two months or any other required (rather than recommended) period set by applicable Frrench laws and regulations. The Company's decision to suspend the ability to exercise the Warrants will be notified before such suspension becomes effective at least fifteen (15) calendar days by registered letter with acknowledgement of receipt (LRAR) (but only to the extent this procedure remains a mandatory provision of French law) and such notice will indicate the dates on which the suspension exercise of the Warrants will begin and end.
Notwithstanding the above, in the event of a merger, demerger or public tender offer for the Company’s shares, the Company shall take all necessary steps to ensure that the Holder is able to participate in such transaction on an as-exercised basis, either by allowing exercise of the Warrants before the suspension occurs or by granting an equivalent economic treatment (including via cash settlement or share delivery).
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 “Share Reduction”), the new Exercise Ratio will adjusted based on the following formula:
ER’ = ER0 x OS’
OS0
where,
ER0 = the Exercise Ratio in effect immediately prior to the New York open of business on the Effective Date of the Share Reduction;
Exhibit 4.1
ER’ = the Exercise Ratio in effect immediately after the New York open of business on such Effective Date of the Share Reduction;
OS’ = the number of Shares comprising the Company’s share capital immediately after the Effective Date of the Share Reduction; and
OS0 = the number of Ordinary Shares comprising the Company’s Share capital immediately before the Effective Date of the Share Reduction.
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.
Exhibit 4.1
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 economic activities court (Tribunal des activités économiques 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.
Exhibit 4.1
Appendix A
Form of Exercise Notice
Exhibit 4.1
Appendix B
Form of acknowledgement by the Company
TERMS AND CONDITIONS OF THE WARRANTS
THESE TERMS AND CONDITIONS OF THE WARRANTS DO NOT CONSTITUTE A CERTIFICATE REPRESENTING THE WARRANTS.
Sequans Communications 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 450 249 677, with a registered capital of Euros 2,514,089.22 and having its registered office at Les Portes de la Défense, 15-55 boulevard Charles de Gaulle - 92700 Colombes (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 to be held on June 30, 2025, in its fifteenth resolution, to certain Investors (each such person, a “Holder”), on the Issue Date, an aggregate of [__] bons de souscription d’actions (the “Warrants”) to subscribe an aggregate [__] Ordinary Shares (as defined herein) represented by [__] ADSs (as exercised, collectively the “Warrant Shares”) or an aggregate [__] Pre-Funded Warrants 2 at the Exercise Price (as defined herein) per Warrant Share or Pre-Funded Warrant 2, on the terms and conditions herein (the “Terms and Conditions” or the “Conditions”). For the avoidance of doubt, in all cases, the Warrant Shares shall be represented hereunder by ADSs. The Warrants or the Pre-Funded Warrants 2 shall not be admitted to trading on any stock exchange or trading market. Each one (1) Warrant is exercisable for ten (10) Ordinary Shares (actions ordinaires) represented by one (1) ADS or for one (1) Pre-Funded Warrant 2 (the “Exercise Ratio”) for a price per Warrant equal to the Exercise Price (as defined herein).
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; | ||||
“Depositary” | The Bank of New York Mellon, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 among the Company, The Bank of New York Mellon, as depositary, and the owners and holders from time to time of the ADSs issued thereunder; | ||||
“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; | ||||
“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 Company, 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 Delivery Date” | has the meaning given in Condition 2(e); | ||||
“Exercised Pre-Funded Warrants 2” | has the meaning given in Appendix A; | ||||
“Exercised Shares” | has the meaning given in Appendix A; | ||||
“Expiration Date” | means 90 calendar days following the Issue Date | ||||
“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; | ||||
“Issue Date” | the date of issue of these Warrants, being on or about [__], 2025; | ||||
“Nominal Value” | the nominal value from time to time of one Share, being 0.01 Euro as of the Issue Date; | ||||
“Ordinary Shares | the ordinary shares of 0.01 Euro each in the share capital of the Company; | ||||
“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; | ||||
“Pre-Funded Warrants 2” | the pre-funded warrants, the terms and conditions of which are attached as Annex 1. | ||||
“Securities Act” | The Securities Act of 1933, as amended; | ||||
“Shares” | Ordinary Shares represented by ADSs; | ||||
“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; | ||||
“Terms and Conditions | has the meaning given in the introduction; | ||||
“Trading Market” | The New York Stock Exchange 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 VWAP | has the meaning given in Condition 5; 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 9:30 a.m. (ET) to 4:00 p.m. (ET)); | ||||
“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 and ending at 5.00 p.m. Paris time on the Expiration Date (the “Exercise Period”).
(b) Exercise Price
Subject to any adjustment to the Exercise Ratio as provided in Condition 5 (or, as the case may be, Condition 9), each one (1) Warrant is exercisable for (i) ten (10) Ordinary Shares represented by one (1) ADS, at a price equal to 1.40 USD for each Warrant or (ii) one (1) Pre-Funded Warrant 2, at a price equal to 1.40 USD minus €0.01 for each Warrant (the “Exercise Price”).
(c) Terms of exercise
In order to exercise the Warrants, the Holder through its intermediary shall (i) send at any time prior to 5.00 p.m., Paris time, on any Business Day during the Exercise Period, a
notice to the Company, to the attention of Deborah Choate (Chief Financial Officer), 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 and/or Pre-Funded Warrants 2 to be subscribed for, and (ii) make payment to the dedicated account of the Company with BNPParibas of an amount equal to the Exercise Price multiplied by the number of Exercised Shares and/or Pre-Funded Warrant 2 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 part 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 Delivery Date (as defined below).
(d) Confirmation of Exercise
Upon receipt by the Company of an Exercise Notice and the corresponding Aggregate Exercise Price in accordance with Condition 2(c), the Company shall as soon as practicable, but in no event later than 5:00 p.m. Paris time, on the first Business Day immediately following the Exercise Date, send by email 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.
(e) Issue of Warrant Shares or Pre-Funded Warrants 2 Upon Exercise
In the event of exercise of the Warrants in Shares, the Company shall, or shall cause to, on or before the third Business Day (the “Exercised Delivery Date”) following the Exercise Date, deposit the Shares subject to such exercise with the Depositary, and cause the Depositary to credit such aggregate number of Warrant Shares to which the Holder shall be entitled to and as notified in the Exercise Notice to the Holder in uncertificated form on the Depositary’s register in the name of the Holder.
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
In the event of exercise of the Warrants in Pre-Funded Warrants 2, the Company shall, or shall cause to, on or before the Exercised Delivery Date to credit such aggregate number of Pre-Funded Warrants 2 to which the Holder shall be entitled to and as notified in the Exercise Notice to the Holder’s account specified in its Exercise Notice.
(f) Holder’s Exercise Limitations.
The Company shall not 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 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 20-F or any other public filing with the Commission, (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 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 (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 [4.99%][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 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. 151-1 and seq., R. 151-1 and seq. of the French code monétaire et financier, 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, the authorization (express or tacit) to proceed with the Crossing Event. 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.
(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 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”). The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless prior to, simultaneously with or promptly following the consummation thereof, any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant.
3. Warrant Shares
(a) Form of Warrant Shares
The Warrant Shares will be, upon issuance by the Company in nominative form (au nominatif), in the securities account opened in the name of the Depositary in the books of the Company.
(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, one (1) Business Day following the date of issuance, by the Company for the Warrant Shares to be admitted to trading on the New York Stock Exchange, 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.
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 in the name of the depository for the ADSs or by book entry, as applicable.
All actions and application will be made by the Company to facilitate the delivery of the underlying ordinary shares to the Depositary and the Warrants Shares to be delivered in the form of ADSs through the Depositary Trust Company (“DTC”).
4. Pre-Funded Warrants 2
The Pre-Funded Warrants 2 will be, upon issuance by the Company, subject to the terms and conditions described in Annex 1.
5. Fractional Interests
No fractional Shares nor fractional Pre-Funded Warrants 2 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 or the Pre-Funded Warrants 2, however, may only be delivered in a whole number of Shares or Pre-Funded Warrants 2. As a result, Warrants shall be exercised by multiple of 10.
If the number of Warrant Shares or Pre-Funded Warrants 2 thus calculated is not a whole number, the Holder may request delivery of either:
(a)the next lower number of Warrant Shares or Pre-Funded Warrants 2; 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 or Pre-Funded Warrant 2, equal to the last price quoted on the New York Stock Exchange on the last trading day preceding the Exercise Date; or
(b)the next greater number of Warrant Shares or Pre-Funded Warrants 2, provided that in such case the Holder pays to the Company an amount equal to the value of the additional fraction of a Share or Pre-Funded Warrant 2 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 Company 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 or Pre-Funded Warrants 2 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 or Pre-Funded Warrants 2 hereunder, the number of Warrant Shares or Pre-Funded
Warrants 2 available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
6. 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 or Pre-Funded Warrants 2 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 L. 228-99 and Article R. 228-92 of the French Commercial Code, if the Company decides to issue new Shares, Pre-Funded Warrants 2 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 provide at least 14 calendar days’ prior written notice to the Holders of the end of the applicable subscription period.
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 ;
–free allocation of Shares to shareholders, regrouping or splitting Shares;
–distribution of reserves and of any Share premium, in cash or in kind;
–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;
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.For financial transactions (issuance of Shares or any other securities of any nature) with listed preferential right to subscription, the new Exercise Ratio will be adjusted on the following formula :
ER’ = ER0 X OS’ + FMV
OS’
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the last trading day of the subscription period for the preferential subscription rights (the “Subscription Period”);
ER’ = the Exercise Ratio in effect immediately after the close of business on the last trading day of such Subscription Period;
OS’ = the Value of the Shares Ex-Right; and
FMV = the Value of the Preferential Subscription Right.
“Value of the Shares Ex-Right” means the arithmetic average of the daily VWAP (divided by the number of Shares then represented by one ADS) on each trading day included in the applicable Subscription Period.
“Value of the Preferential Subscription Right” means (i) the arithmetic average of the opening trading prices on any Trading Market for such preferential subscription rights on a per right basis, or on a similar market on which the preferential subscription rights have their principal listing on each trading day included in the applicable Subscription Period, or (ii) if the preferential subscription rights are not listed on a Trading Market or similar market, the value of such preferential subscription rights will be calculated as reasonably determined by the Company or, at the Company’s option, an independent expert taking into account the fair market value or trading price of any corresponding ADS rights.
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 willbe adjusted on the following formula:
ER’ = ER0 X OS’
OS0
where,
ER0 = the Exercise Ratio in effect immediately prior to the New York close of business on the Record Date of such dividend or distribution, or immediately prior to the New York open of business on the Effective Date of such share split or reverse share split, as applicable;
ER’ = the Exercise Rate in effect immediately after the New York close of business on the Record Date of such distribution, or immediately after the New York open of business on the Effective Date of such share split or reverse share split, as applicable;
OS’ = the number of Shares comprising the share capital immediately after the New York close of business on the Record Date of such dividend or distribution or after the New York open of business on the Effective Date of such share split or reverse share split, as applicable; and
OS0 = the number of Shares comprising the share capital immediately prior to the New York close of business on the Record Date of such dividend or distribution or immediately prior to the
New York open of business on the Effective Date of such share split or reverse share split, as applicable.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of the Shares (directly or in the form of ADSs) (or other applicable security) have the right to receive any cash, securities or other property or in which the Shares (directly or in the form of ADSs) (or such other security) are exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of security holders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).
“Effective Date” means the date upon which the applicable transaction or event is effective or consummated.
3. 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 adjusted based on the following formula:
ER’ = ER0 X OS’
OS’ - C
where,
ER0 = the Exercise Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
ER’ = the Exercise Ratio in effect immediately after the open of business on the Ex-Dividend Date for such distribution;
OS’ = the Value of the Share Immediately prior to the Close of Business on the Date of such Distribution; and
C = the cash amount distributed per Share or, if the distribution consists of assets other than cash, the Value of the Securities or Assets Distributed per Share.
“Ex-Dividend Date” means the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market
“Value of the Share Immediately prior to the Close of Business on the Date of such Distribution” means the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Ex-Dividend Date for such distribution.
“Value of the Securities or Assets Distributed per Share” means:
(a) in the event of a distribution of securities that are already listed on The New York Stock Exchange, other U.S. national or regional securities exchange, the arithmetic average of the
Distributed Securities Daily VWAP of such securities during the three trading days immediately preceding the Ex-Dividend Date for such distribution;
(b) in the event of a distribution of securities that are not already listed on the New York Stock Exchange, other U.S. national or regional securities exchange, but that are expected to be listed on any such market for at least three trading days within 10 Trading Days starting on the Ex-Dividend Date For such distribution, the arithmetic average of the Distributed Securities Daily VWAP of such securities during the first three trading days included within this 10 trading day period during which such securities are listed on the New York Stock Exchange, other U.S. national or regional securities exchange; and
(c) in all other cases not addressed in clause (a) or (b) of this definition, such value that is determined reasonably by the Company or, at the Company’s option, an independent expert, no later than the trading day immediately preceding the Ex-Dividend Date for such distribution.
“Distributed Securities Daily VWAP” means the per security volume-weighted average price as displayed under the heading “Bloomberg VWAP” on the Bloomberg page applicable to the security in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such trading day (or if such volume-weighted average price is unavailable for such security, the market value of such security on a per security basis on such trading Day reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by Company), in each case to the extent such volume-weighted average price is not already reflected in euros, converted into euros at the Bloomberg screen EURUSD Currency rate (or its equivalent successor if such page is not available) at 4:00 p.m., New York City time on such Trading Day. The “Distributed Securities Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
For the avoidance of doubt, in the event of a capital increase by incorporation of reserves or premiums (as such terms are understood under Article R. 228-91(3°) of the French Commercial Code) achieved by increasing the nominal value of the Ordinary Shares instead of a distribution of such reserves or premiums, the nominal value of the Ordinary Shares underlying ADS delivered to the Holders of the Notes upon conversion thereof will be increased accordingly and no adjustment to the Conversion Rate will be made in respect thereof.
4. 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 adjusted based on the following formula :
ER’ = ER0 X OS’ x (1 - PC%)
OS’ - (PC% x RP)
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the date such Shares (directly or in the form of ADS) are repurchased (the “Share Repurchase Date”);
ER’ = the Exercise Ratio in effect immediately after the close of business on the Share Repurchase Date;
OS’ = the arithmetic average of the daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Share Repurchase Date;
PC% = means the percentage of the Company’s outstanding Share capital (directly or in the form of ADS) repurchased, expressed as a decimal rounded to the nearest hundredth (with 0.005 being rounded upwards to the nearest hundredth, i.e., 0.01); and
RP = the actual price (consisting of cash and/or other consideration (the fair market value of which other consideration is reasonably determined by the Company or, at the Company’s option, an independent expert)) at which the Shares are repurchased on a per share basis.
5. In case of amortization of the share capital of the Company, the new Exercise Ratio will be adjusted based on the following formula:
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the trading day immediately preceding the Ex-Redemption Date;
CR’ = the Exercise Ratio in effect immediately after the close of business on the trading day immediately preceding the Ex-Redemption Date;
OS’ = the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Ex-Redemption Date; and
RP = the amount of redemption (amortissement) per Ordinary Share.
A “redemption (amortissement)” is a reimbursement to the shareholders of all or part of the nominal value of the Shares but without triggering any Share capital decrease.
“Ex-Redemption Date” means (a) the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to the redemption in question from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market or (b) if the ADSs do not trade on any exchange or market, the Paris business day on which the redemption in question occurs.
6. 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 adjusted based on the following formula :
ER’ = ER0 X OS’
OS’ - C
where,
ER0 = the Exercise Ratio in effect immediately prior to the close of business on the Effective Date of such modification by the Company of the distribution of its profits;
ER’ = the Exercise Ratio in effect immediately after the close of business on the Effective Date of such modification by the Company of the distribution of its profits;
OS’ = the arithmetic average of the Daily VWAP (divided by the number of Shares then represented by one ADS) for each of the three trading days immediately preceding the Effective Date of such modification by the Company of the distribution of its profits; and
C = the reduction per Share of the rights to profits, as reasonably determined by the Company or, at the Company’s option, an independent expert.
Notwithstanding the above, if any modification by the Company of the distribution of its profits results from the issuance of preferential subscription rights for preferred shares that results in an adjustment to the Exercise Ratio pursuant to Condition 5.1(a), no adjustment to the Exercise Ratio will be made pursuant to this Condition 5.8.
(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 6 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.
7. Form, Title and Transfer of Warrants
The Warrants will be issued in dematerialised (dématérialisé) nominative form (au nominatif).
Subject to compliance with any applicable securities laws, the Warrants are freely negotiable.
The Warrants shall not be listed on the New York Stock Echange 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.
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.
8. 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 (https://sequans.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.
9. Suspension of the ability to exercise the Warrants
Pursuant to Article L.228-99 of the French Commercial Code, and solely in case of a capital increase, absorption, merger, spin-off, public tender offer for the Company’s shares or the issuance of new Shares or securities giving access to the share capital of the Company, 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 may suspend the exercise of the Warrants for a period that may not exceed the shorter of two months or any other required (rather than recommended) period set by applicable French laws and regulations. The Company's decision to suspend the ability to exercise the Warrants will be notified before such suspension becomes effective at least fifteen (15) calendar days by registered letter with acknowledgement of receipt (LRAR) (but only to the extent this procedure remains a mandatory provision of French law) and such notice will indicate the dates on which the suspension exercise of the Warrants will begin and end.
Notwithstanding the above, in the event of a merger, demerger or public tender offer for the Company’s shares, the Company shall take all necessary steps to ensure that the Holder is able to participate in such transaction on an as-exercised basis, either by allowing exercise of the Warrants before the suspension occurs or by granting an equivalent economic treatment (including via cash settlement or share delivery).
10. 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 “Share Reduction”), the new Exercise Ratio will adjusted based on the following formula:
ER’ = ER0 X OS’
OS0
where,
ER0 = the Exercise Ratio in effect immediately prior to the New York open of business on the Effective Date of the Share Reduction;
ER’ = the Exercise Ratio in effect immediately after the New York open of business on such Effective Date of the Share Reduction;
OS’ = the number of Shares comprising the Company’s share capital immediately after the Effective Date of the Share Reduction; and
OS0 = the number of Ordinary Shares comprising the Company’s Share capital immediately before the Effective Date of the Share Reduction.
11. 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.
12. 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.
13. 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 or Pre-Funded Warrants 2 upon exercise of the Warrants. [The Holders and the Company agree that (i) the Warrants issued hereunder and the Secured Convertible Debentures issued under that certain “Secured Convertible Debenture Purchase Agreement” dated as of June 22, 2025 (the “Purchase Agreement”) shall be treated as an “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder, (ii) the issue price of the investment unit will be allocated between the Secured Convertible Debentures and such Warrants based on their relative fair market values on the Closing Date (as defined in the Purchase Agreement) for U.S. federal income tax purposes, as determined collectively by the Company and the Required Holders (as defined in the Purchase Agreement) acting in good faith and (iii) no party hereto shall take a position contrary to the foregoing on any tax return unless required by an applicable change in law after the Closing Date or the good faith resolution of a tax audit or other tax proceeding.][1]
14. 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).
15. 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.
16. 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 economic activities court (Tribunal des activités économiques 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.
[1] To be included only for Secured Convertible Debentures transaction.
Appendix A
Form of Exercise Notice
Appendix B
Form of acknowledgement by the Company
ANNEX 1
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS 2
Exhibit 4.3
NEITHER THIS DEBENTURE NOR THE SECURITIES INTO WHICH THIS DEBENTURE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES HAVE BEEN SOLD 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 IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
FOR PURPOSES OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), THIS DEBENTURE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT. THE HOLDER (AS DEFINED BELOW) MAY CONTACT DR. GEORGES KARAM AT +33 1 70 72 16 00, WHO WILL, NOT LATER THAN TEN DAYS AFTER THE DATE HEREOF, PROMPTLY MAKE AVAILABLE TO THE HOLDER, UPON REQUEST, THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND ISSUANCE DATE OF THIS DEBENTURE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS DEBENTURE, AND (3) THE YIELD TO MATURITY OF THIS DEBENTURE.
SEQUANS COMMUNICATIONS S.A.
SECURED CONVERTIBLE DEBENTURE
Principal Amount: $[_______]
Debenture Issuance Date: [_____], 2025
Debenture Number: SQNS-[__]
FOR VALUE RECEIVED, Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), hereby promises to pay to the order of [___________]1, or its registered assigns (the “Holder”) the amount set out above as the principal amount (as reduced or increased pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due, whether upon the Maturity Date (as defined below), acceleration, or redemption (in each case in accordance with the terms hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate from the date set out above as the Debenture Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity Date or acceleration, conversion, redemption or otherwise (in each case in accordance with the terms hereof). This Secured Convertible Debenture (including all debentures issued in exchange, transfer or replacement hereof, this “Debenture”) was originally issued pursuant to the Secured Convertible Debenture Purchase Agreement dated as of June [●], 2025, as it may be amended from time to time (the “Purchase Agreement”)
_______________________
1 To be updated for each Holder.
Exhibit 4.3
between the Company and the Buyers listed on the Schedule of Buyers attached thereto. Certain capitalized terms used herein are defined in Section (17). All Obligations owed by the Company to the Holder under this Debenture and each other Transaction Document are guaranteed by the Guarantors pursuant to the Guaranty and Security Agreement and secured by the Guarantors pursuant to the Security Documents.
(1)GENERAL TERMS
(a)Maturity Date. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal, accrued and unpaid Interest, and any other amounts outstanding pursuant to the terms of this Debenture. The “Maturity Date” shall be [___]2, 2028. Other than as specifically permitted by this Debenture under Section 2(a), the Company may not prepay or redeem any portion of the outstanding Principal and/or accrued and unpaid Interest.
(b)Interest Rate and Payment of Interest. (i) From and after the first anniversary date of the Issuance Date until, but not including, the second anniversary date of the Issuance Date, interest shall accrue on the outstanding Principal balance hereof at an annual rate equal to 6.00% and (ii) from and after the second anniversary date of the Issuance Date, interest shall accrue on the outstanding Principal balance hereof at an annual rate equal to 8.00% (such applicable interest rate, the “Interest Rate”), which Interest Rate shall, in connection with the occurrence of an Event of Default, increase to the Default Rate upon written notice executed by the Required Holders (as defined in the Purchase Agreement) to the Company retroactively to the date of the occurrence of such Event of Default. Interest shall be calculated based on a 365- day year and the actual number of days elapsed, to the extent permitted by applicable law. Interest shall accrue during the term of this Debenture and shall be due and payable on each Interest Payment Date or upon the acceleration (including, for the avoidance of doubt, in connection with Section 3(b)), redemption (including, for the avoidance of doubt, in connection with Section 2(b) and Section 2(c)) or conversion of the outstanding Principal. Additional Interest may be payable pursuant to Section 19(h).
(c)Payment Dates. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
(d)Withholding. All payments and deliveries made by, or on behalf of, the Company (or any Successor Company) under or with respect to this Debenture (including in connection with any conversion described in Section (4)), shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied (“Applicable Taxes”) by or within France or any jurisdiction in which the Company (or any Successor Company) is, for tax purposes, organized or resident or doing business (each, as applicable, a “Relevant Taxing Jurisdiction”) or through which payment is made or deemed made (together with each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” and in each case, any political subdivision or taxing authority thereof or
_______________
2 Insert the date that is the first New York Business Day on or after 36 months from the Issuance Date.
Exhibit 4.3
therein), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required in a Relevant Jurisdiction, the Company (or the Successor Company) shall pay such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder after such withholding or deduction (and after deducting any Applicable Taxes on the Additional Amounts) under a Relevant Jurisdiction shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable for or on account of:
(1)any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(i)the failure of the Holder to comply with a timely reasonable request from the Company, addressed to the Holder to provide certification or other documents concerning such Holder’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to the Holder and so long as the completion, execution or submission of such certification or documents would not materially prejudice the legal or commercial position of the Holder;
(ii) (A) the existence of any present or former connection between the Holder and any non-cooperative jurisdiction (Etat ou territoire non coopératif) within the meaning of Section 238-0 A of the French tax code (as this list may be amended from time to time), or (B) the presentation of this Debenture (or any portion hereof) for payment or payment on this Debenture (or any portion hereof) otherwise made to a bank account open in a non-cooperative jurisdiction;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with respect to this Debenture;
(4) any tax required to be withheld or deducted under Sections 1471 to 1474 of the Code (or any amended or successor versions of such Sections that are substantively comparable and not materially more onerous to comply with) (“FATCA”), any agreement described in Section 1471(b) of the Code, or any current or future regulations or other official guidance thereunder, any intergovernmental agreement entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA; or
(5) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (1), (2), (3) or (4).
Exhibit 4.3
(e) Tax Treatment. (i) The parties hereto shall treat this Debenture as debt for U.S. federal (and applicable state and local) income tax purposes and shall prepare and file all tax returns consistent with, and not otherwise take any position inconsistent with, such treatment unless required by applicable law; (ii) the parties hereto agree that (x) the Debentures and the Common Warrants (as defined in the Purchase Agreement) shall be treated as an “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder, (y) the issue price of the investment unit will be allocated between the Debentures and such Common Warrants based on their relative fair market values on the Issuance Date for U.S. federal income tax purposes, as determined collectively by the Company and the Required Holders acting in good faith, and (z) no party hereto shall take a position contrary to the foregoing on any tax return unless required by an applicable change in law after the Issuance Date or the good faith resolution of a tax audit or other tax proceeding; (iii) the Company represents that it was not a “passive foreign investment company” for U.S. federal income tax purposes for the year ending December 31, 2024 and does not as of the date hereof have knowledge that it will be a “passive foreign investment company” for the year ending December 31, 2025 or the foreseeable future; (iv) the Company shall make due inquiry with its tax advisors regarding the Company’s status as a “passive foreign investment company” for the year ending December 31, 2025 and each subsequent year; and (v) if the Company determines that it is a “passive foreign investment company” for any years during which the Holder has owned this Debenture, the Company will promptly notify the Holder of its determination.
(2) PAYMENTS
(a)The Company shall have the right, but not the obligation, to redeem (“Optional Redemption”) in cash a portion or all amounts outstanding under this Debenture at the Redemption Amount (as defined below) as described in this Section 2(a); provided, that (a) the Company provides the Holder with at least: (i) in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger,” 30 Trading Days’ prior written notice, or (ii) in the case of an Optional Redemption pursuant to clause (y) of the definition of “Closing Price Trigger,” 5 Trading Days’ prior written notice, of its desire to exercise an Optional Redemption (each, a “Redemption Notice”), (b) such Redemption Notice sets forth a redemption date for consummating the Optional Redemption (the “Redemption Date”) that is scheduled to be a New York Business Day that occurs on or after the first anniversary date of the Issuance Date, (c) in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger,” the Equity Conditions are satisfied on each Trading Day during the period commencing on the date the Redemption Notice is delivered to the Holder and ending on and including the date upon which the Redemption Amount is delivered to the Holder (the “Redemption Equity Condition Period”), (d) the Closing Price Trigger is satisfied as of the date the Redemption Notice is delivered to the Holder and (e) the Company must have, on or prior to 8:30 a.m., New York City time, on the Trading Day on which such Redemption Notice is delivered, publicly disclosed any material, non-public information regarding the Company (including the fact that the Company is effecting an Optional Redemption) on a Form 6-K or otherwise. Each Redemption Notice shall be irrevocable and shall (x) specify the outstanding Principal balance of this Debenture to be redeemed
Exhibit 4.3
and the Redemption Amount and (y) in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger,” certify that the Equity Conditions are satisfied as of the date of such Redemption Notice. The “Redemption Amount” shall be, (x) in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger”, an amount equal to the outstanding Principal balance being redeemed by the Company, plus all accrued and unpaid Interest in respect of such Principal balance to, but not including, such Redemption Date, plus the Payment Premium in respect of such Principal balance and accrued and unpaid Interest and (y) in the case of an Optional Redemption pursuant to clause (y) of the definition of “Closing Price Trigger”, an amount equal to the sum of (A) the product of (x) the outstanding Principal balance being redeemed by the Company multiplied by (y) 108% plus (B) the Payment Premium with respect to all accrued and unpaid Interest in respect of such Principal balance to, but not including, such Redemption Date. After receipt of a Redemption Notice, the Holder shall have the right to elect to convert all or any portion of the outstanding Principal balance being redeemed by the Company (and accrued and unpaid Interest thereon) in accordance with Section (4) until the New York Close of Business on the New York Business Day immediately preceding the applicable Redemption Date. Provided that the Equity Conditions are satisfied (solely in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger”) and the Company is not in possession of material non-public information, on the Redemption Date, the Company shall (x) deliver to the Holder the Redemption Amount with respect to the Principal amount redeemed to the extent not converted in accordance with the immediately preceding sentence and Section (4) and (y) in the case of an Optional Redemption pursuant to clause (x) of the definition of “Closing Price Trigger,” certify in writing that the Equity Conditions have continued to have been satisfied on each Trading Day during the Redemption Equity Conditions Period and that the Company is not in possession of material non-public information. Any Optional Redemption in respect of less than all of the Principal outstanding under all the Debentures shall be applied ratably across all outstanding Debentures, including this Debenture. Notwithstanding the foregoing, this Section 2(a) will cease to have any force and effect if an Event of Default or Default has occurred hereunder, and is continuing.
(b)On the Specified Repurchase Date, the Holder shall have right, at the Holder’s option, to require the Company to repurchase for cash all of or any portion of the Principal of this Debenture at a repurchase price equal to the outstanding Principal balance to be so repurchased, plus all accrued and unpaid interest hereunder as of the Specified Repurchase Date. In order to exercise such right, the Holder must provide the Company notice of such exercise no later than the New York Close of Business on the fifth (5th) New York Business Day immediately preceding the Specified Repurchase Date.
(c)If a Fundamental Change occurs at any time, the Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all or any portion of the Principal of this Debenture on the New York Business Day notified in writing (the “Fundamental Change Repurchase Date”) by the Holder that is not more than twenty (20) Business Days after the later of (x) the date that the Company delivers to the Holder the Fundamental Change Company Notice (as defined below) and (y) the effective date of such Fundamental Change at a repurchase price equal to the outstanding Principal balance to be so repurchased, plus all accrued and unpaid interest hereunder as of the
Exhibit 4.3
Fundamental Change Repurchase Date, plus the Payment Premium in respect of such Principal balance and accrued and unpaid Interest. In order to exercise such right, the Holder must provide the Company notice of such exercise no later than the New York Close of Business on the New York Business Day immediately preceding the Fundamental Change Repurchase Date. The Company shall provide notice of the occurrence of a Fundamental Change no later than the fifth (5th) New York Business Day after the occurrence of such Fundamental Change (the “Fundamental Change Company Notice”).
(d)Other than as specifically set forth in clause (a) above, the Company shall not have the right to make any early repayments, redemptions or repurchases without the consent or at the request of the Holder.
(3) EVENTS OF DEFAULT
(a)An “Event of Default”, wherever used herein, means any one of the following events (whatever the reason and whether it shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):
(i)The Company’s or any Guarantor’s failure (x) to pay to the Holder any amount of Principal after such payment is due, or any Redemption Amount, Payment Premium, Additional Amount, amount due pursuant to Section 4(b)(ii) or other amounts when and as due under this Debenture (other than Interest) or any other Transaction Document or (y) to pay to the Holder Interest or Additional Interest when and as due under this Debenture and such failure pursuant to this clause (y) continues for a period of two (2) Business Days (for the avoidance of doubt, the Event of Default set forth in this Section 3(a)(i) shall be immediate and not subject to cure);
(ii)(A) The Company, any Guarantor or any Significant Subsidiary of the Company shall commence, or there shall be commenced against the Company, any Guarantor or any Significant Subsidiary of the Company, any proceeding under any applicable bankruptcy or insolvency laws as now or hereafter in effect or any successor thereto, or the Company, any Guarantor or any Significant Subsidiary of the Company commences, or there shall be commenced against the Company, any Guarantor or any Significant Subsidiary of the Company, any other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation or similar law of any jurisdiction whether now or hereafter in effect, which remains undismissed for a period of sixty one (61) days, including for the avoidance of doubt, as applicable, certain French law proceedings affecting creditors, including conciliation proceedings (mandat ad hoc or procédure de conciliation), safeguard proceedings (procédure de sauvegarde), accelerated safeguard (sauvegarde accélérée) and judicial reorganization or liquidation proceedings (redressement or liquidation judiciaire)); (B) the Company, any Guarantor or any Significant Subsidiary of the Company is adjudicated insolvent or bankrupt; (C) any order of relief or other order approving any such case or proceeding is entered; (D) the Company, any Guarantor or any Significant Subsidiary of the Company suffers any appointment of any custodian, private or court appointed receiver or the like for it or all or substantially all of its property which
Exhibit 4.3
continues undischarged or unstayed for a period of sixty one (61) days; (E) the Company, any Guarantor or any Significant Subsidiary of the Company makes a general assignment of all or substantially all of its assets for the benefit of creditors; (F) the Company, any Guarantor or any Significant Subsidiary of the Company shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due; (G) the Company, any Guarantor or any Significant Subsidiary of the Company shall call a meeting of its creditors with a view to restructuring its debts; or (H) the Company, any Guarantor or any Significant Subsidiary of the Company shall by any act or failure to act expressly indicate its consent to, approval of or acquiescence in any of the foregoing;
(iii)The Company or any Significant Subsidiary of the Company shall default in any of its obligations under any note, debenture, or any mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement of the Company or any Significant Subsidiary of the Company in an amount exceeding $5,000,000, whether such indebtedness now exists or shall hereafter be created and such default shall result in such indebtedness becoming or being declared due and payable prior to its stated maturity (for the avoidance of doubt, the Event of Default set forth in this Section 3(a)(iii) shall be immediate and not subject to cure);
(iv)A final judgment or judgments for the payment of money aggregating in excess of $5,000,000 are rendered against the Company and/or any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $5,000,000 amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider to the effect that such judgment is covered by insurance or an indemnity and the applicable insurance or indemnity coverage has not been denied;
(v)(A) Any failure to timely deliver an Event of Default Notice or a Fundamental Change Company Notice required pursuant to the Transaction Documents, or (B) any delivery of an Event of Default Notice, Fundamental Change Company Notice, or any other required notice or certification required pursuant to the Transaction Documents (including, for the avoidance of doubt, a required certification that the Equity Conditions have been satisfied or as to whether any Event of Default has occurred), in each case, that is materially false or inaccurate;
(vi)The suspension from trading or failure of the ADSs to be trading or listed on the Company’s Principal Market (measured in terms of trading volume for its ADSs) on which the ADSs are traded for a period of five (5) consecutive Trading Days;
(vii)The Company’s (A) failure to deliver the required number of ADSs to the Holder within one (1) Trading Day after the applicable ADS Delivery Date or Interest Payment Date (as applicable) or (B) notice, written or oral, to any Holder, including by way of public announcement, at any time, of its intention not to comply with a request for
Exhibit 4.3
conversion of any Debenture into ADS that tendered for conversion in accordance with the provisions of the Debenture, other than pursuant to Section (4)(c) (for the avoidance of doubt, the Event of Default set forth in this Section 3(a)(vii) shall be immediate and not subject to cure);
(viii)[Reserved];
(ix)The Company’s failure to timely file with the Commission any Periodic Report that would cause the Company to lose its eligibility to register securities on Form F-3, on or before the due date of such filing as established by the Commission, it being understood, for the avoidance of doubt, that such due date includes any permitted filing deadline extension under Rule 12b-25 under the Exchange Act;
(x)Any representation or warranty made or deemed to be made by or on behalf of the Company or any Guarantor in or in connection with any Transaction Document, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Transaction Document, shall prove to have been incorrect in any material respect when made or deemed made;
(xi)(A) Any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder, ceases to be in full force and effect; (B) the Company or any Guarantor contests in writing the validity or enforceability of any provision of any Transaction Document; or (C) the Company or any Guarantor denies in writing that it has any or further liability or obligation under any Transaction Document, or purports in writing to revoke, terminate (other than in line with the relevant termination provisions) or rescind any Transaction Document;
(xii)The Company uses the net proceeds of the issuance of this Debenture, whether directly or indirectly, for any purpose other than the purchase of Bitcoin as required under Section 4(b) of the Purchase Agreement; provided, such restriction on the use of proceeds shall not apply in respect of any Bitcoin that is released in accordance with Section 19(f);
(xiii)Any breach of a material term set forth in (A) any other debenture, note, or instrument held by the Holder in the Company or (B) any written agreement between or among the Company and the Holder, in each case, beyond all applicable notice and cure periods set forth therein;
(xiv)(A) The Registration Statement (as defined in the Registration Rights Agreement) shall not have been filed, declared effective or remained in effect, in each case, as required by the Registration Rights Agreement; or (B) the Company fails to remove any restrictive legend on any certificate or any ADSs issued to the Holder pursuant to the Debenture or any Pre-Funded Warrants acquired by the Holder under the Purchase Agreement (including this Debenture) as and when required by the Debenture or the Purchase Agreement, unless otherwise then prohibited by applicable federal securities laws and such failure continues for more than five (5) Trading Days (for the avoidance of doubt, the Event of Default set forth in this Section 3(a)(xiv)(B) shall be immediate following such five (5) Trading Day period and not subject to cure);
Exhibit 4.3
(xv)Any material provision of any Security Document shall at any time for any reason (other than pursuant to the express terms thereof or (other than action or inaction on the part of the Holder, the Collateral Agent or any of their respective agents)) cease to be valid and binding on or enforceable against the Company or any Guarantor, or the validity or enforceability thereof shall be contested by any party thereto or any other Person, or a proceeding shall be commenced by the Company, any Guarantor or any Subsidiary or any Governmental Entity having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or the Company, any Guarantor or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created under any Security Document;
(xvi)Any Security Document shall for any reason fail or cease to create a valid and perfected and first priority Lien (as defined in the Guaranty and Security Agreement) in the applicable Collateral (as defined in the Guaranty and Security Agreement) in favor of the Collateral Agent for the benefit of the Holder of this Debenture and the holders of the Other Debentures;
(xvii)The Company or any Guarantor shall fail to observe or perform any covenant, agreement or warranty contained in, or otherwise commit any breach or default of any provision of (x) this Debenture (except as may be covered by Section (3)(a)(i) through (3)(a)(xvi) hereof and Section (3)(a)(xviii) hereof) other than Section 19 hereof (other than (x) the obligation to pay Additional Interest pursuant to Section 19(h), which shall be covered by Section 3(a)(i) hereof, (y) the obligation to issue Interest ADSs on the applicable Interest Payment Date pursuant to Section 19(h), which shall be covered by Section 3(a)(vii) hereof and (z) the obligation to deposit the Shortfall Amount into the Cash Collateral Account or otherwise deliver an Additional Interest Election Notice to the Holder pursuant to Section 19(c), which shall be covered by Section 3(a)(xviii) hereof) or any other Transaction Document (other than any Security Document) which is not cured or remedied within the time prescribed or if no time is prescribed either: (1) within five (5) Business Days after the earlier to occur of the Company becoming aware of such failure or of the Company receiving written notice thereof from a Holder, or (2) provided that such failure is curable or otherwise capable of remedy and on or before the fifth (5th) Business Day after the earlier to occur of the Company becoming aware of such failure or of the Company receiving written notice thereof from a Holder the Company or any Guarantor has commenced commercially reasonable efforts to effect such cure or remedy and is at all times thereafter continuing such commercially reasonable efforts to effect such cure or remedy, within twenty (20) Business Days after the earlier to occur of the Company becoming aware of such failure or of the Company receiving written notice thereof from a Holder or (y) Section 19 of this Debenture (other than (x) the obligation to pay Additional Interest pursuant to Section 19(h), which shall be covered by Section 3(a)(i) hereof, (y) the obligation to issue Interest ADSs on the applicable Interest Payment Date pursuant to Section 19(h), which shall be covered by Section 3(a)(vii) hereof and (z) the obligation to deposit the Shortfall Amount into the Cash Collateral Account or otherwise deliver an Additional Interest Election Notice to the Holder pursuant to Section 19(c), which shall be covered by Section 3(a)(xviii) hereof) or any Security Document which is not cured or remedied within the time prescribed or if not subject to cure, immediately upon such breach, default or any failure to observe or
Exhibit 4.3
perform any covenant, agreement or warranty contained in Section 19 of this Debenture (other than (x) the obligation to pay Additional Interest pursuant to Section 19(h), which shall be covered by Section 3(a)(i) hereof, (y) the obligation to issue Interest ADSs on the applicable Interest Payment Date pursuant to Section 19(h), which shall be covered by Section 3(a)(vii) hereof and (z) the obligation to deposit the Shortfall Amount into the Cash Collateral Account or otherwise deliver an Additional Interest Election Notice to the Holder pursuant to Section 19(c), which shall be covered by Section 3(a)(xviii) hereof) or any Security Document; and
(xviii)On or prior to the Make-Whole Date, the Company shall have failed to deposit any required Shortfall Amount into the Cash Collateral Account or otherwise deliver an Additional Interest Election Notice with respect to such Shortfall Amount to the Holder (for the avoidance of doubt, the Event of Default set forth in this Section 3(a)(xviii) shall be immediate and not subject to cure).
(b) Promptly, but in no event later two (2) Business Day after the Company becomes aware of an Event of Default, the Company will provide written notice of such Event of Default to the Holder (an “Event of Default Notice”), which Event of Default Notice shall include (i) a reasonable description of the applicable Event of Default, (ii) the date on which the Event of Default occurred and (iii) the date on which the Default underlying such Event of Default initially occurred, if different than the date on which the Event of Default occurred. During the time that any portion of this Debenture is outstanding, if any Event of Default has occurred and is continuing (other than an event with respect to the Company described in Section (3)(a)(ii)), the Holder, by notice to the Company, may declare this Debenture (or any portion thereof) to become due and payable on the Business Day immediately following the date of such notice (the “Event of Default Acceleration Date”) for cash in an amount equal to the Event of Default Acceleration Amount (at which point the underlying Event of Default may not be cured); provided that, in the case of any event with respect to the Company described in Section (3)(a)(ii), the full unpaid Principal amount of this Debenture, together with accrued and unpaid interest and other amounts owing in respect thereof and other Obligations accrued hereunder and under the other Transaction Documents, to the date of acceleration, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company. Furthermore, in addition to any other remedies, the Holder shall have the right (but not the obligation) to convert, at the Conversion Price, on one or more occasions all or part of the Conversion Amount in accordance with Section (4) and subject to the limitations in Section (4)(c) at any time after (x) an Event of Default has occurred and is continuing; provided that, upon receipt of a Conversion Notice arising after the occurrence and during the continuance of an Event of Default, the underlying Event of Default may not be cured, or (y) the Maturity Date; provided that this Debenture remains outstanding, at the Conversion Price. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other notice of any kind, (other than required notice of conversion) and the Holder may immediately enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by the Holder in writing at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
Exhibit 4.3
(4) CONVERSION OF DEBENTURE. This Debenture shall be convertible into Ordinary Shares deposited for the delivery of ADSs, on the terms and conditions set forth in this Section (4).
(a)Conversion Right. Subject to the limitations of Section (4)(c), at any time or times on or after the Issuance Date, the Holder shall be entitled to convert any portion of the outstanding and unpaid Conversion Amount into fully paid and nonassessable Ordinary Shares deposited for the delivery of ADSs in accordance with Section (4)(b), at the Conversion Price (as defined below). The number of Ordinary Shares deposited for the delivery of ADSs issuable upon conversion of any Conversion Amount pursuant to this Section (4)(a) shall be equal to the quotient of (x) such Conversion Amount and (y) the Conversion Price. The Company shall not issue any fraction of an ADSs upon any conversion. All calculations under this Section (4) shall be rounded to the nearest $0.0001. If the issuance would result in the issuance of a fraction of an ADS, the Company shall round such fraction of an ADS up to the nearest whole ADS. The Company shall pay and indemnify the Holder for any and all transfer, stamp and similar taxes, including the French financial transaction tax provided for by Article 235 ter ZD of the French Tax Code, that may be paid or payable with respect to the issuance of Ordinary Shares and delivery of ADSs upon conversion of any Conversion Amount.
(b)Mechanics of Conversion.
(i)Optional Conversion. To convert any Conversion Amount into Ordinary Shares for the delivery of ADSs on any date (a “Conversion Date”), the Holder shall (A) transmit by email (or otherwise deliver), for receipt on or prior to 6:00 p.m., New York time, on such date (the “Conversion Notice Date”), a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”) to the Company and (B) if required by Section (4)(b)(iii), surrender this Debenture to a nationally recognized overnight delivery service for delivery to the Company (or an indemnification undertaking reasonably satisfactory to the Company with respect to this Debenture in the case of its loss, theft or destruction). If (x) the Conversion Notice is delivered to the Company at or before 10:00 a.m., New York City time, then on or before the first (1st) Trading Day that is also a Paris Business Day (or if the Conversion Notice Date is not a Paris Business Day, the first (1st) Trading Day following the next Paris Business Day) following the date of receipt of such Conversion Notice (or such earlier date as required pursuant to the Exchange Act or other applicable law, rule or regulation for the settlement of a trade initiated on the applicable Conversion Date of such ADSs issuable pursuant to such Conversion Notice), the Company shall or (y) the Conversion Notice is delivered to the Company after 10:00 a.m., New York City time, then the Company shall use commercially reasonably efforts to, on or before the first (1st) Trading Day following receipt of such Conversion Notice (but in no event later than the second (2nd) Trading Date) (such date in the case of (x) or (y), the “ADS Delivery Date”) (X) if legends are not required to be placed on certificates or the book-entry position of the ADS and provided that the Company’s transfer agent is participating in the Depository Trust Company’s (“DTC”) Fast Automated Securities Transfer Program, instruct such transfer agent to credit such aggregate number of ADSs to which the Holder shall be entitled to the Holder’s or its designee’s balance account with DTC through its Deposit
Exhibit 4.3
Withdrawal Agent Commission system or (Y) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, or if restrictive legends are required to be placed on certificates or book-entry positions of the ADSs, issue and deliver to the address as specified in the Conversion Notice, a certificate or book-entry position, registered in the name of the Holder or its designee, for the number of ADSs to which the Holder shall be entitled. If this Debenture is physically surrendered for conversion and the outstanding Principal of this Debenture is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than five (5) Business Days after receipt of this Debenture and at its own expense, issue and deliver to the Holder a new Debenture representing the outstanding Principal not converted.
(ii)Company’s Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable ADS Delivery Date (in the case of ADSs to be delivered pursuant to Section 4(b)(i)) or Interest Payment Date (in the case of any Interest ADSs to be delivered pursuant to Section 19(h)) to issue and deliver a certificate to the Holder or credit the Holder’s balance account with DTC for the number of ADSs (the “Undelivered ADSs”) to which the Holder is entitled pursuant to Section 4(b)(i) or Section 19(h), as applicable (a “Conversion Failure”), and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) ADSs to deliver in satisfaction of a sale by the Holder of ADSs issuable pursuant to Section 4(b)(i) or Section 19(h) (as applicable) that the Holder anticipated receiving from the Company (a “Buy-In”), then, without limiting the Holder’s right to pursue any other remedy available to it (whether hereunder, under applicable law or otherwise), the Holder will have the right, exercisable by notice to the Company, to cause the Company to either (x) pay, on or before the third (3rd) Business Day after the date such notice is delivered, cash to the Holder in an amount equal to the Holder’s total purchase price (including reasonable and documented brokerage commissions and other reasonable and documented out of pocket expenses, if any) for the ADSs so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such certificate (and to issue such ADSs) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such ADSs and pay cash to the Holder in an amount equal to the excess (if any) of the Buy- In Price over the product of (A) such number of ADSs multiplied by (B) the Closing Price of the ADSs on the Conversion Date or Interest Payment Date (as applicable). In addition to the foregoing, if the Company fails for any reason to deliver ADSs to the Holder by the applicable ADS Delivery Date or Interest Payment Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each one thousand dollars ($1,000) of Undelivered ADSs (based on the VWAP on the applicable ADS Delivery Date or Interest Payment Date), ten dollars ($10) per Trading Day (increasing to twenty dollars ($20) per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after the ADS Delivery Date or Interest Payment Date (as applicable) until the cash amount set forth in in this Section 4(b)(ii) is paid to the Holder or the ADSs are delivered to the Holder pursuant to this Section 4(b)(ii).
