Sequans Communications SC 14D9/A, filed Dec 18, 2023
Sequans Communications (SQNS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 8)
SEQUANS COMMUNICATIONS S.A.
(Name of Subject Company)
SEQUANS COMMUNICATIONS S.A.
(Name of Person Filing Statement)
American Depositary Shares, each representing four (4) ordinary shares, nominal value €0.01 per share
Ordinary shares, nominal value €0.01 per share
(Title of Class of Securities)
817323207*
(CUSIP Number of Class of Securities)
Dr. Georges Karam
Chairman and Chief Executive Officer
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
92700 Colombes, France
Telephone: +33 1 70 72 16 00
(Name, address and telephone number of person authorized to receive notices and communications
on behalf of the person(s) filing statement)
With copies to:
Brett Cooper, Esq.
Richard Vernon Smith, Esq.
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105
(415) 773-5700
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
| * | This CUSIP number is assigned to the Subject Company’s American Depositary Shares, each representing four (4) Ordinary Shares. |
This Amendment No. 8 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Sequans Communications S.A., a société anonyme organized under the laws of France (“Sequans” or the “Company”), with the U.S. Securities and Exchange Commission (the “SEC”) on September 11, 2023 (as amended and supplemented on October 4, 2023, October 5, 2023, October 20, 2023, November 6, 2023, November 13, 2023, November 20, 2023, December 5, 2023 and December 18, 2023 and as may be further amended or supplemented from time to time, the “Schedule 14D-9”).
The Schedule 14D-9 relates to the tender offer by Renesas Electronics Europe GmbH, incorporated as a limited liability company under the laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) (“Purchaser”), a direct wholly owned subsidiary of Renesas Electronics Corporation, a Japanese corporation (“Parent” or “Renesas”), to acquire all of the outstanding ordinary shares, nominal value €0.01 per share, of the Company (each, an “Ordinary Share” and, collectively, the “Ordinary Shares”), including American Depositary Shares representing Ordinary Shares (each American Depositary Share represents four Ordinary Shares) (each, an “ADS” and, collectively, the “ADSs”), and Ordinary Shares issuable upon the exercise, conversion or exchange of any outstanding options, warrants, convertible securities, restricted share awards or rights to purchase, subscribe for, or be allocated Ordinary Shares (collectively, the “Company Shares”), for U.S. $0.7575 per Ordinary Share and U.S. $3.03 per ADS (each such amount, the “Offer Price”) in each case, payable net to the seller in cash, without interest, less any withholding taxes that may be applicable, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 11, 2023 (together with amendments or supplements thereto, the “Offer to Purchase”) and in the accompanying Ordinary Share Acceptance Form (together with amendments or supplements thereto, the “Ordinary Share Acceptance Form”) and American Depositary Share Letter of Transmittal (together with amendments or supplements thereto, the “ADS Letter of Transmittal” and, together with the Offer to Purchase, the Ordinary Share Acceptance Form and other related materials, as each may be amended or supplemented from time to time, the “Offer”). The Offer is described in a combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO with the SEC on September 11, 2023, by Parent and Purchaser (as amended and supplemented on October 4, 2023, October 5, 2023, October 20, 2023, November 6, 2023, November 13, 2023, November 20, 2023, December 5, 2023 and December 18, 2023 and as may be further amended or supplemented from time to time, the “Schedule TO”).
This Amendment is being filed to reflect certain updates to the Schedule 14D-9 as set forth below. Except as otherwise set forth below, the information in the Schedule 14D-9 remains unchanged and is incorporated herein by reference as relevant to the items in this Amendment.
Item 9. Exhibits
Item 9. “Exhibits” of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibits thereto:
| Exhibit No. |
Description | |
| (a)(1)(H) | Form of Letter to holders of Company RSAs and Company Share Options in France. | |
| (a)(1)(I) | Form of Letter to holders of Company RSAs and Company Share Options in the United States. | |
| (a)(1)(J) | Form of Letter to holders of Company RSAs and Company Share Options in the United Kingdom. | |
| (a)(1)(K) | Form of Letter to holders of Company RSAs and Company Share Options in Taiwan. | |
| (a)(1)(L) | Form of Letter to holders of Company RSAs and Company Share Options in Singapore. | |
| (a)(1)(M) | Form of Letter to holders of Unvested RSAs and Unexercised Company Share Options in Israel. | |
| (a)(1)(N) | Form of Letter to holders of Vested RSAs in Israel. | |
| (a)(1)(O) | Form of Letter to holders of Company RSAs and Company Share Options in Hong Kong. | |
| (a)(1)(P) | Form of Letter to holders of Company RSAs and Company Share Options in Finland. | |
| (a)(1)(Q) | Form of Letter to holders of Company Warrants. | |
| (a)(5)(Q) | Form of email to employee-security holders of Sequans Communications S.A. | |
2
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| SEQUANS COMMUNICATIONS S.A. | ||||||
| Dated: December 18, 2023 | By: | /s/ Georges Karam | ||||
| Name: Dr. Georges Karam | ||||||
| Title: Chief Executive Officer and Chairman | ||||||
3
Exhibit (a)(1)(H)
| On December 18, 2023 |
Re: Unvested Company RSAs, Unsellable Company Shares and Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA but may be subject to a lock-up period as of the time at which Purchaser accepts for payment and pays for Company Shares tendered in the Offer (the “Offer Acceptance Time” and such Company Shares or ADSs, if subject to such lock-up period as of the Offer Acceptance Time, the “Unsellable Company Shares”); and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer:
| (i) | if you hold Unsellable Company Shares, immediately prior to the Offer Acceptance Time, Purchaser is offering you the opportunity to enter into a liquidity mechanism for the sale of the relevant Unsellable Company Share to Purchaser at $0.7575 per Company Share and $3.03 per ADS), subject to any required withholding of taxes (the “Offer Price”), upon the expiration of any applicable lock-up period (as further described in the liquidity agreement attached hereto as Exhibit A (the “Liquidity Agreement”)); and |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| (ii) | if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the Offer Acceptance Time, a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to (A) the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, multiplied by (iv) 130%1, rounded up to the nearest 100 restricted stock units; |
provided that you execute (1) the Liquidity Agreement in the form attached hereto as Exhibit A, pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or vesting of Company RSAs (other than Unsellable Company Shares); |
| (b) | to sell to Purchaser all Unsellable Company Shares pursuant to the terms of the Liquidity Agreement; |
| (c) | to cancel any Unvested Company RSAs that you hold; and |
| (d) | to cancel all outstanding and unexercised Company Share Options that you hold. |
and, if you hold Unsellable Company Shares, (2) the form for cancellation of the ADSs and delivery of underlying Company Shares attached to the Liquidity Agreement; note that this form is purely technical and aims at ensuring that your Unsellable Company Shares which are held under the form of ADSs are delivered back to you in the form of Company Shares so as to avoid the adverse social security and tax consequences which could be triggered by the automatic transfer of all ADSs to the Purchaser upon termination of the deposit agreement in relation of the ADSs.
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not execute the Liquidity Agreement to irrevocably undertake the foregoing, you may not find a buyer for your Unsellable Company Shares once the Offer has been completed and you will not be entitled to the Parent RSU described above.
| 1 | The 130% multiplier is aimed as a one-off fixed compensation for the fact that, contrary to your existing Company RSAs, Parent RSU will not qualify for the favorable tax regime of actions gratuites in France and any resulting gains will therefore be subject to higher social security and personal income tax charges. |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
The sale of your Company Shares and the effectiveness of the Liquidity Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Liquidity Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the proceeds from your Unsellable Company Shares and the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Liquidity Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Liquidity Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, selling your Unsellable Company Shares, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Liquidity Agreement or tendering your Company Shares in the Offer.
Yours sincerely,
SEQUANS COMMUNICATIONS S.A.
represented by Deborah Choate, duly authorized
pursuant to a power of attorney granted by Georges Karam
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
LIQUIDITY AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
LIQUIDITY AGREEMENT
(France)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | In connection with the closing of the Offer and depending on shareholder participation in the Offer, Parent and Purchaser may also decide to proceed with a series of transactions intended to ensure that Purchaser will become the sole owner of the Company’s businesses and operations, and that in exchange therefor, each holder of Company Shares that did not tender its Company Shares in the Offer is entitled to receive (subject to the completion of such transactions) the same consideration that it would have received as if it tendered such Company Shares in the Offer, without interest and subject to any applicable taxes (the “Post-Offer Reorganization”). However, Purchaser may elect, in its sole discretion, to not effect the Post-Offer Reorganization and may instead elect to take alternative action to effectuate a corporate reorganization in a |
| different way. The Company intends to transfer all of its assets and liabilities to Sequans Communications SAS (or any future name of such entity, as the case may be), a société par actions simplifiée organized under the laws of France, and wholly owned by the Company (“Sequans SAS”), in accordance with a draft asset contribution agreement under the demerger regime (apport partiel d’actif soumis au régime juridique des scissions) in accordance with French law (the “Demerger Agreement” and such transaction, the “Demerger”), in exchange for new ordinary shares of Sequans SAS. As a result of the Demerger, Sequans SAS would own all of the assets and liabilities, rights and obligations of any kind and other legal relationships in relation to the Company’s businesses and operations with the exception, as the case may be, of those specifically excluded as listed in the Demerger Agreement. Following and subject to the consummation of the Demerger, a cross-border merger will be effectuated of the Company into Skylinehöhe 105. V V AG (or any future name of such entity, as the case may be), a German stock corporation (Aktiengesellschaft) organized under the laws of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main under number HRB 131120 (the “German Merger Sub”), that is a direct, wholly owned subsidiary of Purchaser, pursuant to a cross-border merger plan (the “Merger Plan”), in accordance with Sections 305 et seqq. of the German Companies Transformation Act (Umwandlungsgesetz) and Articles L. 236-1 et seq. and L. 236-31 et seq. of the French Commercial Code, entered into between Company and German Merger Sub. German Merger Sub will survive the merger contemplated by the Merger Plan (the “Merger”) and as a result of such Merger, the Company Shares outstanding immediately prior to the consummation of the Merger will be exchanged into duly authorized, validly issued and fully paid shares of German Merger Sub at an exchange ratio that shall be set forth in the Merger Plan (such exchange ratio, the “Merger Exchange Ratio”). Following the Demerger and the Merger and subject to Parent electing, in its sole discretion, to proceed with such reorganization, Purchaser and its affiliates will engage in a transaction whereby any holders of equity of German Merger Sub that are not affiliates of Parent will have their equity cancelled in exchange for statutory compensation in accordance with German law (the “Post-Merger Reorganization”). Prior to the Merger Squeeze Out (as defined below), Parent will (to the extent not already done so, as the case may be) cause Purchaser to change its legal form from a German limited liability (Gesellschaft mit beschränkter Haftung) into a German stock corporation (Aktiengesetz) organized under German law pursuant to Sections 190 et seqq. of the German Companies Transformation Act (Umwandlungsgesetz). Following the Demerger and the Merger, Purchaser plans to effectuate a merger of German Merger Sub with and into Purchaser pursuant to Section 62 para. 1 of the German Companies Transformation Act (Umwandlungsgesetz) by way of conclusion of a merger agreement (Verschmelzungsvertrag) between German Merger Sub as transferring entity and Purchaser as assuming entity followed by the resolution of the shareholders’ meeting (Hauptversammlung) of German Merger Sub to request the transfer of all shares of German Merger Sub held by persons other than Purchaser or its affiliates to Purchaser pursuant to Section 62 para. 5 of the German Companies Transformation Act (Umwandlungsgesetz) in conjunction with Sections 327a et seqq. of the German Stock Corporation Act (Aktiengesetz) against payment of statutory compensation in accordance with German law (the “Merger Squeeze Out”). The Post-Offer Reorganization could be accomplished through multiple structures, but each would ultimately result in the Company becoming a wholly owned subsidiary of Purchaser, which is itself a German wholly owned subsidiary of Parent. |
| 4) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 5) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 6) | At the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), certain of Beneficiary’s Concerned Shares may be subject to a lock-up period (the “Unsellable Company Shares”). |
| 7) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 8) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 9) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 10) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares (including any Unsellable Company Shares), and the Concerned Share Options as set forth in this Liquidity Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs (other than Unsellable Company Shares, which are addressed in Article 2).
| 2. | COMPANY RSA |
| 2.1 | UNSELLABLE SHARE CALL OPTION |
Beneficiary hereby irrevocably undertakes to sell to Purchaser all Unsellable Company Shares held by Beneficiary on first demand of Purchaser after expiration of the lock-up period applicable to such Unsellable Company Shares, free of any Security Interest (as defined below), under the conditions set forth in this Agreement (the “Call Option”).
