Sequans Communications F-3, filed Jul 16, 2025
Sequans Communications (SQNS)
F-3
2025-07-16
View Original
Added on
October 21, 2026
As filed with the Securities and Exchange Commission on July 16, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEQUANS COMMUNICATIONS S.A.
(Exact name of registrant as specified in its charter)
| French Republic | Not Applicable | ||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | ||||
Forest, 15-55 boulevard Charles de Gaulle
92700 Colombes, France
Telephone: +33 1 70 72 16 00
(Address and telephone number of Registrant’s principal executive offices)
GKL Corporate/Search, Inc.
One Capitol Mall, Suite 660
Sacramento, California 95814
Telephone: +1 916 442 7652
(Name, address, and telephone number of agent for service)
| Copies to: | |||||
| Steven E. Siesser Brooke A. Gillar Daniel L. Forman Lowenstein Sandler LLP 1251 Avenue of the Americas New York, NY 10020 (212) 262-6700 | Mark Richardson Véronique Gédéon Archers A.A.R.P.I. 28 rue Dumont d’Urville 75116 Paris, France +33 (0)1 45 02 07 07 | ||||
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☑
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities or accept any offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 16, 2025
PROSPECTUS
SEQUANS COMMUNICATIONS S.A.
1,171,987,620 Ordinary Shares represented by 117,198,762 American Depositary Shares
222,458,520 Ordinary Shares represented by 22,245,852 American Depositary Shares issuable upon the exercise of Pre-Funded Warrants
209,166,800 Ordinary Shares represented by 20,916,680 American Depositary Shares, or pre-funded warrants in lieu thereof, issuable upon the exercise of Common Warrants
This prospectus relates to the proposed resale or other disposition by the Selling Securityholders identified in the “Selling Securityholders” section of this prospectus, or any of their transferees or other successors-in-interest, of 1,603,612,940 of our ordinary shares represented by 160,361,294 American Depositary Shares, or ADSs, consisting of: (i) 1,171,987,620 ordinary shares represented by 117,198,762 ADSs (such ADSs, the “Shares”), (ii) 222,458,520 ordinary shares represented by 22,245,852 ADSs (such ADSs, “the “Pre-Funded Warrant Shares”) issuable upon the exercise of pre-funded warrants (the “Pre-Funded Warrants”), and (iii) 209,166,800 ordinary shares represented by 20,916,680 ADSs (such ADSs, the “Warrant Shares”), or Pre-Funded Warrants in lieu thereof, issuable upon the exercise of common warrants (the “Warrants”). The Shares, Pre-Funded Warrant Shares and Warrant Shares are being registered pursuant to the requirements of that certain Registration Rights Agreement, dated as of July 4, 2025, by and between us and certain of the Selling Securityholders (the “Equity Registration Rights Agreement”) to permit the Selling Securityholders to sell ADSs representing the ordinary shares from time to time in the public market.
We are not selling any ADSs or ordinary shares under this prospectus, and we will not receive any proceeds from the sales or other dispositions of the ordinary shares (or ADSs representing such shares) held by the Selling Securityholders.
The Selling Securityholders or their respective pledgees, assignees or successors-in-interest may offer and sell or otherwise dispose of the ordinary shares (or ADSs representing such shares) described in this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The Selling Securityholders will bear all commissions and discounts, if any, attributable to the sales of ordinary shares (or ADSs representing such shares). We will bear all other costs, expenses and fees in connection with the registration of the shares. See “Plan of Distribution” beginning on page 55 for more information about how the Selling Securityholders may sell or dispose of their ordinary shares (or ADSs representing such shares).
Our ordinary shares, in the form of ADSs are listed on the New York Stock Exchange, or NYSE, under the symbol “SQNS.” Each ADS will represent ten ordinary shares, nominal value €0.01 per share. On July 15, 2025, the last reported sale price of our shares on the NYSE was $4.72 per ADS.
Investing in our ordinary shares or ADSs involves a high degree of risk. Before deciding whether to invest in our ordinary shares or the ADSs, you should consider carefully the risks and uncertainties incorporated by reference under the heading “Risk Factors” beginning on page 10 of this prospectus and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Owning our securities may subject you to tax consequences both in France and in the United States. This prospectus and any applicable prospectus supplement may not describe these consequences fully. You should read the tax discussion in this prospectus and any applicable prospectus supplement. In addition, your ability to enforce civil liberties under U.S. federal securities law may be affected adversely by the fact that we are incorporated under the laws of France, many of our officers and directors and experts named in this prospectus are residents of France or elsewhere outside the United States, and a portion of our assets and the assets of such persons are located outside the United States. See “Enforcement of Civil Liabilities.”
Neither the United States Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or the accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2025.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus relates to the proposed resale or other disposition of 1,603,612,940 of our ordinary shares, which may be represented by up to 160,361,294 American Depositary Shares, or ADSs, by the Selling Securityholders. The Shares, the Pre-Funded Warrants and the Warrants were issued by our company to the Selling Securityholders on July 4, 2025, pursuant to the Securities Purchase Agreement, dated as of June 22, 2025, by and among us and the purchasers set forth therein (the “Equity Purchase Agreement”). The Selling Securityholders acquired the Shares, Pre-Funded Warrants and Warrants from us in private placements pursuant to the Equity Purchase Agreement. The Shares, Pre-Funded Warrant Shares and Warrant Shares are being registered pursuant to the requirements of the Equity Registration Rights Agreement to permit the Selling Securityholders to sell ADSs representing the ordinary shares from time to time in the public market.
We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of shares. This prospectus, together with applicable prospectus supplements and the documents incorporated by reference in this prospectus and any prospectus supplements, includes all material information relating to this offering. Please carefully read both this prospectus and any prospectus supplement together with additional information described below under “Risk Factors,” “Where You Can Find More Information About Us” and “Incorporation of Documents by Reference.”
We have not authorized anyone to give any information or to make any representation other than those contained or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus (as supplemented or amended). The Selling Securityholders are offering to sell, and seeking offers to buy, ordinary shares (or ADSs representing such shares) only in jurisdictions where it is lawful to do so. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any ordinary shares (or ADSs representing such shares) other than the registered shares to which they relate, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of securities described in this prospectus. You should assume that the information appearing in this prospectus or any prospectus supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date on the front of those documents only. Our business, financial condition, results of operations and prospects may have changed since those dates.
In this prospectus, except where the context otherwise requires and for purposes of this prospectus only:
•“we,” “us,” “our company,” “the Company,” “the registrant,” “our,” “SQNS” and similar phrases refer to Sequans Communications S.A. and its subsidiaries;
•“Selling Securityholders” refers to each of the entities set forth in the table in the “Selling Securityholders” section herein, collectively with any of their respective transferees or other successors-in-interest;
•“shares” refer to our ordinary shares;
•all references to the “Euro” or “€” are to the euro currency of the European Union and references to “U.S. dollars,” “dollars” or “$” are to Unites States dollars; and
•discrepancies in any table between the amounts identified as total amounts and the sum of the amounts listed therein are due to rounding.
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INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement, and the documents incorporated herein by reference, may contain projections and forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are based on our management’s beliefs and assumptions and on information currently available to our management. All statements other than present and historical facts and conditions contained in this prospectus, any prospectus supplement, and the documents incorporated herein by reference, including statements regarding our future results of operations and financial positions, business strategy, financing plans, including our ability to issue additional equity or debt to finance our continued operations, our ability to enter into new strategic agreements, the exploration of strategic options, expectations for Massive IoT sales, the impact of inventory in our customers’ supply chain on customer demand, our ability to convert our pipeline to revenue, our ability to maintain the NYSE listing of our ADS, and our objectives for future operations, are forward looking statements. These statements are only predictions and reflect our current beliefs and expectations with respect to future events and are based on assumptions and subject to risk and uncertainties and subject to change at any time. We operate in a very competitive and rapidly changing environment. New risks emerge from time to time. Given these risks and uncertainties, you should not place undue reliance on these forward-looking statements. Actual events or results may differ materially from those contained in the projections or forward-looking statements. Some of the factors that could cause actual results to differ materially from the forward-looking statements contained herein include, without limitation:
•our ability to enter into a strategic transaction or secure financing necessary to continue to operate our business;
•our ability to successfully implement our Bitcoin treasury strategy;
•the contraction or lack of growth of markets in which we compete and in which our products are sold;
•unexpected increases in our expenses resulting from inflationary pressures and rising interest rates, including manufacturing and operating expenses and interest expense;
•our inability to adjust spending quickly enough to offset any unexpected revenue shortfall;
•delays or cancellations in spending by our customers;
•unexpected average selling price reductions;
•the significant fluctuation to which our quarterly revenue and operating results are subject due to cyclicality in the wireless communications industry and transitions to new process technologies;
•our inability to anticipate the future market demands and future needs of our customers;
•our inability to achieve new design wins or for design wins to result in shipments of our products at levels and in the timeframes we currently expect;
•our inability to enter into and execute on strategic alliances;
•our ability to meet performance milestones under strategic license agreements;
•the impact of component shortages, suppliers’ lack of production capacity, natural disasters or pandemics on our sourcing operations and supply chain;
•the impact of the Ukraine-Russia conflict on our independent contractors located in Ukraine and the Israeli-Hamas conflict on our employees located in Israel;
•our ability to raise debt and equity financing; and
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•other factors detailed in documents we file from time to time with the Securities and Exchange Commission.
In some cases, you can identify forward-looking statements by terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” as well as similar expressions. Forward-looking statements reflect our current views with respect to future events, are based on assumptions and are subject to risks, uncertainties and other important factors. We operate in a very competitive and rapidly changing environment. New risks emerge from time to time. We cannot assure you that our plans, intentions or expectations will be achieved. Our actual results, performance or achievements could differ materially from those contemplated, expressed or implied by the forward-looking statements contained in this prospectus, any prospectus supplement and the documents incorporated herein by reference. Given these risks, uncertainties and other important factors, you should not place undue reliance on these forward-looking statements. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements set forth in this prospectus, any prospectus supplement and the documents incorporated herein by reference. Also, these forward-looking statements represent our estimates and assumptions only as of the date such forward-looking statements are made. Except as required by law, we assume no obligation to update any forward-looking statements publicly, whether as a result of new information, future events or otherwise.
Readers are also urged to carefully review and consider the various disclosures made by us which attempt to advise interested parties of the factors which affect our business, including without limitation the disclosures made under the caption “Risk Factors” in this prospectus, any accompanying prospectus supplement and in our Annual Report on Form 20-F for the year ended December 31, 2024 filed with the SEC, or Form 20-F, and our other submissions to the SEC, including any Form 6-K submissions furnished by us.
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PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in the securities covered by this prospectus. This summary is qualified in its entirety by the more detailed information included in or incorporated by reference into this prospectus and any applicable prospectus supplement. For a more complete understanding of the Company and our securities, we encourage you to read in their entirety and consider carefully the more detailed information in this prospectus and any related prospectus supplement, including the documents referred to in “Where You Can Find More Information About Us” and “Incorporation of Documents by Reference,” before making an investment decision. Some of the statements in this prospectus constitute, and certain statements in any prospectus supplement or the documents incorporated by reference herein and therein may be, forward-looking statements that involve assumptions, risks and uncertainties as further described in “Information Regarding Forward-Looking Statements.”
Overview
IoT Semiconductor Business Overview
We are a fabless designer, developer and supplier of 5G/4G semiconductors and modules fully optimized the Internet-of-Things (IoT), to provide global connectivity solutions for large scale AI applications, such as smart mobility and logistics, smart cities, e-health and wellness, and smart homes, to name few. Our cellular IoT technology must be extremely optimized in power consumption and cost to enable massive deployment. Our product portfolio is composed of chips, or integrated circuits (IC) of baseband processors and radio frequency (RF) transceivers, as well as modules that incorporate these chips along with radio front end subsystem, and rich software that includes advanced modem and signal processing code as well as protocol stack and higher-layer applications. We also provide advanced services and technology licensing that allows us to expand our addressable markets and further monetize our R&D investment.
Recent Developments
Bitcoin Treasury Strategy
On June 23, 2025, we announced the establishment of our Bitcoin treasury. We view Bitcoin holdings as long-term holdings and intend to strategically accumulate Bitcoin as a primary treasury reserve asset. Our strategy includes acquiring and holding Bitcoin using cash from our operations, and from time to time, subject to market conditions, issuing equity or debt securities or engaging in other capital raising transactions with the objective of using the proceeds to purchase Bitcoin. To support the implementation of this strategy, we expect to build strong partnership with premier Bitcoin financial services platform and institutional services providers, leveraging their expertise to ensure secure execution, robust governance, and market transparency.
As of July 14, 2025 we hold 1,053 Bitcoins acquired for approximately $120 million at an average price inclusive of fees of approximately $113,893 per Bitcoin. In accordance with IFRS 38 Intangible Assets, we expect to account the investment in Bitcoin as an intangible asset, with the investment being marked to market at each balance sheet date. Under IFRS, reductions in value below historical cost and gains in value up the historical cost are recorded in the statement of profit and loss. Gains in value above historical cost are recorded in “other comprehensive income” and are not reflected in the statement of profit and loss.
We believe our combination of strategic Bitcoin reserve and focus on the semiconductor technological innovation positions us to offer a unique opportunity for potential long-term value creation.
Our Bitcoin treasury strategy exposes us to various risks. For more information regarding risks related to our Bitcoin strategy, see the section titled “Risk Factors – Risks Related to Our Bitcoin Strategy and Holdings”.
Issuance of Equity and Convertible Debt in Private Placements
On June 22, 2025, we entered into the Equity Purchase Agreement with certain institutional and accredited investors (the “Equity Purchasers”), pursuant to which we agreed to issue to the Equity Purchasers in a private
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placement (the “Equity Private Placement”) an aggregate of (a)(i) 117,198,762 Shares and (ii) Pre-Funded Warrants to purchase an aggregate of 22,245,852 Pre-Funded Warrant Shares and (b) Warrants to purchase an aggregate of 20,916,680 Warrant Shares or Pre-Funded Warrants in lieu thereof at the option of the holder of the Warrant, at a combined purchase price of $1.40 per ADS and Warrant, the equivalent of $0.14 per ordinary share and Warrant at the current ratio, or $1.39 per Pre-Funded Warrant and Warrant.
In addition, on June 22, 2025, we also entered into a Secured Convertible Debenture Purchase Agreement (the “Debenture Purchase Agreement” and, together with the Equity Purchase Agreement, the “Purchase Agreements”) with certain institutional and accredited investors (the “Debenture Purchasers”), pursuant to which we agreed to issue to the Debenture Purchasers in a private placement (the “Debenture Private Placement” and, together with the Equity Private Placement, the “Private Placements”) (a) secured convertible debentures (the “Secured Convertible Debentures”) in the aggregate principal amount of $189 million and (b) Warrants to purchase up to an aggregate of 20,249,998 Warrant Shares.
The Private Placements were carried out, without shareholders’ preferential subscription rights, through reserved offerings to specific categories of investors, pursuant to the fifteenth resolution of the Company’s combined general meeting of shareholders held on June 30, 2025 (the “Shareholder Approval”) and in accordance with Article L. 225-138 of the French Commercial Code.
The Pre-Funded Warrants are exercisable commencing upon issuance thereof at the Equity Closing or Debenture Closing (each, as defined below), as applicable, through the lifetime of the Company at a nominal exercise price of €0.01 per ordinary share represented by the Pre-Funded Warrant Shares, subject to adjustment as provided therein. The Warrants are exercisable commencing upon issuance thereof at the Equity Closing or Debenture Closing, as applicable, for a period of 90 days and may be exercised for (i) ordinary shares represented by the Warrant Shares, at an exercise price equal to $1.40 for each Warrant or (ii) Pre-Funded Warrants, at an exercise price equal to $1.40 minus €0.01 for each Warrant.
A holder (together with its affiliates) may not exercise or convert, as applicable, any portion of the Pre-Funded Warrants, the Warrants or the Secured Convertible Debentures to the extent that the holder would own more than 4.99% (or, solely with respect to the Pre-Funded Warrants and the Warrants, at the holder’s option upon issuance, 9.99%) of the Company’s outstanding ordinary shares immediately after exercise or conversion, as applicable. However, upon at least 61 days’ prior notice from the holder to the Company, a holder with a 4.99% ownership blocker may increase the amount of ownership of outstanding ordinary shares after exercising or converting, as applicable, the holder’s Pre-Funded Warrant, Warrant or Secured Convertible Debenture, as applicable, up to 9.99% of the number of the Company’s ordinary shares outstanding immediately after giving effect to the exercise or conversion, as applicable, as such percentage ownership is determined in accordance with the terms of such Pre-Funded Warrant, the Warrant or the Secured Convertible Debenture, as applicable.
The Secured Convertible Debentures are convertible into (i) ordinary shares represented by ADSs (the “Conversion Shares”) or (ii) Pre-Funded Warrants at the option of a Debenture Purchaser at any time at a conversion price of $2.10 per ADS, subject to adjustment as provided therein. (a) From and after the first anniversary date of the date the Secured Convertible Debentures are issued at the Debenture Closing (the “Issuance Date”) until, but not including, the second anniversary date of the Issuance Date, interest shall accrue on the outstanding principal balance of the Secured Convertible Debentures at an annual rate equal to 6.0%, and (b) from and after the second anniversary date of the Issuance Date, interest shall accrue on the outstanding principal balance of the Secured Convertible Debentures at an annual rate equal to 8.0%.
The maturity date of the Secured Convertible Debentures will be the date that is the first business day on or after 36 months from the Issuance Date. Beginning on and including (a) the 12-month anniversary of the Issuance Date, in the event that the market price of Company’s ADSs equals or exceeds 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) out of any 30 consecutive trading day period ending on, and including, the trading day immediately preceding the date on which the Company provides a redemption notice to the holder of the Secured Convertible Debentures (and provided that certain equity conditions are satisfied on each trading day of such 30 consecutive trading day period), or (b) the 16-month anniversary of the Issuance Date, in the event that the market price of Company’s ADSs has been equal to or less than 40% of the conversion
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price then in effect for the 10 consecutive trading day period ending on, and including, the trading day immediately preceding the date on which the Company provides a redemption notice to the holder of the Secured Convertible Debentures, the Company shall have the right, but not the obligation, to redeem the Secured Convertible Debentures, (x) in the case of an optional redemption pursuant to clause (a), at an amount equal to the outstanding principal balance being redeemed by the Company, plus all accrued and unpaid interest in respect of such principal balance to, but not including, the date of redemption, plus a payment premium in respect of such principal balance and accrued and unpaid interest equal to (i) 3.0% for payments made within 12 months of the date of the Secured Convertible Debentures and (ii) 5.0% for payments made from and after 12 months of the date of the Secured Convertible Debentures (the “Payment Premium”), and (y) in the case of an optional redemption pursuant to clause (b), at an amount equal to the sum of (A) the product of (i) the outstanding principal balance being redeemed by the Company multiplied by (ii) 108% plus (B) the Payment Premium with respect to all accrued and unpaid interest in respect of such principal balance to, but not including, such date of redemption. A Debenture Purchaser shall have the right to elect to convert all or any portion of the outstanding principal balance being redeemed by the Company (and accrued and unpaid interest thereon) until the business day immediately preceding the applicable date of redemption.
A Debenture Purchaser also has the right to require the Company to repurchase for cash all or any portion of the principal of such Debenture Purchaser’s Secured Convertible Debenture in the event of a Fundamental Change (as defined in the Secured Convertible Debentures) at a repurchase price equal to the outstanding principal balance to be so repurchased, plus all accrued and unpaid interest thereunder as of the date of such repurchase, plus the Payment Premium in respect of such principal balance and accrued and unpaid interest.
The Equity Private Placement closed on July 4, 2025 (the “Equity Closing”) and the Debenture Private Placement closed on July 7, 2025 (the “Debenture Closing”).
The aggregate gross proceeds from the Private Placements were approximately $376 million. The Company intends to use the net proceeds from the Private Placements for the purchase of Bitcoin and for general corporate purposes associated with purchasing Bitcoin, subject to the security and collateral requirements of the Debenture Private Placement.
The Private Placements are exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). Pursuant to the terms of the Purchase Agreements, the Company also agreed to enter into the a Registration Rights Agreement with the Debenture Purchasers (the “Debenture Registration Rights Agreement”) and the Equity Registration Rights Agreement, respectively, pursuant to which the Company agreed to file registration statements to register the resale of the, Shares, Pre-Funded Warrant Shares, Warrant Shares, and Conversion Shares, as applicable, within seven business days and 15 days, respectively, of the Equity Closing or Debenture Closing, as applicable.
In connection with the Debenture Private Placement, the Company also agreed to forms of documents to be executed upon the occurrence of certain events contemplated under the Debenture Purchase Agreement, including but not limited to, a guaranty and security agreement (the “Security Agreement”). Pursuant to the Security Agreement, all obligations of the Company under the Secured Convertible Debentures will be secured by security interests in certain property of the Company and certain subsidiaries of the Company.
The foregoing descriptions of the Equity Purchase Agreement, Debenture Purchase Agreement, Pre-Funded Warrant, Warrant, Secured Convertible Debentures, Equity Registration Rights Agreement, Debenture Registration Rights Agreement and Security Agreement do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the full text of the forms of Equity Purchase Agreement, Debenture Purchase Agreement, Pre-Funded Warrant, Warrant, Secured Convertible Debentures, Equity Registration Rights Agreement, Debenture Registration Rights Agreement and Security Agreement, which were filed as Exhibits 10.1, 10.2, 4.1, 4.2, 4.3, 10.3, 10.4 and 10.5, respectively, to the Company’s Form 6-K/A, filed with the SEC on June 23, 2025, and are incorporated herein by reference.
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Risk Factors
Investing in our securities entails a high degree of risk as discussed in the “Risk Factors” section beginning on page 10 of this prospectus and in the documents incorporated by reference in this prospectus. You should carefully consider such risks before deciding to invest in our securities.
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THE OFFERING
| Ordinary Shares offered by the Selling Securityholders: | 1,603,612,940 ordinary shares | |||||||
| ADSs offered by the Selling Securityholders: | 160,361,294 ADSs | |||||||
| Ordinary Shares outstanding as of July 7, 2025: | 1,427,163,962 ordinary shares | |||||||
| ADSs outstanding as of July 7, 2025: | 142,714,545 ADSs | |||||||
| NYSE Symbol: | Our ordinary shares, in the form of ADSs are listed on the New York Stock Exchange, or NYSE, under the symbol “SQNS”. | |||||||
| Use of Proceeds: | We will not receive any of the proceeds from the sale of ordinary shares (or ADSs representing such shares) in this offering. The Selling Securityholders will receive all of the proceeds from this offering. | |||||||
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OUR COMPANY
We are a fabless semiconductor company with Bitcoin treasury.
We are a designer, developer and supplier of 5G/4G cellular chips and modules fully optimized the Internet-of-Things (IoT), in support of large scale AI applications, such as smart mobility and logistics, smart cities, e-health and wellness, and smart homes, to name few. Our cellular IoT technology must be extremely optimized in power consumption and cost to enable massive deployment. Our product portfolio is composed of chips, or integrated circuits (IC) of baseband processors and radio frequency (RF) transceivers, as well as modules that incorporate these chips along with radio front end subsystem, and rich software that includes advanced modem and signal processing code as well as protocol stack and higher-layer applications. We also provide advanced services and technology licensing that allows us to expand our addressable markets and further monetize our R&D investment.
On June 23, 2025, we announced the establishment of our Bitcoin treasury. We view Bitcoin holdings as long-term holdings and intend to strategically accumulate Bitcoin as a primary treasury reserve asset. Our strategy includes acquiring and holding Bitcoin using cash from our operations, and from time to time, subject to market conditions, issuing equity or debt securities or engaging in other capital raising transactions with the objective of using the proceeds to purchase Bitcoin. To support the implementation of this strategy, we expect to build strong partnership with premier Bitcoin financial services platform and institutional services providers, leveraging their expertise to ensure secure execution, robust governance, and market transparency.
We were incorporated as a société anonyme under the laws of the French Republic on October 7, 2003, for a period of 99 years. We are registered at the Nanterre Commerce and Companies Registry under the number SIREN 450 249 677 RC.S Nanterre. Our principal executive offices are located at Forest, 15-55 boulevard Charles de Gaulle, 92700 Colombes, France, and our telephone number is +33 1 70 72 16 00. Our agent for service of process in the U.S. is GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814.
Our website is www.sequans.com. Information contained on, or that can be accessed through, our website, does not constitute part of this prospectus and inclusions of our website address, in this prospectus are inactive textual references only. The information that can be accessed through our website is not part of this prospectus, and investors should not rely on any such information in deciding whether to purchase our securities.
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RISK FACTORS
Investing in our securities involves certain risks. In addition to the risks highlighted below, you should read the risks and uncertainties set forth in the section entitled “Risk Factors” in our most recently filed Form 20-F, as updated by any Form 6-K furnished with the SEC, which are incorporated by reference in this prospectus, and the “Risk Factors” section in any relevant prospectus supplement, before investing in any securities that may be offered pursuant to this prospectus. Additional risks and uncertainties not presently known to us or that we currently consider immaterial may also adversely affect us. If any of those risks occur, our business, financial condition or results of operations could be materially harmed. In such case, the value of our securities could decline.
Risks Related to Our Bitcoin Strategy and Holdings
Our Bitcoin strategy exposes us to various risks, including risks associated with Bitcoin.
Our Bitcoin strategy exposes us to various risks, including the following:
Bitcoin is a highly volatile asset. Bitcoin is a highly volatile asset that has traded below $50,000 per Bitcoin and above $120,000 per Bitcoin in the past 12 months. The trading price of Bitcoin significantly decreased during prior periods, and such declines may occur again in the future.
Bitcoin does not inherently pay interest or dividends. Bitcoin does not inherently pay interest or other periodic returns and we can only generate cash from our Bitcoin holdings if we sell our Bitcoin or implement strategies to create income streams or otherwise generate cash by using our Bitcoin holdings. Even if we pursue any such strategies, we may be unable to create income streams or otherwise generate cash from our Bitcoin holdings, and any such strategies may subject us to additional risks.
Our Bitcoin holdings may significantly impact our financial results and the market price of our ADSs. Our Bitcoin holdings are expected to impact our financial results and the market price of our ADSs. Our historical financial statements do not reflect the potential variability in earnings that we may experience in the future relating to our Bitcoin holdings.
Our assets will be concentrated in Bitcoin. We expect that a large portion of our assets will be concentrated in our Bitcoin holdings. The concentration of our assets in Bitcoin limits our ability to mitigate risk that could otherwise be achieved by holding a more diversified portfolio of treasury assets.
We will purchase Bitcoin using primarily proceeds from equity and debt financings. Our ability to achieve the objectives of our Bitcoin strategy depends in significant part on our ability to obtain equity and debt financing. If we are unable to obtain equity or debt financing on favorable terms or at all, we may not be able to successfully execute on our Bitcoin strategy.
Our Bitcoin strategy has not been tested under different market conditions. We have just begun to implement our strategy to acquire Bitcoin. This strategy has not been tested under different market conditions. For example, although we believe Bitcoin, due to its limited supply, has the potential to serve as a hedge against inflation in the long term, the short-term price of Bitcoin declined in recent periods during which the inflation rate increased. If Bitcoin prices were to decline or our Bitcoin strategy otherwise proves unsuccessful, our financial condition, results of operations, and the market price of our ADSs would be materially adversely impacted.
We will be subject to counterparty risks, including in particular risks relating to our custodians. Although we expect to implement various measures that are designed to mitigate our counterparty risks, such as storing substantially all of the Bitcoin we own in custody accounts at U.S.-based, institutional-grade custodians and negotiating contractual arrangements intended to establish that our property interest in custodially-held Bitcoin is not subject to claims of our custodians’ creditors, applicable insolvency law is not fully developed with respect to the holding of digital assets in custodial accounts. If our custodially-held Bitcoin were nevertheless considered to be the property of our custodians’ estates in the event that any such custodians were to enter bankruptcy, receivership or similar insolvency proceedings, we could be treated as a general unsecured creditor of such custodians, inhibiting our ability to exercise ownership rights with respect to such Bitcoin, or delaying or hindering our access to our
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Bitcoin holdings, and this may ultimately result in the loss of the value related to some or all of such Bitcoin, which could have a material adverse effect on our financial condition as well as the market price of our ADSs.
The broader digital assets industry is subject to counterparty risks, which could adversely impact the adoption rate, price, and use of Bitcoin. A series of high-profile bankruptcies, closures, liquidations, regulatory enforcement actions and other events relating to companies operating in the digital asset industry in recent years have highlighted the counterparty risks applicable to owning and transacting in digital assets. Although these bankruptcies, closures, liquidations and other events have not resulted in any loss or misappropriation of our Bitcoin, nor have such events adversely impacted our access to our Bitcoin, they have, in the short-term, likely negatively impacted the adoption rate and use of Bitcoin. Additional bankruptcies, closures, liquidations, regulatory enforcement actions or other events involving participants in the digital assets industry in the future may further negatively impact the adoption rate, price, and use of Bitcoin, limit the availability to us of financing collateralized by Bitcoin, or create or expose additional counterparty risks.
Changes in the accounting standards or our strategy related to our Bitcoin holdings could have significant accounting impacts, including increasing the volatility of our results. In accordance with IAS 38 Intangible Assets, we expect to account the investment in Bitcoin as an intangible asset, with the investment being marked to market at each balance sheet date. Under IFRS, reductions in value below historical cost and gains in value up the historical cost are recorded in the statement of profit and loss. Gains in value above historical cost are recorded in “other comprehensive income” and are not reflected in the statement of profit and loss. This differs from US Generally Accepted Accounting Principles (US GAAP) Accounting Standard Update (ASU) 2023-08 which requires companies to measure their Bitcoin holdings at fair value in the statement of financial position, and to recognize gains and losses from changes in the fair value of Bitcoin in net income each reporting period. Should IFRS accounting standards change in the future to converge with US GAAP, the volatility in the price of Bitcoin could have a material impact on our financial results, increase the volatility of our financial results, and affect the carrying value of our Bitcoin on our balance sheet. These impacts could in turn have a material adverse effect on our financial results and the market price of our ADSs.
Our Bitcoin strategy subjects us to heightened regulatory scrutiny. Our Bitcoin strategy exposes us to heightened regulatory scrutiny from the SEC and other agencies. There are increased risks related to anti-money laundering, sanctions compliance, and the potential for regulatory actions if the company inadvertently transacts with illicit actors. Using Bitcoin as collateral and engaging in related financial strategies may trigger additional compliance requirements under money transmission, commodities, and securities laws. Regulatory focus on digital assets has intensified following events like the FTX collapse, which could lead to higher costs or restrictions. Additionally, private institutions may take actions that negatively affect the company due to concerns about its Bitcoin exposure.
The emergence or growth of other digital assets could have a negative impact on the price of Bitcoin and adversely affect our business. Our financial condition is particularly exposed to this risk because our assets are concentrated in Bitcoin. Alternative digital assets, such as Ethereum—which has adopted a more energy-efficient validation method—and stablecoins, which are designed to maintain a constant value, are gaining popularity and market share. Additionally, central banks are developing their own digital currencies (CBDCs), which could further compete with or even replace Bitcoin as a medium of exchange or store of value. If these alternatives are perceived as superior or become widely adopted, the demand for Bitcoin could decrease, adversely affecting our business and financial results.
The broader digital assets industry, including the technology associated with digital assets, the rate of adoption and development of, and use cases for, digital assets, market perception of digital assets, and the legal, regulatory, and accounting treatment of digital assets are constantly developing and changing, and there may be additional risks in the future that are not possible to predict.
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Bitcoin is a highly volatile asset, and fluctuations in the price of Bitcoin are likely to influence our financial results and the market price of our ADSs.
Bitcoin is a highly volatile asset, and fluctuations in the price of Bitcoin are likely to influence our financial results and the market price of our ADSs. Our financial results and the market price of our ADSs would be adversely affected, and our business and financial condition would be negatively impacted, if the price of Bitcoin decreased substantially (as it has in the past, including during 2022), including as a result of:
•decreased user and investor confidence in Bitcoin, including due to the various factors described herein;
•investment and trading activities, such as (i) trading activities of highly active retail and institutional users, speculators, miners and investors; (ii) actual or expected significant dispositions of Bitcoin by large holders, including the expected liquidation of digital assets seized by governments or associated with entities that have filed for bankruptcy protection, such as the (a) transfers of Bitcoin to claimants following proceedings related to a 2016 hack of Bitfinex, which claims are currently being adjudicated, (b) court-approved sales of 69,370 Bitcoin seized from the Silk Road marketplace by the U.S. Department of Justice; and (iii) actual or perceived manipulation of the spot or derivative markets for Bitcoin or spot Bitcoin exchange-traded products (“ETPs”);
•negative publicity, media or social media coverage, or sentiment due to events in or relating to, or perception of, Bitcoin or the broader digital assets industry, for example, (i) public perception that Bitcoin can be used as a vehicle to circumvent sanctions, including sanctions imposed on Russia or certain regions related to the ongoing conflict between Russia and Ukraine, or to fund criminal or terrorist activities, such as the purported use of digital assets by Hamas to fund its terrorist attack against Israel in October 2023; (ii) expected or pending civil, criminal, regulatory enforcement or other high profile actions against major participants in the Bitcoin ecosystem; (iii) additional filings for bankruptcy protection or bankruptcy proceedings of major digital asset industry participants, such as the bankruptcy proceeding of FTX Trading and its affiliates; and (iv) the actual or perceived environmental impact of Bitcoin and related activities, including environmental concerns raised by private individuals, governmental and non-governmental organizations, and other actors related to the energy resources consumed in the Bitcoin mining process;
•changes in consumer preferences and the perceived value or prospects of Bitcoin;
•competition from other digital assets that exhibit better speed, security, scalability, or energy efficiency, that feature other more favored characteristics, that are backed by governments, including the U.S. government, or reserves of fiat currencies, or that represent ownership or security interests in physical assets;
•a decrease in the price of other digital assets, including stablecoins, or the crash or unavailability of stablecoins that are used as a medium of exchange for Bitcoin purchase and sale transactions, such as the crash of the stablecoin Terra USD in 2022, to the extent the decrease in the price of such other digital assets or the unavailability of such stablecoins may cause a decrease in the price of Bitcoin or adversely affect investor confidence in digital assets generally;
•the identification of Satoshi Nakamoto, the pseudonymous person or persons who developed Bitcoin, or the transfer of substantial amounts of Bitcoin from Bitcoin wallets attributed to Mr. Nakamoto;
•developments relating to the Bitcoin protocol, including (i) changes to the Bitcoin protocol that impact its security, speed, scalability, usability, or value, such as changes to the cryptographic security protocol underpinning the Bitcoin blockchain, changes to the maximum number of Bitcoin outstanding, changes to the mutability of transactions, changes relating to the size of blockchain blocks, and similar changes, (ii) failures to make upgrades to the Bitcoin protocol to adapt to security, technological, legal or other challenges, and (iii) changes to the Bitcoin protocol that introduce software bugs, security risks or other elements that adversely affect Bitcoin;
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•disruptions, failures, unavailability, or interruptions in services of trading venues for Bitcoin, such as, for example, the announcement by the digital asset exchange FTX Trading that it would freeze withdrawals and transfers from its accounts and subsequent filing for bankruptcy protection and the SEC enforcement action brought against Binance Holdings Ltd., which was subsequently dismissed on May 29, 2025, which initially sought to freeze all of its assets during the pendency of the enforcement action and resulted in Binance discontinuing all fiat deposits and withdrawals in the U.S.;
•the filing for bankruptcy protection by, liquidation of, or market concerns about the financial viability of digital asset custodians, trading venues, lending platforms, investment funds, or other digital asset industry participants, such as the filing for bankruptcy protection by digital asset trading venues FTX Trading and BlockFi and digital asset lending platforms Celsius Network and Voyager Digital Holdings in 2022, the ordered liquidation of the digital asset investment fund Three Arrows Capital in 2022, the announced liquidation of Silvergate Bank in 2023, the government-mandated closure and sale of Signature Bank in 2023, the placement of Prime Trust, LLC into receivership following a cease-and-desist order issued by the Nevada Department of Business and Industry in 2023, and the exit of Binance from the U.S. market as part of its settlement with the Department of Justice and other federal regulatory agencies;
•regulatory, legislative, enforcement and judicial actions that adversely affect the price, ownership, transferability, trading volumes, legality or public perception of Bitcoin, or that adversely affect the operations of or otherwise prevent digital asset custodians, trading venues, lending platforms or other digital assets industry participants from operating in a manner that allows them to continue to deliver services to the digital assets industry;
•further reductions in mining rewards of Bitcoin, including due to block reward halving events, which are events that occur after a specific period of time (the most recent of which occurred in April 2024) that reduce the block reward earned by “miners” who validate Bitcoin transactions, or increases in the costs associated with Bitcoin mining, including increases in electricity costs and hardware and software used in mining, or new or enhanced regulation or taxation of Bitcoin mining, which could further increase the costs associated with Bitcoin mining, any of which may cause a decline in support for the Bitcoin network;
•transaction congestion and fees associated with processing transactions on the Bitcoin network;
•macroeconomic changes, such as changes in the level of interest rates and inflation, fiscal and monetary policies of governments, trade restrictions, and fiat currency devaluations;
•developments in mathematics or technology, including in digital computing, algebraic geometry and quantum computing, that could result in the cryptography used by the Bitcoin blockchain becoming insecure or ineffective; and
•changes in national and international economic and political conditions, including, without limitation, federal government policies, trade tariffs and trade disputes, and the adverse impacts attributable to global conflicts, including those between Russia and Ukraine and in the Middle East.
Our operating results will be dependent on the price of digital assets and Bitcoin. If such price declines, our business, operating results, and financial condition would be adversely affected.
Any declines in the volume of digital asset transactions, the price of digital assets, or market liquidity for digital assets generally may adversely affect our operating results. As part of our Bitcoin strategy, we will have significant investments in Bitcoin and Bitcoin-related assets. Our operating results will be impacted by the change in value of Bitcoin, and should the Company purchase, sell or trade Bitcoin in the future, by the revenue and profits we may generate from such purchases, sales or trades and the financial contracts linked to Bitcoin. The price of digital assets and associated demand for buying, selling, and trading of digital assets have historically been subject to significant volatility. For instance, in 2017 and 2021, the value of certain digital assets, including Bitcoin, experienced steep increases in value, followed by steep declines in 2018 and 2022. After recovering from the 2018 decline and reaching record highs in December 2021, the value of the total crypto market cap declined by approximately 64% in the twelve months ended December 31, 2022. The collapse of several companies in the digital asset industry such as
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Celsius, Voyager and FTX impacted digital assets prices in 2022 and the majority of 2023. The price and trading volume of any digital asset is subject to significant uncertainty and volatility, and may significantly decline in the future, without recovery. Such uncertainty and volatility depend on a number of factors, including:
•market conditions across the cryptoeconomy;
•changes in liquidity, volume, and trading activities;
•trading activities on digital asset trading platforms worldwide, many of which may be unregulated, and may include manipulative activities;
•investment and trading activities of highly active retail and institutional users, speculators, miners, and investors;
•the speed and rate at which cryptocurrency is able to gain adoption as a medium of exchange, utility, store of value, consumptive asset, security instrument, or other financial assets worldwide, if at all;
•decreased user and investor confidence in digital assets and digital asset trading platforms;
•negative publicity and events relating to the cryptoeconomy;
•unpredictable social media coverage or “trending” of digital assets;
•the ability for digital assets to meet user and investor demands;
•the functionality and utility of digital assets and their associated ecosystems and networks, including digital assets designed for use in various applications;
•consumer preferences and perceived value of digital assets and digital asset markets;
•increased competition from other payment services or other digital assets that exhibit better speed, security, scalability, or other characteristics;
•regulatory (including enforcement) or legislative changes and updates affecting the cryptoeconomy;
•the characterization of digital assets under the laws of various jurisdictions around the world;
•the maintenance, troubleshooting, and development of the blockchain networks underlying digital assets, including by miners, validators, and developers worldwide;
•the ability for cryptocurrency networks to attract and retain miners or validators to secure and confirm transactions accurately and efficiently;
•ongoing technological viability and security of digital assets and their associated smart contracts, applications and networks, including vulnerabilities against hacks and scalability;
•fees and speed associated with processing digital asset transactions, including on the underlying blockchain networks and on digital asset trading platforms;
•financial strength of market participants;
•the availability and cost of funding and capital;
•the liquidity of digital asset trading platforms;
•interruptions in service from or failures of major digital asset trading platforms;
•availability of an active derivatives market for various digital assets;
•availability of banking and payment services to support cryptocurrency-related projects;
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•level of interest rates and inflation;
•monetary policies of governments, trade restrictions, and fiat currency devaluations; and
•national and international economic and political conditions.