(iii)Book-Entry. Notwithstanding anything to the contrary set forth herein, upon conversion, redemption or repurchase of any portion of this Debenture in accordance with the terms hereof, the Holder shall not be required to physically surrender this Debenture
Exhibit 4.3
to the Company unless (A) the full Conversion Amount represented by this Debenture is being converted, redeemed or repurchased or (B) the Holder has provided the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Debenture upon physical surrender of this Debenture. The Holder and the Company shall maintain records showing the Principal and Interest converted, redeemed and repurchased and the dates of such conversions, redemptions and repurchases or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Debenture upon any partial conversion, redemption or repurchase.
(c) Limitations on Conversions.
(i)Beneficial Ownership. The Holder shall not have the right to convert any portion of this Debenture, and the Company shall not effect the conversion of any portion of this Debenture or otherwise issue ADSs pursuant to this Debenture, and any such conversion or issuance shall be null and avoid and treated as if never made (other than as set forth in this Section 4(c)(i)), to the extent that after giving effect to such conversion, the Holder, together with the other Attribution Parties, collectively would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 4.99% of the number of ADSs outstanding immediately after giving effect to such conversion (the “Beneficial Ownership Cap”). For purposes of this Debenture, in determining the number of outstanding ADSs the Holder may acquire in connection with this Debenture without exceeding the Beneficial Ownership Cap, the Holder may rely on the number of outstanding ADSs as reflected in (x) the Company's most recent Periodic Reports, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Company’s transfer agent setting forth the number of ADSs outstanding (the “Reported Outstanding ADS Number”). If the Company receives a notice from the Holder related to the conversion of this Debenture or any issuance of ADSs in connection with this Debenture at a time when the actual number of outstanding ADSs is less than the Reported Outstanding ADS Number, the Company shall promptly notify the Holder in writing of the number of ADSs then outstanding and, to the extent that such conversion or issuance of ADSs would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 4(c)(i), to exceed the Beneficial Ownership Cap, the Holder must notify the Company of a reduced number of ADSs to be issued pursuant to such notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) Trading Days confirm in writing or by electronic mail to the Holder the number of ADSs then outstanding. In any case, the number of outstanding ADSs shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Debenture, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding ADS Number was reported. In the event that the issuance of ADSs to the Holder upon conversion of, or otherwise pursuant to, this Debenture results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Beneficial Ownership Cap of the number of outstanding ADSs (as determined under Section 13(d) of the Exchange Act), the Holder shall have the right to convert any such portion of this Debenture to the extent it agrees to receive Pre-Funded Warrants (as defined in the Purchase Agreement) exercisable for such number of ADSs that would otherwise have caused such Holder
Exhibit 4.3
(together with any affiliate thereof) to beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) ADSs in excess of the Beneficial Ownership Cap. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Beneficial Ownership Cap to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Beneficial Ownership Cap will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Debentures that is not an Attribution Party of the Holder. For purposes of clarity, the ADSs issuable pursuant to the terms of this Debenture in excess of the Beneficial Ownership Cap shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert this Debenture or receive ADSs pursuant to this Debenture pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(c)(i) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 4(c)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Debenture.
(ii)Notwithstanding anything to the contrary contained in this Debenture or in any other Transaction Document, (x) the Company shall not have the right to convert this Debenture and (y) there shall be no other limitations, including with respect to timing or amount, on conversions of this Debenture.
(d) Other Provisions
(i)All calculations under this Section (4) shall be rounded to the nearest $0.0001 or whole ADS.
(ii)The Company covenants that it will at all times keep available for issuance, out of its authorized and unissued Ordinary Shares and ADSs, such number of Ordinary Shares and ADSs not less than the maximum number of ADSs (or Ordinary Shares represented by such ADSs) issuable upon conversion of this Debenture (assuming for purposes hereof that (x) this Debenture is convertible at the Conversion Price as of the date of determination and (y) any such conversion shall not take into account any limitations on the conversion of the Debenture set forth herein or therein (the “Required Reserve Amount”), provided that at no time shall the number of Ordinary Shares or ADSs reserved pursuant to this Section (4)(d)(ii) be reduced other than proportionally with respect to all Ordinary Shares and ADSs in connection with any conversion (other than pursuant to the conversion of this Debenture in accordance with its terms) and/or cancellation of this Debenture, or a reverse share split undertaken by the Company. If at any time the number of Ordinary Shares or ADSs reserved pursuant to this Section (4)(d)(ii) becomes less than the Required Reserve Amount, the Company will promptly take all corporate action necessary to promptly propose at a meeting of its shareholders
Exhibit 4.3
an increase of its authorized share capital necessary to meet the Company’s obligations pursuant to this Debenture, and the Company’s Board of Directors will recommend that the Company’s shareholders vote in favor of such increase. The Company covenants that, upon issuance in accordance with conversion of this Debenture in accordance with its terms, the Ordinary Shares and ADSs, when issued, will be validly issued, fully paid and nonassessable.
(iii)Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section (3) herein for the Company’s failure to deliver ADSs upon conversion in the manner and within the time period specified herein and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.
(iv)The Company is obligated, upon reasonable notice, to use its commercially reasonable efforts to cause its legal counsel to deliver legal opinions to the Company’s transfer agent in connection with any legend removal upon the expiration of any holding period or other requirement for which the Underlying ADSs may bear legends restricting the transfer thereof; provided, however, that such Holder has delivered such reasonably requested representations to such transfer agent, the Company and the Company’s legal counsel in connection with the request for such opinion. To the extent such opinions are not provided (either timely or at all other than because of an action or inaction of Holder, including the reasonably requested representations of Holder), then, in addition to being an Event of Default in accordance with Section (3)(a)(xv), the Company agrees to reimburse the Holder for all reasonable and documented costs incurred by the Holder in connection with any legal opinions paid for by the Holder in connection with sale or transfer of Underlying ADSs. To the extent such opinions are not provided (either timely or at all), the Holder shall notify the Company of any such costs and expenses it incurs that are referred to in this section from time to time and all reasonable amounts owed hereunder shall be paid by the Company with reasonable promptness.
(v)The Company hereby expressly acknowledges and agrees that (i) the Purchase Agreement and all Transaction Documents to which it is a party are ratified and confirmed and shall remain in full force and effect, (ii) it has no set off, counterclaim, defense or other claim or dispute with respect to any Transaction Document, (iii) notwithstanding anything to the contrary in any Transaction Document, the term “Obligations” as used and defined in the Guaranty and Security Agreement and any Security Document shall include all Obligations under this Agreement and the other Transaction Documents, and (iv) all Obligations under this Debenture are duly secured by the Security Documents.
(vi)The Company shall undertake to maintain, as long as the Debenture is outstanding and remains convertible into ADSs, the effectiveness of a registration statement on Form F-6 relating to the ADSs and an adequate number of ADSs available for issuance thereunder such that ADSs can be delivered in accordance with the terms of this
Exhibit 4.3
Debenture, and the Deposit Agreement or the Restricted Issuance Agreement, as applicable, upon conversion of this Debenture.
(vii)The person in whose name any ADSs is issuable pursuant to this Debenture will be deemed to become the holder of record of such shares as of the delivery of the Conversion Notice to the Company, conferring, as of such time, upon such person, without limitation, all voting and other rights appurtenant to such shares; provided, that the Holder shall be deemed to have waived any voting rights of any such ADSs issued to the Holder that may arise during the period commencing on such Conversion Date, through, and including, such applicable ADS Delivery Date, as necessary, such that the aggregate voting rights of any ADSs (including such ADSs issued to the Holder) beneficially owned by the Holder and/or any Attribution Parties, collectively, on any such record date shall not exceed the Beneficial Ownership Cap as a result of any such conversion of this Debenture.
(5) ADJUSTMENTS TO CONVERSION PRICE3
(a)Adjustment of Conversion Price. As of the date of this Debenture, each ADS represents ten (10) Ordinary Shares of the Company. If the number of Ordinary Shares represented by the ADSs is changed for any reason other than one or more of the events described in Section (5)(b), the Company will make an appropriate adjustment to the Conversion Price to give effect to such change while preserving the Holder’s economics (for example, if each ADS is changed from representing ten (10) Ordinary Shares to representing twenty (20) Ordinary Shares for any reason other than one or more of the events described in Section (5)(b), the adjusted Conversion Price would be the Conversion Price immediately prior to such adjustment divided by two).
Notwithstanding the adjustment provisions described below, if the Company distributes to holders of the Ordinary Shares any cash, rights, options, warrants, shares of capital stock or similar equity interest, evidences of indebtedness or other assets or property of the Company (but excluding Expiring Rights) and a corresponding distribution is not made to holders of the ADSs, but, instead, the ADSs will represent, in addition to the Ordinary Shares, such cash, rights, options, warrants, shares of capital stock or similar equity interest, evidences of indebtedness or other assets or property of the Company, then a Conversion Price adjustment described below shall not be made until and unless a corresponding distribution (if any) is made to holders of the ADSs, and such Conversion Price adjustment shall be based on the distribution made to the holders of the ADSs and not on the distribution made to the holders of the Ordinary Shares; provided that in the case of one or more partial distributions (with the ADSs continuing to represent, in addition to Ordinary Shares, any such cash, rights, options, warrants, shares of capital stock or similar equity interest, evidences of indebtedness or other assets or property of the Company that have not been distributed), the Company will make appropriate interim adjustments to account for such distributions consistent with the Conversion Price
________________
3 For the avoidance of doubt, if an event occurs between signing of the Purchase Agreement and the Issuance Date that would have resulted in an adjustment to the Conversion Price had the Debenture been issued on the date of the signing of the Purchase Agreement, the Conversion Price will be so adjusted in connection with the issuance of the Debenture on the Issuance Date.
Exhibit 4.3
adjustments described below based on the distributions made to the holders of the ADSs.
The Company shall not, and is not permitted by current applicable law to, distribute to holders of the ADSs any cash, rights, options, warrants, shares of capital stock or similar equity interest, evidences of indebtedness or other assets or property of the Company unless a corresponding distribution is made to holders of the Ordinary Shares.
(b) For any particular event or transaction that would result in a Conversion Price adjustment under this Section (5)(b), the Company will first adjust the Conversion Price based on the Conversion Price adjustment under Sections (5)(b)(i) through (5)(b)(vii) (the “Mandatory French Law Conversion Price Adjustment”). After making the Mandatory French Law Conversion Price Adjustment to the Conversion Price, the Company will also calculate the Conversion Price adjustment for the same transaction or event under Section (5)(b)(viii) (assuming for such purpose that the Mandatory French Law Conversion Price Adjustment has not yet been made) (the “U.S. Conversion Price Adjustment”). The Company will then increase the Conversion Price as adjusted by the Mandatory French Law Conversion Price Adjustment by an amount equal to the U.S. Conversion Price Adjustment minus the Mandatory French Law Conversion Price Adjustment, but only if such amount is a positive number. The Company will make these calculations in good faith and, absent manifest error, the Company’s determinations as to which Conversion Price adjustment shall apply and any Conversion Price adjustment calculations associated therewith will be final and binding on the Holder. In the event that the Company becomes organized under the laws of a jurisdiction other than the French Republic, the Company will provide for anti-dilution and other adjustments that it in good faith determines are as nearly equivalent as possible to the adjustments described in this Section (5)(b). For purposes of the adjustment provisions described below in this Section (5)(b), the number of outstanding Ordinary Shares (for purposes of determining the outstanding ordinary share capital and whether dividends or distributions are made to all of the holders of the Ordinary Shares) shall not include Ordinary Shares held in the treasury of the Company (directly or in the form of ADSs) so long as the Company does not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Company (directly or in the form of ADSs). In the event of any adjustments described below under Section (5)(b), the new Conversion Price will be calculated to four decimal places by rounding to the nearest ten-thousandth (with 0.00005 being rounded upwards to the nearest ten-thousandth, i.e., 0.0001). Any subsequent adjustments will be carried out on the basis of such newly calculated and rounded Conversion Price.
(i)In accordance with the provisions of Article L. 228-98 of the French Commercial Code, in the event of a reduction of the Company’s Ordinary Share capital resulting from losses and realized through a shareholder approved decrease of the number of the Company’s outstanding Ordinary Shares (a “Share Reduction”), the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS0
OS’
Exhibit 4.3
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Open of Business on the Effective Date of the Share Reduction;
CP’ = the Conversion Price in effect immediately after the Paris Open of Business on such Effective Date of the Share Reduction;
OS’ = the number of Ordinary Shares comprising the Company’s Ordinary Share capital immediately after the Effective Date of the Share Reduction; and
OS0 = the number of Ordinary Shares comprising the Company’s Ordinary Share capital immediately before the Effective Date of the Share Reduction.
The terms and concepts described above are as understood under Article L. 228-98 of the French Commercial Code.
Pursuant to French law, any reduction in the Company’s Ordinary Share capital requires shareholder approval at an extraordinary general shareholders’ meeting following the recommendation of the Company’s board of directors. The Ordinary Share capital may be reduced either by decreasing the nominal value of the outstanding Ordinary Shares or by reducing the number of outstanding Ordinary Shares. Pursuant to French law, holders of each class of shares of the Company’s Ordinary Share capital must be treated equally.
For the avoidance of doubt, in accordance with the provisions of Article L. 228-98 of the French Commercial Code, in the event of a reduction of the Company’s Ordinary Share capital resulting from losses and realized through a decrease in the nominal value (instead of a Share Reduction), if Holder converts this Debenture it will receive ADSs reflecting such decrease in nominal value rather than the Conversion Price adjustment described above.
(ii) In the event the Company issues to all of the holders of Ordinary Shares preferential subscription rights (as described below), the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS’
OS’ + FMV
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Close of Business on the last Trading Day of the subscription period for the preferential subscription rights (the “Subscription Period”);
CP’ = the Conversion Price in effect immediately after the Paris Close of Business on the last Trading Day of such Subscription Period;
OS’ = the Value of the Ordinary Shares Ex-Right; and
Exhibit 4.3
FMV = the Value of the Preferential Subscription Right.
According to French law, if the Company issues additional Ordinary Shares or securities giving access to its ordinary share capital for cash or a set-off of cash debts, then-current holders of the Ordinary Shares will have preferential subscription rights to these securities on a pro rata basis. Preferential subscription rights entitle the individual or entity that holds them to subscribe pro rata based on the number of Ordinary Shares held by them to the issuance of any securities increasing, or that may result in an increase of, the Company’s Ordinary Share capital by means of a cash payment or a set-off of cash debts. The preferential subscription rights are transferable during the Subscription Period relating to a particular offering.
The preferential subscription rights with respect to any particular offering may be waived at an extraordinary general meeting by a two-thirds vote of the Company’s shareholders or individually by each shareholder.
To the extent required pursuant to Article L. 228-99 and Article R. 228-92 of the French Commercial Code, if the Company decides to issue, in any form whatsoever, new shares or securities giving access to the Company’s Ordinary Share capital with preferential subscription rights reserved for the Company’s shareholders, the Company will provide at least 14 calendar days’ prior written notice to the Holder.
(iii) In the event that the Company makes a “distribution for no consideration of Ordinary shares” to all of the holders of Ordinary Shares (as such terms are understood under Article R. 228-91(2°) of the French Commercial Code), or if the Company effects a share split or reverse share split, the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS0
OS’
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Close of Business on the Record Date of such dividend or distribution, or immediately prior to the Paris Open of Business on the Effective Date of such share split or reverse share split, as applicable;
CP’ = the Conversion Price in effect immediately after the Paris Close of Business on the Record Date of such distribution, or immediately after the Paris Open of Business on the Effective Date of such share split or reverse share split, as applicable;
OS’ = the number of Ordinary Shares comprising the Ordinary Share capital immediately after the Paris Close of Business on the Record Date of such dividend or distribution or after the Paris Open of Business on the Effective Date of such share split or reverse share split, as applicable; and
OS0 = the number of Ordinary Shares comprising the Ordinary Share capital immediately prior to the Paris Close of Business on the Record Date of such dividend or
Exhibit 4.3
distribution or immediately prior to the Paris Open of Business on the Effective Date of such share split or reverse share split, as applicable.
(iv) In the event of a distribution of reserves or premiums (as such terms are understood under Article R. 228-91(3°) of the French Commercial Code) in cash or other assets (other than Ordinary Shares) to all of the holders of the Ordinary Shares, the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS’ - C
OS’
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Open of Business on the Ex-Dividend Date for such distribution;
CP’ = the Conversion Price in effect immediately after the Paris Open of Business on the Ex-Dividend Date for such distribution;
OS’ = the Value of the Ordinary Share immediately prior to the Paris Close of Business on the Date of such Distribution; and
C = the cash amount distributed per Ordinary Share or, if the distribution consists of assets other than cash, the Value of the Securities or Assets Distributed per Ordinary Share.
For the avoidance of doubt, in the event of a capital increase by incorporation of reserves or premiums (as such terms are understood under Article R. 228-91(3°) of the French Commercial Code) achieved by increasing the nominal value of the Ordinary Shares instead of a distribution of such reserves or premiums, the nominal value of the Ordinary Shares underlying ADS delivered to the Holder of this Debenture upon conversion thereof will be increased accordingly and no adjustment to the Conversion Price will be made in respect thereof.
(v) Other than pursuant to a Share Reduction that results in an adjustment described in Section (5)(b)(i), in the event that the Company purchases, or any of the Company’s Subsidiaries purchase, any of the Ordinary Shares (directly or in the form of ADS) at a price per Ordinary Share in cash and/or other consideration (the fair market value of which other consideration is reasonably determined by the Company or, at the Company’s option, an Independent Expert) that is higher than the Ordinary Share Market Price, the Conversion Price will be adjusted by the Company based on the following formula
CP’ = CP0 x OS’ - (PC% x RP)
OS’ x (1-PC%)
where,
Exhibit 4.3
CP0 = the Conversion Price in effect immediately prior to the Paris Close of Business on the date such Ordinary Shares (directly or in the form of ADS) are repurchased (the “Ordinary Share Repurchase Date”);
CP’ = the Conversion Price in effect immediately after the Paris Close of Business on the Ordinary Share Repurchase Date;
OS = the arithmetic average of the VWAP (divided by the number of Ordinary Shares then represented by one ADS) for each of the three Trading Days immediately preceding the Ordinary Share Repurchase Date;
PC% = means the percentage of the Company’s outstanding Ordinary Share capital (directly or in the form of ADS) repurchased, expressed as a decimal rounded to the nearest hundredth (with 0.005 being rounded upwards to the nearest hundredth, i.e., 0.01); and
RP = the actual price (consisting of cash and/or other consideration (the fair market value of which other consideration is reasonably determined by the Company or, at the Company’s option, an Independent Expert)) at which the Ordinary Shares are repurchased on a per share basis.
(vi) In the event of a redemption (amortissement) (as such term is understood under Article R. 228-91(5°) of the French Commercial Code) of the Company's Ordinary Share capital, the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS’ - RP
OS’
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Close of Business on the Trading Day immediately preceding the Ex-Redemption Date;
CP’ = the Conversion Price in effect immediately after the Paris Close of Business on the Trading Day immediately preceding the Ex-Redemption Date;
OS’ = the arithmetic average of the VWAP (divided by the number of Ordinary Shares then represented by one ADS) for each of the three Trading Days immediately preceding the Ex-Redemption Date; and
RP = the amount of redemption (amortissement) per Ordinary Share.
A “redemption (amortissement)” is a reimbursement to the shareholders of all or part of the nominal value of the Ordinary Shares but without triggering any Ordinary Share capital decrease.
(vii) (1) In the event of a “modification” by the Company of the “distribution of profits” of the Company (modification de la répartition des bénéfices) (as such terms are
Exhibit 4.3
understood under Article R. 228-91(4°) of the French Commercial Code), the Conversion Price will be adjusted based on the following formula:
CP’ = CP0 x OS’ - C
OS’
where,
CP0 = the Conversion Price in effect immediately prior to the Paris Close of Business on the Effective Date of such modification by the Company of the distribution of its profits;
CP’ = the Conversion Price in effect immediately after the Paris Close of Business on the Effective Date of such modification by the Company of the distribution of its profits;
OS’ = the arithmetic average of the VWAP (divided by the number of Ordinary Shares then represented by one ADS) for each of the three Trading Days immediately preceding the Effective Date of such modification by the Company of the distribution of its profits; and
C = the reduction per Ordinary Share of the rights to profits, as reasonably determined by the Company or, at the Company’s option, an Independent Expert.
Notwithstanding the above, if any modification by the Company of the distribution of its profits results from the issuance of preferential subscription rights for preferred shares that results in an adjustment to the Conversion Price pursuant to Section (5)(b)(ii), no adjustment to the Conversion Price will be made pursuant to this Section (5)(b)(vii)(1).
(2) In the event of the creation of preferred shares that does not result in a “modification” by the Company of the “distribution of profits” (as such terms are understood under Article R. 228-91(4°) of the French Commercial Code), the adjustment of the Conversion Price, if necessary, will be determined by an Independent Expert.
(viii) (1) If the Company issues to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) any rights, options or warrants (other than to the extent such issuance constitutes (x) an issuance of preferential subscription rights that results in an adjustment to the Conversion Price pursuant to Section (5)(b)(ii) or (y) a distribution of reserves or premiums that results in an adjustment to the Conversion Price pursuant to Section (5)(b)(iv)) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than the average of the Closing Prices of the Ordinary Shares or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of Ordinary Shares then represented by one ADS), for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Price will be increased based on the following formula:
CP1 = CP0 x OS0 + Y
OS0 + X
where,
Exhibit 4.3
CP0 = the Conversion Price in effect immediately prior to the New York Open of Business on the Ex-Dividend Date for the ADSs for such issuance;
CP1 = the Conversion Price in effect immediately after the New York Open of Business on such Ex-Dividend Date;
OS0 = the number of shares of Ordinary Shares (directly or in the form of ADSs) outstanding immediately prior to the New York Open of Business on such Ex-Dividend Date;
X = the total number of shares of Ordinary Shares (directly or in the form of ADSs) issuable pursuant to such rights, options or warrants; and
Y = the number of shares of Ordinary Shares equal to (i) the aggregate price payable to exercise such rights, options or warrants, divided by (ii) the quotient of (a) the average of the Closing Prices of the ADSs over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants divided by (b) the number of Ordinary Shares then represented by one ADS.
Any decrease made under this Section (5)(b)(viii)(1) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the New York Open of Business on the Ex-Dividend Date for the ADSs for such issuance. To the extent that the Ordinary Shares or the ADSs are not delivered after the expiration of such rights, options or warrants, the Conversion Price shall be increased to the Conversion Price that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares (directly or in the form of ADSs) actually delivered. If such rights, options or warrants are not so issued, the Conversion Price shall be increased to the Conversion Price that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section (5)(b)(viii)(1), in determining whether any rights, options or warrants entitle the holders of ADSs to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than such average of the Closing Prices of the Ordinary Shares or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of Ordinary Shares represented by one ADS), for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate offering price of such Ordinary Share or ADSs, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company in good faith.
(2) If the Company distributes shares of its capital stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its capital stock or other securities of the Company, to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs), excluding: (i) any
Exhibit 4.3
dividend, distribution, issuance, redemption, repurchase or other event for which an adjustment to the Conversion Price is specifically provided for in any of clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) of Section (5)(b), (ii) dividends or distributions paid exclusively in cash as to which the adjustment provision set forth in Section (5)(b)(viii)(3) or Section (5)(b)(iv) shall apply; and (iii) Spin-Offs as to which the provisions set forth below in this Section (5)(b)(viii)(2) shall apply to the extent not specifically provided for pursuant to the adjustment provision set forth in Section (5)(b)(iv) (any of such shares of capital stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire capital stock or other securities, the “Distributed Property”), then the Conversion Price shall be decreased based on the following formula:
CP1 = CP0 x SP0 -FMV
SP0
where,
CP0 = the Conversion Price in effect immediately prior to the New York Open of Business on the Ex-Dividend Date for the ADSs for such distribution;
CP1 = the Conversion Price in effect immediately after the New York Open of Business on such Ex-Dividend Date;
SP0 = the average of the Closing Prices of the ADSs (divided by the number of Ordinary Shares then represented by one ADS) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV = the fair market value (as determined in good faith by the Company) of the Distributed Property with respect to each outstanding Ordinary Share (directly or in the form of ADSs) on the Ex-Dividend Date for such distribution (converted into euros using an exchange rate in effect on the date of determination to the extent not already reflected in euros).
Any decrease made under the portion of this Section (5)(b)(viii)(2) above shall become effective immediately after the New York Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Price shall be increased to the Conversion Price that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Holder of this Debenture shall receive, in respect of each $1,000 Principal of this Debenture, at the same time and upon the same terms as holders of the ADSs receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of ADSs equal to the quotient of (x) $1,000 and the (y) Conversion Price that is in effect on the Ex-Dividend Date for the distribution. If the Company determines the “FMV” (as defined above) of any distribution for purposes of this Section (5)(b)(viii)(2) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Closing Price of the ADSs over the 10 consecutive Trading Day period
Exhibit 4.3
ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
With respect to an adjustment pursuant to this Section (5)(b)(viii)(2) where there has been a payment of a dividend or other distribution on the Ordinary Shares (directly or in the form of ADSs) of capital stock of any class or series, or similar equity interest, of or relating to any Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Price shall be increased based on the following formula:
CP1 = CP0 x MP0
FMV + MP0
where,
CP0 = the Conversion Price in effect immediately prior to the end of the Valuation Period;
CP1 = the Conversion Price in effect immediately after the end of the Valuation Period;
FMV = the average of the Closing Prices of the capital stock or similar equity interest distributed to holders of the Ordinary Shares (directly or in the form of ADSs) applicable to one Ordinary Share (determined by reference to the definition of Closing Price as set forth in Section (17) as if references therein to ADSs were to such capital stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); provided that, if there is no Closing Price of the capital stock or similar equity interest distributed to holders of the Ordinary Shares (directly or in the form of ADSs) on such Ex-Dividend Date, the “Valuation Period” shall be the 10 consecutive Trading Day period after, and including the first Trading Day such Closing Price is available; and
MP0 = the average of the Closing Prices of the ADSs over the Valuation Period.
The decrease to the Conversion Price under the preceding paragraph shall occur at the New York Close of Business on the last Trading Day of the Valuation Period; provided that if the relevant Conversion Date occurs during the Valuation Period, references to “10” in the portion of this Section (5)(b)(viii)(2) related to Spin-Offs shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Price. If the dividend or distribution that constitutes the Spin-Off is declared but not so paid or made, the Conversion Price shall be immediately increased, effective as of the date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Price that would then be in effect if such dividend or distribution constituting the Spin-Off had not been declared or announced.
For purposes of this Section (5)(b)(viii)(2), rights, options or warrants distributed by the Company to all holders of the Ordinary Shares (directly or in the form of ADSs) entitling them to subscribe for or purchase the Company’s capital stock, including Ordinary Shares
Exhibit 4.3
(directly or in the form of ADSs) (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares (directly or in the form of ADSs); (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares (directly or in the form of ADSs), shall be deemed not to have been distributed for purposes of this Section (5)(b)(viii)(2) (and no adjustment to the Conversion Price under this Section (5)(b)(viii)(2) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section (5)(b)(viii)(2). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Debenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and the Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section (5)(b)(viii)(2) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Price shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Price shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of ADSs with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of ADS as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights, options and warrants had not been issued.
(3) If any dividend or distribution is made to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) (other than to the extent such dividend or distribution constitutes a distribution of reserves or premiums for which an adjustment is specifically provided for in Section (5)(b)(iv)) solely in cash, the Conversion Price shall be adjusted based on the following formula:
CP1 = CP0 x SP0- C
SP0
where,
CP0 = the Conversion Price in effect immediately prior to the New York Open of Business on the Ex-Dividend Date for the ADSs for such dividend or distribution;
Exhibit 4.3
CP1 = the Conversion Price in effect immediately after the New York Open of Business on the Ex-Dividend Date for such dividend or distribution;
SP0 = the Closing Price of the ADSs (divided by the number of Ordinary Shares then represented by one ADS) on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C = the amount in cash per Ordinary Share the Company distributes to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs).
Any decrease pursuant to this Section (5)(b)(viii)(3) shall become effective immediately after the New York Open of Business on the Ex-Dividend Date for the ADSs for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Price shall be increased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Holder of this Debenture shall receive, for each $1,000 principal amount of Debenture it holds, at the same time and upon the same terms as holders of ADS, the amount of cash that such Holder would have received if such Holder owned a number ADS equal to the quotient of $1,000 and the Conversion Price in effect on the Ex-Dividend Date for such cash dividend or distribution.
(ix)Notwithstanding this Section (5)(b) or any other provision of this Debenture, if a Conversion Price adjustment becomes effective on any Ex-Dividend Date or Ex-Redemption Date, and the Holder has converted this Debenture on or after such Ex-Dividend Date or Ex-Redemption Date, as the case may be, and on or prior to the related Record Date would be treated as the record holder of the ADS (delivered or to be delivered in respect of such conversion) as of the related Conversion Date based on an adjusted Conversion Rate for such Ex-Dividend Date or Ex-Redemption Date, as applicable, then, notwithstanding the Conversion Price adjustment provisions in this Section (5)(b), the Conversion Price adjustment relating to such Ex-Dividend Date or Ex-Redemption Date, as applicable, shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the ADS on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
(c) [Reserved].
(d) In the case of:
(i)any recapitalization, reclassification or change of the ADSs or Ordinary Shares (other than changes resulting from a subdivision or combination),
(ii)any consolidation, merger, combination or similar transaction involving the Company,
Exhibit 4.3
(iii)any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company's Subsidiaries substantially as an entirety or
(iv)any statutory share exchange,
in each case, as a result of which the ADSs or the Ordinary Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Share Exchange Event”), then, the Company or the successor or the acquiring company, as the case may be, will amend this Debenture to provide that, at and after the effective time of such Share Exchange Event, the right to convert each $1,000 Conversion Amount of this Debenture shall be changed into a right to convert each $1,000 Conversion Amount of this Debenture into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of ADS equal to the quotient of (x) $1,000 and (y) the Conversion Price immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one ADSs is entitled to receive) upon such Share Exchange Event; provided, however, that at and after the effective time of the Share Exchange Event (I) any ADSs that the Company would have been required to deliver upon conversion of this Debenture (or any portion thereof) in accordance with Section (4) shall instead be deliverable in the amount and type of Reference Property that a holder of that number of ADSs would have received in such Share Exchange Event and (II) the VWAP shall be calculated based on the value of a unit of Reference Property.
If the Share Exchange Event causes the ADSs or Ordinary Shares to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of election of the holders of the Ordinary Shares), then (i) the Reference Property into which this Debenture will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the ADSs and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one ADS. The Company shall notify the Holder of such weighted average as soon as practicable after such determination is made.
If the Reference Property in respect of any Share Exchange Event includes, in whole or in part, Common Equity, the amendment to this Debenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that the Company in good faith determines are as nearly equivalent as is possible to the adjustments provided for in this Section (5) with respect to the portion of Reference Property constituting Common Equity. If, in the case of any Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing company, as the case may be, in such Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holder of this Debenture as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
Exhibit 4.3
(e) Whenever the Conversion Price is adjusted pursuant to this Section (5), the Company shall promptly provide the Holder with a written notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
(f) The Company may reduce the Conversion Price with the prior written consent of the Required Holders, which may be given by the Required Holders in their sole discretion. The Company and the Holder agree that any such voluntary adjustment to the Conversion Price and any conversion of any portion of the Debenture based upon any such voluntary adjustment shall not constitute material non-public information with respect to the Company.
(g) If the Ordinary Shares cease to be represented by American Depositary Shares issued under a depositary receipt program sponsored by the Company: (i) each reference in this Debenture to the ADSs related to the terms of this Debenture will be deemed to have been replaced by a reference to the number of Ordinary Shares and other property, if any, represented by the ADSs on the last day on which the ADSs represented the Ordinary Shares as if such Ordinary Shares and other property had been distributed to holders of the ADSs on that day and (ii) all references to the VWAP of an ADS in this Debenture will be deemed to refer to the VWAP of an Ordinary Share, and other appropriate adjustments, including adjustments to the Conversion Price, will be made to reflect such change.
(6) INDEMNIFICATION. With respect to the Company’s obligations under this Debenture and the other Transaction Documents:
(a)To the fullest extent permitted by law, the Company shall, and hereby does, indemnify, hold harmless and defend the Holder, its investment manager and their respective directors, officers, partners, employees, agents, representatives, and successors and assigns of, and each Person, if any, who controls Holder within the meaning of the Securities Act or the Exchange Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, reasonable and documented attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the Commission, whether pending or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any material misrepresentation or breach of any representation or warranty made by the Company, the Guarantor or their Subsidiaries in any of the Transaction Documents, (ii) any material breach of any covenant, agreement or obligation of the Company, the Guarantor or their Subsidiaries in any of the Transaction Documents, (iii) any cause of action, suit, proceeding or claim brought or made against such Indemnified Person by a third party (including for these purposes a derivative action brought on behalf of the Company, the Guarantor or their Subsidiaries) or which otherwise involves such Indemnified Person
Exhibit 4.3
that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents (including, without limitation, any hedging or similar activities in connection therewith), or (B) the status of such Holder either as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a holder of this Debenture (including, without limitation, any hedging or similar activities in connection therewith or as a party in interest or otherwise in any action or proceeding for injunctive or other equitable relief), in each case, except to the extent such Claims arise out of result from (aa) the gross negligence, willful misconduct, or fraud of such Indemnified Person, (bb) a material breach by such Indemnified Person of any provision of the Transaction Documents, (cc) actions or omissions by such Indemnified Person in violation of applicable law or outside the scope of authority granted under the Transaction Documents, (dd) disputes solely among Indemnified Persons, (ee) claims for payment of the purchase price or other consideration expressly provided for in the Transaction Documents, or (ff) taxes imposed on such Indemnified Person, except as otherwise expressly provided herein; (iv) any untrue statement or alleged untrue statement of a material fact in any filing made in any public filing (including, without limitation, any Periodic Reports) made by the Company with the Commission, or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are (1) based upon information regarding Holder furnished in writing to Company by or on behalf of Holder expressly for use therein or Holder has omitted a material fact from such information or (2) directly result from any breach by Holder of the Transaction Documents; or (v) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, or any other law, including, without limitation, any state securities law. The Company shall reimburse the Indemnified Persons and each such controlling person promptly as such expenses are incurred and are due and payable, for any legal fees or disbursements or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.
(b)Promptly after receipt by an Indemnified Person under this Section (6) of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section (6), deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the fees and expenses of not more than one (1) counsel for such Indemnified Person to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Person which
Exhibit 4.3
relates to such action or claim. The indemnifying party shall keep the Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person under this Section (6), except solely to the extent that the indemnifying party is actually prejudiced in its ability to defend such action.
(c)The indemnification required by this Section (6) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred.
(d)The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.
(7) REISSUANCE OF THIS DEBENTURE.
(a)Transfer. If this Debenture is to be transferred, the Holder shall surrender this Debenture to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Debenture (in accordance with Section (7)(d)), registered in the name of the registered transferee or assignee, representing the outstanding Principal being transferred by the Holder (along with any accrued and unpaid Interest thereof) and, if less than the entire outstanding Principal is being transferred, a new Debenture (in accordance with Section (7)(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Debenture, acknowledge and agree that, by reason of the provisions of Section (4)(b)(iii) following conversion or redemption of any portion of this Debenture, the outstanding Principal represented by this Debenture may be less than the Principal stated on the face of this Debenture. This Debenture is intended to be in “registered form” within the meaning of Section 5f.103-1(c) and Proposed Section 1.163-5(b) of the United States Treasury Regulations.
(b)Lost, Stolen or Mutilated Debenture. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Debenture, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Debenture, the Company shall execute
Exhibit 4.3
and deliver to the Holder a new Debenture (in accordance with Section (7)(d)) representing the outstanding Principal.
(c)Debenture Exchangeable for Different Denominations. This Debenture is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for one or more new Debentures (in accordance with Section (7)(d)) representing in the aggregate the outstanding Principal of this Debenture, and each such new Debenture will represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.
(d)Issuance of New Debentures. Whenever the Company is required to issue a new Debenture pursuant to the terms of this Debenture, such new Debenture (i) shall be of like tenor with this Debenture, (ii) shall represent, as indicated on the face of such new Debenture, the Principal remaining outstanding (or in the case of a new Debenture being issued pursuant to Section (7)(a) or Section (7)(c), the Principal designated by the Holder which, when added to the Principal represented by the other new Debentures issued in connection with such issuance, does not exceed the Principal remaining outstanding under this Debenture immediately prior to such issuance of new Debentures), (iii) shall have an issuance date, as indicated on the face of such new Debenture, which is the same as the Issuance Date of this Debenture, (iv) shall have the same rights and conditions as this Debenture, and (v) shall represent accrued and unpaid Interest from the Issuance Date.
(8) NOTICES. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing by letter and email and will be deemed to have been delivered: upon the later of (A) either (i) receipt, when delivered personally or (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same and (B) receipt, when sent by electronic mail. The addresses and e-mail addresses for such communications shall be:
If to the Company:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
Exhibit 4.3
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
If to the Holder:
[_____________]
Attention: [_____________]
Email: [_____________]
or at such other address and/or email and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient email address or (iii) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.
(9) NO IMPAIRMENT. Except as expressly provided herein, no provision of this Debenture shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the Principal of, Interest and other charges (if any) on, this Debenture at the time, place, and rate, and in the currency, herein prescribed. This Debenture is a direct obligation of the Company. As long as this Debenture is outstanding, the Company shall not and shall cause their subsidiaries not to, without the consent of the Holder, enter into any agreement, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability of the Company to perform its obligations under the this Debenture, including, without limitation, the obligation of the Company to make cash payments hereunder.
(10) This Debenture shall not entitle the Holder to any of the rights of a shareholder of the Company, including without limitation, the right to vote, to receive dividends and other distributions, or to receive any notice of, or to attend, meetings of shareholders or any other proceedings of the Company, unless and to the extent converted into ADSs in accordance with the terms hereof.
(11) CHOICE OF LAW; VENUE; WAIVER OF JURY TRIAL
(a) Governing Law. This Debenture and the rights and obligations of the Parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing
Exhibit 4.3
Jurisdiction”) (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction, validity and performance.
(b)Jurisdiction; Venue; Service.
(i)The Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States District Court for the Governing Jurisdiction.
(ii)The Company agrees that venue shall be proper in any court of the Governing Jurisdiction selected by the Holder or, if a basis for federal jurisdiction exists, in any United States District Court in the Governing Jurisdiction. The Company waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue or inconvenience of forum.
(iii)Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise, brought by the Company against the Holder arising out of or based upon this Debenture or any matter relating to this Debenture, or any other Transaction Document, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The Company shall not file any counterclaim against the Holder in any suit, claim, action, litigation or proceeding brought by the Holder against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which the Holder brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Holder against the Company. The Company agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding brought by the Company against the Holder in any court outside the Governing Jurisdiction should be dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Holder arising out of or based upon this Debenture or any matter relating to this Debenture, or any other Transaction Document, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in the Borough of Manhattan in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by applicable law, in such federal court. The Company and the Holder agree that a final judgment in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Exhibit 4.3
(iv)The Holder irrevocably consents to the service of process out of any of the aforementioned courts in any such suit, claim, action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid, to it at the address provided for notices in this Debenture, such service to become effective thirty (30) days after the date of mailing. The Company has irrevocably appointed Bitquans Holdings LLC, a Delaware limited liability company, c/o Capitol Services, Inc., 108 Lakeland Avenue, Dover DE, Kent County 19901, as its authorized agent for service of process upon which process may be served in any such suit or proceeding arising under this Debenture or any other Transaction Document, and the Company agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to the address provided in Section (8), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding arising under this Debenture or any other Transaction Document. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of five years from the date of this Debenture.
(v)To the extent that the Company or any of its properties, assets or revenues is or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Debenture, any other Transaction Document, the Deposit Agreement or the Restricted Issuance Agreement, the Company hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement.
(vi)Nothing herein shall affect the right of the Holder to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.
(c) THE PARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND ARISING OUT OF OR BASED UPON THIS DEBENTURE OR ANY MATTER RELATING TO THIS DEBENTURE, OR ANY OTHER TRANSACTION DOCUMENT, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND THAT THE PARTIES EACH MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL OF THEIR RESPECTIVE CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION, WITHOUT A JURY.
Exhibit 4.3
(12) If the Company fails to strictly comply with the terms of this Debenture, then the Company shall reimburse the Holder promptly for all fees, costs and expenses, including, without limitation, attorneys’ fees and expenses incurred by the Holder in any action in connection with this Debenture, including, without limitation, those incurred: (i) during any workout, attempted workout, and/or in connection with the rendering of legal advice as to the Holder’s rights, remedies and obligations, (ii) collecting any sums which become due to the Holder, (iii) defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation or enforcement of any rights or remedies of the Holder.
(13) This Debenture and all other Debentures issued pursuant to the Purchase Agreement (or any other secured convertible debenture purchase agreement entered into by the Company on or about the date of the Purchase Agreement for the issuance of substantially similar debentures) may be amended or modified by the written agreement of the Company and the Required Holders. This Debenture may not be amended unless in accordance with the foregoing sentence and in the event that the Required Holders agree to the amendment or modification of this Debenture or any other Debenture issued pursuant to the Purchase Agreement (or any other secured convertible debenture purchase agreement entered into by the Company on or about the date of the Purchase Agreement for the issuance of substantially similar debentures) such amendment or modification shall concurrently be made to all such Debentures.. Any waiver by the Holder of a breach of any provision of this Debenture shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Debenture. The failure of the Holder to insist upon strict adherence to any term of this Debenture on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Debenture. Any waiver must be in writing.
(14) If any provision of this Debenture is invalid, illegal or unenforceable, the balance of this Debenture shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If it shall be found that any Interest or other amount deemed Interest due hereunder shall violate applicable laws governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the Principal of or Interest on this Debenture as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Debenture, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impeded the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.
(15) EXISTENCE AND MERGER.
(a)Existence. Subject to Section (15)(B), the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. In accordance with the provisions of Article L. 228-98 of the French Commercial Code, the
Exhibit 4.3
Company may change its corporate form or corporate purpose without requesting the approval of the Holder; provided that unless the Company receives the approval of the Holder, the Company’s corporate form must be: (1) a société anonyme or société en commandite par actions, in either case, registered under the laws of France or (2) a corporation or entity treated as a corporation for U.S. federal income tax purposes.
(b)Company May Consolidate, Etc. on Certain Terms. The Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its direct and indirect Subsidiaries, taken as a whole, to another Person (other than any such sale, conveyance, transfer or lease to one or more of the Company’s direct or indirect Wholly Owned Subsidiaries), unless (i) the resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be (1) a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Debentures or (2) a corporation or entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of France; (ii) the Successor Company, if not the Company, expressly assumes all of the Company’s obligations under this Agreement and the other Transaction Documents pursuant to documentation that is reasonably acceptable to the Required Holders; and (iii) and immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing.
(16) [Reserved.]
(17) CERTAIN DEFINITIONS. For purposes of this Debenture, the following terms shall have the following meanings:
(a)“ADSs” means the Company’s (or Successor Company’s) American Depositary Shares issued pursuant to the Deposit Agreement or the Restricted Issuance Agreement, each representing the number of the Ordinary Shares specified pursuant to the Deposit Agreement.
(b)“ADS Delivery Date” shall have the meaning set forth in Section (4)(b)(i).
(c)“Additional Amounts” shall have the meaning set forth in Section (1)(d).
(d)“Additional Interest Election Notice” shall have the meaning set forth in Section 19(c).
(e)“Applicable Taxes” shall have the meaning set forth in Section (1)(d).
(f)“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 Issuance 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” (within the meaning of Section 13(d)(3) of the Exchange Act) together with the Holder or any of the foregoing and (iv) any other
Exhibit 4.3
Persons whose beneficial ownership of the ADSs would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) 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 Cap.
(g)“Beneficial Ownership Cap” shall have the meaning set forth in Section (4)(c)(i).
(h)“Bitcoin” means the Digital Asset commonly referred to as “Bitcoin” (BTC) in the cryptocurrency marketplace.
(i)“Bitcoin Cash Cap” means $30,000,000.
(j)“Bitcoin Collateral” means all Bitcoin that is subject to the Lien and the security interest created by the Collateral Documents.
(k)“Bitcoin Conversion Deadline” shall be [●], 20254, provided that upon the request of the Company, the Collateral Agent may consent, to extend the Bitcoin Conversion Deadline by twenty (20) days, which consent shall not be unreasonably conditioned or delayed.
(l)“Bitcoin Escrow Account” means a securities account that is opened and maintained with the Custodian to hold Bitcoin constituting Collateral.
(m)“Bloomberg” means Bloomberg Financial Markets (or if not available, a similar service provider of national recognized standing).
(n)“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
(o)“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions in the State of New York, United States or Paris, France are authorized or required by law or other government action to close.
(p)“Buy-In” shall have the meaning set forth in Section (4)(b)(ii).
(q)“Buy-In Price” shall have the meaning set forth in Section (4)(b)(ii).
(r)“Cash Collateral Account” means a deposit account that is opened and maintained with the Cash Collateral Bank to hold cash constituting Collateral including the net proceeds of the issuance of the Debentures.
(s)“Cash Collateral Bank” means First National Bank Omaha d/b/a FNBO, or such other custodian as selected by the Company and reasonably acceptable to the Collateral Agent.
______________________
4 Insert the date that is twenty (20) days from the Issuance Date.
Exhibit 4.3
(t)“Cash Equivalents” means, as of any date of determination, any of the following: (A) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government, or (ii) issued by any agency of the United States Government, the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one (1) year after such date; (B) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one (1) year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from Standard & Poor’s Corporation or at least P-1 from Moody’s Investors Service; (C) commercial paper maturing no more than one (1) year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from Standard & Poor’s Corporation or at least P-1 from Moody’s Investors Service; (D) certificates of deposit or bankers’ acceptances maturing within one (1) year after such date and issued or accepted by any commercial bank organized under the laws of the United States or any state thereof, or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary federal banking regulator), and (ii) has Tier 1 capital (as defined in such regulations) of not less than $5,000,000,000; and (E) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (A) and (B) above, (ii) has net assets of not less than $5,000,000,000, and (iii) has the highest rating obtainable from either Standard & Poor’s Corporation or Moody’s Investors Service.
(u)“Claims” shall have the meaning set forth in Section (6)(a).
(v)“Closing Loan-to-Collateral Ratio Compliance Level” means 1.00 to 1.95.
(w)“Closing Price” of the ADSs on any date means the closing sale price per ADS (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the ADSs are traded. If the ADSs are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Closing Price” will be the last quoted bid price for the ADSs in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the ADSs are not so quoted, the “Closing Price” will be the average of the mid-point of the last bid and ask prices for the ADSs (or such other security) on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. In the event of any need to determine the “Closing Price” of any security other than ADSs, the Company shall determine the “Closing Price” of such security in a commercially reasonable manner using a substantially similar methodology.