Insofar as necessary, Beneficiary declares that Beneficiary’s Call Option undertaking is not subject to revocation. The sale will be completed upon exercise of the Call Option by Purchaser under the conditions described in Article 2.3 below.
Purchaser accepts the benefit of the Call Option as a unilateral call option undertaking, which it has the right, but by no means the obligation, to exercise freely in accordance with the terms and conditions of this Agreement.
“Security Interest” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| 2.2 | UNSELLABLE SHARE PUT OPTION |
Purchaser hereby irrevocably undertakes to purchase from Beneficiary all Unsellable Company Shares held by Beneficiary on first demand of the Beneficiary after expiration of the lock-up period applicable to such Unsellable Company Shares, free of any Security Interest, under the conditions set forth in this Agreement (the “Put Option” and together with the Call Option, the “Unsellable Share Options”).
Insofar as necessary, Purchaser declares that Purchaser’s Put Option undertaking is not subject to revocation. The sale will be completed upon exercise of the Put Option by Beneficiary under the conditions described in Article 2.3 below.
Beneficiary accepts the benefit of the Put Option as a unilateral put option undertaking, which Beneficiary has the right, but by no means the obligation, to exercise freely in accordance with the terms and conditions of this Agreement.
Each Party hereby expressly agrees that the sale of the Unsellable Company Shares will only be subject to the consent of (i) Purchaser, upon exercise of the Call Option, or (ii) Beneficiary, upon exercise of the Put Option, and each of Purchaser and Beneficiary acknowledges and agrees that no withdrawal of their respective consent, whether expressed before or after the sending of the Exercise Notice referred to below, shall have any effect on the conclusion of the sale of the Unsellable Company Shares. Therefore, the sale of the Unsellable Company Shares shall be deemed agreed between Purchaser and Beneficiary upon sending by any of them of the Exercise Notice in accordance with the provisions of Article 7.1 below.
| 2.3 | CANCELLATION OF ADSs IN RESPECT OF UNSELLABLE COMPANY SHARES AND DELIVERY OF UNDERLYING COMPANY SHARES |
In furtherance of the foregoing and the implementation of the Call Option and the Put Option, Beneficiary shall, if it holds Unsellable Company Shares, execute the ADS cancellation instructions attached hereto as Appendix 3 (the “ADS Cancellation Instructions”) and deliver (or cause to be delivered) such ADS Cancellation Instructions to The Bank of New York Mellon, as the depositary. Beneficiary acknowledges and agrees that any Company Shares delivered to Beneficiary upon such cancellation and not tendered in the Offer shall be subject to the Call Option and the Put Option, even if the underlying lock-up period lapses prior to the Offer Acceptance Time.
| 2.4 | UNSELLABLE SHARE OPTION EXERCISE |
The Call Option may be exercised by Purchaser for the relevant Unsellable Company Shares at any time during the Call Option Exercise Period, by sending an exercise notice to Beneficiary (or in case of death of Beneficiary, to the Beneficiary’s heirs or to the notary in charge of the estate settlement, at the election of Purchaser) (the “Call Option Exercise Notice”).
The Put Option may be exercised by Beneficiary for the relevant Unsellable Company Shares at any time during the Put Option Exercise Period by sending an exercise notice to Purchaser (or its legal successor) (the “Put Option Exercise Notice” and together with the Call Option Exercise Notice, an “Exercise Notice”).
“Availability Date” means, with respect to an Unsellable Company Share, the first Business Day following the end of the lock-up period applicable to such Unsellable Company Share.
“Call Option Exercise Period” means, with respect to an Unsellable Company Share, (i) the thirty (30) day period commencing on the Availability Date applicable to such Unsellable Company Share (the “Initial Call Option Exercise Period”), and (ii) the sixty (60) day period commencing on the first day after the expiration of the Initial Put Option Exercise Period applicable to such Unsellable Company Share (the “Second Call Option Exercise Period”).
“Put Option Exercise Period” means, with respect to an Unsellable Company Share, (i) the thirty (30) day period commencing on the first day after the expiration of the Initial Call Option Exercise Period applicable to such Unsellable Company Share (the “Initial Put Option Exercise Period”), and (ii) the sixty (60) day period commencing on the first day after the expiration of the Second Call Option Exercise Period applicable to such Unsellable Company Share.
The Exercise Notice shall state:
| • | the decision of Purchaser or Beneficiary to exercise the Call Option or the Put Option, as applicable; and |
| • | the Exercise Price (as defined below), provided that, if the Put Option is exercised more than fourteen (14) months after the Offer Acceptance Time, the Put Option Exercise Notice shall not include the Exercise Price, which shall be determined by Purchaser (in accordance with Article 2.5 of this Agreement) and notified by Purchaser to Beneficiary not later than thirty (30) days following receipt by Purchaser of the Put Option Exercise Notice. |
The Exercise Notice shall be served, pursuant to the provisions of Article 7.1 of this Agreement, at any time (x) during the Call Option Exercise Period by Purchaser and (y) during the Put Option Exercise Period by Beneficiary.
Failing the exercise of the Call Option within the relevant Call Option Exercise Period, Purchaser shall be deemed to have waived Purchaser’s rights under the Call Option.
Failing the exercise of the Put Option within the relevant Put Option Exercise Period, Beneficiary shall be deemed to have waived Beneficiary’s rights under the Put Option.
| 2.5 | VESTED COMPANY RSA OPTIONS EXERCISE PRICE |
| (i) | Exercise Price of the Unsellable Share Options |
The aggregate purchase price to be paid by Purchaser to Beneficiary for the purchase of the Unsellable Company Shares (the “Exercise Price”) shall be calculated as follows:
| (A) | Exercise Price upon exercise of the Call Option |
The purchase price per Unsellable Company Share to be paid by Purchaser upon exercise of the Call Option shall be equal to the Market Price (as defined below).
| (B) | Exercise Price upon exercise of the Put Option |
The purchase price per Unsellable Company Share to be paid by Purchaser upon exercise of the Put Option shall be equal to the Market Price (as defined below).
“Market Price” means the Offer Price, as set forth in the MoU; provided that, if the Put Option is exercised more than fourteen (14) months after the Offer Acceptance Time, the Market Price for the purposes of the Put Option shall be calculated as follows:
Where:
“Revenues n-1” means the consolidated revenues (chiffre d’affaires) achieved by the Company during the last financial year ended on or before the exercise date of the Put Option, calculated in accordance with the accounting rules and methods presented in the 2023 consolidated financial report, and on the consolidation perimeter as was existing as at 31 December 2023, and
“Revenues 2023” refers to the consolidated revenues (chiffre d’affaires) achieved by the Company in fiscal year 2023, in accordance with the accounting rules and methods presented in the 2023 consolidated financial report.
Example: if the Offer Acceptance Time is 31 December 2023, the Market Price (which would be equal to the Offer Price) would be USD 3.03 per ADS and such Market Price would be valid for the exercise of the Put Option until 28 February 2025 (14 months after 31 December 2023). As of 1 March 2025, the above formulas would become applicable.
| (ii) | Adjustment of the Exercise Price |
The Exercise Price will be adjusted in the event of a stock split or reverse stock split to take account of such transactions, or in the event of an exceptional distribution to Beneficiary, on the basis of Articles L. 228-99, 3° and R. 228-91 of the French Commercial Code, the provisions of which will apply mutatis mutandis to the present adjustment.
| (iii) | Expert |
In the event of disagreement between Purchaser and Beneficiary as to the calculation of the Exercise Price, the Exercise Price will be determined by the firm Ricol Lasteyrie (Gilles de Courcel), acting as joint third-party expert representative of the Parties, in accordance with Article 1592 of the French Civil Code (the “Expert”).
Either Purchaser or Beneficiary may refer to the Expert any dispute concerning (A) the Exercise Price calculated pursuant to Article 2.5(i) or (B) the principle or calculation methods of an adjustment to the Exercise Price in accordance with the provisions of Article 2.5(ii) above. In order to do so, a Party must notify the other Party and the Expert of any such dispute in accordance with the terms of Article 7.1 within fifteen (15) Business Days from (x) the notification by Purchaser to Beneficiary of the Exercise Price in the event of exercise of the Call Option, or (y) the notification by Beneficiary to Purchaser of the Exercise Price in the event of exercise of the Put Option. For clarity, both Parties hereby acknowledge and agree that the Offer Price is a fair and reasonable Exercise Price for the Unsellable Company Shares and shall not dispute such Exercise Price; provided that the Unsellable Share Option is exercised within twelve (12) months of the Offer Acceptance Time.
If the Expert refuses to act, resigns, or is unable to carry out the Expert’s mission (notably due to a lack of independence with regard to one of the Parties or due to the existence of a conflict of interest with one of the Parties), another Expert shall be appointed by the President of the Commercial Court of Paris ruling in the form of summary proceedings and without possible appeal at the request of the most diligent Party, on the basis of the provisions of Article 1592 of the French Civil Code. The Expert so appointed shall be an investment banker, financial adviser or accounting firm of national or international reputation, independent of the Parties and having no conflict of interest with any of the Parties.
The Expert shall carry out his mission by applying the sole price formula defined above.
From the date of his appointment, the Expert shall use his best efforts to carry out his mission and deliver his report simultaneously to all the Parties within thirty (30) days, unless the duration of his mission is extended.
The Parties undertake to sign, if the Expert so requests, an engagement letter in accordance with its usual terms and conditions, and to cooperate in good faith with the Expert. In particular, each of the Parties undertakes to provide the Expert with all relevant documentation that the Expert may request in order to carry out his mission.
The Parties must be treated on an equal footing and the Expert must, at every stage of the Expert’s mission, give them the opportunity to present their arguments, to reach a conclusion on any document, report or writings submitted to him, and more generally to ensure that the principle of adversarial proceedings and the rights of the defense are strictly respected.
The Expert’s conclusions must be substantiated in writing, will be definitively binding on the Parties and may not be contested in any way, except in the case of fraud or gross or manifest error of assessment.
Costs and fees will be shared equally between the Parties.
| 2.6 | UNSELLABLE SHARE OPTIONS COMPLETION DATE |
| (i) | Call Option Completion Date |
If the Call Option is exercised pursuant to the provisions hereof, the transfer of ownership of the Company Shares in favor of the Purchaser shall take place on the date notified in the Call Option Exercise Notice and at the latest on the fifteenth (15th) Business Day following such receipt (the “Call Option Completion Date”).