There is no assurance that any digital asset will maintain its value or that there will be meaningful levels of trading activities. For example, in 2022 we witnessed dampened demand for trading digital assets in the wake of industry turmoil. In the event that the price of digital assets or the demand for trading digital assets decline, our business, operating results, and financial condition could be adversely affected.
Bitcoin and other digital assets are novel assets, and are subject to significant legal, commercial, regulatory and technical uncertainty.
Bitcoin and other digital assets are relatively novel and are subject to significant uncertainty, which could adversely impact their price. The application of state and federal securities laws and other laws and regulations to digital assets is unclear in certain respects, and it is possible that regulators in the United States or foreign countries may interpret or apply existing laws and regulations in a manner that adversely affects the price of Bitcoin or the ability of individuals or institutions such as us to own or transfer Bitcoin.
The U.S. federal government, states, regulatory agencies, and foreign countries, including the European Union, may also enact new laws and regulations, or pursue regulatory, legislative, enforcement or judicial actions, that could materially impact the price of Bitcoin or the ability of individuals or institutions such as us to own or transfer Bitcoin. For example, within the past several years:
•President Trump signed an executive order instructing a working group comprised of representatives from key federal agencies to evaluate measures that can be taken to provide regulatory clarity and certainty built on technology-neutral regulations for individuals and firms involved in digital assets, including through well-defined jurisdictional regulatory boundaries, and this working group is required to submit a report with regulatory and legislative proposals on or before July 22, 2025;
•in January 2025, the SEC announced the formation of a “Crypto Task Force,” which was created to provide clarity on the application of the federal securities laws to the crypto asset market and to recommend policy measures with respect to digital asset security status, registration and listing of digital asset-based investment vehicles, and digital asset custody, lending and staking;
•in June 2023, the SEC filed complaints against Binance Holdings Ltd. and Coinbase, Inc., and their respective affiliated entities, relating to, among other claims, that each party was operating as an unregistered securities exchange, broker, dealer, and clearing agency;
•in December 2020, the SEC filed a complaint against Ripple Labs, Inc., relating to, among other claims, that Ripple undertook the distribution of unregistered securities;
•in November 2023, the SEC filed a complaint against Payward Inc. and Payward Ventures Inc., together known as Kraken, alleging, among other claims, that Kraken’s crypto trading platform was operating as an unregistered securities exchange, broker, dealer, and clearing agency;
•the European Union adopted Markets in Crypto Assets Regulation (“MiCA”), a comprehensive digital asset regulatory framework for the issuance and use of digital assets, like Bitcoin;
•in June 2023, the United Kingdom adopted and implemented the Financial Services and Markets Act 2023 (“FSMA 2023”), which regulates market activities in “cryptoassets;”
•in November 2023, Binance Holdings Ltd. and its then chief executive officer reached a settlement with the U.S. Department of Justice, CFTC, the U.S. Department of Treasury’s Office of Foreign Asset Control, and the Financial Crimes Enforcement Network to resolve a multi-year investigation by the agencies and a civil
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suit brought by the CFTC, pursuant to which Binance Holdings Ltd. agreed to, among other things, pay $4.3 billion in penalties across the four agencies and to discontinue its operations in the United States; and
•in China, the People’s Bank of China and the National Development and Reform Commission have outlawed cryptocurrency mining and declared all cryptocurrency transactions illegal within the country.
While the complaint against Coinbase, Inc. was dismissed in February 2025, the complaint against Payward Inc. and Payward Ventures Inc. was dismissed with prejudice in March 2025, and the complaint against Binance Holdings Ltd. was dismissed on May 29, 2025, the SEC or other regulatory agencies may initiate similar actions in the future, which could materially impact the price of Bitcoin and our ability to own or transfer Bitcoin. Further, in June of 2025 a federal judge in the Southern District of New York rejected a joint motion by Ripple Labs and the SEC that would have endorsed the $50 million fine to settle a civil lawsuit over the sale of alleged unregistered securities. Similar intervention by the U.S. courts may also materially impact the price of Bitcoin and our ability to own or transfer Bitcoin.
It is not possible to predict whether or when new laws will be enacted that change the legal framework governing digital assets or provide additional authorities to the SEC or other regulators, or whether or when any other federal, state or foreign legislative bodies will take any similar actions. It is also not possible to predict the nature of any such additional laws or authorities, how additional legislation or regulatory oversight might impact the ability of digital asset markets to function, the willingness of financial and other institutions to continue to provide services to the digital assets industry, or how any new laws or regulations, or changes to existing laws or regulations, might impact the value of digital assets generally and Bitcoin specifically. The consequences of any new law or regulation relating to digital assets and digital asset activities could adversely affect the market price of Bitcoin, as well as our ability to hold or transact in Bitcoin, and in turn adversely affect the market price of our ADSs.
Moreover, the risks of engaging in a Bitcoin strategy are relatively novel and have created, and could continue to create, complications due to the lack of experience that third parties have with companies engaging in such a strategy, such as increased costs of director and officer liability insurance or the potential inability to obtain such coverage on acceptable terms in the future.
The growth of the digital assets industry in general, and the use and acceptance of Bitcoin in particular, may also impact the price of Bitcoin and is subject to a high degree of uncertainty. The pace of worldwide growth in the adoption and use of Bitcoin may depend, for instance, on public familiarity with digital assets, ease of buying, accessing or gaining exposure to Bitcoin, institutional demand for Bitcoin as an investment asset, the participation of traditional financial institutions in the digital assets industry, consumer demand for Bitcoin as a store of value or means of payment, and the availability and popularity of alternatives to Bitcoin. Even if growth in Bitcoin adoption occurs in the near or medium-term, there is no assurance that Bitcoin usage will continue to grow over the long-term.
Because Bitcoin has no physical existence beyond the record of transactions on the Bitcoin blockchain, a variety of technical factors related to the Bitcoin blockchain could also impact the price of Bitcoin. For example, malicious attacks by miners, inadequate mining fees to incentivize validating of Bitcoin transactions, hard “forks” of the Bitcoin blockchain into multiple blockchains, airdops, and advances in digital computing, algebraic geometry, and quantum computing could undercut the integrity of the Bitcoin blockchain and negatively affect the price of Bitcoin. In the occurrence of such events, there is a risk that we may not be able to access, claim, or benefit from such assets, or that doing so could expose us to additional risks or liabilities. The liquidity of Bitcoin may also be reduced and damage to the public perception of Bitcoin may occur, if financial institutions were to deny or limit banking services to businesses that hold Bitcoin, provide Bitcoin-related services or accept Bitcoin as payment, which could also decrease the price of Bitcoin. Actions by U.S. banking regulators, such as the issuance in February 2023 by Federal banking agencies of the “Interagency Liquidity Risk Statement,” which cautioned banks on contagion risks posed by providing services to digital assets customers, and similar actions, have in the past resulted in or contributed to reductions in access to banking services for Bitcoin-related customers and service providers, or the willingness of traditional financial institution to participate in markets for digital assets. The liquidity of Bitcoin may also be impacted to the extent that changes in applicable laws and regulatory requirements negatively impact the ability of exchanges and trading venues to provide services for Bitcoin and other digital assets.
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Our historical financial statements do not reflect the potential variability in earnings that we may experience in the future relating to our Bitcoin holdings.
Because we are only beginning to enact our Bitcoin strategy, our historical financial statements do not reflect the potential variability in earnings that we may experience in the future from holding or selling significant amounts of Bitcoin. The price of Bitcoin has historically been subject to dramatic price fluctuations and is highly volatile.
The availability of spot ETPs for Bitcoin and other digital assets may adversely affect the market price of our ADSs.
Although Bitcoin and other digital assets have experienced a surge of investor attention since Bitcoin was invented in 2008, until recently investors in the United States had limited means to gain direct exposure to Bitcoin through traditional investment channels, and instead generally were only able to hold Bitcoin through “hosted” wallets provided by digital asset service providers or through “unhosted” wallets that expose the investor to risks associated with loss or hacking of their private keys. Given the relative novelty of digital assets, general lack of familiarity with the processes needed to hold Bitcoin directly, as well as the potential reluctance of financial planners and advisers to recommend direct Bitcoin holdings to their retail customers because of the manner in which such holdings are custodied, some investors have sought exposure to Bitcoin through investment vehicles that hold Bitcoin and issue shares representing fractional undivided interests in their underlying Bitcoin holdings. These vehicles, which were previously offered only to “accredited investors” on a private placement basis, have in the past traded at substantial premiums to net asset value, possibly due to the relative scarcity of traditional investment vehicles providing investment exposure to Bitcoin.
On January 10, 2024, the SEC approved the listing and trading of spot Bitcoin ETPs, the shares of which can be sold in public offerings and are traded on U.S. national securities exchanges. The approved ETPs commenced trading directly to the public on January 11, 2024, with a trading volume of $4.6 billion on the first trading day. To the extent investors view our ADSs as providing exposure to Bitcoin, it is possible that the value of our ADSs may be influenced by the trading activity and performance of these spot Bitcoin ETPs. Additionally, on May 23, 2024, the SEC approved rule changes permitting the listing and trading of spot ETPs that invest in ether, the main crypto asset supporting the Ethereum blockchain. The approved spot ETPs commenced trading directly to the public on July 23, 2024. The listing and trading of spot ETPs for ether offers investors another alternative to gain exposure to digital assets, which could result in a decline in the trading price of Bitcoin as well as a decline in the value of our ADSs relative to the value of our Bitcoin.
Although we are an operating company, and we believe we offer a different value proposition than a Bitcoin investment vehicle such as a spot Bitcoin ETP, investors may nevertheless view our ADSs as an alternative to an investment in an ETP, and choose to purchase shares of a spot Bitcoin ETP instead of our ADSs. They may do so for a variety of reasons, including if they believe that ETPs offer a “pure play” exposure to Bitcoin that is generally not subject to federal income tax at the entity level as we are, or the other risk factors applicable to an operating business, such as ours. Additionally, unlike spot Bitcoin ETPs, we (i) do not seek for our ADSs to track the value of the underlying Bitcoin we hold before payment of expenses and liabilities, (ii) do not benefit from various exemptions and relief under the Securities Exchange Act of 1934, as amended (“the Exchange Act”), including Regulation M, and other securities laws, which enable ETPs to continuously align the value of their shares to the price of the underlying assets they hold through share creation and redemption, (iii) operate a wholly-owned Delaware limited liability company rather than a statutory trust, and do not operate pursuant to a trust agreement that would require us to pursue one or more stated investment objectives, and (iv) are not required to provide daily transparency as to our Bitcoin holdings or our daily net asset value. Furthermore, recommendations by broker-dealers to buy, hold, or sell complex products and non-traditional ETPs, or an investment strategy involving such products, may be subject to additional or heightened scrutiny that would not be applicable to broker-dealers making recommendations with respect to our securities. Based on how we are viewed in the market relative to ETPs, and other vehicles which offer economic exposure to Bitcoin, such as Bitcoin futures exchange-traded funds (“ETFs”), leveraged Bitcoin futures ETFs, and similar vehicles offered on international exchanges, any premium or discount in our ADSs relative to the value of our Bitcoin holdings may increase or decrease in different market conditions.
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As a result of the foregoing factors, availability of spot ETPs and ETFs for Bitcoin and other digital assets could have a material adverse effect on the market price of our ADSs.
Our Bitcoin strategy subjects us to enhanced regulatory oversight.
As noted above, several spot Bitcoin ETPs have received approval from the SEC to list their shares on a U.S. national securities exchange with continuous share creation and redemption at net asset value. Even though we are not, and do not function in the manner of, a spot Bitcoin ETP, it is possible that we nevertheless could face regulatory scrutiny from the SEC or other federal or state agencies due to our Bitcoin holdings.
In addition, there has been increasing focus on the extent to which digital assets can be used to launder the proceeds of illegal activities, fund criminal or terrorist activities, or circumvent sanctions regimes, including those sanctions imposed in response to the ongoing conflict between Russia and Ukraine. While we have implemented and maintain policies and procedures reasonably designed to promote compliance with applicable anti-money laundering and sanctions laws and regulations and take care to only acquire our Bitcoin through entities subject to anti-money laundering regulation and related compliance rules in the United States, if we are found to have purchased any of our Bitcoin from bad actors that have used Bitcoin to launder money or persons subject to sanctions, we may be subject to regulatory proceedings and any further transactions or dealings in Bitcoin by us may be restricted or prohibited.
All of our current Bitcoin holdings serve as collateral securing our outstanding indebtedness pursuant to the Secured Convertible Debentures, and all or a significant portion of our Bitcoin holdings may continue to serve as collateral for such indebtedness in the future. We may also consider pursuing strategies to create income streams or otherwise generate funds using our Bitcoin holdings. These types of Bitcoin-related transactions are the subject of enhanced regulatory oversight. These and any other Bitcoin-related transactions we may enter into, beyond simply acquiring and holding Bitcoin, may subject us to additional regulatory compliance requirements and scrutiny, including under federal and state money services regulations, money transmitter licensing requirements and various commodity and securities laws and regulations.
Additional laws, guidance and policies may be issued by domestic and foreign regulators following the filing for Chapter 11 bankruptcy protection by FTX, one of the world’s largest cryptocurrency exchanges, in November 2022. The FTX collapse may have increased regulatory focus on the digital assets industry. Increased enforcement activity and changes in the regulatory environment, including changing interpretations and the implementation of new or varying regulatory requirements by the government or any new legislation affecting Bitcoin, as well as enforcement actions involving or impacting our trading venues, counterparties and custodians, may impose significant costs or significantly limit our ability to hold and transact in Bitcoin.
In addition, private actors that are wary of Bitcoin or the regulatory concerns associated with Bitcoin have in the past taken and may in the future take further actions that may have an adverse effect on our business or the market price of our ADSs. For example, it is possible that a financial institution could restrict customers from buying shares of our ADSs if it were to determine that our ADSs’ value is closely tied to the performance of Bitcoin, signaling a reluctance to facilitate exposure to virtual currencies.
Due to the unregulated nature and lack of transparency surrounding the operations of many Bitcoin trading venues, Bitcoin trading venues may experience greater fraud, security failures or regulatory or operational problems than trading venues for more established asset classes, which may result in a loss of confidence in Bitcoin trading venues and adversely affect the value of our Bitcoin.
Bitcoin trading venues are relatively new and, in many cases, unregulated. Furthermore, there are many Bitcoin trading venues which do not provide the public with significant information regarding their ownership structure, management teams, corporate practices and regulatory compliance. As a result, the marketplace may lose confidence in Bitcoin trading venues, including prominent exchanges that handle a significant volume of Bitcoin trading and/or are subject to regulatory oversight, in the event one or more Bitcoin trading venues cease or pause for a prolonged period the trading of Bitcoin or other digital assets, or experience fraud, significant volumes of withdrawal, security failures or operational problems.
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In 2019 there were reports claiming that 80-95% of Bitcoin trading volume on trading venues was false or non-economic in nature, with specific focus on unregulated exchanges located outside of the United States. The SEC also alleged as part of its June 5, 2023, complaint against Binance Holdings Ltd. that Binance committed strategic and targeted “wash trading” through its affiliates to artificially inflate the volume of certain digital assets traded on its exchange. The SEC has also brought recent actions against individuals and digital asset market participants alleging that such persons artificially increased trading volumes in certain digital assets through wash trades, or repeated buying and selling of the same assets in fictitious transactions to manipulate their underlying trading price. Such reports and allegations may indicate that the Bitcoin market is significantly smaller than expected and that the United States makes up a significantly larger percentage of the Bitcoin market than is commonly understood. Any actual or perceived wash trading in the Bitcoin market, and any other fraudulent or manipulative acts and practices, could adversely affect the value of our Bitcoin.
Negative perception, a lack of stability in the broader Bitcoin markets and the closure, temporary shutdown or operational disruption of Bitcoin trading venues, lending institutions, institutional investors, institutional miners, custodians, or other major participants in the Bitcoin ecosystem, due to fraud, business failure, cybersecurity events, government-mandated regulation, bankruptcy, or for any other reason, may result in a decline in confidence in Bitcoin and the broader Bitcoin ecosystem and greater volatility in the price of Bitcoin. For example, in 2022, each of Celsius Network, Voyager Digital, Three Arrows Capital, FTX, and BlockFi filed for bankruptcy, following which the market prices of Bitcoin and other digital assets significantly declined. In addition, in June 2023, the SEC announced enforcement actions against Coinbase, Inc., and Binance Holdings Ltd., two providers of large trading venues for digital assets, which similarly was followed by a decrease in the market price of Bitcoin and other digital assets. These were followed in November 2023, by an SEC enforcement action against Payward Inc. and Payward Ventures Inc., together known as Kraken, another large trading venue for digital assets. While the complaint against Coinbase, Inc. was dismissed in February 2025, the complaint against Payward Inc. and Payward Ventures Inc. was dismissed with prejudice in March 2025, and the complaint against Binance Holdings Ltd. was dismissed on May 29, 2025, the SEC or other regulatory agencies may initiate similar actions in the future. As the price of our ADSs is affected by the value of our Bitcoin holdings, the failure of a major participant in the Bitcoin ecosystem could have a material adverse effect on the market price of our ADSs.
The concentration of our Bitcoin holdings could enhance the risks inherent in our Bitcoin strategy.
The concentration of our Bitcoin holdings limits the risk mitigation that we could achieve if we were to purchase a more diversified portfolio of treasury assets, and the absence of diversification enhances the risks inherent in our Bitcoin strategy. Any future significant declines in the price of Bitcoin would have, a more pronounced impact on our financial condition than if we used our cash to purchase a more diverse portfolio of assets.
The emergence or growth of other digital assets, including those with significant private or public sector backing, could have a negative impact on the price of Bitcoin and adversely affect our business.
As a result of our Bitcoin strategy, our assets are concentrated in our Bitcoin holdings. Accordingly, the emergence or growth of digital assets other than Bitcoin may have a material adverse effect on our financial condition. As of the date of this prospectus, Bitcoin is the largest digital asset by market capitalization. However, there are numerous alternative digital assets and many entities, including consortiums and financial institutions, are researching and investing resources into private or permissioned blockchain platforms or digital assets that do not use proof-of-work mining like the Bitcoin network. For example, in late 2022, the Ethereum network transitioned to a “proof-of-stake” mechanism for validating transactions that requires significantly less computing power than proof-of-work mining. The Ethereum network has completed another major upgrade since then and may undertake additional upgrades in the future. If the mechanisms for validating transactions in Ethereum and other alternative digital assets are perceived as superior to proof-of-work mining, those digital assets could gain market share relative to Bitcoin.
Other alternative digital assets that compete with Bitcoin in certain ways include “stablecoins,” which are designed to maintain a constant price because of, for instance, their issuers’ promise to hold high-quality liquid assets (such as U.S. dollar deposits and short-term U.S. treasury securities) equal to the total value of stablecoins in
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circulation. Stablecoins have grown rapidly as an alternative to Bitcoin and other digital assets as a medium of exchange and store of value, particularly on digital asset trading platforms. As of March 31, 2025, two of the seven largest digital assets by market capitalization were U.S. dollar-pegged stablecoins.
Additionally, central banks in some countries have started to introduce digital forms of legal tender. For example, China’s CBDC project was made available to consumers in January 2022, and governments including the United States, the United Kingdom, the European Union, and Israel have been discussing the potential creation of new CBDCs. Whether or not they incorporate blockchain or similar technology, CBDCs, as legal tender in the issuing jurisdiction, could also compete with, or replace, Bitcoin and other digital assets as a medium of exchange or store of value. As a result, the emergence or growth of these or other digital assets could cause the market price of Bitcoin to decrease, which could have a material adverse effect on our business, prospects, financial condition, and operating results.
Our Bitcoin holdings will be less liquid than our existing cash and cash equivalents and may not be able to serve as a source of liquidity for us to the same extent as cash and cash equivalents.
Historically, the Bitcoin market has been characterized by significant volatility in price, limited liquidity and trading volumes compared to sovereign currencies markets, relative anonymity, a developing regulatory landscape, potential susceptibility to market abuse and manipulation, compliance and internal control failures at exchanges, and various other risks inherent in its entirely electronic, virtual form and decentralized network. During times of market instability, we may not be able to sell our Bitcoin at favorable prices or at all. For example, a number of Bitcoin trading venues temporarily halted deposits and withdrawals in 2022. As a result, our Bitcoin holdings may not be able to serve as a source of liquidity for us to the same extent as cash and cash equivalents.
Further, Bitcoin we hold with our custodians and transact with our trade execution partners does not enjoy the same protections as are available to cash or securities deposited with or transacted by institutions subject to regulation by the Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation.
Additionally, we may be unable to enter into term loans or other capital raising transactions collateralized by our unencumbered Bitcoin or otherwise generate funds using our Bitcoin holdings, including in particular during times of market instability or when the price of Bitcoin has declined significantly. If we are unable to sell our Bitcoin, enter into additional capital raising transactions, including capital raising transactions using Bitcoin as collateral, or otherwise generate funds using our Bitcoin holdings, or if we are forced to sell our Bitcoin at a significant loss, in order to meet our working capital requirements, our business and financial condition could be negatively impacted.
If we or our third-party service providers experience a security breach or cyberattack and unauthorized parties obtain access to our Bitcoin, or if our private keys are lost or destroyed, or other similar circumstances or events occur, we may lose some or all of our Bitcoin and our financial condition and results of operations could be materially adversely affected.
Substantially all of the Bitcoin we own will be held in custody accounts at one or more institutional-grade digital asset custodians. Further, third-party service providers provide us with material services in connection with the Bitcoin strategy. Security breaches and cyberattacks are of particular concern with respect to our Bitcoin. Bitcoin and other blockchain-based cryptocurrencies and the entities that provide services to participants in the Bitcoin ecosystem have been, and may in the future be, subject to security breaches, cyberattacks, or other malicious activities. For example, in October 2021 it was reported that hackers exploited a flaw in the account recovery process and stole from the accounts of at least 6,000 customers of the Coinbase exchange, although the flaw was subsequently fixed and Coinbase reimbursed affected customers. Similarly, in November 2022, hackers exploited weaknesses in the security architecture of the FTX Trading digital asset exchange and reportedly stole over $400 million in digital assets from customers. A successful security breach or cyberattack could result in:
•a partial or total loss of our Bitcoin in a manner that may not be covered by insurance or the liability provisions of the custody agreements with the custodians who hold our Bitcoin;
•harm to our reputation and brand;
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•improper disclosure of data and violations of applicable data privacy and other laws; or
•significant regulatory scrutiny, investigations, fines, penalties, and other legal, regulatory, contractual and financial exposure.
Further, any actual or perceived data security breach or cybersecurity attack directed at other companies with digital assets or companies that operate digital asset networks, regardless of whether we are directly impacted, could lead to a general loss of confidence in the broader Bitcoin blockchain ecosystem or in the use of the Bitcoin network to conduct financial transactions, which could negatively impact us.
Attacks upon systems across a variety of industries, including industries related to Bitcoin, are increasing in frequency, persistence, and sophistication, and, in many cases, are being conducted by sophisticated, well-funded and organized groups and individuals, including state actors. The techniques used to obtain unauthorized, improper or illegal access to systems and information (including personal data and digital assets), disable or degrade services, or sabotage systems are constantly evolving, may be difficult to detect quickly, and often are not recognized or detected until after they have been launched against a target. These attacks may occur on our systems or those of our third-party service providers or partners. We may experience breaches of our security measures due to human error, malfeasance, insider threats, system errors or vulnerabilities or other irregularities. In particular, unauthorized parties have attempted, and we expect that they will continue to attempt, to gain access to our systems and facilities, as well as those of our partners and third-party service providers, through various means, such as hacking, social engineering, phishing and fraud. In the past, hackers have successfully employed a social engineering attack against one of our service providers and misappropriated our digital assets, although, to date, such events have not been material to our financial condition or operating results. Threats can come from a variety of sources, including criminal hackers, hacktivists, state-sponsored intrusions, industrial espionage, and insiders. In addition, certain types of attacks could harm us even if our systems are left undisturbed. For example, certain threats are designed to remain dormant or undetectable, sometimes for extended periods of time, or until launched against a target and we may not be able to implement adequate preventative measures. Further, there has been an increase in such activities due to the increase in work-from-home arrangements since the onset of the COVID-19 pandemic. The risk of cyberattacks could also be increased by cyberwarfare in connection with geopolitical conflicts, such as the ongoing Russia-Ukraine conflict, or conflicts in the Middle East, including potential proliferation of malware into systems unrelated to such conflicts. Any future breach of our operations or those of others in the Bitcoin industry, including third-party services on which we rely, could materially and adversely affect our business.
We face risks relating to the use of third-party advisors connection with the execution of our Bitcoin strategy.
We use third-parties to provide advisory services related to the execution of our Bitcoin strategy. We pay or may pay fees and incentive fees to such third-parties, and may reimburse such third-parties for certain expenses they incur. The fees may be based on a percentage of our net assets and, consequently, such third-parties may have conflicts of interest in connection with decisions that could affect our net assets, such as decisions as to whether and when to make future investments. The departure or termination of, or any misconduct of the third-party advisors, or of a significant number of professionals who act as agents of, or provide support to, the third-party advisors, could have a material adverse effect on our business, financial condition or the results of our operations.
We face risks relating to the custody of our Bitcoin, including the loss or destruction of private keys required to access our Bitcoin and cyberattacks or other data loss relating to our Bitcoin.
We hold substantially all of our Bitcoin in custody accounts at a U.S.-based, institutional-grade custodian that has demonstrated records of regulatory compliance and information security, and as we further execute on our strategy, we may expand our holdings to multiple similar custodians. Our custodial services contract does, and any future contracts will, not restrict our ability to reallocate our Bitcoin among our custodians, and our Bitcoin holdings may be concentrated with a single custodian from time to time, such as presently as we negotiate new arrangements. In light of the significant amount of Bitcoin we will hold, we will continually seek to engage additional custodians to achieve a greater degree of diversification in the custody of our Bitcoin as the extent of potential risk of loss is dependent, in part, on the degree of diversification. If there is a decrease in the availability of digital asset custodians that we believe can safely custody our Bitcoin, for example, due to regulatory developments or enforcement actions
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that cause custodians to discontinue or limit their services in the United States, we may need to enter into agreements that are less favorable or take other measures to custody our Bitcoin, and our ability to seek a greater degree of diversification in the use of custodial services would be materially adversely affected.
Any insurance that may cover losses of our Bitcoin holdings will cover only a small fraction of the value of the entirety of our Bitcoin holdings, and there can be no guarantee that such insurance will be maintained as part of the custodial services we have or that such coverage will cover losses with respect to our Bitcoin. Moreover, our use of custodians exposes us to the risk that the Bitcoin our custodians hold on our behalf could be subject to insolvency proceedings and we could be treated as a general unsecured creditor of the custodian, inhibiting our ability to exercise ownership rights with respect to such Bitcoin. Any loss associated with such insolvency proceedings is unlikely to be covered by any insurance coverage we may maintain related to our Bitcoin.
Bitcoin is controllable only by the possessor of both the unique public key and private key(s) relating to the local or online digital wallet in which the Bitcoin is held. While the Bitcoin blockchain ledger requires a public key relating to a digital wallet to be published when used in a transaction, private keys must be safeguarded and kept private in order to prevent a third party from accessing the Bitcoin held in such wallet. To the extent the private key(s) for a digital wallet are lost, destroyed, or otherwise compromised and no backup of the private key(s) is accessible, neither we nor our custodians will be able to access the Bitcoin held in the related digital wallet. Furthermore, we cannot provide assurance that our digital wallets, nor the digital wallets of our custodians held on our behalf, will not be compromised as a result of a cyberattack. The Bitcoin and blockchain ledger, as well as other digital assets and blockchain technologies, have been, and may in the future be, subject to security breaches, cyberattacks, or other malicious activities.
Regulatory change reclassifying Bitcoin as a security could lead to our classification as an “investment company” under the Investment Company Act of 1940 and could adversely affect the market price of Bitcoin and the market price of our ADSs.
Under Sections 3(a)(1)(A) and (C) of the Investment Company Act of 1940 (the “Investment Company Act”), a company generally will be deemed to be an “investment company” for purposes of the Investment Company Act if (i) it is, or holds itself out as being, engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities or (ii) it engages, or proposes to engage, in the business of investing, reinvesting, owning, holding or trading in securities and it owns or proposes to acquire investment securities having a value exceeding 40% of the value of its total assets (exclusive of U.S. government securities and cash items) on an unconsolidated basis.
A significant portion of our assets are concentrated in our Bitcoin holdings. While senior SEC officials have stated their view that Bitcoin is not a “security” for purposes of the federal securities laws, a contrary determination by the SEC could lead to our classification as an “investment company” under the Investment Company Act, which would subject us to significant additional regulatory controls that could have a material adverse effect on our ability to execute on our Bitcoin strategy, and our business and operations and may also require us to substantially change the manner in which we conduct our business.
In addition, if Bitcoin is determined to constitute a security for purposes of the federal securities laws, the additional regulatory restrictions imposed by such a determination could adversely affect the market price of Bitcoin and in turn adversely affect the market price of our ADSs.
Our Bitcoin strategy exposes us to risk of non-performance by counterparties.
Our Bitcoin strategy exposes us to the risk of non-performance by counterparties, whether contractual or otherwise. Risk of non-performance includes inability or refusal of a counterparty to perform because of a deterioration in the counterparty’s financial condition and liquidity or for any other reason. For example, our execution partners, custodians, or other counterparties might fail to perform in accordance with the terms of our agreements with them, which could result in a loss of Bitcoin, a loss of the opportunity to generate funds, or other losses.
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Our primary counterparty risk with respect to our Bitcoin is custodian performance obligations under the various custody arrangements we have entered into. A series of recent high-profile bankruptcies, closures, liquidations, regulatory enforcement actions and other events relating to companies operating in the digital asset industry, including the filings for bankruptcy protection by Three Arrows Capital, Celsius Network, Voyager Digital, FTX Trading and Genesis Global Capital, the closure or liquidation of certain financial institutions that provided lending and other services to the digital assets industry, including Signature Bank and Silvergate Bank, SEC enforcement actions against Coinbase, Inc., Binance Holdings Ltd., and Kraken, the placement of Prime Trust, LLC into receivership following a cease-and-desist order issued by Nevada’s Department of Business and Industry, and the filing and subsequent settlement of a civil fraud lawsuit by the New York Attorney General against Genesis Global Capital, its parent company Digital Currency Group, Inc., and former partner Gemini Trust Company have highlighted the perceived and actual counterparty risk applicable to digital asset ownership and trading. Although these bankruptcies, closures and liquidations have not resulted in any loss or misappropriation of our Bitcoin, nor have such events adversely impacted our access to our Bitcoin, legal precedent created in these bankruptcy and other proceedings may increase the risk of future rulings adverse to our interests in the event one or more of our custodians becomes a debtor in a bankruptcy case or is the subject of other liquidation, insolvency or similar proceedings.
While all of our custodians are subject to regulatory regimes intended to protect customers in the event of a custodial bankruptcy, receivership or similar insolvency proceeding, no assurance can be provided that our custodially-held Bitcoin will not become part of the custodian’s insolvency estate if one or more of our custodians enters bankruptcy, receivership or similar insolvency proceedings. Additionally, if we pursue any strategies to create income streams or otherwise generate funds using our Bitcoin holdings, we would become subject to additional counterparty risks. Any significant non-performance by counterparties, including in particular the custodians with which we custody substantially all of our Bitcoin, could have a material adverse effect on our business, prospects, financial condition, and operating results.
We are not subject to legal and regulatory obligations that apply to investment companies such as mutual funds and exchange-traded funds, or to obligations applicable to investment advisers.
While senior SEC officials have stated their view that Bitcoin is not a “security” for purposes of the federal securities laws, a contrary determination by the SEC could lead to our classification as an “investment company” under the Investment Company Act of 1940, which would subject us to significant additional regulatory controls that could have a material adverse effect on our ability to execute on our Bitcoin strategy, and our business and operations and may also require us to substantially change the manner in which we conduct our business.
Mutual funds, ETFs and their directors and management are subject to extensive regulation as “investment companies” and “investment advisers” under U.S. federal and state law; this regulation is intended for the benefit and protection of investors. At this point in time, we are not subject to, and do not otherwise voluntarily comply with, these laws and regulations. This means, among other things, that the execution of or changes to our Treasury Reserve Policy or our Bitcoin strategy, our use of leverage, the manner in which our Bitcoin is custodied, our ability to engage in transactions with affiliated parties and our operating and investment activities generally are not subject to the extensive legal and regulatory requirements and prohibitions that apply to investment companies and investment advisers. For example, although a significant change to our Treasury Reserve Policy would require the approval of our Board, no shareholder or regulatory approval would be necessary. Consequently, our Board has broad discretion over the investment, leverage and cash management policies it authorizes, whether in respect of our Bitcoin holdings or other activities we may pursue, and has the power to change our current policies, including our strategy of acquiring and holding Bitcoin.
Our potential loss of foreign private issuer status will increase our regulatory and compliance costs.
We may lose foreign private issuer status as soon as the beginning of 2027 depending on whether the majority of our assets will be held in the United States. Following the loss of foreign private issuer status, we will no longer be eligible to use the rules designated for foreign private issuers and will be required to comply with the reporting regime that applies to US domestic public companies. The regulatory and compliance costs to us under US securities laws as a US domestic public company will potentially be greater than the costs incurred as a foreign private issuer.
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Among other consequences, once we are not a foreign private issuer, we will be required to file periodic and current reports and registration statements on US domestic public company forms with the SEC, which are generally more detailed and extensive than the forms available to a foreign private issuer and are generally required to be filed within shorter time periods. In addition, we will be required to comply with the proxy requirements applicable to US domestic public companies and will lose the ability to rely on exemptions from corporate governance requirements that are available to foreign private issuers.
Risks Related to our Secured Convertible Debentures and Potential Future Indebtedness
Our level and terms of indebtedness could adversely affect our ability to raise additional capital to further execute on our Bitcoin strategy, fund other operations, and take advantage of new business opportunities.
Our indebtedness, whether currently existing or incurred in the future, could have important consequences to us, including:
•limiting our ability to use a substantial portion of our cash flow from operations in other areas of our business, including for acquisition of additional Bitcoin, working capital, developing our products and services, capital expenditures, and other general business activities and investment opportunities in our company, because we must dedicate a substantial portion of these funds to pay interest on and/or service our debt;
•limiting our ability to obtain additional financing in the future for acquisition of additional Bitcoin, working capital, capital expenditures, debt service, acquisitions, execution of our strategy, and other expenses or investments planned by us;
•limiting our flexibility and our ability to capitalize on business opportunities and to react to competitive pressures and adverse changes in government regulation, our business, and our industry;
•increasing our vulnerability to a downturn in our business and to adverse economic and industry conditions generally;
•requiring us to maintain Bitcoin or liquid assets to cover any repurchase, conversion or collateral requirement of the Secured Convertible Debentures;
•placing us at a competitive disadvantage as compared to our competitors that are less leveraged; and
•limiting our ability, or increasing the costs, to refinance indebtedness.
We may be unable to service our indebtedness, which could cause us to default on our debt obligations and could force us into bankruptcy or liquidation.
Our ability to make scheduled payments on and to refinance our indebtedness (whether currently existing or incurred in the future) depends, and will depend, on and is subject to our financial and operating performance, which is influenced, in part, by general economic, financial, competitive, legislative, regulatory, counterparty business, and other risks that are beyond our control, including the availability of financing in the U.S. banking and capital markets. If our cash flows and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay capital expenditures, sell assets, seek additional capital, or restructure or refinance our indebtedness. We cannot assure you that future borrowings will be available to us in an amount sufficient to enable us to service our indebtedness, to refinance our indebtedness, or to fund our other liquidity needs. Even if refinancing indebtedness is available, any refinancing of our indebtedness could be at higher interest rates and may require us to comply with more onerous covenants that could further restrict our business operations. In addition, our Bitcoin strategy anticipates that we may issue additional debt in future periods to finance additional purchases of Bitcoin, but if we are unable to generate sufficient cash flow to service our debt and make necessary capital expenditures, we may be required to sell Bitcoin. These alternative measures may not be successful and may not permit us to meet our scheduled debt service obligations or our financial covenants, which could cause us to default on our debt obligations. In addition, any failure to make payments of interest and principal on our outstanding
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indebtedness on a timely basis would likely result in a reduction of our credit rating, which could harm our ability to incur additional indebtedness.
Upon the occurrence of an event of default under our indebtedness (whether currently existing or incurred in the future), the holders of the defaulted indebtedness could elect to declare all the funds borrowed to be due and payable, together with accrued and unpaid interest. Any of these events could in turn result in cross-defaults under any other indebtedness. We may not have sufficient funds available to pay the amounts due upon any such default, particularly in the event that there has been a decrease in the market value of our Bitcoin holdings, and we may not be able to raise additional funds to pay such amounts on a timely basis, on terms we find acceptable, or at all. Any financing that we may undertake under such circumstances could result in substantial dilution of our existing stockholders, and in the absence of being able to obtain such financing, we could be forced into bankruptcy or liquidation.
We may not have the ability to raise the funds necessary to repurchase the Secured Convertible Debentures for cash upon a fundamental change or other event which could necessitate repayment of the Secured Convertible Debentures, including the mandatory repayment of the Secured Convertible Debentures required at maturity, and any future debt may contain limitations on our ability to engage in repurchases of the Secured Convertible Debentures.
Upon a Fundamental Change as defined in the Secured Convertible Debentures, all holders of the Secured Convertible Debentures will have the right, at each holder’s option, to require us to repurchase for cash all or any portion of such holder’s Secured Convertible Debenture at a repurchase price equal to the outstanding principal balance to be so repurchased, plus all accrued and unpaid interest thereunder as of the date of such repurchase, plus the Payment Premium as defined in the Secured Convertible Debentures, in respect of such principal balance and accrued and unpaid interest.
In order to obtain sufficient funds to pay the pay cash to repurchase the Secured Convertible Debentures or otherwise repay the Secured Convertible Debentures at maturity, we expect that we may have to refinance the Secured Convertible Debentures or obtain a waiver from the applicable holders of the Secured Convertible Debentures and we may not be able to refinance the Secured Convertible Debentures on reasonable terms, if at all. Absent a waiver from the applicable holders of the Secured Convertible Debentures, our failure to repurchase all validly tendered Secured Convertible Debentures or repay the Secured Convertible Debentures at maturity would be an event of default under the Secured Convertible Debentures. Additionally, the collateral held by the collateral agent under the Secured Convertible Debentures may not be available to us to repurchase or repay the Secured Convertible Debentures since that collateral is subject to release only in accordance with the terms of the Secured Convertible Debentures.
Moreover, the exercise by holders of the Secured Convertible Debentures of their right to require us to repurchase such Secured Convertible Debentures could cause a default under future debt agreements, even if the change of control or fundamental change itself does not, due to the financial effect of such repurchase on us.
Any future debt may contain limitations on our ability to (i) pay cash upon repurchase of the Secured Convertible Debentures or (ii) sell certain Bitcoin or other assets to generate cash that can be used to make such cash payments.