(x)“Closing Price Trigger” (x) beginning on and including the 12-month anniversary of the Issuance Date, the Closing Price of the ADSs has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date on which the Company provides such Redemption Notice
Exhibit 4.3
to the Holder (provided that the Equity Conditions are satisfied on each Trading Day of such thirty (30) consecutive Trading Day period) or (y) beginning on and including the 16-month anniversary of the Issuance Date, the Closing Price of the ADSs has been equal to or less than 40% of the Conversion Price then in effect for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date on which the Company provides such Redemption Notice to the Holder.
(y)“Collateral Agent” means Hudson Bay PH XVI Ltd. in its capacity as collateral agent for the holders of the Debentures, together with any successor thereto in such capacity.
(z)“Collateral Documents” shall have the meaning set forth in Section 19(g).
(aa)“Commission” means the Securities and Exchange Commission.
(bb) “Common Equity” of any Person means capital stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
(cc) “Company” shall have the meaning set forth in the preamble of this Debenture.
(dd) “Control Agreement” means each account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Collateral Agent, between the Company, the Collateral Agent and the applicable Cash Collateral Bank or securities intermediary, including, for the avoidance of doubt, the blocked control agreements required pursuant to Section 4.01(b) of the Guaranty and Security Agreement, which shall provide for the sole and exclusive control of the Collateral Agent.
(ee) “Conversion Amount” means the portion of the Principal and accrued Interest to be converted, redeemed or otherwise with respect to which this determination is being made.
(ff) “Conversion Date” shall have the meaning set forth in Section (4)(b)(i).
(gg) “Conversion Failure” shall have the meaning set forth in Section (4)(b)(ii).
(hh) “Conversion Notice” shall have the meaning set forth in Section (4)(b)(i).
(ii) Conversion Notice Date” shall have the meaning set forth in Section (4)(b)(i).
(jj) “Conversion Price” means, as of any Conversion Date, $2.10 per ADS, provided that, on the Reset Date, the Conversion Price shall be reset (but only if such reset would result in a downward adjustment to the Conversion Price) to the greater of (x) the product of (A) 1.2 and (B) the average of the VWAPs of the ADSs during the five VWAP Trading Days immediately preceding the Reset Date and (y) $1.40 (subject to adjustment pursuant to Section (5)). The Conversion Price shall be adjusted from time to time pursuant to the other terms and conditions of this Debenture.
Exhibit 4.3
(kk) “Custodian” means Coinbase, Inc., or such other custodian as selected by the Company and acceptable to the Collateral Agent in its sole discretion.
(ll) “Default” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.
(mm) “Default Rate” means an annual rate of 18.0%.
(nn) “Deposit Agreement” means the Amended and Restated Deposit Agreement, dated as of May 14, 2018, among the Company the Depositary and the owners and holders from time to time of the ADSs issued thereunder, as amended from time to time.
(oo) “Depositary” means the Bank of New York Mellon as custodian of the Ordinary Shares underlying the ADS delivered pursuant to the Deposit Agreement or the Restricted Issuance Agreement, or any successor thereto.
(pp) “Digital Asset Market Value” means, with respect to any Bitcoin, the seven (7) day moving average price of such Bitcoin for the seven (7) days immediately preceding any date of determination, as determined by reference to the CME Bitcoin Reference Rate – New York Variant (BRRNY).
(qq) “Discounted VWAP” means an amount equal to ninety-three percent (93%) of the average of the VWAPs of the ADSs during the five VWAP Trading Days immediately preceding the Interest Payment Date.
(rr) “Distributed Securities VWAP” means the per security volume-weighted average price as displayed under the heading “Bloomberg VWAP” on the Bloomberg page applicable to the security in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable for such security, the market value of such security on a per security basis on such Trading Day reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by Company). The “Distributed Securities VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
(ss) “Debenture” shall have the meaning set forth in the preamble of this Debenture.
(tt) “Debentures” shall mean this Debenture and all of the Other Debentures.
(uu) “Disclosure” shall have the meaning set forth in Section 18.
(vv) “DTC” shall have the meaning set forth in Section (4)(b)(i).
(ww) “Effective Date” means the date upon which the applicable transaction or event is effective or consummated.
Exhibit 4.3
(xx) “Equity Conditions” will be deemed to be satisfied as of any date if all of the following conditions:
(1)(x) one or more Registration Statements (as defined in the Registration Rights Agreement) filed shall be effective and available for the resale of all remaining Underlying ADSs, and there shall not have been any suspension of such registration statement(s) or (y) all Underlying ADSs shall be eligible for sale by non-affiliates (as defined in Rule 144) of the Company without restriction pursuant to Rule 144 (and without any requirements as to volume, manner of sale, availability of current public information (whether or not then satisfied)) and without the need for registration under any applicable federal or state securities laws all Underlying ADSs shall be issuable without restrictive legend and be eligible for immediate sale without restriction pursuant to Section 3(a)(9) of the Securities Act and without the need for registration under any applicable federal or state securities laws;
(2)the ADSs are designated for quotation on a Principal Market and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two (2) Trading Days and occurring before the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened, commenced or pending either (A) in writing by such Principal Market or (B) by falling below the then effective minimum listing maintenance requirements of such Principal Market;
(3)the ADS issuable upon conversion of the Conversion Amount may be issued in full without resulting in the Holder beneficially owning ADSs in excess of the Beneficial Ownership Cap;
(4)there shall not be a Default or Event of Default;
(5)the Holder shall not have been in possession of any material, nonpublic information received from the Company or any of its agents or affiliates; and
(6)the ADSs issuable upon conversion of the Conversion Amount (including ADSs underlying any Pre-Funded Warrants issued in connection with such conversion as contemplated by Section (4)(c)(i) in certain circumstances) are duly authorized, and upon delivery on the applicable ADS Delivery Date (or upon exercise of any such Pre-Funded Warrants) will be (i) validly issued, fully paid, non-assessable, free from preemptive rights and any lien or adverse claim and will be listed and eligible for trading without restriction on a Principal Market (ii) represented by book-entries at DTC and identified therein by an “unrestricted” CUSIP number; and (iii) not represented by any certificate that bears a legend referring to transfer restrictions under the Securities Act or other securities laws.
(yy) “Ex-Dividend Date” means, (a) for purposes of Sections (5)(b)(i)-(vii), the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Ordinary Shares on such exchange or market (in the form of due bills or otherwise) as determined by such
Exhibit 4.3
exchange or market and (b) for purposes of Section (5)(b)(viii), the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
(zz) “Ex-Redemption Date” means (1) the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to the redemption in question from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market or (2) if the ADSs do not trade on any exchange or market, the Paris Business Day on which the redemption in question occurs.
(aaa) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(bbb) “Expiring Rights” means any rights, options or warrants to purchase Ordinary Shares or ADSs that expire on or prior to the Maturity Date.
(ccc) “Event of Default” shall have the meaning set forth in Section 3(a).
(ddd) “Event of Default Acceleration Amount” means the, with respect to the delivery of a notice pursuant to Section 3(b) declaring the Debenture to be due and payable immediately on account of an Event of Default, a cash amount equal to the greater of (x) the sum of (i) 115% of the outstanding Principal of the Debenture (or such lesser amount accelerated pursuant to such notice) and (ii) the accrued and unpaid interest and other amounts owing in respect thereof and (y) the product of (i) the quotient of the Conversion Amount as of the occurrence of the Event of Default and the Conversion Price as of the occurrence of the Event of Default multiplied by (ii) the highest VWAP occurring during each VWAP Trading Day during the period beginning on and including the date that the Event of Default occurred (or the date on which the Default underlying such Event of Default initially occurred, if different than the date on which the Event of Default occurred) and ending on the VWAP Trading Day immediately prior to the Event of Default Acceleration Date.
(eee) “Event of Default Acceleration Date” shall have the meaning set forth in Section 3(b).
(fff) “Event of Default Notice” shall have the meaning set forth in Section 3(b).
(ggg) “FATCA” shall have the meaning set forth in Section (1)(d)(4).
(hhh) “French Commercial Code” shall mean the French Code de commerce.
(iii) “Fundamental Change” shall be deemed to have occurred at the time on or after the date of the Purchase Agreement if any of the following occurs prior to the Maturity Date:
(1)an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the
Exhibit 4.3
Company, by contract or otherwise) of in excess of fifty percent (50%) of the voting securities of the Company (except that the acquisition of voting securities by the Holder shall not constitute a Fundamental Change for purposes hereof);
(2)the consummation of (A) any recapitalization, reclassification or change of the Ordinary Shares or the ADSs (other than changes resulting from a subdivision or a combination) as a result of which the Ordinary Shares or ADS would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Ordinary Shares or ADSs will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s Wholly Owned Subsidiaries; provided, however, that a transaction described in clause (A) or (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving company or transferee or the parent thereof immediately after such transaction in substantially the same proportions relative to each other as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (2);
(3)the shareholders of the Company approve any plan or proposal for dissolution of the Company that, if completed, would result in the liquidation of the Company; or
(4)the ADSs (or other Common Equity or ADS in respect of Common Equity underlying this Debenture (or any portion hereof)) cease to be listed or quoted on any Principal Market.
If any transaction in which the Ordinary Shares are replaced by the equity securities of another entity occurs, references to the Company in this definition shall instead be references to such other entity.
For purposes of this definition of “Fundamental Change” above, any transaction that constitutes a Fundamental Change pursuant to both clause (1) and clause (2) of such definition (without giving effect to the proviso in clause (2)) shall be deemed a Fundamental Change solely under clause (2) of such definition (subject to the proviso in clause (2)).
(jjj) “Fundamental Change Company Notice” shall have the meaning set forth in Section (2)(c).
(kkk) “Fundamental Change Repurchase Date” shall have the meaning set forth in Section (2)(c).
(lll) “Governing Jurisdiction” shall have the meaning set forth in Section (11)(a).
(mmm) “Grantors” shall have the meaning given such term in the Guaranty and Security Agreement.
Exhibit 4.3
(nnn) “Guarantors” means each of the guarantors from time to time party to the Guaranty and Security Agreement as a “guarantor” thereunder.
(ooo) “Guaranty and Security Agreement” means that certain Guaranty and Security Agreement, dated on or about the Issuance Date, made by each of the Guarantors party thereto from time to time in favor of the Holder, as may be amended, restated, supplemented or otherwise modified from time to time.
(ppp) “Holder” shall have the meaning set forth in the preamble of this Debenture.
(qqq) “Indemnified Damages” shall have the meaning set forth in Section (6)(a).
(rrr) “Indemnified Person” shall have the meaning set forth in Section (6)(a).
(sss) “Independent Expert” means an independent financial institution of international repute or independent financial adviser with appropriate expertise, chosen by the Company at its sole discretion.
(ttt) “Interest ADS Notice” shall have the meaning set forth in Section 19(h).
(uuu) “Interest Payment Date” means (i) each March 1, June 1, September 1 and December 1 of each calendar year, beginning on September 1, 2025 and (ii) if not otherwise included in clause (i), the Maturity Date.
(vvv) “Interest Rate” shall have the meaning set forth in Section (1)(b).
(www) “Issuance Date” shall have the meaning set forth in the preamble of this Debenture.
(xxx) “Loan-to-Collateral Ratio” means, as of any date of determination, the ratio of (a) the aggregate outstanding principal balance of the Debentures to (b) the sum of (i) the aggregate Digital Asset Market Value of all Collateral consisting of Bitcoin, plus (ii) the aggregate value of all Collateral consisting of cash and Cash Equivalents held in the Cash Collateral Account.
(yyy) “Loan-to-Collateral Ratio Compliance Level” means 1.00 to 2.00.
(zzz) “Make-Whole Date” shall have the meaning set forth in Section 19(c).
(aaaa) “Mandatory French Law Conversion Price Adjustment” shall have the meaning set forth in Section (5)(b).
(bbbb) “Material Adverse Effect” has the meaning given such term in the Purchase Agreement.
(cccc) “Maturity Date” shall have the meaning set forth in Section (1)(a).
(dddd) “MNPI” shall have the meaning set forth in Section 18.
Exhibit 4.3
(eeee) “New York Close of Business” means 5:00 p.m. (New York City time).
(ffff) “New York Open of Business” means 9:00 a.m. (New York City time).
(gggg) “New York Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions in the State of New York, United States are authorized or required by law or other government action to close.
(hhhh) “Obligations” means all of the Company’s and each Guarantor’s now existing and hereafter created or arising obligations, indebtedness and liabilities of any kind (whether primary or secondary, conditional or unconditional, contingent or noncontingent, joint or several) owed to the Holder, whether existing, created, incurred or arising in the Company’s or such Guarantor’s capacity as a borrower, guarantor, indemnitor, customer, purchaser, lessee, licensee, applicant, counterparty, debtor or other obligor, including (a) any loan amount, principal, interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), fee, charge, indemnification obligation, reimbursement obligation, royalty, premium, cost, expense, price, rent or other amount owed by the Company or such Guarantor to the Holder at any time, including future advances, protective advances and other financial accommodations, (b) any obligations, indebtedness or liabilities of the Company and the Guarantors to the Holder under any Transaction Document at any time, and (c) any of the foregoing that may have been, or that may be, acquired by the Holder from any third party, the Company or any Guarantor at any time.
(iiii) “Optional Redemption” shall have the meaning set forth in Section (2)(a).
(jjjj) “Ordinary Share Market Price” means the Closing Price of the ADSs (divided by the number of Ordinary Shares then represented by one ADS) on the date a binding agreement is made for the Company or any of its Subsidiaries to purchase Ordinary Shares (directly or in the form of ADSs) (or the immediately preceding Trading Day if such agreement (i) is not made on a Trading Day or (ii) if made on a Trading Day, is made prior to the availability of the Closing Price of the ADSs in respect of such Trading Day).
(kkkk) “Ordinary Share Repurchase Date” shall have the meaning set forth in Section (5)(b)(v).
(llll) “Ordinary Shares” means the ordinary shares of the Company, nominal value €0.01 per share.
(mmmm)“Other Debentures” means any other debentures issued pursuant to the Purchase Agreement and any other debentures, notes, or other instruments issued in exchange, replacement, or modification of the foregoing.
Exhibit 4.3
(nnnn) “Paris Business Day” means any day (other than a Saturday or a Sunday) that is not a day on which banking institutions in Paris, France are authorized or required by law or executive order to close or be closed.
(oooo) “Paris Open of Business” means 9:00 a.m., Paris, France time.
(pppp) “Paris Close of Business” means 5:00 p.m., Paris, France time.
(qqqq) “Payment Premium” means for payments made (i) within twelve (12) months of the date of this Debenture, 3.0% and (ii) from and after twelve (12) months of the date of this Debenture, 5.0%.
(rrrr) “Periodic Reports” shall mean all of the Company’s reports (in form and substance as required by the Commission under applicable laws and regulations) required to be filed by the Company with the Commission under applicable laws and regulations (including, without limitation, Regulation S-K), including annual reports (on Form 20-F) and reports on Form 6-K, for so long as any amounts are outstanding under this Debenture.
(ssss) “Person” means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision thereof or a governmental agency.
(tttt) “Principal” shall have the meaning set forth in the preamble of this Debenture.
(uuuu) “Principal Market” means the New York Stock Exchange; provided however, that in the event the Company’s ADSs are ever listed or traded on any of the NYSE American, the Nasdaq Global Market, the Nasdaq Global Select Market or the Nasdaq Capital Market, or such successor thereto, the “Principal Market” shall mean that market on which the ADSs are then listed or traded.
(vvvv) “Purchase Agreement” shall have the meaning set forth in the preamble of this Debenture.
(wwww) “Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of the Ordinary Shares (directly or in the form of ADSs) (or other applicable security) have the right to receive any cash, securities or other property or in which the Ordinary Shares (directly or in the form of ADSs) (or such other security) are exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of security holders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).
(xxxx) “Redemption Amount” shall have the meaning set forth in Section (2)(a).
(yyyy) “Redemption Equity Condition Period” shall have the meaning set forth in Section 2(a).
(zzzz) “Redemption Date” shall have the meaning set forth in Section (2)(a).
Exhibit 4.3
(aaaaa) “Redemption Notice” shall have the meaning set forth in Section (2)(a).
(bbbbb) “Reference Property” shall have the meaning set forth in Section (5)(d).
(ccccc) “Registration Rights Agreement” has the meaning given such term in the Purchase Agreement.
(ddddd) “Relevant Jurisdiction” shall have the meaning set forth in Section (1)(d).
(eeeee) “Reported Outstanding ADS Number” shall have the meaning set forth in Section 4(c)(i).
(fffff) “Required Holders” has the meaning given such term in the Purchase Agreement.
(ggggg) “Required Disclosure Date” means (x) if the Holder authorized the delivery of such MNPI, either (I) if the Company and the Holder have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure of such MNPI, such agreed upon date or (II) otherwise, the seventh (7th) calendar day after the date the Holder first received any MNPI or (y) if the Holder did not authorize the delivery of such MNPI, the first (1st) Business Day after the Holder’s receipt of such MNPI.
(hhhhh) “Required Reserve Amount” shall have the meaning set forth in Section (4)(d).
(iiiii) “Reset Date” means the date that is the earlier of (i) nine (9) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement) and (ii) twelve (12) months following the Issuance Date.
(jjjjj) “Restricted Issuance Agreement” means the restricted issuance agreement to be entered into as of the Issuance Date, by and among the Company, the Depositary, and the owners and beneficial owners of the ADSs delivered thereunder or, if amended or supplemented as provided therein, as so amended or supplemented.
(kkkkk) “Rule 144” means Rule 144 promulgated under the Securities Act.
(lllll) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(mmmmm) “Security Documents” means, collectively, the Guaranty and Security Agreement, the Control Agreement, any other control agreement applicable to the Bitcoin Escrow Account or Cash Collateral Account, any other security agreements, pledge agreements or other similar agreements delivered to the Holder, the Guaranty (if applicable) and each of the other agreements, instruments or documents that creates a lien or guaranty in favor of the Holder.
(nnnnn) “Share Exchange Event” shall have the meaning set forth in Section (5)(d).
(ooooo) “Share Reduction” shall have the meaning set forth in Section 5(b)(i).
Exhibit 4.3
(ppppp) “Shortfall Amount” shall have the meaning set forth in Section 19(c).
(qqqqq) “Shortfall Event” shall have the meaning set forth in Section 19(c).
(rrrrr) “Significant Subsidiary” of any Person means any Subsidiary of that Person that constitutes a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of that Person.
(sssss) “Specified Repurchase Date” means [___]5.
(ttttt) “Spin-Off” shall have the meaning set forth in Section (5)(b)(viii)(2).
(uuuuu) “Subject Proceeds” shall have the meaning set forth in Section 19(h).
(vvvvv) “Subscription Period” shall have the meaning set forth in Section (5)(b)(ii).
(wwwww) “Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
(xxxxx) “Successor Company” shall have the meaning set forth in Section (15)(b).
(yyyyy) “Trading Day” means a day on which (i) trading in the ADSs (or other security for which a closing sale price must be determined) generally occurs on a Principal Market or, if the ADSs (or such other security) are not then listed on a Principal Market, on the principal other U.S. national or regional securities exchange on which the ADSs (or such other security) are then listed or, if the ADSs (or such other security) are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the ADSs (or such other security) are then traded, and (ii) a Closing Price of the ADS (or closing sale price for such other security) is available on such securities exchange or market. If the ADSs (or such other security) are not so listed or traded, “Trading Day” means a New York Business Day.
(zzzzz) “Transaction Document” means (i) any Transaction Document (as defined in the Purchase Agreement) and (ii) any other Security Document entered into from time to time.
(aaaaaa) “Trigger Event” shall have the meaning set forth in Section (5)(b)(viii)(2).
________________
5 Insert the date that is New York Business Day that is closest to 18 months after the Issuance Date
Exhibit 4.3
(bbbbbb) “Underlying ADSs” means the ADSs (including the Ordinary Shares represented by such ADSs) issuable upon conversion of this Debenture in accordance with the terms hereof and the ADSs underlying any Pre-Funded Warrants issued in connection with any conversion of this Debenture (or portion hereof) as contemplated by Section (4)(c)(i) in certain circumstances, in each case determined without regard to any limitations on such conversion set forth in this Debenture or any such Pre-Funded Warrants (including, for the avoidance of doubt, such limitation set forth in Section 4(c)(i)).
(cccccc) “unit of Reference Property” shall have the meaning set forth in Section (5)(d).
(dddddd) “Valuation Period” shall have the meaning set forth in Section (5)(b)(viii)(2).
(eeeeee) “Value of the Ordinary Share Immediately prior to the Close of Business on the Date of such Distribution” means the arithmetic average of the VWAP (divided by the number of Ordinary Shares then represented by one ADS) for each of the three Trading Days immediately preceding the Ex-Dividend Date for such distribution.
(ffffff) “Value of the Ordinary Shares Ex-Right” means the arithmetic average of the VWAP (divided by the number of Ordinary Shares then represented by one ADS) on each Trading Day included in the applicable Subscription Period.
(gggggg) “Value of the Preferential Subscription Right” means (i) the arithmetic average of the opening trading prices on any Principal Market for such preferential subscription rights on a per right basis, or on a similar market on which the preferential subscription rights have their principal listing on each Trading Day included in the applicable Subscription Period, or (ii) if the preferential subscription rights are not listed on a Principal Market or similar market, the value of such preferential subscription rights will be calculated as reasonably determined by the Company or, at the Company’s option, an Independent Expert taking into account the fair market value or trading price of any corresponding ADS rights.
(hhhhhh) “Value of the Securities or Assets Distributed per Ordinary Share” means: (1) in the event of a distribution of securities that are already listed on any Principal Market or a similar market, the arithmetic average of the Distributed Securities VWAP of such securities during the three Trading Days immediately preceding the Ex-Dividend Date for such distribution; (2) in the event of a distribution of securities that are not already listed on any Principal Market or a similar market, but that are expected to be listed on any such market for at least three Trading Days within 10 Trading Days starting on the Ex-Dividend Date for such distribution, the arithmetic average of the Distributed Securities VWAP of such securities during the first three Trading Days included within this 10 trading day period during which such securities are listed on any Principal Market or a similar market; and (3) in all other cases not addressed in clause (1) or (2) of this definition, such value that is determined reasonably by the Company or, at the Company’s option, an Independent Expert, no later than the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
Exhibit 4.3
(iiiiii) “VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SQNS <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one ADS on such Trading Day reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
(jjjjjj) “VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the ADSs are then listed, or, if the ADSs are not then listed on a U.S. national or regional securities exchange, the principal, in terms of volume, on which the ADSs are then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the ADSs or in any options contracts or futures contracts relating to the ADSs, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date
(kkkkkk) “VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; provided that the Holder, by written notice to the Company, may waive any such VWAP Market Disruption Event; and (B) trading in ADSs generally occurs on the principal U.S. national or regional securities exchange on which the ADSs are then listed or, if the ADSs are not then listed on a U.S. national or regional securities exchange, on the principal, in terms of volume, Principal Market on which the ADSs are then traded. If the ADSs are not so listed or traded, then “VWAP Trading Day” means a Business Day.
(llllll) “Wholly Owned Subsidiary” means, with respect to any Person, any direct or indirect Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.
(18) Confidential Information. At any time after the Issuance Date if the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides the Holder with material non-public information relating to the Company or any of its Subsidiaries (each, the “MNPI”), the Company shall, on or prior to the applicable Required Disclosure Date, publicly disclose such MNPI on a Current Report on Form 6-K or otherwise (each, a “Disclosure”). From and after such Disclosure, the Company shall have disclosed all MNPI provided to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Holder or any of its affiliates, on the other hand, shall terminate.
Exhibit 4.3
(19) Collateral Coverage Requirement.
(a)On or before the Bitcoin Conversion Deadline, the Company shall have used all the proceeds deposited in the Cash Collateral Account on the Issuance Date (other than up to eight hundred thousand dollars ($800,000) in the aggregate used to fund general and administrative costs and expenses related to the implementation of the Company’s Bitcoin treasury strategy (the “Bitcoin Strategy Expense Cap”)) to purchase, or cause any Grantor to purchase, Bitcoin, which Bitcoin shall be immediately delivered to the Bitcoin Escrow Account upon such purchase. For the avoidance of doubt, the Company shall not be responsible for any breach of this Section 19(a) if the reason for such breach is solely due to the Collateral Agent’s breach of its obligations set forth in Section 19(b).
(b)Prior to the Bitcoin Conversion Deadline, the Company shall not request a transfer or withdrawal of funds in excess of the Bitcoin Cash Cap from the Cash Collateral Account through any single transfer or withdrawal. Any funds transferred or withdrawn from the Cash Collateral Account shall only be used to promptly purchase Bitcoin that is immediately delivered to the Bitcoin Escrow Account upon such purchase (and to pay only customary transaction costs and commissions incurred in connection with such purchases) or to fund the implementation of the Company’s Bitcoin treasury strategy in an amount up to the Bitcoin Strategy Expense Cap. Following any transfer or withdrawal of funds from the Cash Collateral Account, the Company shall not be permitted to request a transfer or withdrawal of additional funds from the Cash Collateral Account until such time as the Company has complied with the immediately preceding sentence, at which time the Company may again request a transfer or withdrawal of funds from the Cash Collateral Account to purchase or cause any Grantor to purchase additional Bitcoin up to the available Bitcoin Cash Cap. For example (and for illustrative purposes only), if (after expending proceeds to fund the implementation of the Company’s Bitcoin treasury strategy in an amount equal to the Bitcoin Strategy Expense Cap), the Company transferred $30,000,000 from the Cash Collateral Account, it could not transfer additional funds from the Cash Collateral Account until it deposited the Bitcoin purchased with such $30,000,000 into the Bitcoin Escrow Account. So long as (i) no Default or Event of Default has occurred and is then continuing, and (ii) the Company has provided the Collateral Agent a notice, in the form attached hereto as Exhibit II (a “Withdrawal Notice”), and, for any requested transfers or withdrawals following the first transfer or withdrawal after the Issuance Date, supporting documentation from the Custodian of the Bitcoin Escrow Account (e.g., account statements, transaction history, escrow deposit receipts, or other similar documentation) reasonably satisfactory to the Collateral Agent evidencing that any previously withdrawn or transferred funds from the Cash Collateral Account were used by the Company to purchase Bitcoin that was deposited into the Bitcoin Escrow Account in accordance with the terms of this Section 19(b), then the Collateral Agent shall promptly provide instructions to the Cash Collateral Bank to release the funds from the Cash Collateral Account requested by the Company in the amount set forth in the Withdrawal Notice, which shall not exceed the available Bitcoin Cash Cap in accordance with this Section 19(b) and, for the avoidance of doubt, shall be used solely for the purchase of Bitcoin. For the avoidance of doubt, the Company may submit multiple Withdrawal Notices on any given Business Day, subject to the terms of this Section 19(b).
Exhibit 4.3
(c)As of the Issuance Date and immediately following the closing of the issuance of the Debentures and the Common Equity Private Placement (as defined in the Purchase Agreement), the Loan-to-Collateral Ratio shall be less than or equal to the Closing Loan-to-Collateral Ratio Compliance Level; provided that if, as of the Issuance Date, the Loan-to-Collateral Ratio is greater than the Loan-to-Collateral Ratio Compliance Level (a “Shortfall Event”), then on the ninetieth (90th) day following the Issuance Date (the “Make-Whole Date”), the Company shall cause to be deposited into the Cash Collateral Account such portion of the aggregate net proceeds received by the Company in respect of (i) the exercise of the Common Warrants and (ii) any Exempt At-the-Market Offering (as defined in the Purchase Agreement) prior to the Make-Whole Date (such aggregate proceeds, the “Subject Proceeds”), in an aggregate amount equal to the amount of additional collateral that would have been required to cause the Loan-to-Collateral Ratio to be equal to the Loan-to-Collateral Ratio Compliance Level (which shall include all proceeds deposited in the Cash Collateral Account on the Issuance Date that were transferred from the Cash Collateral Account to fund general and administrative costs and expenses related to the implementation of the Company’s Bitcoin treasury strategy), as measured as of the Issuance Date (such amount, the “Shortfall Amount”); provided further that if the Subject Proceeds are less than the Shortfall Amount, the Company, in its sole discretion, may either: (1) cause additional cash to be deposited into the Cash Collateral Account in an amount equal to the difference between the Shortfall Amount and the Subject Proceeds, or (2) pay additional interest on the outstanding Principal balance hereof in accordance with Section 19(h), in which case the Company shall not be required to deposit any additional cash into the Cash Collateral Account. The Company shall provide the Holder with prompt written notice prior to the Marke-Whole Date (an “Additional Interest Election Notice”) if it elects option (2) pursuant to the foregoing sentence.
(d)Provided that no Default or Event of Default has occurred, and is then continuing, following the time that the aggregate outstanding principal balance of the Debentures is $[_______]6 or less, promptly upon the request of the Company, the Collateral Agent shall release, or permit to be released, from the Lien (as defined in the Guaranty and Security Agreement) and the security interest created by the Guaranty and Security Agreement and the Transaction Documents, an amount of Bitcoin Collateral, requested by the Company, so long as, immediately after giving effect to such release (calculated on a pro forma basis after giving effect thereto), the Loan-to-Collateral Ratio is less than or equal to the Loan-to-Collateral Ratio Compliance Level, which amount shall be confirmed by the Collateral Agent prior to release. For the avoidance of doubt, the Company may only exercise the right granted pursuant to this Section 19(d) once.
(e)Provided that neither no Default or Event of Default has occurred, and is then continuing, following the time that the aggregate outstanding principal balance of the Debentures is $[________]7 or less, promptly upon the request of the Company, the Collateral Agent shall release, or permit to be released, from the Lien and the security interest created by
6 NTD: Insert amount equal to 50% of aggregate principal of the Debentures.
7 NTD: Insert amount equal to 25% of aggregate principal of the Debentures.
Exhibit 4.3
the Collateral Documents, an amount of Bitcoin Collateral, requested by the Company, so long as, immediately after giving effect to such release (calculated on a pro forma basis after giving effect thereto), the Loan-to-Collateral Ratio is less than or equal to the Loan-to-Collateral Ratio Compliance Level as of the date of such release, which amount shall be confirmed by the Collateral Agent prior to release. For the avoidance of doubt, the Company may only exercise the right granted pursuant to this Section 19(e) once.
(f)Other than the Collateral used or released in accordance with the foregoing clauses (a), (d) or (e), or as provided in the following clause (g), the Company shall not (and shall not permit the Grantors to) transfer, permit any encumbrance or otherwise dispose of any Collateral other than the transfer of Bitcoin Collateral (or cash held in the Cash Collateral Account for the purchase of Bitcoin) to the Grantors (or from one Grantor to another Grantor); provided that (i) in the case of a transfer to the Grantors following the Issuance Date, the Grantors, to the extent not a Grantor party to the Guaranty and Security Agreement as of the Issuance Date, shall have first complied with Sections 2.05 and 4.03 of the Guaranty and Security Agreement and (ii) any cash, Cash Equivalents or Bitcoin transferred to the Grantors following the Issuance Date shall at all times remain on deposit in the Cash Collateral Account or Bitcoin Escrow Account (or any replacement Cash Collateral Account or Bitcoin Escrow Account approved by the Collateral Agent in its sole discretion at a custodian approved by the Collateral Agent in its sole discretion), as applicable, and subject to the first priority Lien and security interest in favor of the Collateral Agent for the benefit of the Secured Parties (as defined in the Guaranty and Security Agreement). For the avoidance of doubt, neither the Company nor any of its affiliates shall be subject to any restrictions under the Transaction Documents in respect of Bitcoin that has been released as, or that does not otherwise constitute, Bitcoin Collateral (including all Bitcoin that is not purchased with the net proceeds of the issuance of the Debentures or the Common Equity Private Placement).
(g)Notwithstanding the foregoing provisions of this definition or anything in this Debenture or any other Transaction Document to the contrary, (i) the Collateral requirements thereunder shall not require any control agreement, lockbox or similar arrangement with respect to any deposit account, securities account, commodities account or other bank account, or otherwise take or perfect a security interest with control (other than with respect to the Bitcoin Escrow Account and/or the Cash Collateral Account to the extent required under the Debentures and the Collateral Documents); and (b) no actions (x) in any non-U.S. jurisdiction or (y) required by the laws of any non-U.S. jurisdiction shall be required to be taken to create, perfect or maintain any security interest or make enforceable any security interests or otherwise (it being understood that there shall be no Collateral Document (or other security agreements or pledge agreements) governed by any non-U.S. jurisdiction). As used in this Debenture, “Collateral Documents” means the Guaranty and Security Agreement, any control agreement with respect to the Bitcoin Escrow Account and/or the Cash Collateral Account (including financing statements under the UCC of the relevant states), and the escrow agreement or similar securities control agreement with respect to the Bitcoin Escrow Account, each as amended, supplemented, restated, renewed, replaced or otherwise modified from time to time, to secure any obligations under the Debentures or under which rights or remedies with respect to the Lien are governed.
Exhibit 4.3
(h)Additional Interest.
(1) If the Company elects to pay additional interest under Section 19(c), then from and after the Issuance Date until but not including the first anniversary of the Issuance Date (the “Additional Interest Period”), additional interest shall accrue on the outstanding Principal balance hereof at an annual rate equal to five percent (5.0%) (such interest, the “Additional Interest”). Additional Interest shall be calculated based on a 365- day year and the actual number of days elapsed, to the extent permitted by applicable law. Additional Interest shall accrue during the Additional Interest Period and shall be due and payable on each Interest Payment Date or upon the acceleration (including, for the avoidance of doubt, in connection with Section 3(b)), redemption (including, for the avoidance of doubt, in connection with Section 2(b) and Section 2(c)) or conversion of the outstanding Principal. At the election of the Company, Additional Interest shall be payable by either (A) issuing to Holder a number of Ordinary Shares, represented by ADSs (the “Interest ADSs”) determined in accordance with the formula set forth in Section 19(h)(2) below, provided that (x) the Equity Conditions are satisfied as of the applicable Interest Payment Date and (y) the Company has notified the Holder in writing (an “Interest ADS Notice”) that it has elected to pay the Additional Interest in Interest ADSs no later than ten (10) Trading Days prior to the applicable Interest Payment Date, or (B) in cash. Notwithstanding the foregoing, the ability of the Company to elect payment of Additional Interest in Interest ADSs shall be subject to the conversion limitations set forth in Section 4(c)(i), which shall apply mutatis mutandis. Failure to timely deliver an Interest ADS Notice to the Holder shall be deemed an election by the Company to pay the Additional Interest with respect to such Interest Payment Date in cash. Notwithstanding anything herein to the contrary, the Company will not have the right to, and will not, make any payment of Additional Interest (or any applicable portion thereof) in Interest ADSs if the Equity Conditions are not satisfied for each VWAP Trading Day occurring between the date of delivery of the Interest ADS Notice and the applicable Interest Payment Date (and the Company shall certify in writing to the Holder on the applicable Interest Payment Date that the Equity Conditions have continued to have been satisfied during such period), and such payment of Additional Interest (or any applicable portion thereof) shall instead be paid in cash on such Interest Payment Date, unless such failure of the Equity Conditions to be so satisfied is waived in writing by the Required Holders, which waiver may be granted or withheld by the Required Holders in their sole discretion.
(2) If the Company elects to pay Additional Interest in Interest ADSs, the number of Interest ADSs issuable on any Interest Payment Date shall be equal to the quotient (rounded down to the nearest whole share, with cash paid in lieu of any fractional share) obtained by dividing (a) the amount of Additional Interest to be paid in Interest ADSs on such Interest Payment Date, by (b) the lower of (x) the Discounted VWAP and (y) the Conversion Price.
[Signature Page Follows]
Exhibit 4.3
IN WITNESS WHEREOF, the Company has caused this Convertible Secured Debenture to be duly executed by a duly authorized officer as of the date set forth above.
COMPANY:
SEQUANS COMMUNICATIONS S.A.
By:___________________________
Name: Goerges Karam
Title: Chief Executive Officer
Exhibit 4.3
EXHIBIT I
CONVERSION NOTICE
Exhibit 4.3
Exhibit II
Withdrawal Notice
Exhibit 10.1
SEQUANS COMMUNICATIONS S.A.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is made as of June 22, 2025, by and between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and each purchaser listed on the signature pages hereto (each, a “Purchaser” and collectively, the “Purchasers” and together with the Company, the “Parties” and each a “Party”).
RECITALS
WHEREAS, each Purchaser desires to subscribe from the Company and the Company desires to issue without preferential subscription rights to specified categories of investors (a) (i) Ordinary Shares (as defined below) represented by ADSs (collectively, the “Shares”) and/or (ii) pre-funded warrants, each such pre-funded warrant to purchase ten (10) Ordinary Shares represented by one (1) ADS (as exercised, collectively the “Warrant Shares”) (the “Pre-Funded Warrants”) whose terms and conditions (the “Terms and Conditions of the Pre-Funded Warrants”) are attached hereto as Exhibit D, and (b) an accompanying common warrant, each such accompanying common warrant to purchase ten (10) Ordinary Shares represented by one (1) ADS or one additional Pre-Funded Warrant at the election of the holder thereof (as exercised, including the Ordinary Shares underlying any such additional Pre-Funded Warrants, collectively the “Common Warrant Shares”) (the “Common Warrants”) whose terms and conditions (the “Terms and Conditions of the Common Warrants”) are attached hereto as Exhibit E, pursuant to the fifteenth resolution (the “Resolution”) of the combined general meeting of the shareholders of the Company to be held on June 30, 2025 (the “General Meeting”). As used herein, “Ordinary Shares” means the ordinary shares, nominal value €0.01 per share, of the Company, “ADS” means an American Depositary Share each representing the number of Ordinary Shares specified pursuant to the Deposit Agreement (as defined below), “Underlying Shares” means the Ordinary Shares underlying the Shares, “Underlying Warrant Shares” means the Ordinary Shares underlying the Warrant Shares and “Underlying Common Warrant Shares” means the Ordinary Shares underlying the Common Warrant Shares; and the Shares, the Pre-Funded Warrants, the Warrant Shares, the Common Warrants, the Common Warrant Shares, the Underlying Shares, the Underlying Warrant Shares and the Underlying Common Warrant Shares are referred to herein as the “Securities”; the “sale” of any Shares, Warrant Shares or Common Warrant Shares or any similar or analogous expressions shall, unless the context otherwise requires, be understood to include the allotment and issue by the Company of the Underlying Shares, the Underlying Warrant Shares or the Underlying Common Warrant Shares, as applicable, to the Depositary (as defined below), or its nominee, and the Company procuring the issue of ADSs representing such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares by the Depositary or its nominee to the Purchaser; and the “purchase”, or “payment” for, of any Shares, Warrant Shares or Common Warrant Shares or any similar or analogous expressions shall, unless the context otherwise requires, be understood to refer to the subscription for the Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable, as well as deposit of the Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable, for ADSs representing such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as
Exhibit 10.1
applicable, and the payment of the subscription moneys in respect of such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable;
WHEREAS, the Company will use the net proceeds of the sale of Securities to permit the Company or any of its Subsidiaries that is a Guarantor (as defined in the Debenture Purchase Agreement) to purchase Bitcoin, and for general corporate purposes associated with purchasing Bitcoin;
WHEREAS, the Company has engaged Northland Capital Markets, Yorkville Securities LLC and B. Riley Securities as its placement agents (the “Placement Agents”) for the offering of Securities;
WHEREAS, on the Closing Date (as defined below), the Company and each Purchaser will enter into a registration rights agreement in the form attached as Exhibit A hereto (the “Registration Rights Agreement”), which provides certain rights to each Purchaser relating to the Company and the Securities; and
WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company is selling in a private offering notably to persons reasonably believed to be either (i) “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) or (ii) institutional “accredited investors” (“IAI”) within the meaning of Rule 501(a) of Regulation D (“Regulation D”) under the Securities Act, in each case pursuant to an exemption from registration pursuant to Section 4(a)(2) of the Securities Act (the “Convertible Debt Financing”) Secured Convertible Debentures (the “Debentures”).
NOW THEREFORE, on and subject to the terms hereof, the Parties agree as follows:
ARTICLE 1
DEFINED TERMS
The terms defined in this Article I (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings specified in this Article I. The terms defined in this Article I include the plural as well as the singular.
“ADS” shall have the meaning specified in the recitals.
“Affiliates” shall have the meaning specified in Section 3.4.
“Agreement” shall have the meaning specified in the preamble.
“Bitcoin” means the Digital Asset commonly referred to as “Bitcoin” (BTC) in the cryptocurrency marketplace.
“Business Day” shall mean any day other than a Saturday, a Sunday, or any other day on which banks in New York City or Paris are authorized or required by law or other governmental action to be closed.
“Closing” shall have the meaning specified in Section 2.2.
Exhibit 10.1
“Closing Date” shall have the meaning specified in Section 2.2.
“Common Warrants” shall have the meaning specified in the recitals.
“Common Warrant Shares” shall have the meaning specified in the recitals.
“Company” shall have the meaning specified in the preamble.
“Company Reports” shall have the meaning specified in Section 4.1.
“Convertible Debt Financing” shall have the meaning specified in the recitals.
“Debentures” shall have the meaning specified in the recitals.
“Debenture Purchase Agreement” shall mean the Secured Convertible Debenture Purchase Agreement, dated June 22, 2025, by and between the Company, the Buyers a party thereto, and Hudson Bay PH XVI Ltd., as collateral agent.
“Deposit Agreement” shall have the meaning specified in Section 5.1.
“Depositary” shall have the meaning specified in Section 5.1.
“Disclosure Document” shall have the meaning specified in Section 9.2
“EY” shall have the meaning specified in Section 4.9.
“Enforceability Exceptions” shall have the meaning specified in Section 3.2.
“Environmental Laws” shall have the meaning specified in Section 4.20.
“Evaluation Date” shall have the meaning specified in Section 4.24.
“Exchange Act” shall have the meaning specified in Section 3.4.
“General Meeting” shall have the meaning specified in the recitals.
“IAI” shall have the meaning specified in the recitals.
“IFRS” shall have the meaning specified in Section 4.10.
“Intellectual Property Rights” shall have the meaning specified in Section 4.21.
“Knowledge” shall have the meaning specified in Section 4.12.
“Material Adverse Effect” shall have the meaning specified in Section 4.2.
Exhibit 10.1
“Material Contract” shall have the meaning specified in Section 4.14.
“Material Permits” shall have the meaning specified in Section 4.13.
“OFAC” shall have the meaning specified in Section 4.23.
“Ordinary Shares” shall have the meaning specified in the recitals.
“Party” or “Parties” shall have the meaning specified in the preamble.
“Per Share Issue Price” means $1.40.
“Person” shall have the meaning specified in Section 4.23.
“Pre-Funded Warrants” shall have the meaning specified in the recitals.
“Purchase” shall have the meaning specified in Section 2.2.
“Purchaser” shall have the meaning specified in the preamble.
“QIB” shall have the meaning specified in the recitals.
“Registration Rights Agreement” shall have the meaning specified in the recitals.
“Regulation D” shall have the meaning specified in Section 3.3.
“Resolution” shall have the meaning specified in the recitals.
“Sanctions” shall have the meaning specified in Section 4.23.
“SEC” shall have the meaning specified in Section 3.8.
“Securities” shall have the meaning specified in the recitals.
“Securities Act” shall have the meaning specified in Section 3.3.
“Shares” shall have the meaning specified in the recitals.
“Short Sales” shall have the meaning specified in Section 3.7.
“Subsidiary” shall have the meaning specified in Section 4.2.
“Transaction Documents” shall mean collectively, this Agreement, the Pre-Funded Warrant, the Common Warrant, the Registration Rights Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Underlying Common Warrant Shares” shall have the meaning specified in the recitals.
Exhibit 10.1
“Underlying Shares” shall have the meaning specified in the recitals.
“Underlying Warrant Shares” shall have the meaning specified in the recitals.
“Warrant Shares” shall have the meaning specified in the recitals.
ARTICLE II
SUBSCRIPTION AND PURCHASE OF SECURITIES
Section 2.1 Issuance and Purchase of the Securities.
(a) Subject to the terms set forth in this Agreement, at the Closing (as defined herein), the Company agrees to issue to each Purchaser, and each Purchaser, severally and not jointly, agrees to subscribe for and purchase from the Company on the Closing Date (as defined below) the number of Shares and accompanying Common Warrants set forth on such Purchaser’s signature page hereto at the Per Share Issue Price (as defined below); provided, however, that to the extent that a Purchaser so elects by indicating such election to the Company in writing prior to their issuance, to purchase Pre-Funded Warrants in lieu of Shares in such manner to result in the same aggregate number of Shares (including Warrant Shares and Common Warrant Shares, if any) purchased by such Purchaser. In each case, the election to receive Pre-Funded Warrants is solely at the option of each Purchaser.
(b) Under the terms of its Resolution, the General Meeting is expected to approve, on June 30, 2025, a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital with subscriptions reserved to specific categories of investors including (i) QIBs or (ii) IAIs (the “Reserved Issuances”).
Section 2.2 Closing; Delivery of Securities.
(a) The closing (the “Closing”) of the Reserved Issuances of and subscription for the Securities (the “Purchase”) shall occur on a date no later than two (2) Business Days after the date that the conditions to Closing set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing) are satisfied or waived, or at such other time as the Company and each Purchaser mutually agree upon, orally or in writing (the date the Closing occurs, the “Closing Date”), upon the physical or electronic exchange among the Parties and their counsel of all documents and deliverables required under this Agreement.
(b) At the Closing, each Purchaser, severally and not jointly, shall deliver or cause to be delivered to the Company:
(1) a duly completed and signed subscription form for the Shares and accompanying Common Warrants and/or for the Pre-Funded Warrants and accompanying Common Warrants in the form attached hereto as Exhibit B in which the Purchaser will provide
Exhibit 10.1
the accounts (i) from which the Aggregate Purchase Price (as set forth on such Purchaser’s signature page hereto) will be wired to the account of the Company, opened in the books of Société Générale, (ii) if applicable, from which part of the aggregate subscription price will be wired to the account of the Company opened in the books of BNP Paribas, and (iii) the securities account to be credited by the Depositary with the Shares to be issued instead of the Underlying Shares being purchased by such Investor; and
(2) (x) the amount, to the “augmentation de capital” bank account opened in the books of Société Générale, in the name of the Company, for the Shares, equal to the portion of the Purchaser’s Aggregate Purchase Price applicable to the Shares (as set forth on such Purchaser’s signature page hereto) and, as applicable, (y) the amount to the dedicated bank account opened in the books of BNP Paribas, in the name of the Company, for the Pre-Funded Warrants and the accompanying Common Warrants registered in the name of such Purchaser to purchase up to a number of Warrant Shares and Common Warrant Shares equal to the portion of the Purchaser’s Aggregate Purchase Price applicable to the Pre-Funded Warrants (as set forth on such Purchaser’s signature page) divided by the Per Share Issue Price minus 0.01 Euro, with an exercise price equal to 0.01 Euro per Share, subject to adjustment therein (in each case, in accordance with wire instructions provided by the Company at least three (3) Business Days prior to the Closing);
provided, however, in the event the Closing does not occur within five Business Days of such Purchaser funding its Aggregate Purchase Price to the Company as set forth above, the Company shall promptly (but not later than one Business Day thereafter) return the previously wired amounts to such Purchaser by wire transfer of United States dollars in immediately available funds to the account specified by such Purchaser.