Purchaser’s delivery to the Company of a copy of the Call Option Exercise Notice, together with written evidence that the Exercise Price indicated in the Call Option Exercise Notice has been paid to the Beneficiary’s bank account, shall be deemed to constitute a notification by the Parties of the Call Option Completion Date within the meaning of Article R. 228-10 of the French Commercial Code, to which Beneficiary specifically agrees, and the Company shall promptly register the sale of the applicable Company Shares in Purchaser’s shareholder account on the Call Option Completion Date. The Company expressly agrees to this mandate given to it by the Parties.
No later than the Call Option Completion Date, Beneficiary shall deliver to Purchaser such documents and take any such actions as may be required to duly evidence the valid transfer of title to the applicable Company Shares, free and clear of any Security Interest with effect on the Call Option Completion Date.
On the Call Option Completion Date, Purchaser shall pay the Exercise Price indicated in the Call Option Exercise Notice to Beneficiary by bank check or wire transfer using the bank account of Beneficiary the details of which will have been notified to Purchaser at least ten (10) Business Days prior to the Call Option Completion Date.
Purchaser shall be deemed the owner of the applicable Company Shares from and after the Call Option Completion Date, subject to payment of the Exercise Price, with all rights attaching thereto, including all dividends declared, paid or made after the Call Option Completion Date.
All registration duties (droits d’enregistrement) in relation to the transfer of the Company Shares shall be borne by Purchaser and paid within thirty (30) days from the Call Option Completion Date.
| (ii) | Put Option Completion Date |
If the Put Option is exercised pursuant to the provisions hereof, the transfer of ownership of the Company Shares in favor of Purchaser shall take place on the date notified in the Put Option Exercise Notice and at the latest on the fifteenth (15th) Business Day following such receipt (the “Put Option Completion Date”).
Purchaser’s delivery to the Company of a copy of the Put Option Exercise Notice, together with written evidence that the Exercise Price indicated in the Put Option Exercise Notice has been paid to the Beneficiary’s bank account, shall be deemed to constitute a notification by the Parties of the Put Option Completion Date within the meaning of Article R. 228-10 of the French Commercial Code, to which Beneficiary specifically agrees, and the Company shall promptly register the sale of the applicable Company Shares in Purchaser’s shareholder account on the Put Option Completion Date. The Company expressly agrees to this mandate given to it by the Parties.
No later than the Put Option Completion Date, Beneficiary shall deliver to Purchaser such documents and take any such actions as may be required to duly evidence the valid transfer of title to the applicable Company Shares, free and clear of any Security Interest with effect on the Put Option Completion Date.
On the Put Option Completion Date, Purchaser shall pay the Exercise Price indicated in the Put Option Exercise Notice to Beneficiary by bank check or wire transfer using the bank account of the Beneficiary the details of which will have been notified to Purchaser at least ten (10) Business Days prior to the Put Option Completion Date.
Purchaser shall be deemed the owner of the applicable Company Shares from and after the Put Option Completion Date, subject to payment of the Exercise Price, with all rights attaching thereto, including all dividends declared, paid or made after the Put Option Completion Date.
All registration duties (droits d’enregistrement) in relation to the transfer of the Company Shares shall be borne by Purchaser and paid within thirty (30) days from the Put Option Completion Date.
| 2.7 | UNVESTED COMPANY RSA |
| (i) | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| (ii) | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, multiplied by (D) 130%, rounded up to the nearest 100 restricted stock units. |
“Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board.
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges or contributions.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Each of Purchaser and Beneficiary acknowledges that any transfer of the ownership of the Unsellable Company Shares prior to the Availability Date (whether as a result of the Merger Squeeze Out or otherwise) may trigger negative tax and social security impacts. In the event that (i) the Merger Squeeze Out (or other alternative squeeze out procedure resulting in the transfer of cancellation of Unsellable Company Shares with respect to which the Availability Date has not occurred) is completed prior to December 14, 2024 (or, if the Offer Acceptance Time is after February 7, 2024, in the event the Merger Squeeze Out is completed prior to February 7, 2025), and (ii) Beneficiary holds Unsellable Company Shares with respect to which the Availability Date has not occurred then Purchaser will work in good faith in conjunction with the Company’s management team to provide Beneficiary compensation (which shall be in the form of a cash bonus) to address higher social security and income tax charges resulting from the transfer of ownership of such Unsellable Company Shares prior to the applicable Availability Date; provided that (A) the amount of such compensation shall be equal to (I) thirty percent (30%), multiplied by (II) the Offer Price, multiplied by (III) the number of Unsellable Company Shares outstanding as of the Merger Squeeze Out (or such other squeeze out) for which the Availability Date has not occurred, and (B) the type of any such compensation shall be determined by Parent in its sole discretion. |
| (e) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | WAIVERS IN CONNECTION WITH THE MERGER AND THE MERGER SQUEEZE OUT |
The final Merger Exchange Ratio shall be set forth in the Merger Plan and may not be on a 1:1 basis. Consequently, there may be a situation where the implementation of the Merger Exchange Ratio upon the consummation of the Merger would result in the issuance of fractional shares of German Merger Sub to a holder of Company Shares. In such a situation, rather than issue fractional shares, German Merger Sub shall make a payment in cash (bare Zuzahlung) with respect to those Company Shares, which, if converted into shares of German Merger Sub at the Merger Exchange Ratio, would be converted into fractional shares (such non-exchangeable Company Shares, the “Cash Settled Shares”). The additional payment (bare Zuzahlung) per Cash Settled Share shall be equal to the Company Share Offer Price (i.e. USD 0.7575 per ordinary share) converted into euros (EUR) on the basis of the opening exchange rate (Eröffnungskurs) on the day of the extraordinary general meeting of the Company shareholders approving the Merger. Alternatively, instead of a payment in EUR, each owner of a Cash Settled Share shall be entitled, at his/her/its sole discretion, to request a payment amounting to USD 0.7575 (for the sake of clarification, in US dollars) per Cash Settled Share. Subject to Beneficiary becoming a shareholder of German Merger Sub, Beneficiary hereby irrevocably waives its right to an additional cash payment (bare Zuzahlung) or other kind of payment in consideration for its Cash Settled Shares (if any) other than as set forth in this paragraph.
Subject to Beneficiary becoming a shareholder of German Merger Sub, Beneficiary hereby irrevocably waives its right (i) to legally challenge the validity (Wirksamkeit) of the shareholders’ resolution(s) of the general meeting (Hauptversammlung) of German Merger Sub resolving the Merger Squeeze Out pursuant to Sections 327a et seqq. of the German Stock Corporation Act (Aktiengesetz) and (ii) to initiate judicial valuation proceedings (Spruchverfahren) pursuant to Section 1 no. 3 of the German Valuation Proceedings Act (Spruchverfahrensgesetz). Such waiver shall not apply in case the compensation offered under the Merger Squeeze Out to Beneficiary for its shares in German Merger Sub is below the consideration that it would have received (per share) if Beneficiary tendered the applicable Company Shares in the Offer.
| 6. | VOTING OF SUBJECT SECURITIES |
Unless this Agreement shall have been terminated in accordance with its terms, Beneficiary hereby unconditionally agrees that, at any meeting of the shareholders of the Company, however called, and in any action by shareholders of the Company other than at a meeting (including by written consent or by other written instrument, or otherwise), unless otherwise directed in writing by Purchaser, Beneficiary shall, to the fullest extent that the Unsellable Company Shares are entitled to vote thereon, cause the Unsellable Company Shares to be voted:
| (a) | in favor of each of the transactions contemplated by the MoU (including, but not limited to, the Offer, the Post-Offer Reorganization or any part thereof, the Post-Merger Reorganization or any part thereof and each of the other Transactions) following the time at which the Company Board approves or recommends any of such transactions to the shareholders of the Company and any other matter necessary for the consummation of any of such transactions; and |
| (b) | in favor of any proposal to adjourn or postpone any meeting of the shareholders of the Company to a later date, if there are not sufficient votes for the approval of the transactions contemplated by the MoU on the date on which such meeting is held. |
| 7. | MISCELLANEOUS |
| 7.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
(iii) If to the Expert, at the following address:
Ricol Lasteyrie
2 avenue Hoche
75008 Paris, France
Email: contacts@ricol-lasteyrie.fr
Attention: Gilles de Courcel
| 7.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 7.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 7.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
Any transfer, stamp or registration taxes or duties (droits d’enregistrement) or similar levies payable as a result of the Transfer of the Unsellable Company Shares as contemplated hereunder shall be borne by Purchaser and paid on a timely basis in accordance with all statutory applicable requirements.
| 7.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 7.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 7.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 7.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 7.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
Name born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 | ||
| SO Plan 2014-1 | ||
| SO Plan 2015-1 |
APPENDIX 3
Form of ADSs cancellation and delivery of underlying Company Shares
On
BNY Mellon
Depositary Receipts
240 Greenwich Street
New York, NY 10286
Email: drsettlements@bnymellon.com
| Re: | Cancellation of ADSs |
Dear BNY Mellon Depositary Receipts Team:
Please find the below pertaining to the cancellation of registered ADSs and delivery of the underlying ordinary shares:
| • | Security Name: Sequans Communications S.A. |
| • | CUSIP Number: 817323207 |
| • | Number of ADSs for cancellation: |
| • | Registered Account Number: |
| • | Underlying Share delivery details: |
| • | Full Legal Name of Beneficiary: |
| • | Full Legal Address of Beneficiary: |
| • | NOTE: Beneficiary registration information for Shares must match exactly to that of the name and address of ADS Holder to be considered a valid instruction for cancellation. |
| Signature: |
| Name: [[Name]] |
Exhibit (a)(1)(I)
| On December 18, 2023 |
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
Yours sincerely,
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
SEQUANS COMMUNICATIONS S.A.
represented by Deborah Choate, duly authorized
pursuant to a power of attorney granted by Georges Karam
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(USA)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
| RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |||
| IN THE PRESENCE OF : | ||||
| SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||||
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 | ||
| SO Plan 2014-1 | ||
| SO Plan 2015-1 | ||
| SO Plan 2016-1 |
Exhibit (a)(1)(J)
This document is important and should be read carefully. If you are in any doubt as to the action you should take regarding the contents of this letter, you are recommended to seek your own independent financial advice immediately from your stockbroker, bank manager, solicitor, accountant or other appropriate professional adviser authorised under the Financial Services and Markets Act 2000 where you are in the United Kingdom.
This communication is not being issued by, nor has it been approved by, an authorized person within the meaning of the Financial Services and Markets Act 2000. It is being distributed by Sequans Communications S.A. in reliance on Articles 43 (promotions to members of a body corporate) and 60 (promotions relating to employee share schemes of the Financial Services and Markets Act 200 (Financial Promotion) Order 2005 (SI 2005/1529).
| On December 18, 2023 |
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”) and the deed of surrender in the form set forth within Appendix 3 to the Cancellation Agreement (the “Deed of Surrender”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Please note that you must sign both the Cancellation Agreement and the Deed of Surrender. The Deed of Surrender must be signed as an English law deed, which means that you must sign it in the physical presence of an independent witness. The witness must be over 18 and not a family member and must genuinely observe the application of the signature to the document. The witness must then enter their details and sign the Deed of Surrender, and the agreement must then be dated.
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm;
and here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
represented by Deborah Choate, duly authorized
pursuant to a power of attorney granted by Georges Karam
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(UK)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore and Beneficiary shall execute a deed of surrender in the form set forth on Appendix 3 hereto in respect of such outstanding and Unvested Company RSAs to this effect if required to do so under the laws of their jurisdiction, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock” means a share of Parent common stock on the Tokyo Stock Exchange. |
“Parent Common Stock Price” means the average closing price of a share of Parent Common Stock over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board.