The optional conversion feature of the Secured Convertible Debentures, if elected by the holders thereof, may adversely affect our financial condition and operating results.
In the event the optional conversion feature of the Secured Convertible Debentures is elected to be used by any holders, holders of the applicable Secured Convertible Debentures will be entitled to convert such Secured Convertible Debentures at any time during specified periods at their option. If one or more holders elect to convert their Secured Convertible Debentures, and we fail to satisfy our conversion obligation by delivering the applicable ordinary shares for the delivery of ADSs in the amount of time permitted by the Secured Convertible Debentures, we would be required to settle a portion or all of our conversion obligation through the payment of cash, which could adversely affect our liquidity. Furthermore, even if holders do not elect to convert their Secured Convertible Debentures, we could be required under applicable accounting rules to reclassify all or a portion of the outstanding
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principal of the applicable Secured Convertible Debentures as a current rather than long-term liability, which would result in a material reduction of our net working capital.
Conversion of the Secured Convertible Debentures will dilute the ownership interest of existing shareholders or may otherwise depress the price of our ADSs and ordinary shares.
The conversion of some or all of the may dilute the ownership interests of holders of our ADSs. Any sales in the public market of our ADSs deliverable upon conversion of the Secured Convertible Debentures could adversely affect prevailing market prices of our ADSs. In addition, the existence of the Secured Convertible Debentures may encourage short selling by market participants because the conversion of the Secured Convertible Debentures could be used to satisfy short positions, or anticipated conversion of the Secured Convertible Debentures into our ADSs could depress the price of our ADSs.
Despite our current level of indebtedness, we may incur substantially more indebtedness and enter into other transactions in the future which could further exacerbate the risks related to our indebtedness.
Our Bitcoin strategy includes acquiring Bitcoin using proceeds from equity and debt financings and cash flows from operations. As such, despite our current level of indebtedness, we may incur substantially more indebtedness, and we may enter into other transactions in the future. Even if we were to enter into debt or other arrangements that contain restrictions on our ability to incur additional indebtedness, these restrictions may be subject to a number of qualifications and exceptions that would allow us to incur significant additional indebtedness. To the extent we incur additional indebtedness or other obligations, the risks described herein with respect to our indebtedness may increase significantly.
Collateral requirements and the repurchase rights of holders of our Secured Convertible Debentures may constrain our Bitcoin strategy and our business.
As of the Issuance Date and immediately following the closing of the Secured Convertible Debentures and the Common Equity Private Placement, we are required to have a Loan-to-Collateral Ratio of less than or equal to 1.0 to 1.95, with the Loan-to-Collateral Ratio calculated as the ratio of (a) the aggregate outstanding principal balance of all Secured Convertible Debentures to (b) the sum of (i) the aggregate market value of Bitcoin collateral, plus (ii) the aggregate value of all of our cash and cash equivalents collateral. In addition, all holders of Secured Convertible Debentures have the right, at each holder’s option, to require us to repurchase each such holder’s Secured Convertible Debenture for cash on July 7, 2028, subject to the terms and conditions in the respective Secured Convertible Debentures. The collateral held by the collateral agent under the Secured Convertible Debentures may not be available to us to repurchase or repay the Secured Convertible Debentures since that collateral is subject to release only in accordance with the terms of the Secured Convertible Debentures. We may need to maintain reserves in cash and cash equivalents, or otherwise liquidate Bitcoin holdings or other assets when it is not desirable or advisable to do so, in order to fund such obligations, which could negatively affect our business and results of operation.
Fair value accounting for embedded derivatives in our debt instruments could generate significant earnings volatility and adversely affect investor perception, our stock price, and compliance with financial covenants.
Certain features of our debt instruments, including early redemption options and potential price re-set mechanisms, result in the presence of an embedded derivative that must be accounted for separately under International Financial Reporting Standards (IFRS).
The embedded derivative is required to be measured at fair value through profit or loss, with remeasurement occurring at each reporting date. This accounting treatment may introduce significant volatility into our reported financial results, as changes in the fair value of the embedded derivative—driven by market interest rates, credit spreads, or other valuation inputs—are recognized in earnings, regardless of whether the underlying debt instrument is repaid or modified.
This volatility may not reflect the actual performance of our core operations and could adversely affect investor perception, our stock price, and our ability to comply with financial covenants. Additionally, the complexity of
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accounting for embedded derivatives may increase the risk of financial reporting errors or restatements, and may require significant management judgment and estimation.
Investors should be aware that these fair value adjustments are non-cash in nature, but may materially impact our financial statements and key performance indicators in any given reporting period.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of ordinary shares (or ADSs representing such shares) in this offering. The Selling Securityholders will receive all of the proceeds from this offering.
Pursuant to the Equity Private Placement, we received gross proceeds of approximately $195 million, which is being used for the purchase of Bitcoin and for general corporate purposes associated with purchasing Bitcoin. In addition, we will receive proceeds from the issuance of the Warrants if such Warrants are exercised. If all Warrants are exercised at the exercise price of $1.40 per ADS, we would receive an additional approximately $29 million. There can be no assurance that any of the Warrants will be exercised by the Selling Stockholders. We intend to use the net proceeds, if any, from the cash exercise of the Warrants for the purchase of Bitcoin and for general corporate purposes primarily associated with purchasing Bitcoin. See “Prospectus Summary — Recent Developments — Issuance of Equity and Convertible Debt in Private Placements” and “The Equity Private Placement” for additional information.
The Selling Securityholders will pay any fees, discounts and commissions, stock transfer taxes and fees and expenses of any counsel to the Selling Securityholders incurred by the Selling Securityholders in connection with registering or disposing of the ordinary shares (or ADSs representing such shares). We will bear all other fees and expenses incurred in effecting the registration of the ordinary shares (or ADSs representing such shares) covered by this prospectus or in the filing of any amendments or supplements to the registration statement or this prospectus and all other expenses incident to the registration of the ordinary shares (or ADSs representing such shares).
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CAPITALIZATION
The following table sets forth capitalization as of March 31, 2025:
•on an actual basis; and
•on an as adjusted basis to give effect to (i) the Equity Private Placement and (ii) the Debenture Private Placement.
You should read this table in conjunction with other sections of this prospectus and any documents incorporated by reference, including our consolidated financial statements and the related notes.
| At March 31, 2025 | ||||||||||||||
| Actual | As Adjusted | |||||||||||||
| (In thousands) | ||||||||||||||
| Cash and cash equivalents | $ | 45,948 | $ | 404,320 | ||||||||||
| Equity | ||||||||||||||
| Issued capital | $ | 2,960 | $ | 16,696 | ||||||||||
| Share premium | 14,487 | 184,319 | ||||||||||||
| Other capital reserves | 75,518 | 75,518 | ||||||||||||
| Accumulated deficit | (43,049) | (43,049) | ||||||||||||
| Accumulated other comprehensive income (loss) | $ | (632) | $ | (632) | ||||||||||
| Total equity | $ | 49,284 | $ | 232,852 | ||||||||||
| Long-term liabilities (current and non-current) | ||||||||||||||
| Convertible debt and accrued interest | $ | — | $ | 174,803 | ** | |||||||||
| Convertible debt embedded derivative | — | — | * | |||||||||||
| Government grant advances and interest-free loans | 9,533 | 9,533 | ||||||||||||
| Interest-bearing receivables financing (secured) | — | — | ||||||||||||
| Lease liabilities | 1,464 | 1,464 | ||||||||||||
| Total capitalization | $ | 60,281 | $ | 418,652 | ||||||||||
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*The valuation of the debt and the embedded derivative under IFRS has not yet been performed and is expected to be completed in the third quarter of 2025.
**Amount of debt represents 189 million less the 4% discount and less transaction fees.
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THE EQUITY PRIVATE PLACEMENT
We are registering for resale 160,361,294 ADSs, representing 1,603,612,940 ordinary shares. On June 22, 2025, the Company entered into the Equity Purchase Agreement with the Equity Purchasers, pursuant to which the Company agreed to issue to the Equity Purchasers in a private placement an aggregate of (a)(i) 117,198,762 Shares and (ii) Pre-Funded Warrants to purchase an aggregate of 22,245,852 Pre-Funded Warrant Shares and (b) Warrants to purchase an aggregate of 20,916,680 Warrant Shares or Pre-Funded Warrants in lieu thereof at the option of the holder of the Warrant, at a combined purchase price of $1.40 per ADS and Warrant, the equivalent of $0.14 per ordinary share and Warrant at the current ratio, or $1.39 per Pre-Funded Warrant and Warrant. The Equity Private Placement closed on July 4, 2025.
The Pre-Funded Warrants are exercisable commencing upon issuance thereof at the Equity Closing through the lifetime of the Company at a nominal exercise price of €0.01 per ordinary share represented by the Pre-Funded Warrant Shares, subject to adjustment as provided therein. The Warrants are exercisable commencing upon issuance thereof at the Equity Closing for a period of 90 days and may be exercised for (i) ordinary shares represented by the Warrant Shares, at an exercise price equal to $1.40 for each Warrant or (ii) Pre-Funded Warrants, at an exercise price equal to $1.40 minus €0.01 for each Warrant.
The aggregate gross proceeds from the Equity Private Placement were approximately $195 million. The Company intends to use the net proceeds from the Private Placements for the purchase of Bitcoin and for general corporate purposes associated with purchasing Bitcoin, subject to the security and collateral requirements of the Debenture Private Placement
The securities were issued without registration under the U.S. Securities Act of 1933, as amended, or the Securities Act, pursuant to the exemption from registration under the Securities Act for transactions not involving any public offering. We and the Selling Securityholders entered into the Equity Registration Rights Agreement pursuant to which we are filing the registration statement which includes this prospectus.
See “Prospectus Summary — Recent Developments — Issuance of Equity and Convertible Debt in Private Placements” for additional information.
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DESCRIPTION OF SHARE CAPITAL
The following description of our share capital summarizes certain provisions of our by-laws. Such summaries do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of our by-laws, as amended as of June 30, 2025, a copy of which has been filed as an exhibit to the registration statement of which this prospectus forms a part.
General
As of July 7, 2025, our share capital consisted of 1,427,163,962 issued ordinary shares, fully paid, and with a par value of €0.01 each, and total authorized capital of 7,311,627,501 ordinary shares. Each ADS represents ten ordinary shares. We have no preferred shares authorized or outstanding.
Under French law, our by-laws set forth only our issued and outstanding share capital as of the date of the by-laws. Our authorized share capital represents all issued and outstanding shares, as well as all potential shares which may be issued upon acquisition of restricted free shares or upon exercise of outstanding stock options, founders warrants, other warrants and convertible notes, as approved by our shareholders and our board of directors.
At the Shareholders’ Ordinary General Meeting and Extraordinary Meeting of Sequans Communications S.A. held on June 30, 2025, our shareholders delegated authority to the Board of Directors to carry out:
•one or several capital increase up to a maximum nominal amount of €70,000,000 (or the equivalent of this amount in any other currency that is legal tender or in any unit of account established with reference to a set of currencies) by issuing shares and/or securities that grant access to our equity, reserved to a specific class of persons and revocation of preemptive subscription rights in favor of such class;
•one or several issuances of debt instruments and/or to securities that confer the right to an allotment of debt securities up to a maximum nominal amount of €250,000,000 (or the equivalent of this amount in any other currency that is legal tender or in any unit of account established with reference to a set of currencies); reserved to a specific class of persons and revocation of preemptive subscription rights in favor of such class.
The authorization is valid through December 30, 2026.
Reconciliation of the Number of Ordinary Shares Outstanding on January 1, 2025 and on July 7, 2025
Number of ordinary shares as of January 1, 2025 | 251,408,922 | |||||||
| Issuance of ordinary shares through July 7, 2025 | 1,175,755,040 | (1) | ||||||
Number of ordinary shares as of July 7, 2025 | 1,427,463,962 | |||||||
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(1)Reflects 3,767,420 ordinary shares issued from the vesting of restricted shares and 1,171,987,620 ordinary shares issued in a private placement on July 4, 2025.
Dividends and Liquidation Rights
Dividends. We may make dividend distributions to our shareholders from our net income in each fiscal year (after deductions for depreciation and reserves pursuant to French law and our by-laws), as increased or decreased by any profit or loss carried forward from prior years, and less any contributions to reserves that may be decided by the shareholders under the conditions described below. These distributions are also subject to the requirements of French law and our by-laws.
Legal Reserve. Pursuant to French law, a société par actions must allocate 5% of its net profits for each fiscal year to its legal reserve fund before dividends may be paid with respect to that fiscal year. Funds must be allocated until the amount in that fund is equal to 10% of the nominal amount of its share capital. The legal reserve may not be distributed to shareholders and may not be used to repurchase or reimburse our shares.
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Approval of Dividends. Upon recommendation of our board of directors, our shareholders may decide to allocate all or part of any distributable profits among special or general reserves, to carry them forward to the next fiscal year as retained earnings or to allocate them to the shareholders as dividends. However, except in case of a capital decrease, we may not distribute dividends to shareholders when our net assets are or would become as a result of such distribution lower than the amount of share capital including reserves which, under French law, may not be distributed to shareholders.
Our by-laws provide that reserves which are available for distribution under French law and our by-laws may be distributed as dividends, subject to shareholder approval and other limitations under French law. Dividends or interim dividends may be paid in cash or shares.
If our interim income statement shows that, since the end of the preceding fiscal year, we have made distributable profits, our board of directors may, subject to French law and regulations, distribute interim dividends without the approval of our shareholders. An interim dividend may not exceed distributable profits.
Distribution of Dividends. Under French law, subject to the preferred dividends rights that may be attached to our preferred shares set forth in our by-laws, as the case may be, if we distribute dividends they must be distributed to our shareholders pro rata according to their shareholdings. Holders of shares outstanding on the date of the shareholders’ meeting approving the distribution of dividends or, in the case of interim dividends, on the date our board of directors meets and approves the distribution of interim dividends are eligible to receive the dividend payment. The actual dividend payment date is decided by our shareholders at an ordinary general meeting, or by our board of directors, if no decision is taken by our shareholders.
In the event that we are liquidated, our assets remaining after payment of our debts, liquidation expenses and all of our other remaining obligations will be distributed first to repay the nominal value of our shares. After these payments have been made, subject to the preferred liquidation rights that may be attached to our preferred shares set forth in our by-laws, as the case may be, any surplus will be distributed pro rata among our shareholders based on the nominal value of their shareholdings.
To date, we have never declared or paid any cash dividends on our ordinary shares or preferred shares. We do not anticipate paying any cash dividends on our ordinary shares in the foreseeable future and intend to retain all available funds and any future earnings for use in the operation and expansion of our business.
Timing of Payment. Pursuant to French Law and our by-laws, dividends must be paid within a maximum of nine months after the close of the relevant fiscal year, unless extended by court order. Dividends not claimed within five years after the payment date shall be deemed to expire.
Rights to Share in the Surplus in the Event of Liquidation. In the event that we are liquidated, the general meeting of shareholders determines the method of liquidation and appoints the liquidator(s).
Changes in Share Capital
Pursuant to French Law, we may increase our share capital only with approval of our shareholders at an extraordinary general meeting. The shareholders may delegate to our board of directors to carry out the capital increase for a specified period of time.
There are two methods to increase our share capital: (i) the issuance of additional shares, including the creation of a new class of shares, and (ii) the increase in the nominal value (par value) of existing shares. We may issue additional shares for cash or for assets contributed in kind, upon the conversion of debt securities, by capitalization of our reserves or, subject to certain conditions, in satisfaction of our indebtedness. Although, currently, we have only one class of shares, French law permits us to issue different classes of shares that may have different liquidation, voting and dividend rights.
Pursuant to French Law, we may decrease our share capital only with the approval of our shareholders at an extraordinary general meeting. The shareholders can authorize the board of directors to carry out the capital decrease for a specified period of time. There are two methods to decrease our share capital: (i) decreasing the number of
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shares outstanding and (ii) decreasing the nominal value of our shares. The conditions under which the share capital may be decreased vary depending upon whether the decrease is attributable to losses. We may, under certain conditions, decrease the number of outstanding shares either by a reverse stock split or by the repurchase and cancellation of our shares. Any decrease must meet the requirements of French law, which states that all the holders of shares in each class of shares must be treated equally unless each affected shareholder otherwise agrees.
Attendance and Voting at Shareholders’ Meetings
French companies may hold either ordinary or extraordinary shareholders’ general meetings. Ordinary general meetings are required for matters that are not specifically reserved by law to the extraordinary general meetings and include the election and dismissal of the members of the board of directors, the appointment of statutory auditors, the approval of the annual accounts, the approval of agreements entered into between the company and its officers, directors and shareholders holding more than 10% of the voting rights, the declaration of dividends, the payment of dividends in shares, the repurchase by the company of its shares in connection, inter alia, with employee profit-sharing or share option plans, and the issue of bonds. Extraordinary general meetings are required for approval of amendments to our by-laws, modification of shareholders’ rights, mergers, increases or decreases in share capital (including a waiver of preferential subscription rights), the creation of a new class of shares, the authorization of the issue of securities convertible or exchangeable into shares and for the sale or transfer of substantially all of our assets that would result in a change of our corporate purpose.
Our board of directors is required to convene an annual general meeting of shareholders for approval of the annual accounts. This meeting must be held within six months after the close of the relevant fiscal year. However, the president of the tribunal des activités économiques, the French commercial court, may order an extension of this six-month period. We may convene other ordinary and extraordinary meetings at any time during the fiscal year as necessary. Under French Law, general meetings of the shareholders may be convened by our board of directors or, if it fails to call a meeting, by our statutory auditors or by a court-appointed agent (mandataire ad hoc). Shareholders holding individually or in the aggregate at least 5% of our share capital, or another interested party under certain circumstances, may petition the court to appoint such an agent. The notice convening of a shareholders’ general meeting must state the agenda for such meeting.
Notice of a shareholders’ general meeting must be sent by regular or electronic mail, or registered letter if the shareholder so asks, at least 15 days before the meeting to all holders of registered shares. However, in the case where quorum was not met at the original meeting and was therefore adjourned, the general meeting can be reconvened under the same agenda within a reduced six-day time period. The convening notice must include the agenda of the meeting and a draft of the resolutions that will be submitted to the shareholders.
Attendance and the exercise of voting rights at both ordinary and extraordinary general meetings of shareholders are subject to certain conditions pursuant to French law. Under our by-laws, in order to participate in any general meeting, a holder of registered shares must have his shares fully paid-in and registered in its name in a shareholder account maintained by or on behalf of us at least three days prior to the meeting.
Subject to the above restrictions, all of our shareholders have the right to participate in our general meetings, either in person or by proxy. Shareholders may vote, either in person, by proxy or by mail (by use of a form), and their votes are counted in proportion to the number of shares they hold. A shareholder may grant a proxy only (i) to his or her spouse, (ii) to another shareholder or, (iii) if the shareholder is a corporation, to a legal representative. Under French law, our shares held by entities controlled directly or indirectly by us are not entitled to voting rights. There is no requirement that a shareholder have a minimum number of shares in order to be able to attend or be represented at a general meeting. If a shareholder does not return their proxy form, our depositary agreement with BNY Mellon allows the depositary to vote the shares underlying unvoted ADS in accordance with the Board’s recommendations.
Under French law, a quorum requires the presence, in person or by proxy (including those voting by mail) of shareholders having at least (1) 20% of the shares entitled to vote in the case of an ordinary shareholders’ general meeting or at an extraordinary shareholders’ general meeting where shareholders are voting on a capital increase by capitalization of reserves, profits or share premium, or (2) 25% of the shares entitled to vote in the case of any other
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extraordinary shareholders’ general meeting. If a quorum is not present, the meeting is adjourned. There is no quorum requirement when an ordinary general meeting is reconvened, but the reconvened meeting may consider only questions which were on the agenda of the adjourned meeting. When an extraordinary general meeting is reconvened, the quorum required is 20% of the shares entitled to vote, except where the reconvened meeting is considering capital increases through capitalization of reserves, profits or share premium. For these matters, no quorum is required at the reconvened meeting. If a quorum is not present at a reconvened meeting requiring a quorum, then the meeting may be postponed for a maximum of two months.
At an ordinary shareholders’ general meeting, approval of any resolution requires the affirmative vote of a simple majority of the votes of the shareholders present or represented. The approval of any resolution at an extraordinary shareholders’ general meeting requires the affirmative vote of a two-thirds majority of the votes of shareholders present or represented, except that any resolution to approve a capital increase by capitalization of reserves only requires the affirmative vote of a simple majority of the votes of shareholders present or represented. Notwithstanding these rules, a unanimous vote is required to increase shareholders’ liabilities.
In addition to the right to obtain certain information regarding us at any time, any shareholder may, from the date on which a shareholders’ meeting is convened until the fourth business day preceding the date of the shareholders’ meeting, submit written questions relating to the agenda for the meeting to our board of directors. Our board of directors is required to respond to these questions during the meeting.
As set forth in our by-laws, shareholders’ meetings are held at our registered office or at any other location specified in the written notice.
Preferential Subscription Rights
Preferential subscription rights entitle the individual or entity that holds them to subscribe pro rata based on the number of shares held by them to the issuance of any securities increasing, or that may result in an increase of, our share capital by means of a cash payment or a set-off of cash debts. This right is only reserved to holders of ordinary shares or preferred shares. Shareholders may waive their preferential rights on an individual basis. Our board of directors and our independent auditors are required by French law to present reports to the shareholders’ meeting that specifically address any proposal to waive the preferential subscription rights. During the subscription period relating to a particular offering of shares, shareholders may transfer their preferential subscription rights that they have not previously waived. To the extent permitted under French law, we may seek shareholder approval to waive preferential subscription rights at any extraordinary meeting where shareholders are asked to approve an increase in our capital by issuing additional shares and/or other securities convertible or exchangeable into shares.
Form and Holding of Shares
Our by-laws provide that our ordinary shares shall be held in registered form. In accordance with French law concerning the “dematerialization” of securities, the ownership rights of shareholders are represented by book entries instead of share certificates. Registered shares are entered into an account maintained by us or by a representative that we have nominated. We maintain accounts in the name of each shareholder either directly or, at a shareholder’s request, through such shareholder’s accredited intermediary. Each shareholder’s account shows the name and number of shares held.
Repurchase and Redemption of Shares
Under French law, we may acquire our own shares for the following purposes only:
•to decrease our share capital, provided that such a decision is not driven by losses and that a purchase offer is made to all shareholders on a pro rata basis, with the approval of the shareholders at an extraordinary general meeting. In this case, the repurchased shares must be cancelled within one month from their repurchase date;
•to provide shares for distribution to employees or managers under a profit-sharing or share option plan; and
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•to facilitate an issue of additional shares or securities convertible or exchangeable into shares, a merger or a spin-off, approved by the shareholders at an ordinary general meeting.
The amounts repurchased under this section cannot result in us holding more than 10% of our own shares. In the event that such repurchases result in us holding more than 10% of our issued shares, we are required to transfer any shares in excess of the 10% threshold within one year. French law requires that we cancel any shares in excess of this 10% limit that have not been transferred within the one-year period.
When we purchase our own shares, they must be held in registered form and be fully paid. These shares are deemed to be outstanding under French law, but are not entitled to any dividends or voting rights, and we may not exercise preferential subscription rights. The shareholders, at an extraordinary general meeting, may decide not to take such shares into account in determining the preferential subscription rights attached to the other shares. In the absence of such a decision, the rights attached to any shares held by us must either be sold on the market before the end of the subscription period or distributed to other shareholders on a pro rata basis.
Cross Shareholdings and Holding of Our Shares by Our Subsidiaries
French law prohibits a company from holding our shares if we hold more than 10% of that company’s share capital and we may not own any interest in a French company holding more than 10% of our share capital. In the event of a cross shareholding that violates this rule, the company owning the smaller percentage of shares in the other company must sell its interest. Until sold, these shares are deprived of their voting rights. Failure by the officers and directors of a company to sell these shares is a criminal offense.
In the event that one of our subsidiaries holds our shares, these shares are deprived of their voting rights. However, French law does not require the subsidiary to sell the shares.
General Description of our By-laws
The following description summarizes certain terms and provisions contained in our by-laws. Such summaries do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of our by-laws (statuts), which are filed as Exhibit 3.1 herewith.
Corporate Purposes (Article 3)
Our company is engaged in the business of researching, developing and commercializing silicon and software solutions in the areas of cellular wireless access, specifically compliant with LTE or 5G standards or other similar broadband wireless standards.
The company’s corporate purpose, in France and abroad is:
•The study, development and marketing of all products and/or services relating to radio fixed and/or optical-type communication networks systems;
•Advising and training, by all means and technical media, relating to the aforementioned fields of operations;
•The participation, directly or indirectly, in all transaction that may be related to any of the purposes defined above, through the creation of new companies or legal entities, the contribution, subscription, or purchase of securities or corporate rights, acquisition of interests, mergers, partnerships, or any other methods;
•And, more generally, all industrial, commercial, and financial transactions, or transactions involving movable or fixed assets, that may be related directly or indirectly, in whole or in part, to any of the aforementioned corporate purposes, or to any similar or related purposes, or to any and all purposes that may enhance or develop the company’s business, including, without limitation, investments (exchange, custody and access) in sovereign and non-sovereign currencies for treasury reserve purposes.
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Directors’ Voting Powers on Proposal, Arrangement or Contract in which any Director is Materially Interested
Under French law, any agreement entered into directly or through an intermediary, between us and our directors that is not entered into in the ordinary course of our business and upon standard market terms is subject to a prior approval of the board of directors and must be ratified by our ordinary shareholders’ general meeting on the basis of a specific report issued by our statutory auditors on such agreements. The director who is interested in the agreement cannot vote on the proposal at the board meeting.
The same provision applies to agreements between us and another company, except where such company is our wholly owned subsidiary, if one of our directors is the owner or a general partner, manager, director, general manager or member of the executive or supervisory board of the other company, as well as to agreements in which one of our directors has an indirect interest.
Rights, Preferences and Restrictions Attaching to Each Class of Shares
Our shareholders are not required to subscribe to any of our further capital calls.
At this time, we have only one class of shares. Each share gives the right to one vote on all matters submitted to our shareholders. Each share also gives the right to share in the profits and corporate assets, pro rata the amount of our share capital which it represents. Our shareholders only bear losses for up to the amount of their investment. However, in the event we declare bankruptcy, one or several shareholders who could be considered as either (i) having become our de facto manager and, as such, taken decisions that contributed to our insolvency or failed to take decisions that would have prevented such insolvency, or (ii) having in such capacity comingled vis-à-vis third parties between his or her own assets and our own assets may be liable for losses greater than his/her investment. In the event of a capital increase, a majority of shareholders may decide to suppress the preferential subscription rights of all shareholders in favor of a beneficiary or a category of beneficiaries, including existing shareholders who are nevertheless excluded from such vote.
We cannot increase the commitments or liabilities of our shareholders; such a change can only be agreed to by each shareholder individually.
Under our by-laws, our extraordinary general meeting may decide to issue preferred shares bearing preferred voting and financial rights.
Provisions Having the Effect of Delaying, Deferring or Preventing a Change in Control of our Company
Provisions contained in our bylaws and French corporate law could make it more difficult for a third-party to acquire us, even if doing so might be beneficial to our shareholders. These provisions include but are not limited to the following:
•pursuant to our by-laws, the number of directors, election and removal of a director from office may be modified only by a resolution adopted by 66⅔% of our shareholders present or represented;
•under French law, a non-resident of France as well as any French entity controlled by non-residents of France may have to file a declaration for statistical purposes with the Bank of France (Banque de France) within 20 working days following the date of certain direct foreign investments in a company, including any purchase of our ADSs. In particular, such filings are required in connection with investments exceeding €15,000,000 that lead to the acquisition of at least 10% of our share capital or voting rights or cross such 10% threshold. See “Limitations Affecting Shareholders of a French Company”;
•under French law, certain investments in a French company relating to certain strategic industries by individuals or entities not residents in a Member State of the EU are subject to prior authorization of the Ministry of Economy;
•our shareholders have granted and may grant in the future our board of directors authorizations to increase our share capital or to issue additional ordinary shares or other securities, such as warrants;
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•our shareholders have preferential subscription rights on a pro rata basis on the issuance by us of any additional securities for cash or a set-off of cash debts, which rights may only be waived by the extraordinary general meeting (by a two-thirds majority vote) of our shareholders or on an individual basis by each shareholder; and
•our bylaws can be changed in accordance with applicable corporate French laws.
Ownership of ADSs or Shares by Non-French Residents
Neither the French Commercial Code nor our by-laws presently limit the right of non-residents of France or non-French persons to own or, where applicable, to vote our shares. However, non-French residents must file a declaration for statistical purposes with the Bank of France (Banque de France) within twenty working days following the date of certain direct foreign investments in us, including any purchase of our ADSs. In particular such filings are required in connection with investments exceeding €15,000,000 that lead to the acquisition of at least 10% of the share capital or voting rights or cross such 10% threshold. Violation of this filing requirement may be sanctioned by five years’ imprisonment and a fine up to twice the amount of the relevant investment. This amount may be increased fivefold if the violation is made by a legal entity.
Moreover, certain foreign investments in companies incorporated under French laws are subject to the prior authorization from the French Minister of the Economy, where all or part of the target’s business and activity relate to a strategic sector, such as energy, transportation, public health, telecommunications.
Foreign Exchange Controls
Under current French foreign exchange control regulations there are no limitations on the amount of cash payments that we may remit to residents of foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments or transfers of funds made by a French resident to a non-resident be handled by an accredited intermediary. All registered banks and substantially all credit institutions in France are accredited intermediaries.
Availability of Preferential Subscription Rights
Our shareholders have preferential subscription rights as described above under “Description of Share Capital-Preferential Subscription Rights.” Under French Law, shareholders have preferential rights to subscribe for cash issues of new shares or other securities giving rights to acquire additional shares on a pro rata basis. Holders of our securities in the U.S. (which may be in the form of shares or ADSs) may not be able to exercise preferential subscription rights for their securities unless a registration statement under the Securities Act is effective with respect to such rights or an exemption from the registration requirements imposed by the Securities Act is available. We may, from time to time, issue new shares or other securities giving rights to acquire additional shares (such as warrants) at a time when no registration statement is in effect and no Securities Act exemption is available. If so, holders of our securities in the U.S. will be unable to exercise any preferential subscription rights and their interests will be diluted. We are under no obligation to file any registration statement in connection with any issuance of new shares or other securities. We intend to evaluate at the time of any rights offering the costs and potential liabilities associated with registering the rights, as well as the indirect benefits to us of enabling the exercise by holders of shares and holders of ADSs in the U.S. to exercise the rights, and any other factors we consider appropriate at the time, and then to make a decision as to whether to register the rights. We cannot assure you that we will file a registration statement.
For holders of our shares represented by ADSs, the Depositary may make these rights or other distributions available to ADS holders after we instruct it to do so in the United States. If we fail to do this and the Depositary determines that it is impractical to sell the rights, it may allow these rights to lapse. In that case, the ADSs holders will receive no value for them. The section of this prospectus entitled “Description of American Depositary Receipts-Dividends, Other Distributions and Rights” explains in detail the depositary’s responsibility in connection with a rights offering.
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DESCRIPTION OF AMERICAN DEPOSITARY SHARES
American Depositary Shares
The Bank of New York Mellon, as depositary, registers and delivers our ADSs. Each ADS represents ten ordinary shares (or a right to receive ten ordinary shares) deposited with the principal Paris office of Société Générale or any successor, as custodian for the depositary. Each ADS will also represent any other securities, cash or other property which may be held by the depositary in respect of the depositary facility. A copy of our amended and restated deposit agreement (the “Deposit Agreement”), dated May 14, 2018 and the amendment dated September 11, 2023, among us, the depositary, owners and holders of ADSs are filed with the SEC as Exhibit 2.2 and Exhibit 2.5, respectively, to our Annual Report on Form 20-F for the fiscal year ended December 31, 2024 (the “Form 20-F”).
Any ordinary shares that may be issued pursuant to this prospectus and the applicable prospectus supplement, whether directly or upon conversion of the Convertible Note, will be delivered in the form of ADSs. The ADSs may be uncertificated securities or certificated securities evidenced by American Depositary Receipts, or ADRs. Each ADS will represent ten ordinary shares (or a right to receive ten ordinary shares) deposited with the principal Paris office of Société Générale or any successor, as custodian for the depositary. Each ADS will also represent any other securities, cash or other property which may be held by the depositary. The depositary’s corporate trust office at which the ADSs will be administered is located at 240 Greenwich Street, Floor 8W, New York, New York 10286.
You may hold ADSs either (A) directly (i) by having an ADR, which is a certificate evidencing a specific number of ADSs, registered in your name, or (ii) by having ADSs registered in your name in the Direct Registration System, or (B) indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder. This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
As an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. French law governs shareholder rights. The depositary will be the holder of the shares underlying your ADSs. As a holder of ADSs, you will have ADS holder rights. The Deposit Agreement among us, the depositary and you, as an ADS holder, and the beneficial owners of ADSs set out ADR holder rights as well as the rights and obligations of the depositary. New York law governs the Deposit Agreement and the ADRs.
We refer to the shares that are at any time deposited or deemed deposited under the Deposit Agreement and any and all other securities, cash and property received by the depositary or the custodian in respect thereof and at such time held under the Deposit Agreement as “Deposited Securities.”
The following is a summary of the material provisions of the Deposit Agreement. For more complete information, you should read the entire Deposit Agreement and the form of ADR, which is included in the Deposit Agreement.
Deposit, Transfer and Withdrawal
French law provides that ownership of shares generally be evidenced only by an inscription in an account in the name of the holder maintained by either the issuer or an authorized intermediary such as a bank. Thus, all references to the deposit, surrender and delivery of our shares refer only to book-entry transfers and do not contemplate the physical transfers of certificates representing the shares in France.
The depositary has agreed, subject to the terms and conditions of the Deposit Agreement, that upon deposit with the custodian of our shares, or evidence of rights to receive our shares, and pursuant to appropriate instruments of transfer, it will deliver through its Corporate Trust Office to the person or persons specified by the depositor, ADSs registered in the name or names of such person or persons for the number of ADSs issuable in respect of such deposit, upon payment to the depositary of its fees and expenses and of any taxes or charges.
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Upon surrender of an ADS at the Corporate Trust Office of the depositary for the purpose of withdrawal of the Deposited Securities represented by the ADSs, payment of the fees, governmental charges and taxes provided in the Deposit Agreement and payment of all taxes and governmental charges payable in connection with such surrender and withdrawal, and subject to the provisions of the Deposit Agreement, our by-laws and the Deposited Securities, ADS owners are entitled to delivery to it or upon its order of the shares and any other Deposited Securities at the time represented by the ADSs at the Corporate Trust Office of the depositary or at the office of the custodian in Paris. The forwarding for delivery at the Corporate Trust Office of the depositary of cash, other property and documents of title for such delivery will be at the risk and expense of the ADS holder.
Subject to the terms and conditions of the Deposit Agreement and any limitations established by the depositary, unless requested by us to cease doing so, the depositary may deliver ADSs before deposit of the underlying ordinary shares. This is called a pre-release of the ADSs. The depositary may also deliver ordinary shares upon cancellation of pre-released ADSs (even if the ADSs are canceled before the pre-release transaction has been closed out). A pre-release is closed out as soon as the underlying ordinary shares are delivered to the depositary. The depositary may receive ADSs instead of ordinary shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions: (1) before or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing that it or its customer owns the ordinary shares or ADSs to be deposited; (2) the pre-release is fully collateralized with cash or other collateral that the depositary considers appropriate; and (3) the depositary must be able to close out the pre-release on not more than five business days’ notice. In addition, the depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release, although the depositary may disregard the limit from time to time, if it thinks it is appropriate to do so.
Dividends, Other Distributions and Rights
The depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian receives on ordinary shares or other deposited securities in the depositary facility, after deducting its fees and expenses. You will receive these distributions in proportion to the number of ordinary shares your ADSs represent.
While we do not expect to declare or pay any cash dividends or cash distributions on our ordinary shares for the foreseeable future, if and when we do pay any cash dividend or other cash distribution on the ordinary shares, the depositary will convert, as promptly as practicable, any cash dividend or other cash distribution into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained with reasonable efforts, the Deposit Agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest. Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. It will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
Ordinary Shares
The depositary may distribute additional ADSs representing any ordinary shares we distribute as a dividend or free distribution upon our request or after consulting with us. The depositary will only distribute whole ADSs. It will sell ordinary shares which would require it to deliver a fractional ADS and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new ordinary shares; however, the depositary may sell a portion of the distributed ordinary shares sufficient to pay its fees and expenses in connection with that distribution.
Rights to Purchase Additional Ordinary Shares
If we offer holders of our securities any rights to subscribe for additional ordinary shares or any other rights, the depositary may make these rights available to ADS holders. If the depositary decides it is not legal or practical to make the rights available but that it is practical to sell the rights, the depositary will use reasonable efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The depositary will allow rights that are not distributed or sold to lapse. In that case, you will receive no value for them.
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If the depositary makes rights available to ADS holders, it will exercise the rights and purchase the ordinary shares on your behalf and in accordance with your instructions. The depositary will then deposit the ordinary shares and deliver ADSs to the persons entitled to them. It will only exercise rights if you pay it the exercise price and any other charges the rights require you to pay and comply with other applicable instructions.
U.S. securities laws may restrict transfers and cancellation of the ADSs representing ordinary shares purchased upon exercise of rights. For example, you may not be able to trade these ADSs freely in the United States. In this case, the depositary may deliver restricted depositary shares that have the same terms as the ADSs described in this section except for changes needed to put the necessary restrictions in place.
Other Distributions
The depositary will send to ADS holders anything else we distribute on deposited securities by any means it determines is equitable and practicable after consulting with us, to the extent practicable. If it cannot make the distribution proportionally among the owners, the depositary may adopt another equitable and practical method subject to consulting with us, to the extent practicable. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. In addition, the depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution.
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register ADSs, ordinary shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, ordinary shares, rights or anything else to ADS holders. This means that you may not receive the distributions we make on our ordinary shares or any value for them if it is illegal or impractical for us to make them available to you.
Record Dates
Whenever any cash dividend or other cash distribution becomes payable or any distribution other than cash is made, or whenever rights shall be issued with respect to the Deposited Securities, or whenever for any reason the depositary gives effect to a change in the number of our shares that are represented by each ADS, or whenever the depositary shall receive notice of any meeting of holders of shares or other Deposited Securities, or whenever the depositary shall find it necessary or convenient, the depositary will fix a record date, which shall be the same date as for the represented ordinary share or a date fixed after consultation with us and as close thereto as practicable (i) for the determination of the owners of ADRs who shall be (a) entitled to receive such dividend, distribution or rights, or the net proceeds of the sale thereof, or (b) entitled to give instructions for the exercise of voting rights at any such meeting, (ii) for fixing the date on or after which each ADS will represent the changed number of shares, all subject to the provisions of the Deposit Agreement or (iii) to facilitate any other matter for which the record date was set.
Voting of Deposited Securities
ADS holders may instruct the depositary to vote the number of deposited ordinary shares their ADSs represent. The depositary will notify ADS holders of shareholders’ meetings and arrange to deliver our voting materials to them if we ask it to. Those materials will describe the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they must reach the depositary by a date set by the depositary.
The depositary will try, as far as practical, and subject to the laws of France and to our by-laws, to vote or to have its agents vote the ordinary shares or other deposited securities as instructed by ADS holders. The depositary will only vote or attempt to vote as instructed; if no instructions are received, our depositary agreement allows the depositary to vote the shares underlying unvoted ADS in accordance with the Board’s recommendations.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your ordinary shares. In addition, the depositary and its agents are not responsible for failing to
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carry out voting instructions or for the manner of carrying out voting instructions provided that any such failure is without negligence and in good faith. This means that you may not be able to exercise your right to vote and there may be nothing you can do if your ordinary shares are not voted as you requested.