(c) At the Closing, the Company shall do the following with respect to each Purchaser:
(1) subject to and upon receipt of the aggregate subscription amount of the Reserved Issuances on the Closing Date and, for the Underlying Shares only, of the issuance of the depositary certificate (certificat du dépositaire des fonds) required by Article L. 225-146 of the French Commercial Code by Société Générale, issue an aggregate amount of Underlying Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants, as applicable, and set forth on such Purchaser’s signature page hereto. All such Underlying Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants shall be evidenced by a book entry on a securities account open in their name in the books of the Company, in accordance with Articles L. 211-3 et seq. of the French Monetary and Financial Code; and
(2) instruct the Depositary to issue and deliver to such Purchaser a book-entry transfer for the Shares, against deposit of the Underlying Shares, pursuant to the Deposit Agreement. The Company shall pay all stamp taxes and other taxes and duties levied and Depositary fees in connection with the delivery and issuance of the Shares to the Purchaser.
ARTICLE III
REPRESENTATIONS AND
Exhibit 10.1
WARRANTIES OF THE PURCHASER
Each Purchaser, for itself and not for any other Purchaser, hereby makes the following representations and warranties (severally and not jointly with any other Purchaser, it being acknowledged and agreed that each reference to “the Purchaser” in this Article III shall be deemed to refer to such Purchaser and not to any other Purchaser), each of which is and shall be true and correct on the date hereof and at the Closing, to the Company and the Placement Agents, and all such representations and warranties shall survive the Closing:
Section 3.1 Power and Authorization. The Purchaser is duly organized, validly existing and in good standing, and has the power, authority and capacity to execute this Agreement, to perform its obligations hereunder, and to consummate the Purchase of the Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants subscribed for by it.
The Purchaser represents that it is either:
(i) an industrial partner that has a similar, complementary or related business to that of the Company; or
(ii) an institutional or strategic investor that:
(A) has, as the case may be, the status of either (i) an “accredited investor” as defined in Rule 501 of Regulation D of the Securities Act, (ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act or (iii) a qualified investor within the meaning of Regulation (EU) 2017/1129 of 14 June 2017 or an equivalent status under the rules applicable in its country of incorporation; and
(B) has a significant track record of regularly investing in companies with high growth potential which includes investments in small/mid cap equities.
Section 3.2 Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (such qualifications in clauses (a) and (b) being the “Enforceability Exceptions”). This Agreement and consummation by the Purchaser of the Purchase of the Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants subscribed for by it will not violate, conflict with or result in a breach of or default under (i) the Purchaser’s organizational documents, (ii) any agreement or instrument to which the Purchaser is a party or by which the Purchaser or any of its assets are bound or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Purchaser, other than, any violation, conflict, breach or default (in the case of
Exhibit 10.1
clauses (ii) and (iii)), that would not be reasonably expected to impair in any material respect the ability of the Purchaser to perform its obligations under the Transaction Documents or to consummate any transactions contemplated hereby or thereby.
Section 3.3 Accredited Investor/Qualified Institutional Buyer. The Purchaser is a QIB under the Securities Act or an IAI within the meaning of Rule 501(a) of Regulation D under the Securities Act. The information the Purchaser has provided in writing to the Company as set forth on the Purchaser’s signature page hereto is true, correct and complete, as of the date hereof and as of the Closing Date, in all material respects.
Section 3.4 5% Shareholder Status. If the Purchaser and its affiliates (as that term is defined in Rule 501(b) of Regulation D under the Securities Act, “Affiliates”) will beneficially own after the Closing Date more than 5% of the Company’s Shares outstanding, the Purchaser understands that it will have disclosure obligations pursuant to applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as a result of such holdings.
Section 3.5 Restricted Securities. The Purchaser (a) acknowledges (i) that the issuance of the Securities pursuant to this Agreement has not been registered under the Securities Act or any state securities laws, (ii) the Securities are being offered and sold in reliance upon exemptions from registration provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless they are subsequently registered and qualified under the Securities Act and applicable state securities laws or unless an exemption from such registration and qualification is available and (iii) the Securities will be “restricted securities” as that term is defined in Rule 144 promulgated under the Securities Act and (b) is purchasing the Securities for investment purposes only for the account of the Purchaser and not with any view toward a distribution thereof or with any intention of selling, distributing or otherwise disposing of the Securities in a manner that would violate the registration requirements of the Securities Act. The Purchaser is able to bear the economic risk of holding the Securities for an indefinite period and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Securities.
Section 3.6 Legends. The Purchaser understands and agrees that any certificate or book-entry representing the Securities or a securities entitlement thereto shall bear the restrictive legend set forth in Section 7.2 below.
Section 3.7 No Transactions. The Purchaser has not, directly or indirectly, and no person acting on behalf of or pursuant to any understanding with it has, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving any of the Company’s securities) from the time the Company, the Placement Agent or any other Person first informed the Purchaser of the transactions contemplated hereby (including the identity of the Company) through the time the Purchaser executed and delivered this Agreement. The Purchaser covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it will engage, directly or indirectly, in any transactions in the securities of the Company (including Short Sales) prior to the time the transactions contemplated by this Agreement are first publicly disclosed as required by, and subject to the Company’s compliance with its obligations under, Section 9.2 hereof. Notwithstanding the foregoing, if the Purchaser is a multi-managed investment vehicle whereby
Exhibit 10.1
separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Exchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable Ordinary Shares and/or ADSs).
Section 3.8 Adequate Information; No Reliance. The Purchaser acknowledges and agrees that (a) the Purchaser has been furnished with all materials it considers relevant to making an investment decision to enter into the Purchase, including the supplemental risk factors set forth on Exhibit C, and has had the opportunity to review the Company’s filings and submissions with the Securities and Exchange Commission (the “SEC”), including, without limitation, all information filed or furnished pursuant to the Exchange Act and all information incorporated into such filings and submissions, (b) the Purchaser has sufficient knowledge and expertise to make an investment decision with respect to the transactions contemplated hereby, (c) the Purchaser has had a full opportunity to speak directly with directors, officers and Affiliates of the Company and to ask questions of the Company and such directors, officers and Affiliates of the Company concerning the Company, its business, operations, financial performance, financial condition and prospects and its future plans and strategy, and the terms and conditions of the Purchase, and to obtain such additional information as it deems necessary to verify the accuracy of the information furnished to it and has asked such questions, received such answers and obtained such information as it deems necessary, (d) the Purchaser has had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the risks involved in the Purchase and to make an informed investment decision with respect to the Purchase and (e) the Purchaser is not relying, and has not relied, upon any statement, advice (whether accounting, tax, financial, legal or other), representation or warranty made by the Company or any of its Affiliates or representatives, except for (i) the publicly available filings and submissions made by the Company with the SEC under the Exchange Act and (ii) the representations and warranties made by the Company in this Agreement.
Section 3.9 Purchaser’s Reporting Requirement. The Company has made no representations to the Purchaser regarding the Purchaser’s reporting requirements with the SEC related to the Purchaser’s present or future ownership in the Company, and the Purchaser acknowledges and agrees that it is the responsibility of the Purchaser to ensure that the Purchaser complies with any disclosure and reporting requirements of the SEC applicable to the Purchaser as a result of the Purchase.
Section 3.10 No General Solicitation or Advertising. The offer to enter into the Purchase was directly communicated to the Purchaser and the Purchaser was able to ask questions and receive answers concerning the terms of this transaction. At no time was the Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement or any other form of general advertising or solicited or invited to attend
Exhibit 10.1
a promotional meeting otherwise than in connection and concurrently with such communicated offer.
Section 3.11 Disqualification. The Purchaser represents that neither the Purchaser, nor any person or entity with whom Purchaser shares beneficial ownership of Company securities, is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act; provided that the facts and circumstances of any Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act have been disclosed to the Company.
Section 3.12 OFAC. The operations of the Purchaser have been conducted in material compliance with the rules and regulations administered or conducted by OFAC applicable to the Purchaser. The Purchase Price for the Securities will not be derived from sources prohibited under programs administered by OFAC. The Purchaser has performed commercially reasonable due diligence to reasonably determine that its beneficial owners are not named on the lists of denied parties or blocked persons administered by OFAC, resident in or organized under the laws of a country that is the subject of Sanctions, or otherwise the subject of Sanctions, except as permitted under Sanctions.
Section 3.13 Investment Funds. Notwithstanding the above, each Purchaser further represents, warrants, acknowledges and agrees that, if such Purchaser is acting on behalf of investment funds or other legal entities managed or advised by it, the representations made under Sections 3.1, 3.2 and 3.3 above shall also apply to each such fund or legal entity and such Purchaser shall further ensure compliance thereof by each such fund or entity in connection with the initial distribution of the Shares, Pre-Funded Warrants and accompanying Common Warrants.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
1.
Except as set forth in the Company Reports (as defined below) that are available on the SEC’s website through the EDGAR system at least one (1) Business Day prior to the date of this Agreement (unless the context provides otherwise), the Company hereby makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to each Purchaser and the Placement Agents, and all such representations and warranties shall survive the Closing.
Section 4.1 Exchange Act Filings. The Company has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since December 31, 2023 or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension (the “Company Reports”). The Company Reports, when they became effective or were filed with or furnished to the SEC, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations thereunder and none of such
Exhibit 10.1
documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed or furnished after the date hereof and on or prior to the Closing, when such documents become effective or are filed with the SEC, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the SEC thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Other than with respect to any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), the Company represents that, as of the date hereof, no material event or circumstance has occurred which would be required to be publicly disclosed or announced on a Report of Foreign Private Issuer on Form 6-K, either as of the date hereof or solely with the passage of time by the Company but which has not been so publicly announced or disclosed. The Company is not, and has never been, an issuer described in Rule 144(i)(1) under the Securities Act. The Company is a “foreign private issuer” (as defined in Rule 405 under the Securities Act) and a “foreign issuer” (as defined in Rule 902 of Regulation S under the Securities Act). The Company is eligible to use Form F-3 for registration of the Securities with the SEC under the Securities Act. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the SEC with respect to any of the Company Reports as of the date hereof.
Section 4.2 Due Incorporation of the Company. The Company has been duly organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization and registered with the Trade and Companies Registry of Nanterre under the unique identification number of 450 249 677. The Company is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged. 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 in all material respects with French law and the Company’s by-laws (statuts) and internal regulations.
Section 4.3 Due Incorporation of the Subsidiaries. Each of the Subsidiaries has been duly organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Subsidiaries is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged, except where the failure to so qualify or have such power or authority (i) would not have and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or
Exhibit 10.1
otherwise), prospects, results of operations, assets or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under the Transaction Documents or to consummate any transactions contemplated hereby or thereby (any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). As used in this Agreement, “Subsidiary” shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC and, unless the context otherwise requires, each reference to “Subsidiary” in this Article IV shall be deemed to refer to direct and indirect Subsidiaries of the Company. The membership interests or share capital (or the foreign equivalent thereof), as applicable, of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Company Reports, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
Section 4.4 Due Authorization. Subject to the approval of the Reserved Issuances at the General Meeting, the Company has the full right, power and authority to enter into this Agreement and the Transaction Documents and to perform and discharge its obligations therein; and following such approval at the General Meeting, this Agreement and the Transaction Documents and the performance by the Company of its obligations therein will have been duly authorized, and this Agreement and the Transaction Documents will have been duly executed and delivered by the Company and will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. Following shareholder approval of such matters at the General Meeting, the shareholders of the Company will have fully and irrevocably waived their preferential subscription rights in favor of : (i) any industrial partner that has a similar, complementary or related business to that of the Company (ii) institutional or strategic investors (a) that have, as the case may be, the status of Qualified Institutional Buyers or Institutional Accredited Investors within the meaning of U.S. law, of qualified investors within the meaning of Regulation (EU) 2017/1129 of 14 June 2017 or an equivalent status under the rules applicable in its country of incorporation; and (b) that invest in companies with high growth potential which includes investments in small/mid cap equities; (iii) any institution that acts as a depository in connection with any offering by the Company of American Depositary Shares registered with the SEC; or (iv) any investment services providers likely to guarantee the completion of an issue intended to be placed with the persons referred to in (i) to (ii) above or within the framework of the implementation of an equity or bond line and, within this framework, to subscribe to the securities so issued. The issuance and sale of the Securities as contemplated hereby and by the Pre-Funded Warrants and the Common Warrants will not be subject to, and will not violate, any preferential subscription rights (other than those that have been fully and irrevocably waived). Except as set forth in the Company Reports, there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities at Closing that have not been fully and irrevocably waived.
Section 4.5 The Shares, Pre-Funded Warrants and Common Warrants. Subject to the approval of the Reserved Issuances at the General Meeting, the Reserved Issuances and the Securities to be issued by the Company upon subscription to the Shares and accompanying Common Warrants and/or the Pre-Funded Warrants and accompanying Common Warrants, as applicable, pursuant to Section 2.1(a), will have been duly authorized for issuance pursuant to Resolution passed at the General Meeting and article L. 225-138 of the French commercial code,
Exhibit 10.1
and the appropriate decisions of the Board of Directors or of the Chief Executive Officer in relation thereto. Upon subscription by the Purchaser for the Ordinary Shares issuable in connection with the issuance of the Shares pursuant to Section 2.1(a), the Company will cause such Underlying Shares to be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Securities issued in connection with the Reserved Issuances pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; the issuance of the Shares, the Pre-Funded Warrants and the accompanying Common Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. Each Share, Warrant Share and Common Warrant Share will be issued in compliance with all U.S. federal and state securities laws and the securities laws of any other applicable jurisdiction. Upon exercise of the Pre-Funded Warrants and payment of the exercise price by the Purchaser for the Underlying Warrant Shares issuable in connection with the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a), such Underlying Warrant Shares shall be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Underlying Warrant Shares and the ADSs issued in connection with the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; subject to the terms of the Deposit Agreement, the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. The Warrant Shares, upon issuance pursuant to the terms of the Pre-Funded Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free of any preemptive or similar rights, and the holder of the Warrant Shares shall be entitled to all rights accorded to a holder of the Ordinary Shares. Upon exercise of the Common Warrants and payment of the exercise price by the Purchaser for the Underlying Common Warrant Shares issuable in connection with the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a), such Underlying Common Warrant Shares shall be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Underlying Common Warrant Shares and the ADSs issued in connection with the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; subject to the terms of the Deposit Agreement, the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. The Common Warrant Shares, upon issuance pursuant to the terms of the Common Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free of any preemptive or similar rights, and the holder of the Common Warrant Shares shall be entitled to all rights accorded to a holder of the Ordinary Shares.
Section 4.6 Capitalization; Indebtedness. As of the date hereof, the share capital of the Company consists of 255,175,722 issued Ordinary Shares, fully paid, and with a par value of
Exhibit 10.1
€0.01 each. All of the outstanding share capital of the Company have been duly authorized, validly issued and are fully paid and nonassessable and were issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right. Except as previously disclosed in the Company’s public filings or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any share capital, or any such warrants, convertible securities or obligations. Except as disclosed in the Company Reports, the Company has no indebtedness as of the date of this Agreement.
Section 4.7 No Default, Termination or Lien. The execution, delivery and performance of this Agreement and the Transaction Documents by the Company, the issuance and delivery of the Securities by the Company, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the terms of this Agreement and the Transaction Documents will not (with or without notice or lapse of time or both) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under, give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any Subsidiary pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement (including, without limitation, the Deposit Agreement) or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, nor will such actions result in any violation of the provisions of the organizational documents of the Company or any of its Subsidiaries or any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets.
Section 4.8 No Consents. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement and the Transaction Documents, except such as may be required by the New York Stock Exchange (“NYSE”) in connection with the listing of the Shares, the Warrant Shares and the Common Warrant Shares.
Section 4.9 Independent Accountants. Ernst & Young Audit (“EY”), who has certified certain financial statements and related schedules included or incorporated by reference in the Company Reports, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations thereunder and the Public Company Accounting Oversight Board (United States). Except as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act, EY has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).
Section 4.10 Financial Statements. The financial statements, together with the related notes and schedules, included in the Company Reports present fairly in all material respects the financial condition of the Company and its consolidated Subsidiaries as of the respective dates thereof and the results of operations and cash flows of the Company and its consolidated
Exhibit 10.1
Subsidiaries for the respective periods covered thereby, and have been prepared in conformity with International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the entire period involved, except as otherwise disclosed in the Company Reports. Such financial statements, together with the related notes and schedules, comply in all material respects with the Securities Act, the Exchange Act and the rules and regulations thereunder. No other financial statements or supporting schedules or exhibits are required by the Exchange Act or the rules and regulations thereunder to be filed with the SEC.
Section 4.11 No Material Adverse Effect. Since December 31, 2024, there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, assets, business, prospects or operations of the Company and its Subsidiaries, taken as a whole. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made, except for matters required to be disclosed in connection with any non-compliance with continued listing requirements of the NYSE.
Section 4.12 Legal Proceedings. There are no legal or governmental proceedings, actions, suits or claims pending or, to the Company’s Knowledge, threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties or assets of the Company or any of its Subsidiaries is subject, other than proceedings that would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and there are no statutes, regulations, contracts or other documents to which the Company or any of its Subsidiaries is subject or by which the Company or any of its Subsidiaries is bound that are required to be described in the Company Reports or to be filed as exhibits to the Company Reports that are not described therein or filed as required. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any legal or governmental proceedings, actions, suits or claims of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. For purposes of this Agreement, “Knowledge” means the actual knowledge (after due inquiry) of the executive officers (as defined in Exchange Act Rule 3b-7) of the Company or its Subsidiaries, as applicable.
Section 4.13 Regulatory Permits. Each of the Company and its Subsidiaries possesses or has applied for all certificates, authorizations, licenses, franchises, permits, orders and approvals issued or granted by the appropriate governmental or regulatory authorities, agencies, courts, commissions or other entities, whether federal, state, local or foreign, or applicable self-regulatory organizations necessary to conduct its business as currently conducted, except (i) where the failure to possess such certificates, authorizations, licenses, franchises, permits, orders and approval, individually or in the aggregate, has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (“Material Permits”) and (ii) as accurately described in all material respects in the Company Reports, and neither the Company nor any of its Subsidiaries has received any written notice of proceedings relating to the revocation or material adverse modification of any such Material Permits (except as accurately described in all material respects in the Company Reports), and to the Company’s Knowledge,
Exhibit 10.1
there are no facts or circumstances that would give rise to the revocation, termination or material adverse modifications of any Material Permits.
Section 4.14 Material Contracts. Except for the Material Contracts, the Company and its Subsidiaries are not party to any agreements, contracts or commitments that are material to the business, financial condition, assets or operations of the Company and its Subsidiaries or that would be required to be filed pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F. Neither the Company nor any of its Subsidiaries is in material default under, or in material violation of, nor has received written notice of termination or default under any Material Contract. For purposes of this Agreement, “Material Contract” means any contract of the Company that was filed as an exhibit to the Company Reports pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F.
Section 4.15 Investment Company Act. Neither the Company nor any of its Subsidiaries is, and after giving effect to the Purchase (by all Purchasers), the consummation of the Convertible Debt Financing and, in each case, the application of the proceeds thereof, neither the Company nor any of its Subsidiaries will become, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.
Section 4.16 No Price Stabilization. Neither the Company, its Subsidiaries nor any of the Company’s or its Subsidiaries’ officers, directors or Affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
Section 4.17 Title to Property. The Company and its Subsidiaries have good and marketable title to all real and personal property owned by them which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except such as are described in the Company Reports or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described in the Company Reports.
Section 4.18 No Labor Disputes. Neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice; except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is (A) no discrimination complaint or unfair labor practice complaint pending or, to the Knowledge of the Company or the Subsidiaries, threatened against the Company or any of the Subsidiaries before the National Labor Relations Board or any other governmental body, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or, to the Knowledge of the Company or the Subsidiaries, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Knowledge of the Company or the Subsidiaries, threatened against the Company or any of the Subsidiaries and (C) no union representation dispute currently existing concerning the
Exhibit 10.1
employees of the Company or any of the Subsidiaries, (ii) to the Knowledge of the Company or the Subsidiaries, no union organizing activities are currently taking place concerning the employees of the Company or any of the Subsidiaries and (iii) there has been no violation of any federal, state, local or foreign law or collective bargaining agreement relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or retirement benefits, or any provision of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder concerning the employees of the Company or any of the Subsidiaries.
Section 4.19 Taxes. The Company (i) has timely filed all necessary federal, state, local and foreign income and franchise tax returns (or timely filed applicable extensions therefore) that have been required to be filed and (ii) is not in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company is contesting in good faith and for which adequate reserves have been provided and reflected in the financial statements included in the Company Reports. The Company does not have any tax deficiency that has been or, to the Company’s Knowledge, is reasonably likely to be asserted or threatened against it.
Section 4.20 Compliance with Environmental Laws. Except as disclosed in the Company Reports, neither the Company nor any of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), or, to the Company’s Knowledge, operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would or would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
Section 4.21 Intellectual Property Rights. The Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights, except as disclosed in the Company’s Form 20-F for the year ended December 31, 2024 or such as would not and would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
Section 4.22 Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, has (i) used any Company funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from Company funds, (iii) caused the Company or any of its Subsidiaries to be in violation of any provision of the United States Foreign Corrupt
Exhibit 10.1
Practices Act of 1977, as amended, or any similar laws, including without limitation French law no. 2016-1691 of December 9, 2016 relating to the prevention of corruption, or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment from Company funds.
Section 4.23 OFAC and Similar Laws. None of the Company, any of its Subsidiaries or, to the Company’s Knowledge, any director, officer, agent, employee, affiliate or representative of the Company or any of its Subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, the Republic of France, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the issuance of any Shares or the proceeds from the Convertible Debt Financing, or lend, contribute or otherwise make available such proceeds to any Subsidiaries, joint venture partners or other Person, to knowingly fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
Section 4.24 Disclosure Controls and Procedures. Except as disclosed in the Company Reports, the Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to the Company, including any consolidated Subsidiaries, is made known to its chief executive officer and chief financial officer by others within those entities. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of the end of the period covered by the most recently filed annual report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed annual report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date and except as disclosed in the Company Reports, there have been no material changes in the Company’s internal controls (as such term is defined in the rules of the SEC under the Exchange Act) or, to the Company’s Knowledge, in other factors that could affect the Company’s internal controls.
Section 4.25 Accounting Controls. Except as described in the Company Reports, the Company and its Subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances 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 IFRS and to maintain accountability for assets, (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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Company Reports, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal
Exhibit 10.1
control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Section 4.26 Absence of Material Changes. Subsequent to the respective dates as of which information is given in the Company Reports, and except as may be otherwise disclosed in such Company Reports, there has not been (i) any Material Adverse Effect, (ii) any transaction which is material to the Company, (iii) any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company, which is material to the Company, (iv) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, (v) any change in the share capital (other than a change in the number of outstanding Ordinary Shares or ADSs due to grants of stock under the Company’s stock incentive plans existing on the date hereof or the issuance of shares upon the exercise of outstanding options or warrants) or (vi) any issuance of options, warrants, convertible securities or other rights to purchase the share capital (other than grants of stock options under the Company’s stock option plans existing on the date hereof) of the Company.
Section 4.27 Brokers Fees. Other than payment of fees to the Placement Agents, neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Company for a brokerage commission, finder’s fee or like payment in connection with any transaction contemplated by this Agreement.
Section 4.28 Listing and Maintenance Requirements. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, as applicable. The ADSs are registered pursuant to Section 12(b) of the Exchange Act and are listed on the NYSE, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the ADSs under the Exchange Act or delisting the ADSs from the NYSE, nor, except as disclosed in the Company Reports or any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), has the Company received any notification that either the SEC or the NYSE is contemplating terminating such registration or listing. Except as disclosed in the Company Reports or any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), since April 2, 2025, the Company has not received notice from the NYSE that the Company is not in compliance with the listing or maintenance requirements of the NYSE. After giving effect to the consummation of the Purchase (by all Purchasers), the Company expects it will be, and has no reason to believe that it will not in the foreseeable future thereafter continue to be, in compliance with all such listing and maintenance requirements. The Ordinary Shares and ADSs are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
Section 4.29 Sarbanes-Oxley Act. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules
Exhibit 10.1
and regulations promulgated thereunder or implementing provisions thereof that are then in effect.
Section 4.30 New York Stock Exchange Approval Rules. Other than as contemplated in this Agreement, no further approval of the shareholders of the Company under the rules and regulations of the NYSE is required for the Company to issue and deliver the Securities to the Purchaser.
Section 4.31 Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and, to the Company’s knowledge, are free and clear of all material Trojan horses, time bombs, malware and other malicious code. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls designed to maintain and protect the confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data (“Confidential Data”) used or maintained in connection with their businesses and Personal Data (defined below), and the integrity, availability continuous operation, redundancy and security of all IT Systems. “Personal Data” means the following data used in connection with the Company’s and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or other tax identification number, driver’s license number, passport number, credit card number or bank information; (ii) information that identifies or may reasonably be used to identify an individual; (iii) any information that would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (iv) any information that would qualify as “personal data,” “personal information” (or similar term) under the Privacy Laws (as defined below). To the Company’s knowledge, there have been no breaches, outages or unauthorized uses of or accesses to the Company’s IT Systems, Confidential Data, or Personal Data that would require notification under Privacy Laws.
Section 4.32 Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state, federal and foreign data privacy and security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer, disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data, including without limitation HIPAA, the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) No. 2016/679), all other local, state, federal, national, supranational and foreign laws relating to the regulation of the Company or its subsidiaries, and the regulations promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof (collectively, the “Privacy Laws”), except where failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure compliance with their policies and procedures relating to data privacy and security, and the Processing of Personal Data and Confidential Data (the “Privacy Statements”), except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have, except as
Exhibit 10.1
would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, at all times since inception provided accurate notice of their Privacy Statements then in effect to its customers, employees, third party vendors and representatives. Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, none of such disclosures made or contained in any Privacy Statements have been materially inaccurate, misleading, incomplete, or in material violation of any Privacy Laws.
Section 4.33 Private Placement. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Section 3, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to each Purchaser as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the NYSE.
Section 4.34 Other Agreements. Each other securities purchase agreement entered into with each other Purchaser reflects the same Per Share Issue Price and other terms and conditions with respect to the purchase of the Shares that are no more favorable to such other Purchaser thereunder than the terms of this Agreement.
ARTICLE V
OTHER AGREEMENTS
Section 5.1 Depositary. Upon issuance of the Shares, the Warrant Shares and the Common Warrant Shares, the Company will instruct the Depositary to deliver the relevant number of ADSs to the Purchaser against deposit of the Underlying Shares, the Underlying Warrant Shares and the Underlying Common Warrant Shares, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 (the “Deposit Agreement”) among the Company, The Bank of New York Mellon, as depositary (the “Depositary”), and the owners and holders from time to time of the ADSs issued thereunder, and the Purchaser shall cooperate with the Company and the Depositary in connection therewith.
Section 5.2 Supplemental Listing Application. Within two (2) Business Days following the execution of this Agreement, the Company shall file with the NYSE a supplemental listing application reflecting the transactions contemplated hereby.
Section 5.3 Listing of Shares. The Company covenants that all Shares, Warrant Shares and Common Warrant Shares issued pursuant to Section 2.1(a) will be duly approved for listing subject to official notice of issuance on the NYSE and the Company covenants to take all reasonable steps to be in compliance with all listing and maintenance requirements of the NYSE.
Section 5.4 Use of Proceeds. The net proceeds of the Purchase and the Convertible Debt Financing shall be used by the Company for the purchase of Bitcoin and for general corporate purposes associated with purchasing Bitcoin, subject to the security and collateral requirements of the Convertible Debt Financing.
Exhibit 10.1
Section 5.5 Reliance by and Exculpation of Placement Agents. Each Purchaser, individually and not jointly, agrees for the express benefit of the Placement Agents, their affiliates and their representatives that:
(a) Each Placement Agent is acting as placement agent for the Company solely in connection with the sale of the Securities and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for any Purchaser, the Company or any other person or entity in connection with the sale of Securities.
(b) Each Purchaser hereto agrees for the express benefit of each Placement Agent, its affiliates and its representatives that (i) such Placement Agent, its affiliates and its representatives have not made any representations or warranties with respect to the Company or the offer and sale of the Securities, and such Purchaser will not rely on any statements made by such Placement Agent, orally or in writing, to the contrary, (ii) such Purchaser will be responsible for conducting its own due diligence investigation with respect to the Company and the offer and sale of the Securities, (iii) such Purchaser will be purchasing Securities based on the results of its own due diligence investigation of the Company and it has made an independent investigation with respect to the Company, the Securities, or the accuracy, completeness, or adequacy of any information supplied to the Purchaser by the Company, (iv) such Purchaser has negotiated the offer and sale of the Securities directly with the Company, and such Placement Agent will not be responsible for the ultimate success of any such investment and (v) the decision to invest in the Company will involve a significant degree of risk, including a risk of total loss of such investment. Each Purchaser further represents and warrants to each Placement Agent that it, including any fund or funds that it manages or advises that participates in the offer and sale of the Securities, is permitted under its constitutive documents (including all limited partnership agreements, charters, bylaws, limited liability company agreements, all applicable side letters with investors, and similar documents) to make investments of the type contemplated by this Agreement. This Section 5.5 shall survive any termination of this Agreement.
(c) Neither the Placement Agents nor any of their respective affiliates or representatives (1) shall be liable for any improper payment made in accordance with the information provided by the Company; (2) makes any representation or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to the Transaction Documents or in connection with any of the transactions contemplated therein, including any offering or marketing materials; or (3) shall be liable (x) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred upon them by the Transaction Documents or (y) for anything which any of them may do or refrain from doing in connection with the Transaction Documents, except in each case for such party’s own gross negligence, willful misconduct or bad faith.
(d) The Company agrees that the Placement Agents, their respective affiliates and their respective representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any Placement Agent or any Purchaser by or on behalf of the Company, and (2) be indemnified by the Company for acting as a Placement Agent in accordance with the indemnification provisions set forth in the applicable Engagement Letter between the Company and the Placement Agents.
Exhibit 10.1
Section 5.6 Shareholder Approval. On or prior to June 30, 2025, the Company shall validly hold the General Meeting approving a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the Reserved Issuance and such approval shall have been obtained.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Purchaser’s Conditions Precedent. The obligation of the Purchaser to complete the Purchase is subject to the satisfaction of each of the following conditions precedent:
(a) each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;
(b) the Company shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;
(c) no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof;
(d) the Chief Executive Officer and Chief Financial Officer of the Company shall have delivered to the Purchaser and Placement Agents a certificate, dated as of the Closing Date, certifying to their knowledge, after reasonable inquiry, as to the matters set forth in paragraphs (a) and (b) of this Section 6.1;
(e) (i) the shareholders of the Company shall have approved at the General Meeting a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital with subscriptions reserved to a specified class of investors including QIBs and IAIs, (ii) the board of directors shall have authorized the principle of the Reserved Issuances and (iii) the board of directors or the Chief Executive Officer shall have decided to proceed with the Reserved Issuances;
(f) the Shares, the Warrant Shares and the Common Warrant Shares shall be designated for quotation or listed on the NYSE, and, after giving effect to the consummation of
Exhibit 10.1
the Purchase (by all Purchasers), the Company shall meet the minimum continued listing requirements of the NYSE;
(g) since the date of this Agreement, no event or series of events shall have occurred that reasonably would be expected to (i) result in a Material Adverse Effect or (ii) impair in any material respect the ability of the Company to comply with any covenant herein, including, without limitation, Section 5.4;
(h) substantially concurrent with the Closing, the Company shall be consummating the Convertible Debt Financing;
(i) from the date hereof to the Closing, trading in the Ordinary Shares and the ADSs shall not have been suspended by the SEC or the Company’s principal trading market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities generally whose trades are reported by such service, or on any principal U.S. trading market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to consummate the Purchase; and
(j) the Company shall have executed and delivered to the Purchaser each of the other Transaction Documents.
Section 6.2 Company’s Conditions Precedent. The obligation of the Company to complete the issuance of the Shares to the Purchaser contemplated by this Agreement is subject to the satisfaction of each of the following conditions precedent:
(a) each of the representations and warranties of the Purchaser contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;
(b) the Purchaser shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;
(c) no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof; and
Exhibit 10.1
(d) the Purchaser shall have executed and delivered to the Company each of the other Transaction Documents.
ARTICLE VII
CERTAIN COVENANTS
Section 7.1 Certain Actions. The Company and the Purchaser shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement, applicable law and stock exchange listing standards to consummate the transactions contemplated by this Agreement as soon as practicable.
Section 7.2 Legends. To the extent reasonably necessary under applicable law, any certificate or book-entry Securities issued under this Agreement shall have endorsed, to the extent appropriate, upon its face the following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY JURISDICTION. ACCORDINGLY, SUCH SECURITIES [AND THE SECURITIES ISSUABLE UPON EXERCISE OF SUCH SECURITIES] MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, ASSIGNED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAW, OR (II) ANY EXEMPTION FROM REGISTRATION UNDER SUCH ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.
Section 7.3 Legend Removal. The Company shall promptly instruct the Depositary to remove the legend contemplated by Section 7.2 (and shall revoke any related stop transfer or similar instructions to its registrar and transfer agent), (i) upon receipt by the Depositary of evidence that the Securities issued pursuant to Section 2.1(a) have been resold pursuant to an effective registration statement under the Securities Act; (ii) upon receipt by the Depositary of evidence that such Securities have been resold pursuant to Rule 144 or another exemption from the registration requirements under the Securities Act, subject to receipt of a suitable opinion from counsel to the Company, or (iii) after one year, upon receipt of a suitable opinion from counsel to the Company, provided the owner of such Securities is not an affiliate of the Company. The Company shall be responsible for all Depositary fees in connection with the removal of legends as contemplated by this Section 7.3.
ARTICLE VIII
TERMINATION
Exhibit 10.1
Section 8.1 Termination. The obligations of the Company, on the one hand, and the Purchasers, on the other hand, to effect the Closing shall terminate as follows:
(1) Upon the mutual written consent of the Company and the Purchasers that agreed to purchase a majority of the Securities prior to the Closing;
(2) By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company;
(3) By a Purchaser (with respect to itself only) if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by such Purchaser; or
(4) By either the Company or a Purchaser (with respect to itself only), if the Closing has not occurred on or before July 18, 2025 (the “Outside Date”), unless the Company and such Purchaser mutually agree, whether orally or in writing, to extend the Outside Date; provided, however, that the right to terminate pursuant to this Section 8.1(4) shall only be available to a party if such party is not in material breach of, or has not failed to perform in any material respect, any of its representations, warranties, covenants, or agreements contained in this Agreement, and such breach or failure has not been the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
provided, however, that, in the case of clauses (2) and (3) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in the Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
Section 9.2 Disclosure. The Company shall, prior to 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Agreement (or, if this Agreement is executed and delivered by the parties hereto prior to 8:00 a.m., New York City time, on a business day, prior to 9:00 a.m., New York City time, on the date hereof), issue one or more press releases or furnish or file with the SEC a Report of Foreign Private Issuer on Form 6-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated hereby and the material terms of
Exhibit 10.1
the Convertible Debt Financing, and any other material, nonpublic information that the Company has provided to the Purchasers at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, to the Company’s knowledge, the Purchasers shall not be in possession of any material, nonpublic information received from the Company or any of its officers, directors, employees or other representatives (including the Placement Agents). For the avoidance of doubt, the Company may possess non-public information regarding the Company at the time of Closing, which is unrelated to the transactions contemplated by the Transaction Documents, that has not been communicated to the Purchasers by the Company, its officers, directors, employees or other representatives (including the Placement Agents). Notwithstanding anything in this Agreement to the contrary, the Company shall not publicly disclose the name of the Purchasers or any of their affiliates, or include the name of the Purchasers or any of their affiliates, without the prior written consent of the Purchasers, (i) in any press release or (ii) in any filing with the SEC or any regulatory agency or trading market, except (A) as required by the federal securities laws, rules or regulations in connection with the Registration Statement or (B) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of the NYSE or by any other governmental authority, in which case the Company shall provide the Purchasers with prior written notice of such disclosure permitted under subclauses (A) and (B). At or prior to 9:00 a.m. (New York City time) on the first (1st) Business Day immediately following the Closing, the Company shall publicly disclose the occurrence of the Closing and the consummation of the transactions contemplated by this Agreement and any other transactions (including the Convertible Debt Financing) that may be consummated on such date.
Section 9.3 Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
Exhibit 10.1
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
If to a Purchaser: to such address or addresses set forth on its signature page hereto;
Section 9.4 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement or any other Transaction Document are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Section 9.5 Entire Agreement. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 9.6 Assignment; No Third Party Beneficiaries. Except for the Shares, the Pre-Funded Warrants, the Warrant Shares, the Common Warrants and the Common Warrant Shares, which (subject to applicable securities laws) shall at all times be freely transferable, and except as otherwise expressly provided herein, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of, in the case of an assignment by any Purchaser, the Company or, in the case of an assignment by the Company, each of the Purchasers); provided that, notwithstanding anything to the contrary in the preceding language, any Purchaser can assign, convey or transfer, in whole or in part, this Agreement to its limited partners, members, Affiliates and any investment fund that is controlled by or is under common control with such Purchaser. Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Exhibit 10.1
Section 9.7 Construction. References in the singular shall include the plural, and vice versa, unless the context otherwise requires. References in the masculine shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meanings of the provisions hereof. Neither Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions of this Agreement, and all language in all parts of this Agreement shall be construed in accordance with its fair meaning, and not strictly for or against either party.
Section 9.8 Governing Law; Jurisdiction. This Agreement shall in all respects be construed in accordance with, and governed by, the substantive laws of the State of New York, without reference to its choice of law rules. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts within the Southern District of New York.
Section 9.9 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
Section 9.10 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 9.11 Certain Definitional Provisions. Unless the express context otherwise requires, the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; any references herein to a specific Section, Schedule or Annex shall refer, respectively, to Sections, Schedules or Annexes of this Agreement; wherever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; and references herein to any gender includes each other gender.
Section 9.12 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers who at such time hold at least 50.1% in interest of the Shares, the Warrant Shares and the Common Warrant Shares based on the initial subscription amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers) who continues to hold any of the Shares, the Warrant Shares or the Common Warrant Shares, the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
Exhibit 10.1
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser who continues to hold any of the Shares, the Warrant Shares or the Common Warrant Shares relative to the rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 9.12 shall be binding upon each Purchaser and holder of Shares, Warrant Shares and Common Warrant Shares and the Company.
Section 9.13 Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Documents) shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of any Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed as of the date first above written.
| THE COMPANY | ||||||||
| SEQUANS COMMUNICATIONS S.A. | ||||||||
| By: | ||||||||
| Name: Georges Karam | ||||||||
| Title: Chief Executive Officer | ||||||||
[Signature page to Securities Purchase Agreement]
Exhibit 10.1
| PURCHASER: | ||||||||
| Name of Purchaser: | ||||||||
| Signature of Purchaser: | ||||||||
| By: | |||||||||||||||||
| Name: | |||||||||||||||||
| Title: | |||||||||||||||||
| Name in which securities are to be registered (if different): | |||||||||||||||||
| Email Address: | |||||||||||||||||
| Purchaser’s EIN: | |||||||||||||||||
Address:
| Attn: | ||||||||
| Telephone No : | ||||||||
| Facsimile No : | ||||||||
| Aggregate Number of Shares subscribed for: | ||||||||
| Aggregate Number of Pre-Funded Warrants subscribed for: Aggregate Number of Common Warrants subscribed for: | ||||||||
| Aggregate Number of Common Warrants subscribed for: | ||||||||
| Aggregate Purchase Price: $ | ||||||||
You must pay the purchase price by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice.
Name and Address of Beneficial Owner, if different from Purchaser:
Number of shares of Ordinary Shares and other equity securities of the Company currently owned by Beneficial Owner prior to this Purchase:
Any descriptions for footnotes to be disclosed in the Registration Statement relating to beneficial ownership:
[Signature page to Securities Purchase Agreement]
Exhibit 10.1
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
EXHIBIT B
FORM OF SUBSCRIPTION FORM
Exhibit 10.1
EXHIBIT C
SUMMARY OF RISKS
Exhibit 10.1
EXHIBIT D
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
Exhibit 10.1
EXHIBIT E
TERMS AND CONDITIONS OF THE COMMON WARRANTS
Exhibit 10.2
SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
THIS SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT (this “Agreement”), dated as of June 22, 2025, is between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), each purchaser listed on the signature pages hereto (each, a “Buyer” and collectively, the “Buyers”) and Hudson Bay PH XVI Ltd. as collateral agent (in such capacity, the “Collateral Agent”).
WITNESSETH
WHEREAS, the Company and each Buyer desire to enter into this transaction for the Company to sell and such Buyer to purchase the Secured Convertible Debentures (as defined below) and/or Common Warrants (as defined below) pursuant to an exemption from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 of Regulation D (“Regulation D”) promulgated by the U.S. Securities and Exchange Commission (the “SEC”) thereunder;
WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein, (a) the Company shall issue and sell to each Buyer, as provided herein, and each Buyer shall purchase a secured convertible debenture in the form attached hereto as Exhibit A (each such secured convertible debenture, a “Secured Convertible Debenture” and collectively, the “Secured Convertible Debentures”) in the aggregate principal amount of $189,000,000 (the “Subscription Amount”), which shall be convertible into (i) ordinary shares, nominal value €0.01 per share of the Company (the “Ordinary Shares”), represented by a number of American Depositary Shares (each an “ADS”), specified pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 (the “Deposit Agreement”) among the Company, The Bank of New York Mellon, as depositary (the “Depositary”), and the holders from time to time of the ADSs issued thereunder, indirectly through the conversion into Ordinary Shares (the ADSs delivered or deliverable upon conversion of all or any portion of the Secured Convertible Debentures into Ordinary Shares are referred to herein as the “Conversion ADSs” and such Ordinary Shares are referred to herein as “Conversion Shares”) and (ii) pre-funded warrants (the “Pre-Funded Warrants”), to purchase Ordinary Shares represented by ADSs (as exercised, such Ordinary Shares collectively, the “Pre-Funded Warrant Shares” and such ADSs collectively, the “Pre-Funded Warrant ADSs”) whose terms and conditions (the “Terms and Conditions of the Pre-Funded Warrants”) are attached hereto as Exhibit B, and/or (b) common warrants (the “Common Warrants”), to purchase Ordinary Shares represented by ADSs or additional Pre-Funded Warrants at the election of the holder thereof (as exercised, such Ordinary Sares collectively, the “Common Warrant Shares” and such ADSs collectively, the “Common Warrant ADSs”) whose terms and conditions (the “Terms and Conditions of the Common Warrants”) are attached hereto as Exhibit F, subject to the conditions to the Closing set forth in Sections 6 and 7 below being satisfied or waived (the “Closing”), at a purchase price for all such securities, payable in cash, equal to 96% of the Subscription Amount (the “Purchase Price”), in each case in the respective amounts set forth opposite such Buyer’s name on Schedule I to this Agreement;
WHEREAS, on or before the Closing Date (as defined below), the parties hereto are executing and delivering a Registration Rights Agreement (the “Registration Rights Agreement”), attached hereto as Exhibit C, pursuant to which the Company has agreed to
Exhibit 10.2
provide certain resale registration rights under the Securities Act and the rules and regulations promulgated thereunder, and applicable state securities laws;
WHEREAS, the Company has engaged Northland Capital Markets, Yorkville Advisors and B. Riley Securities as its placement agents (the “Placement Agents”) for the offering of Securities;
WHEREAS, on or before the Closing Date, the Company shall execute and deliver a Guaranty and Security Agreement (the “Security Agreement”) in the form attached hereto as Exhibit E and certain other agreements pursuant to which the Company has agreed to provide a first priority lien on certain assets of the Company as security for the obligations of the Company to the Buyers;
WHEREAS, the Secured Convertible Debentures, the Conversion Shares, the Conversion ADSs, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Common Warrants and the Common Warrant Shares are collectively referred to herein as the “Securities;” and
WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company is selling in a private offering to persons reasonably believed to be either (i) “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A under the Securities Act or (ii) institutional “accredited investors” (“IAIs”) within the meaning of Rule 501(a) of Regulation D under the Securities Act, in each case pursuant to the exemption from registration under Rule 4(a)(2) of the Securities Act, Ordinary Shares represented by ADSs and/or (ii) pre-funded warrants to purchase Ordinary Shares represented by ADSs (the “Common Equity Private Placement”).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer, severally and not jointly, hereby agree as follows:
1.PURCHASE AND SALE OF SECURED CONVERTIBLE DEBENTURES.
(a)Purchase of Secured Convertible Debentures. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer agrees to purchase from the Company at the Closing, (i) a Secured Convertible Debenture with principal amount corresponding to the Subscription Amount set forth opposite such Buyer’s name on Schedule I attached hereto and (ii) a number of Common Warrants set forth opposite such Buyer’s name on Schedule I attached hereto.
(b)Closing Date. The Closing shall occur remotely by conference call and electronic delivery of documentation. The date and time of the Closing shall be on the date no later than two business days after the date that the conditions to Closing set forth in Sections 6 and 7 are satisfied or waived (or such other date as is mutually
Exhibit 10.2
agreed to by the Company and each Buyer) (the “Closing Date”). As used herein “Business Day” means any day other than a Saturday, a Sunday, or any other day on which commercial banks in New York City or Paris are authorized or required by law or other governmental action to be closed; provided, however, for clarification, commercial banks in New York City or Paris shall not be deemed to be authorized or required by law or executive order to close or be closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in New York City or Paris are open for use by customers on such day.
(c)Form of Payment; Deliveries. Subject to the satisfaction (or waiver) of the terms and conditions of this Agreement, on the Closing Date:
(i) each Buyer, severally and not jointly, shall deliver, or cause to be delivered, to the Company:
(1) the Purchase Price.
(ii) the Company shall do the following with respect to each Buyer:
(1) deliver to such Buyer the Secured Convertible Debenture which such Buyer is purchasing at the Closing with a principal amount corresponding with the Subscription Amount set forth opposite such Buyer’s name on the Schedule of Buyers attached as Schedule I hereto, duly executed on behalf of the Company; and
(2) issue an aggregate amount of Common Warrants as set forth opposite such Buyer’s name on the Schedule of Buyers attached as Schedule I hereto. All such Common Warrant Shares and Common Warrants shall be evidenced by a book entry on a securities account open in their name in the books of the Company, in accordance with Articles L. 211-3 et seq. of the French Monetary and Financial Code.
2. BUYER’S REPRESENTATIONS AND WARRANTIES.
Each Buyer, for itself and not for any other Buyer, represents and warrants to the Company and the Placement Agents that, as of the date hereof and as of the Closing Date:
(a)Investment Purpose. The Buyer is acquiring the Securities for its own account for investment purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration requirements of the Securities Act; provided, however, that by making the representations herein, such Buyer does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with, or pursuant to, a registration statement covering
Exhibit 10.2
such Securities or an available exemption under the Securities Act. Such Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person (as defined below) to distribute any of the Securities in violation of applicable securities laws. As used herein, “Person” means a corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental agency.
(b)Accredited Investor Status. The Buyer is either a QIB under the Securities Act or IAI within the meaning of Rule 501(a) of Regulation D under the Securities Act.
(c)Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire the Securities.
(d)Information. The Buyer and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and operations of the Company and information the Buyer deemed material to making an informed investment decision regarding its purchase of the Securities, which have been requested by such Buyer, including the supplemental risk factors set forth on Exhibit D, and has had the opportunity to review the Company’s filings and submissions with the SEC, including, without limitation, all information filed or furnished pursuant to the Exchange Act and all information incorporated into such filings and submissions. The Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company and its management. Neither such inquiries nor any other due diligence investigations conducted by such Buyer or its advisors or representatives, if any, shall modify, amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained in Section 3 below. The Buyer understands that its investment in the Securities involves a high degree of risk. The Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(e)Transfer or Resale. The Buyer understands that: (i) the Securities have not been registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration requirements, or (C) such Buyer provides the Company with reasonable assurances (in the form of seller and broker representation letters) that such Securities can be sold, assigned or transferred pursuant to Rule 144 promulgated under the Securities Act, as amended (or a
Exhibit 10.2
successor rule thereto) (collectively, “Rule 144”), in each case following the applicable holding period set forth therein; and (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities and such pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation, this Section 2(e).