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
As a condition of grant of the Parent RSU Grant and no later than each Vesting Date for the Parent RSU Grant as set out above, Beneficiary agrees to enter into, if required, jointly with Purchaser, the Company or any affiliate in Purchaser’s group (as applicable), a joint election within Section 431 of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the “ITEPA 2003”) in respect of computing any tax charge on the acquisition of “restricted securities” (as
defined in Sections 423 and 424 of ITEPA 2003), and that Beneficiary will not revoke such election at any time (the “431 Election”). The 431 Election will be to treat the Parent Common Stock acquired pursuant to the vesting of the Parent RSU Grant as if the underlying Parent Common Stock were not restricted securities (for U.K. tax purposes only). If Beneficiary is required to but does not enter into such a 431 Election prior to the vesting of the Parent RSU Grant, no Parent Common Stock will be issued to Beneficiary, without any liability to Purchaser, the Company or any affiliate in Purchaser’s group (as applicable). Beneficiary must enter into the 431 Election concurrent with the execution of the grant notice, or at such subsequent time as may be designated by Purchaser, the Company or any affiliate in Purchaser’s group (as applicable).
As a condition of grant of the Parent RSU Grant and no later than each Vesting Date as set out above, Beneficiary agrees to accept liability for any secondary Class 1 National Insurance contributions which may be payable by Purchaser, the Company or any affiliate in Purchaser’s group (as applicable), in connection with any event giving rise to tax liability in relation to the Parent RSU Grant (the “Employer’s NICs”). Beneficiary agrees to execute a joint election with Purchaser, the Company or any affiliate in Purchaser’s group (as applicable), (a “NICs Joint Election”), the form of such NICs Joint Election being formally approved by His Majesty’s Revenue & Customs (“HMRC”), and any other consent or elections required to accomplish the transfer of the Employer NICs to Beneficiary. Beneficiary further agrees to execute such other elections as may be required by any successor to Purchaser, the Company or any affiliate in Purchaser’s group (as applicable), for the purpose of continuing the effectiveness of Beneficiary’s NICs Joint Election. If Beneficiary does not complete the NICs Joint Election prior to each Vesting Date for the Parent RSU Grant as set out above, or if approval of the NICs Joint Election is withdrawn by HMRC and a new NICs Joint Election is not entered into, Beneficiary’s Parent RSU Grant shall become null and void and may not be settled, without any liability to Purchaser, the Company or any affiliate in Purchaser’s group (as applicable), Beneficiary must enter into the NICs Joint Election concurrent with the execution of the applicable grant notice, or at such subsequent time as may be designated by Purchaser, the Company or any affiliate in Purchaser’s group (as applicable).
This offer is being made to selected employees as part of an employee incentive program in order to provide an additional incentive and to encourage employee share ownership and to increase Beneficiary’s interest in the success of Parent. The company offering these rights is Renesas Electronics Corporation. The shares which are the subject of these rights are common stock in Parent. More information in relation to Parent including the share price can be found at the following web address:
https://www2.tse.or.jp/tseHpFront/StockSearch.do?callJorEFlg=1&method=&topSearchStr=6723
The obligation to publish a prospectus does not apply because of Section 86(aa) of the Financial Services and Markets Act (as amended, supplemented or substituted by any UK legislation enacted in connection with the UK’s exit from the European Union). The total maximum number of shares which are the subject of this offer is 9,971,000.
When considering what action Beneficiary should take, it is recommended that Beneficiary seeks their own independent financial advice from a duly authorized independent financial adviser.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, and Beneficiary shall execute a deed of surrender in respect of such outstanding and unexercised Concerned Share Options
(whether or not then exercisable) to this effect in the form set forth on Appendix 3 hereto, if required to do so under the laws of their jurisdiction, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 | ||
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 | ||
| SO Plan 2014-1 | ||
| SO Plan 2015-1 | ||
APPENDIX 3
Deed of Surrender
[See next pages]
DEED OF SURRENDER
This deed (the “Deed”) is delivered and takes effect as of __________________.
Parties
| (1) | The employee set forth on the signature page hereto (the “Employee”); and |
| (2) | Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto) (the “Company”). |
Background
| (A) | The Employee is an employee of the Company. |
| (B) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| (C) | The Company has established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| (D) | The Company has established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| (E) | The Employee has been granted the Company RSAs set forth on Schedule 1 hereto pursuant to the Company RSA Plans (together, the “Original Company RSAs” to be construed to refer to each Company RSA separately or together, as applicable). |
| (F) | The Employee has been granted the Company Share Options set forth on Schedule 2 pursuant to the Company Share Option Plans (together, the “Outstanding Company Share Options”). |
| (G) | The Company proposes to: (i) cancel the unvested Original Company RSAs as of the Offer Acceptance Time (as defined in the Equity Award Cancellation Agreement dated on or around the date of this Deed) (the “Unvested Company RSAs”); (ii) cause to be granted to the Employee that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by the Employee, multiplied by (B) the applicable Offer Price (as defined in the Equity Award Cancellation Agreement dated on or around the date of this Deed and as converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units (the “Replacement RSU”). |
“Parent” means Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-07501.
“Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board.
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
| (H) | The Company further proposes to cancel the Outstanding Company Share Options for nil consideration. |
| (I) | The Employee has agreed to surrender the Unvested Company RSAs and any rights they have or may have in respect of the Unvested Company RSAs in consideration for the grant of the Replacement RSU. |
| (J) | The Employee has agreed to surrender the Outstanding Company Share Options and any rights they have or may have in respect of the Outstanding Company Share Options for nil consideration. |
Agreed terms
| 1. | Interpretation |
The following definitions and rules of interpretation apply in this agreement.
| (a) | Clauses and paragraph headings shall not affect the interpretation of this Deed. |
| (b) | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. |
| (c) | A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. |
| (d) | A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time. |
| (e) | A reference to writing or written excludes fax but includes email. |
| 2. | Surrender of Original Company RSAs and grant of Replacement RSUs |
Subject to the Employee’s receipt of the Replacement RSU, the Employee irrevocably surrenders the Original Company RSAs and all rights the Employee has or may have in respect of the Original Company RSAs.
| 3. | Surrender of the Company Share Options |
The Employee irrevocably surrenders the Outstanding Company Share Options and all rights the Employee has or may have in respect of the Outstanding Company Share Options.
| 4. | Further assurance |
Each party agrees, at the cost of the Company, to execute all such documents and do all such acts and things as may, at any time after the date of this agreement, reasonably be required to give effect to the provisions of this agreement.
| 5. | Waiver of claims |
The Employee agrees that the terms of this agreement are offered by the Company in full and final settlement of all and any claims or rights of action that the Employee has or may have against the Company or their officers or employees arising out of the Company Share Options or their surrender, whether under common law, contract, statute or otherwise, whether such claims are, or could be, known to the parties or in their contemplation at the date of this agreement, in any jurisdiction, but excluding any claims by the Employee to enforce this agreement.
| 6. | Third party rights |
A person who is not a party to this agreement shall not have any rights under or in connection with it as a result of the Contracts (Rights of Third Parties) Act 1999.
| 7. | Governing law |
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
| 8. | Jurisdiction |
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
| 9. | Counterparts |
| 9.1 | This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. |
| 9.2 | Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original “wet ink” version of such counterpart as soon as reasonably possible thereafter. |
| 9.3 | No counterpart shall be effective until each party has executed and delivered at least one counterpart. |
| 10. | Electronic signature |
Each party agrees to sign this agreement by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of our intention to be bound by this agreement as if signed by each party’s manuscript signature.
| Executed and delivered as a deed on the date set forth on the front page of this Deed by | ||||
| SEQUANS COMMUNICATIONS SA | ||||
| acting by Deborah Choate | ||||
| CFO, duly authorized pursuant to a power of attorney granted by Georges Karam | ||||
|
|
||||
| Signature
in the presence of: | ||||
|
|
||||
| Witness’s Signature | ||||
| Name of witness |
| |||
| Address of witness |
| |||
| Occupation of witness |
| |||
| Executed and delivered as a deed on the date set forth on the front page of this Deed by
| ||||
| born on of nationality residing e-mail address: | ||||
| (the “Employee”) | ||||
|
|
||||
| Signature
in the presence of: |
||||
|
|
||||
| Witness’s Signature | ||||
| Name of witness |
| |||
| Address of witness |
| |||
| Occupation of witness |
| |||
Schedule 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2016-2 | ||
| RSA Plan 2017-2 | ||
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 | ||
Schedule 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 | ||
| SO Plan 2014-1 | ||
| SO Plan 2015-1 | ||
Exhibit (a)(1)(K)
On December 18, 2023
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Taiwan)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 |
||
| SO Plan 2014-1 |
||
| SO Plan 2015-1 |
Exhibit (a)(1)(L)
| On December 18, 2023 |
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Singapore)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | DISCLAIMER |
Beneficiary acknowledges that the Parent Stock Compensation Plan has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, the Parent Stock Compensation Plan and any other document or material in connection with the offer or sale, or invitation for subscription or purchase of the shares in the Parent may not be circulated or distributed, nor may the shares in the Parent be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than pursuant to, and in accordance with the conditions of, an exemption under any provision (other than Section 280) of Subdivision (4) of Division 1 of Part XIII of the Securities and Futures Act, Chapter 289 of Singapore. The Parent RSU is a prescribed capital markets product (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018) and Excluded Investment Products (as defined in MAS Notices SFA 04-N12 and FAA-N16).
| 5.9 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.10 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GMBH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2014-1 | ||
| SO Plan 2015-1 |
Exhibit (a)(1)(M)
| On December 18, 2023 |
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Israel)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”) and appointed IBI Capital as the trustee (the “Trustee”) for the purpose of section 102 Israeli Income Tax Ordinance [New Version] 5721-1961 (the “ITO”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
Beneficiary further confirms that any payment made by Purchaser for the benefit of Beneficiary with respect to Company Shares or ADSs issued as a result of the exercise of vested Company Share Options or the vesting of Company RSAs shall be transferred to the Trustee as further detailed below.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. The Parent RSU Grant shall be subject to the same trust arrangements and restriction applicable to Unvested Company RSAs; provided that the trustee with respect to the Parent RSU Grant shall be Altshuler Shaham Trusts Ltd (the “Parent Trustee”). |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period, other than as required under applicable law, including the ITO.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser, the Trustee, the Parent Trustee, the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of the Beneficiary and to the extent so required under the applicable law) upon the Parent RSU Grant. Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
Without derogating from any of the foregoing, Beneficiary acknowledges and agrees that Purchaser shall transfer to the Trustee any and all cash on account of (i) validly tendered Company Shares or ADSs issued as a result of the exercise of vested Company Share Options or the vesting of Company RSAs and owned by Beneficiary as of the date of this Agreement and (ii) any additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the Offer Acceptance Time as a result of the exercise of vested Company Share Options or the vesting of Company RSAs. The Trustee shall have the right to deduct from any cash consideration received by the Trustee for the benefit of Beneficiary any amount required to be withheld from all cash or other consideration received by the Trustee under applicable law, including the ITO or any tax pre-ruling received by the Company, the Trustee or the Parent Trustee from any consideration paid or payable to Beneficiary (including on account of the Parent RSU Grant), at the maximum rate required based on the Trustee’s sole discretion. In addition, in the event that the Trustee does not hold enough cash to cover the amounts required to be withheld based on the Trustee’s sole discretion, the Trustee may require the Beneficiary to provide the Trustee with cash in an amount sufficient to cover the tax due to be withheld, as a condition to Beneficiary’s right to receive any consideration. In the event that notwithstanding the above, at the time withholding payments are required to be made to the applicable tax authority, the Trustee does not have enough cash to make such withholding payment, the Trustee and Purchaser may forfeit and cancel or cause the forfeiture and cancellation of any portion of the consideration for which withholding has not been made.