In order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to deposited securities, if we request the depositary to act, we agree to give the depositary notice of any such meeting and details concerning the matters to be voted upon at least 45 days in advance of the meeting date.
Except as described above, you will not be able to exercise your right to vote unless you withdraw the ordinary shares. However, you may not know about the shareholder meeting enough in advance to withdraw the ordinary shares.
Amendment and Termination of the Deposit Agreement
We may agree with the depositary to amend the Deposit Agreement and the ADRs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the Deposit Agreement as amended.
The depositary will terminate the Deposit Agreement at our direction, if given, by mailing notice of termination to the ADS holders then outstanding at least 30 days prior to the date fixed in such notice for such termination. The depositary may also terminate the Deposit Agreement by mailing notice of termination to us and the ADS holders if 60 days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed and accepted its appointment.
After termination, the depositary and its agents will do the following under the Deposit Agreement but nothing else: collect distributions on the deposited securities, sell rights and other property, and deliver ordinary shares and other deposited securities upon cancellation of ADSs. Four months after termination, the depositary may sell any remaining deposited securities by public or private sale. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the Deposit Agreement for the pro rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. The depositary’s only obligations will be to account for the money and other cash. After termination our only obligations under the Deposit Agreement will be to indemnify the depositary and to pay fees and expenses of the depositary that we agreed to pay and we will not have any obligations thereunder to current or former ADS holders.
Charges of Depositary
See Item 12, “Description of Securities Other than Equity Securities — D. American Depositary Shares — Fees and Expenses” in our Form 20-F, which is incorporated by reference into this prospectus.
Liability of Owner for Taxes
If any tax or other governmental charge shall become payable by the custodian or the depositary with respect to any ADS or any Deposited Securities represented by the ADSs evidenced by such ADS, such tax or other governmental charge will be payable by the owner of such ADS to the depositary. The depositary may refuse to effect any transfer of such ADS or any withdrawal of Deposited Securities underlying such ADS and may apply such dividends, distributions or the proceeds of any such sale to pay any such tax or other governmental charge and the owner of such ADS will remain liable for any deficiency.
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CERTAIN INCOME TAX CONSIDERATIONS
This description is based in part upon the representation of the custodian and the assumption that each obligation in the Depositary Agreement with the depositary relating to your ADSs and any related agreement will be performed in accordance with their terms.
Material United States Federal Income Tax Consequences
The following is a description of the material United States federal income tax consequences of the acquisition, ownership and disposition of the ADSs. This description addresses only the United States federal income tax consequences to holders that are purchasers of the ADSs and hold such ADSs as capital assets (generally property held for investment). This description does not address tax considerations applicable to holders that may be subject to special tax rules, including:
•financial institutions or insurance companies;
•real estate investment trusts, regulated investment companies or grantor trusts;
•dealers or traders in securities or currencies;
•tax-exempt entities;
•certain former citizens or former long-term residents of the United States;
•persons that received the ADSs as compensation for or in connection with the performance of services;
•persons that will hold the ADSs as part of a “hedging” or “conversion” transaction or as a position in a “straddle” for United States federal income tax purposes;
•holders that will hold the ADSs through a partnership or other pass-through entity;
•U.S. Holders, as defined below, whose “functional currency” is not the United States dollar; or
•holders that own, directly, indirectly or through attribution, 10.0% or more of the voting power or value of our shares.
Moreover, this description does not address the United States federal estate and gift or alternative minimum tax, or foreign, state or local tax, consequences of the acquisition, ownership and disposition of the ADSs.
This description is based on the United States Internal Revenue Code of 1986, as amended, or the “Code,” existing, proposed and temporary United States Treasury Regulations and judicial and administrative interpretations thereof, in each case as in effect and available on the date hereof. All of the foregoing is subject to change, which change could apply retroactively and could affect the tax consequences described below. For example, President Biden has set forth several tax proposals that would, if enacted, make significant changes to U.S. tax laws. Such proposals include, but are not limited to, an increase in the U.S. federal income tax rate for long term capital gain for certain taxpayers with income in excess of a threshold amount. Congress may consider, and could include, some or all of these proposals in connection with tax reform to be undertaken by the current administration. It is unclear whether these or similar changes will be enacted and, if enacted, how soon any such changes could take effect.
For purposes of this description, a “U.S. Holder” is a beneficial owner of the ADSs that, for United States federal income tax purposes, is:
•a citizen or resident of the United States;
•a corporation or other entity treated as a corporation for United States federal income tax purposes, created or organized in or under the laws of the United States or any state thereof, including the District of Columbia;
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•an estate the income of which is subject to United States federal income taxation regardless of its source; or
•a trust if such trust has validly elected to be treated as a United States person for United States federal income tax purposes or if (1) a court within the United States is able to exercise primary supervision over its administration and (2) one or more United States persons have the authority to control all of the substantial decisions of such trust.
A “Non-U.S. Holder” is a beneficial owner of the ADSs that is neither a U.S. Holder nor a partnership, or other entity or arrangement treated as a partnership, for United States federal income tax purposes.
If a partnership or any other entity or arrangement treated as a partnership for United States federal income tax purposes holds the ADSs, the tax treatment of such partnership, or a partner in such partnership will depend on the status of the partner and the activities of the partnership. Such a partner or partnership is encouraged to consult its tax advisor as to its tax consequences.
You are encouraged to consult your tax advisor with respect to United States federal, state, local and foreign tax consequences of acquiring, owning and disposing of the ADSs.
For United States federal income tax purposes, you will be treated as the owner of our ordinary shares represented by your ADSs. Exchanges of ordinary shares for ADSs, and ADSs for ordinary shares, will not be subject to United States federal income tax.
Distributions with Respect to ADSs
If you are a U.S. Holder, for United States federal income tax purposes, the gross amount of any distribution made to you with respect to your ADSs (other than certain distributions, if any, of the ADSs or ordinary shares distributed pro rata to all our shareholders), before reduction for any French taxes withheld therefrom, will be includible in your income as dividend income to the extent such distribution is paid out of our current or accumulated earnings and profits as determined under United States federal income tax principles. Subject to the discussion below under “Passive Foreign Investment Company Considerations,” non-corporate U.S. Holders may qualify for the lower rates of taxation with respect to dividends on ADSs applicable to long-term capital gains (i.e., gains from the sale of capital assets held for more than one year), provided that certain conditions are met, including certain holding period requirements and the absence of certain risk reduction transactions. However, such dividends will not be eligible for the dividends received deduction generally allowed to corporate U.S. Holders. Subject to the discussion below under “Passive Foreign Investment Company Considerations,” to the extent, if any, that the amount of any distribution by us exceeds our current and accumulated earnings and profits as determined under United States federal income tax principles, such excess amount will be treated first as a tax-free return of your adjusted tax basis in your ADSs and thereafter as capital gain. We do not expect to maintain calculations of our earnings and profits under United States federal income tax principles and, therefore, if you are a U.S. Holder you should expect that the entire amount of any distribution generally will be reported as dividend income to you.
Dividends, if any, paid to U.S. Holders in euros or currency other than the U.S. dollar (“Other Foreign Currency”) will be includible in income in a U.S. dollar amount based on the prevailing spot market exchange rate in effect on the date of actual or constructive receipt, whether or not converted into U.S. dollars at that time. Assuming dividends received in euros (or Other Foreign Currency) are converted into U.S. dollars on the day they are received, the U.S. Holder will not be required to recognize foreign currency gain or loss in respect of the dividend income. If, however, the payment is not converted at that time, a U.S. Holder will have a tax basis in euros (or Other Foreign Currency) equal to the U.S. dollar amount of the dividend included in income, which will be used to measure gain or loss from subsequent changes in exchange rates. Any gain or loss that a U.S. Holder recognizes on a subsequent conversion of euros (or Other Foreign Currency) into U.S. dollars (or on other disposition) generally will be U.S. source ordinary income or loss. U.S. Holders should consult their own tax advisors regarding the tax consequences to them if the dividends are paid in euros (or Other Foreign Currency).
Subject to certain conditions and limitations, French tax withheld on dividends may be deducted from your United States federal taxable income or credited against your United States federal income tax liability. The limitation on foreign taxes eligible for credit is calculated separately with respect to specific classes of income. For
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this purpose, dividends, if any, that we distribute will constitute “passive category income,” or, in the case of certain U.S. Holders, “general category income.” A foreign tax credit for foreign taxes imposed on distributions may be denied if you do not satisfy certain minimum holding period requirements or if you engage in certain risk reduction transactions. If you are a U.S. Holder, dividends, if any, paid to you with respect to your ADSs will be treated as foreign source income, which may be relevant in calculating your foreign tax credit limitation. The rules relating to the determination of the foreign tax credit are complex, and you are encouraged to consult your tax advisor to determine whether and to what extent you will be entitled to this credit.
Subject to the discussion below under “Backup Withholding Tax and Information Reporting Requirements,” if you are a Non-U.S. Holder, you should not be subject to United States federal income or withholding tax on dividends received by you on your ADSs unless such income is effectively connected with your conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base).
Sale, Exchange or Other Disposition of ADSs
Subject to the discussion below under “Passive Foreign Investment Company Considerations,” if you are a U.S. Holder, you will recognize capital gain or loss on the sale, exchange or other disposition of your ADSs equal to the difference between the amount realized on such sale, exchange or other disposition and your adjusted tax basis in your ADSs. If you are a non-corporate U.S. Holder, capital gain from the sale, exchange or other disposition of ADSs will be eligible for the preferential rate of taxation applicable to long-term capital gains if your holding period for such ADSs exceeds one year (i.e., such gain is long-term capital gain). Gain or loss, if any, recognized by a U.S. Holder generally will be treated as U.S. source gain or loss, as the case may be, for foreign tax credit limitation purposes. The deductibility of capital losses for United States federal income tax purposes is subject to limitations.
Subject to the discussion below under “Backup Withholding Tax and Information Reporting Requirements,” if you are a Non-U.S. Holder, you will not be subject to United States federal income, or withholding, tax on any gain realized on the sale or exchange of your ADSs unless:
•such gain is effectively connected with your conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base); or
•you are an individual and have been present in the United States for 183 days or more in the taxable year of such sale or exchange and certain other conditions are met.
Passive Foreign Investment Company Considerations
A non-U.S. corporation will be classified as a “passive foreign investment company,” or a PFIC, for United States federal income tax purposes for any taxable year in which, after applying certain look-through rules, either
•at least 75% of its gross income is “passive income;” or
•at least 50% of the average value of its gross assets is attributable to assets that produce “passive income” or are held for the production of passive income.
Passive income for this purpose includes dividends, interest, royalties, rents, gains from commodities and securities transactions and the excess of gains over losses from the disposition of assets which produce passive income, including amounts derived by reason of the investment of funds raised in offerings of the ADSs. If a non-U.S. corporation owns at least 25% by value of the stock of another corporation, the non-U.S. corporation is treated for purposes of the PFIC tests as owning its proportionate share of the assets of the other corporation and as receiving directly its proportionate share of the other corporation’s income.
Based on the character of our gross income and the average value of our passive assets relative to the gross value of our assets for the taxable year ended December 31, 2024, we do not believe we were a PFIC for 2024. Because PFIC status is determined annually based on our income, assets and activities for the entire taxable year, it is not possible to determine whether we will be characterized as a PFIC for 2025 or any other future year until after the close of that year. While we intend to manage our business so as to avoid PFIC status, to the extent consistent
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with our other business goals, we cannot predict whether our business plans will allow us to avoid PFIC status. In addition, because the market price of the ADSs has fluctuated and is likely to fluctuate in the future and because that market price may affect the determination of whether we are a PFIC, there can be no assurance that we will not be a PFIC for any taxable year.
If we are a PFIC for a given year, and you are a U.S. Holder, then unless you make one of the elections described below, a special tax regime will apply to both (a) any “excess distribution” by us to you for the year (defined as your ratable portion of distributions in the year which are greater than 125% of the average annual distribution received by you in the shorter of the three preceding years or your holding period for the ADSs) and (b) any gain realized on the sale or other disposition (including a pledge) of the ADSs. Under this regime, any excess distribution and realized gain will be treated as ordinary income and will be subject to tax as if (i) the excess distribution or gain had been realized ratably over your holding period, (ii) the amount deemed realized in each year had been subject to tax in each year of that holding period at the highest marginal rate for such year (other than income allocated to the current period or any taxable period before we became a PFIC, which would be subject to tax at the U.S. Holder’s regular ordinary income rate for the current year and would not be subject to the interest charge discussed below), and (iii) the interest charge applicable to underpayments of tax had been imposed on the taxes deemed to have been payable in those years. In addition, the tax liability for amounts allocated to years prior to the year of disposition or “excess distribution” cannot be offset by any net operating losses for such years, and dividend distributions made to you will not qualify for the lower rates of taxation applicable to long-term capital gains discussed above under “Distributions with Respect to ADSs.”
Certain elections are available to U.S. Holders of shares that may serve to alleviate some of the adverse tax consequences of PFIC status described above. One such election is a qualified electing fund, or a QEF, election, under which you would be required to include in income on a current basis your pro rata share of our ordinary earnings as ordinary income and your pro rata share of our net capital gains as capital gain. However, we do not expect to provide to U.S. Holders the information needed to report income and gain pursuant to a QEF election, and we make no undertaking to provide such information in the event that we are a PFIC.
Under an alternative tax regime, you may also avoid certain adverse tax consequences relating to PFIC status discussed above by making a mark-to-market election with respect to your ADSs, provided that the ADSs are “marketable.” The ADSs will be marketable if they are regularly traded on certain U.S. stock exchanges, including the NYSE, or on certain non-U.S. stock exchanges. For these purposes, the ADSs will be considered regularly traded during any calendar year during which they are traded, other than in negligible quantities, on at least 15 days during each calendar quarter. U.S. Holders should be aware, however, that if we are determined to be a PFIC, the interest charge regime described above could be applied to indirect distributions or gains deemed to be attributable to U.S. Holders in respect of any of our subsidiaries that also may be determined to be a PFIC, and the mark-to-market election would not be effective for such subsidiaries.
If you choose to make a mark-to-market election, you would recognize as ordinary income or loss each year in which we are a PFIC an amount equal to the difference as of the close of the taxable year between the fair market value of your ADSs and your adjusted tax basis in your ADSs. Losses would be allowed only to the extent of net mark-to-market gain previously included by you under the election for prior taxable years. If the mark-to-market election were made, then the PFIC rules described above relating to excess distributions and realized gains would not apply for periods covered by the election. If you do not make a mark-to-market election for the first taxable year in which we are a PFIC during your holding period of the ADSs, you would be subject to interest charges with respect to the inclusion of ordinary income attributable to each taxable year in which we were a PFIC during your holding period before the effective date of such election.
A U.S. Holder who is a direct or “indirect” holder of stock of a PFIC must file United States Internal Revenue Service Form 8621 in respect of such PFIC for a taxable year in the circumstances described in the United States Treasury Regulations. If we are a PFIC for a given taxable year, you are encouraged to consult your tax advisor concerning the availability and consequences of making any of the elections mentioned above, as well as concerning your annual filing requirements.
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Medicare Tax
A United States person that is an individual or estate, or a trust that does not fall into a special class of trusts that is exempt from such tax, is subject to a 3.8% tax on net investment income in excess of certain amounts. In the case of an individual, the tax is imposed on the lesser of (1) the United States person’s “net investment income” for the relevant taxable year and (2) the excess of the United States person’s modified adjusted gross income for the taxable year over $250,000 (in the case of a taxpayer filing a joint return or a surviving spouse), $125,000 (in the case of a married taxpayer filing a separate return) or $200,000 (in any other case). In the case of an estate or trust, the tax is imposed on the lesser of (1) the entity’s “undistributed net investment income” for the taxable year and (2) the excess (if any) of the entity’s “adjusted gross income” over the dollar amount at which the highest tax bracket begins for such entity. A holder’s net investment income will include its gross dividend income and its net gains from the disposition of ADSs, unless such dividends or net gains are derived in the ordinary course of the conduct of a trade or business (other than a trade or business that consists of certain passive or trading activities). If you are a United States person that is an individual, estate or trust, you are encouraged to consult your tax advisors regarding the applicability of the Medicare tax to your income and gains in respect of your investment in the ADSs.
Information with Respect to Foreign Financial Assets
Individuals who are U.S. citizens or resident aliens, certain nonresident aliens of the United States and “specified domestic entities” that own “specified foreign financial assets” with an aggregate value in excess of certain threshold amounts are required to file an information report with respect to such assets with their tax returns. “Specified foreign financial assets” include any financial accounts maintained by foreign financial institutions, as well as any of the following, but only if they are not held in accounts maintained by financial institutions: (i) stocks and securities, including ADSs issued by non-U.S. persons, (ii) financial instruments and contracts held for investment that have non-U.S. issuers or counterparties and (iii) interests in foreign entities. In addition, under a law known as the “Bank Secrecy Act” U.S. citizens, green card holders and resident aliens, as well as domestic entities must file a FinCEN Form 114 with the Financial Crimes Enforcement Network if the aggregate value of all “foreign financial accounts” held by such person exceeds $10,000 at any time during a particular calendar year. Holders of ADSs are encouraged to consult their tax advisors regarding the application of these reporting requirements as they relate to their ownership of ADSs.
Backup Withholding Tax and Information Reporting Requirements
United States backup withholding tax and information reporting requirements apply to certain payments to certain non-corporate holders of stock. Information reporting will apply to payments of dividends on, and to proceeds from the sale or redemption of, the ADSs made within the United States, or by a United States payor or United States middleman, to a holder of the ADSs, other than an exempt recipient, including a corporation, a payee that is not a United States person that provides an appropriate certification and certain other persons. A payor will be required to withhold backup withholding tax from any payments of dividends on, or the proceeds from the sale or redemption of, ADSs within the United States, or by a United States payor or United States middleman, to a holder, other than an exempt recipient, if such holder fails to furnish its correct taxpayer identification number or otherwise fails to comply with, or establish an exemption from, such backup withholding tax requirements. Any amounts withheld under the backup withholding rules will be allowed as a refund or credit against the beneficial owner’s United States federal income tax liability, if any, provided that the required information is timely furnished to the IRS.
Material French Tax Consequences
The following is a description of the material French tax consequences of the acquisition, ownership and disposition of the ADSs by a U.S. Holder. This description is based on applicable tax laws, regulations and judicial decisions as of the date of this prospectus, and, where applicable, the Convention between the United States of America and the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, dated August 31, 1994, as amended from time to time (the “U.S. Treaty”).
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This description is based in part upon the representation of the custodian and the assumption that each obligation in the Depositary Agreement with the depositary relating to your ADRs and any related agreement will be performed in accordance with their terms.
The following is a description of the principal tax effect on U.S. Holders for the purposes of French tax if, all of the following points apply:
•the U.S. Holder owns, directly, indirectly or constructively, less than 10% of the Company capital and dividend rights;
•the U.S. Holder is entitled to the benefits of the U.S. Treaty (including under the “limitation on benefits” article of the U.S. Treaty);
•the U.S. Holder does not hold the ADSs through a permanent establishment or a fixed base in France;
•the U.S. Holder is not multi-resident;
•the U.S. Holder does not hold the ADSs through a non-U.S. based pass-through entity; and
•the U.S. Holder does not receive dividend, capital gains or other payments on the ADSs on an account located in a Non-cooperative State as defined in Article 238-0 A of the French General Tax Code and as mentioned in a list published by the French tax authorities as amended from time to time.
A U.S. Holder to whom all the above requirements apply will be hereafter defined as a Qualifying U.S. Holder.
This description is relevant only to holders of ADSs who are Qualifying U.S. Holders.
For purposes of the U.S. Treaty Qualifying, U.S. Holders of ADSs will be treated as the owners of Company’s ordinary shares represented by such ADSs.
Special rules apply to U.S. expatriates, insurance companies, pass-through entities and investors in such entities, tax-exempt organizations, financial institutions, persons subject to the alternative minimum tax and securities broker-dealers, among others. Those special rules are not discussed in this prospectus.
Holders of Company ADSs are encouraged to consult their own tax advisors as to the particular tax consequences to them of owning the ADS, including their eligibility for benefits under the U.S. Treaty, the application and effect of state, local, foreign and other tax laws and possible changes in tax laws or in their interpretation.
Taxation of Dividends
Dividends paid by a French company to corporate non-French holders are subject to a withholding tax at a rate equal to the standard corporate income tax rate (i.e., 25% as from 2023). Such withholding tax rates can be increased to 75% if the dividend is paid towards Non-cooperative States or territories (as mentioned above) irrespective of the tax residence of the beneficiary of the dividends. Such withholding tax rates may, however, be reduced or eliminated by application of a tax treaty with France.
Dividends paid by a French company to individual non-French holders are generally subject to a 12.8% withholding tax. Such withholding tax rate can be increased to 75% if the dividend is paid towards Non-cooperative States or territories (as mentioned above) irrespective of the tax residence of the beneficiary of the dividends. Such withholding tax rates may, however, be reduced or eliminated by application of a tax treaty with France.
Should the U.S. Treaty apply, the withholding tax rate may generally be limited to 15 percent of the gross amount of the dividends, provided that the income is distributed directly by the depositary to the Qualifying U.S. Holders.
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Taxation of Capital Gains
A Qualifying U.S. Holder will not be subject to any French income or withholding tax on any capital gain realized upon the sale or exchange of ADSs of the Company.
Estate and Gift Taxes
Under the Convention between the United States of America and the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Estates, Inheritance and Gifts, dated November 24, 1978 (as amended from time to time), if a U.S. Holder transfers his or her shares by gift or by reason of the U.S. Holder’s death, that transfer will not be subject to French gift or inheritance tax unless the U.S. Holder is domiciled in France at the time of making the gift or at the time of his or her death or if the shares are held for use in the conduct of a business or profession through a permanent establishment or a fixed base in France.
Wealth Tax
As of January 1, 2018, the French wealth tax namely the Impôt de Solidarité sur la Fortune (“ISF”) is replaced by the Impôt sur la Fortune Immobilière (“IFI”). The IFI generally applies to real estate assets to the extent that their net value exceeds €1,300,000. Therefore, all other movable assets (tangible assets, shares, life insurance, cash, etc.) are excluded from the tax base, unless their underlying assets (direct or indirect) consist of real estate assets or rights.
However, a general exclusion applies to real estate assets owned by companies pursuing a commercial, industrial, craft, agricultural or liberal activity when the taxpayer (together with the members of its tax household) holds directly or indirectly less than 10% of the share capital or the voting rights of the company.
As a result, Qualifying U.S. Holders will not be subject to French IFI in respect of their ownership of ADSs.
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ENFORCEMENT OF CIVIL LIABILITIES
We are a société anonyme, or limited liability corporation, organized under the laws of France. The majority of our directors and executive officers reside in France and other countries outside the U.S. A portion of our assets and of such persons’ assets are located outside the United States.
As a result, it may be difficult for investors:
•to obtain jurisdiction over us or our non-U.S. resident officers and directors in U.S. courts in actions predicated on the civil liability provisions of the U.S. federal securities laws;
•to enforce in U.S. courts judgments obtained in such actions against us or our non-U.S. resident officers and directors;
•to bring an original action in a French court to enforce liabilities based upon the U.S. federal securities laws against us or our non-U.S. resident officers or directors; and
•to enforce against us or our directors in non-U.S. courts, including French courts, judgments of U.S. courts predicated upon the civil liability provisions of the U.S. federal securities laws.
Nevertheless, a final judgment for the payment of money rendered by any federal or state court in the United States based on civil liability, whether or not predicated solely upon the U.S. federal securities laws, would be recognized and enforced in France provided that a French judge considers that this judgment meets the French legal requirements concerning the recognition and the enforcement of foreign judgments and is capable of being immediately enforced in the United States. A French court is therefore likely to grant the enforcement of a foreign judgment without a review of the merits of the underlying claim, only if (1) that judgment is enforceable in the jurisdiction of the U.S. court which rendered it, (2) that judgement was rendered by a court having jurisdiction over the dispute (the condition will be met if the dispute is clearly connected to the jurisdiction of the U.S. court and French courts did not have exclusive jurisdiction over the matter), (3) that judgment does not contravene French international public order and public policy, including the right to due process and (4) the U.S. judgment is not tainted with fraud and is not incompatible with a judgment rendered by a French court in the same matter, or with an earlier judgment rendered by a foreign court in the same matter and which has become effective in France.
In addition, French law guarantees full compensation for the harm suffered but is limited to the actual damages, so that the victim does not suffer or benefit from the situation. Such system excludes damages such as, but not limited to, punitive and exemplary damages.
As a result, the enforcement, by U.S. investors, of any judgments obtained in U.S. courts in civil and commercial matters, including judgments under the U.S. federal securities law against us or members of our board of directors, officers or certain experts named herein who are residents of France or countries other than the United States would be subject to the above conditions.
There may be doubt as to whether a French court would impose civil liability on us, the members of our board of directors, our officers or certain experts named herein in an original action predicated solely upon the U.S. federal securities laws brought in a court of competent jurisdiction in France against us or such members, officers or experts, respectively.
Finally, we have designated GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814, as our agent for service of process in the United States with respect to any action brought against us in the U.S. District Court for the Southern District of New York under the federal securities laws of the United States or of any State in the United States or any action brought against us in the Supreme Court of the State of New York in the County of New York under the securities laws of the State of New York.
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SELLING SECURITYHOLDERS
We are registering 1,603,612,940 ordinary shares (represented by up to 160,361,294 ADSs, each of which represents ten ordinary shares), that were issued to the Selling Securityholders to permit the Selling Securityholders and their respective pledgees, donees, transferees or other successors-in-interest that receive their shares after the date of this prospectus to resell or otherwise dispose of the ordinary shares (or ADSs representing such ordinary shares) in the manner contemplated under “Plan of Distribution” below.
We entered into the Equity Registration Rights Agreement with the Selling Securityholders pursuant to which we agreed to file with the SEC a registration statement on Form F-3 covering the resale of such ordinary shares (from time to time). We are registering the ordinary shares issued pursuant to the Equity Purchase Agreement in accordance with the Equity Registration Rights Agreement in order to permit the Selling Securityholders to offer ordinary shares in the form of ADSs for resale from time to time. The Equity Purchase Agreement contains customary representations and warranties.
The foregoing descriptions of the Equity Purchase Agreement and the Equity Registration Rights Agreement do not purport to be complete descriptions of the terms of the documents, and are qualified in their entirety by the terms of the definitive documents or forms thereof which have been filed with the SEC.
Ownership of the ordinary shares (or ADSs representing such shares) issued pursuant to the Equity Purchase Agreement, their respective rights to require registration of our ordinary shares under the Equity Registration Rights Agreement, their other respective rights under the Equity Purchase Agreement and as otherwise disclosed in the footnotes below, the Selling Securityholders do not have, or within the past three years have not had, any position, office or other material relationship with us. The following table sets forth the names of the Selling Securityholders, the number of ADSs beneficially owned by the Selling Securityholder as of July 7, 2025, the number of ADSs that may be offered under this prospectus and the number of ADSs beneficially owned by the Selling Securityholders assuming all of the ADSs covered hereby are sold. The number of ADSs in the column “Number of ADSs Being Offered” represents all of the ADSs that the Selling Securityholders may offer under this prospectus. The Selling Securityholders may sell some, all or none of their ADSs. We do not know how long the Selling Securityholders will hold the ADSs before selling them, and we currently have no agreements, arrangements or understandings with the Selling Securityholders regarding the sale or other disposition of any of the ADSs. The ADSs covered hereby may be offered from time to time by the Selling Securityholders.
The information set forth below is based upon information obtained from the Selling Securityholders and upon information in our possession regarding the original issuance of the ordinary shares. The percentages of shares owned after the offering are based on 142,714,545 ADSs outstanding as of July 7, 2025.
| Name of Selling Securityholder | ADSs Beneficially Owned Prior to Offering(1) | Number of ADSs Being Offered | ADSs Beneficially Owned After Offering(2) | ||||||||||||||||||||||||||
| Number | Percent | Number | Percent | ||||||||||||||||||||||||||
ADAR1 Partners, LP(3) | 2,111,892 | 1.48 | % | 2,111,892 | — | — | |||||||||||||||||||||||
Alyeska Master Fund, LP(4) | 8,214,285 | 5.76 | % | 8,214,285 | — | — | |||||||||||||||||||||||
B. RILEY SECURITIES, INC(5) | 4,928,571 | 3.45 | % | 4,928,571 | — | — | % | ||||||||||||||||||||||
B. RILEY WEALTH MANAGEMENT HOLDINGS, INC(6) | 5,339,284 | 3.74 | % | 4,107,142 | 1,232,142 | * | |||||||||||||||||||||||
B. RILEY PRINCIPAL INVESTMENTS, LLC(7) | 5,339,284 | 3.74 | % | 1,232,142 | 4,107,142 | 2.88 | % | ||||||||||||||||||||||
Bitcoin Opportunity Fund II QP, LP(8) | 170,857 | * | 170,857 | — | — | ||||||||||||||||||||||||
Bitcoin Opportunity Fund II, LP(9) | 87,891 | * | 87,891 | — | — | ||||||||||||||||||||||||
Bitcoin Opportunity Fund, LP(10) | 562,678 | * | 562,678 | — | — | ||||||||||||||||||||||||
Boothbay Absolute Return Strategies, LP(11) | 4,107,142 | 2.88 | % | 4,107,142 | — | — | |||||||||||||||||||||||
Citadel CEMF Investments Ltd(12) | 3,737,500 | 2.62 | % | 3,737,500 | — | — | |||||||||||||||||||||||
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DRW Investments LLC(13) | 7,121,456 | 4.99 | % | 8,033,096 | — | — | |||||||||||||||||||||||
EMA GARP Fund, LP(14) | 164,285 | * | 164,285 | — | — | ||||||||||||||||||||||||
Fifth Lane Partners Fund LP(15) | 205,356 | * | 205,356 | — | — | ||||||||||||||||||||||||
Hood River Small/Mid-Cap Growth Fund(16) | 959,905 | * | 959,905 | — | — | ||||||||||||||||||||||||
Hood River Small-Cap Growth Fund(17) | 14,128,740 | 9.99 | % | 22,871,803 | — | — | |||||||||||||||||||||||
Hood River International Opportunity Fund(18) | 811,148 | * | 811,148 | — | — | ||||||||||||||||||||||||
INTRACOASTAL CAPITAL LLC(19) | 410,714 | * | 410,714 | — | — | ||||||||||||||||||||||||
Jon D and Linda W Gruber Trust(20) | 657,142 | * | 657,142 | — | — | ||||||||||||||||||||||||
L1 Capital Global Opportunities Master Fund(21) | 410,713 | * | 410,713 | — | — | ||||||||||||||||||||||||
Meteora Select Trading Opportunities Master, LP(22) | 4,107,142 | 2.88 | % | 4,107,142 | — | — | |||||||||||||||||||||||
NewGen Alternative Income Fund(23) | 1,145,893 | * | 1,145,893 | — | — | ||||||||||||||||||||||||
NewGen Equity Long/Short Fund(24) | 1,016,517 | * | 1,016,517 | — | — | ||||||||||||||||||||||||
New Gen Focused Alpha Fund(25) | 468,215 | * | 468,215 | — | — | ||||||||||||||||||||||||
TIFF MultiAsset NewGen A/C I8DP(26) | 326,517 | * | 326,517 | — | — | ||||||||||||||||||||||||
POLAR MULTI-STRATEGY MASTER FUND(27) | 8,214,285 | 5.76 | % | 8,214,285 | — | — | |||||||||||||||||||||||
Prof G LLC(28) | 2,464,285 | 1.7 | % | 2,464,285 | — | — | |||||||||||||||||||||||
Rangeley Capital Partners, LP(29) | 103,499 | * | 103,499 | — | — | ||||||||||||||||||||||||
Rangeley Capital Partners II, LP(30) | 142,929 | * | 142,929 | — | — | ||||||||||||||||||||||||
Rangeley Capital Special Opportunities Fund, LP(31) | 123,214 | * | 123,214 | — | — | ||||||||||||||||||||||||
Spearhead Insurance Solutions IDF, LLC - Series ADAR1(32) | 352,392 | * | 352,392 | — | — | ||||||||||||||||||||||||
Tephra Digital Master Fund Ltd.(33) | 1,642,856 | 1.2 | % | 1,642,856 | — | — | |||||||||||||||||||||||
YA II PN, Ltd(34) | 10,232,633 | 7.17 | % | 20,535,713 | — | — | |||||||||||||||||||||||
OASIS INVESTMENTS II MASTER FUND LTD(35) | 14,128,740 | 9.99 | % | 16,230,132 | — | — | |||||||||||||||||||||||
Adam Back(36) | 8,214,285 | 5.76 | % | 8,214,285 | — | — | |||||||||||||||||||||||
Northland Securities, Inc.(37) | 1,096,304 | * | 1,096,304 | — | — | ||||||||||||||||||||||||
AFOB FIP MS, LLC(38) | 14,047,618 | 9.84 | % | 8,214,285 | 5,833,333 | 4.09 | % | ||||||||||||||||||||||
MMCAP International Inc. SPC(39) | 7,121,456 | 4.99 | % | 16,428,571 | 7,121,456 | 4.99 | % | ||||||||||||||||||||||
Moore Global Investments, LLC(40) | 4,214,284 | 2.95 | % | 2,464,285 | 1,749,999 | 1.23 | % | ||||||||||||||||||||||
Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B(41) | 5,619,045 | 3.94 | % | 3,285,713 | 2,333,332 | 1.63 | % | ||||||||||||||||||||||
__________________
*Represents beneficial ownership of less than 1%.
(1)“Beneficial ownership” is a term broadly defined by the SEC in Rule 13d-3 under the Exchange Act, and includes more than the typical form of share ownership, that is, shares held in the person’s name. The term also includes what is referred to as “indirect ownership,” meaning ownership of shares as to which a person has or shares voting or investment power. For purposes of this table, a person or group of persons is deemed to have “beneficial ownership” of any securities that such person or group has a right to acquire currently or within 60 days of July 7, 2025. The securities beneficially owned by the Selling Securityholders consist of ADSs and ADSs issuable pursuant to exercise of the Pre-Funded Warrants and Warrants, with the exercise thereof subject to the ownership limitations described therein.
(2)Assumes that the Selling Securityholder sells to third parties all ordinary shares (or ADSs representing such shares) registered under this prospectus that it holds.
(3)Includes (i) 1,836,428 ADSs and (ii) 275,464 ADSs issuable upon exercise of Warrants. ADAR1 Capital Management, LLC acts as investment adviser to, and manages investment accounts of, ADAR1 Partners, LP, and ADAR1 Capital Management GP, LLC acts as the
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general partner of ADAR1 Partners, LP. Daniel Schneeberger is the Manager of ADAR1 Capital Management, LLC and ADAR1 Capital Management GP, LLC and may be deemed to share voting and dispositive power over the shares held by ADAR1 Partners, LP. Mr. Schneeberger disclaims beneficial ownership of such securities, except to the extent of his pecuniary interest therein. The address of ADAR1 Partners, LP is 3503 Wild Cherry Drive, Building 9, Austin TX 78738.
(4)Includes (i) 7,142,857 ADSs and (ii) 1,071,428 ADSs issuable upon exercise of the Warrants. Alyeska Investment Group, L.P., the investment manager of Alyeska Master Fund, L.P. (the “Alyeska”), has voting and investment control of the securities held by the Alyeska. Anand Parekh is the Chief Executive Officer of Alyeska Investment Group, L.P. and may be deemed to be the beneficial owner of such securities. Mr. Parekh, however, disclaims any beneficial ownership of the securities held by Alyeska. The registered address of Alyeska Master Fund, L.P. is at c/o Maples Corporate Services Limited, P.O. Box 309, Ugland House, South Church Street George Town, Grand Cayman, KY1-1104, Cayman Islands. Alyeska Investment Group, L.P. is located at 77 W. Wacker, Suite 700, Chicago IL 60601.
(5)Includes (i) 4,285,714 ADSs and (ii) 642,857 ADSs issuable upon exercise of the Warrants. Andrew Moore and James Baker are the control persons of B. Riley Securities, Inc., and as such may be deemed to beneficially own these securities. The address for B. Riley Securities, Inc. is 11100 Santa Monica Blvd. Suite 800, Los Angeles, CA 90025.
(6)Includes (i) 3,571,428 ADSs and (ii) 535,714 ADSs issuable upon exercise of the Warrants. Michael Mullen is the control person of B. Riley Wealth Management Holdings Inc., and as such may be deemed to beneficially own these securities. The address for B. Riley Wealth Management Holdings Inc. is 40 S. Main Street Suite 1600, Memphis, TN 38103.
(7)Includes (i) 1,071,428 ADSs and (ii) 160,714 ADSs issuable upon the exercise of Warrants. Bryant Riley is the control person of B. Riley Principal Investments, LLC and as such may be deemed to beneficially own these securities. The address for B. Riley Principal Investments, LLC is 11100 Santa Monica Blvd. Suite 800, Los Angeles, CA 90025.
(8)Includes (i) 148,572 ADSs and (ii) 22,285 ADSs issuable upon the exercise of Warrants. Graybeard BTC Management, LLC is the general partner of Bitcoin Opportunity Fund II QP, LP. James Lavish, as managing partner of Graybeard BTC Management, LLC, has voting and investment power over the securities. The principal address of Bitcoin Opportunity Fund II QP, LP is 10624 S Eastern Avenue, Suite A #789, Henderson, Nevada 89052.
(9)Includes (i) 76,427 ADSs and (ii) 11,464 ADSs issuable upon the exercise of Warrants. Graybeard BTC Management, LLC is the general partner of Bitcoin Opportunity Fund II, LP. James Lavish, as managing partner of Graybeard BTC Management, LLC, has voting and investment power over the securities. The principal address of Bitcoin Opportunity Fund II, LP is 10624 S Eastern Avenue, Suite A #789, Henderson, Nevada 89052.
(10)Includes (i) 489,286 ADSs and (ii) 73,392 ADSs issuable upon the exercise of Warrants. Graybeard BTC Management, LLC is the general partner of Bitcoin Opportunity Fund, LP. James Lavish, as managing partner of Graybeard BTC Management, LLC, has voting and investment power over the securities. The principal address of Bitcoin Opportunity Fund, LP is 10624 S Eastern Avenue, Suite A #789, Henderson, Nevada 8905.
(11)Includes (i) 3,571,428 ADSs and (ii) 535,714 ADSs issuable upon the exercise of Warrants. Boothbay Absolute Return Strategies, LP, a Delaware limited partnership (“Boothbay”) is managed by Meteora Capital, LLC (“Meteora”).Meteora, in its capacity as the investment manager of Boothbay with respect to this investment, has the power to vote and the power to direct the disposition of all securities held by Boothbay with respect to this investment. Vikas Mittal is the Managing Member of Meteora. Each of Boothbay, Meteora, and Mr. Mittal disclaims beneficial ownership of these securities, except to the extent of any pecuniary interest therein. The address of Boothbay is 140 E 45th Street, 16th Floor, New York NY 10017.
(12)Includes (i) 3,250,000 ADSs and (ii) 487,500 ADSs issuable upon the exercise of Warrants. Citadel Advisors LLC is the portfolio manager of Citadel CEMF Investments Ltd. Citadel Advisors Holdings LP, or CAH, is the sole member of Citadel Advisors LLC. Citadel GP LLC, or CGP, is the general partner of CAH. Kenneth Griffin owns a controlling interest in CGP. Mr. Griffin, as the owner of a controlling interest in CGP, may be deemed to have shared power to vote or direct the vote of, and/or shared power to dispose or to direct the disposition over, these securities. This response is not and shall not be construed as an admission that Mr. Griffin or any of the Citadel related entities listed above is the beneficial owner of any securities of the Company other than the securities actually owned by such person (if any). The address of Citadel CEMF Investments Ltd. is c/o Citadel Enterprise Americas LLC, Southeast Financial Center, 200 S. Biscayne Blvd., Suite 3300, Miami, FL 33131.