(f)Legends. The Buyer agrees to the imprinting, so long as its required by this Section 2(f), of a restrictive legend on the Securities in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE [AND THOSE SECURITIES INTO WHICH THEY ARE CONVERTIBLE] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES [AND THOSE SECURITIES INTO WHICH THEY ARE CONVERTIBLE] HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
Any certificate or book-entry Securities issued under this Agreement shall not contain any legend (including the legend set forth above), (i) following any sale of such Securities, as applicable, pursuant to Rule 144, (ii) if such Securities, as applicable are eligible for sale under Rule 144 and such Buyer has delivered all documentation reasonably requested by the Company to cause Company’s transfer agent to remove all restrictive legends from the Securities, as applicable, other than any legal opinions required by the transfer agent, which shall be provided by the Company, or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC). If a legend is not required
Exhibit 10.2
pursuant to the foregoing, the Company shall no later than one (1) Business Day (or such earlier time as required pursuant to the Exchange Act (as defined below) or other applicable law, rule or regulation for the settlement of a trade initiated on the date such Buyer delivers such legended certificate representing such securities to the Company) following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a legended certificate representing such securities (endorsed or with share transfer powers attached, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries from such Buyer as may be required above in this Section 2(f), as directed by such Buyer, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer Program, instruct the transfer agent to credit the aggregate number of ADSs to which such Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, instruct the transfer agent to issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such securities that is free from all restrictive and other legends, registered in the name of such Buyer or its designee. The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities in accordance herewith. The Buyer agrees that the removal of a restrictive legend from certificates representing Securities as set forth in this Section 2(f) is predicated upon the Company’s reliance that the Buyer will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein.
(g) Organization; Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents to which it is a party and otherwise to carry out and perform its obligations hereunder and thereunder.
(h) Authorization, Enforcement. The Transaction Documents to which each such Buyer is a party have been duly and validly authorized, executed and delivered on behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(i) No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of such Buyer, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights
Exhibit 10.2
of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Buyer is a party or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Buyer, except, in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.
(j) Certain Trading Activities. The Buyer has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Buyer, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities) during the period commencing as of the time that the Buyer first contacted the Company or the Company’s agents regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this Agreement by such Buyer.
(k) No General Solicitation. The Buyer is not purchasing or acquiring the Securities as a result of any general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities.
(l) Not an Affiliate. The Buyer is not (i) an officer or director of the Company or any of its Subsidiaries (as defined in the Debenture), (ii) an “affiliate” (as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) a “beneficial owner” of more than 10% of the Ordinary Shares (as defined for purposes of Rule 13d-3 of the Exchange Act).
(m) No Public Market. The Buyer understands that no public market exists for the Secured Convertible Debenture, and that there is no assurance that a public market will ever develop for the Secured Convertible Debenture.
(n) Investment Funds. The Buyer represents, warrants, acknowledges and agrees that, if such Buyer is acting on behalf of investment funds or other legal entities managed or advised by it, the representations made under this Section shall also apply to each such fund or legal entity and such Buyer shall further ensure compliance thereof by each such fund or entity in connection with the Secured Convertible Debenture, Pre-Funded Warrants and Common Warrants.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the SEC Documents (as defined below) that are available on the SEC’s website through the EDGAR system at least one (1) Business Day prior to the date of this Agreement (unless the context provides otherwise), the Company hereby makes the representations and warranties set forth below to each Buyer as of the date hereof and as of the Closing Date:
(a)Organization and Qualification. Each of the Company and Bitquans Holdings LLC (the “Guarantor”) has been duly organized and is validly existing as a
Exhibit 10.2
corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Company and the Guarantor is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged.
(b)Authorization; Enforcement; Validity. Each of the Company and the Guarantor has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents and, upon obtaining the Resolution, to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery of this Agreement and the other Transaction Documents by the Company and, as applicable, the Guarantor and the consummation by the Company and the Guarantor of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Secured Convertible Debentures, the reservation for issuance and issuance of the Conversion Shares, the Pre-Funded Warrant Shares and Common Warrant Shares, and the delivery of ADSs representing the Ordinary Shares), have been duly authorized by the Company’s Chief Executive Officer and board of directors and the Guarantor’s Chief Executive Officer and board of directors and no further filing, consent or authorization (other than the Resolution) is required by the Company, the Guarantor, their respective board of directors or shareholders or other governmental or corporate body other than any filing, consent or authorization the failure of which to obtain would not reasonably be expected to have a Material Adverse Effect (as defined below). This Agreement has been, and the other Transaction Documents to which the Company or the Guarantor is a party will be prior to the Closing, duly executed and delivered by the Company and, as applicable, the Guarantor, and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company and, as applicable, the Guarantor in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents” means, collectively, this Agreement, the Registration Rights Agreement, the Secured Convertible Debentures, the Security Agreement, and each of the other agreements and instruments, including any Pre-Funded Warrants and Common Warrants, entered into by the Company or delivered by the Company in connection with the transactions contemplated hereby and thereby, as may be amended from time to time. The Company further represents that, as of the Closing Date, the shareholders of the Company, in the context of the Resolution, waived their preferential subscription rights notably in favor of: (i) any industrial partner that has a similar, complementary or related business to that of the Company, (ii) institutional or strategic investors (a) that have, as the case may be, the status of Qualified Institutional Buyers or Institutional Accredited Investors
Exhibit 10.2
within the meaning of U.S. law, of qualified investors within the meaning of Regulation (EU) 2017/1129 of 14 June 2017 or an equivalent status under the rules applicable in its country of incorporation; (b) and that invest in companies with high growth potential and have a certain number of significant references making investments in small/mid cap equities; or (iii) any institution that acts as a depository in connection with any offering by the Company of American Depositary Shares registered with the Securities and Exchange Commission.
(c)Issuance of Securities. The issuance of the Secured Convertible Debentures has been duly authorized and, when issued and delivered to each Buyer against full payment therefor in accordance with the terms of this Agreement, the Secured Convertible Debentures will be validly issued, fully paid and non-assessable, will be issued free and clear of any mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, security interests and other encumbrances (collectively, “Liens”) or other restrictions (other than those as provided in the Transaction Documents or restrictions on transfer under applicable state and federal securities laws). As of the Closing Date, the Company shall have reserved from its authorized share capital not less than the Required Reserve Amount (as defined herein). Subject to and upon obtaining the Resolution, and the issuance or conversion in accordance with the Secured Convertible Debentures, each of the Conversion Shares and the Conversion ADSs, when issued or delivered, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of ADSs, and each of the Conversion Shares and the Conversion ADSs will not have been issued or delivered in violation of or subject to any preemptive or similar rights pursuant to the laws of the French Republic or the Company’s status or any agreement or other instrument to which the Company is a party. The issuance of the Pre-Funded Warrants and Common Warrants has been duly authorized (other than the Resolution) and, when issued and delivered in accordance with the terms of the Secured Convertible Debentures, the Pre-Funded Warrants and Common Warrants, as applicable, will be validly issued, fully paid and non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as provided in the Transaction Documents or restrictions on transfer under applicable state and federal securities laws). Subject to and upon obtaining the Resolution, and the issuance or exercise in accordance with the Pre-Funded Warrants or Common Warrants, as applicable, each of the Pre-Funded Warrant Shares, the Pre-Funded Warrant ADSs, the Common Warrant Shares, and the Common Warrant ADSs, when issued and delivered, will be validly issued, fully paid and nonassessable, as applicable, and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of ADSs, and each of the Pre-Funded Warrant Shares, the Pre-Funded Warrant ADSs, the Common Warrant Shares and the Common Warrant ADSs will not have been issued in violation of or subject to any preemptive or similar rights pursuant to the laws of the French Republic or the Company’s status or any agreement or other instrument to which the Company is a party. Upon exercise of the Pre-Funded Warrants and payment of the exercise price by the Buyer for the Pre-Funded Warrant Shares issuable in
Exhibit 10.2
connection with the Pre-Funded Warrants, such Pre-Funded Warrant Shares shall be deposited with the Depositary for the issuance of Pre-Funded Warrant ADSs. Upon exercise of the Common Warrants and payment of the exercise price by the Buyer for the Common Warrant Shares issuable in connection with the Common Warrants, such Common Warrant Shares shall be deposited with the Depositary for the issuance of Common Warrant ADSs.
(d)No Conflicts. Assuming the accuracy of each Buyer’s representations and warranties in Section 2, the execution and delivery by the Company and the Guarantor of the Transaction Documents, and the performance by the Company and the Guarantor of their respective obligations under the Transaction Documents, including the issuance and sale of each of the Securities, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien, charge or encumbrance upon any of the property or assets of the Company or the Guarantor pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company or the Guarantor is a party or by which the Company or Guarantor is bound or to which any of the property or assets of the Company or the Guarantor is subject, which would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof) or financial condition of the Company and its Subsidiaries, taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into by the Company or the Guarantor in connection herewith or therewith or (iii) the authority or ability of the Company or the Guarantor to perform any of its obligations under any of the Transaction Documents and to issue, sell and deliver the Securities or materially affect the validity of the Conversion Shares, the Pre-Funded Warrant Shares, the Common Warrant Shares, or the legal authority of the Company or the Guarantor to comply in all material respects with the terms of this Agreement or the other Transaction Documents (each, a “Material Adverse Effect”); (iv) the organizational documents of the Company or the Guarantor; or (v) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company, the Guarantor or any of their respective properties, including without limitation the rules and regulations of the New York Stock Exchange (the “Principal Market”) provided however, that in the event the ADSs are ever listed or traded on any of the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market, the “Principal Market” shall mean the principal such market, in terms of volume, on which the ADSs is then listed or traded), and including all applicable laws, rules and regulations of the jurisdiction of incorporation of the Company and the Guarantor) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound, encumbered or otherwise affected that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Conversion Shares, the Pre-Funded Warrant Shares or the Common Warrant Shares or the legal authority of the Company or the Guarantor to comply
Exhibit 10.2
in all material respects with the terms of this Agreement or the other Transaction Documents.
(e)Consents. Assuming the accuracy of each Buyer’s representations and warranties in Section 2, the Company and the Guarantor are not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Principal Market) or other person in connection with the execution, delivery and performance by the Company or the Guarantor of this Agreement (including, without limitation, the issuance of the Securities) or the other Transaction Documents and the issuance and sale of the Securities, other than (i) the filings required by applicable state or federal securities laws, (ii) the Resolution, (iii) those required by the Principal Market, if any, and (iv) the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on the Company’s ability to consummate the transactions contemplated hereby, including the sale and issuance of the Securities. The Company is not in violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension of the ADSs in the foreseeable future.
(f)Acknowledgment Regarding Each Buyer’s Purchase of Securities. The Company acknowledges and agrees each Buyer is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that each Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and thereby and any advice given by each Buyer or any of their respective representatives or agents in connection with this Agreement and the transactions contemplated hereby and thereby is merely incidental to each Buyers’s purchase of the Securities. The Company further represents to each Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(g)Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares and Conversion ADSs, as well as Pre-Funded Warrant ADSs, Pre-Funded Warrant Shares, Common Warrant ADSs, or Common Warrant Shares, will increase in certain circumstances. The Company further acknowledges its obligation to issue and deliver (x) the Conversion Shares and the Conversion ADSs upon conversion of each Secured Convertible Debenture in accordance with its terms and (y) the Pre-Funded Warrant ADSs, the Pre-Funded Warrant Shares, the Common Warrant ADSs and the Common Warrant Shares upon exercise of any Pre-Funded Warrant or Common Warrant, in each case, is absolute and unconditional regardless of the dilutive effect that such issuance and delivery may have on the ownership interests of other shareholders of the Company.
Exhibit 10.2
(h)SEC Documents; Financial Statements. Since December 31, 2023, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). The Company has made available to each Buyer (including via the SEC’s EDGAR system) a copy of all SEC Documents, which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. None of the SEC Documents filed under the Exchange Act (except to the extent that information contained in any SEC Document has been superseded by a later timely filed SEC Document) contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of any SEC Document that is a registration statement, or included, when filed, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case of all other SEC Documents. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with IFRS and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
Exhibit 10.2
(i)Absence of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in the Company’s Annual Report on Form 20-F for the year ended December 31, 2024 (the “Annual Report”), or as otherwise disclosed therein, there has been no Material Adverse Effect, nor any event or occurrence affecting the Company or its Subsidiaries that, individually or in the aggregate, would be reasonably expected to result in a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements contained in the Annual Report, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any material assets, individually or in the aggregate, outside of the ordinary course of business consistent with past practice or (iii) made any material capital expenditures, individually or in the aggregate, outside of the ordinary course of business consistent with past practice. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, on a consolidated basis, after giving effect to the transactions contemplated hereby to occur at the Closing, are not Insolvent (as defined below). For purposes of this Section 3(k), “Insolvent” means, with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness (as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts that would be beyond their ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business or in any transaction and is not about to engage in any business or in any transaction for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.
(j)No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability or circumstance has occurred or exists, or is reasonably expected to exist or occur specific to the Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable securities laws on a registration statement filed with the SEC relating to an issuance and sale by the Company of its ADSs and which has not been publicly announced, or (ii) could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k)Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term under its By-laws (statuts), any certificate of designation, preferences or rights of any outstanding series of preferred stock
Exhibit 10.2
of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation, memorandum of association, articles of association, Articles of Incorporation or certificate of incorporation or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for violations which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any material rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that would reasonably lead to delisting or suspension of trading of the ADSs by the Principal Market in the foreseeable future. Since December 31, 2024, (i) the ADSs have been listed or designated for quotation on the Principal Market, (ii) trading in the ADSs has not been suspended by the SEC or the Principal Market and (iii) except for (1) as publicly disclosed in filings with the SEC, or (2) any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would be reasonably expected to be cured as a result of the transactions contemplated by this Agreement and the Common Equity Private Placement, the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the ADSs from the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any of its Subsidiaries has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.
(l)Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor any director, officer, agent, employee, nor any other Person acting for or on behalf of the Company or any of its Subsidiaries (individually and collectively, a “Company Affiliate”) have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, to any officer, employee or any other Person acting in an
Exhibit 10.2
official capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively, a “Government Official”) or to any Person under circumstances where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any Government Official, for the purpose, in violation of applicable law, of: (i) (A) influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official to influence or affect any act or decision of any Governmental Entity, or (ii) assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.
(m)Equity Capitalization.
(i)Authorized and Outstanding Share Capital. As of the date hereof, the share capital of the Company consists of 255,175,722 issued Ordinary Shares, fully paid, and with a par value of €0.01 each, other than the Ordinary Shares issued in the context of the Common Equity Private Placement. All of the outstanding Ordinary Shares of the Company have been duly authorized, validly issued and are fully paid and nonassessable and were issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right. Except as disclosed in the public filings, set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any share capital, or any such warrants, convertible securities or obligations. Except as previously disclosed in the Company’s public filings, the Company has no indebtedness as of the date of this Agreement.
(ii)Reserved.
(iii)Existing Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s shares, interests or share capital is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or share capital of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or
Exhibit 10.2
rights convertible into, or exercisable or exchangeable for, any shares, interests or share capital of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; and (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities.
(iv)Organizational Documents. The Company has furnished to each Buyer or filed on EDGAR true, correct and complete copies of the Company’s organizational documents, and the terms of all convertible securities and the material rights of the holders thereof in respect thereto.
(n)Indebtedness and Other Contracts. Each of the Company and the Guarantor is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of the Company or the Guarantor, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which the Company or the Guarantor is now a party or by which the Company’s or the Guarantor’s properties or assets are bound or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company, the Guarantor or any of their respective properties, except, in the case of clauses (ii) and (iii), for defaults or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Other than as set forth in the SEC Documents, neither the Company nor any of its Subsidiaries, (i) has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; or (iv) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for
Exhibit 10.2
borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with IFRS) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with IFRS, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
(o)Litigation. Except for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) proceeding pending, or, to the knowledge of the Company, threatened against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Company.
(p)Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as now conducted and presently proposed to be conducted. Except as disclosed in the SEC Documents, none of the Company’s Intellectual Property Rights, that are material to the conduct of the business, have expired or terminated or have been abandoned or are expected to
Exhibit 10.2
expire or terminate or are expected to be abandoned. The Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others except where such infringement would not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights that are material to the conduct of the business.
(q)Environmental Laws. Except, in each case, as would not be reasonably anticipated to have a Material Adverse Effect, the Company and the Subsidiaries (a) are in compliance with any and all applicable laws relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants, (b) have received and hold all material permits, licenses or other approvals required of them under all such laws to conduct their respective businesses and (c) are in compliance with all material terms and conditions of any such permit, license or approval.
(r)Tax Status. The Company and each of its Subsidiaries (i) has timely made or filed all material foreign, federal and state income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject, and (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.
(s)Internal Accounting and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that is effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including 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 IFRS and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act, as
Exhibit 10.2
applicable, is accumulated and communicated to the Company’s management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. Neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity or other Person relating to any potential material weakness or significant deficiency in any part of the internal controls over financial reporting of the Company or any of its Subsidiaries.
(t)Investment Company Status. The Company is not, and immediately after receipt of payment for the Securities will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(u)Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have, individually or in the aggregate, a Material Adverse Effect.
(v)Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries.
(w)Registration Eligibility. At Closing, the Company shall be eligible to use Form F-3 promulgated under the Securities Act.
(x)Shell Company Status. The Company is not and has never been an issuer identified in, or subject to, Rule 144(i).
(y)Sanctions Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control (“OFAC”), the United Nations Security Council, the European Union, the Republic of France, His Majesty’s Treasury, or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign
Exhibit 10.2
Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)). Neither the Company nor any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein to repay any loans to any executives or employees of the Company or to make any payments in respect of any related party debt. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the transactions contemplated herein, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five (5) years, neither the Company nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country.
(z)Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided each Buyer or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that each Buyer will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosures provided to each Buyer regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the SEC Documents, furnished by or on behalf of the Company or any of its Subsidiaries, taken as a whole, are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the other Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the
Exhibit 10.2
circumstances under which they were made, not misleading. No event or circumstance has occurred, and no information exists, with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company or any of its Subsidiaries and made available to each Buyer have been prepared in good faith based upon reasonable assumptions and represented, at the time each such financial projection or forecast was delivered to each Buyer, the Company’s best estimate of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that the actual results during the period or periods covered by any such financial projections or forecasts may differ materially from the projected or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.
(aa)No General Solicitation. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Securities.
(bb) Private Placement. Assuming the accuracy of each Buyer’s representations and warranties set forth in Section 2, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to each Buyer as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Principal Market.
(cc) Other Covered Persons. The Company is not aware of any Person, other than the Placement Agents, that has been or will be paid (directly or indirectly) remuneration for solicitation of any Buyer or potential purchasers in connection with the sale of the Secured Convertible Debentures.
(dd) Sarbanes-Oxley Act. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules and regulations promulgated thereunder or implementing provisions thereof that are then in effect.
(ee) New York Stock Exchange Approval Rules. Other than as contemplated in this Agreement, no further approval of the shareholders of the Company under the rules and regulations of the New York Stock Exchange is required for the Company to issue and deliver the Conversion ADSs to the Buyers.
(ff) Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and
Exhibit 10.2
operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and to the Company’s knowledge, are free and clear of all material Trojan horses, time bombs, malware and other malicious code. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls designed to maintain and protect the confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data (“Confidential Data”) used or maintained in connection with their businesses and Personal Data (defined below), and the integrity, availability continuous operation, redundancy and security of all IT Systems. “Personal Data” means the following data used in connection with the Company’s and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or other tax identification number, driver’s license number, passport number, credit card number or bank information; (ii) information that identifies or may reasonably be used to identify an individual; (iii) any information that would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (iv) any information that would qualify as “personal data,” “personal information” (or similar term) under the Privacy Laws (as defined below). To the Company’s knowledge, there have been no breaches, outages or unauthorized uses of or accesses to the Company’s IT Systems, Confidential Data, or Personal Data that would require notification under Privacy Laws.
(gg) Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state, federal and foreign data privacy and security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer, disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data, including without limitation HIPAA, the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) No. 2016/679), all other local, state, federal, national, supranational and foreign laws relating to the regulation of the Company or its subsidiaries, and the regulations promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof (collectively, the “Privacy Laws”), except where failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure compliance with their policies and procedures relating to data privacy and security, and the Processing of Personal Data and Confidential Data (the “Privacy Statements”), except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, at all times since inception provided accurate notice of their Privacy Statements then in effect to its customers, employees, third party vendors and representatives. Except as would not reasonably be expected, individually or in the aggregate, to result in a
Exhibit 10.2
Material Adverse Effect, none of such disclosures made or contained in any Privacy Statements have been materially inaccurate, misleading, incomplete, or in material violation of any Privacy Laws.
(hh) Other Agreements. Each other secured convertible debenture purchase agreement entered into with each other Buyer reflects the same Purchase Price and other terms and conditions with respect to the purchase of the Secured Convertible Debentures and Common Warrants that are no more favorable to such other Buyer thereunder than the terms of this Agreement. Notwithstanding the foregoing, in any such other purchase agreements, Hudson Bay PH XVI Ltd. shall be identified as the collateral agent, the Required Holders definition shall be identical to the definition used in this Agreement, and the buyers that are counterparties to any such purchase agreement shall not be entitled to expense reimbursement as is set forth in Section 4(f) of this Agreement. The Company shall not make any payment of principal or interest on the Secured Convertible Debentures in amounts which are disproportionate to the respective principal amounts outstanding on the Secured Convertible Debentures at any applicable time. In addition, no consideration (including any modification of any Transaction Document) shall be offered or paid to any Person in connection with any amendment to, or waiver or modification of, any provision of any Transaction Document, unless the same consideration is also offered to all other Persons who are parties to such Transaction Document (and only to such Persons) on a proportionate basis (based on the then outstanding principal amount of the Secured Convertible Debentures as of the time of determination), it being understood that no Person shall be entitled to any such consideration in respect of a Transaction Document to which such Person is not a party; provided that for purposes of the foregoing, the participation by any Person in any future financing provided to the Company or its affiliates does not constitute consideration. For clarification purposes, (i) this provision constitutes a separate right granted to each Buyer by the Company and negotiated separately by each Buyer, and is intended for the Company to treat the Buyers as a class and shall not in any way be construed as the Buyers acting in concert or as a group with respect to the purchase, disposition or voting of securities or otherwise and (ii) neither this provision, nor anything else contained herein shall require that all Buyers be given pro rata participation rights in any future financing provided to the Company or its affiliates by Hudson Bay PH XVI Ltd., or its affiliates.
4. COVENANTS.
(a)Reporting Status. For the period beginning on the date hereof, and ending six (6) months after the date on which all of the Secured Convertible Debentures are no longer outstanding (the “Reporting Period”), the Company shall file on a timely basis all reports required to be filed with the SEC pursuant to the Exchange Act, so long as the Company remains subject to such requirements to enable each Buyer to resell the Securities pursuant to Rule 144. The Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would otherwise no longer require such reporting or permit such termination.
Exhibit 10.2
(b)Use of Proceeds. The net proceeds from the sale of the Securities and the Common Equity Private Placement shall be used by the Company for the purchase of Bitcoin (as defined in the Secured Convertible Debentures), and general and administrative costs and expenses related to the implementation of the Bitcoin treasury strategy, not to exceed eight hundred thousand dollars ($800,000), subject in all respects to Section 19 of the Secured Convertible Debentures. The Company shall not, without the prior written consent of the Required Holders (as defined below), loan, invest, transfer or “downstream” any cash proceeds, or assets or property acquired with cash proceeds from the issuance and sale of the Secured Convertible Debentures (other than Bitcoin that has been released from Collateral (as defined in the Security Documents) pursuant to the Guaranty and Security Agreement and any proceeds therefrom) to any Subsidiary, other than the Bitquans Holdings, LLC (the “Digital Asset Subsidiary”), for so long as it remains a Guarantor, unless the Buyers and such Subsidiary enter into a guarantee in form and substance acceptable to the Required Holders. For the avoidance of doubt, proceeds from the sale of Securities shall not include any proceeds received in respect of the exercise of the Common Warrants.
(c)Listing. To the extent applicable, the Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying Securities (as defined below) on the Principal Market, subject to official notice of issuance, and shall use reasonable efforts to maintain such listing or designation for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents on such Principal Market for the Reporting Period. Neither the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the ADSs on a Principal Market during the Reporting Period. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(d). “Underlying Securities” means the (i) the Conversion ADSs, (ii) the Pre-Funded Warrant ADSs, (iii) the Common Warrant ADSs, and (iv) any ADSs of the Company issued or issuable with respect to the Conversion Shares, Pre-Funded Warrant Shares or Common Warrant Shares, including, without limitation, (1) as a result of any share split, dividend, recapitalization, exchange or similar event or otherwise and (2) shares of share capital of the Company into which the ADSs or Ordinary Shares are converted or exchanged without regard to any limitations on conversion of the Secured Convertible Debentures, any Pre-Funded Warrant or any Common Warrant.
(d)Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that, subject to compliance with applicable federal and state securities laws, the Securities may be pledged by a Buyer in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.
Exhibit 10.2
(e)Disclosure of Transactions and Other Material Information.
(i)Disclosure of Transactions. The Company shall, on or before 9:30 a.m. New York City time on the first Business Day after the date of this Agreement, file with the SEC a current report on Form 6-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction Documents (including, required exhibits, the “Current Report”). From and after the filing of the Current Report, the Company shall have publicly disclosed all material, non-public information (if any) provided to the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents or otherwise regarding the Company or any of its Subsidiaries. In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality or similar obligations with respect to the transactions contemplated by the Transaction Documents under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any Buyer or any of its affiliates, on the other hand, shall terminate.
(ii)Limitations on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide any Buyer with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the date hereof without first obtaining the express prior written consent of such Buyer (which may be granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates, shareholders or agents, for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its
Exhibit 10.2
Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 6-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that, in the case of clause (i) of this sentence, the Buyers shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release and the Company shall consider any such Buyer’s comments to such press release or other public disclosure, if any, in good faith). Without the prior written consent of the applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries.
(iii)Other Confidential Information. Disclosure Failures. In addition to other remedies set forth in this Section 4(e), and without limiting anything set forth in any other Transaction Document, at any time after the Closing Date if the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any Buyer with material non-public information relating to the Company or any of its Subsidiaries (each, the “Confidential Information”), the Company shall, on or prior to the applicable Required Disclosure Date (as defined below), publicly disclose such Confidential Information on a Current Report on Form 6-K or otherwise (each, a “Disclosure”). From and after such Disclosure, the Company shall have disclosed all Confidential Information provided to such Buyer by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any Buyer or any of its affiliates, on the other hand, shall terminate. “Required Disclosure Date” means (x) if such Buyer authorized the delivery of such Confidential Information, either (I) if the Company and such Buyer have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure of such Confidential Information, such agreed upon date or (II) otherwise, the seventh (7th)
Exhibit 10.2
calendar day after the date such Buyer first received any Confidential Information or (y) if such Buyer did not authorize the delivery of such Confidential Information, the first (1st) Business Day after such Buyer’s receipt of such Confidential Information.
(f)Fees. The Company shall pay for the reasonable and documented out of pocket due diligence and legal fees and expenses actually incurred by the Buyers in connection with the structuring, documentation, negotiation, and closing of the transactions contemplated by the Transaction Documents in an amount not to exceed two hundred seventy five thousand dollars ($275,000), including, without limitation, all consultant fees, all reasonable legal fees and disbursements of Latham & Watkins LLP, counsel to the Buyers, and due diligence and regulatory filings in connection therewith, and all legal fees and expenses of the Buyers and the Collateral Agent in connection with implementing and perfecting security interests (the “Transaction Expenses”) and such Transaction Expenses, to the extent they have not already been paid to the Buyer, may be withheld by the Buyers from its Purchase Price at the Closing. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, Depositary fees, The Depository Trust Company (“DTC”) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and reasonable and documented out-of-pocket expenses) arising in connection with any claim relating to any such payment.
(g)Except as expressly set forth below, each Buyer covenants that from and after the date hereof through and ending upon the date upon which the Secured Convertible Debenture purchased by it is no longer outstanding (the “Restricted Period”), no such Buyer or any of its officers, or any entity managed or controlled by such Buyer or under common control with such Buyer (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly, maintain a Net Short Position (as defined below). For purposes hereof, a “Net Short Position” by a person means a position whereby such Person has executed one or more sales of the ADSs that is marked as a short sale (but not including any sale marked “short exempt”) and that is executed at a time when such Person has no equivalent offsetting “long” position in the ADSs (or is deemed to have a long position in accordance with Regulation SHO of the 1934 Act); provided, that, for purposes of such calculations, any short sale either (x) that is a result of a bona-fide trading error on behalf of such Person (or its affiliates) or required to be marked “short” by the broker of such Person at such time as such trade is not required to be marked “short” pursuant to Regulation SHO of the 1934 Act or (y) that would otherwise be marked as a “long” sale, but for the occurrence of a breach of any term or condition of any security or agreement, in each case, by the Company or its Depositary or transfer agent, as applicable, shall be excluded from such calculations. For purposes of determining whether a Person has an equivalent offsetting “long” position in the ADSs, (A) all of the ADSs that are owned by such Person shall be deemed held “long” by such
Exhibit 10.2
Person and (B) any of the ADSs issuable upon conversion and/or exercise of any convertible security, warrant and/or option of the Company (without regard to any limitations on conversion or exercise thereof) shall be deemed held “long” by such Person, until such time as such Person shall no longer own such convertible security, warrant or option. Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) ADSs or (2) selling a number of Ordinary Shares equal to the number of Conversion Shares that such Restricted Person is entitled to receive upon the conversion and/or exercise of any convertible security, warrant and/or option of the Company, without giving effect to any limitation on the conversion of any such convertible securities, warrants and/or options held by such Restricted Person (and any such sales permitted by this clause (2) may be marked as "short" pursuant to Regulation SHO).
(h)Existence. Subject to Section 4(i), the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. In accordance with the provisions of Article L. 228-98 of the French Commercial Code, the Company may change its corporate form or corporate purpose without requesting the approval of the Buyers or holders of the Secured Convertible Debentures; provided that unless the Company receives the approval of the Required Holders, the Company’s corporate form must be: (1) a société anonyme or société en commandite par actions, in either case, registered under the laws of France or (2) a corporation or entity treated as a corporation for U.S. federal income tax purposes.
(i) Company May Consolidate, Etc. on Certain Terms. The Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its direct and indirect Subsidiaries, taken as a whole, to another Person (other than any such sale, conveyance, transfer or lease to one or more of the Company’s direct or indirect wholly owned subsidiaries), unless (i) the resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be (1) a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia or (2) a corporation or entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of France; (ii) the Successor Company, if not the Company, expressly assumes all of the Company’s obligations under this Agreement and the other Transaction Documents pursuant to documentation that is acceptable to the Required Holders of the Secured Convertible Debentures; and (iii) and immediately after giving effect to such transaction, no Default or Event of Default (as defined in the Secured Convertible Debenture) shall have occurred and be continuing.
Exhibit 10.2
(j) Perfection. The Lien of the Collateral Agent on all Collateral is and shall at all times be subject to a perfect, first priority in favor of the Collateral Agent, for itself and on behalf of the Secured Parties.
(k) Security Documents. The representations and warranties set forth in each of the Security Documents (as defined in the Secured Convertible Debenture) shall be true and correct in all material respects as therein provided.
(l) Resolution. Prior to the Closing Date, the Company shall hold a general meeting of shareholders of the Company on or before June 30, 2025 approving a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital and up to a maximum nominal amount of €250,000,000 in debt instruments that represent claims against the Company with subscriptions reserved to specific categories of investors including (i) QIBs or (ii) IAIs (the “Reserved Issuances”) and any other approvals required under applicable laws and the rules of the Principal Market in order to consummate the issuance of the Securities and the securities to be issued in the Common Equity Private Placement (the “Resolution”).
(m) Additional Issuance of Company Securities.
(i)The Company agrees that, without the prior written consent of the Required Holders for the period commencing on the date hereof and ending upon the date that is ninety (90) days after the effectiveness date of the Transaction Shelf Registration Statement (as defined in the Registration Rights Agreement) covering all of the Registrable Securities (as defined in the Registration Rights Agreement) (such period, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any debt security, equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Securities Act), any Convertible Securities (as defined below), any preferred stock or any purchase rights) (collectively a “Securities Issuance”). Notwithstanding the foregoing, this Section 4(m)(i) shall not apply during the Restricted Period in respect of (A) the issuance of Options (as defined below) or Convertible Securities issued under any Approved Stock Plan (as defined below), so long as (i) the aggregate number of shares issued and issuable pursuant thereto does not exceed 5% of the Ordinary Shares issued and outstanding immediately prior to the date hereof and (ii) the exercise price of any such Options is not lowered and the conversion price of any such Convertible Securities is not lowered, none of such Options or Convertible Securities are amended to increase the number of shares issuable
Exhibit 10.2
thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers, (B) the issuances of Conversion Shares, (C) the Common Equity Private Placement or (D) an Exempt At-the-Market Offering (as defined below). An “Approved Stock Plan” means any security-based compensation plan which has been approved by the Board of Directors of the Company prior to the date hereof (or any subsequent amendments thereto), pursuant to which Ordinary Shares, options to purchase Ordinary Shares and other incentive equity awards may be issued to any employee, officer, consultant or director for services provided to the Company in their capacity as such, and not for the purpose of raising capital, pursuant to any consulting agreement, advisory agreement or independent contractor agreement approved by the Board of Directors or the compensation committee thereof. “Convertible Securities” means any capital stock, partnership interests or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock, partnership interests, or other security of the Company (including, without limitation, ordinary shares, partnership interests and any rights, warrants or options to subscribe for or purchase ordinary shares or partnership interests or Convertible Securities (collectively, “Options”)) or any of its Subsidiaries.
(ii)So long as any Secured Convertible Debentures remain outstanding, the Company and each of its Subsidiaries shall be prohibited from effecting, or entering into an agreement directly or indirectly to effect a Variable Rate Transaction, except with respect to an Exempt At-the-Market Offering. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (A) issues or sells any Convertible Securities either (i) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Ordinary Shares or the ADSs at any time after the initial issuance of such Convertible Securities, or (ii) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares or the ADSs, other than pursuant to customary adjustments for stock splits, stock dividends, stock combinations, ratio adjustments, recapitalizations and similar events or (B) enters into any agreement (including, without limitation, an equity line of credit) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). “Exempt At-the-Market Offering” means an at-the-market offering within the meaning of Rule 415(a)(4) of the Securities Act (an “ATM Offering”) of solely the ADSs in which (i) the aggregate daily volume of ADSs sold on any Trading Day does not exceed (x) 2% of the Total Composite Volume for such Trading Day, if
Exhibit 10.2
sold at a price that equals or exceeds 110% of the then-current Conversion Price (as defined in the Secured Convertible Debenture), (y) 3% of the Total Composite Volume for such Trading Day, if sold at a price that equals or exceeds 125% of the then-current Conversion Price, or (z) 5% of the Total Composite Volume for such Trading Day, if sold at a price that equals or exceeds 150% of the then-current Conversion Price, (ii) the aggregate daily volume of ADSs sold on any Trading Day does not exceed 3% of the Total Composite Volume for such Trading Day, if the aggregate sale price of all ADSs sold pursuant to this clause (ii) does not exceeds five million dollars ($5,000,000) during the prior trailing one-year period; provided, however, that (I) sales may not be made pursuant to either clause (i)(y) or (i)(z) of the definition of Exempt At-the-Market Offering during the same Trading Day as sales are made pursuant to this clause (ii) of the definition of Exempt At-the-Market Offering, and (II) if sales are made on the same Trading Day pursuant to both and clauses (i)(x) and (ii) of the definition of Exempt At-the-Market Offering, the Total Composite Volume limit under clause (ii) shall be 1% rather than 3%, or (iii) the sales price (without volume limitation) equals or exceeds 200% of the then-current Conversion Price; provided, however, during the first sixty (60) days following the effective date of the Transaction Shelf Registration Statement covering all of the Registrable Securities, the Company shall not sell any securities in an ATM Offering other than pursuant to clause (ii) of the definition of Exempt At-the-Market Offering at a price less than 150% of the then-current Conversion Price. For the avoidance of doubt, any sale of ADSs at a price below 110% of the then-current Conversion Price other than pursuant to clause (ii) of the definition of Exempt At-the-Market Offering shall not qualify as an Exempt At-the-Market Offering. "Total Composite Volume" shall mean the aggregate number of ADSs traded across all relevant exchanges and trading platforms, as reported by Bloomberg L.P. This volume shall encompass all transactions executed during regular trading hours, and shall exclude any pre-market or after-hours trading sessions. Upon the request of the Required Holders, the Company shall provide the Required Holders with the number of ADSs sold by the Company pursuant to any ATM Offering since the Required Holders previously requested such information, along with a confirmation from the Company that such information does not constitute material non-public information; provided, however that the Required Holders may not submit such a request more frequently than once every ten (10) Business Days.
(n) Tax Treatment. The parties hereto agree that (i) the Secured Convertible Debentures and the Common Warrants issued hereunder to the Buyers shall be treated as an “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder, (ii) the issue price of the investment unit will be allocated between the Secured Convertible Debentures and the Common Warrants based on their relative fair market values on the Closing Date for U.S. federal income tax purposes, as determined collectively by the Company and the Required Holders acting in good faith, and (iii) no party hereto shall take a position contrary to the
Exhibit 10.2
foregoing on any tax return unless required by an applicable change in law after the Closing Date or the good faith resolution of a tax audit or other tax proceeding.
5. REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a)Register. The Company shall maintain at its principal executive offices or with its transfer agent (or at such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Secured Convertible Debentures in which the Company shall record the name and address of the Person in whose name each Secured Convertible Debenture has been issued (including the name and address of each transferee), and the amount of the Secured Convertible Debenture held by such Person. The Company shall keep the register open and available at all times during business hours for inspection by the Buyers, any subsequent holder and their respective legal representatives. The Company hereby irrevocably agrees that it shall not require medallion guarantees in connection with any assignments or transfers of the Secured Convertible Debentures, Conversion ADSs, Pre-Funded Warrant ADSs or Common Warrant ADSs by a Buyer to any third party. The Company hereby authorizes its then-current transfer agent to rely on the foregoing and the Company hereby indemnifies and agrees to hold its then-current transfer agent harmless from any liability related to its complying with the foregoing. Upon request by a Buyer, the Company further agrees to promptly provide its then-current transfer agent with additional authorizations or indemnifications as may so request. Each Secured Convertible Debenture is intended to be in “registered form” within the meaning of Section 5f.103-1(c) of the United States Treasury Regulations.
(b)Transfer Restrictions. The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Buyer or in connection with a pledge as contemplated herein, the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Buyer under this Agreement.
(c)Conversion and Exercise Procedures. The form of Conversion Notice included in each Secured Convertible Debenture sets forth the totality of the procedures required of each Buyer in order to convert the Secured Convertible Debenture held by it. Except as provided in Section 2(f) and Section 5(b), no additional legal opinion, other information or instructions shall be required of any Buyer to convert the Secured Convertible Debenture held by it. The Company shall honor conversions of the Secured Convertible Debentures and shall deliver the Conversion ADSs, Pre-Funded Warrants or Common Warrants in accordance
Exhibit 10.2
with the terms, conditions and time periods set forth in the Secured Convertible Debenture. The Company shall honor conversions of the Pre-Funded Warrants and shall deliver the Pre-Funded Warrant Shares in accordance with the terms, conditions and time periods set forth in any Pre-Funded Warrant. The Company shall honor conversions of the Common Warrants and shall deliver the Common Warrant Shares in accordance with the terms, conditions and time periods set forth in any Common Warrant. For all purposes of this Agreement, and without limiting the generality of any provision hereof, every reference to the Company’s “Ordinary Shares” or “ADSs” or any similar term shall be construed to include, mutatis mutandis, any securities issued in exchange for, substitution of, or as a successor to such equity interests, whether by way of reclassification, recapitalization, share split, reverse share split, consolidation, amalgamation, merger, scheme of arrangement, or any other corporate or market transaction.
6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell a Secured Convertible Debenture to each Buyer at the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing such Buyer with written notice thereof:
(a)The forms of Transaction Documents (other than this Agreement, the Secured Convertible Debentures and the Security Agreement, which shall be in the forms agreed upon herein) shall be in form and substance reasonably satisfactory to the Company.
(b)The Resolution shall have been obtained.
(c)Each Buyer and the Collateral Agent each shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.
(d)Each Buyer shall have delivered to the Company its Purchase Price (less the amounts withheld pursuant to Section 4(e)) for the Secured Convertible Debenture and/or Common Warrants to be purchased by it pursuant to this Agreement by wire transfer of immediately available funds in accordance with a letter, duly executed by an officer of the Company, setting forth the wire amounts of such Buyer and the wire transfer instructions of the Company (the “Closing Statement”).
(e)The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of the Closing as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specific date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Closing.
Exhibit 10.2
7. CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE.
The obligation of each Buyer hereunder to purchase the Secured Convertible Debenture to be purchased by it pursuant to this Agreement at the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions, provided that these conditions are for the Buyers sole benefit and may be waived by a Buyer (but solely with respect to itself) at any time in its sole discretion by providing the Company with written notice thereof:
(a)The forms of Transaction Documents (other than this Agreement, the Secured Convertible Debenture and the Security Agreement, which shall be in the forms agreed upon herein) shall be in form and substance reasonably satisfactory to such Buyer.
(b)The Company, each Guarantor (as defined in the Security Agreement), each Grantor (as defined in the Security Agreement) and the Collateral Agent each shall have duly executed and delivered to such Buyer each of the Transaction Documents to which it is a party, together with a Perfection Certificate, in form and substance satisfactory to such Buyer and the Collateral Agent, and the Company shall have duly executed and delivered to such Buyer a Secured Convertible Debenture with a principal amount corresponding to the Subscription Amount set forth opposite such Buyer’s name on the Schedule of Buyers attached hereto as Schedule I for the Closing.
(c)The Resolution and the board of directors’ resolution approving the issuance of the Secured Convertible Debenture shall have been obtained and shall have not been amended, rescinded or modified and remain in full force and effect as of such Closing.
(d)The Company shall have completed a common equity financing for gross proceeds in an amount not less than one hundred ninety five million dollars ($195,000,000), on terms and conditions reasonably satisfactory to such Buyer.
(e)The Company shall have delivered to such Buyer certified copies of its and each of its Subsidiaries’ charter, bylaws, operating agreement and shareholders’ agreement (or any similar organizational documents), as applicable.
(f)Each of the Company and the Guarantor shall have delivered to such Buyer and the Collateral Agent a certificate evidencing the incorporation and good standing of the Company and the Guarantor, as applicable as of a date within ten (10) days of the Closing Date.
(g)Each and every representation and warranty of the Company shall be true and correct in all material respects (other than representations and warranties qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of the Closing as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specific date) and the Company
Exhibit 10.2
shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions set forth in each Transaction Document required to be performed, satisfied or complied with by the Company at or prior to the Closing.
(h)(i) (A) The ADSs shall be listed on the Principal Market and (B) shall not have been suspended, as of the Closing, by the SEC or the Principal Market from trading on the Principal Market and (ii) after the closing of the transactions contemplated by this Agreement and the Common Equity Private Placement, the Company shall meet the minimum continued listing requirements of the NYSE
(i)The Company shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the issuance and sale of the Securities (and the guaranty thereof by the Guarantor), including without limitation, those required by the Principal Market, if any.
(j)No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(k)Since the date of execution of this Agreement, no event or series of events shall have occurred that has resulted in or would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect or an Event of Default.
(l)The Company shall have obtained approval of the Principal Market to list the maximum number of Conversion ADSs issuable pursuant to the Secured Convertible Debentures issued upon conversion of any Secured Convertible Debenture (or portion thereof) to be issued at the Closing and the maximum number of Pre-Funded Warrant ADSs or Common Warrant ADSs issuable pursuant to the Pre-Funded Warrants or Common Warrants, as applicable.
(m)Such Buyer shall have received the Closing Statement.
(n)(i) From the date hereof to the Closing, trading in the ADSs shall not have been suspended by the SEC or the Principal Market, and (ii) at any time from the date hereof to the Closing, trading in the securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing.
(o)(i) The board of directors of the Company has approved the transactions contemplated by the Transaction Documents, (ii) said approval has not been
Exhibit 10.2
amended, rescinded or modified and remains in full force and effect as of such Closing, and (iii) a true, correct and complete copy of such approval duly adopted by the board of directors of the Company shall have been provided to such Buyer.
(p)The Company shall have delivered to such Buyer and the Collateral Agent a compliance certificate executed by the chief executive officer of the Company certifying that Company has complied with all of the conditions precedent to the Closing set forth herein and which may be relied upon by such Buyer as evidence of satisfaction of such conditions without any obligation to independently verify such satisfaction.
(q)The Collateral Agent shall have received (A) all customary UCC, tax, pending litigation, judgment, bankruptcy and other diligence searches (and the foreign equivalent thereof for any foreign Subsidiary), in each case, reasonably requested by the Collateral Agent following delivery of the final, updated Perfection Certificate referred to above and (B) payoff letters and UCC-3 Amendment (termination statements) requested by the Collateral Agent for debt or Liens not permitted pursuant to the terms of the Transaction Documents (if any).
(r)Such Buyer shall have received the opinion of Lowenstein Sandler LLP, the Company’s U.S. Counsel, and ARCHERS (AARPI), the Company’s French Counsel, dated as of the Closing Date, each in form and substance reasonably acceptable to such Buyer.
(s)The Company shall have delivered the Control Agreements (as defined in the Secured Convertible Debenture), in form and substance reasonably satisfactory to the Collateral Agent, perfecting the Lien of the Collateral Agent in the Cash Collateral Account and in the Bitcoin Escrow Account (with Coinbase as the custodian of the Bitcoin Escrow Account).
(t) All costs, fees, expenses (including, without limitation, legal fees and expenses) contemplated hereby to be payable to the Buyers shall have been paid to the extent due and, in the case of expenses of the Buyers that are reimbursable in accordance herewith, invoiced at least one day prior to the Closing Date.
(u) The Company and its Subsidiaries shall have delivered to such Buyer such other customary documents, instruments or certificates relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
8. TERMINATION.
In the event that the Closing shall not have occurred by July 18, 2025, then each Buyer shall have the right to terminate its obligations under this Agreement at any time at or after the close of business on such date without liability of such Buyer to any other party, including the Company; provided, however, (i) the right to terminate this Agreement under this Section 8 shall not be available to such Buyer if the failure of the transactions contemplated by this Agreement to have been consummated by such date is the result of such Buyer’s breach of this Agreement
Exhibit 10.2
and (ii) such termination shall not affect any obligation of the Company under this Agreement to reimburse any Buyer for its expenses as described herein. Nothing contained in this Section 8 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents prior to the valid termination hereof or thereof or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.
9. COLLATERAL AGENT.
(a)Appointment; Authorization. Each Secured Party hereby irrevocably appoints, designates and authorizes Hudson Bay PH XVI Ltd., an exempted company organized under the laws of the Cayman Islands, as Collateral Agent to take such action on its behalf under the provisions of this Agreement and each other Transaction Document and to exercise such powers and perform such duties as are expressly deleted to it by the terms of this Agreement and the other Transaction Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Transaction Document, the Collateral Agent shall not have any duty or responsibility except those expressly set forth herein or in such other Transaction Document, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with any Buyer, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Transaction Document or otherwise exist against the Collateral Agent.