Beneficiary acknowledges and confirms that it has no claims, and hereby irrevocably waives, releases and discharges the Company, Parent, the Trustee and the Parent Trustee from and against any claims or demands against the Company, Parent, the Trustee or the Parent Trustee, in each case, in connection with the Company’s, the Parent’s, the Trustee’s or the Parent Trustee’s actions pursuant to the foregoing.
Beneficiary agrees to indemnify and hold harmless the Company, the Parent, the Trustee and the Parent Trustee for any and all payments made by any of the Company, the Parent, the Trustee or the Parent Trustee with respect to withholding taxes.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
| RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
|
born on of nationality residing e-mail address: THE BENEFICIARY | ||
| IN THE PRESENCE OF : | ||||
| SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||||
AGREED AND ACKNOWLEDGED, SOLELY WITH RESPECT TO THE PROVISIONS OF SECTION 2
|
|
| IBI CAPITAL, represented by Ronen Shitrit |
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2015-1 |
Exhibit (a)(1)(N)
| On December 18, 2023 |
Re: Vested Company RSAs
Dear Sir/Madam,
Reference is made to a letter regarding Unvested Company RSAs and Unexercised Company Share Options, dated December 18, 2023 you have recently received (the “Letter”).
Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Letter.
If you received this letter, you hold Vested Company RSAs, which at the Offer Acceptance Time, either (i) shall be subject to the two-year lock-up period stipulated under Section 102 (Capital Gain Route) of the Israeli Income Tax Ordinance [New Version] 5721-1961 (“Section 102” the “Holding Period” and “102 Restricted Company RSA”; or (ii) with respect to which the Holding Period shall have been completed (“102 Non Restricted Company RSA”).
The Company intends to apply to the Israeli Tax Authority (the “Income Tax Ruling”) for a pre-ruling concerning the tax aspects of the cash paid in consideration for your 102 Restricted Company RSA and 102 Non Restricted Company RSA. The Company does not guarantee that an Income Tax Ruling is obtained, and to the extent obtained which restrictions or conditions will be applied by the ITA.
Please note the following with respect of your 102 Restricted Company RSAs:
| • | The consideration for your 102 Restricted Company RSAs will be deposited with IBI CAPITAL COMPENSATION AND TRUSTS (2004) LTD (the “Trustee”), the trustee appointed under the Israeli Appendix of the Company share award plan and Section 102, until the expiry of the Holding Period. |
| • | The Trustee will withhold from the consideration the taxes due under applicable law and/or according to the Income Tax Ruling, if obtained, and transfer the withheld amount to the Company which remit such withheld amount through payroll to the Israeli Tax Authority. |
| • | The net payment for your 102 Restricted Company RSAs, according to the Income Tax Ruling, will be deposited with the Trustee, until the end of the applicable holding period (two years from the date of grant of 102 Restricted Company RSAs). Following receipt of the final Income Tax Ruling, you will be required to sign your consent to the ruling. The net proceeds will be released to you automatically by the Trustee provided three conditions have been met: (1) the final ruling was issued; (2) you signed your consent to the final Income Tax Ruling; and (3) the holding period has lapsed. |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| • | The Net Amount will be disbursed in NIS only. The exchange will be done according to the banking transfer and checks exchange rate at actual conversion. |
Please note the following with respect of your 102 Non Restricted Company RSA:
| • | The consideration for your 102 Non Restricted Company RSA will be deposited with the Trustee and held by the Trustee for the time required according to the terms of the Income Tax Ruling, if obtained, or such other time as instructed by the Company if the Income Tax Ruling is not obtained. The Trustee will withhold from the consideration the taxes due under applicable law or the Income Tax Ruling, if obtained, and transfer the withheld amount to the Company which remit such withheld amount through payroll to the Israeli Tax Authority. |
| • | The consideration for your 102 Non Restricted Company RSA will be disbursed in NIS. If you wish to change or verify the currency, you need to contact the Trustee as detailed below, sufficient time prior to the Offer Acceptance Time. |
| • | There is no option to choose different currencies for the consideration for different grants. Once the currency is selected, it will apply to all your 102 Non Restricted Company RSAs. |
| • | Bank transaction fees – the bank transfer fee for NIS transactions is NIS 20, and for USD transactions is USD 22. Any other fees that you may be charged by the bank are not dependent on the currency selection. |
| • | We highly recommend you verify that your bank account details are updated with the Trustee as needed. If you choose USD as your default currency, you need to ensure your bank account can accept it. |
Contact details of the Trustee: - Tel: +972-3-6849282 (also available on WhatsApp)
- US Toll Free: +1-917-2849576
- Thailand Toll Free: +66-25660309
- India Toll Free: +91-8009190255
- Email: sop@ibi.co.il
- Services hours:
| • | Sunday: 9:30 – 16:00 (Israel local time) |
| • | Monday-Friday: 9:30 – 23:00 (Israel local time) |
| • | Service hours are subject to the official closing times of the NASDAQ/NYSE/TSX/LSE markets |
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
represented by Deborah Choate, duly authorized
pursuant to a power of attorney granted by Georges Karam
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Israel)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
1
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”) and appointed IBI Capital as the trustee (the “Trustee”) for the purpose of section 102 Israeli Income Tax Ordinance [New Version] 5721-1961 (the “ITO”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
Beneficiary further confirms that any payment made by Purchaser for the benefit of Beneficiary with respect to Company Shares or ADSs issued as a result of the exercise of vested Company Share Options or the vesting of Company RSAs shall be transferred to the Trustee as further detailed below.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. The Parent RSU Grant shall be subject to the same trust arrangements and restriction applicable to Unvested Company RSAs; provided that the trustee with respect to the Parent RSU Grant shall be Altshuler Shaham Trusts Ltd (the “Parent Trustee”). |
2
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period, other than as required under applicable law, including the ITO.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser, the Trustee, the Parent Trustee, the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of the Beneficiary and to the extent so required under the applicable law) upon the Parent RSU Grant. Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
3
Without derogating from any of the foregoing, Beneficiary acknowledges and agrees that Purchaser shall transfer to the Trustee any and all cash on account of (i) validly tendered Company Shares or ADSs issued as a result of the exercise of vested Company Share Options or the vesting of Company RSAs and owned by Beneficiary as of the date of this Agreement and (ii) any additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the Offer Acceptance Time as a result of the exercise of vested Company Share Options or the vesting of Company RSAs. The Trustee shall have the right to deduct from any cash consideration received by the Trustee for the benefit of Beneficiary any amount required to be withheld from all cash or other consideration received by the Trustee under applicable law, including the ITO or any tax pre-ruling received by the Company, the Trustee or the Parent Trustee from any consideration paid or payable to Beneficiary (including on account of the Parent RSU Grant), at the maximum rate required based on the Trustee’s sole discretion. In addition, in the event that the Trustee does not hold enough cash to cover the amounts required to be withheld based on the Trustee’s sole discretion, the Trustee may require the Beneficiary to provide the Trustee with cash in an amount sufficient to cover the tax due to be withheld, as a condition to Beneficiary’s right to receive any consideration. In the event that notwithstanding the above, at the time withholding payments are required to be made to the applicable tax authority, the Trustee does not have enough cash to make such withholding payment, the Trustee and Purchaser may forfeit and cancel or cause the forfeiture and cancellation of any portion of the consideration for which withholding has not been made.
Beneficiary acknowledges and confirms that it has no claims, and hereby irrevocably waives, releases and discharges the Company, Parent, the Trustee and the Parent Trustee from and against any claims or demands against the Company, Parent, the Trustee or the Parent Trustee, in each case, in connection with the Company’s, the Parent’s, the Trustee’s or the Parent Trustee’s actions pursuant to the foregoing.
Beneficiary agrees to indemnify and hold harmless the Company, the Parent, the Trustee and the Parent Trustee for any and all payments made by any of the Company, the Parent, the Trustee or the Parent Trustee with respect to withholding taxes.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
4
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
| (i) | If to Purchaser: |
5
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific
6
performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
7
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
8
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |||
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||||
AGREED AND ACKNOWLEDGED, SOLELY WITH RESPECT TO THE PROVISIONS OF SECTION 2
|
IBI CAPITAL, |
| represented by Ronen Shitrit |
9
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2019-1 | ||
| RSA Plan 2020-1 | ||
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 | ||
| RSA Plan 2023-1 | ||
10
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2015-1 |
11
Exhibit (a)(1)(O)
On December 18, 2023
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| Yours sincerely,
|
|
SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Hong Kong)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
||
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2021-1 |
||
| RSA Plan 2022-1 |
||
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 |
||
| SO Plan 2014-1 |
||
| SO Plan 2015-1 |
||
| SO Plan 2016-1 |
||
Exhibit (a)(1)(P)
| On December 18, 2023 |
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company, and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company Shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
In the context of the Offer, if you hold Unvested Company RSAs, Parent shall undertake to you to promptly award, as of the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), a number of restricted stock units issued under the Renesas Electronics Corporation Terms and Conditions on Stock Compensation (collectively, the “Parent RSU”) equal to:
| (i) | the number of your Unvested Company RSAs outstanding as at the Offer Acceptance Time, multiplied by |
| (ii) | the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by |
| (iii) | the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU is awarded by Parent’s board, rounded up to the nearest 100 restricted stock units; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you execute the Equity Award Cancellation Agreement in the form attached hereto as Exhibit A (the “Cancellation Agreement”), pursuant to which you shall irrevocably undertake, conditional on the consummation of the Offer:
| (a) | to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and all additional Company Shares or ADSs of which you may acquire ownership prior to the Offer Acceptance Time, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs; |
| (b) | to cancel any Unvested Company RSAs that you hold; and |
| (c) | to cancel all outstanding and unexercised Company Share Options that you hold. |
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Company Shares and ADSs to the Offer, or you do not execute the Cancellation Agreement to irrevocably undertake the foregoing, you will not be entitled to the Parent RSU described above.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to obtain the Parent RSU for your Unvested Company RSAs, you must execute and deliver the Cancellation Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Cancellation Agreement, unless otherwise indicated by Purchaser.
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
CANCELLATION AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EQUITY AWARD CANCELLATION AGREEMENT
(Finland)
BETWEEN THE UNDERSIGNED
Renesas Electronics Europe GmbH, a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH) with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”);
AND
The beneficiary party to this Agreement and set forth on the signature page hereto (the “Beneficiary”).
Purchaser and Beneficiary are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
IN THE PRESENCE OF
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”).