(13)Includes (i) 6,985,301 ADSs and (ii) 1,047,795 ADSs issuable upon the exercise of Warrants. Donald R. Wilson, Jr. is the sole manager of DRW Investments LLC (“DRW Investments”) and has sole voting and dispositive power with respect to the securities held by DRW Investments. The business address of DRW Investments LLC is 540 W Madison St., Suite 2500, Chicago, IL 60661.
(14)Includes (i) 142,857 ADSs and (ii) 21,428 ADSs issuable upon the exercise of Warrants. Lawrence W. Lepard is the sole member and a manager of EMA GARP GP, LLC, which is the general partner of EMA GARP Fund, LP, and as such is deemed to indirectly beneficially own the securities that are beneficially owned by EMA GARP Fund, LP. The principal address of EMA GARP Fund, LP is Equity Management Associates, LLC c/o Venture X 4850 Tamiami Trail North, Suite 301, Naples, Florida 31103-3034.
(15)Includes (i) 178,571 ADSs and (ii) 26,785 ADSs issuable upon the exercise of Warrants. Mr. Cavan Copeland, sole managing partner of Fifth Lane Partners Fund LP, has voting and investment power over these securities. The principal address of Fifth Lane Partners Fund LP is 3300 N IH-35, Suite 380, Austin, TX 78705.
(16)Includes (i) 549,745 ADSs and (ii) 284,955 ADSs issuable upon the exercise of Pre-Funded Warrants and (iii) 125,205 ADSs issuable upon the exercise of Warrants. Erik Hirsch, Geoff Gainor and Robert Schmaltz are the control persons of Hood River Small/Mid-Cap Growth Fund and as such may be deemed to beneficially own these securities. The address for Hood River Small/Mid-Cap Growth Fund is 615 East Michigan Street, Milwaukee, WI 53202.
(17)Includes (i) 13,098,863 ADSs, (ii) 6,789,662 ADSs issuable upon the exercise of Pre-Funded Warrants and (iii) 2,983,278 ADSs issuable upon the exercise of Warrants. Erik Hirsch, Geoff Gainor and Robert Schmaltz are the control persons of Hood River Small-Cap Growth Fund and as such may be deemed to beneficially own these securities. The address for Hood River Small-Cap Growth Fund is 615 East Michigan Street, Milwaukee, WI 53202.
(18)Includes (i) 464,551 ADSs, (ii) 240,795 ADSs issuable upon the exercise of Pre-Funded Warrants and (iii) 105,802 ADSs issuable upon the exercise of Warrants. Erik Hirsch, Geoff Gainor and Robert Schmaltz are the control persons of Hood River International Opportunity Fund and as such may be deemed to beneficially own these securities. The address for Hood River International Opportunity Fund is 615 East Michigan Street, Milwaukee, WI 53202.
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(19)Includes (i) 357,143 ADSs and (ii) 53,571 ADSs issuable upon the exercise of Warrants. Mitchell P. Kopin (“Mr. Kopin”) and Daniel B. Asher (“Mr. Asher”), each of whom are managers of Intracoastal Capital LLC (“Intracoastal”), have shared voting control and investment discretion over the securities reported herein that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities reported herein that are held by Intracoastal. The address of Intracoastal is 245 Palm Trail, Delray Beach, FL 33483.
(20)Includes (i) 571,428 ADSs and (ii) 85,714 ADSs issuable upon the exercise of Warrants. The securities are directly held by the Jon D and Linda W Gruber Trust (“Gruber Trust”) and may be deemed to be beneficially owned by Jon D Gruber, as Trustee. The address of the Gruber Trust is 300 Tamal Plaza, Ste. 215, Corte Madera, CA 94925.
(21)Includes (i) 357,142 ADSs and (ii) 53,517 ADSs issuable upon the exercise of Warrants. David Feldman and Joel Arber are the Directors of L1 Capital Global Opportunities Master Fund, Ltd. As such, L1 Capital Global Opportunities Master Fund, Ltd., Mr. Feldman, and Mr. Arber may be deemed to beneficially the securities held by L1 Capital Global Opportunities Master Fund, Ltd. To the extent Mr. Feldman and Mr. Arber are deemed to beneficially own such securities, Mr. Feldman and Mr. Arber disclaim beneficial ownership of these securities for all other purposes. The principal address of L1 Capital Global Opportunities Master Fund is 161A Shedden Road, 1 Artillery Court PO Box 10085 Grand Cayman, Cayman Islands KY1-1001.
(22)Includes (i) 3,571,428 ADSs and (ii) 535,714 ADSs issuable upon the exercise of Warrants. Vikas Mittal may be deemed to have sole voting and dispositive power with respect to the securities held by Meteora Select Trading Opportunities Master, LP. Mr. Mittal disclaims beneficial ownership of these securities, except to the extent of any pecuniary interest therein. The address of Meteora Select Trading Opportunities Master, LP is 1200 N Federal Hwy, #200 Boca Raton FL 33432.
(23)Includes (i) 996,429 ADSs and (ii) 149,464 ADSs issuable upon the exercise of Warrants. The securities are held through GundyCo ITF NewGen Alternative Income Fund A/C 515-90011-21. Chris Rowan, David Dattels, and Norm Chang, the Portfolio Managers of GundyCo ITF NewGen Alternative Income Fund A/C 515-90011-21, have voting and investment control of the securities held by GundyCo ITF NewGen Alternative Income Fund A/C 515-90011-21 and may be deemed to be the beneficial owner of such securities. Mr. Rowan, Mr. Dattels and Mr. Chang disclaim any beneficial ownership of such securities. The address of GundyCo ITF NewGen Alternative Income Fund A/C 515-90011-21 is 25 King St. W, Suite 2900, Toronto, ON M5L 1G3.
(24)Includes (i) 883,928 ADSs and (ii) 132,589 ADSs issuable upon the exercise of Warrants. The securities are held through Gundyco ITF NewGen Equity Long/Short Fund A/C 515-00449-22. Chris Rowan, David Dattels, and Norm Chang, the Portfolio Managers of Gundyco ITF NewGen Equity Long/Short Fund A/C 515-00449-22, have voting and investment control of the securities held by Gundyco ITF NewGen Equity Long/Short Fund A/C 515-00449-22 and may be deemed to be the beneficial owner of such securities. Mr. Rowan, Mr. Dattels and Mr. Chang disclaim any beneficial ownership of such securities. The address of Gundyco ITF NewGen Equity Long/Short Fund A/C 515-00449-22 is 25 King St. W, Suite 2900, Toronto, ON M5L 1G3.
(25)Includes (i) 407,143 ADSs and (ii) 61,072 ADSs issuable upon the exercise of Warrants. The securities are held through Gundyco ITF NewGen Focused Alpha Fund A/C 515-90049-19. Chris Rowan, David Dattels, and Norm Chang, the Portfolio Managers of Gundyco ITF NewGen Focused Alpha Fund A/C 515-90049-19, have voting and investment control of the securities held by Gundyco ITF NewGen Focused Alpha Fund A/C 515-90049-19 and may be deemed to be the beneficial owner of such securities. Mr. Rowan, Mr. Dattels and Mr. Chang disclaim any beneficial ownership of such securities. The address of Gundyco ITF NewGen Focused Alpha Fund A/C 515-90049-19 is 25 King St. W, Suite 2900, Toronto, ON M5L 1G3.
(26)Includes (i) 283,928 ADSs and (ii) 42,589 ADSs issuable upon the exercise of Warrants. Chris Rowan, David Dattels, and Norm Chang, the Portfolio Managers of TIFF MultiAsset NewGen A/C I8DP, have voting and investment control of the securities held by TIFF MultiAsset NewGen A/C I8DP and may be deemed to be the beneficial owner of such securities. Mr. Rowan, Mr. Dattels and Mr. Chang disclaim any beneficial ownership of such securities. The address of the TIFF MultiAsset NewGen A/C I8DP is 25 King St. W, Suite 2900, Toronto, ON M5L 1G3.
(27)Includes 7,142,857 ADSs and (ii) 1,071,428 ADSs issuable upon the exercise of Warrants. The securities are held directly by Polar Multi-Strategy Master Fund (the “Polar Fund”). The Polar Fundis under management by Polar Asset Management Partners Inc. (“PAMPI”). PAMPI serves as Investment Advisor to the Polar Fund and has control and discretion over the securities held by the Polar Fund. As such, PAMPI may be deemed the beneficial owner of the shares held by the Polar Fund. PAMPI disclaims any beneficial ownership of the reported securities other than to the extent of any pecuniary interest therein. The address of Polar Fund is 16 York Street, Suite 2900,Toronto, Ontario M5J 0E6, Canada.
(28)Includes (i) 2,142,857 ADSs and (ii) 321,428 ADSs issuable upon the exercise of Warrants. Scott Galloway has voting and investment power over the securities. The principal address of Prof G LLC is 382 NE 191st Street, PMB 27287, Miami, Florida 33179-3899.
(29)Includes (i) 89,999 ADSs and (ii) 13,500 ADSs issuable upon the exercise of Warrants. Rangeley Capital, LLC is the investment manager of Rangeley Capital Partners, LP and has investment and dispositive power over the securities. Christopher DeMuth Jr. is the Managing Member of Rangeley Capital, LLC and may be deemed to have voting and investment control with respect to the securities held by these entities. Each of the parties in this footnote disclaims any beneficial ownership of the reported securities other than to the extent of any pecuniary interest the party may have therein. The business address of these entities and individuals is 3 Forest Street, New Canaan, Connecticut 06840.
(30)Includes (i) 124,286 ADSs and (ii) 18,643 ADSs issuable upon the exercise of Warrants. Rangeley Capital, LLC is the investment manager of Rangeley Capital Partners II, LP and has investment and dispositive power over the securities. Christopher DeMuth Jr. is the Managing Member of Rangeley Capital, LLC and may be deemed to have voting and investment control with respect to the securities held by these entities. Each of the parties in this footnote disclaims any beneficial ownership of the reported securities other than to the extent of any pecuniary interest the party may have therein. The business address of these entities and individuals is 3 Forest Street, New Canaan, Connecticut 06840.
(31)Includes (i) 107,143 ADSs and (ii) 16,071 ADSs issuable upon the exercise of Warrants. Rangeley Capital, LLC is the investment manager of Rangeley Capital Special Opportunities Fund, LP and has investment and dispositive power over the securities. Christopher DeMuth Jr. is the Managing Member of Rangeley Capital, LLC and may be deemed to have voting and investment control with respect to the securities held by these entities. Each of the parties in this footnote disclaims any beneficial ownership of the reported securities other than to the extent of any pecuniary interest the party may have therein. The business address of these entities and individuals is 3 Forest Street, New Canaan, Connecticut 06840.
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(32)Includes (i) 306,428 ADSs and (ii) 45,964 ADSs issuable upon the exercise of Warrants. ADAR1 Capital Management, LLC acts as subadviser to, and manages investment accounts of, Spearhead Insurance Solutions IDF, LLC - Series ADAR1. Daniel Schneeberger is the Manager of ADAR1 Capital Management, LLC and may be deemed to share voting and dispositive power over the shares held by Spearhead Insurance Solutions IDF, LLC - Series ADAR1. Mr. Schneeberger disclaims beneficial ownership of such securities, except to the extent of his pecuniary interest therein. The address for Spearhead Insurance Solutions IDF, LLC - Series ADAR1 is 3828 Kennett Pike, Suite 202, Greenville, DE 19807.
(33)Includes (i) 1,428,571 ADSs and (ii) 214,285 ADSs issuable upon the exercise of Warrants. Ryan Price and Raghav Chopra have voting and investment power over the securities. The principal address of Tephra Digital Master Fund Ltd. is 33 Irving Place, New York, New York 10003.
(34)Includes (i) 10,227,115 ADSs, (ii) 7,630,027 ADSs issuable upon the exercise of Pre-Funded Warrants and (iii) 2,678,571 ADSs issuable upon the exercise of Warrants. All investment decisions for YA II PN, Ltd. are made by Mr. Mark Angelo. The business address of YA II PN, Ltd. is 1012 Springfield Avenue, Mountainside, NJ 07092.
(35)Includes (i) 14,113,159 ADSs and (ii) 2,116,973 ADSs issuable upon the exercise of Warrants. Seth Fischer is the control person of Oasis Investments II Master Fund Ltd. (“Oasis”) and as such may be deemed to beneficially own these securities. The address for Oasis 25/F, LHT Tower, 31 Queen’s Road Central, Central, Hong Kong.
(36)Includes (i) 7,142,857 ADSs and (ii) 1,071,428 ADSs issuable upon the exercise of Warrants.
(37)Includes (i) 953,308 ADSs and (ii) 142,996 ADSs issuable upon the exercise of Warrants. Dustin Alden is the control person of Northland Securities, Inc. and as such may be deemed to beneficially own these securities. The address for Northland Securities Inc. is 150 South Fifth Street, Suite 3300, Minneapolis, MN 55402.
(38)Includes (i) 7,142,857 ADSs and (ii) 1,071,428 ADSs issuable upon the exercise of Warrants. AFO Blackberry, LLC, the managing member of AFOB FIP MS, LLC (“AFOB”), has voting and investment control of the shares held by AFOB. Mr. Fred Goldman controls AFO Blackberry, LLC and may be deemed the beneficial owner of the shares of the Company held by AFOB. The address of AFOB, AFO Blackberry, LLC, and Mr. Goldman is 1011 Lake Street, Suite 311, Oak Park, IL 60301.
(39)Includes (i) 6,985,301 ADSs, (ii) 7,300,413 ADSs issuable upon the exercise of Pre-Funded Warrants and (iii) 2,142,857 ADSs issuable upon the exercise of Warrants. MM Asset Management Inc., the investment advisor to MMCAP International Inc. SPC (“MMCAP”), has voting and investment control of the shares held by MMCAP. Mr. Matthew MacIsaac controls MM Asset Management and may be deemed the beneficial owner of the shares of the Company held by MMCAP. The address of MMCAP, MM Asset Management Inc. and Mr. MacIsaac is 2240-161 Bay st BOX 600, Toronto ON M5J 2S1.
(40)Includes (i) 2,142,857 ADSs and (ii) 321,428 ADSs issuable upon the exercise of Warrants. Moore Capital Management, LP, the investment manager of Moore Global Investments, LLC (“MGI LLC”), has voting and investment control of the shares held by MGI LLC. Mr. Louis M. Bacon controls the general partner of Moore Capital Management, LP and may be deemed the beneficial owner of the shares of the Company held by MGI LLC. Mr. Bacon also is the indirect majority owner of MGI LLC. The address of MGI LLC, Moore Capital Management, LP and Mr. Bacon is 11 Times Square, New York, New York 10036.
(41)Includes (i) 2,857,142 ADSs and (ii) 428,571 ADSs issuable upon the exercise of Warrants. Ayrton Capital LLC, the investment manager to Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B, has discretionary authority to vote and dispose of the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and may be deemed to be the beneficial owner of these shares. Waqas Khatri, in his capacity as Managing Member of Ayrton Capital LLC, may also be deemed to have investment discretion and voting power over the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B. Ayrton Capial LLC and Mr. Khatri each disclaim any beneficial ownership of these shares. The address of Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B. Ayrton Capital LLC and Mr. Khatri is 55 Post Rd. W, 2nd Fl, Westport CT 06880.
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PLAN OF DISTRIBUTION
We are registering 1,603,612,940 ordinary shares issued to the Selling Securityholders and which may be represented by up to 160,361,294 ADSs, each of which represents ten ordinary shares, to permit the Selling Securityholders and their respective pledgees, donees, transferees or other successors-in-interest that receive their shares (or ADSs representing such shares) after the date of this prospectus to resell or otherwise dispose of the shares (or ADSs representing such shares) in the manner contemplated in this section. We will not receive any of the proceeds from the sale of ordinary shares (or ADSs representing such shares) in this offering. We will bear all fees and expenses incident to our obligation to register the shares (and ADSs representing such shares). In connection with this transaction, we entered into the Equity Registration Rights Agreement with the Selling Securityholders pursuant to which we agreed to file with the SEC a registration statement on Form F-3 covering the resale of such ordinary shares from time to time. We are registering the ordinary shares issued or issuable pursuant to the Equity Purchase Agreements in accordance with the Equity Registration Rights Agreement in order to permit the Selling Securityholders to offer ordinary shares in the form of ADSs for resale from time to time.
The Selling Securityholders and any of their respective pledgees, donees, transferees, assignees or other successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of their ordinary shares (or ADSs representing such shares) or interests in any such shares on any stock exchange, market or trading facility on which the ordinary shares or ADSs are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. Each of the Selling Securityholders may use one or more of the following methods when disposing of the shares represented by ADSs or interests therein:
•on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
•in the over-the-counter market;
•ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•block trades in which the broker-dealer will attempt to sell ordinary shares (or ADSs representing such shares) as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•through brokers, dealers or underwriters that may act solely as agents;
•purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
•an exchange distribution in accordance with the rules of the applicable exchange;
•privately negotiated transactions;
•delivery of shares (or ADSs representing such shares) in settlement of short sales;
•through the writing or settlement of options or other hedging transactions entered into after the effective date of the registration statement of which this prospectus is a part, whether through an options exchange or otherwise;
•broker-dealers may agree with such Selling Securityholder to sell a specified number of ordinary shares (or ADSs representing such shares) or interests in such shares at a stipulated price per share;
•a combination of any such methods of disposition; and
•any other method permitted pursuant to applicable law.
The Selling Securityholders may also sell shares under Rule 144 under the Securities Act or other exemptions from registration under the Securities Act, if available, rather than under this prospectus.
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Broker-dealers engaged by the Selling Securityholders may arrange for other broker-dealers to participate in sales. Broker-dealers, underwriters and other agents may receive commissions or discounts from the Selling Securityholders (or, if any broker-dealer acts as agent for the purchaser of ordinary shares (or ADSs representing such shares), from the purchaser) in amounts to be negotiated. The Selling Securityholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved but any such discounts or commissions might exceed those customary in the types of transactions involved.
The Selling Securityholders may from time to time pledge or grant a security interest in some or all of the ordinary shares (or ADSs representing such shares) by them and the pledgee or other secured party, transferee or other successor in interest may sell ordinary shares (or ADSs representing such shares) from time to time under this prospectus, or under a supplement or amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of Selling Securityholders to include the pledgee, secured party, transferee or other successors in interest as Selling Securityholders under this prospectus. The Selling Securityholders also may transfer the ordinary shares (or ADSs representing such shares) in other circumstances in which case the transferees, donees, pledgees or other successors-in-interest may be the selling beneficial owners for purposes of this prospectus and may sell such ordinary shares (or ADSs representing such shares) from time to time under this prospectus after an amendment or supplement has been filed under Rule 424(b)(3) under, or another applicable provision of, the Securities Act, amending, if necessary, the list of Selling Securityholders to include the transferees, donees, pledgees or other successors-in-interest as a Selling Securityholder under this prospectus. The Equity Registration Rights Agreement provides that certain transferees of the Selling Securityholders are entitled to the benefits of such agreement, subject to the terms and conditions set forth in such agreement.
Upon being notified in writing by a Selling Securityholder that any material arrangement has been entered into with a broker-dealer for the sale of ordinary shares (or ADSs representing such shares) through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act will be filed, disclosing (i) the name of each such Selling Securityholder and of the participating broker-dealer(s), (ii) the number of ordinary shares (or ADSs representing such shares) involved, (iii) the price at which such ordinary shares (or ADSs representing such shares) were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, if applicable, and (vi) other facts material to the transaction.
A Selling Securityholder that is an entity may elect to make an in-kind distribution of ordinary shares (or ADSs representing such shares) to its members, partners or stockholders pursuant to the registration statement of which this prospectus is a part by delivering a prospectus with a plan of distribution. Such members, partners or stockholders would thereby receive freely tradeable ordinary shares (or ADSs representing such shares) pursuant to the distribution through a registration statement. To the extent a distributee is an affiliate of ours (or to the extent otherwise required by law), we may file a prospectus supplement in order to permit the distributees to use the prospectus to resell the ordinary shares (or ADSs representing such shares) acquired in the distribution. The Selling Securityholders also may transfer the ordinary shares (or ADSs representing such shares) in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The Selling Securityholders and any broker-dealers or agents that are involved in selling the ordinary shares (or ADSs representing such shares) may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. The maximum commission or discount to be received by any member of the Financial Industry Regulatory Authority, or FINRA, or independent broker-dealer will not be greater than 8% of the initial gross proceeds from the sale of any security being sold.
There can be no assurance that any Selling Securityholders will sell any or all of the ordinary shares (or ADSs representing such shares) registered pursuant to the registration statement, of which this prospectus forms a part.
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The aggregate proceeds to the Selling Securityholders from the sale of ordinary shares (or ADSs representing such shares) offered by them will be the purchase price of the shares less discounts or commissions, if any. The Selling Securityholders reserve the right to accept and, together with its agents from time to time, to reject, in whole or in part, any proposed purchase to be made directly or through agents. We will not receive any of the proceeds from this offering.
We are required to pay all fees and expenses incident to the registration of the shares, other than any underwriting fees, discounts and selling commissions, stock transfer taxes and fees and disbursements of counsel. We have agreed to indemnify each Selling Securityholder, each person who controls such Selling Securityholder and their respective officers, directors, employees, stockholders, members, representatives and affiliates in certain circumstances against certain losses, claims, damages or liabilities to which they may become subject, including certain liabilities under the Securities Act.
We have agreed with the Selling Securityholders under the Equity Registration Rights Agreement to use our commercially reasonable efforts to ensure that the ordinary shares constituting registrable shares (and any ADSs in respect of such shares) under the Equity Registration Rights Agreement are registered for sale under the Securities Act as contemplated by the Equity Registration Rights Agreement. Such obligations shall cease and terminate, with respect to such registrable shares (and any ADSs in respect of such shares), upon the earliest to occur of (a) such time when there are no registrable shares outstanding, (b) such time such registrable shares (and any ADSs in respect of such shares) (i) are freely transferable under Rule 144 and the securities laws of any other applicable jurisdiction without restrictions or conditions, without registration and without the requirement for us to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), and (ii) do not and/or shall not when issued bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP, or (c) the mutual written agreement of the Selling Securityholders and us.
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EXPENSES RELATED TO REGISTRATION
The following is a statement of expenses in connection with the registration of the ordinary shares represented by ADSs pursuant to the Equity Registration Rights Agreement. With the exception of the SEC registration fee, all amounts are estimates. The estimates do not include expenses related to offerings of ADSs by the Selling Securityholders. Each prospectus supplement describing an offering of ADSs will reflect the estimated expenses related to the offering of ADSs under that prospectus supplement.
| SEC Registration Fee | $ | 115,391 | |||
| Printing Expenses | 4,000 | ||||
| Legal Fees and Expenses | 55,000 | ||||
| Accounting Fees and Expenses | 20,000 | ||||
| Miscellaneous | 10,000 | ||||
| Total | $ | 204,391 | |||
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LEGAL MATTERS
Unless otherwise indicated in any prospectus supplement, the validity of the ordinary shares underlying the ADSs offered by this prospectus and legal matters governed by French Law will be passed upon by Archers A.A.R.P.I.
EXPERTS
The consolidated financial statements of Sequans Communications S.A appearing in Sequans Communications S.A.’s Annual Report (Form 20-F) for the year ended December 31, 2024 have been audited by Ernst & Young Audit, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements have been incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” information into this document, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this document, except for any information superseded by information in this document. This prospectus incorporates by reference the following documents that we have previously filed with the SEC:
•our Annual Report on Form 20-F for the year ended December 31, 2024 filed with the SEC on April 30, 2025; and
•our Reports of Foreign Issuer on Form 6-K furnished with the SEC on May 6, 2025, May 14, 2025, June 16, 2025, June 23, 2025, June 23, 2025, June 23, 2025, June 23, 2025, June 30, 2025 and July 8, 2025.
The documents listed above contain important information about us and our finances. The more detailed information contained in the Form 6-K and Form 20-F qualify this entire prospectus. Statements in this prospectus may modify or supersede statements in the Form 6-K and Form 20-F and therefore the modified or superseded part of the original statement is not part of this prospectus.
We incorporate by reference into this prospectus all subsequent annual reports on Form 20-F after the date of this prospectus and before we terminate this offering. We also may incorporate by reference into this prospectus our reports on Form 6-K furnished after the date of this prospectus and before we terminate this offering that we identify in the Form 6-K as being incorporated into this registration statement. We may modify or supersede any statement in this prospectus by statements in documents we incorporate by reference after the date of this prospectus. When that happens, the modified or superseded part of the original statement is not part of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but that is not delivered with the prospectus at no cost, upon written or oral request to us. We will not include exhibits to the documents that you request unless the exhibits are specifically incorporated by reference into those documents. You may make your request for any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address: Forest, 15-55 boulevard Charles de Gaulle, 92700 Colombes, France. The telephone number at this address is +33 1 70 72 16 00.
We are a foreign private issuer (as such term is defined in the Exchange Act). We are subject to the informational requirements of the Exchange Act, file our annual reports on Form 20-F, and furnish reports on Form 6-K and other information with the SEC. We have filed with the SEC a registration statement on Form F-3 to register the securities offered in this prospectus. This prospectus, which forms a part of the registration statement, does not contain all of the information included in the registration statement and its exhibits and schedules. References in this prospectus to any contract or other document are not necessarily complete and, if we filed the contract or document as an exhibit to the registration statement, you should refer to the exhibit for more information.
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Our corporate Internet address is www.sequans.com. We make available free of charge on or through our website our annual reports, current reports, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We may from time to time provide important disclosures to investors by posting them in the investor relations section of our website, as allowed by the SEC, rules. Information contained on our website is not part of this report or any other report filed with the SEC. The SEC also maintains an Internet site http://www.sec.gov that contains reports, proxy and information statements, and other information that we filed electronically.
As a foreign private issuer, we are exempt from the rules under the Exchange Act that prescribe the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. We are not currently required under the Exchange Act to publish financial statements as frequently or as promptly as are United States companies subject to, among others, Rules 13a-11, 13a-13, 15d-11 and 15d-13 promulgated under the Exchange Act. Moreover, while we have and expect to continue to submit quarterly interim consolidated financial data to the SEC under cover of the SEC’s Form 6-K, we are not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. public companies and are not required to file quarterly reports on Form 10-Q or current reports on Form 8-K under the Exchange Act. Furthermore, our ordinary shares are not listed and we do not currently intend to list our ordinary shares on any market in France, our home country. As a result, we are not subject to the reporting and other requirements of listed companies in France. For instance, we are not required to publish quarterly or semi-annual financial statements. Accordingly, there is less publicly available information concerning our company than there would be if we were a U.S. public company.
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1,171,987,620 Ordinary Shares represented by 117,198,762 American Depositary Shares
222,458,520 Ordinary Shares represented by 22,245,852 American Depositary Shares issuable upon the exercise of Pre-Funded Warrants
209,166,800 Ordinary Shares represented by 20,916,680 American Depositary Shares, or pre-funded warrants in lieu thereof, issuable upon the exercise of Common Warrants
| PROSPECTUS | ||||||||
, 2025
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
We maintain liability insurance for our directors and officers, including insurance against liabilities under the Securities Act.
Item 9. Exhibits
Exhibit Number | Description of Exhibit | |||||||
| 3.1* | ||||||||
| 4.1 | ||||||||
| 4.2 | ||||||||
| 4.3 | ||||||||
| 4.4 | ||||||||
| 5.1* | ||||||||
| 10.1* | ||||||||
| 10.2* | ||||||||
| 23.1* | ||||||||
| 23.2* | ||||||||
| 24.1* | ||||||||
| 107* | ||||||||
__________________
*Filed herewith.
Item 10. Undertakings
(a)The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by section 10(a)(3) of the Securities;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information otherwise required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering; provided, however, that a post-effective amendment need not be filed to include financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act, or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5)That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(6)That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Paris, Republic of France, on the 16th of July, 2025.
| SEQUANS COMMUNICATIONS S.A. | ||||||||||||||||||||||||||
| By: | /s/ Dr. Georges Karam | |||||||||||||||||||||||||
| Name: Dr. Georges Karam | ||||||||||||||||||||||||||
| Title: Chief Executive Officer and Chairman | ||||||||||||||||||||||||||
65
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dr. Georges Karam and Deborah Choate and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Name | Title | Date | ||||||||||||
| /s/ Dr. Georges Karam | Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | July 16, 2025 | ||||||||||||
| Dr. Georges Karam | ||||||||||||||
| /s/ Deborah Choate | Chief Financial Officer (Principal Financial Officer and Accounting Officer) | July 16, 2025 | ||||||||||||
| Deborah Choate | ||||||||||||||
| /s/ Wesley Cummins | Director | July 16, 2025 | ||||||||||||
| Wesley Cummins | ||||||||||||||
/s/ Yves Maitre | Director | July 16, 2025 | ||||||||||||
| Yves Maitre | ||||||||||||||
| /s/ Maria Marced | Director | July 16, 2025 | ||||||||||||
| Maria Marced | ||||||||||||||
| /s/ Richard Nottenburg | Director | July 16, 2025 | ||||||||||||
| Richard Nottenburg | ||||||||||||||
| /s/ Hubert de Pesquidoux | Director | July 16, 2025 | ||||||||||||
| Hubert de Pesquidoux | ||||||||||||||
| /s/ Jason Cohenour | Director | July 16, 2025 | ||||||||||||
| Jason Cohenour | ||||||||||||||
/s/ Zvi Slonimsky | Director | July 16, 2025 | ||||||||||||
| Zvi Slonimsky | ||||||||||||||
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Sequans Communications S.A. has signed this registration statement or amendment thereto in the City of Dallas, State of Texas, on July 16, 2025.
| By: | /s/ Nikhil Taluja | |||||||
| Name: Nikhil Taluja | ||||||||
| Title: Authorized Representative in the United States | ||||||||
66
Exhibit 3.1
Société Anonyme
with a share capital of €14,233,965.42
Registered office : Forest - 15-55 boulevard Charles de Gaulle – 92700 COLOMBES
Trade Register N°: 450 249 677 RCS Nanterre
B Y L A W S
As amended on July 4, 2025
Article 1 – Legal Form
The company is a “société anonyme” (French corporation) governed by corporate law, subject to specific laws governing the company and to these by-laws.
Article 2 – Company name
The company’s name is:
« SEQUANS COMMUNICATIONS ».
Article 3 – Corporate purpose
The company’s corporate purpose, in France and abroad is:
•The study, development and marketing of all products and/or services relating to radio fixed and/or optical-type communication networks systems;
•Advising and training, by all means and technical media, relating to the aforementioned fields of operations;
•The participation, directly or indirectly, in all transaction that may be related to any of the purposes defined above, through the creation of new companies or legal entities, the contribution, subscription, or purchase of securities or corporate rights, acquisition of interests, mergers, partnerships, or any other methods;
•And, more generally, all industrial, commercial, and financial transactions, or transactions involving movable or fixed assets, that may be related directly or indirectly, in whole or in part, to any of the aforementioned corporate purposes, or to any similar or related purposes, or to any and all purposes that may enhance or develop the company’s business, including, without limitation, investments (exchange, custody and access) in sovereign and non-sovereign currencies for treasury reserve purposes.
Article 4 – Registered office
The registered office is located at:
Forest - 15-55 boulevard Charles de Gaulle – 92700 COLOMBES.
The board of directors is empowered to transfer the company’s registered office, within the applicable legal and regulatory provisions.
Article 5 –Term
The company was incorporated for a term of ninety-nine years starting the day of its registration with the trade and company register, except in the cases of extension or early dissolution.
Article 6 – Share capital
The share capital is set at the amount of fourteen million two hundred thirty-three thousand nine hundred sixty-five euros and forty-two cents (EUR 14,233,965.42).
It is divided into one billion four hundred twenty-three million three hundred ninety-six thousand five hundred forty-two (1,423,396,542) shares of a par value of one Euro cent (EUR 0.01), fully paid up.
Article 7 – Changes to the capital
The share capital may be increased, decreased or amortized in accordance with applicable legal and regulatory provisions.
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Article 8 – Subscription for shares
In the event of a share capital increase, shares subscribed for cash, when applied for, shall be paid up in the minimum proportion provided for by legal and regulatory provisions. Partly paid up shares shall be registered shares until fully paid up. Payment of the remainder shall be made in one or several installments pursuant to a decision by the board of directors, within a maximum time limit of five years as of the date of the final capital increase.
Subscribers will be informed of calls for funds by certified mail with acknowledgement of receipt within fifteen days at least before the date set for each payment. Payments shall be made either at the registered office, or at any other place designated for this purpose.
Should the shareholder fail to pay by the date set by the board of directors, any amounts due shall bear interest, ipso jure, at the legal rate of interest, as of the due date for payment, without prejudice to other statutory proceeding and penalties. In particular, the company may force the sale of the securities that have not been paid up.
Article 9 – Legal forms of the shares
Shares are in registered form and shall be registered in an individual share account as provided by legal and regulatory provisions.
Article 10 – Indivisibility of the shares
Shares shall be indivisible with respect to the company. Joint owners of indivisible shares shall be represented at shareholders’ general meetings by one of them or by a joint agent of their choice. Failing their agreement on the choice of an agent, such an agent is appointed by the courts of justice ruling in interim proceedings at the request of the co-owner who is in the greatest hardship.
The voting rights attached to the share shall belong to the beneficial-owner at ordinary shareholders’ meetings, and to the bare-owner at extraordinary shareholders’ general meetings.
Article 11 – Transfer and passing of the shares
Shares are freely negotiable.
They shall be transferred by means of a transfer order from account to account in accordance with the legal and regulatory provisions.
The shares can be leased out or lent with respect to the applicable legal and regulatory provisions.
Article 12 – Rights and obligations of the shares
Each share shall entitle its holder to a portion of the corporate profits and assets pro rata with respect to the amount of capital it represents.
Furthermore, each share shall entitle its holder to vote and be represented in the shareholders’ general meetings in accordance with legal rules and the provisions of these by-laws. Ownership of one share implies, ipso jure, adherence to the by-laws and the decisions of the shareholders’ general meeting.
Shareholders shall be liable for losses within the limits of their contributions to the company’s capital.
The heirs, creditors, legal beneficiaries and other representatives of a shareholder may not place liens on the property or securities of the company, nor request the division or the public sale, nor interfere in the administration of the company. For the proper exercise of their right, they shall refer to the corporate records and to the decisions of the shareholders’ meetings.
At times when the ownership of several shares is necessary in order to exercise any right as in an exchange, grouping or allocation of shares, or as a consequence of a capital increase or decrease, merger or other corporate operation, the owner of isolated shares, or fewer shares than the required
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amount, may only exercise the particular right on condition that the shareholder personally takes the required steps to group or, if applicable, purchase or sell the number of requisite shares.
Article 13 – Organization and functioning of the board of directors
1 – Composition
The company is managed by a board of directors comprised of no more than 9 members, appointed by the shareholders’ meeting and that may be individuals or legal entities.
Directors that are legal entities shall designate a permanent legal representative when nominated. This legal representative will be subject to the same conditions and obligations and will be subject to the same civil and criminal liability as if he were director under his own name, without prejudice of the liability in solidum of the legal entity he represents. His mandate as director is for the same term as the mandate given to the legal entity he represents and must be renewed at each renewal of the legal entity’s mandate.
When the legal entity dismisses its representative, it must notify this dismissal to the company without delay, by certified mail and appoints, following the same procedure, a new permanent legal representative; the same rule applies in case of the death or resignation of the permanent legal representative.
2 – Term of office – renewal and rotation
The term of office for directors shall be three years, expiring at the end of the shareholders’ general meeting approving the accounts of the last fiscal years and held on the year of expiration of the mandate.
Directors can always be re-elected.
3 – Vacancy – Cooptation
In the event of vacancy, as a result of death or by resignation, of one or more seats of directors, the board of directors may, between two general meetings, make appointments on a provisional basis.
However, if the number of directors in function is less than the minimum required by legal and regulatory provisions, a general meeting will be convened with respect to applicable legal and regulatory provisions in order to complete the number of directors.
The provisional elections made by the board of directors will be subject to ratification by the next general meeting. In case of failure of ratification, the resolutions adopted and the acts accomplished by the board of directors will remain valid.
The director appointed as a replacement of another remains in the office only for the remaining time of his predecessor’s mandate.
4 – Remuneration
The shareholders’ meeting shall set the directors’ attendance fees. The board of directors, after express deliberation, shall be free to distribute this remuneration among the directors, subject to applicable legal and regulatory provisions.
Costs incurred by directors during their terms of office shall be reimbursed by the company against documentary evidence.
5 – Observers
The board of directors may appoint one or more observers chosen from among the shareholders, whether individuals or legal entities, or from outside their number.
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Their terms of office shall be set by the board of directors, but shall not exceed two years and shall expire at the next general meeting approving the accounts of the last fiscal year and held on the year of expiration of the mandate. Observers can always be re-elected.
The board of directors may terminate their appointment at any time without cause nor indemnity.
In the event of an observer’s death, dismissal or surrender of office for any other reason, the board of directors may appoint a replacement for the remainder of said observer’s term office.
Observers are called to assist as observers at board of directors’ meetings and may be consulted by it or its chairman. They may not vote on the board of directors’ resolutions.
Article 14 – Chairman of the board of directors
The board of directors shall elect its chairman from among its members who are individuals. The chairman shall be elected for the entire duration of his office as director and may be re-elected.
The Chairman of the Board of Directors is subject to the age limit of seventy-two. If this limit is reached during office, the chairman of the board of directors shall be considered as having resigned from office at the end of the general meeting approving the accounts of the last fiscal year when the age limit was reached.
The board of directors determines the chairman’s remuneration.
Article 15 – Board meetings
1 – The board of directors shall convene as often as the company’s interest so require, pursuant to notice from the chairman.
The notice to convene must be given at least three days in advance by letter, telegram, telex or fax. It must contain the agenda. In the event of an emergency meeting, the notice may be given immediately and by any means, including orally.
The meeting shall take place at the company’s registered office or at any other place indicated in the notice to convene.
2 – The board may not validly deliberate unless a quorum of at least half of its members are present, or, as the case may be, deemed to be present as provided for under the internal charter of the board of directors set in accordance with applicable legal and regulatory provisions.
Any director may give, by letter, telegram, telex or fax, a proxy to one of his colleagues in order to represent him at a meeting of the board of directors, but each director may only represent one of his colleagues.
Decisions will be taken by a majority of members present, deemed to be present, or represented. In the event of a tie vote, the chairman of the meeting shall cast the deciding vote.
3 – An attendance sheet shall be kept which must be signed by the directors at the board meeting and record, as the case may be, the participation of directors by means of videoconferencing or telecommunications.
4 – Board decisions shall be recorded in minutes drawn up in compliance with applicable legal provisions and signed by the chairman of the meeting and one director or, if the chairman of the meeting is unable to attend, by two directors. Copies or extracts of the minutes may be certified by the chairman of the board of directors, the chief executive officer, the delegated managing director, the director temporarily delegated to the duties of chairman or the holder of a power of attorney duly authorized for this purpose.
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Article 16 – Powers of the board of directors
The board of directors shall determine the strategy of the company’s activities and shall ensure its implementation. Subject to the powers expressly granted to the shareholders’ meetings, and within the scope of the company’s corporate purpose, the board shall take up all questions related to the management of the company and shall settle all related business through its deliberations.
The company shall be bound also by actions of the board of directors which do not fall within the corporate purpose, unless it proves that the third party knew such action was outside the limits of this purpose, or that the third party could not fail to be aware of this in view of the circumstances.
The board of directors carries out the controls and verifications it considers appropriate. All directors must receive all the necessary information in order to accomplish their task and may review all documents they consider useful.
Article 17 – Powers of the chairman of the board of directors
The chairman of the board of directors shall organize and direct the board’s work, which he shall report on to the general meeting. He shall ensure the proper functioning of the company’s governing bodies and shall ensure, in particular, that the directors are able to carry out their duties.
In case of a temporary unavailability or death of the chairman, the board of directors may delegate the powers of the chairman to a director. In case of a temporary unavailability, this delegation is granted for a limited duration and is renewable. In case of death, it is granted until the appointment of the new chairman.