(b)Delegation of Duties. The Collateral Agent may execute any of its duties under this Agreement or any other Transaction Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact it selects with reasonable care. Without limiting the generality of the powers of the Collateral Agent, as set forth above, the Collateral Agent is hereby authorized to act as collateral agent for any Buyer pursuant to each of the Transaction Documents. In such capacity, the Collateral Agent has the right to exercise all rights and remedies available under the Transaction Documents, the Uniform Commercial Code and other applicable law, as directed by the Required Holders. Without limiting the generality of the powers of the Collateral Agent, as set forth above, the Collateral Agent is hereby authorized to, at the direction of the Required Holders: (i) to file proofs of claim and other documents on behalf of the Buyers, (ii) object or consent to the use of collateral, (iii) object or consent to any proposed debtor-in-possession financing, whether provided by a Buyer or any other Person and whether secured by Liens with priority over the Liens securing the Debenture Obligations (as defined in the Security Agreement) or otherwise, (iv) object to consent to the sale of Collateral, (v) to be, or form, an acquisition entity to be, the purchaser of any or all of such Collateral at any such sale under clause (iv) and to offset any of the obligations against the purchase price payable by the Collateral Agent (or such acquisition entity at such sale or otherwise consent to a reduction of the Debenture Obligations as consideration to the
Exhibit 10.2
applicable Issuer Party (as defined in the Security Agreement)), and (vi) to seek, object or consent to any Issuer Party’s provision of adequate protection of the interests of the Collateral Agent and/or the Buyers in the Collateral.
(c)Limited Liability. None of the Collateral Agent or any of its directors, officers, employees or agents shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Transaction Document (except to the extent resulting form its own gross negligence or willful misconduct, in each case, as determined by a court of competent jurisdiction in a final, non-appealable order) or (ii) be responsible in any manner to any Buyer for any recital, statement, representation or warranty made by the Company or any of its Subsidiaries or any Affiliate thereof or any officer thereof contained in this Agreement or any other Transaction Document or any document, certificate or other instrument delivered by or on behalf of the Company and its Subsidiaries, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document (including the creation, perfection or priority of any Lien or security interest therein).
(d)Reliance. The Collateral Agent shall be entitled to rely, and be fully protected in relying, upon any writing, resolution, notice, consent, certificate, letter, facsimile, or other statement, message or document believed by it to be genuine and correct and to have been signed, sent or made by the property Person or Persons, and upon the advice of counsel (which includes counsel to any Issuer Party) independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless it shall first receive such advice or concurrence of the Required Holders or all of the Buyers as it deems appropriate and, if it so requests, confirmation from the Buyers of their obligation to indemnify the Collateral Agent.
(e)Indemnification. A Buyer shall indemnify upon demand the Collateral Agent and its directors, officers, employees and agents (to the extent not reimbursed by the Company and without any obligation of the Company to do so), based on the Buyer’s pro rata holdings of the outstanding aggregate principal amount of the Debentures, from and against any and all actions, causes of actions, suits, losses, liabilities, damages and expenses, except to the extent thereof results from the applicable Person’s own gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order. Without limiting the foregoing, each Buyer shall reimburse the Collateral Agent upon demand for its ratable share of any reasonable and documented costs or out-of-pocket expenses incurred by the Collateral Agent in respect of rights or responsibilities of the Collateral Agent under this Agreement or any other Transaction Document. The undertaking in this Section (9)(e) shall survive the repayment of the Debenture Obligations, the cancellations of the Secured Convertible Debentures, and the cancellation or termination of the Transaction Documents.
Exhibit 10.2
(f)Successor Agent. The Collateral Agent may resign as Collateral Agent at any time upon thirty (30) days’ prior written notice to the Buyers and the Company. If the Collateral Agent resigns, the Required Holders shall, with the consent of the Company in the absence of any Event of Default, which consent shall not be unreasonably withheld, conditioned or delayed, appoint from among the Buyers a successor collateral agent. If no successor collateral agent is appointed prior to the effective date of the resignation of the Collateral Agent, the resigning Collateral Agent may appoint, after consulting with the Buyers and, so long as no Event of Default then exists, the Company, as successor collateral agent. Upon the acceptance of its appointment as successor Collateral Agent hereunder, such successor collateral agent shall succeed to all rights, powers and duties of the requiring Collateral Agent and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as Collateral Agent shall be terminated. After any retiring Collateral Agent’s resignation hereunder, the provisions of this Section (9) and Section (10)(h) shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent. If no successor collateral agent has accepted appointment as Collateral Agent by the date which is thirty (30) days following a retiring Collateral Agent’s notice of resignation, the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective and the Required Holders shall perform all of the duties of Collateral Agent hereunder until such time, if any, as the Required Holders appoint a successor collateral agent as hereinabove provided.
(g)Collateral Agent Individually. Hudson Bay PH XVI Ltd. may make loans to and provide credit for the account of and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Company and its Subsidiaries and any Affiliate thereof as though Hudson Bay PH XVI Ltd. were not Collateral Agent hereunder and without notice to or consent of any Buyer. Each of the Buyers and each other Secured Party acknowledges that, pursuant to such activities, Hudson Bay PH XVI Ltd. and its Affiliates may receive information regarding the Company and its Subsidiaries and Affiliates, and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them.
(h)As used herein,
(i) “Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of a Buyer Investor shall be deemed to be an “Affiliate” of a Buyer.
(ii) “Required Holders” means, (a) prior to the Closing Date, each Buyer entitled to purchase Secured Convertible Debentures at the Closing, and (b) on or after the Closing Date, holders of a majority in aggregate outstanding principal amount of Secured Convertible Debentures as of the time of determination; provided that such majority must include Hudson Bay PH XVI Ltd., so long as
Exhibit 10.2
Hudson Bay PH XVI Ltd. or any of its Affiliates hold any Secured Convertible Debentures.
(iii) “Secured Parties” means, collectively, (a) the Collateral Agent and each Buyer, and after the Closing, each holder of a Secured Convertible Debenture and (b) as otherwise defined in a Security Document.
10. MISCELLANEOUS.
(a)Governing Law. This Agreement and the rights and obligations of the parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction, validity and performance.
(b)Jurisdiction; Venue; Service.
(i) The Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the State of New York (the “Governing Jurisdiction”) and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of the United States District Court for the Southern District of New York.
(ii) The Company agrees that venue shall be proper solely in courts of the State of New York sitting in the Borough of Manhattan in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof. The Company waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue or inconvenience of forum.
(iii) Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise, brought by the Company against a Buyer arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The Company shall not file any counterclaim against a Buyer in any suit, claim, action, litigation or proceeding brought by a Buyer against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which a Buyer brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by a Buyer against the Company. The Company agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding brought by the Company against a Buyer in any court outside the Governing
Exhibit 10.2
Jurisdiction should be dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against a Buyer arising out of or based upon this Agreement or any matter relating to this Agreement or any other Transaction Document, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by applicable law, in such federal court. The Company and the Buyers agree that a final judgment in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(iv) Each Buyer irrevocably consents to the service of process out of any of the aforementioned courts in any such suit, claim, action, litigation or proceeding in any manner provided for notices in this Agreement. The Company has irrevocably appointed the Digital Asset Subsidiary, with offices at c/o Capitol Services, Inc., with 108 Lakeland Avenue, Dover DE, Kent County 19901, as its authorized agent for service of process upon which process may be served in any such suit or proceeding arising under this Agreement or any other Transaction Document, and the Company agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to the address provided in Section 10(g), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding arising under this Agreement or any other Transaction Document. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of five years from the date of this Agreement.
(v) To the extent that the Company or any of its properties, assets or revenues is or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement, any other Transaction Document or the Deposit Agreement, the Company hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement.
Exhibit 10.2
(vi) Nothing herein shall affect the right of a Buyer to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.
(c) THE PARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY MATTER RELATING TO THIS AGREEMENT, OR ANY OTHER TRANSACTION DOCUMENT, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND THAT THE PARTIES EACH MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL OF THEIR RESPECTIVE CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION, WITHOUT A JURY.
(d) Counterparts. This Agreement may be executed in two (2) or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
(e) Headings; Gender. The headings of this Agreement are only for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.
(f) Entire Agreement, Amendments. This Agreement supersedes all other prior oral or written agreements between the Buyers, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders; provided that if any amendment, modification or waiver disproportionately and adversely impacts the rights of a Buyer (or group of Buyers) with respect to the Collateral, the consent of such disproportionately impacted Buyer (or group of Buyers) shall also be required. As a material inducement for the Buyers to enter into this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of
Exhibit 10.2
its advisors or any of its representatives shall affect a Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document is expressly preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents shall affect a Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document.
(g) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing by letter and email and will be deemed to have been delivered: upon (A) receipt, when delivered personally, (B) one (1) Business Day after deposit with an overnight courier service with next day delivery specified or (C) delivery, when sent by electronic mail (provided the sender does not receive a “bounce-back” or other non-delivery notification following such delivery, in each of the foregoing cases, properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be:
If to the Company, to:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
with a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
Exhibit 10.2
If to a Buyer, to its address and e-mail address set forth on the Schedule of Buyers or to such other address, e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (x) given by the recipient of such notice, consent, waiver or other communication, (y) electronically generated by the sender’s e-mail service provider containing the time, date, recipient e-mail address or (z) provided by an overnight courier service shall be rebuttable evidence of personal service or receipt in accordance with clause (A), (B) or (C) above, respectively.
(h) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of a Secured Convertible Debenture (or any portion thereof) (but excluding any purchasers of Underlying Securities, unless pursuant to a written assignment by a Buyer). The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Required Holders. In connection with any transfer of any or all of its Securities, a Buyer may assign all or a portion of its rights and obligations hereunder in connection with such Securities without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such transferred Securities.
(i) No Strict Construction. The language used in this Agreement will be deemed to be the language mutually chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
(j) Judgment Currency.
(i)If for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 10(j) referred to as the “Judgment Currency”) an amount due in U.S. Dollars under this Agreement or any other Transaction Document, the conversion shall be made at the Exchange Rate prevailing on the Business Day immediately preceding.
(1)the date actual payment of the amount due, in the case of any proceeding in the Court of Chancery of the State of Delaware or in the courts of any other jurisdiction that will give effect to such conversion being made on such date; or
(2)the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 10(j)(i)(2) being hereinafter referred to as the “Judgment Conversion Date”)
(3).
(ii)If in the case of any proceeding in the court of any jurisdiction referred to in Section 10(j)(i)(2), there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of
Exhibit 10.2
the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of U.S. Dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(iii)Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Agreement or any other Transaction Document.
(k) Enforcement Fees. The Company agrees to pay all costs and expenses of the Buyers incurred as a result of enforcement of the Transaction Documents and the collection of any amounts owed to the Buyers thereunder (whether in cash, equity or otherwise), including, without limitation, reasonable attorneys’ fees and expenses.
[REMAINDER PAGE INTENTIONALLY LEFT BLANK]
Exhibit 10.2
IN WITNESS WHEREOF, the Buyers, the Collateral Agent and the Company have caused their respective signature page to this Secured Convertible Debenture Purchase Agreement to be duly executed as of the date first written above.
COMPANY:
SEQUANS COMMUNICATIONS S.A.
By:
Name:
Title:
Exhibit 10.2
IN WITNESS WHEREOF, the Buyers, the Collateral Agent and the Company have caused their respective signature page to this Secured Convertible Debenture Purchase Agreement to be duly executed as of the date first written above.
BUYER:
[●]
By:
Its:
By:
Name:
Title:
| Telephone No : | ||||||||
| Subscription Amount: | ||||||||
| Aggregate Number of Pre-Funded Warrants subscribed for: Aggregate Number of Common Warrants subscribed for: | ||||||||
| Aggregate Purchase Price: $ | ||||||||
You must pay the purchase price by wire transfer of United States dollars in immediately available funds to the account specified by the Company.
Name and Address of Beneficial Owner, if different from Purchaser:
Number of shares of Ordinary Shares and other equity securities of the Company currently owned by Beneficial Owner prior to this Purchase:
Any descriptions for footnotes to be disclosed in the Registration Statement relating to beneficial ownership:
Exhibit 10.2
IN WITNESS WHEREOF, the Buyers, the Collateral Agent and the Company have caused their respective signature page to this Secured Convertible Debenture Purchase Agreement to be duly executed as of the date first written above.
COLLATERAL AGENT:
[●]
By:
Its:
By:
Its:
By:
Name:
Title:
Exhibit 10.2
SCHEDULE I
SCHEDULE OF BUYERS
Exhibit 10.2
LIST OF EXHIBITS:
EXHIBIT A: FORM OF SECURED CONVERTIBLE DEBENTURE
EXHIBIT B: TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
EXHIBIT C: REGISTRATION RIGHTS AGREEMENT
EXHIBIT D: SUMMARY OF RISKS
EXHIBIT E: SECURITY AGREEMENT
EXHIBIT F: TERMS AND CONDITIONS OF THE COMMON WARRANTS
Exhibit 10.2
EXHIBIT A
FORM OF SECURED CONVERTIBLE DEBENTURE
See attached.
Exhibit 10.2
EXHIBIT B
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
See attached.
Exhibit 10.2
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
See attached.
Exhibit 10.2
EXHIBIT D
SUMMARY OF RISKS
See attached.
Exhibit 10.2
EXHIBIT E
SECURITY AGREEMENT
See attached.
Exhibit 10.2
EXHIBIT F
TERMS AND CONDITIONS OF THE COMMON WARRANTS
See attached.
Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
between
SEQUANS COMMUNICATIONS S.A.
and
EACH INVESTOR LISTED ON THE SIGNATURE PAGE HERETO
Dated [ • ], 2025
Exhibit 10.3
TABLE OF CONTENTS
Page
ARTICLE I REGISTRATION RIGHTS........................................................................................
Section 1.1.......... Resale Shelf Registration........................................................................ 1
Section 1.2.......... Expenses.................................................................................................. 2
Section 1.3.......... Suspensions............................................................................................. 2
Section 1.4.......... Registration Procedures........................................................................... 3
Section 1.5.......... Effectiveness Period................................................................................ 3
Section 1.6.......... Indemnification....................................................................................... 4
Section 1.7.......... Free Writing Prospectuses....................................................................... 8
Section 1.8.......... Information from and Obligations of each Investor................................ 8
Section 1.9.......... Rule 144 Reporting................................................................................. 9
Section 1.10........ Termination of Registration Rights......................................................... 9
Section 1.11........ Transfer of Registration Rights............................................................... 9
ARTICLE II TERMINATION.................................................................................................... 10
Section 2.1.......... Termination........................................................................................... 10
Section 2.2.......... Effect of Termination; Survival............................................................ 10
ARTICLE III GENERAL PROVISIONS................................................................................... 10
Section 3.1.......... No Confidential Information................................................................. 10
Section 3.2.......... Fees and Expenses................................................................................. 10
Section 3.3.......... Notices................................................................................................... 10
Section 3.4.......... Definitions............................................................................................. 11
Section 3.5.......... Interpretation; Headings........................................................................ 15
Section 3.6.......... Severability............................................................................................ 16
Section 3.7.......... Entire Agreement; Amendments........................................................... 16
Section 3.8.......... Assignment; No Third Party Beneficiaries........................................... 16
Section 3.9.......... Further Assurances................................................................................ 16
Section 3.10........ Governing Law; Consent to Jurisdiction; Waiver of Jury Trial............ 16
Section 3.11........ Counterparts.......................................................................................... 17
Section 3.12........ Specific Performance............................................................................ 18
Section 3.13........ Waiver................................................................................................... 18
Section 3.14........ Recapitalization, Exchanges, etc........................................................... 18
Section 3.15........ Obligations Limited to Parties to this Agreement................................. 18
Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of [ • ], 2025 (this “Agreement”), is made between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and the purchasers listed on the signature pages hereto (each, an “Investor”). The Company and the Investor are referred to hereinafter each as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Securities Purchase Agreement dated as of June 22, 2025 between the Company and the Investors (the “Purchase Agreement”), the Investors subscribed from the Company an aggregate of [ • ] Ordinary Shares represented by [ • ] ADSs (the “Shares”), [ • ] pre-funded warrants (the “Pre-Funded Warrants”) to purchase Ordinary Shares represented by ADSs (the “Warrant Shares”) and [ • ] common warrants (the “Common Warrants”) to purchase Ordinary Shares represented by ADSs or additional Pre-Funded Warrants at the option of the holder thereof (as exercised, including the Ordinary Shares underlying any such additional Pre-Funded Warrants, collectively the “Common Warrant Shares”) (the “Common Equity Offering”);
WHEREAS, the Parties are entering into this Agreement to set forth certain rights of the Investors relating to the registration of the Shares, the Warrant Shares and the Common Warrant Shares;
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Resale Shelf Registration.
(a) Within fifteen (15) days following the closing of the Common Equity Offering (the “Filing Date”), the Company shall (i) file with the SEC a Shelf Registration Statement on Form F-3 or Form S-3, as applicable (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible and, if the Company is not then eligible to register the resale of the Registrable Securities on Form F-3 or Form S-3, as applicable, such registration shall be on another appropriate form), which Registration Statement shall include a “plan of distribution” reasonably acceptable to the Investors, or (ii) prepare an amendment to an existing and effective Registration Statement (the “Transaction Shelf Registration Statement”), in each case, with respect to the registration under the Securities Act of the resale of all of the Registrable Securities, in each case, which shall include a prospectus in such form to permit the Investors to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) beginning on the effective date for such Registration Statement. The Company shall use its commercially reasonable efforts to cause such Transaction Shelf Registration Statement to
Exhibit 10.3
become effective as promptly as practicable after the filing thereof, but in no event later the Effectiveness Date, and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and the provisions of Section 1.3. The Company hereby represents that, as of the date hereof, it is eligible to use Form F-3 for primary offerings under General Instruction I.B(1) of Form F-3.
(b) Notwithstanding anything to the contrary herein, any Registrable Securities sold pursuant thereto shall be in the form of ADSs.
(c) If the Transaction Shelf Registration Statement filed under Section 1.1(a) or any Registration Statement filed under this Section 1.1(c) ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend such Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the Registrable Securities covered by and not sold under the Transaction Shelf Registration Statement. If such a Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after such filing and to keep such Registration Statement continuously effective during the Effectiveness Period, and such Registration Statement shall be deemed a Transaction Shelf Registration Statement hereunder.
(d) If: (i) the Shelf Registration Statement is not filed on or prior to its Filing Date (if the Company files the Shelf Registration Statement without affording the Investors the opportunity to review and comment on the same as required by Section 1.4(a) herein or the Company subsequently withdraws the filing of the Shelf Registration Statement, for reasons other than at the request of the Investors of a majority-in-interest of the Registrable Securities to withdraw the Shelf Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) a Shelf Registration Statement registering for resale all of the Registrable Securities included in such Shelf Registration Statement is not declared effective by the SEC by the Effectiveness Date of the initial Shelf Registration Statement filed pursuant to this Agreement, or (iii) after the effective date of a Shelf Registration Statement, such Shelf Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Shelf Registration Statement, or the Investors are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, except as permitted by Section 1.3(a) hereof (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (ii), the date on which such Event occurs, and for purpose of clause (iii) the date on which the suspension exceeds the Suspension Period permitted under Section 1.3(a) hereof, being referred to as an “Event Date”), then, in addition to any other rights the Investors may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to an Investor under this Agreement shall be 6.0% of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated
Exhibit 10.3
damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 10.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
Section 1.2 Expenses. Except as specifically provided herein, all Registration Expenses incurred in connection with the registration or offering and sale of the Registrable Securities shall be borne by the Company and all Selling Expenses shall be borne by the Investors; provided that, notwithstanding anything herein to the contrary, in no event shall the Investors bear or be responsible for any fees or expenses of the Company’s legal counsel in connection with the registration or offering and sale of Registrable Securities.
Section1.3 Suspensions.
(a) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice (a “Notice of Suspension”) to each Investor (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality), to require the Investors to suspend the use of the Prospectus for sales of Registrable Securities under an effective Registration Statement for a reasonable period of time not to exceed, combined with any other suspensions under this Agreement, forty five (45) consecutive days or seventy five (75) days in the aggregate in any twelve (12)-month period (a “Suspension Period”), and provided that the Company shall not be entitled to impose more than two (2) Suspension Periods during any twelve (12)-month period, if the Board determines in good faith that such use would (i) require the public disclosure of material non-public information concerning any material transaction or negotiations involving the Company that would interfere with such material transaction or negotiations or (ii) otherwise materially interfere with material financing plans, acquisition activities or business activities of the Company; provided, that if at the time of receipt of such notice by an Investor, such Investor shall have sold all or a portion of the Registrable Securities pursuant to an effective Registration Statement such suspension shall not be deemed to prohibit the settlement of such sale by delivery of Registrable Securities, and if the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities Laws by the time such Registrable Securities are scheduled to be delivered. Immediately upon receipt of a Notice of Suspension, the Investors shall discontinue the disposition of Registrable Securities under an effective Registration Statement and Prospectus relating thereto until the Suspension Period is terminated.
(b) The Company agrees that it will terminate any Suspension Period as promptly as reasonably practicable and will promptly notify in writing each Investor, to the extent it still beneficially owns Registrable Securities, of such termination (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality). After the expiration of any Suspension Period in the case of an effective Registration Statement, and without the need for any further request from the Investors, the Company shall, as applicable and as promptly as reasonably practicable, prepare a post-effective amendment or supplement to such Registration Statement, the relevant Prospectus, or
Exhibit 10.3
any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration Statement or the Prospectus, as applicable, will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 1.4 Registration Procedures. The Company will use its commercially reasonable efforts to effect the registration and the offer and sale of Registrable Securities in accordance with the intended method of disposition thereof as soon as reasonably practicable, and shall, in connection therewith:
(a) prepare and promptly file with the SEC a Registration Statement (or a prospectus supplement, as applicable) with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;
(b) (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement, (ii) cause any Prospectus or supplement thereto to be filed pursuant to Rule 424 under the Securities Act when so required and (iii) provide reasonable notice to the Investor to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate (provided that in no event shall such notice contain any material, non-public information);
(c) (i) furnish to the Investor as far in advance as reasonably practicable (and in any case not less than five (5) Business Days) before filing any Registration Statement contemplated by this Agreement or any Prospectus to be used in connection therewith or any supplement or amendment thereto, only upon request of the Investor, copies (or such requested portions of copies) of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide the Investor the opportunity to object to any information pertaining to such Investor and its plan of distribution that is contained therein and make the corrections reasonably requested by such Investor with respect to such information prior to filing a Registration Statement or any Prospectus to be used in connection therewith or supplement or amendment thereto, and (ii) furnish to the Investor, without charge, such number of copies of the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including each preliminary prospectus) and any other prospectuses filed under Rule 424 and each Free Writing Prospectus as such Persons reasonably may request in order to facilitate the sale of the Registrable Securities covered by such Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or “blue sky” Laws of such jurisdictions as the Investor reasonably shall request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Investor to
Exhibit 10.3
consummate the disposition in such jurisdictions; provided, however, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;
(e) enter into customary agreements and take such other actions as are reasonably requested by the Investor in order to expedite or facilitate the disposition of Registrable Securities;
(f) if the Investor could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with a Registration Statement and any amendment or supplement thereof (an “Investor Underwriter Registration Statement”), then, at the Investor’s request, the Company will furnish to the Investor, on the date of the effectiveness of the Investor Underwriter Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (provided that such request shall not be more frequently than on an annual basis unless the Investor is offering Registrable Securities pursuant to an Investor Underwriter Registration Statement), (i) a “comfort letter”, dated such date, from the Company’s independent certified public accountants in form and substance as has been customarily given by independent certified public accountants to underwriters in underwritten offerings of securities by the Company, addressed to the Investor, (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of the Investor Underwriter Registration Statement, in form, scope and substance as has been customarily given in underwritten offerings of securities by the Company, including standard “10b-5” negative assurance for such offerings, addressed to the Investor and (iii) a standard officer’s certificate from the chief executive officer or chief financial officer, or other officers serving such functions, of the Company addressed to the Investor, as has been customarily given by such officers in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary in this Agreement, the Company will not name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act) in any Registration Statement or Investor Underwriter Registration Statement, as applicable, without the Investor’s consent. If the staff of the SEC requires the Company to name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act), and the Investor does not consent thereto, then the Investor’s Registrable Securities shall not be included on the applicable Registration Statement, and the Company shall have no further obligations hereunder with respect to Registrable Securities held by the Investor, unless the Investor has not had an opportunity to conduct customary underwriter’s due diligence with respect to the Company at the time the Investor’s consent is sought;
(g) promptly notify the Investor: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of the Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for
Exhibit 10.3
the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” Laws of any jurisdiction or the initiation of any proceeding for such purpose (provided that in no event shall such notices under clauses (ii) or (iii) contain any material, non-public information unless consented to in advance by the Investor).
(h) if at any time (i) any event or development shall occur or condition shall exist as a result of which the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company will promptly notify the Investor and promptly prepare and file with the SEC (to the extent required) and furnish to the Investor such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package, as so amended or supplemented, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, be misleading, or so that the Disclosure Package will comply with Law;
(i) use its commercially reasonable efforts to make generally available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
(j) use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on the NYSE or, if not the NYSE, the primary trading market or any other national securities exchange on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed;
(k) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(l) immediately notify each Investor, at any time when a Prospectus is required to be delivered under the Securities Act, of the occurrence or happening of any event as a result of which the Prospectus contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits 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 (provided that in no event shall such notice contain any material, non-public information), and, as promptly as reasonably practicable prepare and furnish to each such Investor a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered, 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 the light of the circumstances then existing;
Exhibit 10.3
(m) in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Investor or its legal counsel;
(n) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose (provided that in no event shall such notices under this clause (n) contain any material, non-public information unless consented to in advance by the Investor);
(o) otherwise use its commercially reasonable efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Investor in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Registrable Securities to be sold from time to time as permitted by Law;
(p) use its commercially reasonable efforts to cooperate with the Investor and its counsels in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, the NYSE or any other national securities exchange on which the Registrable Securities are listed;
(q) pay the applicable filing fees covering the Registrable Securities in compliance with the SEC rules and to file such amendments or subsequent registration statements as may be required to maintain an effective registration statement for the relevant Effectiveness Period;
(r) use its commercially reasonable efforts to cooperate with the Investor in the disposition of the Registrable Securities covered by such Registration Statement; and
(s) if a Registration Statement is an ASRS that has been outstanding for at least three (3) years, at or prior to the end of the third (3rd) year, the Company shall refile a new ASRS covering the Registrable Securities which remain outstanding. If at any time when the Company is required to re-evaluate its ASR Eligible status or eligibility to use Form F-3 or Form S-3, as applicable, the Company determines that it is not ASR Eligible or eligible to use Form F-3 or Form S-3, as applicable, the Company shall use its commercially reasonable efforts to refile the Transaction Shelf Registration Statement on Form F-3 or Form S-3, as applicable, and,
Exhibit 10.3
if such form is not available, Form F-1 or Form S-1 (or other appropriate form) and keep the Transaction Shelf Registration Statement continuously effective subject to Section 1.3.
Section 1.5 Effectiveness Period. For purposes of this Article I, the period of distribution of Registrable Securities pursuant to a Registration Statement shall be deemed to extend until the sale of all Registrable Securities covered thereby (such period, the “Effectiveness Period”).
Section 1.6 Indemnification.
(a) Indemnification Rights.
(i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article I, the Company shall indemnify and hold harmless each Investor and each Person, if any, that controls such Investor within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, shareholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, (B) any omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided that the Company shall not be liable to an Investor Registration Rights Indemnitee to the extent that any such Damages are directly caused by any untrue statement or omission (or alleged untrue statement or omission) made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in strict reliance upon and strictly in conformity with written information about such Investor furnished to the Company by or on behalf of such Investor expressly for use therein. This indemnity shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any Investor Registration Rights Indemnitee and shall survive the Transfer of securities by each Investor.
(ii) Each Investor shall, severally and not jointly, indemnify and hold harmless the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors, officers and employees (each, a “Company Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or in any amendment or supplement thereto, in each case, to the extent that such untrue statement was made in strict reliance upon and in strict conformity with written
Exhibit 10.3
information furnished to the Company by or on behalf of such Investor expressly for use therein, (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, to the extent that such omission was made in strict reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein or (C) any violation or alleged violation by the Investor of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that in no event shall the obligations of such Investor hereunder exceed the net proceeds received by it from the sale of its Registrable Securities related to the matter in which Damages are sought. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such securities by such Investor.
(iii) If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to an Investor Registration Rights Indemnitee or a Company Registration Rights Indemnitee, as applicable, with respect to any Damages referred to therein or is unenforceable or insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless as contemplated and to the extent set forth therein, then the Company or the Investor, as applicable, in lieu of indemnifying such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable by such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of such Damages in such proportion as is appropriate to reflect the relative fault of such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the Company or the Investor, as applicable, on the other hand, in connection with the statements or omissions which resulted in such Damages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or the Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 1.6(a)(iii) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 1.6(a)(iii). No Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything herein to the contrary, in no event shall the liability of an Investor in this Section 1.6(a)(iii) be greater in amount than the amount of net proceeds received by it from the sale of such Registrable Securities related to the matter in which indemnification or contribution for Damages are sought.
(b) Notice of Reg Rights Claim.
Exhibit 10.3
(i) As used in this Agreement, the term “Reg Rights Claim” means a claim for indemnification or contribution by or on behalf of any Company Registration Rights Indemnitee or Investor Registration Rights Indemnitee, as the case may be, for Damages under Section 1.6(a) (such Person making a Reg Rights Claim, a “Reg Rights Indemnified Person”). The Company (for its own Damages or for the Damages incurred by any other Company Registration Rights Indemnitee) or of an Investor (for its own Damages or for the Damages incurred by any other Investor Registration Rights Indemnitee), as applicable, shall give notice of a Reg Rights Claim under this Agreement pursuant to a written notice of such Reg Rights Claim executed by the Company or the Investor, as applicable (a “Notice of Reg Rights Claim”), and delivered to the Company or the Investor, as applicable (such receiving party, the “Reg Rights Indemnifying Person”), promptly after such Reg Rights Indemnified Person becomes aware of the existence of any potential claim by such Reg Rights Indemnified Person for indemnification arising out of or resulting from any item indemnified pursuant to the terms of Section 1.6(a)(i) or Section 1.6(a)(ii) as applicable; provided that the failure to timely give such notice shall not limit or reduce the Reg Rights Indemnified Person’s right to indemnification hereunder unless (and then only to the extent that) the Reg Rights Indemnifying Person’s defense of such Reg Rights Claim is actually materially and adversely prejudiced thereby.
(ii) Each Notice of Reg Rights Claim shall: (A) state the aggregate amount (where practicable) that the Reg Rights Indemnified Person has incurred or paid in Damages arising from such Reg Rights Claim (which amount may include the amount of Damages claimed by a third party in an action (a “Third-Party Reg Rights Claim”) brought against such Reg Rights Indemnified Person based on alleged facts, which if true, would give rise to liability for Damages to such Reg Rights Indemnified Person); and (B) contain a brief description, in reasonable detail (to the extent reasonably available to the Reg Rights Indemnified Person) of the facts, circumstances or events giving rise to the alleged Damages based on the Reg Rights Indemnified Person’s good faith belief and knowledge thereof, including the identity and address of any third party claimant (to the extent reasonably available to the Reg Rights Indemnified Person).
(c) Defense of Third-Party Reg Rights Claims.
(i) Subject to the provisions hereof, the applicable Reg Rights Indemnifying Person shall have the right (at its own expense) to elect to defend and assume control of the defense of any Third-Party Reg Rights Claim on behalf of a Reg Rights Indemnified Person, utilizing legal counsel reasonably acceptable to such Reg Rights Indemnified Person. In the event such election is made, the Reg Rights Indemnified Person (unless itself controlling the Third-Party Reg Rights Claim in accordance with this Section 1.6(c)) may participate, through counsel of its own choice and, except as provided herein, at its own expense, in the defense of any Third-Party Reg Rights Claim. The reasonable and documented costs and expenses incurred by the Reg Rights Indemnifying Person in connection with such defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Reg Rights Indemnifying Person.
(ii) A Reg Rights Indemnifying Person shall not be entitled to assume control of such defense, and the applicable Reg Rights Indemnified Person may assume the control and defense thereof, at the sole expense of the applicable Reg Rights Indemnifying Person, if (A) the Reg Rights Claim relates to, or arises in connection with, any criminal or
Exhibit 10.3
governmental proceeding, action, indictment, allegation or investigation, (B) the Reg Rights Claim seeks an injunction against the Reg Rights Indemnified Person, to the extent that such defense relates to the claim for such injunction, (C) a conflict of interest between the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person exists with respect to the Reg Rights Claim or the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person have one or more conflicting defenses, in the reasonable view of counsel to the Reg Rights Indemnified Person, or (D) the Reg Rights Indemnifying Person has elected to have the Reg Rights Indemnified Person defend, or assume the control and defense of, a Third-Party Reg Rights Claim in accordance with this Section 1.6(c); provided that in no event shall the Reg Rights Indemnifying Person be liable for the fees and expenses of more than one separate counsel (and one local counsel) for all similarly-situated Reg Rights Indemnified Persons, which counsel shall be selected by the Investors (in the case of the Investor Registration Rights Indemnitees) or by the Company (in the case of the Company Registration Rights Indemnitees).
(iii) Any party controlling the defense of any Third-Party Reg Rights Claim pursuant hereto shall: (A) conduct the defense of such Third-Party Reg Rights Claim with reasonable diligence and keep the other parties reasonably informed of material developments in the Third-Party Reg Rights Claim at all stages thereof, (B) as promptly as reasonably practicable, submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other parties and their counsel to confer on the conduct of the defense thereof, and (D) permit the other parties and their counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties not controlling the defense will render to the party controlling the defense such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the party controlling the defense in connection therewith. The Reg Rights Indemnifying Person shall reimburse the parties not controlling the defense for any reasonable and documented costs and expenses incurred in connection with providing such assistance. Notwithstanding anything to the contrary in this Agreement, no Party shall be required to disclose any information to the other Party or its Representatives, if doing so would be reasonably expected to violate any Law to which such Party is subject or could jeopardize (in the reasonable discretion of the disclosing Party) any attorney-client privilege available with respect to such information.
(iv) If the Reg Rights Indemnifying Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnifying Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim on the Reg Rights Indemnified Person’s behalf and without the consent of the Reg Rights Indemnified Person; provided that (A) such settlement shall not involve any injunctive relief binding upon the Reg Rights Indemnified Person or any of its Affiliates, (B) such settlement expressly and unconditionally releases the Reg Rights Indemnified Person and the other applicable Reg Rights Indemnified Persons (that is, each of the Company Registration Rights Indemnitees, if the Reg Rights Indemnified Person is a Company Registration Rights Indemnitee, and each of the Investor Registration Rights Indemnitees, if the Reg Rights Indemnified Person is an Investor Registration Rights Indemnitee) from any and all liabilities with respect to such Third-Party Reg Rights Claim, with prejudice; (C) such settlement shall not include any admission as to fault, culpability or failure to act on the part of the Reg Rights Indemnified Person and (D) the Reg Rights Indemnifying Person unconditionally acknowledges
Exhibit 10.3
in writing to the Reg Rights Indemnified Person its obligation to pay (and pays) all Damages of the Reg Rights Indemnified Person with respect to such Third-Party Reg Rights Claim. In all other events, the consent of the Reg Rights Indemnified Person shall be required to effect such a settlement. If the Reg Rights Indemnified Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnified Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim only with the consent of the Reg Rights Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). No settlement by the Reg Rights Indemnified Person of such Third-Party Reg Rights Claim effected in accordance with this Section 1.6(c) shall limit or reduce the right of any Reg Rights Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Reg Rights Claim, to the extent such Damages are indemnifiable hereunder. As used in this Section 1.6(c)(iv), the term “settlement” refers to any consensual resolution of the claim in question, including by consent decree or by permitting any judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.
Section 1.7 Free Writing Prospectuses. Except for a Prospectus relating to Registrable Securities included in a Registration Statement, an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) prepared by the Company or other materials prepared by Company, each Investor represents and agrees that it (a) will not make any offer relating to the Registrable Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a Free Writing Prospectus, and (b) will not distribute any written materials in connection with the offer or sale pursuant to a Registration Statement of Registrable Securities, in each case, without the prior written consent of the Company.
Section 1.8 Information from and Obligations of each Investor. The Company’s obligation to include the Investor’s Registrable Securities in any Registration Statement or Prospectus is contingent upon each of the Investors:
(a) furnishing to the Company in writing information with respect to its ownership of Registrable Securities and the intended method of disposition of its Registrable Securities as may be required by the Company and as required by Law for use in connection with a Registration Statement or Prospectus (or any amendment or supplement thereto) and all information required to be disclosed in order to make the information the Investor previously furnished to the Company not contain a material misstatement of fact or necessary to cause such Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material fact with respect to the Investor necessary in order to make the statements therein not misleading;
(b) complying in all material respects with (i) the Securities Act and the Exchange Act, (ii) all applicable state securities Laws, (iii) the rules of any securities exchange or trading market on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed or traded, and (iv) all other applicable regulations, in each case, in connection with, and only to the extent applicable to, the registration and the disposition of Registrable Securities by the Investor;
(c) following its actual knowledge thereof, notifying the Company of the occurrence of any event that makes any statement made in a Registration Statement, Prospectus,
Exhibit 10.3
issuer free writing prospectus or other Free Writing Prospectus regarding the Investor untrue in any material respect or that requires the making of any changes in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements not misleading; provided, however, that such Investor shall not be required to notify the Company of any disposition of securities pursuant to any such Registration Statement or Prospectus;
(d) providing the Company with such information related to the Investor as may be required to enable the Company to prepare a supplement or post-effective amendment to any such Registration Statement or a supplement to such Prospectus or Free Writing Prospectus;
(e) using commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement and any related Prospectus; and
(f) furnishing the Company with all information required to be included in such Registration Statement or Prospectus by applicable securities Laws in connection with the disposition of such Registrable Securities as the Company reasonably requests.
Section 1.9 Rule 144 Reporting.
(a) With a view to making available to each Investor the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to make and keep available adequate current public information, as defined in Rule 144(c), including all periodic and annual reports and other documents (other than Form 6-K reports) required of the Company under Sections 13 or 15(d) of the Exchange Act, and so long as an Investor beneficially owns any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Investor may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any Registrable Securities without registration.
(b) For the avoidance of doubt, each Investor may sell any Registrable Securities in compliance with Rule 144, regardless of whether a Registration Statement has been filed with the SEC or is effective. The Company agrees to (i) make and keep public information available as those terms are understood and defined in Rule 144, (ii) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, and (iii) so long as an Investor owns any Registrable Securities, furnish to such Investor upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act.
Section 1.10 Termination of Registration Rights. Notwithstanding anything to the contrary contained herein and subject to Section 1.11, the registration rights granted under this Article I terminate and are of no further force and effect (other than Section 1.2 and Section 1.6), on the date on which there cease to be any Registrable Securities.
Exhibit 10.3
Section 1.11 Transfer of Registration Rights. Each Investor shall have the right to Transfer to any Person (such Person, a “Transferee Investor”), directly or indirectly, by written agreement, all of its related rights and obligations granted under this Article I in connection with a Transfer of all of its Registrable Securities to such Person; provided, that in the case of Transfers to limited partners, members or Affiliates of an Investor, such Investor shall have the right to transfer its related rights and obligations under this Article I in connection with the Transfer of all or any portion of its Registrable Securities. Such Transferee Investor shall, following such Transfer, become responsible for all obligations applicable to the Investor under this Article I with respect to the Registrable Securities Transferred to such Transferee Investor.
ARTICLE II
TERMINATION
Section 2.1 Termination. This Agreement shall terminate upon the earlier of (i) the time when there are no Registrable Securities outstanding, (ii) the time when all of the Registrable Securities (a) are freely transferable under Rule 144 and the securities laws of any other applicable jurisdiction without limitation, or any volume, manner-of-sale or other restrictions or conditions, without registration and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Company’s transfer agent and the Investor, and (B) do not and/or shall not when issued bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP, and (iii) the mutual written agreement of each Investor and the Company.
Section 2.2 Effect of Termination; Survival. In the event of any termination of this Agreement pursuant to Section 2.1, this Agreement shall be terminated, and there shall be no further liability or obligation hereunder on the part of any Party, other than Section 1.6, Section 1.9, this Section 2.2 and Article III, which provisions shall survive such termination; provided, however, that nothing contained in this Agreement (including this Section 2.2) shall relieve a Party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent occurring prior to such termination.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 No Confidential Information. In no event shall the Company or its Representatives provide any non-public records, books, Contracts, instruments, computer data or other data or information concerning the Company or its subsidiaries to an Investor unless the Investor has agreed to accept such information in writing beforehand.
Exhibit 10.3
Section 3.1 Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
Section 3.3 Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company, addressed to it at:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
If to the Investor, addressed to it at: to such address or addresses set forth on the signature page hereto.
Section 3.4 Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
Exhibit 10.3
“Action” means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case, whether civil, criminal or investigative).
“Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of an Investor shall be deemed to be an “Affiliate” of the Investor.
“American Depositary Shares” or “ADSs” means those certain American Depositary Shares issued pursuant to a deposit agreement by and among the Company, Bank of New York Mellon (or any successor thereto), as depositary, and the owners and holders of American Depositary Shares, as such agreement may from time to time be amended.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“ASR Eligible” means the Company meets or is deemed to meet the eligibility requirements to file an ASRS as set forth in the General Instruction to Form F-3 or Form S-3, as applicable.
“ASRS” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.
“Board” or “Board of Directors” means the board of directors of the Company, or any duly authorized committee thereof.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States, a legal holiday in the Republic of France or any day on which banking institutions in the State of New York or in the Republic of France are authorized or required by law or other governmental action to close.
“Common Warrant” has the meaning set forth in recitals to this Agreement.
“Common Warrant Shares” has the meaning set forth in recitals to this Agreement.
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(ii).
“Contract” means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license, sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.
Exhibit 10.3
“controlling person” has the meaning set forth in Section 1.6(a)(i).
“Damages” means any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities, judgments, and reasonable and documented out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs.
“Disclosure Package” means, with respect to any offering of Registrable Securities, (a) the preliminary Prospectus or Prospectus, as applicable, (b) each Free Writing Prospectus, and (c) all other information, in each case, that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of Registrable Securities at the time of sale of such securities.
“Effectiveness Date” means, with respect to the Transaction Shelf Registration Statement, no later than the 60th calendar day following the Filing Date (or, in the event of a “full review” by the SEC, the 75th calendar day following the Filing Date) and with respect to any additional Registration Statements which may be required pursuant to this Agreement, the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the SEC, the 75th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the SEC that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the 5th Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above.
“Effectiveness Period” has the meaning set forth in Section 1.5.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor regulatory organization.
“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act relating to the Registrable Securities included in the applicable Registration Statement that has been approved for use by the Company.
“Governmental Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body of competent jurisdiction.
“Investor” has the meaning set forth in the preamble to this Agreement.
“Investor Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(i).
“issuer free writing prospectus” has the meaning set forth in Section 1.7.
Exhibit 10.3
“Law” any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law), statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.
“Notice of Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Notice of Suspension” has the meaning set forth in Section 1.3(a).
“Order” means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena, writ, decree or verdict entered by or with any Governmental Entity.
“Ordinary Shares” means ordinary shares, nominal value €0.01 per share, of the Company.
“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.
“Person” means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
“Pre-Funded Warrant” has the meaning set forth in recitals to this Agreement.
“Prospectus” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference, or deemed to be incorporated by reference, into such prospectus.
“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.
“Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnified Person” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnifying Person” has the meaning set forth in Section 1.6(b)(i).
“Registrable Securities” means (i) the Shares, (ii) the Warrant Shares, (iii) the Common Warrant Shares and (iv) any Ordinary Shares or Ordinary Shares represented by ADSs issued (or issuable upon the conversion or exercise of any warrant, right or other security that is issued) as a result of any stock split, recapitalization, exchange, dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares, the Warrant Shares, and/or the Common Warrant Shares; provided, that a security will cease to be a Registrable Security on the earliest to occur of (a) the date such Registrable Security has been resold by such Investor pursuant to a Registration Statement or Rule 144 or (b) upon the date such Registrable Security becomes eligible for resale by such Investor under Rule 144 without volume or manner-of-sale restrictions
Exhibit 10.3
pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144.
“Registration Expenses” means (whether or not any Registration Statement is declared effective or any of the transactions described herein is consummated) all expenses incurred by the Company in filing a Registration Statement, including, all registration and filing fees, fees and disbursements of counsel for the Company, SEC or FINRA registration and filing fees, all applicable ratings agency fees, expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration, fees and expenses of compliance with securities or “blue sky” Laws, costs of any comfort letters required by any underwriter, listing fees, printing, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, the Company’s internal expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on the New York Stock Exchange or any other securities exchange, roadshow expenses, all other expenses incident to the registration of the Registrable Securities; provided, that the term “Registration Expenses” does not include, and the Company shall not be responsible for, Selling Expenses.
“Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act filed with the SEC covering the resale of Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such Registration Statement.
“Representatives” means a Person’s officers, directors, employees, accountants, consultants, legal counsel, investment bankers, other advisors, authorized agents and other representatives.
“Rule 144” means Rule 144 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“Rule 415” means Rule 415 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“Selling Expenses” means, in connection with the registration or offering and sale of the Registrable Securities, (a) all underwriting fees, discounts and selling commissions fees, (b) stock transfer taxes applicable to the sale of the Registrable Securities, and (c) fees and expenses of any counsel to the Investors other than the counsel referred to in the definition of Registration Expenses.
“settlement” and “settle” have the meanings set forth in Section 1.6(c)(iv).
“Shares” has the meaning set forth in the recitals to this Agreement.
Exhibit 10.3
“Shelf Registration Statement” means a registration statement filed with the SEC for the sale of Registrable Securities pursuant to Rule 415 under the Securities Act.
“Suspension Period” has the meaning set forth in Section 1.3(a).
“Third-Party Reg Rights Claim” has the meaning set forth in Section 1.6(b)(ii).
“Transaction Documents” means collectively, this Agreement, the Purchase Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Transaction Shelf Registration Statement” has the meaning set forth in Section 1.1(a).
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities.
“Transferee Investor” shall have the meaning set forth in Section 1.11.
“Warrant Shares” shall have the meaning set forth in the recitals to this Agreement.
Section 3.5 Interpretation; Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall limit the applicability of a more general provision,
Exhibit 10.3
representation or warranty. It is the intent of the Parties that each representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent effect and that such provisions are cumulative. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless otherwise specified.
Section 3.6 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Purchase Agreement and this Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Section 3.7 Entire Agreement; Amendments. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 3.8 Assignment; No Third Party Beneficiaries. Except as expressly provided herein, including, without limitation, the transfer of rights and obligations as set forth in Section 1.11, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 3.9 Further Assurances. Each Party shall cooperate, take such actions, enter into such agreements (including customary indemnification and contribution agreements) and execute such documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby; provided, however, that no Party shall be obligated to take any actions or omit to take any actions that would be inconsistent with applicable Law.
Section 3.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the
Exhibit 10.3
courts of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates). Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by either Party, (b) agrees that service of process will be validly effected by sending notice in accordance with Section 3.3, (c) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above named courts, and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
(b) EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.