RECITALS
| 1) | The Company’s American Depositary Shares (the “ADSs”) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”). |
| 2) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU. |
| 3) | The Company established several restricted share award plans (the “Company RSA Plans”), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the “Company RSAs”). |
| 4) | As of 17 December 2023, Beneficiary will hold the Company RSAs set forth on Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the “Concerned RSAs”, and the Company Shares issuable pursuant to the Concerned RSAs, the “Concerned Shares”). |
| 5) | The Company established several stock option subscription plans (the “Company Share Option Plans”), which provide for the grant of options to subscribe for Company Shares and ADSs (the “Company Share Options”). |
| 6) | As of 17 December 2023, Beneficiary will benefit from the Company Share Options set forth on Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the “Concerned Share Options” and together with the Concerned RSAs and the Concerned Shares, the “Concerned Securities”). |
| 7) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| 8) | In connection with, and conditioned on the consummation of, the Offer, Purchaser and Beneficiary hereby agree to the treatment of the Concerned RSAs, the Concerned Shares, and the Concerned Share Options as set forth in this Equity Award Cancellation Agreement (the “Agreement”). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | TENDER SHARES |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer (the “Offer Acceptance Time”), including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | UNVESTED COMPANY RSA |
| 2.1 | Beneficiary acknowledges and agrees that, at the Offer Acceptance Time, all Concerned RSAs that are outstanding and unvested as of the Offer Acceptance Time (the “Unvested Company RSAs”) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Unvested Company RSAs shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full (the “Unvested RSA Cancellation”). |
| 2.2 | Pursuant to the MoU, Purchaser procures that, not later than three (3) months after the Offer Acceptance Time, Parent shall grant to Beneficiary (the “Parent RSU Grant”) that number of Parent RSUs equal to (A) the number of Unvested Company RSAs held by Beneficiary, multiplied by (B) the applicable Offer Price (converted into Japanese Yen in accordance with Parent’s standard currency conversion calculations), divided by (C) the Parent Common Stock Price, rounded up to the nearest 100 restricted stock units. |
| 2.3 | “Parent Common Stock Price” means the average closing price of a share of Parent common stock on the Tokyo Stock Exchange over the period of the three (3) calendar months immediately prior to the calendar month in which the Parent RSU Grant is resolved by Parent’s board. |
“Parent RSU” means a restricted stock unit issued under the Parent Stock Compensation Plan.
“Parent Stock Compensation Plan” means the Renesas Electronics Corporation Terms and Conditions on Stock Compensation.
The Parent RSU Grant shall be subject to the following vesting schedule:
| Vesting Date Range For Unvested Company RSA |
Vesting Date for Parent RSU Grant | |
| Date of Offer Acceptance Time through first vesting date that is after the Closing (i.e., February 1, May 1, August 1 or November 1) | Date of Offer Acceptance Time | |
| November 1 through January 31 | November 1 | |
| February 1 through April 30 | February 1 | |
| May 1 through July 31 | May 1 | |
| August 1 through October 31 | August 1 | |
In addition, in the event that Beneficiary is dismissed by the Company within six (6) months of the Offer Acceptance Time, other than for misconduct or gross negligence, then all unvested Parent RSUs subject to Beneficiary’s grant shall vest immediately upon the date of employment contract termination as a result of said dismissal.
The Parent RSU Grant shall be subject to the terms and conditions set forth in the Parent Stock Compensation Plan and the related grant notice; provided that the Parent RSU Grant shall not be subject to any lock-up period.
In addition, in the event that Beneficiary is dismissed by the Company after the Offer Acceptance Time but before the issuance of the Parent RSU Grant, other than for misconduct or gross negligence, then Purchaser undertakes to pay (or cause to be paid) to Beneficiary upon the date of employment contract termination as a result of such dismissal an amount equal to (A) the number of Unvested Company RSAs held by Beneficiary as of the Offer Acceptance Time, multiplied by (B) the applicable Offer Price (for the avoidance of doubt, in addition to any other amounts that may be due to Beneficiary in connection with such dismissal).
The Purchaser and the Company or any affiliate in Purchaser’s group (as applicable) shall determine and withhold the amount of any withholding or other federal, state, or local taxes, including, but not limited to, income or excise taxes and social security charges or contributions, required to be withheld (for or on behalf of Beneficiary) upon the Parent RSU Grant (or payment in lieu thereof). Such withholding can be made from any payment due by the Purchaser or the Company to the relevant Beneficiary. For the avoidance of doubt, Purchaser shall be solely responsible (without withholding from Beneficiary) for the payment of any employer’s portion of social security charges, payroll taxes or contributions that would be due by the employer of the Beneficiary.
| 3. | CANCELLATION OF COMPANY SHARE OPTIONS |
Beneficiary acknowledges and agrees that, effective as of the Offer Acceptance Time, all outstanding and unexercised Concerned Share Options (whether or not then exercisable) shall be cancelled without the payment of any consideration therefore, with no further action required by Purchaser, the Company or Beneficiary and all of Beneficiary’s rights with respect to such Concerned Share Options shall be cancelled and extinguished in their entirety, and any agreement relating thereto shall terminate in full.
| 4. | DECLARATIONS AND COMMITMENTS OF THE PARTIES |
| (a) | Each of Purchaser and Beneficiary declares that it has the capacity and authority to enter into this Agreement, to perform the obligations incumbent upon it and to carry out the operations provided for under the terms of this Agreement. |
| (b) | Beneficiary declares that the Concerned Securities are free of all Security Interests (as defined below) (with the exception of legal, regulatory or contractual provisions prohibiting the transfer of the Concerned Securities) and all third party rights and are not subject, with the exception of this Agreement or as contemplated by the MoU, to any Transfer (as defined below) or promise or undertaking to Transfer. |
The term “Transfer” refers to any transaction, whether free of charge or against payment, whatever its nature, having the direct or indirect effect of (i) transferring, immediately or in the future, to any individual or legal entity, by way of sale, contribution, exchange, merger or in any other way, the ownership, a dismembered right of ownership, or the simple enjoyment of all or part of the Concerned Securities, (ii) granting real or personal rights over the Concerned Securities, including any promise to sell, pledge, enter into a repurchase agreement or loan relating to the Concerned Securities, or (iii) conferring on the Concerned Securities an equivalent economic interest via transactions of the equity swap or other type, whether for physical or monetary delivery, and, by extension, the verb “Transfer” refers to the carrying out of any of the operations referred to above.
The term “Security Interests” means any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever on the ownership, benefit or transfer of the Concerned Securities (including any agreement having the same economic effect).
| (c) | Subject to the provisions of this Agreement, the signing of this Agreement and the performance of the obligations arising hereunder do not require any other authorization from a competent authority or third party that has not already been obtained (other than with respect to the Parent RSU Grant, which corporate approvals shall be obtained prior to the applicable issuance thereof), nor do they contravene any stipulation of an agreement or commitment to which, as applicable, Purchaser or Beneficiary is a party or by which, as applicable, Purchaser or Beneficiary is bound. |
| (d) | Beneficiary acknowledges that (i) Beneficiary has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other transactions contemplated by the MoU and (ii) Beneficiary has had sufficient time and opportunity to review this Agreement and all other documents affecting Beneficiary’s interests in connection with the Offer. Beneficiary acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Beneficiary. Beneficiary has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other transactions contemplated by the MoU and this Agreement. Beneficiary understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives. |
| 5. | MISCELLANEOUS |
| 5.1 | NOTICES |
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
(i) If to Purchaser:
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
(ii) If to Beneficiary, at the address of Beneficiary as set forth on the records of the Company.
| 5.2 | TRANSFERS AND ASSIGNMENT |
The Agreement shall be binding upon the Parties, their successors and permitted assignees. It is expressly agreed that:
| (i) | Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from the Agreement, without the prior written agreement of Beneficiary, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and |
| (ii) | Beneficiary may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser. |
| 5.3 | SPECIFIC PERFORMANCE |
Each of the Parties acknowledges and agrees that it may not in any way withdraw its undertakings under the terms of this Agreement either before or after the exercise of the option by the other Party, the options and the undertakings contained therein being irrevocable and definitive.
Each Party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other Party may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting Party may seek the specific performance (exécution forcée) of the obligations provided for under this Agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The Parties further acknowledge and agree that any specific performance (exécution forcée) sought by a Party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting Party and its interest for the other Party.
| 5.4 | COST AND EXPENSES |
Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the Parties, each Party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
| 5.5 | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
| 5.6 | WAIVER AND VARIATION |
| (a) | Each Party hereby acknowledges that (i) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (ii) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each Party agreeing to assume any risk which may arise from any such unforeseeable events. |
| (b) | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the Parties. |
| (c) | Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the Party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement. |
| (d) | Except as expressly provided in this Agreement, no failure or delay by any Party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. |
| (e) | In addition and without prejudice to any other waiver of rights by a Party provided in this Agreement, to the fullest extent permitted by applicable law, each Party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code: |
| • | Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or |
| • | Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk. |
| 5.7 | SEVERABILITY |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the Parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 5.8 | ELECTRONIC SIGNATURE |
The Parties and the Company acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the Parties and the Company agree that:
| (a) | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| (b) | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| (c) | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| (d) | the requirement of having one (1) original copy of the Agreement for each Party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each Party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| (e) | this Agreement shall take effect on the date hereof. |
| 5.9 | APPLICABLE LAW AND JURISDICTION |
This Agreement shall be governed by and construed in accordance with French law.
Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court.
[Signatures on next page]
On
|
RENESAS ELECTRONICS EUROPE GmbH represented by Carsten Jauch, Managing Director |
born on of nationality residing e-mail address: THE BENEFICIARY | |
| IN THE PRESENCE OF :
SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
APPENDIX 1
Number of Unvested Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2021-1 | ||
| RSA Plan 2022-1 |
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2013-1 | ||
| SO Plan 2014-1 | ||
| SO Plan 2015-1 | ||
| SO Plan 2016-1 |
Exhibit (a)(1)(Q)
On December 18, 2023
Re: Exercise and cancellation of Company Warrants and tender of the underlying vested shares
Dear Sir/Madam,
Reference is made to the cash tender offer to be initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), of all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (the “ADSs”)) for a price (the “Offer Price”) of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 (as amended from time to time, the “MoU”) between the Company and Renesas Electronics Corporation, a Japanese corporation (the “Parent”).
As at the date hereof, you hold outstanding warrants (bons de souscription d’actions) (“Company Warrants”) to purchase Company Shares.
In the context of the Offer, Purchaser is offering you the opportunity to:
| • | exercise all, and no less than all, of your Company Warrants that are vested as of the time at which Purchaser accepts for payment and pays for Company Shares tendered in the Offer (the “Offer Acceptance Time”) (including, for the avoidance of doubt, any Company Warrants that will vest as a result of any acceleration provision that is triggered by the consummation of the Offer at the Offer Acceptance Time) and which have an exercise price that is less than the Offer Price (“In-the-Money Vested Company Warrants”) through a cashless exercise arrangement to fund the payment of the exercise price and any applicable tax withholding obligations; and |
| • | enter into a warrant cancellation and exercise agreement in the form attached hereto as Exhibit A (a “Warrant Cancellation and Exercise Agreement”) pursuant to which you shall agree to cancel, effective as of the Offer Acceptance Time, all your Company Warrants that are unvested as of the Offer Acceptance Time and which have an exercise price that is less than the Offer Price (“In-the-Money Unvested Company Warrants”) and replace it with a right to receive an amount in cash, without interest, equal to the product of (x) the aggregate number of Company Shares subject to such In-the-Money Unvested Company Warrant multiplied by (y) the excess of the Offer Price over the applicable per share exercise price under such In-the-Money Unvested Company Warrant, subject to any required withholding of taxes (the “Cash Replacement Warrant Amount”), which Cash Replacement Warrant Amount will be subject to the holder’s continued service agreement or board member status with the Parent, the Company, or any of their affiliates through the applicable vesting dates, vest and be payable at the same time as the In-the-Money Unvested Company Warrant for which such Cash Replacement Warrant Amounts were exchanged would have vested pursuant to its terms; |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
provided that you irrevocably undertake to transfer to Purchaser all Company Shares acquired upon the exercise of your In-the-Money Vested Company Warrants (your “Warrant Shares”) at the Offer Acceptance Time or during any subsequent offering period of the Offer as defined under applicable laws and regulations (as such periods may be extended in accordance with applicable laws and regulations), and that you agree to cancel any Company Warrants that have an exercise price that is equal to or more than the Offer Price, regardless as to whether such Company Warrants are vested or unvested (“Out-of-the-Money Company Warrants”).
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm ;
and here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3 .
If you do not tender all of your Warrant Shares to the Offer in accordance with the Offer, or you do not execute the Warrant Cancellation and Exercise Agreement, the exercise of your Company Warrants through the cashless exercise arrangement described above will not become effective.