Article 18 – General management
1 – Choice between two methods of conducting General Management
General management of the company shall be assumed under the responsibility of either the chairman of the board of directors or by another person appointed by the board and with the title of chief executive officer. The board of directors shall decide between these two methods of conducting general management, and shall duly inform the shareholders and third parties according to the applicable regulatory conditions.
When the general management of the company is assumed by the chairman of the board of directors, the provisions set forth above relating to the chief executive officer shall apply to him.
2 – Chief executive officer
The chief executive officer shall be nominated amongst the directors or from outside their number. The board of directors shall set his term of office and his remuneration. The chief executive officer is subject to the age limit set out by the applicable legal and regulatory provisions. If the age limit is reached during office, the chief executive officer shall be considered as having resigned from office at the next general meeting approving the accounts of the last fiscal year and held the year the limit was reached.
The chief executive officer may be dismissed at any time by the board of directors. If the dismissal is decided without fair grounds, it may give rise to damages, except if the chief executive officer is the chairman of the board of directors.
The chief executive officer shall be granted the widest powers to act in any manner on behalf of the company in all circumstances. He shall exercise his powers within the limits of the corporate purpose subject to the powers expressly attributed by legal and regulatory provisions to shareholders’ meetings and to the board of directors.
The chief executive officer shall represent the company in its relations with third parties. The company shall be bound also by actions of the chief executive officer which do not fall within the scope of the corporate purpose, unless its proves that the third party knew such action was outside of the limits of
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this purpose, or that the third party could not fail to be aware of this in view of the circumstances, it being specified that the mere publication of the by-laws does not constitute such proof.
The provisions of the by-laws or the resolutions of the board of directors limiting the powers of the chief executive officer are unenforceable against third parties.
3 – Deputy chief executive officer
Upon proposal of by the chief executive officer, the board of directors may appoint one or more individuals with the title of deputy chief executive officer and determine his remuneration in order to assist the chief executive officer.
The maximum number of deputy chief executives may not exceed five.
Deputy chief executives may be dismissed at any time by the board of directors upon proposal of the chief executive officer. If the dismissal is decided without fair grounds, it may give rise to damages.
If the chief executive officer ceases to exercise, or is prevented from carrying out his duties, the deputy chief executive officers shall, except when otherwise decided by the board of directors, remain in office and retain their duties until appointment of the new chief executive officer.
In agreement with the chief executive officer, the board of directors shall determine the scope and term of the powers granted to the deputy chief executive officers. With respect to third parties, the deputy chief executives shall have the same powers as the chief executive officer.
The age limit applicable to the chief executive officer also applies to the deputy chief executive officers.
Article 19 – Statutory auditors
The company’s account shall be audited by one or several statutory auditors appointed in accordance with legal and regulatory provisions and carrying out their duties in accordance therewith.
Article 20 – Shareholders’ meetings
1 – Shareholders’ meetings are convened and deliberate in accordance with legal and regulatory provisions and carry out their duties in accordance therewith.
Meetings are held at the company’s registered offices or at any other location indicated in the notice to convene.
2 – Any shareholder has the right to attend general meetings and to participate to the resolutions personally or through a proxy, by simple justification of his identity and no matter how many shares he owns as soon as the shares are paid up in accordance with applicable legal and regulatory provisions and that the shareholder justifies his shares are registered within the company’s books at least three days before the meeting.
Shareholders may only be represented by their spouse or another shareholder and for this purpose, the proxy must prove his mandate.
Shareholders may participate in general meetings by means of videoconferences or telecommunications in accordance with legal and regulatory requirements. The means of telecommunications authorized will be mentioned in the notice to convene.
3 – Shareholders’ general meeting shall be chaired by the chairman of the board of directors or, in his absence, by a director appointed for this purpose by the board of directors, failing which the shareholders’ general meeting itself shall elect its chairman.
4 – The minutes shall be prepared, and copies or excerpts of the deliberations shall be issued and certified as required by legal and regulatory provisions.
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Article 21 – Financial year
The financial year is twelve months, beginning January 1 ending December 31 of each year.
Article 22 – Annual accounts – Allocation of results
The board of directors shall keep proper accounts of corporate activities and draw up annual and consolidated accounts, in accordance with applicable legal and regulatory provisions, regulations and standards.
The income statement, which summarizes the income and expenses for the financial year, shows, after deduction of amortization and provisions, the profit or loss for the year.
5% is set aside from the earnings for the financial year minus previous losses, if any, to fund the legal reserve. This withdrawal ceases to be mandatory when the reserve reaches one-tenth of the share capital and resumes when, for any reason, the legal reserve falls below the one tenth figure.
Distributable profits consist of the profits for the year, less prior losses, plus the amounts to be placed in reserves as required by legal and regulatory provisions or by the by-laws, plus retained earnings. The shareholders’ meeting may withdraw from these earnings any sum it deems appropriate to allocate any optional reserves or to carry forward to the next financial year.
Moreover the shareholders’ general meeting may decide to distribute sums taken from reserves at its disposal, expressly indicating the reserve items from which such withdrawals are made. Dividends shall however first be taken from the distributable earnings for the year.
Except in the case of a capital decrease, no distribution may be made to shareholders when shareholders’ equity is or would, as a result of such distribution, be less than the amount of capital plus reserves which legal and regulatory provisions or the by-laws prohibit from being distributed. The re-evaluation variance may not be distributed and may be incorporated, in whole or in part, into the capital.
Article 23 – Payment of dividends
The terms and conditions for the payment of the dividends approved by the shareholders’ general meeting are determined by the shareholders’ meeting, or in lieu, by the board of directors. However, cash dividends must be paid within a maximum of nine months after the close of the financial year, unless extended by court order.
The ordinary shareholders’ general meeting may grant each shareholder, for all or part of the dividends to be distributed, an option between payment of the dividends in cash or in shares, subject to legal requirements.
Interim dividends may be distributed before the approval of the financial statements for the year when the balance sheet established during or at the end of a financial year and certified by an auditor, shows that the company has made a profit since the close of the last financial year, after recognizing the necessary depreciation and provisions and after deducting prior losses, if any, and the sums to be allocated to reserves, as required by legal and regulatory provisions or the by-laws, and including any retaining earnings. The amount of such interim dividends may not exceed the amount of the profit so defined.
Dividends not claimed within five years after the payment date shall be deemed to expire.
Article 24 – Liquidation
Subject to the applicable legal provisions, the company shall be in liquidation from the time of its winding-up, however brought about. The general meeting of shareholders shall then decide on the method of liquidation and appoint the liquidators. The legal entity of the company shall continue for the purposes of liquidation, until its definitive closure.
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Article 25 – Disputes
All disputes which may arise during the company’s existence or its liquidation either between the shareholders and the company or among the shareholders themselves, concerning the business of the company or the interpretation or implementation of these by-laws will be submitted to the jurisdiction of the relevant courts located in the jurisdiction where the company’s registered office is located.
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Exhibit 5.1
Execution Version
ARCHERS
| Archers A.A.R.P.I. | ||
| 28 rue Dumont d’Urville | ||
| 75116 Paris | ||
| France | ||
| Siren: 509 676 316 | ||
| T: +33 (0)1 45 02 07 07 | ||
| F: +33 (0)1 45 02 07 08 | ||
| archers.fr | ||
July 16th, 2025
Sequans Communications S.A.
Forest, 15-55 boulevard Charles de Gaulle,
92700 Colombes, France
Re: Registration Statement on Form F-3 of Sequans Communications S.A.
Ladies and Gentlemen,
We have acted as special French counsel to Sequans Communications S.A., a société anonyme incorporated in the French Republic, registered with the Nanterre Registry of Commerce and Companies under number 450 249 677 R.C.S. Nanterre (the “Company”) and have examined the Registration Statement on Form F-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”) in relation to the proposed resale or other disposition by the Selling Securityholders identified in the “Selling Securityholders” section of this prospectus, or any of their transferees or other successors-in-interest, of 1,603,612,940 of our ordinary shares represented by 160,361,294 American Depositary Shares, or ADSs, consisting of: (i) 1,171,987,620 ordinary shares represented by 117,198,762 ADSs (the “Shares”), (ii) 222,458,520 ordinary shares represented by 22,245,852 ADSs (the “Pre-Funded Warrant Shares”) issuable upon the exercise of pre-funded warrants (the “Pre-Funded Warrants”), and (iii) 209,166,800 ordinary shares represented by 20,916,680 ADSs (the “Warrant Shares”), or Pre-Funded Warrants in lieu thereof, issuable upon the exercise of common warrants (the “Warrants”).
1
ARCHERS
The offering of Shares, Pre-Funded Warrant Shares and Warrant Shares (collectively, the “Securities”) is set forth in the prospectus contained in the Registration Statement (the “Prospectus”), as supplemented by one or more supplements to the Prospectus.
In connection with the preparation and filing of the Registration Statement, we have been asked to provide opinions on certain matters, as set out below. We have taken instruction in this regard solely from the Company.
Based on the foregoing and subject to further limitations, qualifications and assumptions and to any matters not disclosed to us, we are of the opinion that the Securities have been or will be validly issued and are or will be fully paid up, non-assessable and may be freely traded (librement négociable), (for the purposes of this opinion, the term “non-assessable”, which has no recognized meaning under French law, shall mean that no present or future holder of the Securities will be subject to personal liability, by reason of being such a holder, for additional payments or calls for further funds by the Company or any other person after the issuance of the Securities).
For the purpose of this opinion, we have assumed that: (i) the Registration Statement, and any amendments thereto, will have become effective under the Securities Act (and will remain effective at the time of issuance of any Securities thereunder); (ii) any prospectus supplement, to the extent required by applicable law and the relevant rules and regulations of the Commission will be timely filed with the Commission; (iii) the resolutions authorizing the Company to issue and offer the Securities as adopted by the extraordinary shareholders’ meeting and/or, the Board of Directors, as applicable, will be in full force and effect at all times at which the Securities are issued and offered by the Company; (iv) the definitive terms of the Securities have been established in accordance with the authorizing resolutions adopted by the extraordinary shareholders’ meeting and/or the Board of Directors, as applicable, the Company’s by-laws and applicable law; (v) the Company will issue and deliver the Securities in the manner contemplated in the Registration Statement and the amount of Securities issued will remain within the limits of the then authorized but unissued amounts of such Securities; (vi) all Securities will be issued in compliance with applicable securities and corporate law; (vii) any deposit agreement, warrant agreement, subscription contract agreement will constitute a valid and binding obligation of each party thereto; (viii) we do not undertake or accept any obligation to update this opinion to reflect subsequent changes in French law or factual matters arising after the date of effectiveness of the Registration Statement; (ix) this opinion is subject to any limitationarising from ad hoc mandate (mandat ad hoc), conciliation (conciliation), accelerated safeguard (sauvegarde accélérée), accelerated financial safeguard (sauvegarde financière accélérée), safeguard (sauvegarde), judicial reorganisation (redressement judiciaire), judicial liquidation (liquidation judiciaire) (including a provision that creditors' proofs of debts denominated in foreign currencies would be converted into euros at the rate applicable on the date of the court decision instituting the accelerated safeguard (sauvegarde accélérée), the accelerated financial safeguard (sauvegarde financière accélérée), the safeguard (sauvegarde), the judicial reorganisation (redressement judiciaire) and the judicial liquidation (liquidation
2
ARCHERS
judiciaire) proceedings), insolvency, moratorium and other laws of general application affecting the rights of creditors; and (x) notice of any change affecting the status of the Company may not be filedimmediately with the Registre du commerce et des sociétés and as a consequence may not immediately appear on an extrait K-bis. It should also be noted that the opening of ad hoc mandate (mandat ad hoc) or conciliation (conciliation) proceedings never appears on such document.
We have examined the instruments, documents and records which we deemed relevant and necessary for the basis of our opinions hereinbefore expressed. In such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; and (iii) the truth, accuracy, and completeness of the information, representations, and warranties contained in the records, documents, instruments, and certificates we have reviewed.
We are members of the Paris Bar and this opinion is limited to the laws of the French Republic and we do not express any opinion as to the effect of any other laws. This opinion is subject to the sovereign power of the French courts to interpret the facts and circumstances of any adjudication. This opinion is given on the basis that it is to be governed by, and construed in accordance with, the laws of the French Republic.
This opinion is addressed to you solely for your benefit in connection with the Registration Statement. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or quoted or referred to in any public document (other than the Registration Statement) or filed with anyone without our prior written express consent.
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ARCHERS
We hereby consent to the filing with the Commission of this opinion as Exhibit 5.1 to the Registration Statement, and to the reference to Archers A.A.R.P.I. under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder, nor do we thereby admit that we are “experts” within the meaning of such term as used in the Securities Act with respect to any part of the Registration Statement, including this opinion letter as an exhibit or otherwise.
Yours faithfully,
/s/ ARCHERS A.A.R.P.I.
ARCHERS A.A.R.P.I.
Mark Richardson
4
Exhibit 10.1
Execution Version
SEQUANS COMMUNICATIONS S.A.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is made as of June 22, 2025, by and between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and each purchaser listed on the signature pages hereto (each, a “Purchaser” and collectively, the “Purchasers” and together with the Company, the “Parties” and each a “Party”).
RECITALS
WHEREAS, each Purchaser desires to subscribe from the Company and the Company desires to issue without preferential subscription rights to specified categories of investors (a) (i) Ordinary Shares (as defined below) represented by ADSs (collectively, the “Shares”) and/or (ii) pre-funded warrants, each such pre-funded warrant to purchase ten (10) Ordinary Shares represented by one (1) ADS (as exercised, collectively the “Warrant Shares”) (the “Pre-Funded Warrants”) whose terms and conditions (the “Terms and Conditions of the Pre-Funded Warrants”) are attached hereto as Exhibit D, and (b) an accompanying common warrant, each such accompanying common warrant to purchase ten (10) Ordinary Shares represented by one (1) ADS or one additional Pre-Funded Warrant at the election of the holder thereof (as exercised, including the Ordinary Shares underlying any such additional Pre-Funded Warrants, collectively the “Common Warrant Shares”) (the “Common Warrants”) whose terms and conditions (the “Terms and Conditions of the Common Warrants”) are attached hereto as Exhibit E, pursuant to the fifteenth resolution (the “Resolution”) of the combined general meeting of the shareholders of the Company to be held on June 30, 2025 (the “General Meeting”). As used herein, “Ordinary Shares” means the ordinary shares, nominal value €0.01 per share, of the Company, “ADS” means an American Depositary Share each representing the number of Ordinary Shares specified pursuant to the Deposit Agreement (as defined below), “Underlying Shares” means the Ordinary Shares underlying the Shares, “Underlying Warrant Shares” means the Ordinary Shares underlying the Warrant Shares and “Underlying Common Warrant Shares” means the Ordinary Shares underlying the Common Warrant Shares; and the Shares, the Pre-Funded Warrants, the Warrant Shares, the Common Warrants, the Common Warrant Shares, the Underlying Shares, the Underlying Warrant Shares and the Underlying Common Warrant Shares are referred to herein as the “Securities”; the “sale” of any Shares, Warrant Shares or Common Warrant Shares or any similar or analogous expressions shall, unless the context otherwise requires, be understood to include the allotment and issue by the Company of the Underlying Shares, the Underlying Warrant Shares or the Underlying Common Warrant Shares, as applicable, to the Depositary (as defined below), or its nominee, and the Company procuring the issue of ADSs representing such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares by the Depositary or its nominee to the Purchaser; and the “purchase”, or “payment” for, of any Shares, Warrant Shares or Common Warrant Shares or any similar or analogous expressions shall, unless the context otherwise requires, be understood to refer to the subscription for the Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable, as well as deposit of the Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable, for ADSs representing such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable, and the payment of the subscription
[Signature page to Securities Purchase Agreement]
moneys in respect of such Underlying Shares, Underlying Warrant Shares or Underlying Common Warrant Shares, as applicable;
WHEREAS, the Company will use the net proceeds of the sale of Securities to permit the Company or any of its Subsidiaries that is a Guarantor (as defined in the Debenture Purchase Agreement) to purchase Bitcoin, and for general corporate purposes associated with purchasing Bitcoin;
WHEREAS, the Company has engaged Northland Capital Markets, Yorkville Securities LLC and B. Riley Securities as its placement agents (the “Placement Agents”) for the offering of Securities;
WHEREAS, on the Closing Date (as defined below), the Company and each Purchaser will enter into a registration rights agreement in the form attached as Exhibit A hereto (the “Registration Rights Agreement”), which provides certain rights to each Purchaser relating to the Company and the Securities; and
WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company is selling in a private offering notably to persons reasonably believed to be either (i) “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) or (ii) institutional “accredited investors” (“IAI”) within the meaning of Rule 501(a) of Regulation D (“Regulation D”) under the Securities Act, in each case pursuant to an exemption from registration pursuant to Section 4(a)(2) of the Securities Act (the “Convertible Debt Financing”) Secured Convertible Debentures (the “Debentures”).
NOW THEREFORE, on and subject to the terms hereof, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
The terms defined in this Article I (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings specified in this Article I. The terms defined in this Article I include the plural as well as the singular.
“ADS” shall have the meaning specified in the recitals.
“Affiliates” shall have the meaning specified in Section 3.4.
“Agreement” shall have the meaning specified in the preamble.
“Bitcoin” means the Digital Asset commonly referred to as “Bitcoin” (BTC) in the cryptocurrency marketplace.
“Business Day” shall mean any day other than a Saturday, a Sunday, or any other day on which banks in New York City or Paris are authorized or required by law or other governmental action to be closed.
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“Closing” shall have the meaning specified in Section 2.2.
“Closing Date” shall have the meaning specified in Section 2.2.
“Common Warrants” shall have the meaning specified in the recitals.
“Common Warrant Shares” shall have the meaning specified in the recitals.
“Company” shall have the meaning specified in the preamble.
“Company Reports” shall have the meaning specified in Section 4.1.
“Convertible Debt Financing” shall have the meaning specified in the recitals.
“Debentures” shall have the meaning specified in the recitals.
“Debenture Purchase Agreement” shall mean the Secured Convertible Debenture Purchase Agreement, dated June 22, 2025, by and between the Company, the Buyers a party thereto, and Hudson Bay PH XVI Ltd., as collateral agent.
“Deposit Agreement” shall have the meaning specified in Section 5.1.
“Depositary” shall have the meaning specified in Section 5.1.
“Disclosure Document” shall have the meaning specified in Section 9.2
“EY” shall have the meaning specified in Section 4.9.
“Enforceability Exceptions” shall have the meaning specified in Section 3.2.
“Environmental Laws” shall have the meaning specified in Section 4.20.
“Evaluation Date” shall have the meaning specified in Section 4.24.
“Exchange Act” shall have the meaning specified in Section 3.4.
“General Meeting” shall have the meaning specified in the recitals.
“IAI” shall have the meaning specified in the recitals.
“IFRS” shall have the meaning specified in Section 4.10.
“Intellectual Property Rights” shall have the meaning specified in Section 4.21.
“Knowledge” shall have the meaning specified in Section 4.12.
“Material Adverse Effect” shall have the meaning specified in Section 4.2.
“Material Contract” shall have the meaning specified in Section 4.14.
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“Material Permits” shall have the meaning specified in Section 4.13.
“OFAC” shall have the meaning specified in Section 4.23.
“Ordinary Shares” shall have the meaning specified in the recitals.
“Party” or “Parties” shall have the meaning specified in the preamble.
“Per Share Issue Price” means $1.40.
“Person” shall have the meaning specified in Section 4.23.
“Pre-Funded Warrants” shall have the meaning specified in the recitals.
“Purchase” shall have the meaning specified in Section 2.2.
“Purchaser” shall have the meaning specified in the preamble.
“QIB” shall have the meaning specified in the recitals.
“Registration Rights Agreement” shall have the meaning specified in the recitals.
“Regulation D” shall have the meaning specified in Section 3.3.
“Resolution” shall have the meaning specified in the recitals.
“Sanctions” shall have the meaning specified in Section 4.23.
“SEC” shall have the meaning specified in Section 3.8.
“Securities” shall have the meaning specified in the recitals.
“Securities Act” shall have the meaning specified in Section 3.3.
“Shares” shall have the meaning specified in the recitals.
“Short Sales” shall have the meaning specified in Section 3.7.
“Subsidiary” shall have the meaning specified in Section 4.2.
“Transaction Documents” shall mean collectively, this Agreement, the Pre-Funded Warrant, the Common Warrant, the Registration Rights Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Underlying Common Warrant Shares” shall have the meaning specified in the recitals.
“Underlying Shares” shall have the meaning specified in the recitals.
“Underlying Warrant Shares” shall have the meaning specified in the recitals.
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“Warrant Shares” shall have the meaning specified in the recitals.
ARTICLE II
SUBSCRIPTION AND PURCHASE OF SECURITIES
Section 2.1 Issuance and Purchase of the Securities.
(a) Subject to the terms set forth in this Agreement, at the Closing (as defined herein), the Company agrees to issue to each Purchaser, and each Purchaser, severally and not jointly, agrees to subscribe for and purchase from the Company on the Closing Date (as defined below) the number of Shares and accompanying Common Warrants set forth on such Purchaser’s signature page hereto at the Per Share Issue Price (as defined below); provided, however, that to the extent that a Purchaser so elects by indicating such election to the Company in writing prior to their issuance, to purchase Pre-Funded Warrants in lieu of Shares in such manner to result in the same aggregate number of Shares (including Warrant Shares and Common Warrant Shares, if any) purchased by such Purchaser. In each case, the election to receive Pre-Funded Warrants is solely at the option of each Purchaser.
(b) Under the terms of its Resolution, the General Meeting is expected to approve, on June 30, 2025, a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital with subscriptions reserved to specific categories of investors including (i) QIBs or (ii) IAIs (the “Reserved Issuances”).
Section 2.2 Closing; Delivery of Securities.
(a) The closing (the “Closing”) of the Reserved Issuances of and subscription for the Securities (the “Purchase”) shall occur on a date no later than two (2) Business Days after the date that the conditions to Closing set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing) are satisfied or waived, or at such other time as the Company and each Purchaser mutually agree upon, orally or in writing (the date the Closing occurs, the “Closing Date”), upon the physical or electronic exchange among the Parties and their counsel of all documents and deliverables required under this Agreement.
(b) At the Closing, each Purchaser, severally and not jointly, shall deliver or cause to be delivered to the Company:
(1) a duly completed and signed subscription form for the Shares and accompanying Common Warrants and/or for the Pre-Funded Warrants and accompanying Common Warrants in the form attached hereto as Exhibit B in which the Purchaser will provide the accounts (i) from which the Aggregate Purchase Price (as set forth on such Purchaser’s signature page hereto) will be wired to the account of the Company, opened in the books of Société Générale, (ii) if applicable, from which part of the aggregate subscription price will be wired to the account of the Company opened in the books of BNP Paribas, and (iii) the securities account to be credited by the Depositary with the Shares to be issued instead of the Underlying Shares being purchased by such Investor; and
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(2) (x) the amount, to the “augmentation de capital” bank account opened in the books of Société Générale, in the name of the Company, for the Shares, equal to the portion of the Purchaser’s Aggregate Purchase Price applicable to the Shares (as set forth on such Purchaser’s signature page hereto) and, as applicable, (y) the amount to the dedicated bank account opened in the books of BNP Paribas, in the name of the Company, for the Pre-Funded Warrants and the accompanying Common Warrants registered in the name of such Purchaser to purchase up to a number of Warrant Shares and Common Warrant Shares equal to the portion of the Purchaser’s Aggregate Purchase Price applicable to the Pre-Funded Warrants (as set forth on such Purchaser’s signature page) divided by the Per Share Issue Price minus 0.01 Euro, with an exercise price equal to 0.01 Euro per Share, subject to adjustment therein (in each case, in accordance with wire instructions provided by the Company at least three (3) Business Days prior to the Closing);
provided, however, in the event the Closing does not occur within five Business Days of such Purchaser funding its Aggregate Purchase Price to the Company as set forth above, the Company shall promptly (but not later than one Business Day thereafter) return the previously wired amounts to such Purchaser by wire transfer of United States dollars in immediately available funds to the account specified by such Purchaser.
(c) At the Closing, the Company shall do the following with respect to each Purchaser:
(1) subject to and upon receipt of the aggregate subscription amount of the Reserved Issuances on the Closing Date and, for the Underlying Shares only, of the issuance of the depositary certificate (certificat du dépositaire des fonds) required by Article L. 225-146 of the French Commercial Code by Société Générale, issue an aggregate amount of Underlying Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants, as applicable, and set forth on such Purchaser’s signature page hereto. All such Underlying Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants shall be evidenced by a book entry on a securities account open in their name in the books of the Company, in accordance with Articles L. 211-3 et seq. of the French Monetary and Financial Code; and
(2) instruct the Depositary to issue and deliver to such Purchaser a book-entry transfer for the Shares, against deposit of the Underlying Shares, pursuant to the Deposit Agreement. The Company shall pay all stamp taxes and other taxes and duties levied and Depositary fees in connection with the delivery and issuance of the Shares to the Purchaser.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
Each Purchaser, for itself and not for any other Purchaser, hereby makes the following representations and warranties (severally and not jointly with any other Purchaser, it being acknowledged and agreed that each reference to “the Purchaser” in this Article III shall be deemed to refer to such Purchaser and not to any other Purchaser), each of which is and shall be true and correct on the date hereof and at the Closing, to the Company and the Placement Agents, and all such representations and warranties shall survive the Closing:
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Section 3.1 Power and Authorization. The Purchaser is duly organized, validly existing and in good standing, and has the power, authority and capacity to execute this Agreement, to perform its obligations hereunder, and to consummate the Purchase of the Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants subscribed for by it.
The Purchaser represents that it is either:
(i) an industrial partner that has a similar, complementary or related business to that of the Company; or
(ii) an institutional or strategic investor that:
(A) has, as the case may be, the status of either (i) an “accredited investor” as defined in Rule 501 of Regulation D of the Securities Act, (ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act or (iii) a qualified investor within the meaning of Regulation (EU) 2017/1129 of 14 June 2017 or an equivalent status under the rules applicable in its country of incorporation; and
(B) has a significant track record of regularly investing in companies with high growth potential which includes investments in small/mid cap equities.
Section 3.2 Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (such qualifications in clauses (a) and (b) being the “Enforceability Exceptions”). This Agreement and consummation by the Purchaser of the Purchase of the Shares and accompanying Common Warrants and/or Pre-Funded Warrants and accompanying Common Warrants subscribed for by it will not violate, conflict with or result in a breach of or default under (i) the Purchaser’s organizational documents, (ii) any agreement or instrument to which the Purchaser is a party or by which the Purchaser or any of its assets are bound or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Purchaser, other than, any violation, conflict, breach or default (in the case of clauses (ii) and (iii)), that would not be reasonably expected to impair in any material respect the ability of the Purchaser to perform its obligations under the Transaction Documents or to consummate any transactions contemplated hereby or thereby.
Section 3.3 Accredited Investor/Qualified Institutional Buyer. The Purchaser is a QIB under the Securities Act or an IAI within the meaning of Rule 501(a) of Regulation D under the Securities Act. The information the Purchaser has provided in writing to the Company as set forth
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on the Purchaser’s signature page hereto is true, correct and complete, as of the date hereof and as of the Closing Date, in all material respects.
Section 3.4 5% Shareholder Status. If the Purchaser and its affiliates (as that term is defined in Rule 501(b) of Regulation D under the Securities Act, “Affiliates”) will beneficially own after the Closing Date more than 5% of the Company’s Shares outstanding, the Purchaser understands that it will have disclosure obligations pursuant to applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as a result of such holdings.
Section 3.5 Restricted Securities. The Purchaser (a) acknowledges (i) that the issuance of the Securities pursuant to this Agreement has not been registered under the Securities Act or any state securities laws, (ii) the Securities are being offered and sold in reliance upon exemptions from registration provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless they are subsequently registered and qualified under the Securities Act and applicable state securities laws or unless an exemption from such registration and qualification is available and (iii) the Securities will be “restricted securities” as that term is defined in Rule 144 promulgated under the Securities Act and (b) is purchasing the Securities for investment purposes only for the account of the Purchaser and not with any view toward a distribution thereof or with any intention of selling, distributing or otherwise disposing of the Securities in a manner that would violate the registration requirements of the Securities Act. The Purchaser is able to bear the economic risk of holding the Securities for an indefinite period and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Securities.
Section 3.6 Legends. The Purchaser understands and agrees that any certificate or book-entry representing the Securities or a securities entitlement thereto shall bear the restrictive legend set forth in Section 7.2 below.
Section 3.7 No Transactions. The Purchaser has not, directly or indirectly, and no person acting on behalf of or pursuant to any understanding with it has, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving any of the Company’s securities) from the time the Company, the Placement Agent or any other Person first informed the Purchaser of the transactions contemplated hereby (including the identity of the Company) through the time the Purchaser executed and delivered this Agreement. The Purchaser covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it will engage, directly or indirectly, in any transactions in the securities of the Company (including Short Sales) prior to the time the transactions contemplated by this Agreement are first publicly disclosed as required by, and subject to the Company’s compliance with its obligations under, Section 9.2 hereof. Notwithstanding the foregoing, if the Purchaser is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Exchange Act, and all types of direct and indirect stock
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pledges, forward sale contracts, options, puts, calls, short sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable Ordinary Shares and/or ADSs).
Section 3.8 Adequate Information; No Reliance. The Purchaser acknowledges and agrees that (a) the Purchaser has been furnished with all materials it considers relevant to making an investment decision to enter into the Purchase, including the supplemental risk factors set forth on Exhibit C, and has had the opportunity to review the Company’s filings and submissions with the Securities and Exchange Commission (the “SEC”), including, without limitation, all information filed or furnished pursuant to the Exchange Act and all information incorporated into such filings and submissions, (b) the Purchaser has sufficient knowledge and expertise to make an investment decision with respect to the transactions contemplated hereby, (c) the Purchaser has had a full opportunity to speak directly with directors, officers and Affiliates of the Company and to ask questions of the Company and such directors, officers and Affiliates of the Company concerning the Company, its business, operations, financial performance, financial condition and prospects and its future plans and strategy, and the terms and conditions of the Purchase, and to obtain such additional information as it deems necessary to verify the accuracy of the information furnished to it and has asked such questions, received such answers and obtained such information as it deems necessary, (d) the Purchaser has had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the risks involved in the Purchase and to make an informed investment decision with respect to the Purchase and (e) the Purchaser is not relying, and has not relied, upon any statement, advice (whether accounting, tax, financial, legal or other), representation or warranty made by the Company or any of its Affiliates or representatives, except for (i) the publicly available filings and submissions made by the Company with the SEC under the Exchange Act and (ii) the representations and warranties made by the Company in this Agreement.
Section 3.9 Purchaser’s Reporting Requirement. The Company has made no representations to the Purchaser regarding the Purchaser’s reporting requirements with the SEC related to the Purchaser’s present or future ownership in the Company, and the Purchaser acknowledges and agrees that it is the responsibility of the Purchaser to ensure that the Purchaser complies with any disclosure and reporting requirements of the SEC applicable to the Purchaser as a result of the Purchase.
Section 3.10 No General Solicitation or Advertising. The offer to enter into the Purchase was directly communicated to the Purchaser and the Purchaser was able to ask questions and receive answers concerning the terms of this transaction. At no time was the Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.
Section 3.11 Disqualification. The Purchaser represents that neither the Purchaser, nor any person or entity with whom Purchaser shares beneficial ownership of Company securities, is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act; provided that the facts and circumstances of any
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Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act have been disclosed to the Company.
Section 3.12 OFAC. The operations of the Purchaser have been conducted in material compliance with the rules and regulations administered or conducted by OFAC applicable to the Purchaser. The Purchase Price for the Securities will not be derived from sources prohibited under programs administered by OFAC. The Purchaser has performed commercially reasonable due diligence to reasonably determine that its beneficial owners are not named on the lists of denied parties or blocked persons administered by OFAC, resident in or organized under the laws of a country that is the subject of Sanctions, or otherwise the subject of Sanctions, except as permitted under Sanctions.
Section 3.13 Investment Funds. Notwithstanding the above, each Purchaser further represents, warrants, acknowledges and agrees that, if such Purchaser is acting on behalf of investment funds or other legal entities managed or advised by it, the representations made under Sections 3.1, 3.2 and 3.3 above shall also apply to each such fund or legal entity and such Purchaser shall further ensure compliance thereof by each such fund or entity in connection with the initial distribution of the Shares, Pre-Funded Warrants and accompanying Common Warrants.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company Reports (as defined below) that are available on the SEC’s website through the EDGAR system at least one (1) Business Day prior to the date of this Agreement (unless the context provides otherwise), the Company hereby makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to each Purchaser and the Placement Agents, and all such representations and warranties shall survive the Closing.
Section 4.1 Exchange Act Filings. The Company has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since December 31, 2023 or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension (the “Company Reports”). The Company Reports, when they became effective or were filed with or furnished to the SEC, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations thereunder and none of such documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed or furnished after the date hereof and on or prior to the Closing, when such documents become effective or are filed with the SEC, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the SEC thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Other than with respect to any non-compliance with continued listing standards applicable to the Company relating to the average
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market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), the Company represents that, as of the date hereof, no material event or circumstance has occurred which would be required to be publicly disclosed or announced on a Report of Foreign Private Issuer on Form 6-K, either as of the date hereof or solely with the passage of time by the Company but which has not been so publicly announced or disclosed. The Company is not, and has never been, an issuer described in Rule 144(i)(1) under the Securities Act. The Company is a “foreign private issuer” (as defined in Rule 405 under the Securities Act) and a “foreign issuer” (as defined in Rule 902 of Regulation S under the Securities Act). The Company is eligible to use Form F-3 for registration of the Securities with the SEC under the Securities Act. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the SEC with respect to any of the Company Reports as of the date hereof.
Section 4.2 Due Incorporation of the Company. The Company has been duly organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization and registered with the Trade and Companies Registry of Nanterre under the unique identification number of 450 249 677. The Company is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged. Each member of the Board of Directors (Conseil d’administration), the Chairman of the Board of Directors (Président du Conseil d’administration) and the Chief Executive Officer (Directeur Général) have been lawfully appointed or elected and are validly in office in accordance with the law and, perform their respective duties in compliance in all material respects with French law and the Company’s by-laws (statuts) and internal regulations.
Section 4.3 Due Incorporation of the Subsidiaries. Each of the Subsidiaries has been duly organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Subsidiaries is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged, except where the failure to so qualify or have such power or authority (i) would not have and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), prospects, results of operations, assets or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under the Transaction Documents or to consummate any transactions contemplated hereby or thereby (any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). As used in this Agreement, “Subsidiary” shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC and, unless the context otherwise requires, each reference to “Subsidiary” in this Article IV shall be deemed to refer to direct and indirect Subsidiaries of the Company. The membership interests or share capital (or the foreign equivalent thereof), as applicable, of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent
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set forth in the Company Reports, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
Section 4.4 Due Authorization. Subject to the approval of the Reserved Issuances at the General Meeting, the Company has the full right, power and authority to enter into this Agreement and the Transaction Documents and to perform and discharge its obligations therein; and following such approval at the General Meeting, this Agreement and the Transaction Documents and the performance by the Company of its obligations therein will have been duly authorized, and this Agreement and the Transaction Documents will have been duly executed and delivered by the Company and will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. Following shareholder approval of such matters at the General Meeting, the shareholders of the Company will have fully and irrevocably waived their preferential subscription rights in favor of : (i) any industrial partner that has a similar, complementary or related business to that of the Company (ii) institutional or strategic investors (a) that have, as the case may be, the status of Qualified Institutional Buyers or Institutional Accredited Investors within the meaning of U.S. law, of qualified investors within the meaning of Regulation (EU) 2017/1129 of 14 June 2017 or an equivalent status under the rules applicable in its country of incorporation; and (b) that invest in companies with high growth potential which includes investments in small/mid cap equities; (iii) any institution that acts as a depository in connection with any offering by the Company of American Depositary Shares registered with the SEC; or (iv) any investment services providers likely to guarantee the completion of an issue intended to be placed with the persons referred to in (i) to (ii) above or within the framework of the implementation of an equity or bond line and, within this framework, to subscribe to the securities so issued. The issuance and sale of the Securities as contemplated hereby and by the Pre-Funded Warrants and the Common Warrants will not be subject to, and will not violate, any preferential subscription rights (other than those that have been fully and irrevocably waived). Except as set forth in the Company Reports, there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities at Closing that have not been fully and irrevocably waived.
Section 4.5 The Shares, Pre-Funded Warrants and Common Warrants. Subject to the approval of the Reserved Issuances at the General Meeting, the Reserved Issuances and the Securities to be issued by the Company upon subscription to the Shares and accompanying Common Warrants and/or the Pre-Funded Warrants and accompanying Common Warrants, as applicable, pursuant to Section 2.1(a), will have been duly authorized for issuance pursuant to Resolution passed at the General Meeting and article L. 225-138 of the French commercial code, and the appropriate decisions of the Board of Directors or of the Chief Executive Officer in relation thereto. Upon subscription by the Purchaser for the Ordinary Shares issuable in connection with the issuance of the Shares pursuant to Section 2.1(a), the Company will cause such Underlying Shares to be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Securities issued in connection with the Reserved Issuances pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; the issuance of the Shares, the Pre-Funded Warrants and the accompanying Common
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Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. Each Share, Warrant Share and Common Warrant Share will be issued in compliance with all U.S. federal and state securities laws and the securities laws of any other applicable jurisdiction. Upon exercise of the Pre-Funded Warrants and payment of the exercise price by the Purchaser for the Underlying Warrant Shares issuable in connection with the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a), such Underlying Warrant Shares shall be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Underlying Warrant Shares and the ADSs issued in connection with the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; subject to the terms of the Deposit Agreement, the issuance of the Warrant Shares relating to the Pre-Funded Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. The Warrant Shares, upon issuance pursuant to the terms of the Pre-Funded Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free of any preemptive or similar rights, and the holder of the Warrant Shares shall be entitled to all rights accorded to a holder of the Ordinary Shares. Upon exercise of the Common Warrants and payment of the exercise price by the Purchaser for the Underlying Common Warrant Shares issuable in connection with the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a), such Underlying Common Warrant Shares shall be deposited with the Depositary for the issuance of ADSs. When issued in accordance with the terms of this Agreement, the Underlying Common Warrant Shares and the ADSs issued in connection with the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and the Purchaser will be entitled to the rights specified in the Deposit Agreement; subject to the terms of the Deposit Agreement, the issuance of the Common Warrant Shares relating to the Common Warrants pursuant to Section 2.1(a) will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. The Common Warrant Shares, upon issuance pursuant to the terms of the Common Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free of any preemptive or similar rights, and the holder of the Common Warrant Shares shall be entitled to all rights accorded to a holder of the Ordinary Shares.
Section 4.6 Capitalization; Indebtedness. As of the date hereof, the share capital of the Company consists of 255,175,722 issued Ordinary Shares, fully paid, and with a par value of €0.01 each. All of the outstanding share capital of the Company have been duly authorized, validly issued and are fully paid and nonassessable and were issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right. Except as previously disclosed in the Company’s public filings or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any share capital, or any such warrants, convertible securities or obligations. Except as disclosed in the Company Reports, the Company has no indebtedness as of the date of this Agreement.
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Section 4.7 No Default, Termination or Lien. The execution, delivery and performance of this Agreement and the Transaction Documents by the Company, the issuance and delivery of the Securities by the Company, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the terms of this Agreement and the Transaction Documents will not (with or without notice or lapse of time or both) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under, give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any Subsidiary pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement (including, without limitation, the Deposit Agreement) or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, nor will such actions result in any violation of the provisions of the organizational documents of the Company or any of its Subsidiaries or any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets.
Section 4.8 No Consents. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement and the Transaction Documents, except such as may be required by the New York Stock Exchange (“NYSE”) in connection with the listing of the Shares, the Warrant Shares and the Common Warrant Shares.