(c) The Company agrees that service to the Process Agent (as defined below) or as otherwise specified in Section 3.3 shall be valid and sufficient service, and the Company waives any objections to such service. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 (the “Process Agent”), as the designee, appointee and agent of the Company to receive, for and on behalf of the Company, service of process for the purposes of this Section 3.10. The Company irrevocably waives any requirements for service abroad of process or other documents, including under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Company agrees that service of process in respect of it upon the Process Agent shall be deemed to be effective service of process upon it. The Company agrees that the failure of the Process Agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any Action based thereon. If for any reason the Process Agent shall cease to be available to act as such, the Company agrees to irrevocably appoint another such agent as its authorized agent for service of process, on the terms and for the purposes of this Section 3.10. Nothing herein shall in any way be deemed to limit the ability of the Investor to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable Law
Exhibit 10.3
Section 3.11 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 3.12 Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by the other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. Each Party further agrees that neither the other Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 3.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 3.12 Waiver. Any Party entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.
Section 3.14 Recapitalization, Exchanges, etc.
(a) The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares or other securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise), which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, stock splits, recapitalizations, pro rata distributions of stock and the like occurring after the date of this Agreement.
(b) The Company agrees that it shall not effect or permit to occur any combination or subdivision of Ordinary Shares or other securities constituting Registrable Securities which would adversely affect the ability of the Investors to include such Registrable Securities in any registration contemplated by this Agreement or the marketability of such Registrable Securities in any such registration.
Section 3.15 Obligations Limited to Parties to this Agreement. Each of the Parties hereto covenants, agrees and acknowledges that no Person other than the Investors (and their
Exhibit 10.3
transferees or assignees) and the Company shall have any obligation hereunder and that notwithstanding that an Investor is a limited partnership, limited liability company or other entity, no recourse under this Agreement shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, as such, for any obligations of the Investor under this Agreement or for any claim based on, in respect of or by reason of such obligation or its creation.
[Signature Page Follows]
Exhibit 10.3
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the date first written above, by their respective officers thereunto duly authorized.
| SEQUANS COMMUNICATIONS S.A. | ||||||||
| By: | ||||||||
| Name: Georges Karam | ||||||||
| Title: Chief Executive Officer | ||||||||
[Signature Page to Registration Rights Agreement]
Exhibit 10.3
| INVESTOR | ||||||||
| by: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Duly authorized | ||||||||
Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
between
SEQUANS COMMUNICATIONS S.A.
and
EACH INVESTOR LISTED ON THE SIGNATURE PAGE HERETO
Dated [ • ], 2025
Exhibit 10.4
TABLE OF CONTENTS
Page
ARTICLE I REGISTRATION RIGHTS....................................................................................... 1
Section 1.1.......... Resale Shelf Registration........................................................................ 1
Section 1.2.......... Expenses.................................................................................................. 2
Section 1.3.......... Suspensions............................................................................................. 2
Section 1.4.......... Registration Procedures........................................................................... 3
Section 1.5.......... Effectiveness Period................................................................................ 3
Section 1.6.......... Indemnification....................................................................................... 4
Section 1.7.......... Free Writing Prospectuses....................................................................... 8
Section 1.8.......... Information from and Obligations of each Investor................................ 8
Section 1.9.......... Rule 144 Reporting................................................................................. 9
Section 1.10........ Termination of Registration Rights......................................................... 9
Section 1.11........ Transfer of Registration Rights............................................................... 9
ARTICLE II TERMINATION.................................................................................................... 10
Section 2.1.......... Termination........................................................................................... 10
Section 2.2.......... Effect of Termination; Survival............................................................ 10
ARTICLE III GENERAL PROVISIONS................................................................................... 10
Section 3.1.......... No Confidential Information................................................................. 10
Section 3.2.......... Fees and Expenses................................................................................. 10
Section 3.3.......... Notices................................................................................................... 10
Section 3.4.......... Definitions............................................................................................. 11
Section 3.5.......... Interpretation; Headings........................................................................ 15
Section 3.6.......... Severability............................................................................................ 16
Section 3.7.......... Entire Agreement; Amendments........................................................... 16
Section 3.8.......... Assignment; No Third Party Beneficiaries........................................... 16
Section 3.9.......... Further Assurances................................................................................ 16
Section 3.10........ Governing Law; Consent to Jurisdiction; Waiver of Jury Trial............ 16
Section 3.11........ Counterparts.......................................................................................... 17
Section 3.12........ Specific Performance............................................................................ 18
Section 3.13........ Waiver................................................................................................... 18
Section 3.14........ Recapitalization, Exchanges, etc........................................................... 18
Section 3.15........ Obligations Limited to Parties to this Agreement................................. 18
Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of [•], 2025 (this “Agreement”), is made between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and the purchasers listed on the signature pages hereto (each, an “Investor”). The Company and the Investor are referred to hereinafter each as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Secured Convertible Debenture Purchase Agreement dated as of June [22], 2025 between the Company and the Investors (the “Purchase Agreement”), the Investors subscribed from the Company an aggregate principal amount of [•] Secured Convertible Debentures (the “Secured Convertible Debentures”), [•] pre-funded warrants (the “Pre-Funded Warrants”) to purchase Ordinary Shares represented by ADSs (as exercised, such Ordinary Shares collectively, the “Pre-Funded Warrant Shares” and such ADSs collectively, the “Pre-Funded Warrant ADSs”) and [•] common warrants (the “Common Warrants”) to purchase Ordinary Shares represented by ADSs or additional Pre-Funded Warrants at the option of the holder thereof (as exercised, such Ordinary Shares collectively, the “Common Warrant Shares” and such ADSs collectively, the “Common Warrant ADSs”) (the “Secured Convertible Debenture Offering”);
WHEREAS, the Parties are entering into this Agreement to set forth certain rights of the Investors relating to the registration of the Conversion ADSs (as defined below), the Pre-Funded Warrant ADSs and the Common Warrant ADSs. The ADSs issued or issuable upon conversion of all or any portion of the Senior Secured Debentures into the Ordinary Shares represented by ADSs (as exercised, such Ordinary Shares collectively, the “Conversion Shares” and such ADSs collectively, the “Conversion ADSs”);
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:
REGISTRATION RIGHTS
Resale Shelf Registration.
Within seven (7) Business Days following the closing of the Secured Convertible Debenture Offering (the “Initial Filing Date”), the Company shall (i) file with the SEC a Shelf Registration Statement on Form F-3 or Form S-3, as applicable (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible and, if the Company is not then eligible to register the resale of the Registrable Securities on Form F-3 or Form S-3, as applicable, such registration shall be on another appropriate form) or (ii) prepare an amendment to an existing and effective Registration Statement (the “Transaction Shelf Registration Statement”), in each case, with respect to the registration under the Securities Act of the resale of all of the Registrable Securities, in each case, which shall include a prospectus in
Exhibit 10.4
such form to permit the Investors to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) beginning on the effective date for such Registration Statement. The Company shall use its commercially reasonable efforts to cause such Transaction Shelf Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than 75 business days after the closing thereof, and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and the provisions of Section 1.3. The Company hereby represents that, as of the date hereof, it is eligible to use Form F-3 for primary offerings under General Instruction I.B(1) of Form F-3.
Notwithstanding anything to the contrary herein, any Registrable Securities sold pursuant thereto shall be in the form of ADSs.
If the Transaction Shelf Registration Statement filed under Section 1.1(a)or any Registration Statement filed under this Section 1.1(c) ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within ten (10) days of such cessation of effectiveness amend such Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the Registrable Securities covered by and not sold under the Transaction Shelf Registration Statement. If such a Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after such filing and to keep such Registration Statement continuously effective during the Effectiveness Period, and such Registration Statement shall be deemed a Transaction Shelf Registration Statement hereunder.
If: (i) the Shelf Registration Statement is not filed on or prior to its Filing Date (if the Company files the Shelf Registration Statement without affording the Investors the opportunity to review and comment on the same as required by Section 1.4(a) herein or the Company subsequently withdraws the filing of the Shelf Registration Statement, for reasons other than at the request of the Investors of a majority-in-interest of the Registrable Securities to withdraw the Shelf Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) a Shelf Registration Statement registering for resale all of the Registrable Securities included in such Shelf Registration Statement is not declared effective by the SEC by the Effectiveness Date of the initial Shelf Registration Statement filed pursuant to this Agreement, or (iii) after the effective date of a Shelf Registration Statement, such Shelf Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Shelf Registration Statement, or the Investors are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, except as permitted by Section 1.3(a) hereof (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (ii), the date on which such Event occurs, and for purpose of clause (iii) the date on which the suspension exceeds the Suspension Period permitted under Section 1.3(a) hereof, being referred to as an “Event Date”), then, in addition to any other rights the Investors may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of
Exhibit 10.4
2.0% multiplied by the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to an Investor under this Agreement shall be 6.0% of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 10.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
Expenses. Except as specifically provided herein, all Registration Expenses incurred in connection with the registration or offering and sale of the Registrable Securities shall be borne by the Company and all Selling Expenses shall be borne by the Investors; provided that, notwithstanding anything herein to the contrary, in no event shall the Investors bear or be responsible for any fees or expenses of the Company’s legal counsel in connection with the registration or offering and sale of Registrable Securities.
Suspensions.
Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice (a “Notice of Suspension”) to each Investor (provided that in no event shall such notice contain any material, non-public information unless notice is also being provided pursuant to Section 4(e)(ii) of the Purchase Agreement), to delay the filing or effectiveness of a Registration Statement or require the Investors to suspend the use of the Prospectus for sales of Registrable Securities under an effective Registration Statement for a reasonable period of time not to exceed, combined with any other suspensions under this Agreement, forty-five (45) consecutive days or seventy-five (75) days in the aggregate in any twelve (12)-month period (a “Suspension Period”) if the Board determines in good faith that such filing, effectiveness or use would (i) require the public disclosure of material non-public information concerning any material transaction or negotiations involving the Company that would interfere with such material transaction or negotiations or (ii) otherwise materially interfere with material financing plans, acquisition activities or business activities of the Company; provided, that if at the time of receipt of such notice by an Investor, such Investor shall have sold all or a portion of the Registrable Securities pursuant to an effective Registration Statement such suspension shall not be deemed to prohibit the settlement of such sale by delivery of Registrable Securities, and if the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities Laws by the time such Registrable Securities are scheduled to be delivered. Immediately upon receipt of a Notice of Suspension, the Investors shall discontinue the disposition of Registrable Securities under an effective Registration Statement and Prospectus relating thereto until the Suspension Period is terminated.
The Company agrees that it will terminate any Suspension Period as promptly as reasonably practicable and will promptly notify in writing each Investor, to the extent it still beneficially owns Registrable Securities, of such termination (provided that in no event shall such notice contain any material, non-public information). After the expiration of any
Exhibit 10.4
Suspension Period in the case of an effective Registration Statement, and without the need for any further request from the Investors, the Company shall, as applicable and as promptly as reasonably practicable, prepare a post-effective amendment or supplement to such Registration Statement, the relevant Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration Statement or the Prospectus, as applicable, will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Registration Procedures. The Company will use its commercially reasonable efforts to effect the registration and the offer and sale of Registrable Securities in accordance with the intended method of disposition thereof as soon as reasonably practicable, and shall, in connection therewith:
prepare and promptly file with the SEC a Registration Statement (or a prospectus supplement, as applicable) with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;
(i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement, (ii) cause any Prospectus or supplement thereto to be filed pursuant to Rule 424 under the Securities Act when so required and (iii) provide reasonable notice to the Investor to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate (provided that in no event shall such notice contain any material, non-public information);
(i) furnish to the Investor as far in advance as reasonably practicable before filing any Registration Statement contemplated by this Agreement or any Prospectus to be used in connection therewith or any supplement or amendment thereto, only upon request of the Investor, copies (or such requested portions of copies) of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide the Investor the opportunity to object to any information pertaining to such Investor and its plan of distribution that is contained therein and make the corrections reasonably requested by such Investor with respect to such information prior to filing a Registration Statement or any Prospectus to be used in connection therewith or supplement or amendment thereto, and (ii) furnish to the Investor, without charge, such number of copies of the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including each preliminary prospectus) and any other prospectuses filed under Rule 424 and each Free Writing Prospectus as such Persons reasonably may request in order to facilitate the sale of the Registrable Securities covered by such Registration Statement;
use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or “blue sky” Laws of
Exhibit 10.4
such jurisdictions as the Investor reasonably shall request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Investor to consummate the disposition in such jurisdictions; provided, however, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;
enter into customary agreements and take such other actions as are reasonably requested by the Investor in order to expedite or facilitate the disposition of Registrable Securities;
if the Investor could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with a Registration Statement and any amendment or supplement thereof (an “Investor Underwriter Registration Statement”), then, at the Investor’s request, the Company will furnish to the Investor, on the date of the effectiveness of the Investor Underwriter Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (provided that such request shall not be more frequently than on an annual basis unless the Investor is offering Registrable Securities pursuant to an Investor Underwriter Registration Statement), (i) a “comfort letter”, dated such date, from the Company’s independent certified public accountants in form and substance as has been customarily given by independent certified public accountants to underwriters in underwritten offerings of securities by the Company, addressed to the Investor, (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of the Investor Underwriter Registration Statement, in form, scope and substance as has been customarily given in underwritten offerings of securities by the Company, including standard “10b-5” negative assurance for such offerings, addressed to the Investor and (iii) a standard officer’s certificate from the chief executive officer or chief financial officer, or other officers serving such functions, of the Company addressed to the Investor, as has been customarily given by such officers in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary in this Agreement, the Company will not name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act) in any Registration Statement or Investor Underwriter Registration Statement, as applicable, without the Investor’s consent. If the staff of the SEC requires the Company to name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act), and the Investor does not consent thereto, then the Investor’s Registrable Securities shall not be included on the applicable Registration Statement, and the Company shall have no further obligations hereunder with respect to Registrable Securities held by the Investor, unless the Investor has not had an opportunity to conduct customary underwriter’s due diligence with respect to the Company at the time the Investor’s consent is sought;
promptly notify the Investor: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of
Exhibit 10.4
the Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” Laws of any jurisdiction or the initiation of any proceeding for such purpose (provided that in no event shall such notices under clauses (ii) or (iii) contain any material, non-public information unless consented to in advance by the Investor);
if at any time (i) any event or development shall occur or condition shall exist as a result of which the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company will promptly notify the Investor and promptly prepare and file with the SEC (to the extent required) and furnish to the Investor such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package, as so amended or supplemented, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, be misleading, or so that the Disclosure Package will comply with Law;
use its commercially reasonable efforts to make generally available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on the NYSE or, if not the NYSE, the primary trading market or any other national securities exchange on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed;
provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
immediately notify each Investor, at any time when a Prospectus is required to be delivered under the Securities Act, of the occurrence or happening of any event as a result of which the Prospectus contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits 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 (provided that in no event shall such notice contain any material, non-public information), and, as promptly as reasonably practicable prepare and furnish to each such Investor a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered, 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
Exhibit 10.4
necessary to make the statements therein not misleading in the light of the circumstances then existing;
in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Investor or its legal counsel;
use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose (provided that in no event shall such notices under this clause (n) contain any material, non-public information unless consented to in advance by the Investor);
otherwise use its commercially reasonable efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Investor in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Registrable Securities to be sold from time to time as permitted by Law;
use its commercially reasonable efforts to cooperate with the Investor and its counsels in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, the NYSE or any other national securities exchange on which the Registrable Securities are listed;
pay the applicable filing fees covering the Registrable Securities in compliance with the SEC rules and to file such amendments or subsequent registration statements as may be required to maintain an effective registration statement for the relevant Effectiveness Period;
use its commercially reasonable efforts to cooperate with the Investor in the disposition of the Registrable Securities covered by such Registration Statement; and
if a Registration Statement is an ASRS that has been outstanding for at least three (3) years, at or prior to the end of the third (3rd) year, the Company shall refile a new ASRS covering the Registrable Securities which remain outstanding. If at any time when the Company is required to re-evaluate its ASR Eligible status or eligibility to use Form F-3 or Form S-3, as applicable, the Company determines that it is not ASR Eligible or eligible to use Form F-3 or Form S-3, as applicable, the Company shall use its commercially reasonable efforts to refile the Transaction Shelf Registration Statement on Form F-3 or Form S-3, as applicable, and, if such
Exhibit 10.4
form is not available, Form F-1 or Form S-1 (or other appropriate form) and keep the Transaction Shelf Registration Statement continuously effective subject to Section 1.3.
In the event that the SEC informs the Company that the number of securities proposed to be registered under a Registration Statement exceeds the number which may be registered without violating applicable SEC rules and regulations, including, without limitation, Rule 415 under the Securities Act of 1933, as amended, the Company shall promptly notify the holders of Registrable Securities and shall include in such Registration Statement, to the extent permitted by the SEC, the number of Registrable Securities that the Company is so permitted to register. The securities to be included in the Registration Statement shall be allocated among the holders of Registrable Securities in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by each holder thereof at the time such Registration Statement is filed. Any Registrable Securities excluded or withdrawn from such a Registration Statement shall be included in a subsequent registration statement to be filed by the Company as soon as reasonably practicable, to the extent permitted by the SEC, and the Company shall use its commercially reasonable efforts to cause such subsequent registration statement to be declared effective by the SEC.
Effectiveness Period. For purposes of this Article I, the period of distribution of Registrable Securities pursuant to a Registration Statement shall be deemed to extend until the sale of all Registrable Securities covered thereby.
Indemnification.
Indemnification Rights.
In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article I, the Company shall indemnify and hold harmless each Investor and each Person, if any, that controls such Investor within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, shareholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, (B) any omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided that the Company shall not be liable to an Investor Registration Rights Indemnitee to the extent that any such Damages are directly caused by any untrue statement or omission (or alleged untrue statement or omission) made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in strict reliance upon and strictly in conformity with written information about such Investor furnished to the Company by or on behalf of such Investor expressly for use therein. This indemnity shall be in addition to any
Exhibit 10.4
liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any Investor Registration Rights Indemnitee and shall survive the Transfer of securities by each Investor.
Each Investor shall, severally and not jointly, indemnify and hold harmless the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors, officers and employees (each, a “Company Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or in any amendment or supplement thereto, (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, to the extent that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein or (C) any violation or alleged violation by the Investor of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that in no event shall the obligations of such Investor hereunder exceed the net proceeds received by it from the sale of its Registrable Securities related to the matter in which Damages are sought. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such securities by such Investor.
If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to an Investor Registration Rights Indemnitee or a Company Registration Rights Indemnitee, as applicable, with respect to any Damages referred to therein or is unenforceable or insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless as contemplated therein, then the Company or the Investor, as applicable, in lieu of indemnifying such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable by such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of such Damages in such proportion as is appropriate to reflect the relative fault of such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the Company or the Investor, as applicable, on the other hand, in connection with the statements or omissions which resulted in such Damages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or the Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 1.6(a)(iii) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to
Exhibit 10.4
in this Section 1.6(a)(iii). No Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything herein to the contrary, in no event shall the liability of an Investor in this Section 1.6(a)(iii) be greater in amount than the amount of net proceeds received by it from the sale of such Registrable Securities related to the matter in which indemnification or contribution for Damages are sought.
Notice of Reg Rights Claim.
As used in this Agreement, the term “Reg Rights Claim” means a claim for indemnification or contribution by or on behalf of any Company Registration Rights Indemnitee or Investor Registration Rights Indemnitee, as the case may be, for Damages under Section 1.6(a) (such Person making a Reg Rights Claim, a “Reg Rights Indemnified Person”). The Company (for its own Damages or for the Damages incurred by any other Company Registration Rights Indemnitee) or of an Investor (for its own Damages or for the Damages incurred by any other Investor Registration Rights Indemnitee), as applicable, shall give notice of a Reg Rights Claim under this Agreement pursuant to a written notice of such Reg Rights Claim executed by the Company or the Investor, as applicable (a “Notice of Reg Rights Claim”), and delivered to the Company or the Investor, as applicable (such receiving party, the “Reg Rights Indemnifying Person”), promptly after such Reg Rights Indemnified Person becomes aware of the existence of any potential claim by such Reg Rights Indemnified Person for indemnification arising out of or resulting from any item indemnified pursuant to the terms of Section 1.6(a)(i) or Section 1.6(a)(ii) as applicable; provided that the failure to timely give such notice shall not limit or reduce the Reg Rights Indemnified Person’s right to indemnification hereunder unless (and then only to the extent that) the Reg Rights Indemnifying Person’s defense of such Reg Rights Claim is actually materially and adversely prejudiced thereby.
Each Notice of Reg Rights Claim shall: (A) state the aggregate amount (where practicable) that the Reg Rights Indemnified Person has incurred or paid in Damages arising from such Reg Rights Claim (which amount may include the amount of Damages claimed by a third party in an action (a “Third-Party Reg Rights Claim”) brought against such Reg Rights Indemnified Person based on alleged facts, which if true, would give rise to liability for Damages to such Reg Rights Indemnified Person); and (B) contain a brief description, in reasonable detail (to the extent reasonably available to the Reg Rights Indemnified Person) of the facts, circumstances or events giving rise to the alleged Damages based on the Reg Rights Indemnified Person’s good faith belief and knowledge thereof, including the identity and address of any third party claimant (to the extent reasonably available to the Reg Rights Indemnified Person).
Defense of Third-Party Reg Rights Claims.
Subject to the provisions hereof, the applicable Reg Rights Indemnifying Person shall have the right (at its own expense) to elect to defend and assume control of the defense of any Third-Party Reg Rights Claim on behalf of a Reg Rights Indemnified Person, utilizing legal counsel reasonably acceptable to such Reg Rights Indemnified Person. In the event such election is made, the Reg Rights Indemnified Person (unless itself controlling the
Exhibit 10.4
Third-Party Reg Rights Claim in accordance with this Section 1.6(c)) may participate, through counsel of its own choice and, except as provided herein, at its own expense, in the defense of any Third-Party Reg Rights Claim. The reasonable and documented costs and expenses incurred by the Reg Rights Indemnifying Person in connection with such defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Reg Rights Indemnifying Person.
A Reg Rights Indemnifying Person shall not be entitled to assume control of such defense, and the applicable Reg Rights Indemnified Person may assume the control and defense thereof, at the sole expense of the applicable Reg Rights Indemnifying Person, if (A) the Reg Rights Claim relates to, or arises in connection with, any criminal or governmental proceeding, action, indictment, allegation or investigation, (B) the Reg Rights Claim seeks an injunction against the Reg Rights Indemnified Person, to the extent that such defense relates to the claim for such injunction, (C) a conflict of interest between the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person exists with respect to the Reg Rights Claim or the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person have one or more conflicting defenses, in the reasonable view of their respective counsel, or (D) the Reg Rights Indemnifying Person has elected to have the Reg Rights Indemnified Person defend, or assume the control and defense of, a Third-Party Reg Rights Claim in accordance with this Section 1.6(c); provided that in no event shall the Reg Rights Indemnifying Person be liable for the fees and expenses of more than one separate counsel for all Reg Rights Indemnified Persons, which counsel shall be selected by the Investors (in the case of the Investor Registration Rights Indemnitees) or by the Company (in the case of the Company Registration Rights Indemnitees).
Any party controlling the defense of any Third-Party Reg Rights Claim pursuant hereto shall: (A) conduct the defense of such Third-Party Reg Rights Claim with reasonable diligence and keep the other parties reasonably informed of material developments in the Third-Party Reg Rights Claim at all stages thereof, (B) as promptly as reasonably practicable, submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other parties and their counsel to confer on the conduct of the defense thereof, and (D) permit the other parties and their counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties not controlling the defense will render to the party controlling the defense such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the party controlling the defense in connection therewith. The Reg Rights Indemnifying Person shall reimburse the parties not controlling the defense for any reasonable and documented costs and expenses incurred in connection with providing such assistance. Notwithstanding anything to the contrary in this Agreement, no Party shall be required to disclose any information to the other Party or its Representatives, if doing so would be reasonably expected to violate any Law to which such Party is subject or could jeopardize (in the reasonable discretion of the disclosing Party) any attorney-client privilege available with respect to such information.
If the Reg Rights Indemnifying Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnifying Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim on the Reg Rights Indemnified Person’s behalf and without the consent of the Reg Rights Indemnified
Exhibit 10.4
Person; provided that (A) such settlement shall not involve any injunctive relief binding upon the Reg Rights Indemnified Person or any of its Affiliates, (B) such settlement expressly and unconditionally releases the Reg Rights Indemnified Person and the other applicable Reg Rights Indemnified Persons (that is, each of the Company Registration Rights Indemnitees, if the Reg Rights Indemnified Person is a Company Registration Rights Indemnitee, and each of the Investor Registration Rights Indemnitees, if the Reg Rights Indemnified Person is an Investor Registration Rights Indemnitee) from any and all liabilities with respect to such Third-Party Reg Rights Claim, with prejudice and (C) the Reg Rights Indemnifying Person unconditionally acknowledges in writing to the Reg Rights Indemnified Person its obligation to pay all Damages of the Reg Rights Indemnified Person with respect to such Third-Party Reg Rights Claim. In all other events, the consent of the Reg Rights Indemnified Person shall be required to effect such a settlement (which consent shall not be unreasonably withheld, conditioned or delayed). If the Reg Rights Indemnified Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnified Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim only with the consent of the Reg Rights Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). No settlement by the Reg Rights Indemnified Person of such Third-Party Reg Rights Claim effected in accordance with this Section 1.6(c) shall limit or reduce the right of any Reg Rights Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Reg Rights Claim, to the extent such Damages are indemnifiable hereunder. As used in this Section 1.6(c)(iv), the term “settlement” refers to any consensual resolution of the claim in question, including by consent decree or by permitting any judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.
Free Writing Prospectuses. Except for a Prospectus relating to Registrable Securities included in a Registration Statement, an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) prepared by the Company or other materials prepared by Company, each Investor represents and agrees that it (a) will not make any offer relating to the Registrable Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a Free Writing Prospectus, and (b) will not distribute any written materials in connection with the offer or sale pursuant to a Registration Statement of Registrable Securities, in each case, without the prior written consent of the Company.
Information from and Obligations of each Investor. The Company’s obligation to include the Investor’s Registrable Securities in any Registration Statement or Prospectus is contingent upon each of the Investors:
furnishing to the Company in writing information with respect to its ownership of Registrable Securities and the intended method of disposition of its Registrable Securities as may be required by the Company and as required by Law for use in connection with a Registration Statement or Prospectus (or any amendment or supplement thereto) and all information required to be disclosed in order to make the information the Investor previously furnished to the Company not contain a material misstatement of fact or necessary to cause such Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material fact with respect to the Investor necessary in order to make the statements therein not misleading;
Exhibit 10.4
complying in all material respects with (i) the Securities Act and the Exchange Act, (ii) all applicable state securities Laws, (iii) the rules of any securities exchange or trading market on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed or traded, and (iv) all other applicable regulations, in each case, in connection with, and only to the extent applicable to, the registration and the disposition of Registrable Securities by the Investor;
following its actual knowledge thereof, notifying the Company of the occurrence of any event that makes any statement made in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus regarding the Investor untrue in any material respect or that requires the making of any changes in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements not misleading;
providing the Company with such information related to the Investor as may be required to enable the Company to prepare a supplement or post-effective amendment to any such Registration Statement or a supplement to such Prospectus or Free Writing Prospectus;
using commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement and any related Prospectus; and
furnishing the Company with all information required to be included in such Registration Statement or Prospectus by applicable securities Laws in connection with the disposition of such Registrable Securities as the Company reasonably requests.
Rule 144 Reporting.
With a view to making available to each Investor the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to make and keep available adequate current public information, as defined in Rule 144(c), including all periodic and annual reports and other documents (other than Form 6-K reports) required of the Company under Sections 13 or 15(d) of the Exchange Act, and so long as an Investor beneficially owns any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Investor may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any Registrable Securities without registration.
For the avoidance of doubt, each Investor may sell any Registrable Securities in compliance with Rule 144, regardless of whether a Registration Statement has been filed with the SEC or is effective. The Company agrees to (i) make and keep public information available as those terms are understood and defined in Rule 144, (ii) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, and (iii) so long as an Investor owns any Registrable Securities, furnish to such Investor upon request, a written statement by the
Exhibit 10.4
Company as to its compliance with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act.
Termination of Registration Rights. Notwithstanding anything to the contrary contained herein and subject to Section 1.11, the registration rights granted under this Article I terminate and are of no further force and effect (other than Section 1.2 and Section 1.6), on the date on which there cease to be any Registrable Securities.
Transfer of Registration Rights. Each Investor shall have the right to Transfer to any Person (such Person, a “Transferee Investor”), directly or indirectly, by written agreement, all of its related rights and obligations granted under this Article I in connection with a Transfer of all of its Registrable Securities to such Person; provided, that in the case of Transfers to limited partners, members or Affiliates of an Investor, such Investor shall have the right to transfer its related rights and obligations under this Article I in connection with the Transfer of all or any portion of its Registrable Securities. Such Transferee Investor shall, following such Transfer, become responsible for all obligations applicable to the Investor under this Article I with respect to the Registrable Securities Transferred to such Transferee Investor.
TERMINATION
Termination. This Agreement shall terminate upon the earlier of (i) the time when there are no Registrable Securities outstanding, (ii) the time when all of the Registrable Securities (a) are freely transferable under Rule 144 and the securities laws of any other applicable jurisdiction without limitation, or any volume, manner-of-sale or other restrictions or conditions, without registration and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Company’s transfer agent and the Investor, and (b) do not and/or shall not when issued bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP, and (iii) the mutual written agreement of each Investor and the Company.
Effect of Termination; Survival. In the event of any termination of this Agreement pursuant to Section 2.1, this Agreement shall be terminated, and there shall be no further liability or obligation hereunder on the part of any Party, other than Section 1.6, Section 1.9, this Section 2.2 and Article III, which provisions shall survive such termination; provided, however, that nothing contained in this Agreement (including this Section 2.2) shall relieve a Party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent occurring prior to such termination.
GENERAL PROVISIONS
No Confidential Information. In no event shall the Company or its Representatives provide any non-public records, books, Contracts, instruments, computer data or other data or information concerning the Company or its subsidiaries to an Investor unless the Investor has agreed to accept such information in writing beforehand.
Exhibit 10.4
Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company, addressed to it at:
Sequans Communications SA
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
If to the Investor, addressed to it at: to such address or addresses set forth on the signature page hereto.
Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
“Action” means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case, whether civil, criminal or investigative).
“ADS” has the meaning set forth in the recitals to this Agreement.
Exhibit 10.4
“Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of an Investor shall be deemed to be an “Affiliate” of the Investor.
“American Depositary Shares” or “ADSs” means those certain American Depositary Shares issued pursuant to a deposit agreement by and among the Company, Bank of New York Mellon (or any successor thereto), as depositary, and the owners and holders of American Depositary Shares, as such agreement may from time to time be amended.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“ASR Eligible” means the Company meets or is deemed to meet the eligibility requirements to file an ASRS as set forth in the General Instruction to Form F-3 or Form S-3, as applicable.
“ASRS” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.
“Board” or “Board of Directors” means the board of directors of the Company, or any duly authorized committee thereof.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States, a legal holiday in the Republic of France or any day on which banking institutions in New York City or Paris are authorized or required by law or other governmental action to close; provided, however, for clarification, banking institutions in New York City or Paris shall not be deemed to be authorized or required by law or executive order to close or be closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in New York City or Paris are open for use by customers on such day.
“Common Warrant” has the meaning set forth in the recitals to this Agreement.
“Common Warrant ADSs” has the meaning set forth in the recitals to this Agreement.
“Common Warrant Shares” has the meaning set forth in the recitals to this Agreement.
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(ii).
“Contract” means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license, sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.
Exhibit 10.4
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.
“controlling person” has the meaning set forth in Section 1.6(a)(i).
“Conversion ADSs” has the meaning set forth in the recitals to this Agreement.
“Damages” means any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities, judgments, and reasonable and documented out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs.
“Disclosure Package” means, with respect to any offering of Registrable Securities, (a) the preliminary Prospectus or Prospectus, as applicable, (b) each Free Writing Prospectus, and (c) all other information, in each case, that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of Registrable Securities at the time of sale of such securities.
“Effectiveness Period” has the meaning set forth in Section 1.5.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor regulatory organization.
“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act relating to the Registrable Securities included in the applicable Registration Statement that has been approved for use by the Company.
“Governmental Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body of competent jurisdiction.
“Investor” has the meaning set forth in the preamble to this Agreement.
“Investor Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(i).
“issuer free writing prospectus” has the meaning set forth in Section 1.7.
“Law” any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law), statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.
“Notice of Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
Exhibit 10.4
“Notice of Suspension” has the meaning set forth in Section 1.3(a).
“Order” means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena, writ, decree or verdict entered by or with any Governmental Entity.
“Ordinary Shares” means ordinary shares, nominal value €0.01 per share, of the Company.
“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.
“Person” means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
“Pre-Funded Warrant” has the meaning set forth in the recitals to this Agreement.
“Pre-Funded Warrant ADSs” has the meaning set forth in the recitals to this Agreement.
“Pre-Funded Warrant Shares” has the meaning set forth in the recitals to this Agreement.
“Prospectus” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference, or deemed to be incorporated by reference, into such prospectus.
“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.
“Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnified Person” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnifying Person” has the meaning set forth in Section 1.6(b)(i).
“Registrable Securities” means (i) the Conversion ADSs, (ii) the Pre-Funded Warrant ADSs, (iii) the Common Warrant ADSs, (iv) a number of Ordinary Shares represented by ADSs issuable pursuant to the Secured Convertible Debentures as Interest ADSs (as such term is defined in the Secured Convertible Debentures) equal to [30%] of the aggregate number of Conversion ADSs issuable pursuant to the Secured Convertible Debentures as of the date of this Agreement and (v) any Ordinary Shares or Ordinary Shares represented by ADSs issued (or issuable upon the conversion or exercise of any warrant, right or other security that is issued) as a result of any stock split, recapitalization, exchange, dividend or other distribution with respect to, or in exchange for or in replacement of, the Conversion ADSs, the Pre-Funded Warrant ADSs, and/or the Common Warrant ADSs; provided, that a security will cease to be a Registrable Security on the earliest to occur of (a) the date such Registrable Security has been resold by such Investor pursuant to a Registration Statement or Rule 144 or (b) upon the date such Registrable
Exhibit 10.4
Security becomes eligible for resale by such Investor under Rule 144 without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144.
“Registration Expenses” means (whether or not any Registration Statement is declared effective or any of the transactions described herein is consummated) all expenses incurred by the Company in filing a Registration Statement, including, all registration and filing fees, fees and disbursements of counsel for the Company, SEC or FINRA registration and filing fees, all applicable ratings agency fees, expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration, fees and expenses of compliance with securities or “blue sky” Laws, costs of any comfort letters required by any underwriter, listing fees, printing, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, the Company’s internal expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on the New York Stock Exchange or any other securities exchange, roadshow expenses, all other expenses incident to the registration of the Registrable Securities; provided, that the term “Registration Expenses” does not include, and the Company shall not be responsible for, Selling Expenses.
“Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act filed with the SEC covering the resale of Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such Registration Statement.
“Representatives” means a Person’s officers, directors, employees, accountants, consultants, legal counsel, investment bankers, other advisors, authorized agents and other representatives.
“Rule 144” means Rule 144 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“Rule 415” means Rule 415 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“Secured Convertible Debenture Offering” has the meaning set forth in the recitals to this Agreement.
“Secured Convertible Debentures” has the meaning set forth in the recitals to this Agreement.
“Selling Expenses” means, in connection with the registration or offering and sale of the Registrable Securities, (a) all underwriting fees, discounts and selling commissions fees, (b)
Exhibit 10.4
stock transfer taxes applicable to the sale of the Registrable Securities, and (c) fees and expenses of any counsel to the Investors other than the counsel referred to in the definition of Registration Expenses.
“settlement” and “settle” have the meanings set forth in Section 1.6(c)(iv).
“Shelf Registration Statement” means a registration statement filed with the SEC for the sale of Registrable Securities pursuant to Rule 415 under the Securities Act.
“Suspension Period” has the meaning set forth in Section 1.3(a).
“Third-Party Reg Rights Claim” has the meaning set forth in Section 1.6(b)(ii).
“Transaction Documents” means collectively, this Agreement, the Purchase Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Transaction Shelf Registration Statement” has the meaning set forth in Section 1.1(a).
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities.
“Transferee Investor” has the meaning set forth in Section 1.11.
Interpretation; Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars” and “$” or “euros” and “€” will be deemed references to the lawful money of the United States of America or lawful money of the European Union. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of
Exhibit 10.4
intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall limit the applicability of a more general provision, representation or warranty. It is the intent of the Parties that each representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent effect and that such provisions are cumulative. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless otherwise specified.
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Purchase Agreement, the Secured Convertible Debentures and this Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Entire Agreement; Amendments. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of the Company and the Required Holders.
Assignment; No Third Party Beneficiaries. Except as expressly provided herein, including, without limitation, the transfer of rights and obligations as set forth in Section 1.11, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Further Assurances. Each Party shall cooperate, take such actions, enter into such agreements (including customary indemnification and contribution agreements) and execute such documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby; provided, however, that no Party shall be obligated to take any actions or omit to take any actions that would be inconsistent with applicable Law.
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
Exhibit 10.4
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates). Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by either Party, (b) agrees that service of process will be validly effected by sending notice in accordance with Section 3.3, (c) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above named courts, and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.
The Company agrees that service to the Process Agent (as defined below) or as otherwise specified in Section 3.3 shall be valid and sufficient service, and the Company waives any objections to such service. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 (the “Process Agent”), as the designee, appointee and agent of the Company to receive, for and on behalf of the Company, service of process for the purposes of this Section 3.10. The Company irrevocably waives any requirements for service abroad of process or other documents, including under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Company agrees that service of process in respect of it upon the Process Agent shall be deemed to be effective service of process upon it. The Company agrees that the failure of the Process Agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any Action based thereon. If for any reason the Process Agent shall cease to be available to act as such, the Company agrees to irrevocably appoint another such agent as its authorized agent for service of process, on the terms and for the purposes of this Section 3.10. Nothing herein shall in any way be deemed to limit the
Exhibit 10.4
ability of the Investor to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable Law.
Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by the other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. Each Party further agrees that neither the other Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 3.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Waiver. Any Party entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.
Recapitalization, Exchanges, etc.
The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares or other securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise), which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, stock splits, recapitalizations, pro rata distributions of stock and the like occurring after the date of this Agreement.
The Company agrees that it shall not effect or permit to occur any combination or subdivision of Ordinary Shares or other securities constituting Registrable Securities which would adversely affect the ability of the Investors to include such Registrable Securities in any registration contemplated by this Agreement or the marketability of such Registrable Securities in any such registration.
Exhibit 10.4
Obligations Limited to Parties to this Agreement. Each of the Parties hereto covenants, agrees and acknowledges that no Person other than the Investors (and their transferees or assignees) and the Company shall have any obligation hereunder and that notwithstanding that an Investor is a limited partnership, limited liability company or other entity, no recourse under this Agreement shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, as such, for any obligations of the Investor under this Agreement or for any claim based on, in respect of or by reason of such obligation or its creation.
[Signature Page Follows]
Exhibit 10.4
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the date first written above, by their respective officers thereunto duly authorized.
| SEQUANS COMMUNICATIONS S.A. | ||||||||
| By: | ||||||||
| Name: Georges Karam | ||||||||
| Title: Chief Executive Officer | ||||||||
[Signature Page to Registration Rights Agreement]
Exhibit 10.4
| INVESTOR | ||||||||
| by: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Duly authorized | ||||||||
Exhibit 10.5
GUARANTY AND SECURITY AGREEMENT
among
SEQUANS COMMUNICATIONS S.A.
and certain of its Subsidiaries as herein provided,
as Guarantors and as Grantors
and
HUDSON BAY PH XVI LTD.,
as Collateral Agent
dated as of
[___], 2025
Exhibit 10.5
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND INTERPRETATION............................................................... 2
Section 1.01 Definitions.................................................................................................... 2
Section 1.02 Interpretation................................................................................................. 5
Section 1.03 Resolution of Drafting Ambiguities................................................................. 5
Section 1.04 Schedules...................................................................................................... 5
Article II GUARANTY OBLIGATIONS................................................................................ 5
Section 2.01 Guaranty....................................................................................................... 5
Section 2.02 Limited Guaranty........................................................................................... 8
Section 2.03 Unenforceability of Debenture Obligations Against Company.......................... 8
Section 2.04 Subrogation; Subordination............................................................................ 8
Section 2.05 Joinder of Additional Guarantors.................................................................... 9
Section 2.06 Reinstatement................................................................................................ 9
Article III Grant of security interest........................................................................................ 9
Section 3.01 Grant of Security Interest................................................................................ 9
Section 3.02 Security for Secured Obligations................................................................... 10
Article IV Covenants; Further Assurances; Collateral Release..................... 10
Section 4.01 Covenants................................................................................................... 10
Section 4.02 Further Assurances...................................................................................... 11
Section 4.03 Joinder of Additional Grantors...................................................................... 12
Article V Representations, warranties and covenants....................................... 12
Section 5.01 Purchase Agreement Representations............................................................ 12
Section 5.02 Ownership of Property and No Other Liens................................................... 13
Section 5.03 Perfected First Priority Security Interest........................................................ 14
Section 5.04 Changes in Name, Jurisdiction of Organization, Etc....................................... 14
Section 5.05 Collateral Representations............................................................................ 14
Article VI [Reserved]........................................................................................................... 15
Article VII [Reserved].......................................................................................................... 15
Article VIII [Reserved]......................................................................................................... 15
Article IX Remedies............................................................................................................ 15
Section 9.01 Remedies.................................................................................................... 15
Section 9.02 No Waiver and Cumulative Remedies........................................................... 16
Section 9.03 Application of Proceeds; Deficiency............................................................. 16
Article X MISCELLANEOUS............................................................................................. 17
Section 10.01 Concerning Collateral Agent........................................................................ 17
Section 10.02 Performance By Collateral Agent.................................................................. 17
Section 10.03 Power of Attorney........................................................................................ 18
Exhibit 10.5
Section 10.04 Continuing Security Interest and Assignment................................................. 18
Section 10.05 [Reserved]................................................................................................... 19
Section 10.06 Modification in Writing................................................................................ 19
Section 10.07 Notices........................................................................................................ 19
Section 10.08 Indemnity and Expenses............................................................................... 19
Section 10.09 Governing Law, Consent to Jurisdiction and Waiver of Jury Trial................... 20
Section 10.10 Severability of Provisions............................................................................. 21
Section 10.11 Counterparts; Integration; Effectiveness........................................................ 21
Section 10.12 No Release.................................................................................................. 21
Section 10.13 Obligations Absolute.................................................................................... 22
Exhibits
Exhibit A | Form Joinder Agreement | ||||
Schedules
Schedule 1 Schedule 2 | Guarantor and Grantor Notice Information Perfection Information | ||||
Exhibit 10.5
GUARANTY AND SECURITY AGREEMENT
This GUARANTY AND SECURITY AGREEMENT, dated as of [___], 2025 (the “Effective Date”) (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof, this “Agreement”), made by and among (a) Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), (b) the guarantors listed on the signature pages attached hereto (the “Original Guarantors”) or from time to time party hereto by execution of a joinder agreement (the “Additional Guarantors”, and together with the Original Guarantors, the “Guarantors”, and each a “Guarantor”), (c) the grantors listed on the signature pages attached hereto (the “Original Grantors”) or from time to time party hereto by execution of a joinder agreement (the “Additional Grantors”, and together with the Original Grantors, the “Grantors”, and each, a “Grantor”), in favor of Hudson Bay PH XVI Ltd., a Cayman Islands company, in its capacity as collateral agent pursuant to the Purchase Agreement (as hereinafter defined) and each of the Debentures (as hereinafter defined), as pledgee, assignee, and secured party (in such capacities and together with any successors in such capacities, the “Collateral Agent”).
RECITALS
The Company has in connection with the execution and delivery of this Agreement, entered into that certain Secured Debenture Purchase Agreement, dated as of the Effective Date (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), by and among the Company, each buyer party thereto, and the Collateral Agent pursuant to which, among other things, the Company has sold one or more Debentures (as defined in the Purchase Agreement) to the Persons identified on Schedule I attached to the Purchase Agreement (such persons, individually a “Holder” and, collectively, the “Holders”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Purchase Agreement or the Debentures, as applicable.
The Company, each Guarantor and each Grantor will receive substantial direct and indirect benefits from the execution, delivery and performance of the obligations under the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), and each is, therefore, willing to enter into this Agreement.
This Agreement is given by each Guarantor and each Grantor in favor of the Collateral Agent for the ratable benefit of the Secured Parties (as hereinafter defined) to guarantee the payment and performance of all Debenture Obligations and to secure the payment and performance of all of the Secured Obligations.
It is a condition to the obligations of the Holders to purchase the Debentures under the Purchase Agreement that each Guarantor and each Grantor execute and deliver the applicable Transaction Documents, including this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor, each Guarantor and the Collateral Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions.
Exhibit 10.5
(a) Unless otherwise defined herein or in the Purchase Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC. However, if a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9.
(b) The following terms shall have the following meanings:
“Additional Grantors” has the meaning set forth in the Preamble hereof.
“Additional Guarantors” has the meaning set forth in the Preamble hereof.
“Agreement” has the meaning set forth in the Preamble hereof.
“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
“Bitcoin” has the meaning specified therefor in the Debentures.
“Bitcoin Escrow Account” has the meaning specified therefor in the Debentures.
“Books and Records” means, with respect to the Grantors, all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.
“Cash Collateral Account” has the meaning specified thereof in the Debentures.
“Claims” means any and all property and other taxes, assessments and special assessments, levies, fees and all governmental charges imposed upon or assessed against, and landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s, suppliers’ and warehousemen’s Liens, and other claims arising by operation of law against, all or any portion of the Collateral.
“Collateral” has the meaning set forth in Section 3 hereof.
“Collateral Agent” has the meaning set forth in the Preamble hereof.
“Company” has the meaning set forth in the Preamble hereof.
“Debentures” has the meaning ascribed to the term “Secured Convertible Debentures” in the Purchase Agreement.
“Debenture Obligations” has the meaning set forth in Section 2 hereof.
“Event of Default” means any “Event of Default” pursuant to Section 3(a) of the Debentures.
“General Intangibles” means general intangibles (as that term is defined in the UCC).
Exhibit 10.5
“Grantor” has the meaning set forth in the Preamble hereof.
“Guarantors” has the meaning set forth in the Preamble hereof.
“Guaranty” means the guaranty of the Debenture Obligations set forth in Section 2 hereof.
“Holder” and “Holders” each has the meaning set forth in the first Recital hereof.
“Issuer Party(ies)” means the Company and each Guarantor and Grantor.
“Joinder Agreement” means an agreement substantially in the form of Exhibit A hereto.
“Laws” means, collectively, all international, foreign, federal, state, and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Entity charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Entity, in each case whether or not having the force of Law.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title to real property, lien (statutory or other), hypothec, charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) whether arising by contract, as a matter of law, by judicial process or otherwise.
“Original Grantors” has the meaning set forth in the Preamble hereof.
“Original Guarantors” has the meaning set forth in the Preamble hereof.
“Permitted Liens” means (a) Liens granted or existing under applicable law in favor of the custodian of the Bitcoin Escrow Account, or the depository bank maintaining the Cash Collateral Account, arising under applicable Law, (b) any Liens arising under the agreement governing the Bitcoin Escrow Account, by and between the custodian, the Company and the other parties signatory thereto and (c) any Liens arising under the agreement governing the Cash Collateral Account, by and between the Cash Collateral Bank, the Company and the other parties signatory thereto.