If you exercise all, and no less than all, of your In-the-Money Vested Company Warrants and tender all, and no less than all, of your Warrant Shares to the Offer, you will receive, shortly following the completion of the Offer, for each Warrant Share resulting from the exercise of your Company Warrants, an amount in cash, without interest, equal to the excess, if any, of the Offer Price over the applicable per share exercise price for each such Company Warrant, less any applicable tax withholding amount.
The exercise of your In-the-Money Vested Company Warrants in the context of the cashless exercise arrangement described above and the effectiveness of the Warrant Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Warrant Cancellation and Exercise Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
If you wish to exercise your In-the-Money Vested Company Warrants through the cashless exercise arrangement described above and receive the Cash Replacement Warrant Amount, you must execute and deliver the Warrant Cancellation and Exercise Agreement attached as Exhibit A electronically no later than January 9, 11:59pm (NYC time) or such later deadline as may be extended by the Purchaser (the “Acceptance Deadline”). If Purchaser elects to extend the Acceptance Deadline beyond the date identified above, the Company will notify you as soon as possible. Any extension will not impact a previously delivered Warrant Cancellation and Exercise Agreement, unless otherwise indicated by Purchaser.
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
The tax implications of exercising your In-the-Money Vested Company Warrants, cancelling your In-the-Money Unvested Company Warrants and cancelling your Out-of-the-Money Company Warrants are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before executing and delivering the Warrant Cancellation and Exercise Agreement.
| Yours sincerely, |
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT A
WARRANT CANCELLATION AND EXERCISE AGREEMENT
[See following pages]
SEQUANS Communications – Société Anonyme au capital de 2.415.738,14 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
WARRANT CANCELLATION AND EXERCISE AGREEMENT
This Warrant Cancellation and Exercise Agreement, dated (this “Agreement”), is entered into by and among Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, with its registered office at Les Portes de la Défense—15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the “Company”), Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH), with its registered office at Arcadiastrasse 10 – 40472 Düsseldorf, Germany, registered with the German trade register under number HRB 3708 (the “Purchaser”) and the undersigned holder (the “Holder”) of Company Warrants (as defined below).
RECITALS
WHEREAS, Holder will hold, as of December 17, 2023, the warrants (to subscribe for ordinary shares, nominal value of €0.01 per share, of the Company (the “Company Shares”)) set forth on Exhibit A hereto (the “Company Warrants”).
WHEREAS, on August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the “MoU”) with Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and American Depositary Shares (the “ADSs”) issued by the Company for USD 0.7575 per ordinary share and USD 3.03 per ADS (each ADS representing four (4) ordinary shares) (the “Offer”). All capitalized terms used herein but not otherwise defined herein shall have the meaning ascribed to such terms in the MoU.
WHEREAS, in connection with, and conditioned on the consummation of, the Offer, Purchaser and Holder hereby agree to the treatment of the Company Warrants and the Company Shares issuable upon the exercise thereof (the “Warrant Shares”) as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, representations, mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Exercise of In-the-Money Vested Company Warrants.
(a) Effective as of the time at which Purchaser accepts for payment and pays for Company Shares tendered in the Offer (the “Offer Acceptance Time”), Holder hereby exercises all, and no less than all, Company Warrants that are vested as of the Offer Acceptance Time and which have an exercise price that is less than the Offer Price (if any) (“In-the-Money Vested Company Warrants”) and consequently subscribe to the underlying Warrant Shares. For the avoidance of doubt, any Company Warrants that will vest as a result of any acceleration provision that is triggered by the consummation of the Offer at the Offer Acceptance Time shall be deemed to be vested as of the Offer Acceptance Time, and, if in-the-money, shall be treated as In-the-Money Vested Company Warrants.
(b) Holder hereby irrevocably agrees that the exercise price for the In-the-Money Vested Company Warrants and applicable tax withholdings shall be paid, directly by Purchaser, on Holder’s behalf, on the Company’s account, by way of a delegation of payment (délégation de paiement) in accordance with provisions of Article 1336 et seq. of the French Civil Code.
(c) Holder hereby confirms Holder’s firm and irrevocable commitment to transfer to Purchaser, as the case may be, at the Offer Acceptance Time or during any subsequent offering period of the Offer as defined under applicable laws and regulations (as such periods may be extended in accordance with applicable laws and regulations), all of the Warrant Shares acquired upon exercise of the In-the-Money Vested Company Warrants.
(d) Holder acknowledges that as a consequence, Holder will receive, for each Warrant Share resulting from the exercise of the In-the-Money Vested Company Warrants, an amount in cash equal to the excess, if any, of the Offer Price over the applicable per share exercise price for such In-the-Money Vested Company Warrant, less any applicable tax withholding amount, on the bank account which details have previously been provided to the Company, except otherwise instructed.
(e) Consequently, and in accordance with Articles 1984 et seq. of the French Civil Code and Delaware law, Holder hereby grants full powers to:
| • | Georges Karam, President and Chief Executive Officer of the Company; and |
| • | Deborah Choate, Chief Financial Officer of the Company; |
each acting separately with full power of sub-delegation to be true and lawful attorneys-in-fact (each, an “Attorney”), to, in Holder’s name and on Holder’s behalf:
(i) negotiate, modify, finalize, initial, sign and/or certify as true: (A) any exercise form (bulletin d’exercice) relating to the exercise of the In-the-Money Vested Company Warrants and the subscription of the Warrant Shares; (B) any documentation relating to the sale and tendering of all the Warrant Shares resulting from the exercise of the In-the-Money Vested Company Warrants to Purchaser, in particular, any transfer form (ordre de mouvement), transfer contract, ordinary share acceptance form, any cerfa form or any other deed, agreement, appendix or form that would be required for the completion of any such sale; and (C) any individual undertaking relating to any confidentiality and/or non-disclosure obligation;
(ii) represent Holder at any meeting of any corporate body of the Company (a “Meeting”) which will be necessary for the completion of the transactions contemplated under the MoU (the “Transactions”) and consequently attend any Meeting, sign attendance notes and any other documents, take part in all discussions, cast all votes which Holder is entitled to cast and generally carry out the necessary procedures in relation to the completion of the Transactions; and
(iii) more generally, in the context of the Transactions or in order to successfully complete the aforementioned actions and facilitate the completion of the Transactions, execute and sign any contract, deed, amendment, exhibit or document (including any letter, any share transfer certificate, any cerfa form, any deed of adherence, all powers to carry out, any report, minutes or written shareholders’ decision), carry out any formality, enter into any commitments, make all declarations, pay any sum and receive receipt in connection thereof, receive all sums and give receipt in connection thereof, give all instructions, certify true any documents and exhibits, elect domicile, and generally do all that is required by circumstances and do all that the Attorney will see fit to do in the context of the Transactions or in order to successfully complete the aforementioned actions.
(f) In furtherance of the foregoing, Holder hereby expressly authorizes each Attorney to act or execute any contract, deed, appendix, exhibits or document in Holder’s name and on Holder’s behalf notwithstanding the provisions of Article 1161 of the French Civil Code.
2. Cancellation of Company Warrants.
(a) Effective as of the Offer Acceptance Time, all Company Warrants held by Holder that are unvested as of the Offer Acceptance Time and which have an exercise price that is less than the Offer Price (if any) (“In-the-Money Unvested Company Warrants”) shall be cancelled and replaced with a right to receive an amount in cash, without interest, equal to the product of (i) the aggregate number of Company Shares subject to such In-the-Money Unvested Company Warrant multiplied by (ii) the excess of the Offer Price over the applicable per share exercise price under such In-the-Money Unvested Company Warrant, subject to any required withholding of taxes (the “Cash Replacement Warrant Amount”), which Cash Replacement Warrant Amount will be subject to Holder’s continued service agreement or board member status with Parent, the Company, or any of their affiliates through the applicable vesting dates, vest and be payable at the same time as the In-the-Money Unvested Company Warrant for which such Cash Replacement Warrant Amounts were exchanged would have vested pursuant to its terms. All Cash Replacement Warrant Amounts will have the same terms and conditions (including, with respect to vesting and acceleration) as applied to the award of In-the-Money Unvested Company Warrants for which they were exchanged, except for terms rendered inoperative by reason of the Transactions or for such other administrative or ministerial changes as Purchaser and the Company determine are appropriate to conform the administration of the Cash Replacement Warrant Amounts.
(b) Effective as of the Offer Acceptance Time, all Company Warrants held by Holder that have an exercise price that is equal to or more than the Offer Price, regardless as to whether such Company Warrants are vested or unvested, shall be cancelled without any cash payment being made in respect thereof.
3. Consents and Waivers. Holder hereby gives any consents or waivers that are reasonably required for the consummation of the Offer and the other Transactions under the terms of the Warrant and irrevocably waives all notice and/or exercise rights that may be provided under the terms of the Warrant as of the Offer Acceptance Time with respect to the treatment of such Warrant as described in this Agreement.
4. Ownership of Warrants. Holder represents that Holder beneficially owns the Company Warrants set forth on Exhibit A hereto and no other person has a beneficial interest in or a right to acquire such Company Warrants or vote any of the Warrant Shares issuable thereunder. No Company Warrant is subject to any lien, pledge, servitude, charge, security interest, option, claim, mortgage, lease, easement, proxy, voting trust or agreement, encumbrance or any other restriction on title or transfer of any nature whatsoever.
5. Power, Capacity and Authority. Each party represents to the other party that: (i) it has all requisite power, capacity and authority to enter into this Agreement and to perform its obligations under this Agreement and consummate the transactions contemplated hereby; (ii) this Agreement has been duly executed and delivered by it and, assuming the due authorization, execution, and delivery by the other parties, this Agreement is the legal, valid, and binding obligation of such party, enforceable against it in accordance with its terms, and each of the other documents to which it is (or will be) a party, when executed by it, and assuming the due authorization, execution, and delivery by each of the other parties thereto, will be the valid and binding obligation of such party, enforceable against it in accordance with its terms, in each case, except to the extent such enforceability is subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or other law affecting or relating to creditors’ rights generally and general principles of equity; provided that no party makes any representation and warranty hereunder as to the enforceability of any provision hereunder or any other operative document that purports to bind any other person other than it.
6. Separate Representation. Holder hereby acknowledges that (a) Holder has not been represented by Orrick, Herrington & Sutcliffe LLP, Goodwin Procter LLP or any other advisors or counsel engaged by the Company, Parent or Purchaser in connection with this Agreement or issues related to the Offer or the other Transactions and (b) Holder has had sufficient time and opportunity to review this Agreement and all other documents affecting Holder’s interests in connection with the Offer. Holder acknowledges and agrees that none of the Company, Parent or Purchaser is providing any tax, legal or financial advice to Holder. Holder has had an opportunity to review with its own tax advisors the tax consequences of the Offer and the other Transactions. Holder understands that it must rely solely on its advisors and not on any statements or representations made by Parent, Purchaser, the Company or any of their agents or representatives.
7. Miscellaneous.
(a) Notices. All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email (provided that written confirmation of receipt of email is issued to the sender of the notice), and a hard copy of such notice is also delivered by international courier service one (1) Business Day after transmission to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
| (i) | If to Purchaser: |
Renesas Electronics Europe GmbH
c/o Renesas Electronics Corporation
3-2-24, Toyosu, Koto-ku
Tokyo 135-0061, Japan
Email: legal-notices@renesas.com
Attention: General Counsel
With a copy to (which shall not constitute a notice):
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401, USA
Email: jolsen@goodwinlaw.com; jhaggerty@goodwinlaw.com;
jeanlee@goodwinlaw.com
Attention: Jon A. Olsen; John T. Haggerty; Jean A. Lee
Goodwin Procter (France) LLP
12 rue d’Astorg
75008 Paris, France
Email: wrobert@goodwinlaw.com
Attention: William Robert
| (ii) | If to the Company: |
Sequans Communications S.A.