Section 4.9 Independent Accountants. Ernst & Young Audit (“EY”), who has certified certain financial statements and related schedules included or incorporated by reference in the Company Reports, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations thereunder and the Public Company Accounting Oversight Board (United States). Except as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act, EY has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).
Section 4.10 Financial Statements. The financial statements, together with the related notes and schedules, included in the Company Reports present fairly in all material respects the financial condition of the Company and its consolidated Subsidiaries as of the respective dates thereof and the results of operations and cash flows of the Company and its consolidated Subsidiaries for the respective periods covered thereby, and have been prepared in conformity with International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the entire period involved, except as otherwise disclosed in the Company Reports. Such financial statements, together with the related notes and schedules, comply in all material respects with the Securities Act, the Exchange Act and the rules and regulations thereunder. No other financial statements or supporting schedules or exhibits are required by the Exchange Act or the rules and regulations thereunder to be filed with the SEC.
Section 4.11 No Material Adverse Effect. Since December 31, 2024, there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, assets, business,
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prospects or operations of the Company and its Subsidiaries, taken as a whole. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made, except for matters required to be disclosed in connection with any non-compliance with continued listing requirements of the NYSE.
Section 4.12 Legal Proceedings. There are no legal or governmental proceedings, actions, suits or claims pending or, to the Company’s Knowledge, threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties or assets of the Company or any of its Subsidiaries is subject, other than proceedings that would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and there are no statutes, regulations, contracts or other documents to which the Company or any of its Subsidiaries is subject or by which the Company or any of its Subsidiaries is bound that are required to be described in the Company Reports or to be filed as exhibits to the Company Reports that are not described therein or filed as required. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any legal or governmental proceedings, actions, suits or claims of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. For purposes of this Agreement, “Knowledge” means the actual knowledge (after due inquiry) of the executive officers (as defined in Exchange Act Rule 3b-7) of the Company or its Subsidiaries, as applicable.
Section 4.13 Regulatory Permits. Each of the Company and its Subsidiaries possesses or has applied for all certificates, authorizations, licenses, franchises, permits, orders and approvals issued or granted by the appropriate governmental or regulatory authorities, agencies, courts, commissions or other entities, whether federal, state, local or foreign, or applicable self-regulatory organizations necessary to conduct its business as currently conducted, except (i) where the failure to possess such certificates, authorizations, licenses, franchises, permits, orders and approval, individually or in the aggregate, has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (“Material Permits”) and (ii) as accurately described in all material respects in the Company Reports, and neither the Company nor any of its Subsidiaries has received any written notice of proceedings relating to the revocation or material adverse modification of any such Material Permits (except as accurately described in all material respects in the Company Reports), and to the Company’s Knowledge, there are no facts or circumstances that would give rise to the revocation, termination or material adverse modifications of any Material Permits.
Section 4.14 Material Contracts. Except for the Material Contracts, the Company and its Subsidiaries are not party to any agreements, contracts or commitments that are material to the business, financial condition, assets or operations of the Company and its Subsidiaries or that would be required to be filed pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F. Neither the Company nor any of its Subsidiaries is in material default under, or in material violation of, nor has received written notice of termination or default under any Material Contract. For purposes of this Agreement, “Material Contract” means any contract of the Company that was
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filed as an exhibit to the Company Reports pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F.
Section 4.15 Investment Company Act. Neither the Company nor any of its Subsidiaries is, and after giving effect to the Purchase (by all Purchasers), the consummation of the Convertible Debt Financing and, in each case, the application of the proceeds thereof, neither the Company nor any of its Subsidiaries will become, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.
Section 4.16 No Price Stabilization. Neither the Company, its Subsidiaries nor any of the Company’s or its Subsidiaries’ officers, directors or Affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
Section 4.17 Title to Property. The Company and its Subsidiaries have good and marketable title to all real and personal property owned by them which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except such as are described in the Company Reports or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described in the Company Reports.
Section 4.18 No Labor Disputes. Neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice; except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is (A) no discrimination complaint or unfair labor practice complaint pending or, to the Knowledge of the Company or the Subsidiaries, threatened against the Company or any of the Subsidiaries before the National Labor Relations Board or any other governmental body, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or, to the Knowledge of the Company or the Subsidiaries, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Knowledge of the Company or the Subsidiaries, threatened against the Company or any of the Subsidiaries and (C) no union representation dispute currently existing concerning the employees of the Company or any of the Subsidiaries, (ii) to the Knowledge of the Company or the Subsidiaries, no union organizing activities are currently taking place concerning the employees of the Company or any of the Subsidiaries and (iii) there has been no violation of any federal, state, local or foreign law or collective bargaining agreement relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or retirement benefits, or any provision of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder concerning the employees of the Company or any of the Subsidiaries.
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Section 4.19 Taxes. The Company (i) has timely filed all necessary federal, state, local and foreign income and franchise tax returns (or timely filed applicable extensions therefore) that have been required to be filed and (ii) is not in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company is contesting in good faith and for which adequate reserves have been provided and reflected in the financial statements included in the Company Reports. The Company does not have any tax deficiency that has been or, to the Company’s Knowledge, is reasonably likely to be asserted or threatened against it.
Section 4.20 Compliance with Environmental Laws. Except as disclosed in the Company Reports, neither the Company nor any of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), or, to the Company’s Knowledge, operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would or would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
Section 4.21 Intellectual Property Rights. The Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights, except as disclosed in the Company’s Form 20-F for the year ended December 31, 2024 or such as would not and would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
Section 4.22 Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, has (i) used any Company funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from Company funds, (iii) caused the Company or any of its Subsidiaries to be in violation of any provision of the United States Foreign Corrupt Practices Act of 1977, as amended, or any similar laws, including without limitation French law no. 2016-1691 of December 9, 2016 relating to the prevention of corruption, or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment from Company funds.
Section 4.23 OFAC and Similar Laws. None of the Company, any of its Subsidiaries or, to the Company’s Knowledge, any director, officer, agent, employee, affiliate or representative of the Company or any of its Subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control
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(“OFAC”), the United Nations Security Council, the European Union, the Republic of France, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the issuance of any Shares or the proceeds from the Convertible Debt Financing, or lend, contribute or otherwise make available such proceeds to any Subsidiaries, joint venture partners or other Person, to knowingly fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
Section 4.24 Disclosure Controls and Procedures. Except as disclosed in the Company Reports, the Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to the Company, including any consolidated Subsidiaries, is made known to its chief executive officer and chief financial officer by others within those entities. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of the end of the period covered by the most recently filed annual report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed annual report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date and except as disclosed in the Company Reports, there have been no material changes in the Company’s internal controls (as such term is defined in the rules of the SEC under the Exchange Act) or, to the Company’s Knowledge, in other factors that could affect the Company’s internal controls.
Section 4.25 Accounting Controls. Except as described in the Company Reports, the Company and its Subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Company Reports, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Section 4.26 Absence of Material Changes. Subsequent to the respective dates as of which information is given in the Company Reports, and except as may be otherwise disclosed in such Company Reports, there has not been (i) any Material Adverse Effect, (ii) any transaction which is material to the Company, (iii) any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company, which is material to the Company, (iv) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, (v) any change in the share capital (other than a change in the number of outstanding Ordinary
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Shares or ADSs due to grants of stock under the Company’s stock incentive plans existing on the date hereof or the issuance of shares upon the exercise of outstanding options or warrants) or (vi) any issuance of options, warrants, convertible securities or other rights to purchase the share capital (other than grants of stock options under the Company’s stock option plans existing on the date hereof) of the Company.
Section 4.27 Brokers Fees. Other than payment of fees to the Placement Agents, neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Company for a brokerage commission, finder’s fee or like payment in connection with any transaction contemplated by this Agreement.
Section 4.28 Listing and Maintenance Requirements. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, as applicable. The ADSs are registered pursuant to Section 12(b) of the Exchange Act and are listed on the NYSE, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the ADSs under the Exchange Act or delisting the ADSs from the NYSE, nor, except as disclosed in the Company Reports or any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), has the Company received any notification that either the SEC or the NYSE is contemplating terminating such registration or listing. Except as disclosed in the Company Reports or any non-compliance with continued listing standards applicable to the Company relating to the average market capitalization of the Company that would reasonably expected to be cured as a result of the Purchase (by all Purchasers), since April 2, 2025, the Company has not received notice from the NYSE that the Company is not in compliance with the listing or maintenance requirements of the NYSE. After giving effect to the consummation of the Purchase (by all Purchasers), the Company expects it will be, and has no reason to believe that it will not in the foreseeable future thereafter continue to be, in compliance with all such listing and maintenance requirements. The Ordinary Shares and ADSs are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
Section 4.29 Sarbanes-Oxley Act. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules and regulations promulgated thereunder or implementing provisions thereof that are then in effect.
Section 4.30 New York Stock Exchange Approval Rules. Other than as contemplated in this Agreement, no further approval of the shareholders of the Company under the rules and regulations of the NYSE is required for the Company to issue and deliver the Securities to the Purchaser.
Section 4.31 Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its
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subsidiaries as currently conducted, and, to the Company’s knowledge, are free and clear of all material Trojan horses, time bombs, malware and other malicious code. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls designed to maintain and protect the confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data (“Confidential Data”) used or maintained in connection with their businesses and Personal Data (defined below), and the integrity, availability continuous operation, redundancy and security of all IT Systems. “Personal Data” means the following data used in connection with the Company’s and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or other tax identification number, driver’s license number, passport number, credit card number or bank information; (ii) information that identifies or may reasonably be used to identify an individual; (iii) any information that would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (iv) any information that would qualify as “personal data,” “personal information” (or similar term) under the Privacy Laws (as defined below). To the Company’s knowledge, there have been no breaches, outages or unauthorized uses of or accesses to the Company’s IT Systems, Confidential Data, or Personal Data that would require notification under Privacy Laws.
Section 4.32 Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state, federal and foreign data privacy and security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer, disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data, including without limitation HIPAA, the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) No. 2016/679), all other local, state, federal, national, supranational and foreign laws relating to the regulation of the Company or its subsidiaries, and the regulations promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof (collectively, the “Privacy Laws”), except where failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure compliance with their policies and procedures relating to data privacy and security, and the Processing of Personal Data and Confidential Data (the “Privacy Statements”), except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, at all times since inception provided accurate notice of their Privacy Statements then in effect to its customers, employees, third party vendors and representatives. Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, none of such disclosures made or contained in any Privacy Statements have been materially inaccurate, misleading, incomplete, or in material violation of any Privacy Laws.
Section 4.33 Private Placement. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Section 3, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to each Purchaser as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the NYSE.
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Section 4.34 Other Agreements. Each other securities purchase agreement entered into with each other Purchaser reflects the same Per Share Issue Price and other terms and conditions with respect to the purchase of the Shares that are no more favorable to such other Purchaser thereunder than the terms of this Agreement.
ARTICLE V
OTHER AGREEMENTS
Section 5.1 Depositary. Upon issuance of the Shares, the Warrant Shares and the Common Warrant Shares, the Company will instruct the Depositary to deliver the relevant number of ADSs to the Purchaser against deposit of the Underlying Shares, the Underlying Warrant Shares and the Underlying Common Warrant Shares, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 (the “Deposit Agreement”) among the Company, The Bank of New York Mellon, as depositary (the “Depositary”), and the owners and holders from time to time of the ADSs issued thereunder, and the Purchaser shall cooperate with the Company and the Depositary in connection therewith.
Section 5.2 Supplemental Listing Application. Within two (2) Business Days following the execution of this Agreement, the Company shall file with the NYSE a supplemental listing application reflecting the transactions contemplated hereby.
Section 5.3 Listing of Shares. The Company covenants that all Shares, Warrant Shares and Common Warrant Shares issued pursuant to Section 2.1(a) will be duly approved for listing subject to official notice of issuance on the NYSE and the Company covenants to take all reasonable steps to be in compliance with all listing and maintenance requirements of the NYSE.
Section 5.4 Use of Proceeds. The net proceeds of the Purchase and the Convertible Debt Financing shall be used by the Company for the purchase of Bitcoin and for general corporate purposes associated with purchasing Bitcoin, subject to the security and collateral requirements of the Convertible Debt Financing.
Section 5.5 Reliance by and Exculpation of Placement Agents. Each Purchaser, individually and not jointly, agrees for the express benefit of the Placement Agents, their affiliates and their representatives that:
(a) Each Placement Agent is acting as placement agent for the Company solely in connection with the sale of the Securities and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for any Purchaser, the Company or any other person or entity in connection with the sale of Securities.
(b) Each Purchaser hereto agrees for the express benefit of each Placement Agent, its affiliates and its representatives that (i) such Placement Agent, its affiliates and its representatives have not made any representations or warranties with respect to the Company or the offer and
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sale of the Securities, and such Purchaser will not rely on any statements made by such Placement Agent, orally or in writing, to the contrary, (ii) such Purchaser will be responsible for conducting its own due diligence investigation with respect to the Company and the offer and sale of the Securities, (iii) such Purchaser will be purchasing Securities based on the results of its own due diligence investigation of the Company and it has made an independent investigation with respect to the Company, the Securities, or the accuracy, completeness, or adequacy of any information supplied to the Purchaser by the Company, (iv) such Purchaser has negotiated the offer and sale of the Securities directly with the Company, and such Placement Agent will not be responsible for the ultimate success of any such investment and (v) the decision to invest in the Company will involve a significant degree of risk, including a risk of total loss of such investment. Each Purchaser further represents and warrants to each Placement Agent that it, including any fund or funds that it manages or advises that participates in the offer and sale of the Securities, is permitted under its constitutive documents (including all limited partnership agreements, charters, bylaws, limited liability company agreements, all applicable side letters with investors, and similar documents) to make investments of the type contemplated by this Agreement. This Section 5.5 shall survive any termination of this Agreement.
(c) Neither the Placement Agents nor any of their respective affiliates or representatives (1) shall be liable for any improper payment made in accordance with the information provided by the Company; (2) makes any representation or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to the Transaction Documents or in connection with any of the transactions contemplated therein, including any offering or marketing materials; or (3) shall be liable (x) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred upon them by the Transaction Documents or (y) for anything which any of them may do or refrain from doing in connection with the Transaction Documents, except in each case for such party’s own gross negligence, willful misconduct or bad faith.
(d) The Company agrees that the Placement Agents, their respective affiliates and their respective representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any Placement Agent or any Purchaser by or on behalf of the Company, and (2) be indemnified by the Company for acting as a Placement Agent in accordance with the indemnification provisions set forth in the applicable Engagement Letter between the Company and the Placement Agents.
Section 5.6 Shareholder Approval. On or prior to June 30, 2025, the Company shall validly hold the General Meeting approving a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the Reserved Issuance and such approval shall have been obtained.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Purchaser’s Conditions Precedent. The obligation of the Purchaser to complete the Purchase is subject to the satisfaction of each of the following conditions precedent:
(a) each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those
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representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;
(b) the Company shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;
(c) no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof;
(d) the Chief Executive Officer and Chief Financial Officer of the Company shall have delivered to the Purchaser and Placement Agents a certificate, dated as of the Closing Date, certifying to their knowledge, after reasonable inquiry, as to the matters set forth in paragraphs (a) and (b) of this Section 6.1;
(e) (i) the shareholders of the Company shall have approved at the General Meeting a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €70,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital with subscriptions reserved to a specified class of investors including QIBs and IAIs, (ii) the board of directors shall have authorized the principle of the Reserved Issuances and (iii) the board of directors or the Chief Executive Officer shall have decided to proceed with the Reserved Issuances;
(f) the Shares, the Warrant Shares and the Common Warrant Shares shall be designated for quotation or listed on the NYSE, and, after giving effect to the consummation of the Purchase (by all Purchasers), the Company shall meet the minimum continued listing requirements of the NYSE;
(g) since the date of this Agreement, no event or series of events shall have occurred that reasonably would be expected to (i) result in a Material Adverse Effect or (ii) impair in any material respect the ability of the Company to comply with any covenant herein, including, without limitation, Section 5.4;
(h) substantially concurrent with the Closing, the Company shall be consummating the Convertible Debt Financing;
(i) from the date hereof to the Closing, trading in the Ordinary Shares and the ADSs shall not have been suspended by the SEC or the Company’s principal trading market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities generally whose trades are reported by such service, or on any principal U.S. trading market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of
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hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to consummate the Purchase; and
(j) the Company shall have executed and delivered to the Purchaser each of the other Transaction Documents.
Section 6.2 Company’s Conditions Precedent. The obligation of the Company to complete the issuance of the Shares to the Purchaser contemplated by this Agreement is subject to the satisfaction of each of the following conditions precedent:
(a) each of the representations and warranties of the Purchaser contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;
(b) the Purchaser shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;
(c) no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof; and
(d) the Purchaser shall have executed and delivered to the Company each of the other Transaction Documents.
ARTICLE VII
CERTAIN COVENANTS
Section 7.1 Certain Actions. The Company and the Purchaser shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement, applicable law and stock exchange listing standards to consummate the transactions contemplated by this Agreement as soon as practicable.
Section 7.2 Legends. To the extent reasonably necessary under applicable law, any certificate or book-entry Securities issued under this Agreement shall have endorsed, to the extent appropriate, upon its face the following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY JURISDICTION. ACCORDINGLY, SUCH SECURITIES [AND
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THE SECURITIES ISSUABLE UPON EXERCISE OF SUCH SECURITIES] MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, ASSIGNED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAW, OR (II) ANY EXEMPTION FROM REGISTRATION UNDER SUCH ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.
Section 7.3 Legend Removal. The Company shall promptly instruct the Depositary to remove the legend contemplated by Section 7.2 (and shall revoke any related stop transfer or similar instructions to its registrar and transfer agent), (i) upon receipt by the Depositary of evidence that the Securities issued pursuant to Section 2.1(a) have been resold pursuant to an effective registration statement under the Securities Act; (ii) upon receipt by the Depositary of evidence that such Securities have been resold pursuant to Rule 144 or another exemption from the registration requirements under the Securities Act, subject to receipt of a suitable opinion from counsel to the Company, or (iii) after one year, upon receipt of a suitable opinion from counsel to the Company, provided the owner of such Securities is not an affiliate of the Company. The Company shall be responsible for all Depositary fees in connection with the removal of legends as contemplated by this Section 7.3.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. The obligations of the Company, on the one hand, and the Purchasers, on the other hand, to effect the Closing shall terminate as follows:
(1) Upon the mutual written consent of the Company and the Purchasers that agreed to purchase a majority of the Securities prior to the Closing;
(2) By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company;
(3) By a Purchaser (with respect to itself only) if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by such Purchaser; or
(4) By either the Company or a Purchaser (with respect to itself only), if the Closing has not occurred on or before July 18, 2025 (the “Outside Date”), unless the Company and such Purchaser mutually agree, whether orally or in writing, to extend the Outside Date; provided, however, that the right to terminate pursuant to this Section 8.1(4) shall only be available to a party if such party is not in material breach of, or has not failed to perform in any material respect, any of its representations, warranties, covenants, or agreements contained in this Agreement, and such breach or failure has not been the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
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provided, however, that, in the case of clauses (2) and (3) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in the Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
Section 9.2 Disclosure. The Company shall, prior to 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Agreement (or, if this Agreement is executed and delivered by the parties hereto prior to 8:00 a.m., New York City time, on a business day, prior to 9:00 a.m., New York City time, on the date hereof), issue one or more press releases or furnish or file with the SEC a Report of Foreign Private Issuer on Form 6-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated hereby and the material terms of the Convertible Debt Financing, and any other material, nonpublic information that the Company has provided to the Purchasers at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, to the Company’s knowledge, the Purchasers shall not be in possession of any material, nonpublic information received from the Company or any of its officers, directors, employees or other representatives (including the Placement Agents). For the avoidance of doubt, the Company may possess non-public information regarding the Company at the time of Closing, which is unrelated to the transactions contemplated by the Transaction Documents, that has not been communicated to the Purchasers by the Company, its officers, directors, employees or other representatives (including the Placement Agents). Notwithstanding anything in this Agreement to the contrary, the Company shall not publicly disclose the name of the Purchasers or any of their affiliates, or include the name of the Purchasers or any of their affiliates, without the prior written consent of the Purchasers, (i) in any press release or (ii) in any filing with the SEC or any regulatory agency or trading market, except (A) as required by the federal securities laws, rules or regulations in connection with the Registration Statement or (B) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of the NYSE or by any other governmental authority, in which case the Company shall provide the Purchasers with prior written notice of such disclosure permitted under subclauses (A) and (B). At or prior to 9:00 a.m. (New York City time) on the first (1st) Business Day immediately following the Closing, the Company shall publicly disclose the occurrence of the Closing and the consummation of the transactions contemplated by this Agreement and any other transactions (including the Convertible Debt Financing) that may be consummated on such date.
Section 9.3 Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the
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next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
| Lowenstein Sandler LLP | |||||
| 1251 Avenue of the Americas, 18th Floor | |||||
| New York, New York 10020 | |||||
| Attention: | Steven E. Siesser, Esq. | ||||
| Brooke A. Gillar, Esq. | |||||
| Email: | ssiesser@lowenstein.com; | ||||
| bgillar@lowenstein.com | |||||
and
ARCHERS (AARPI) | |||||
| 28 rue Dumont d’Urville 75116 | |||||
| Paris, France | |||||
| Attention: | Véronique Gedeon | ||||
| Mark Richardson | |||||
| Email: | mrichardson@archers.fr; | ||||
| vgedeon@archers.fr | |||||
If to a Purchaser: to such address or addresses set forth on its signature page hereto;
Section 9.4 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement or any other Transaction Document are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Section 9.5 Entire Agreement. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to
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the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 9.6 Assignment; No Third Party Beneficiaries. Except for the Shares, the Pre-Funded Warrants, the Warrant Shares, the Common Warrants and the Common Warrant Shares, which (subject to applicable securities laws) shall at all times be freely transferable, and except as otherwise expressly provided herein, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of, in the case of an assignment by any Purchaser, the Company or, in the case of an assignment by the Company, each of the Purchasers); provided that, notwithstanding anything to the contrary in the preceding language, any Purchaser can assign, convey or transfer, in whole or in part, this Agreement to its limited partners, members, Affiliates and any investment fund that is controlled by or is under common control with such Purchaser. Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 9.7 Construction. References in the singular shall include the plural, and vice versa, unless the context otherwise requires. References in the masculine shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meanings of the provisions hereof. Neither Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions of this Agreement, and all language in all parts of this Agreement shall be construed in accordance with its fair meaning, and not strictly for or against either party.
Section 9.8 Governing Law; Jurisdiction. This Agreement shall in all respects be construed in accordance with, and governed by, the substantive laws of the State of New York, without reference to its choice of law rules. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts within the Southern District of New York.
Section 9.9 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
Section 9.10 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
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Section 9.11 Certain Definitional Provisions. Unless the express context otherwise requires, the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; any references herein to a specific Section, Schedule or Annex shall refer, respectively, to Sections, Schedules or Annexes of this Agreement; wherever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; and references herein to any gender includes each other gender.
Section 9.12 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers who at such time hold at least 50.1% in interest of the Shares, the Warrant Shares and the Common Warrant Shares based on the initial subscription amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers) who continues to hold any of the Shares, the Warrant Shares or the Common Warrant Shares, the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser who continues to hold any of the Shares, the Warrant Shares or the Common Warrant Shares relative to the rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 9.12 shall be binding upon each Purchaser and holder of Shares, Warrant Shares and Common Warrant Shares and the Company.
Section 9.13 Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Documents) shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of any Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed as of the date first above written.
| THE COMPANY | ||
| SEQUANS COMMUNICATIONS S.A. | ||
By: /s/ Georges Karam | ||
| Name: Georges Karam | ||
| Title: Chief Executive Officer | ||
[Signature page to Securities Purchase Agreement]
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EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
between
SEQUANS COMMUNICATIONS SA
and
EACH INVESTOR LISTED ON THE SIGNATURE PAGE HERETO
Dated [ l ], 2025
TABLE OF CONTENTS
| Page | |||||||||||
| ARTICLE I REGISTRATION RIGHTS . | 1 | ||||||||||
| Section 1.1 | Resale Shelf Registration | 1 | |||||||||
| Section 1.2 | Expenses | 3 | |||||||||
| Section 1.3 | Suspensions | 3 | |||||||||
| Section 1.4 | Registration Procedures | 4 | |||||||||
| Section 1.5 | Effectiveness Period | 8 | |||||||||
| Section 1.6 | Indemnification | 8 | |||||||||
| Section 1.7 | Free Writing Prospectuses | 12 | |||||||||
| Section 1.8 | Information from and Obligations of each Investor | 12 | |||||||||
| Section 1.9 | Rule 144 Reporting | 13 | |||||||||
| Section 1.10 | Termination of Registration Rights | 13 | |||||||||
| Section 1.11 | Transfer of Registration Rights | 14 | |||||||||
| ARTICLE II TERMINATION | 14 | ||||||||||
| Section 2.1 | Termination | 14 | |||||||||
| Section 2.2 | Effect of Termination; Survival | 14 | |||||||||
| ARTICLE III GENERAL PROVISIONS | 14 | ||||||||||
| Section 3.1 | No Confidential Information | 14 | |||||||||
| Section 3.2 | Fees and Expenses | 14 | |||||||||
| Section 3.3 | Notices | 15 | |||||||||
| Section 3.4 | Definitions | 15 | |||||||||
| Section 3.5 | Interpretation; Headings | 20 | |||||||||
| Section 3.6 | Severability | 21 | |||||||||
| Section 3.7 | Entire Agreement; Amendments | 21 | |||||||||
| Section 3.8 | Assignment; No Third Party Beneficiaries | 21 | |||||||||
| Section 3.9 | Further Assurances | 21 | |||||||||
| Section 3.10 | Governing Law; Consent to Jurisdiction; Waiver of Jury Trial | 21 | |||||||||
| Section 3.11 | Counterparts | 22 | |||||||||
| Section 3.12 | Specific Performance | 23 | |||||||||
| Section 3.13 | Waiver | 23 | |||||||||
| Section 3.14 | Recapitalization, Exchanges, etc | 23 | |||||||||
| Section 3.15 | Obligations Limited to Parties to this Agreement | 23 | |||||||||
-i-
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of [ • ], 2025 (this “Agreement”), is made between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and the purchasers listed on the signature pages hereto (each, an “Investor”). The Company and the Investor are referred to hereinafter each as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Securities Purchase Agreement dated as of June 22, 2025 between the Company and the Investors (the “Purchase Agreement”), the Investors subscribed from the Company an aggregate of [ • ] Ordinary Shares represented by [ • ] ADSs (the “Shares”), [ • ] pre-funded warrants (the “Pre-Funded Warrants”) to purchase Ordinary Shares represented by ADSs (the “Warrant Shares”) and [ • ] common warrants (the “Common Warrants”) to purchase Ordinary Shares represented by ADSs or additional Pre-Funded Warrants at the option of the holder thereof (as exercised, including the Ordinary Shares underlying any such additional Pre-Funded Warrants, collectively the “Common Warrant Shares”) (the “Common Equity Offering”);
WHEREAS, the Parties are entering into this Agreement to set forth certain rights of the Investors relating to the registration of the Shares, the Warrant Shares and the Common Warrant Shares;
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Resale Shelf Registration.
(a) Within fifteen (15) days following the closing of the Common Equity Offering (the “Filing Date”), the Company shall (i) file with the SEC a Shelf Registration Statement on Form F-3 or Form S-3, as applicable (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible and, if the Company is not then eligible to register the resale of the Registrable Securities on Form F-3 or Form S-3, as applicable, such registration shall be on another appropriate form), which Registration Statement shall include a “plan of distribution” reasonably acceptable to the Investors, or (ii) prepare an amendment to an existing and effective Registration Statement (the “Transaction Shelf Registration Statement”), in each case, with respect to the registration under the Securities Act of the resale of all of the Registrable Securities, in each case, which shall include a prospectus in such form to permit the Investors to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) beginning on the effective date for such Registration Statement. The Company shall use its commercially reasonable efforts to cause such Transaction Shelf Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later the Effectiveness Date, and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and
the provisions of Section 1.3. The Company hereby represents that, as of the date hereof, it is eligible to use Form F-3 for primary offerings under General Instruction I.B(1) of Form F-3.
(b) Notwithstanding anything to the contrary herein, any Registrable Securities sold pursuant thereto shall be in the form of ADSs.
(c) If the Transaction Shelf Registration Statement filed under Section 1.1(a) or any Registration Statement filed under this Section 1.1(c) ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend such Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the Registrable Securities covered by and not sold under the Transaction Shelf Registration Statement. If such a Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after such filing and to keep such Registration Statement continuously effective during the Effectiveness Period, and such Registration Statement shall be deemed a Transaction Shelf Registration Statement hereunder.
(d) If: (i) the Shelf Registration Statement is not filed on or prior to its Filing Date (if the Company files the Shelf Registration Statement without affording the Investors the opportunity to review and comment on the same as required by Section 1.4(a) herein or the Company subsequently withdraws the filing of the Shelf Registration Statement, for reasons other than at the request of the Investors of a majority-in-interest of the Registrable Securities to withdraw the Shelf Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) a Shelf Registration Statement registering for resale all of the Registrable Securities included in such Shelf Registration Statement is not declared effective by the SEC by the Effectiveness Date of the initial Shelf Registration Statement filed pursuant to this Agreement, or (iii) after the effective date of a Shelf Registration Statement, such Shelf Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Shelf Registration Statement, or the Investors are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, except as permitted by Section 1.3(a) hereof (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (ii), the date on which such Event occurs, and for purpose of clause (iii) the date on which the suspension exceeds the Suspension Period permitted under Section 1.3(a) hereof, being referred to as an “Event Date”), then, in addition to any other rights the Investors may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to an Investor under this Agreement shall be 6.0% of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 10.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such partial liquidated damages are
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due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
Section 1.2 Expenses. Except as specifically provided herein, all Registration Expenses incurred in connection with the registration or offering and sale of the Registrable Securities shall be borne by the Company and all Selling Expenses shall be borne by the Investors; provided that, notwithstanding anything herein to the contrary, in no event shall the Investors bear or be responsible for any fees or expenses of the Company’s legal counsel in connection with the registration or offering and sale of Registrable Securities.
Section 1.3 Suspensions.
(a) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice (a “Notice of Suspension”) to each Investor (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality), to require the Investors to suspend the use of the Prospectus for sales of Registrable Securities under an effective Registration Statement for a reasonable period of time not to exceed, combined with any other suspensions under this Agreement, forty five (45) consecutive days or seventy five (75) days in the aggregate in any twelve (12)-month period (a “Suspension Period”), and provided that the Company shall not be entitled to impose more than two (2) Suspension Periods during any twelve (12)-month period, if the Board determines in good faith that such use would (i) require the public disclosure of material non-public information concerning any material transaction or negotiations involving the Company that would interfere with such material transaction or negotiations or (ii) otherwise materially interfere with material financing plans, acquisition activities or business activities of the Company; provided, that if at the time of receipt of such notice by an Investor, such Investor shall have sold all or a portion of the Registrable Securities pursuant to an effective Registration Statement such suspension shall not be deemed to prohibit the settlement of such sale by delivery of Registrable Securities, and if the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities Laws by the time such Registrable Securities are scheduled to be delivered. Immediately upon receipt of a Notice of Suspension, the Investors shall discontinue the disposition of Registrable Securities under an effective Registration Statement and Prospectus relating thereto until the Suspension Period is terminated.
(b) The Company agrees that it will terminate any Suspension Period as promptly as reasonably practicable and will promptly notify in writing each Investor, to the extent it still beneficially owns Registrable Securities, of such termination (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality). After the expiration of any Suspension Period in the case of an effective Registration Statement, and without the need for any further request from the Investors, the Company shall, as applicable and as promptly as reasonably practicable, prepare a post-effective amendment or supplement to such Registration Statement, the relevant Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration
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Statement or the Prospectus, as applicable, will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 1.4 Registration Procedures. The Company will use its commercially reasonable efforts to effect the registration and the offer and sale of Registrable Securities in accordance with the intended method of disposition thereof as soon as reasonably practicable, and shall, in connection therewith:
(a) prepare and promptly file with the SEC a Registration Statement (or a prospectus supplement, as applicable) with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;
(b) (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement, (ii) cause any Prospectus or supplement thereto to be filed pursuant to Rule 424 under the Securities Act when so required and (iii) provide reasonable notice to the Investor to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate (provided that in no event shall such notice contain any material, non-public information);
(c) (i) furnish to the Investor as far in advance as reasonably practicable (and in any case not less than five (5) Business Days) before filing any Registration Statement contemplated by this Agreement or any Prospectus to be used in connection therewith or any supplement or amendment thereto, only upon request of the Investor, copies (or such requested portions of copies) of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide the Investor the opportunity to object to any information pertaining to such Investor and its plan of distribution that is contained therein and make the corrections reasonably requested by such Investor with respect to such information prior to filing a Registration Statement or any Prospectus to be used in connection therewith or supplement or amendment thereto, and (ii) furnish to the Investor, without charge, such number of copies of the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including each preliminary prospectus) and any other prospectuses filed under Rule 424 and each Free Writing Prospectus as such Persons reasonably may request in order to facilitate the sale of the Registrable Securities covered by such Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or “blue sky” Laws of such jurisdictions as the Investor reasonably shall request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Investor to consummate the disposition in such jurisdictions; provided, however, that the Company shall not for any such purpose be required
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to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;
(e) enter into customary agreements and take such other actions as are reasonably requested by the Investor in order to expedite or facilitate the disposition of Registrable Securities;
(f) if the Investor could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with a Registration Statement and any amendment or supplement thereof (an “Investor Underwriter Registration Statement”), then, at the Investor’s request, the Company will furnish to the Investor, on the date of the effectiveness of the Investor Underwriter Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (provided that such request shall not be more frequently than on an annual basis unless the Investor is offering Registrable Securities pursuant to an Investor Underwriter Registration Statement), (i) a “comfort letter”, dated such date, from the Company’s independent certified public accountants in form and substance as has been customarily given by independent certified public accountants to underwriters in underwritten offerings of securities by the Company, addressed to the Investor, (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of the Investor Underwriter Registration Statement, in form, scope and substance as has been customarily given in underwritten offerings of securities by the Company, including standard “10b-5” negative assurance for such offerings, addressed to the Investor and (iii) a standard officer’s certificate from the chief executive officer or chief financial officer, or other officers serving such functions, of the Company addressed to the Investor, as has been customarily given by such officers in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary in this Agreement, the Company will not name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act) in any Registration Statement or Investor Underwriter Registration Statement, as applicable, without the Investor’s consent. If the staff of the SEC requires the Company to name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act), and the Investor does not consent thereto, then the Investor’s Registrable Securities shall not be included on the applicable Registration Statement, and the Company shall have no further obligations hereunder with respect to Registrable Securities held by the Investor, unless the Investor has not had an opportunity to conduct customary underwriter’s due diligence with respect to the Company at the time the Investor’s consent is sought;
(g) promptly notify the Investor: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of the Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any
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proceedings for that purpose; or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” Laws of any jurisdiction or the initiation of any proceeding for such purpose (provided that in no event shall such notices under clauses (ii) or (iii) contain any material, non-public information unless consented to in advance by the Investor).
(h) if at any time (i) any event or development shall occur or condition shall exist as a result of which the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company will promptly notify the Investor and promptly prepare and file with the SEC (to the extent required) and furnish to the Investor such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package, as so amended or supplemented, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, be misleading, or so that the Disclosure Package will comply with Law;
(i) use its commercially reasonable efforts to make generally available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
(j) use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on the NYSE or, if not the NYSE, the primary trading market or any other national securities exchange on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed;
(k) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(l) immediately notify each Investor, at any time when a Prospectus is required to be delivered under the Securities Act, of the occurrence or happening of any event as a result of which the Prospectus contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing (provided that in no event shall such notice contain any material, non-public information), and, as promptly as reasonably practicable prepare and furnish to each such Investor a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(m) in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration
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Statement or any other document in connection therewith, give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Investor or its legal counsel;
(n) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose (provided that in no event shall such notices under this clause (n) contain any material, non-public information unless consented to in advance by the Investor);
(o) otherwise use its commercially reasonable efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Investor in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Registrable Securities to be sold from time to time as permitted by Law;
(p) use its commercially reasonable efforts to cooperate with the Investor and its counsels in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, the NYSE or any other national securities exchange on which the Registrable Securities are listed;
(q) pay the applicable filing fees covering the Registrable Securities in compliance with the SEC rules and to file such amendments or subsequent registration statements as may be required to maintain an effective registration statement for the relevant Effectiveness Period;
(r) use its commercially reasonable efforts to cooperate with the Investor in the disposition of the Registrable Securities covered by such Registration Statement; and
(s) if a Registration Statement is an ASRS that has been outstanding for at least three (3) years, at or prior to the end of the third (3rd) year, the Company shall refile a new ASRS covering the Registrable Securities which remain outstanding. If at any time when the Company is required to re-evaluate its ASR Eligible status or eligibility to use Form F-3 or Form S-3, as applicable, the Company determines that it is not ASR Eligible or eligible to use Form F-3 or Form S-3, as applicable, the Company shall use its commercially reasonable efforts to refile the Transaction Shelf Registration Statement on Form F-3 or Form S-3, as applicable, and, if such form is not available, Form F-1 or Form S-1 (or other appropriate form) and keep the Transaction Shelf Registration Statement continuously effective subject to Section 1.3.
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Section 1.5 Effectiveness Period. For purposes of this Article I, the period of distribution of Registrable Securities pursuant to a Registration Statement shall be deemed to extend until the sale of all Registrable Securities covered thereby (such period, the “Effectiveness Period”).
Section 1.6 Indemnification.
(a) Indemnification Rights.
(i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article I, the Company shall indemnify and hold harmless each Investor and each Person, if any, that controls such Investor within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, shareholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, (B) any omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided that the Company shall not be liable to an Investor Registration Rights Indemnitee to the extent that any such Damages are directly caused by any untrue statement or omission (or alleged untrue statement or omission) made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in strict reliance upon and strictly in conformity with written information about such Investor furnished to the Company by or on behalf of such Investor expressly for use therein. This indemnity shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any Investor Registration Rights Indemnitee and shall survive the Transfer of securities by each Investor.
(ii) Each Investor shall, severally and not jointly, indemnify and hold harmless the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors, officers and employees (each, a “Company Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or in any amendment or supplement thereto, in each case, to the extent that such untrue statement was made in strict reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein, (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case,
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to the extent that such omission was made in strict reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein or (C) any violation or alleged violation by the Investor of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that in no event shall the obligations of such Investor hereunder exceed the net proceeds received by it from the sale of its Registrable Securities related to the matter in which Damages are sought. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such securities by such Investor.
(iii) If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to an Investor Registration Rights Indemnitee or a Company Registration Rights Indemnitee, as applicable, with respect to any Damages referred to therein or is unenforceable or insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless as contemplated and to the extent set forth therein, then the Company or the Investor, as applicable, in lieu of indemnifying such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable by such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of such Damages in such proportion as is appropriate to reflect the relative fault of such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the Company or the Investor, as applicable, on the other hand, in connection with the statements or omissions which resulted in such Damages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or the Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 1.6(a)(iii) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 1.6(a)(iii). No Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything herein to the contrary, in no event shall the liability of an Investor in this Section 1.6(a)(iii) be greater in amount than the amount of net proceeds received by it from the sale of such Registrable Securities related to the matter in which indemnification or contribution for Damages are sought.
(b) Notice of Reg Rights Claim.