“Purchase Agreement” has the meaning set forth in the first Recital hereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, partners, agents, trustees, administrators, managers, advisors and representatives of it and its Affiliates.
“Secured Obligations” means (i) all obligations of the Company and the other Issuer Parties from time to time arising under the Purchase Agreement, each Debenture or any other Transaction Document with respect to the due and prompt payment of (A) the principal of and premium,
Exhibit 10.5
if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding (“Postpetition Interest”)) on the outstanding obligations under the Debentures, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (B) all other obligations and liabilities, including fees, costs, attorneys’ fees and disbursements, reimbursement obligations, contract causes of action, expenses and indemnities, whether primary, secondary, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Company and the other Issuer Parties under or in respect of any Transaction Document, and (ii) the due and prompt performance of all other covenants, duties, debts, obligations and liabilities of any kind of the Company and the other Issuer Parties, individually or collectively, under or in respect of the Purchase Agreement, this Agreement, the other Transaction Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether evidenced by a note or other writing, whether allowed in any bankruptcy, insolvency, receivership or other similar proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether primary, secondary, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, fixed or otherwise.
“Secured Parties” means, collectively, the Collateral Agent and the Holders.
“Transaction Documents” shall mean any “Transaction Document” as defined in the Purchase Agreement or any Debenture.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s and the Secured Parties’ security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“URL” means “uniform resource locator”, an internet web address.
Section 1.02 Interpretation. All references in this Agreement to Sections are references to Sections of this Agreement unless otherwise specified.
Section 1.03 Resolution of Drafting Ambiguities. Each Guarantor and each Grantor acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of this Agreement, that it and its counsel reviewed and participated in the preparation and negotiation of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Collateral Agent) shall not be employed in the interpretation of this Agreement.
Section 1.04 Schedules. The Collateral Agent, each Guarantor and each Grantor and each Secured Party agree that the Schedules hereof and all amendments and supplements thereto are and shall at all times remain a part of this Agreement.
Exhibit 10.5
ARTICLE II
GUARANTY OBLIGATIONS
1.
Section 2.01 Guaranty. Each Guarantor hereby jointly and severally, absolutely, unconditionally, and irrevocably guarantees to the Collateral Agent, for the ratable benefit of the Holders, as primary obligor and not merely as surety, all of the following when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise:
(a) the principal of and premium, if any, and interest at the rate specified in each Debenture (including interest accruing during the pendency of any bankruptcy, insolvency, receivership, or other similar proceeding, regardless of whether allowed or allowable in such proceeding (“Post-Petition Interest”)) on the outstanding obligations under each such Debenture (including any reimbursement obligation for disbursements and interest, when and as due, whether at scheduled maturity or the date set for prepayment, by acceleration or otherwise;
(b) all other monetary obligations of the Company to the Secured Parties under the Transaction Documents, when and as due, including fees, costs, expenses (including, without limitation, fees and expenses of counsel incurred by the Collateral Agent and or any other Secured Party in enforcing any rights under this Agreement or any other Transaction Document), contract causes of action and indemnities, whether primary, secondary, direct or indirect, absolute or contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership, or other similar proceeding, regardless of whether allowed or allowable in such proceeding);
(c) The due and prompt performance of all covenants, agreements, obligations, and liabilities of the Company under or in respect of the Transaction Documents;
(d) The due and prompt payment and performance of all covenants, agreements, obligations, and liabilities of each other Issuer Party under or in respect of this Agreement and the other Transaction Documents or any other document made, delivered or giving in connection with any of the foregoing; and
(e) The due and prompt payment and performance of all other Secured Obligations.
The foregoing, whether now or hereafter existing, collectively, the “Debenture Obligations”.
This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of the Debenture Obligations and is not limited to their collectability only and is in no way conditioned upon any requirement that the Collateral Agent or any Secured Party first attempt to collect or require the performance of any of the Debenture Obligations from the Company or resort to any security or other means of obtaining their payment. Should the Company default in the payment or performance of any of the Debenture Obligations, the obligations of the Guarantors hereunder shall become immediately due and payable to the Collateral Agent, for the benefit of the Secured Parties, without demand or notice of any nature, all of which are expressly waived by the Guarantor. The obligations of each Guarantor hereunder are independent of the obligations of the other Issuer Parties hereunder, the Issuer Parties under the other Transaction Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of the Issuer Parties under the other Transaction Documents and a separate action or actions may be brought and prosecuted against such
Exhibit 10.5
Guarantor whether or not any action is brought against the applicable Issuer Party or any of such other guarantors and whether or not the applicable Issuer Party is joined in any such action or actions.
Payment by any Guarantor of a portion, but not all, of the Debenture Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Debenture Obligations which has not been paid. Without limiting the generality of the foregoing, if the Secured Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Debenture Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Debenture Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Debenture Obligations.
The Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of principal or interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Debenture Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Debenture Obligations and take and hold security for the payment of this guaranty or the Debenture Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Debenture Obligations, any other guaranties of the Debenture Obligations, or any other obligation of any person (including any other Guarantor) with respect to the Debenture Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect of this guaranty or the Debenture Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent with the Transaction Documents and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Issuer Party or any security for the Debenture Obligations; and (vi) exercise any other rights available to it under the Transaction Documents.
This guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason, including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce, or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Transaction Documents at law, in equity or otherwise) with respect to the Debenture Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Debenture Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to or departure from, any of the terms or provisions (including provisions relating to events of default) of any of the Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Debenture Obligations, in each case whether or not in accordance with the terms of such Transaction Document or any agreement or instrument executed pursuant thereto or any agreement relating to such other guaranty or security; (iii) the Debenture Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Transaction Documents or from the proceeds of any security for the Debenture Obligations, except to the
Exhibit 10.5
extent such security also serves as collateral for indebtedness other than the Debenture Obligations) to the payment of indebtedness other than the Debenture Obligations, even though the Secured Party might have elected to apply such payment to any part or all of the Debenture Obligations; (v) the Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Issuer Party or any of their respective subsidiaries and to any corresponding restructuring of the Debenture Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Debenture Obligations; (vii) any defenses, set-offs or counterclaims which any Issuer Party may allege or assert against the Secured Party in respect of the Debenture Obligations, including failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Debenture Obligations.
Notwithstanding anything contained in this Section 2 to the contrary, the obligations of each Guarantor hereunder at any time shall be limited to the maximum amount as will result in the obligations of such Guarantor under this Agreement not constituting a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any similar Federal or state law, or any other Debtor Relief Law to the extent applicable to this Agreement and the obligations of each Guarantor hereunder.
Section 2.02 Limited Guaranty. The liability of each Guarantor hereunder shall be limited to the amount of the Debenture Obligations due to the Collateral Agent and the other Secured Parties. Each Guarantor agrees that all or part of the Debenture Obligations may be increased, extended, substituted, amended, renewed, or otherwise modified without notice to or consent from such Guarantor and such actions shall not affect the liability of such Guarantor hereunder. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Debenture Obligations and would be owed by any other Issuer Party to the Collateral Agent and the Secured Parties under or in respect of the Transaction Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, or similar proceeding involving such other Issuer Party.
Section 2.03 Unenforceability of Debenture Obligations Against Company. If for any reason the Company or any other Guarantor is under no legal obligation to discharge or perform any of the Debenture Obligations, or if any of the Debenture Obligations have become irrecoverable from the Company or any other Guarantor by operation of law or for any other reason, this Guaranty shall nevertheless be binding on the Guarantors to the same extent as if the Guarantors at all times had been the principal obligors on all such Debenture Obligations. In the event that acceleration of the time for payment of the Debenture Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Company or any Guarantor, or for any other reason, all such amounts otherwise subject to acceleration under the terms of any agreement evidencing, securing or otherwise executed in connection with any Debenture Obligation shall be immediately due and payable by the Guarantors.
Section 2.04 Subrogation; Subordination. To the extent permitted by Applicable Law, until the irrevocable payment and performance in full in cash of all Debenture Obligations, the Guarantors shall not exercise any rights against the Company or any other Guarantor arising as a result of payment by the Guarantors hereunder, by way of subrogation or otherwise, and will not prove any claim in competition with the Collateral Agent or the Secured Parties in respect of any payment hereunder in bankruptcy or insolvency proceedings of any nature; the Guarantors will not claim any set‑off or counterclaim against the Company or any other Guarantor in respect of any liability of the Guarantors to the Company; and the Guarantors waive any benefit of and any right to participate in any collateral that may be held by the Collateral Agent. The payment of
Exhibit 10.5
any amounts due with respect to any indebtedness of the Company now or hereafter held by any Guarantor is hereby subordinated to the prior irrevocable payment in full in cash of the Debenture Obligations. Each Guarantor agrees that after the occurrence of any default in the payment or performance of the Debenture Obligations, such Guarantor will not demand, sue for or otherwise attempt to collect any such indebtedness of the Company or any other Guarantor to such Guarantor until the Debenture Obligations shall have been irrevocably paid or performed in cash in full. If, notwithstanding the foregoing sentence, a Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Guarantor as trustee for the Collateral Agent and the Secured Parties and be paid over to the Collateral Agent on account of the Debenture Obligations without affecting in any manner the liability of the Guarantors under the other provisions of this Guaranty.
Section 2.05 Joinder of Additional Guarantors. The Guarantors shall cause each Subsidiary of the Company which, from time to time, after the date hereof shall be required to guarantee the Debenture Obligations in favor of the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the provisions of the Purchase Agreement and the Debentures, to execute and deliver to the Collateral Agent a Joinder Agreement within 30 days of the date on which it became subject to such requirement and, upon such execution and delivery, such Subsidiary shall constitute a “Guarantor” for all purposes hereunder with the same force and effect as if originally named as a Guarantor herein. Upon the execution and delivery by any Subsidiary of a Joinder Agreement, the supplemental schedules attached to such Joinder Agreement shall be incorporated into and become part of and supplement the Schedules to this Agreement and each reference to such Schedules shall mean and be a reference to such Schedules as supplemented pursuant to each Joinder Agreement and from time to time. The execution and delivery of such Joinder Agreement shall not require the consent of any Guarantor or any Grantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Agreement.
Section 2.06 Reinstatement. Each Guarantor agrees that its guaranty hereunder shall continue to be effective or be reinstated, as the case may be, if at any time all or part of any payment of any Debenture Obligation is rescinded or must otherwise be returned by any Secured Party or any other Person upon the insolvency, bankruptcy, or reorganization of the Issuer or any other Issuer Party or otherwise.
ARTICLE III
GRANT OF SECURITY INTEREST
Section 3.01 Grant of Security Interest. As collateral security for the payment and performance in full of all the Secured Obligations, each Grantor hereby pledges and assigns to the Collateral Agent for the ratable benefit of the Secured Parties, and grants to the Collateral Agent for the ratable benefit of the Secured Parties a Lien on and security interest in and to, all of the right, title and interest of such Grantor in, to and under the following property, wherever located, and whether now existing or hereafter arising or acquired from time to time, in each case, whether now owned by such Grantor or hereafter acquired and whether now existing or hereafter coming into existence and wherever located (collectively, the “Collateral”):
(a) Each Bitcoin Escrow Account whether now owned or hereafter established or acquired, and any and all Bitcoin, money and other property from time to time deposited therein, including, without limitation, any such account as it may have been renumbered or retitled, any and all proceeds thereof (including without limitation all interest and other sums paid thereon), and any and all General Intangibles and causes in action arising therefrom or related thereto;
Exhibit 10.5
(b) Each Cash Collateral Account whether now owned or hereafter established or acquired, and any and all money and other property from time to time deposited therein, including, without limitation, any such account as it may have been renumbered or retitled, any and all proceeds thereof (including without limitation all interest and other sums paid thereon), and any and all General Intangibles and causes in action arising therefrom or related thereto;
(c) all certificates, notes and instruments, if any, representing such Bitcoin Escrow Accounts and Cash Collateral Accounts on the Books and Records of each such Grantor and all amounts in such Bitcoin Escrow Accounts and Cash Collateral Accounts, payments, fees or expenses, and other proceeds from time to time received, receivable or otherwise distributed in respect of any or all of such Bitcoin Escrow Accounts and Cash Collateral Accounts;
(d) all of such Grantor’s Books and Records relating to the Collateral;
(e) all of the Proceeds, products, offspring, profits, substitutions and replacements of, and all rights and privileges of each such Grantor with respect to, the Collateral, whether tangible or intangible, of any of the foregoing, including money and Bitcoin.
Further, no Grantor shall be required to perfect the Liens granted by this Agreement other than by, (a) authorizing or making filings pursuant to the UCC, (b) entering into a control agreement with respect to the Bitcoin Escrow Account holding Collateral acquired on or after the Issuance Date to the extent required by Section 4.01(b)(i), or (c) entering into a deposit account control agreement with respect to the Cash Collateral Account holding Collateral acquired on or after the Issuance Date to the extent required by Section 4.01(b)(ii).
Section 3.02 Security for Secured Obligations. The Liens created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Collateral Agent, the Secured Parties or any of them, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an insolvency proceeding involving any Grantor due to the existence of such insolvency proceeding. Further, the Liens created hereby encumbers each Grantor’s right, title, and interest in all Collateral, whether now owned by such Grantor or hereafter acquired, obtained, developed, or created by such Grantor and wherever located.
ARTICLE IV
COVENANTS; FURTHER ASSURANCES; COLLATERAL RELEASE
Section 4.01 Covenants. Each Grantor, jointly and severally, covenants and agrees with Collateral Agent that from and after the Issuance Date and until the date of termination of this Agreement in accordance with the terms hereof:
(a) Transfers and Other Liens. Grantors shall not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, except as permitted by the Debenture, or (ii) create or permit to exist any Lien upon or with respect to any of the Collateral of any Grantor, except for Permitted Liens or as permitted by the Debenture. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Collateral Agent’s consent to any sale or other disposition of any of
Exhibit 10.5
the Collateral except as expressly permitted in this Agreement or the other Transaction Documents.
(b) Account Control Agreement. Each Grantor shall deliver to the Collateral Agent within the time periods specified by the Debentures:
(i) a fully executed blocked control agreement in form and substance reasonably satisfactory to the Collateral Agent, providing, except as otherwise permitted by Section 19 of the Debentures, the Collateral Agent with exclusive control pursuant to which the custodian would not accept instructions from an Issuer Party, with respect to the Bitcoin Escrow Account which shall be maintained pursuant to the terms of the Debentures. Such control agreement shall be effective to establish “control” under the UCC, to the extent applicable, pursuant to which it shall agree to comply with the Collateral Agent’s “entitlement orders” without further consent by such Grantor; and
(ii) a fully executed blocked control agreement in form and substance reasonably satisfactory to the Collateral Agent, providing, except as otherwise permitted by Section 19 of the Debentures, the Collateral Agent with exclusive control pursuant to which the deposit bank would not accept instructions from an Issuer Party, with respect to the Cash Collateral Account which shall be maintained pursuant to the terms of the Debentures. Such control agreement shall be effective to establish “control” under the UCC, to the extent applicable, pursuant to which it shall agree to comply with the Collateral Agent’s “instructions” without further consent by such Grantor.
Unless an Event of Default has occurred and is continuing, the Collateral Agent shall not issue any instructions or other orders in respect of the Bitcoin Escrow Account or the Cash Collateral Account other than pursuant to the written instructions of a Grantor or as required by the Debentures. The Collateral Agent hereby agrees to be bound by the terms and undertakings of the Collateral Agent or to which Collateral Agent is subject under Section 19 of the Debentures all with the same course and effect as if the Collateral Agent were a signatory to the Debentures.
(c) Name, Etc. If any Grantor changes its name, jurisdiction of organization or organizational identity it shall give prompt written notice (but no later than five (5) days thereafter) thereof to Collateral Agent of such change.
Section 4.02 Further Assurances.
(a) Subject to the last paragraph of Article III each Grantor agrees that from time to time, at its own expense, such Grantor will use commercially reasonable efforts to promptly execute and deliver all further instruments and documents, and will use commercially reasonable efforts to take all further action, that is necessary in order to perfect and protect the Liens granted hereby, to create, perfect or protect the Liens purported to be granted hereby or to enable Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.
(b) Subject to the last paragraph of Article III hereof each Grantor authorizes the filing by Collateral Agent of financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to Collateral Agent such other instruments or notices, as Collateral Agent may reasonably request, in order to perfect
Exhibit 10.5
and preserve the Liens granted or purported to be granted hereby and such Grantor shall pay all recording costs, recording and filing taxes, intangible taxes and other fees and costs (including reasonable attorneys’ fees and expenses) incurred by any Secured Party in connection therewith.
(c) Each Grantor authorizes Collateral Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments (i) describing the Collateral as described in Article III, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance.
(d) Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Collateral Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.
Section 4.03 Joinder of Additional Grantors. The Grantors shall cause each Subsidiary of the Company which, from time to time, after the date hereof shall be required to pledge any assets to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the provisions of the Purchase Agreement and the Debentures, to execute and deliver to the Collateral Agent a Joinder Agreement within 30 days of the date on which it became subject to such requirement and, upon such execution and delivery, such Subsidiary shall constitute a “Grantor” for all purposes hereunder with the same force and effect as if originally named as a Grantor herein. Upon the execution and delivery by any Subsidiary of a Joinder Agreement, the supplemental schedules attached to such Joinder Agreement shall be incorporated into and become part of and supplement the Schedules to this Agreement and each reference to such Schedules shall mean and be a reference to such Schedules as supplemented pursuant to each Joinder Agreement and from time to time. The execution and delivery of such Joinder Agreement shall not require the consent of any Grantor or any Guarantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.
Each Grantor represents, warrants and covenants as follows (as used herein, each reference to “Grantor” in this Article V refers to such Person in its capacity as a Grantor or as a Guarantor under this Agreement):
Section 5.01 Purchase Agreement Representations.
(a) Purchase Agreement Representations. Each Grantor makes the representations and warranties set forth in Section 3 of the Purchase Agreement as they relate to the Grantors or to the Transaction Documents to which any Grantor is a party, each of which is hereby incorporated herein by reference, and the Collateral Agent and the Secured Parties shall be entitled to rely on each of them as if they were fully set forth herein, provided that each reference in each such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 5.01, be deemed to be a reference to the Grantors’ knowledge.
Exhibit 10.5
(b) Existence. Each Grantor (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that the failure to qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect and (iii) is in compliance with all applicable Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. No Grantor is a Transmitting Utility.
(c) Power and Authorization. Each Grantor has the power and authority, and the legal right, to own or lease and operate its property, and to carry on the business as now conducted and as proposed to be conducted, and to execute, deliver and perform the Transaction Documents to which it is a party. Each Grantor has taken all necessary organizational action to authorize the execution, delivery and performance of the Transaction Documents to which it is a party. No consent or authorization of, filing with, notice to or other act by, or in respect of, any Governmental Entity or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Transaction Documents, except the filing of financing statements under the UCC. Each Transaction Document has been duly executed and delivered by each Grantor thereto.
(d) Enforceability. This Agreement constitutes, and each other Transaction Document when delivered hereunder will constitute, a legal, valid and binding obligation of each Grantor thereto, enforceable against each such Grantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(e) No Contravention. The execution, delivery and performance of this Agreement and the other Transaction Documents will not violate any Applicable Law or any Contractual Obligation of any Grantor and will not result in, or require, the creation or imposition of any Lien on any of their respective properties or assets pursuant to any Applicable Law or any such Contractual Obligation (other than Permitted Liens or Liens created by the Transaction Documents). No Applicable Law or Contractual Obligation applicable to the Grantors could reasonably be expected to have a Material Adverse Effect.
(f) No Litigation. No action, suit, litigation, investigation or proceeding of or before any arbitrator or Governmental Entity is pending or, to the knowledge of any Grantor, threatened by or against any Grantor or against any of its property or assets (i) with respect to any of the Transaction Documents or any of the transactions contemplated hereby or thereby, or (ii) that could reasonably be expected to have a Material Adverse Effect.
Section 5.02 Ownership of Property and No Other Liens. Each Grantor has good title to all its Collateral, and none of such property is subject to any Lien, claim, option or right of others, other than Permitted Liens and the security interest granted to the Collateral Agent for the ratable benefit of the Secured Parties and Liens as permitted by Section 4(c) of any Debenture. No Person other than the Collateral Agent has control or possession of all or any part of the Collateral, except as permitted by the Purchase Agreement.
Exhibit 10.5
Section 5.03 Perfected First Priority Security Interest. This Agreement is effective to create in favor of the Collateral Agent for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral.
Section 5.04 Changes in Name, Jurisdiction of Organization, Etc. On the date hereof, such Grantor’s type of organization, jurisdiction of organization, legal name, Federal Taxpayer Identification Number, organizational identification number (if any) and chief executive office or principal place of business are indicated next to its name in Schedule 2 hereof. Schedule 2 also lists all of such Grantor’s jurisdictions and types of organization, legal names and locations of chief executive office or principal place of business at any time during the four months preceding the date hereof, if different from those referred to in the preceding sentence.
Such Grantor shall not, except with prompt written notice (but in any event within 5 days), or such greater notice period agreed to by the Collateral Agent, to the Collateral Agent and the Required Holders, and delivery to the Collateral Agent and the Required Holders of all additional financing statements, information and other documents reasonably requested by the Collateral Agent or the Required Holders to maintain the validity, perfection and priority of the security interests provided for herein:
(a) change its legal name, identity, type of organization or corporate structure;
(b) change the location of its chief executive office or its principal place of business;
(c) change its Federal Taxpayer Identification Number or organizational identification number (if any);
(d) dissolve or otherwise fail to maintain its corporate existence, or merge with, or otherwise reorganize, consolidate with, or dissolve into, any other Person unless the surviving Person is a Guarantor and Grantor; or
(e) change its jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, organizing, dissolving, liquidating, reincorporating or incorporating in any other jurisdiction).
Such Grantor shall, prior to any change described in the preceding sentence, take all actions reasonably requested by the Collateral Agent or the Required Holders to maintain the perfection and priority of the security interest of the Collateral Agent for the ratable benefit of the Secured Parties in the Collateral intended to be granted hereunder.
Section 5.05 Collateral Representations.
(a) Each Grantor is the sole entitlement holder of each of its Bitcoin Escrow Accounts, and each such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any such Bitcoin Escrow Account or Bitcoin, securities or other property credited thereto.
(b) Each Grantor is the sole account holder of each of its Cash Collateral Accounts and each such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto and the applicable depository institution) having “control” (within the meaning of Section 9-104 of the UCC) over, or any other
Exhibit 10.5
interest in, any such Cash Collateral Account or any money or other property deposited therein
(c) Except for the security interests granted hereunder, such Grantor is and will continue to be the direct owner, beneficially and of record, of the Collateral, will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, or grant any option with respect to, the Collateral, other than Permitted Liens or Liens created by this Agreement, and will defend its title or interest thereto or therein against any and all Liens (other than Permitted Liens or the Liens permitted under this Agreement), however arising, of all persons whomsoever.
ARTICLE VI
[RESERVED]
ARTICLE VII
[RESERVED]
ARTICLE VIII
[RESERVED]
ARTICLE IX
REMEDIES
Section 9.01 Remedies.
(a) If any Event of Default shall have occurred and be continuing:
(i) Collateral Agent, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Transaction Documents (including, without limitation, the right to give instructions or a notice of sole control under a control agreement), or otherwise available to it, all the rights and remedies of a secured party on default under the UCC or any other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that upon the occurrence and during the continuation of an Event of Default, Collateral Agent without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC or any other applicable law), may give notice and take sole possession and control of all amounts on deposit in the Bitcoin Escrow Account or the Cash Collateral Account pursuant to the applicable control agreement and without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Collateral Agent’s offices or elsewhere, for cash, on credit, and upon such other terms as Collateral Agent may deem commercially reasonable. Collateral Agent shall not be obligated to make any sale of Collateral regardless of notification of sale having been given. Collateral Agent may adjourn any public sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made
Exhibit 10.5
at the time and place to which it was so adjourned. Each Grantor agrees that the internet shall constitute a “place” for purposes of Section 9-610(b) of the UCC.
(ii) Any cash held by Collateral Agent as Collateral and all cash Proceeds received by Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied against the Secured Obligations in accordance with the Debentures. In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full (other than inchoate contingent obligations), each Grantor shall remain jointly and severally liable for any such deficiency.
Section 9.02 No Waiver and Cumulative Remedies. No failure on the part of the Collateral Agent to exercise, no course of dealing with respect to, and no delay on the part of the Collateral Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power, privilege or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power, privilege or remedy; nor shall the Collateral Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. All rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law.
Section 9.03 Application of Proceeds; Deficiency. Upon the exercise by the Collateral Agent of its remedies hereunder, any proceeds received by the Collateral Agent in respect of any realization upon any Collateral or upon payment under the Guaranty hereunder shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: (i) first, to the payment of all fees, costs, expenses and indemnities due and owing to the Collateral Agent under this Agreement or any other Transaction Document, and any other Debenture Obligations owing to the Collateral Agent in respect of sums advanced by the Collateral Agent to preserve and protect the Collateral or to preserve or protect its security interest in the Collateral, until paid in full; (ii) second, to the payment of all fees, costs, expenses and indemnities due and owing to the Holders in respect of the obligations outstanding, pro rata based on each Holders pro rata share thereof, until paid in full; (iii) third, to the payment of all accrued and unpaid interest and payment premiums due and owing to the Holders in respect of all outstanding Debenture Obligations, pro rata based on each Holders pro rata share thereof, until paid in full; (iv) fourth, to the payment of all principal under the Debentures due and owing, pro rata based on each Holder’s pro rata share thereof, until paid in full; (v) fifth, to the payment of all other Debenture Obligations and Secured Obligations owing to each Holder under the Transaction Documents, pro based on each Holder’s pro rata share thereof; and (vi) sixth, to the Company or as any applicable Governmental Entity may direct. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay the Secured Obligations and the fees and other charges of any attorneys employed by the Collateral Agent to collect such deficiency.
ARTICLE X
MISCELLANEOUS
Section 10.01 Concerning Collateral Agent.
(a) Appointment. The Collateral Agent has been appointed as collateral agent in the Purchase Agreement and shall act in accordance with the terms of the Purchase Agreement. The Collateral Agent may exercise or refrain from exercising any rights (including making demands and giving notices) and take or refrain from taking any action (including the release or substitution of the Collateral), in accordance with this
Exhibit 10.5
Agreement and, if applicable, the Purchase Agreement. The Collateral Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Collateral Agent may resign and a successor Collateral Agent may be appointed in the manner provided in the Purchase Agreement. On the acceptance of appointment as the successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent under this Agreement, and the retiring Collateral Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Collateral Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent.
(b) Duty of care. The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with its own property consisting of similar instruments or interests. Neither the Collateral Agent nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action whatsoever with regard to any Collateral or (ii) taking any necessary steps to preserve rights against any Person with respect to any Collateral.
(c) Reliance. The Collateral Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and, with respect to all matters pertaining to this Agreement and its duties hereunder.
(d) Conflict. If any item of Collateral also constitutes collateral granted to the Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other document in respect of such collateral, the provisions of this Agreement shall control unless the other deed of trust, mortgage, security agreement, pledge or instrument expressly states otherwise. In the event of any conflict between the provisions hereof and the provisions of Section 19 of the Debentures, the provisions of Section 19 of the Debentures shall control.
Section 10.02 Performance By Collateral Agent. If any Grantor shall fail to perform any covenants contained in this Agreement after giving effect to all applicable grace periods (including covenants to pay insurance, taxes and claims arising by operation of law in respect of the Collateral and to pay or perform any Grantor obligations under any Collateral) or if any representation or warranty on the part of any Grantor contained herein shall be breached, the Collateral Agent may (but shall not be obligated to) during the existence of an Event of Default do the same or cause it to be done or remedy any such breach, and may make payments for such purpose; provided, however, that the Collateral Agent shall in no event be bound to inquire into the validity of any tax, Lien, imposition or other obligation which such Grantor fails to pay or perform as and when required hereby and which such Grantor does not contest in accordance with the provisions of the Purchase Agreement. Any and all amounts so paid by the Collateral Agent shall be reimbursed by the Grantors in accordance with the provisions of Section 10.08. Neither the provisions of this Section 10.02 nor any action taken by the Collateral Agent pursuant to the provisions of this Section 10.02 shall prevent any such failure to observe any covenant
Exhibit 10.5
contained in this Agreement nor any breach of representation or warranty from constituting an Event of Default.
Section 10.03 Power of Attorney. Each Grantor hereby appoints the Collateral Agent its attorney-in-fact, with full power and authority in the place and stead of such Grantor and in the name of such Grantor, or otherwise, from time to time during the existence of a Default or an Event of Default in the Collateral Agent’s discretion to take any action and to execute any instrument consistent with the terms of the Purchase Agreement and the other Transaction Documents which the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof (but the Collateral Agent shall not be obligated to and neither the Collateral Agent nor any Secured Party shall have any liability to such Grantor or any third party for failure to so do or take action). The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Grantor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.
Section 10.04 Continuing Security Interest and Assignment. This Agreement shall create a continuing Guaranty of the Debenture Obligations and a continuing security interest in the Collateral and shall (a) be binding upon the Guarantors and the Grantors, their respective successors and assigns and (b) inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and the other Secured Parties and each of their respective permitted successors, transferees and assigns and their respective officers, directors, employees, affiliates, agents, advisors and controlling Persons; provided that, no Guarantor nor any Grantor shall assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent and any attempted assignment or transfer without such consent shall be null and void. Without limiting the generality of the foregoing, any Secured Party may, in accordance with the provisions of the Purchase Agreement and the Debentures, assign or otherwise transfer all or any portion of its rights and obligations under the Purchase Agreement and the Debentures to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise. Upon payment in full of the Secured Obligations (other than inchoate contingent obligations) in accordance with the provisions of the Debentures, the Lien granted hereby shall automatically terminate and all rights to the Collateral shall revert to Grantors or any other Person entitled thereto. The Collateral Agent (and each other holder of Secured Obligations by accepting the benefits of the Collateral) hereby irrevocably agrees that the Collateral Agent may release the Liens in the Collateral in accordance with the terms of the Debentures. At such time, upon receipt of the documents required pursuant to the Debentures, Collateral Agent will authorize the filing of appropriate termination statements to terminate such Liens and will otherwise execute such agreements, documents, notices and instruments as may be reasonably requested by the Company and notices to any securities intermediaries, depository banks or escrow agents a party to any control or escrow agreement relating to the Collateral. No transfer or renewal, extension, assignment, or termination of this Agreement or of the Debentures any other Transaction Document, or any other instrument or document executed and delivered by any Grantor to Collateral Agent nor the taking of further security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by Collateral Agent, nor any other act of the Secured Parties, or any of them, shall release any Grantor from any obligation, except a release or discharge executed in writing by Collateral Agent in accordance with the provisions of the Debentures. Collateral Agent shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by Collateral Agent and then only to the extent therein set forth. A waiver by Collateral Agent of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which Collateral Agent would otherwise have had on any other occasion. Notwithstanding the foregoing, the Liens granted to the Collateral Agent by the Grantors on any
Exhibit 10.5
Collateral shall be automatically released to enable the sale or other disposition of such property or assets expressly permitted by the Debentures.
Section 10.05 [Reserved].
Section 10.06 Modification in Writing. None of the terms or provisions of this Agreement may be amended, modified, supplemented, terminated or waived, and no consent to any departure by any Guarantor or any Grantor therefrom shall be effective, except by a written instrument signed by the Collateral Agent, upon the written direction of the Required Holders, the Guarantors and Grantors, in accordance with the terms of the Purchase Agreement. Any amendment, modification or supplement of any provision hereof, any waiver of any provision hereof and any consent to any departure by any Guarantor or any Grantor from the terms of any provision hereof, in each case, shall be effective only in the specific instance and for the specific purpose for which made or given. This Agreement shall be construed as a separate agreement with respect to each Guarantor and each Grantor and may be amended, modified, supplemented, terminated or waived with respect to any Guarantor or any Grantor without the approval of any other Guarantor or any other Grantor and without affecting the obligations of any other Guarantor or any other Grantor hereunder.
Section 10.07 Notices. Unless otherwise provided herein, any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be given in the manner and become effective as set forth in the Purchase Agreement, and, as to any Guarantor or any Grantor, addressed to it at the address of such Guarantor or such Grantor set forth in Schedule 1 hereof and as to the Collateral Agent, addressed to it at the address set forth in the Purchase Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party.
Section 10.08 Indemnity and Expenses. As used in this Section 10.08, each reference to “Grantor” shall be understood to refer to each “Guarantor” as well as each “Grantor”:
(a) Each Grantor hereby agrees to indemnify and hold harmless the Collateral Agent (and any sub-agent thereof), each other Secured Party and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) from any losses, damages, liabilities, claims and related expenses (including the fees and expenses of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees, expenses and time charges for attorneys who are employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including any Grantor or any other Issuer Party) other than such Indemnitee and its Related Parties arising out of, in connection with or resulting from this Agreement (including, without limitation, enforcement of this Agreement) or any failure of any Debenture Obligations or any Secured Obligations to be the legal, valid, and binding obligations of any Issuer Party enforceable against such Issuer Party in accordance with their terms, whether brought by a third party or by such Grantor or any other Issuer Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (i) resulted from the gross negligence or willful misconduct of such Indemnitee, or (ii) result from a claim not involving an act or omission of any Issuer Party or any of its subsidiaries and that is brought by an Indemnitee against another Indemnitee (other than against the Collateral Agent in its capacity as such).
Exhibit 10.5
(b) To the fullest extent permitted by applicable law, each Grantor hereby agrees not to assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Transaction Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of proceeds thereof. No Indemnitee shall be liable for any damages arising from the use of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby by unintended recipients.
(c) Each Grantor agrees to pay or reimburse the Collateral Agent for all its costs and expenses incurred in collecting against such Grantor its Debenture Obligations and in its Secured Obligations or otherwise protecting, enforcing or preserving any rights or remedies under this Agreement and the other Transaction Documents to which such Grantor is a party, including the fees and other charges of counsel (including the allocated fees and expenses of internal counsel) to the Collateral Agent.
(d) All amounts due under this Section 10.08 shall be payable promptly (and in any event within five Business Days) after demand therefor, shall constitute Secured Obligations and shall bear interest until paid at a rate the Default Rate (as defined in the Debentures).
(e) Without prejudice to the survival of any other agreement of any Grantor under this Agreement or any other Transaction Documents, the agreements and obligations of each Grantor contained in this Section 10.08 shall survive termination of the Transaction Documents and payment in full of the Secured Obligations and all other amounts payable under this Agreement.
Section 10.09 Governing Law, Consent to Jurisdiction and Waiver of Jury Trial. This Agreement and the rights and obligations of the parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Laws of the State of New York), including all matters of construction, validity and performance. The other provisions of Section 10(b) and 10(c) of the Purchase Agreement are incorporated herein, mutatis mutandis, as if a part hereof.
Section 10.10 Severability of Provisions. Any provision hereof which is invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting the validity, legality or enforceability of such provision in any other jurisdiction.
Section 10.11 Counterparts; Integration; Effectiveness. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all taken together shall constitute a single contract. This Agreement and the other Transaction Documents, and any separate letter agreements with respect to fees payable to the Collateral Agent, constitute the entire contract among the parties with respect to the subject matter hereof and supersede all previous agreements and understandings, oral or written, with respect thereto. Except as provided in Section 6 and 7 of the Purchase Agreement as of the Initial Close, this Agreement shall become effective when it shall have been executed by the Collateral Agent and
Exhibit 10.5
when the Collateral Agent shall have received counterparts hereof signed by each of the other parties hereto. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of similar import in this Agreement shall be deemed to include electronic or digital signatures or electronic records, each of which shall be of the same effect, validity, and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001 to 7031), the Uniform Electronic Transactions Act (UETA), or any state law based on the UETA, including the New York Electronic Signatures and Records Act (N.Y. Tech. §§ 301 to 309).
Section 10.12 No Release. Nothing set forth in this Agreement or any other Transaction Document, nor the exercise by the Collateral Agent or the Required Holders of any of the rights or remedies hereunder, shall relieve any Guarantor or any Grantor from the performance of any term, covenant, condition or agreement on such Guarantor’s or such Grantor’s part to be performed or observed in respect of the Guarantor or any of the Collateral or from any liability to any Person in respect of the Guarantor or any of the Collateral or shall impose any obligation on the Collateral Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Guarantor’s or any Grantor’s part to be so performed or observed or shall impose any liability on the Collateral Agent or any other Secured Party for any act or omission on the part of such Grantor relating thereto or for any breach of any representation or warranty on the part of such Guarantor or such Grantor contained in this Agreement, the Purchase Agreement or the other Transaction Documents, or in respect of the Collateral or made in connection herewith or therewith. Anything herein to the contrary notwithstanding, neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any contracts, agreements and other documents included in the Collateral by reason of this Agreement, nor shall the Collateral Agent or any other Secured Party be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Collateral. The obligations of each Grantor contained in this Section 10.12 shall survive the termination hereof and the discharge of such Grantor’s other obligations under this Agreement, the Purchase Agreement and the other Transaction Documents.
Section 10.13 Obligations Absolute. Each Guarantor and each Grantor hereby waives demand, notice, protest, notice of acceptance of this Agreement, notice of loans made, credit extended, Collateral received or delivered or other action taken in reliance hereon and all other demands and notices of any description. All obligations of each Grantor hereunder shall be absolute and unconditional irrespective of:
(a) any illegality or lack of validity or enforceability of any Debenture Obligations or Secured Obligation or any Transaction Document or any related agreement or instrument;
(b) any change in the time, place or manner of payment of, or in any other term of, the Debenture Obligations or the Secured Obligations or any other obligation of any Issuer Party under any Transaction Document, or any rescission, waiver, amendment or other modification of any Transaction Document or any other agreement, including any increase in the Debenture Obligations or the Secured Obligations resulting from any extension of additional credit or otherwise;
Exhibit 10.5
(c) any taking, exchange, substitution, release, impairment or non-perfection of any Collateral, or any taking, release, impairment, amendment, waiver or other modification of any guaranty, for the Debenture Obligations or the Secured Obligations;
(d) any manner of sale, disposition or application of proceeds of any Collateral or any other collateral or other assets to all or part of the Secured Obligations;
(e) any default, failure or delay, willful or otherwise, in the performance of the Debenture Obligations or the Secured Obligations;
(f) any change, restructuring or termination of the corporate structure, ownership or existence of any Issuer Party or any of its Subsidiaries or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any Debenture Obligations or any Secured Obligations;
(g) any failure of any Secured Party to disclose to any Issuer Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Issuer Party now or hereafter known to such Secured Party; each Guarantor and each Grantor waiving any duty of the Secured Parties to disclose such information;
(h) the failure of any other Person to execute or deliver this Agreement, any Joinder Agreement or any other agreement or the release or reduction of liability of any Guarantor or any Grantor or other guarantor or grantor or surety with respect to the Debenture Obligations or he Secured Obligations;
(i) the failure of any Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Transaction Document or otherwise;
(j) any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to, or be asserted by, the Company against any Secured Party;
(k) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the financing arrangements or any existence of or reliance on any representation by any Secured Party that might vary the risk of any Grantor or otherwise operate as a defense available to, or a legal or equitable discharge of, any Issuer Party or any other guarantor or surety;
(l) any right to require the Secured Party, as a condition of payment or performance by any Guarantor, to (i) proceed against any Issuer Party, any other guarantor (including any other Guarantor) of the Debenture Obligations or any other person, (ii) proceed against or exhaust any security held from any Issuer Party, any such other guarantor or any other person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of the Secured Party in favor of any Issuer Party, any such other guarantor or any other person, or (iv) pursue any other remedy in the power of the Secured Party whatsoever;
(m) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any Issuer Party including any defense based on or arising out of the lack of validity or the unenforceability of the Debenture Obligations or any agreement or
Exhibit 10.5
instrument relating thereto or by reason of the cessation of the liability of any Issuer Party from any cause other than payment in full of the Debenture Obligations;
(n) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(o) any defense based upon the Secured Party’s errors or omissions in the administration of the Debenture Obligations, except behavior which amounts to gross negligence, bad faith or willful misconduct;
(p) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that the Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto;
(q) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Agreement, notices of default under the Transaction Documents or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Debenture Obligations or any agreement related thereto, notices of any extension of credit to any Issuer Party and notices of any of the matters referred to in Article 2 and any right to consent to any thereof;
(r) any defenses (other than the defense of payment or release in accordance with the Transaction Documents) or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Agreement;
(s) any defense based upon the Secured Party’s failure to mitigate damages, except behavior which amounts to gross negligence, bad faith or willful misconduct; and
(t) all rights to insist upon, plead or in any manner claim or take the benefit or advantage of any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or hereafter in force, which may delay, prevent or otherwise affect the performance by any Guarantor of its obligations under, or the enforcement by the Secured Party of, this Agreement.
[SIGNATURE PAGE FOLLOWS]
Exhibit 10.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
COMPANY, GUARANTOR and GRANTOR SEQUANS COMMUNICATIONS S.A. | |||||
By:_____________________________ Name: Title: | |||||
Exhibit 10.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
GUARANTOR AND GRANTOR BITQUANS HOLDINGS LLC By: SEQUANS COMMUNICATIONS S.A. Its: Sole Member | |||||
By:_____________________________ Name: Title: | |||||
Exhibit 10.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
HUDSON BAY PH XVI LTD., in its capacity as Collateral Agent | |||||
By:__________________________ | |||||
Name: | |||||
Title: | |||||
Exhibit 10.5
Schedule 1
Guarantor and Grantor Notice Information
If to the Company, to: Sequans Communications S.A. 15-55 boulevard Charles de Gaulle Les Portes de la Défense 92700 Colombes Republic of France Email: deborah@sequans.com Attention: Chief Financial Officer with a copy (which shall not constitute notice) to: Lowenstein Sandler LLP 1251 Avenue of the Americas, 18th Floor New York, New York 10020 Attention: Steven E. Siesser, Esq Brooke A. Gillar, Esq. Email: ssiesser@lowenstein.com bgillar@lowenstein.com and ARCHERS (AARPI) 28 rue Dumont d’Urville 75116 Paris, France Attention: Véronique Gedeon Mark Richardson Email: mrichardson@archers.fr; vgedeon@archers.fr | |||||
Exhibit 10.5
Schedule 2
Perfection Information
Exhibit 10.5
EXHIBIT A
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the “Joinder Agreement”), dated as of [DATE] is made by [JOINING GUARANTOR/JOINING GRANTOR], a [STATE OF ORGANIZATION] [ENTITY TYPE] (the “Joining Guarantor” [and][or] “Joining Grantor”), and delivered to [_____], in its capacity as collateral agent (in such capacity and together with any successors in such capacity, the “Collateral Agent”) under that certain Guaranty and Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “GSA”; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the GSA), dated as of [___], 2025 made by and among [______] (the “Company”), and the Guarantors and Grantors party thereto, in favor of the Collateral Agent.
WHEREAS, the Joining Guarantor and Joining Grantor is a Subsidiary [of the Company] and required by the terms of the Purchase Agreement to become a Guarantor (as defined in the Purchase Agreement) and be joined as a party to the GSA as a Guarantor and a Grantor;
WHEREAS, this Joinder Agreement supplements the GSA and is delivered by the Joining Guarantor pursuant to Section 2.05 and is delivered by the Joining Grantor pursuant to Section 4.03 of the GSA; and
WHEREAS, the Joining Guarantor and Joining Grantor will materially benefit directly and indirectly from the financial accommodations made available and to be made available to the Company by the Holders under the Purchase Agreement;
NOW, THEREFORE, the Joining Guarantor and Joining Grantor hereby agrees as follows with the Collateral Agent, for the ratable benefit of the Secured Parties:
1.Joinder to Guaranty. The Joining Guarantor hereby irrevocably, absolutely and unconditionally becomes a party to the GSA as a Guarantor and agrees to be bound by all the terms, conditions, covenants, obligations, liabilities and undertakings of each Guarantor or to which each Guarantor is subject thereunder, all with the same force and effect as if the Joining Guarantor were a signatory to the GSA. Without limiting the generality of the foregoing, the Joining Guarantor hereby, jointly and severally with the other Guarantors, absolutely, unconditionally, and irrevocably guarantees, as primary obligor and not merely as surety, the Debenture Obligations.
2.Joinder to Security Grant. The Joining Grantor hereby irrevocably, absolutely and unconditionally becomes a party to the GSA as a Grantor and agrees to be bound by all the terms, conditions, covenants, obligations, liabilities and undertakings of each Grantor or to which each Grantor is subject thereunder, all with the same force and effect as if the Joining Grantor were a signatory to the GSA. Without limiting the generality of the foregoing, as collateral security for the payment and performance in full of all the Secured Obligations, the Joining Grantor hereby pledges to the Collateral Agent for the ratable benefit of the Secured Parties, and grants to the Collateral Agent for the ratable benefit of the Secured Parties a Lien on and security interest in and to, all of its right, title and interest in, to and under the Collateral owned by it, wherever located, and whether now existing or hereafter arising or acquired from time to time and expressly assumes all obligations and liabilities of a Grantor thereunder.
Exhibit 10.5
3.Affirmations. The Joining Guarantor and Joining Grantor hereby makes each of the representations and warranties and agrees to each of the covenants applicable to the Guarantors and Grantors contained in the GSA. The Joining Guarantor and Joining Grantor also represents and warrants to the Collateral Agent and the Secured Parties that (i) it has the [corporate] power and authority, and the legal right, to make, deliver and perform this Joinder Agreement and has taken all necessary [corporate] action to authorize the execution, delivery and performance of this Joinder Agreement; (ii) no consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Entity or any other Person that has not been obtained, made or completed is required in connection with the execution, delivery and performance, validity or enforceability of this Joinder Agreement; (iii) this Joinder Agreement has been duly executed and delivered on behalf of the Joining Guarantor and the Joining Grantor; and (iv) this Joinder Agreement constitutes a legal, valid and binding obligation of the Joining Guarantor and the Joining Grantor, enforceable against such Joining Guarantor and against such Joining Grantor in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
4.Supplemental Schedules. Attached to this Joinder Agreement are duly completed schedules (the “Supplemental Schedules”) supplementing the respective Schedules to the GSA. The Joining Guarantor and the Joining Grantor each represents and warrants that the information contained on each of the Supplemental Schedules with respect to such Joining Guarantor or such Joining Grantor and its properties is true, complete and accurate as of the date hereof. Such Supplemental Schedules shall be deemed to be part of the GSA.
5.Severability. The provisions of this Joinder Agreement are independent of and separable from each other. If any provision hereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof, but this Joinder Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
6.Counterparts. This Joinder Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Joinder Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.
7.Delivery. The Joining Guarantor and Joining Grantor hereby irrevocably waives notice of acceptance of this Joinder Agreement and acknowledges that the Debenture Obligations and the Secured Obligations are incurred, and credit extensions under the Purchase Agreement and the other Transaction Documents made and maintained, in reliance on this Joinder Agreement and the Joining Guarantor’s and Joining Grantor’s joinder as a party to the GSA as herein provided.
8.Governing Law; Venue; Waiver of Jury Trial. This Joinder Agreement and the rights and obligations of the parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Laws of the State of
Exhibit 10.5
New York), including all matters of construction, validity and performance. The provisions of Section 10.09 of the GSA are hereby incorporated by reference as if fully set forth herein.
[Remainder of Page Intentionally Left Blank; Signature page follows.]
Exhibit 10.5
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
[NAME OF JOINING GUARANTOR / JOINING GRANTOR] | |||||
By:_____________________________ Name: Title: | |||||
Address for Notices: | |||||
AGREED TO AND ACCEPTED:
[____], as Collateral Agent
By:__________________________ | ||
Name: | ||
Title: | ||
Address for Notices:
[____]
Exhibit 10.5
[Schedules to be attached]