5-55 Boulevard Charles de Gaulle
92700 Colombes, France
Email: georges@sequans.com; Deborah@sequans.com
Attention: Georges Karam; Deborah Choate
With a copy to (which shall not constitute a notice to the Company):
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105, USA
Email: jbautista@orrick.com; bcooper@orrick.com; rsmith@orrick.com
Attention: John Bautista; Brett Cooper; Richard Smith
Orrick Rambaud Martel
61, rue des Belles Feuilles
Paris, 75116
France
Email: ptardivy@orrick.com
Attention: Patrick Tardivy
| (iii) | If to Holder, at the address of Holder as set forth on the records of the Company. |
(b) Interpretation. When a reference is made in this Agreement to Sections or Exhibits, such reference shall be to a Section of, or Exhibit to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” Unless the context of this Agreement otherwise requires (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number respectively, (iii) the terms “hereof,” “herein,” “hereunder,” and derivative or similar words refer to this entire Agreement and (iv) references to any statute shall refer to the statute, as amended, and include the rules and regulations promulgated thereunder. The use of “or” is not intended to be exclusive unless expressly indicated otherwise. All references in this Agreement to the subsidiaries of a legal entity shall be deemed to include all direct and indirect subsidiaries of such entity.
(c) Specific Performance. Each party acknowledges and agrees that in the event of a breach or non-compliance of any of its obligations provided for under this Agreement, the other parties may not be fully compensated by the award of monetary damages and that, without prejudice to any other remedies, the non-defaulting parties may seek the specific performance (exécution forcée) of the obligations provided for under this agreement, injunctive or other equitable relief as a remedy for any such breach or non-compliance. The parties further acknowledge and agree that any specific performance (exécution forcée) sought by a party will constitute a balanced course of action falling outside the manifest disproportion (disproportion manifeste) exclusion set forth under Article 1221 of the French Civil Code and will therefore not create a manifest disproportion (disproportion manifeste) between the cost for a good faith defaulting party and its interest for the other parties.
(d) Cost and expenses. Except as otherwise provided in this Agreement or otherwise expressly agreed in writing by the parties, each party shall be responsible for its own costs, fees, expenses and other charges of any nature arising out or in connection with the negotiation, preparation, execution and implementation of this Agreement and any other transactions, documents and agreements referred to under this Agreement.
(e) Entire Agreement. This Agreement constitutes the entire agreement among the parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement.
(f) Transfer and Assignment. This Agreement shall be binding upon the parties hereto, their successors and permitted assignees. It is expressly agreed that: (i) Purchaser may assign its rights and obligations hereunder to any successor in interest and may substitute itself for any company it controls within the meaning of Article L. 233-3 of the French Commercial Code in the rights and obligations arising from this Agreement, without the prior written agreement of Holder, such assignment or substitution having no effect on this Agreement which will continue under the same terms and conditions; and (ii) Holder may not transfer (except to in the event of succession, in which case Purchaser must be informed without delay) or otherwise assign its rights and obligations under this Agreement without the prior written consent of Purchaser.
(g) Waiver and Variation.
(i) Each party hereby acknowledges that (A) this Agreement falls within the scope of Article L. 211-40-1 of the French Monetary and Financial Code and (B) as a consequence, Article 1195 of the French Civil Code regarding the occurrence of unforeseen events referred to in this Article shall not apply to this Agreement, each party agreeing to assume any risk which may arise from any such unforeseeable events.
(ii) No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the parties hereto.
(iii) Except as expressly provided in the Agreement, any waiver of any provision, term, condition, consent, remedy or discharge must be made in writing and duly executed by (or on behalf of) the party entitled to make such waiver and no such waiver shall be deemed being a waiver of any other breach of the same or of any other term or condition of this Agreement.
(iv) Except as expressly provided in this Agreement, no failure or delay by any party in exercising any right or remedy relating to this Agreement shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time. No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy.
(v) In addition and without prejudice to any other waiver of rights by a party provided in this Agreement, to the fullest extent permitted by applicable law, each party hereto expressly and irrevocably waives the following provisions of the French Civil Code which shall not be applicable to this Agreement and, accordingly, no claim for termination, variation or lapse of this Agreement shall be permitted on the grounds of these following provisions of the French Civil Code:
(A) Article 1218 of the French Civil Code regarding the right for a debtor to suspend the performance of or to terminate a contract in case of a force majeure event; or
(B) Article 1226 of the French Civil Code regarding the right for a creditor to terminate a contract at its own risk.
(h) Severability. If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
(i) Electronic Signature. The parties acknowledge and agree that this Agreement may be entered into by a Party in writing in electronic form. In such instance, the parties agree that:
(i) in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code;
(ii) this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability;
(iii) this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services;
(iv) the requirement of having one (1) original copy of the Agreement for each party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and
(v) this Agreement shall take effect on the date hereof.
(j) Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with French law; provided that Section 1(e) shall be governed by Delaware law. Any dispute relating to this Agreement, in particular concerning its validity, performance or interpretation, shall be submitted to the exclusive jurisdiction of the competent Commercial Court (tribunal de commerce compétent).
(k) Termination. In the event that the MoU is terminated in accordance with its terms prior to the Offer Acceptance Time, then this Agreement shall automatically terminate concurrently with such termination.
[Signature Page Follows]
IN WITNESS WHEREOF, this Warrant Cancellation and Exercise Agreement has been duly executed by the parties set forth below as of the date written on the first page of this agreement and shall be effective and inclusive as of the Offer Acceptance Time.
COMPANY:
|
|
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
[Signature Page to Warrant Cancellation and Exercise Agreement]
IN WITNESS WHEREOF, this Warrant Cancellation and Exercise Agreement has been duly executed by the parties set forth below as of the date written on the first page of this agreement and shall be effective and inclusive as of the Offer Acceptance Time.
PURCHASER:
|
|
| RENESAS ELECTRONICS EUROPE GmbH |
| represented by Carsten Jauch, Managing Director |
[Signature Page to Warrant Cancellation and Exercise Agreement]
IN WITNESS WHEREOF, this Warrant Cancellation and Exercise Agreement has been duly executed by the parties set forth below as of the date written on the first page of this agreement and shall be effective and inclusive as of the Offer Acceptance Time.
HOLDER:
|
|
| born on of nationality residing e-mail address: |
| (the “Holder”) |
[Signature Page to Warrant Cancellation and Exercise Agreement]
Exhibit A
Number of Company Warrants as of 17 December 2023
| Name of Company Warrants plan |
Company Shares granted | |
| BSAco 2013-1 | ||
| BSAco 2014-1 | ||
| BSAco 2016-1 | ||
| BSAco 2016-2 | ||
| BSAco 2018-1 | ||
| BSA 2014 CA | ||
| BSA 2015 CA | ||
| BSA 2016 CA | ||
| BSA 2017 CA | ||
| BSA 2018 CA | ||
| BSA 2019 CA | ||
| BSA 2020 CA | ||
| BSA 2021 CA | ||
| BSA 2020-1 | ||
| BSA 2022-1 | ||
| BSA 2022 CA | ||
| BSA 2023 CA |
Exhibit (a)(5)(Q)
Dear all,
As publicly announced on August 7, 2023, Renesas proposes to make an all-cash offer to acquire all of the outstanding shares of Sequans (the “Offer”) for a price of $3.03 per ADS (i.e. $0.7575 per ordinary share, each ADS representing four ordinary shares).
The Offer values Sequans at approximately $249 million, including net debt, and is expected to close by the first quarter of calendar year 2024, subject to the satisfaction or waiver of the closing conditions of the Offer.
Assuming the completion of the transaction, Sequans will become a privately held company and Sequans’ ADSs will no longer be listed on any public market.
Please note that the works council (comité social et économique) delivered its favorable opinion (avis) on the Offer on August 10, 2023.
On August 15, 2023, the board of directors considered that the Offer is in the best interests of Sequans, its employees and shareholders, including holders of ADSs, and fair to Sequans’ shareholders and holders of ADSs. Furthermore, the board of directors recommended that Sequans’ shareholders and holders of ADSs accept the Offer and tender their ordinary shares and ADSs pursuant to the Offer.
We are hereby writing to you to inform you that Renesas and Sequans have discussed about specific arrangements with respect to certain of your equity awards. Such arrangements, which depend on the nature of your equity awards (stock options, restricted stock units, warrants/BSA) and your jurisdiction of residence are further described in the enclosed letter.
We urge you to review the enclosed letter and attachments in order to understand what may happen to your equity awards if you decide to sign the enclosed arrangements. We also urge you to consult with your personal counsel to get full understanding of the enclosed proposals and their personal, financial, legal and tax consequences given your own circumstances.
[Paragraph to be inserted for all US, Taiwan, Singapore, Israel, Finland and Hong Kong employees] If you agree with the terms of the enclosed documents, we would be grateful if you could, as soon as possible and in any event before 9 January 2024, 11:59pm (NYC time), sign the equity award cancellation agreement, a form of which is appended to the attached cover letter, using the DocuSign link you will receive today from the law firm Orrick.
[Paragraph to be inserted for France employees only] If you agree with the terms of the enclosed documents, we would be grateful if you could, as soon as possible and in any event before 9 January 2024, 11:59pm (NYC time):
| 1. | sign the liquidity agreement, a form of which is appended to the attached cover letter, using the DocuSign link you will receive today from the law firm Orrick; and |
| 2. | if you hold Unsellable Company Shares only, sign the cancellation form, a form of which is also appended to the attached cover letter, with a “wet ink signature”. In order to do so, holders of Unsellable Company Shares will soon receive a second email containing their individualized cancellation form (with all individualized information included). Such holders shall print and sign with “wet ink” this form, and then shall (i) send a copy of this signed form by e-mail to [●] and (ii) send the original signed document to [●]. |
[Paragraph to be inserted for UK employees only] If you agree with the terms of the enclosed documents, we would be grateful if you could, as soon as possible and in any event before 9 January 2024, 11:59pm (NYC time):
| 1. | sign the equity award cancellation agreement, a form of which is appended to the attached cover letter, using the DocuSign link you will receive today from the law firm Orrick; and |
| 2. | sign the deed of surrender, a form of which is also appended to the attached cover letter, using the second DocuSign link you will receive today from the law firm Orrick, it being specified that you will need to sign such document in the presence of a witness. In order to ease this process, we have asked Ms. Miranda Puttock to act as primary witness and Mr. Thomas Winieki to act as back-up witnesses for all UK employees (only one witness is required for your signature). Please reach out to Miranda or, alternatively, to Thomas, to sign this second DocuSign link and DO NOT SIGN this second DocuSign link without the presence of one of them. |
[Paragraph to be inserted for all BSA holders except Zvi SLONIMSKY] If you agree with the terms of the enclosed documents, we would be grateful if you could, as soon as possible and in any event before 9 January 2024, 11:59pm (NYC time), sign the BSA warrant cancellation and exercise agreement, a form of which is appended to the attached cover letter. In order to do so and depending on the BSAs you hold, some BSA holders will soon receive a DocuSign link, sent by the law firm Orrick, that they shall sign, while others will soon receive a second email containing their individualized BSA warrant cancellation and exercise agreement (with all individualized information included). For those receiving such email, they shall print and sign with “wet ink” this agreement, and then shall (i) send a copy of this signed agreement by e-mail to [●] and (ii) send the original signed document to [●].
We remain at your disposal shall you have any question.
Kind regards,