(i) As used in this Agreement, the term “Reg Rights Claim” means a claim for indemnification or contribution by or on behalf of any Company Registration Rights Indemnitee or Investor Registration Rights Indemnitee, as the case may be, for Damages under
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Section 1.6(a) (such Person making a Reg Rights Claim, a “Reg Rights Indemnified Person”). The Company (for its own Damages or for the Damages incurred by any other Company Registration Rights Indemnitee) or of an Investor (for its own Damages or for the Damages incurred by any other Investor Registration Rights Indemnitee), as applicable, shall give notice of a Reg Rights Claim under this Agreement pursuant to a written notice of such Reg Rights Claim executed by the Company or the Investor, as applicable (a “Notice of Reg Rights Claim”), and delivered to the Company or the Investor, as applicable (such receiving party, the “Reg Rights Indemnifying Person”), promptly after such Reg Rights Indemnified Person becomes aware of the existence of any potential claim by such Reg Rights Indemnified Person for indemnification arising out of or resulting from any item indemnified pursuant to the terms of Section 1.6(a)(a)(i) or Section 1.6(a)(a)(ii) as applicable; provided that the failure to timely give such notice shall not limit or reduce the Reg Rights Indemnified Person’s right to indemnification hereunder unless (and then only to the extent that) the Reg Rights Indemnifying Person’s defense of such Reg Rights Claim is actually materially and adversely prejudiced thereby.
(ii) Each Notice of Reg Rights Claim shall: (A) state the aggregate amount (where practicable) that the Reg Rights Indemnified Person has incurred or paid in Damages arising from such Reg Rights Claim (which amount may include the amount of Damages claimed by a third party in an action (a “Third-Party Reg Rights Claim”) brought against such Reg Rights Indemnified Person based on alleged facts, which if true, would give rise to liability for Damages to such Reg Rights Indemnified Person); and (B) contain a brief description, in reasonable detail (to the extent reasonably available to the Reg Rights Indemnified Person) of the facts, circumstances or events giving rise to the alleged Damages based on the Reg Rights Indemnified Person’s good faith belief and knowledge thereof, including the identity and address of any third party claimant (to the extent reasonably available to the Reg Rights Indemnified Person).
(c) Defense of Third-Party Reg Rights Claims.
(i) Subject to the provisions hereof, the applicable Reg Rights Indemnifying Person shall have the right (at its own expense) to elect to defend and assume control of the defense of any Third-Party Reg Rights Claim on behalf of a Reg Rights Indemnified Person, utilizing legal counsel reasonably acceptable to such Reg Rights Indemnified Person. In the event such election is made, the Reg Rights Indemnified Person (unless itself controlling the Third-Party Reg Rights Claim in accordance with this Section 1.6(c)) may participate, through counsel of its own choice and, except as provided herein, at its own expense, in the defense of any Third-Party Reg Rights Claim. The reasonable and documented costs and expenses incurred by the Reg Rights Indemnifying Person in connection with such defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Reg Rights Indemnifying Person.
(ii) A Reg Rights Indemnifying Person shall not be entitled to assume control of such defense, and the applicable Reg Rights Indemnified Person may assume the control and defense thereof, at the sole expense of the applicable Reg Rights Indemnifying Person, if (A) the Reg Rights Claim relates to, or arises in connection with, any criminal or governmental proceeding, action, indictment, allegation or investigation, (B) the Reg Rights Claim seeks an injunction against the Reg Rights Indemnified Person, to the extent that such defense relates to the
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claim for such injunction, (C) a conflict of interest between the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person exists with respect to the Reg Rights Claim or the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person have one or more conflicting defenses, in the reasonable view of counsel to the Reg Rights Indemnified Person, or (D) the Reg Rights Indemnifying Person has elected to have the Reg Rights Indemnified Person defend, or assume the control and defense of, a Third-Party Reg Rights Claim in accordance with this Section 1.6(c); provided that in no event shall the Reg Rights Indemnifying Person be liable for the fees and expenses of more than one separate counsel (and one local counsel) for all similarly-situated Reg Rights Indemnified Persons, which counsel shall be selected by the Investors (in the case of the Investor Registration Rights Indemnitees) or by the Company (in the case of the Company Registration Rights Indemnitees).
(iii) Any party controlling the defense of any Third-Party Reg Rights Claim pursuant hereto shall: (A) conduct the defense of such Third-Party Reg Rights Claim with reasonable diligence and keep the other parties reasonably informed of material developments in the Third-Party Reg Rights Claim at all stages thereof, (B) as promptly as reasonably practicable, submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other parties and their counsel to confer on the conduct of the defense thereof, and (D) permit the other parties and their counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties not controlling the defense will render to the party controlling the defense such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the party controlling the defense in connection therewith. The Reg Rights Indemnifying Person shall reimburse the parties not controlling the defense for any reasonable and documented costs and expenses incurred in connection with providing such assistance. Notwithstanding anything to the contrary in this Agreement, no Party shall be required to disclose any information to the other Party or its Representatives, if doing so would be reasonably expected to violate any Law to which such Party is subject or could jeopardize (in the reasonable discretion of the disclosing Party) any attorney-client privilege available with respect to such information.
(iv) If the Reg Rights Indemnifying Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnifying Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim on the Reg Rights Indemnified Person’s behalf and without the consent of the Reg Rights Indemnified Person; provided that (A) such settlement shall not involve any injunctive relief binding upon the Reg Rights Indemnified Person or any of its Affiliates, (B) such settlement expressly and unconditionally releases the Reg Rights Indemnified Person and the other applicable Reg Rights Indemnified Persons (that is, each of the Company Registration Rights Indemnitees, if the Reg Rights Indemnified Person is a Company Registration Rights Indemnitee, and each of the Investor Registration Rights Indemnitees, if the Reg Rights Indemnified Person is an Investor Registration Rights Indemnitee) from any and all liabilities with respect to such Third-Party Reg Rights Claim, with prejudice; (C) such settlement shall not include any admission as to fault, culpability or failure to act on the part of the Reg Rights Indemnified Person and (D) the Reg Rights Indemnifying Person unconditionally acknowledges in writing to the Reg Rights Indemnified Person its obligation to pay (and pays) all Damages of the Reg Rights Indemnified Person with respect to
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such Third-Party Reg Rights Claim. In all other events, the consent of the Reg Rights Indemnified Person shall be required to effect such a settlement. If the Reg Rights Indemnified Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnified Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim only with the consent of the Reg Rights Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). No settlement by the Reg Rights Indemnified Person of such Third-Party Reg Rights Claim effected in accordance with this Section 1.6(c) shall limit or reduce the right of any Reg Rights Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Reg Rights Claim, to the extent such Damages are indemnifiable hereunder. As used in this Section 1.6(c)(iv), the term “settlement” refers to any consensual resolution of the claim in question, including by consent decree or by permitting any judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.
Section 1.7 Free Writing Prospectuses. Except for a Prospectus relating to Registrable Securities included in a Registration Statement, an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) prepared by the Company or other materials prepared by Company, each Investor represents and agrees that it (a) will not make any offer relating to the Registrable Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a Free Writing Prospectus, and (b) will not distribute any written materials in connection with the offer or sale pursuant to a Registration Statement of Registrable Securities, in each case, without the prior written consent of the Company.
Section 1.8 Information from and Obligations of each Investor. The Company’s obligation to include the Investor’s Registrable Securities in any Registration Statement or Prospectus is contingent upon each of the Investors:
(a) furnishing to the Company in writing information with respect to its ownership of Registrable Securities and the intended method of disposition of its Registrable Securities as may be required by the Company and as required by Law for use in connection with a Registration Statement or Prospectus (or any amendment or supplement thereto) and all information required to be disclosed in order to make the information the Investor previously furnished to the Company not contain a material misstatement of fact or necessary to cause such Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material fact with respect to the Investor necessary in order to make the statements therein not misleading;
(b) complying in all material respects with (i) the Securities Act and the Exchange Act, (ii) all applicable state securities Laws, (iii) the rules of any securities exchange or trading market on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed or traded, and (iv) all other applicable regulations, in each case, in connection with, and only to the extent applicable to, the registration and the disposition of Registrable Securities by the Investor;
(c) following its actual knowledge thereof, notifying the Company of the occurrence of any event that makes any statement made in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus regarding the Investor untrue in any material respect or that requires the making of any changes in a Registration Statement,
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Prospectus, issuer free writing prospectus or other Free Writing Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements not misleading; provided, however, that such Investor shall not be required to notify the Company of any disposition of securities pursuant to any such Registration Statement or Prospectus;
(d) providing the Company with such information related to the Investor as may be required to enable the Company to prepare a supplement or post-effective amendment to any such Registration Statement or a supplement to such Prospectus or Free Writing Prospectus;
(e) using commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement and any related Prospectus; and
(f) furnishing the Company with all information required to be included in such Registration Statement or Prospectus by applicable securities Laws in connection with the disposition of such Registrable Securities as the Company reasonably requests.
Section 1.9 Rule 144 Reporting.
(a) With a view to making available to each Investor the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to make and keep available adequate current public information, as defined in Rule 144(c), including all periodic and annual reports and other documents (other than Form 6-K reports) required of the Company under Sections 13 or 15(d) of the Exchange Act, and so long as an Investor beneficially owns any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Investor may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any Registrable Securities without registration.
(b) For the avoidance of doubt, each Investor may sell any Registrable Securities in compliance with Rule 144, regardless of whether a Registration Statement has been filed with the SEC or is effective. The Company agrees to (i) make and keep public information available as those terms are understood and defined in Rule 144, (ii) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, and (iii) so long as an Investor owns any Registrable Securities, furnish to such Investor upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act.
Section 1.10 Termination of Registration Rights. Notwithstanding anything to the contrary contained herein and subject to Section 1.11, the registration rights granted under this Article I terminate and are of no further force and effect (other than Section 1.2 and Section 1.6), on the date on which there cease to be any Registrable Securities.
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Section 1.11 Transfer of Registration Rights. Each Investor shall have the right to Transfer to any Person (such Person, a “Transferee Investor”), directly or indirectly, by written agreement, all of its related rights and obligations granted under this Article I in connection with a Transfer of all of its Registrable Securities to such Person; provided, that in the case of Transfers to limited partners, members or Affiliates of an Investor, such Investor shall have the right to transfer its related rights and obligations under this Article I in connection with the Transfer of all or any portion of its Registrable Securities. Such Transferee Investor shall, following such Transfer, become responsible for all obligations applicable to the Investor under this Article I with respect to the Registrable Securities Transferred to such Transferee Investor.
ARTICLE II
TERMINATION
Section 2.1 Termination. This Agreement shall terminate upon the earlier of (i) the time when there are no Registrable Securities outstanding, (ii) the time when all of the Registrable Securities (a) are freely transferable under Rule 144 and the securities laws of any other applicable jurisdiction without limitation, or any volume, manner-of-sale or other restrictions or conditions, without registration and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Company’s transfer agent and the Investor, and (B) do not and/or shall not when issued bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP, and (iii) the mutual written agreement of each Investor and the Company.
Section 2.2 Effect of Termination; Survival. In the event of any termination of this Agreement pursuant to Section 2.1, this Agreement shall be terminated, and there shall be no further liability or obligation hereunder on the part of any Party, other than Section 1.6, Section 1.9, this Section 2.2 and Article III, which provisions shall survive such termination; provided, however, that nothing contained in this Agreement (including this Section 2.2) shall relieve a Party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent occurring prior to such termination.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 No Confidential Information. In no event shall the Company or its Representatives provide any non-public records, books, Contracts, instruments, computer data or other data or information concerning the Company or its subsidiaries to an Investor unless the Investor has agreed to accept such information in writing beforehand.
Section 3.2 Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
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Section 3.3 Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company, addressed to it at:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: Steven E. Siesser, Esq.
Brooke A. Gillar, Esq.
Email: ssiesser@lowenstein.com;
bgillar@lowenstein.com
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: Véronique Gedeon
Mark Richardson
Email: mrichardson@archers.fr;
vgedeon@archers.fr
If to the Investor, addressed to it at: to such address or addresses set forth on the signature page hereto.
Section 3.4 Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
“Action” means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case, whether civil, criminal or investigative).
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“Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of an Investor shall be deemed to be an “Affiliate” of the Investor.
“American Depositary Shares” or “ADSs” means those certain American Depositary Shares issued pursuant to a deposit agreement by and among the Company, Bank of New York Mellon (or any successor thereto), as depositary, and the owners and holders of American Depositary Shares, as such agreement may from time to time be amended.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“ASR Eligible” means the Company meets or is deemed to meet the eligibility requirements to file an ASRS as set forth in the General Instruction to Form F-3 or Form S-3, as applicable.
“ASRS” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.
“Board” or “Board of Directors” means the board of directors of the Company, or any duly authorized committee thereof.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States, a legal holiday in the Republic of France or any day on which banking institutions in the State of New York or in the Republic of France are authorized or required by law or other governmental action to close.
“Common Warrant” has the meaning set forth in recitals to this Agreement.
“Common Warrant Shares” has the meaning set forth in recitals to this Agreement.
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(ii).
“Contract” means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license, sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.
“controlling person” has the meaning set forth in Section 1.6(a)(i).
“Damages” means any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities, judgments, and reasonable and documented out-of-pocket expenses
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incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs.
“Disclosure Package” means, with respect to any offering of Registrable Securities, (a) the preliminary Prospectus or Prospectus, as applicable, (b) each Free Writing Prospectus, and (c) all other information, in each case, that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of Registrable Securities at the time of sale of such securities.
“Effectiveness Date” means, with respect to the Transaction Shelf Registration Statement, no later than the 60th calendar day following the Filing Date (or, in the event of a “full review” by the SEC, the 75th calendar day following the Filing Date) and with respect to any additional Registration Statements which may be required pursuant to this Agreement, the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the SEC, the 75th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the SEC that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the 5th Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above.
“Effectiveness Period” has the meaning set forth in Section 1.5.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor regulatory organization.
“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act relating to the Registrable Securities included in the applicable Registration Statement that has been approved for use by the Company.
“Governmental Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body of competent jurisdiction.
“Investor” has the meaning set forth in the preamble to this Agreement.
“Investor Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(i).
“issuer free writing prospectus” has the meaning set forth in Section 1.7.
“Law” any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law), statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.
“Notice of Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
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“Notice of Suspension” has the meaning set forth in Section 1.3(a).
“Order” means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena, writ, decree or verdict entered by or with any Governmental Entity.
“Ordinary Shares” means ordinary shares, nominal value €0.01 per share, of the Company.
“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.
“Person” means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
“Pre-Funded Warrant” has the meaning set forth in recitals to this Agreement.
“Prospectus” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference, or deemed to be incorporated by reference, into such prospectus.
“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.
“Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnified Person” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnifying Person” has the meaning set forth in Section 1.6(b)(i).
“Registrable Securities” means (i) the Shares, (ii) the Warrant Shares, (iii) the Common Warrant Shares and (iv) any Ordinary Shares or Ordinary Shares represented by ADSs issued (or issuable upon the conversion or exercise of any warrant, right or other security that is issued) as a result of any stock split, recapitalization, exchange, dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares, the Warrant Shares, and/or the Common Warrant Shares; provided, that a security will cease to be a Registrable Security on the earliest to occur of (a) the date such Registrable Security has been resold by such Investor pursuant to a Registration Statement or Rule 144 or (b) upon the date such Registrable Security becomes eligible for resale by such Investor under Rule 144 without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144.
“Registration Expenses” means (whether or not any Registration Statement is declared effective or any of the transactions described herein is consummated) all expenses incurred by the Company in filing a Registration Statement, including, all registration and filing fees, fees and disbursements of counsel for the Company, SEC or FINRA registration and filing fees, all applicable ratings agency fees, expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration, fees
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and expenses of compliance with securities or “blue sky” Laws, costs of any comfort letters required by any underwriter, listing fees, printing, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, the Company’s internal expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on the New York Stock Exchange or any other securities exchange, roadshow expenses, all other expenses incident to the registration of the Registrable Securities; provided, that the term “Registration Expenses” does not include, and the Company shall not be responsible for, Selling Expenses.
“Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act filed with the SEC covering the resale of Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such Registration Statement.
“Representatives” means a Person’s officers, directors, employees, accountants, consultants, legal counsel, investment bankers, other advisors, authorized agents and other representatives.
“Rule 144” means Rule 144 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“Rule 415” means Rule 415 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“Selling Expenses” means, in connection with the registration or offering and sale of the Registrable Securities, (a) all underwriting fees, discounts and selling commissions fees, (b) stock transfer taxes applicable to the sale of the Registrable Securities, and (c) fees and expenses of any counsel to the Investors other than the counsel referred to in the definition of Registration Expenses.
“settlement” and “settle” have the meanings set forth in Section 1.6(c)(iv).
“Shares” has the meaning set forth in the recitals to this Agreement.
“Shelf Registration Statement” means a registration statement filed with the SEC for the sale of Registrable Securities pursuant to Rule 415 under the Securities Act.
“Suspension Period” has the meaning set forth in Section 1.3(a).
“Third-Party Reg Rights Claim” has the meaning set forth in Section 1.6(b)(ii).
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“Transaction Documents” means collectively, this Agreement, the Purchase Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Transaction Shelf Registration Statement” has the meaning set forth in Section 1.1(a).
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities.
“Transferee Investor” shall have the meaning set forth in Section 1.11.
“Warrant Shares” shall have the meaning set forth in the recitals to this Agreement.
Section 3.5 Interpretation; Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall limit the applicability of a more general provision, representation or warranty. It is the intent of the Parties that each representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent effect and that such provisions are cumulative. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless otherwise specified.
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Section 3.6 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Purchase Agreement and this Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Section 3.7 Entire Agreement; Amendments. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 3.8 Assignment; No Third Party Beneficiaries. Except as expressly provided herein, including, without limitation, the transfer of rights and obligations as set forth in Section 1.11, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 3.9 Further Assurances. Each Party shall cooperate, take such actions, enter into such agreements (including customary indemnification and contribution agreements) and execute such documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby; provided, however, that no Party shall be obligated to take any actions or omit to take any actions that would be inconsistent with applicable Law.
Section 3.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates). Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of such
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courts for the purpose of any Action arising out of or relating to this Agreement brought by either Party, (b) agrees that service of process will be validly effected by sending notice in accordance with Section 3.3, (c) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above named courts, and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
(b) EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.
(c) The Company agrees that service to the Process Agent (as defined below) or as otherwise specified in Section 3.3 shall be valid and sufficient service, and the Company waives any objections to such service. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 (the “Process Agent”), as the designee, appointee and agent of the Company to receive, for and on behalf of the Company, service of process for the purposes of this Section 3.10. The Company irrevocably waives any requirements for service abroad of process or other documents, including under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Company agrees that service of process in respect of it upon the Process Agent shall be deemed to be effective service of process upon it. The Company agrees that the failure of the Process Agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any Action based thereon. If for any reason the Process Agent shall cease to be available to act as such, the Company agrees to irrevocably appoint another such agent as its authorized agent for service of process, on the terms and for the purposes of this Section 3.10. Nothing herein shall in any way be deemed to limit the ability of the Investor to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable Law
Section 3.11 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the Parties in separate counterparts, each of which
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when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 3.12 Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by the other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. Each Party further agrees that neither the other Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 3.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 3.13 Waiver. Any Party entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.
Section 3.14 Recapitalization, Exchanges, etc.
(a) The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares or other securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise), which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, stock splits, recapitalizations, pro rata distributions of stock and the like occurring after the date of this Agreement.
(b) The Company agrees that it shall not effect or permit to occur any combination or subdivision of Ordinary Shares or other securities constituting Registrable Securities which would adversely affect the ability of the Investors to include such Registrable Securities in any registration contemplated by this Agreement or the marketability of such Registrable Securities in any such registration.
Section 3.15 Obligations Limited to Parties to this Agreement. Each of the Parties hereto covenants, agrees and acknowledges that no Person other than the Investors (and their transferees or assignees) and the Company shall have any obligation hereunder and that notwithstanding that an Investor is a limited partnership, limited liability company or other entity, no recourse under this Agreement shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member,
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shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, as such, for any obligations of the Investor under this Agreement or for any claim based on, in respect of or by reason of such obligation or its creation.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the date first written above, by their respective officers thereunto duly authorized.
| SEQUANS COMMUNICATIONS SA | ||||||||
| By: | ||||||||
| Name: Georges Karam | ||||||||
| Title: Chief Executive Officer | ||||||||
[Signature Page to Registration Rights Agreement]
| INVESTOR | ||||||||
| by: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Duly authorized | ||||||||
EXHIBIT B
FORM OF SUBSCRIPTION FORM
[Purchaser’s letterhead]
SUBSCRIPTION FORM | ||
In connection with the proposed offering of (a) ordinary shares represented by ADSs and/or pre-funded warrants, each such warrant to purchase ten ordinary shares represented by one ADS1, and (b) accompanying common warrants, each such warrant to purchase ten ordinary shares represented by one ADS2 or one pre-funded warrant, by Sequans Communications S.A. (the “Company”) in the context of a capital increase without preferential subscription rights for existing shareholders reserved to specific categories of investors in accordance with the provisions of the 15th resolution of the Company’s extraordinary general shareholders’ meeting held on June 30, 2025 (the “Shareholders Meeting”) (the “Offering”),
I, the undersigned, _______________, a __________ company incorporated under the laws of _________ with a share capital of ______________, whose registered office is at ________________________________, registered at ______________ under number ______________, represented by ________________, in his/her capacity as ________________________, duly authorized for the purposes hereof;
Pursuant to the fifteenth resolution of the Shareholders Meeting and the decisions of the Board of Directors dated June 15th, 2025 to waive the said preferential subscription rights in favor of a list of beneficiaries falling under the specific categories of investors provided in the fifteenth resolution, in respect of _________________ new ordinary shares and subject to the Board of Directors or the Chief Executive Officer’s decision to be dated on or about June 30th, 2025 to proceed with the Offering; and
After having reviewed the Company's bylaws and the terms and conditions of the ordinary shares issuance, the pre-funded warrants issuance and the common warrants issuance approved by the Shareholders Meeting
hereby declare:
- To subscribe for _________________________ (_______________) new ordinary shares _________________at a price of USD_________________ per share;
- [To subscribe for _________________________ (_______________) pre-funded warrants _________________at a subscription price of USD_________________ per warrant;]3
- To subscribe for _________________________ (_______________) common warrants _________________at a subscription price of USD_________________ per warrant;
- To pay up the entire subscription price for the ordinary shares, i.e. the sum of __________________ (USD_________), today, in full by cash payment into the account ”augmentation de capital” opened for this purpose in the name of the Company with the bank Société Générale, the account details of which are as follows:
[Bank account details of the account “augmentation de capital” to be provided by the Company];
1 Please note that pre-funded warrants would have to be exercised in integral multiples of 10 as 10 ordinary shares are represented by 1 ADS.
2 Please note that common warrants would have to be exercised in integral multiples of 10 as 10 ordinary shares are represented by 1 ADS.
3 To be deleted if purchaser does not subscribe for pre-funded warrants
- [To pay up the entire subscription price for the pre-funded warrants, i.e. the sum of __________________ (USD________ ), today, in full by cash payment into the dedicated bank account opened in the books of BNP Paribas, in the name of the Company, the account details of which
are as follows:
Bank account details of the account at BNP Paribas to be provided by the Company];3
- To pay up the entire subscription price for the common warrants, i.e. the sum of __________________ (USD________ ), within 90 days of the date hereof, in full by cash payment into the dedicated bank account opened in the books of BNP Paribas, in the name of the Company, the account details of which are as follows:
[Bank account details of the account at BNP Paribas to be provided by the Company]
hereby provide:
the Bank account from which the aggregate subscription price will be wired:
[●]
the Securities account to which the ADSs representing the ordinary shares will be credited:
[●]
the Securities account to which the warrants will be credited:
[●]
Aggregate subscription price for the ordinary shares: [●]
[Aggregate subscription price for the pre-funded warrants: [●]]3
Aggregate subscription price for the common warrants: [●]
Number of ordinary shares subscribed: [●]
[Number of pre-funded warrants subscribed: [●]]3
Number of common warrants subscribed: [●]
[Please insert the following in case of execution of the Agreement by a management company on behalf of investment funds:
Name(s) of the investors represented by the Purchaser and number of new ordinary shares, pre-funded warrants and common warrants subscribed for by each of them:
_____________________________ for ____________ new ordinary shares, ____________ pre-funded warrants and ____________ common warrants
_____________________________ for ____________ new ordinary shares, ____________ pre-funded warrants and ____________ common warrants
_____________________________ for ____________ new ordinary shares, ____________ pre-funded warrants and ____________ common warrants]4
4 To be deleted if purchaser is not a management company subscribing on behalf of investment funds
[The signature of the subscriber must be preceded by the handwritten words "Good for subscription of_________________ (____________) new ordinary shares" in letters and numbers.]
At _______________, dated on _____________________
In two copies, one of which has remained in my possession
(Signatures)
EXHIBIT C
SUMMARY OF RISKS
Certain factors may have a material adverse effect on the business, financial condition and results of operations of the Company and your proposed investment in the Company. The risks and uncertainties described below are not the only ones that the Company faces. Additional risks that the Company are unaware of, or that the Company currently believes are not material, may also become important factors that materially adversely affect the Company. If any of the risk factors discussed in the SEC Documents or any of the following risks actually occur, the business, financial condition, results of operation, and future prospects of the Company could be adversely affected, the trading price of the ADSs could decline, and you could lose all or part of your investment.
Risks Related to the Issuer’s Business and Bitcoin Strategy and Holdings
The Company’s financial results and the market price of the ADSs may be affected by the prices of Bitcoin.
Investing in Bitcoin will expose the Company to certain risks associated with Bitcoin, such as price volatility, limited liquidity and trading volumes, relative anonymity, potential susceptibility to market abuse and manipulation, theft, compliance and internal control failures at exchanges and other risks inherent in its electronic, virtual form and decentralized network.
The Company will have broad discretion in how it executes its Bitcoin strategy, including the timing of purchases and sale of Bitcoin and Bitcoin-related products. The Company may not execute its strategy effectively, which could affect its results of operations and cause its stock price to decline. We are continually examining the risks and rewards of our strategy to acquire and hold Bitcoin. This strategy has not been tested over an extended period of time or under different market conditions.
A significant decrease in the market value of the Company’s Bitcoin holdings could adversely affect its ability to satisfy its financial obligations under the Convertible Debt Financing and any subsequent debt financings.
Unrealized fair value gains on its Bitcoin holdings could cause the Company to become subject to the corporate alternative minimum tax under the Inflation Reduction Act of 2022.
Bitcoin is a highly volatile asset, and fluctuations in the price of Bitcoin are likely to influence the Company’s financial results and the market price of the ADSs.
Bitcoin and other digital assets are novel assets, and are subject to significant legal, commercial, regulatory and technical uncertainty.
The availability of spot exchange-traded products (“ETPs”) for Bitcoin and other digital assets may adversely affect the market price of its listed securities. Although we are an operating company, and we believe we offer a different value proposition than a Bitcoin investment vehicle such as a spot Bitcoin ETP, investors may nevertheless view our ADSs as an alternative to an investment in an ETP, and choose to purchase shares of a spot Bitcoin ETP instead of our ADSs. They may do so for a variety of reasons, including if they believe that ETPs offer a “pure play” exposure to Bitcoin that is generally not subject to federal income tax at the entity level as we are, or the other risk factors applicable to an operating business, such as ours.
The Company’s Bitcoin strategy may subject it to enhanced regulatory oversight. The application of state and federal securities laws and other laws and regulations to digital assets is unclear in certain respects, and it is possible that regulators in the United States or foreign countries may interpret or apply existing laws and regulations in a manner that adversely affects the price of Bitcoin or the ability of individuals or institutions such as us to own or transfer Bitcoin. The U.S. federal government, states, regulatory agencies, and foreign countries may also enact new laws and regulations, or pursue regulatory, legislative, enforcement or judicial actions, that could materially impact the price of Bitcoin or the ability of individuals or institutions such as us to own or transfer Bitcoin.
Bitcoin trading venues are relatively new and, in many cases, unregulated. Furthermore, there are many Bitcoin trading venues which do not provide the public with significant information regarding their ownership structure, management teams, corporate practices and regulatory compliance. As a result, the marketplace may lose confidence in Bitcoin trading venues, including prominent exchanges that handle a significant volume of Bitcoin trading and/or are subject to regulatory oversight, in the event one or more Bitcoin trading venues cease or pause for a prolonged period the trading of Bitcoin or other digital assets, or experience fraud, significant volumes of withdrawal, security failures or operational problems.
The concentration of Bitcoin holdings may enhance the risks inherent in the Company’s Bitcoin strategy.
The Company’s Bitcoin holdings will be less liquid than existing cash and cash equivalents and may not be able to serve as a source of liquidity for it to the same extent as cash and cash equivalents.
If the Company or any third-party service providers it utilizes to execute its Bitcoin strategy experience a security breach, technological failure, or cyber-attack and unauthorized parties obtain access to its Bitcoin assets, the Company may lose some or all of its Bitcoin assets and its financial condition and results of operations could be materially adversely affected.
The Company will face risks relating to the custody of its Bitcoin at third party custodians, including the loss or destruction of private keys required to access its Bitcoin and cyberattacks or other data loss relating to its Bitcoin. Furthermore, if our custodially-held Bitcoin were considered to be the property of our custodians’ estates in the event that any such custodians were to enter bankruptcy, receivership or similar insolvency proceedings, we could be treated as a general unsecured creditor of such custodians, inhibiting our ability to exercise ownership rights with respect to such Bitcoin, or delaying or hindering our access to our bitcoin holdings, and this may ultimately result in the loss of the value related to some or all of such Bitcoin, which could have a material adverse effect on our financial condition as well as the market price of our listed securities
While senior SEC officials have stated their view that Bitcoin is not a “security” for purposes of the federal securities laws, a contrary determination by the SEC could lead to our classification as an “investment company” under the Investment Company Act of 1940, which would subject us to significant additional regulatory controls that could have a material adverse effect on our ability to execute on our Bitcoin strategy, and our business and operations and may also require us to substantially change the manner in which we conduct our business.
The Company’s Bitcoin strategy exposes it to risk of non-performance by counterparties. A series of high-profile bankruptcies, closures, liquidations, regulatory enforcement actions and other events relating to companies operating in the digital asset industry in recent years have highlighted the counterparty risks applicable to owning and transacting in digital assets. Additional bankruptcies, closures, liquidations, regulatory enforcement actions or other events involving participants in the digital assets industry in the future may further negatively impact the adoption rate, price, and use of Bitcoin, limit the availability to us of financing collateralized by bitcoin, or create or expose additional counterparty risks.
Risks Related to the Transaction and the Debentures
The Company intends to use the net proceeds from this offering to purchase Bitcoin, the price of which has been, and will likely continue to be, highly volatile.
The Company will have broad discretion in the use of the net proceeds from this offering and investors will not have the opportunity as of this process to assess whether the net proceeds are being used in a manner of which you approve.
The Company’s indebtedness and future indebtedness could affect its financial condition and prevent it from fulfilling its obligations under the Debentures.
The Company’s ability to generate sufficient cash flows to satisfy its debt obligations, or to refinance its indebtedness on commercially reasonable terms or at all, could materially and adversely affect its financial position and results of operations and its ability to satisfy its obligations under the Debentures.
The Debentures may contain terms which restrict the Company’s business operations and reduces its access to capital.
A lowering or withdrawal of ratings assigned to the Company’s debt securities by rating agencies, if any, may increase the Company’s future borrowing costs and reduce its access to capital.
The Debentures will be secured by Bitcoin, which could become a significant portion of the assets of the Company. As a result of these security interests, such assets would be available to satisfy claims of the Company’s general creditors or to holders of the Company’s equity securities if the Company were to become insolvent only to the extent the value of such assets exceeded the amount of the Company’s secured indebtedness and other obligations. In addition, the existence of these security interests may adversely affect the Company’s financial flexibility.
The Company may not have the ability to raise the funds necessary to repurchase the Debentures or to repay the Debentures in cash at their maturity, and the Company’s future debt may contain limitations on its ability to pay cash upon conversion, redemption, or repurchase of the Debentures.
The conversion rate of the Debentures may not be adjusted for all dilutive events that may occur.
Conversion or redemption may adversely affect the return on the Debentures.
The accounting method for convertible debt securities that may be settled in cash, including the Debentures, may have a material affect on the Company’s financial results.
The market price of the ADSs, which may fluctuate significantly, may directly affect the value of the Debentures.
Holders of the Debentures will not be entitled to any rights with respect to the ADSs, but will be subject to changes made with respect to the ADSs.
The Debentures are convertible into the Company’s ADSs and therefore holders of the Debentures will be subject to all of the risks associated with holding ADSs.
EXHIBIT D
TERMS AND CONDITIONS OF THE PRE-FUNDED WARRANTS
EXHIBIT E
TERMS AND CONDITIONS OF THE COMMON WARRANTS
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
between
SEQUANS COMMUNICATIONS SA
and
EACH INVESTOR LISTED ON THE SIGNATURE PAGE HERETO
Dated July 4, 2025
TABLE OF CONTENTS
| Page | |||||||||||
| ARTICLE I REGISTRATION RIGHTS | 1 | ||||||||||
| Section 1.1 | Resale Shelf Registration | 1 | |||||||||
| Section 1.2 | Expenses | 3 | |||||||||
| Section 1.3 | Suspensions | 3 | |||||||||
| Section 1.4 | Registration Procedures | 4 | |||||||||
| Section 1.5 | Effectiveness Period | 8 | |||||||||
| Section 1.6 | Indemnification | 8 | |||||||||
| Section 1.7 | Free Writing Prospectuses | 13 | |||||||||
| Section 1.8 | Information from and Obligations of each Investor | 13 | |||||||||
| Section 1.9 | Rule 144 Reporting | 14 | |||||||||
| Section 1.10 | Termination of Registration Rights | 14 | |||||||||
| Section 1.11 | Transfer of Registration Rights | 14 | |||||||||
| ARTICLE II TERMINATION | 15 | ||||||||||
| Section 2.1 | Termination | 15 | |||||||||
| Section 2.2 | Effect of Termination; Survival | 15 | |||||||||
| ARTICLE III GENERAL PROVISIONS | 15 | ||||||||||
| Section 3.1 | No Confidential Information | 15 | |||||||||
| Section 3.2 | Fees and Expenses | 15 | |||||||||
| Section 3.3 | Notices | 15 | |||||||||
| Section 3.4 | Definitions | 16 | |||||||||
| Section 3.5 | Interpretation; Headings | 21 | |||||||||
| Section 3.6 | Severability | 22 | |||||||||
| Section 3.7 | Entire Agreement; Amendments | 22 | |||||||||
| Section 3.8 | Assignment; No Third Party Beneficiaries | 22 | |||||||||
| Section 3.9 | Further Assurances | 22 | |||||||||
| Section 3.10 | Governing Law; Consent to Jurisdiction; Waiver of Jury Trial | 22 | |||||||||
| Section 3.11 | Counterparts | 24 | |||||||||
| Section 3.12 | Specific Performance | 24 | |||||||||
| Section 3.13 | Waiver | 24 | |||||||||
| Section 3.14 | Recapitalization, Exchanges, etc | 24 | |||||||||
| Section 3.15 | Obligations Limited to Parties to this Agreement | 25 | |||||||||
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of July 4, 2025 (this “Agreement”), is made between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and the purchasers listed on the signature pages hereto (each, an “Investor”). The Company and the Investor are referred to hereinafter each as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Securities Purchase Agreement dated as of June 22, 2025 between the Company and the Investors (the “Purchase Agreement”), the Investors subscribed from the Company an aggregate of 1,171,987,620 Ordinary Shares represented by 117,198,762 ADSs (the “Shares”), 22,245,852 pre-funded warrants (the “Pre-Funded Warrants”) to purchase Ordinary Shares represented by ADSs (the “Warrant Shares”) and 20,916,680 common warrants (the “Common Warrants”) to purchase Ordinary Shares represented by ADSs or additional Pre-Funded Warrants at the option of the holder thereof (as exercised, including the Ordinary Shares underlying any such additional Pre-Funded Warrants, collectively the “Common Warrant Shares”) (the “Common Equity Offering”);
WHEREAS, the Parties are entering into this Agreement to set forth certain rights of the Investors relating to the registration of the Shares, the Warrant Shares and the Common Warrant Shares;
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Resale Shelf Registration.
(a) Within fifteen (15) days following the closing of the Common Equity Offering (the “Filing Date”), the Company shall (i) file with the SEC a Shelf Registration Statement on Form F-3 or Form S-3, as applicable (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible and, if the Company is not then eligible to register the resale of the Registrable Securities on Form F-3 or Form S-3, as applicable, such registration shall be on another appropriate form), which Registration Statement shall include a “plan of distribution” reasonably acceptable to the Investors, or (ii) prepare an amendment to an existing and effective Registration Statement (the “Transaction Shelf Registration Statement”), in each case, with respect to the registration under the Securities Act of the resale of all of the Registrable Securities, in each case, which shall include a prospectus in such form to permit the Investors to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) beginning on the effective date for such Registration Statement. The Company shall use its
commercially reasonable efforts to cause such Transaction Shelf Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later the Effectiveness Date, and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and the provisions of Section 1.3. The Company hereby represents that, as of the date hereof, it is eligible to use Form F-3 for primary offerings under General Instruction I.B(1) of Form F-3.
(b) Notwithstanding anything to the contrary herein, any Registrable Securities sold pursuant thereto shall be in the form of ADSs.
(c) If the Transaction Shelf Registration Statement filed under Section 1.1(a) or any Registration Statement filed under this Section 1.1(c) ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend such Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the Registrable Securities covered by and not sold under the Transaction Shelf Registration Statement. If such a Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after such filing and to keep such Registration Statement continuously effective during the Effectiveness Period, and such Registration Statement shall be deemed a Transaction Shelf Registration Statement hereunder.
(d) If: (i) the Shelf Registration Statement is not filed on or prior to its Filing Date (if the Company files the Shelf Registration Statement without affording the Investors the opportunity to review and comment on the same as required by Section 1.4(a) herein or the Company subsequently withdraws the filing of the Shelf Registration Statement, for reasons other than at the request of the Investors of a majority-in-interest of the Registrable Securities to withdraw the Shelf Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) a Shelf Registration Statement registering for resale all of the Registrable Securities included in such Shelf Registration Statement is not declared effective by the SEC by the Effectiveness Date of the initial Shelf Registration Statement filed pursuant to this Agreement, or (iii) after the effective date of a Shelf Registration Statement, such Shelf Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Shelf Registration Statement, or the Investors are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, except as permitted by Section 1.3(a) hereof (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (ii), the date on which such Event occurs, and for purpose of clause (iii) the date on which the suspension exceeds the Suspension Period permitted under Section 1.3(a) hereof, being referred to as an “Event Date”), then, in addition to any other rights the Investors may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of
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2.0% multiplied by the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to an Investor under this Agreement shall be 6.0% of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 10.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
Section 1.2 Expenses. Except as specifically provided herein, all Registration Expenses incurred in connection with the registration or offering and sale of the Registrable Securities shall be borne by the Company and all Selling Expenses shall be borne by the Investors; provided that, notwithstanding anything herein to the contrary, in no event shall the Investors bear or be responsible for any fees or expenses of the Company’s legal counsel in connection with the registration or offering and sale of Registrable Securities.
Section 1.3 Suspensions.
(a) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice (a “Notice of Suspension”) to each Investor (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality), to require the Investors to suspend the use of the Prospectus for sales of Registrable Securities under an effective Registration Statement for a reasonable period of time not to exceed, combined with any other suspensions under this Agreement, forty five (45) consecutive days or seventy five (75) days in the aggregate in any twelve (12)-month period (a “Suspension Period”), and provided that the Company shall not be entitled to impose more than two (2) Suspension Periods during any twelve (12)-month period, if the Board determines in good faith that such use would (i) require the public disclosure of material non-public information concerning any material transaction or negotiations involving the Company that would interfere with such material transaction or negotiations or (ii) otherwise materially interfere with material financing plans, acquisition activities or business activities of the Company; provided, that if at the time of receipt of such notice by an Investor, such Investor shall have sold all or a portion of the Registrable Securities pursuant to an effective Registration Statement such suspension shall not be deemed to prohibit the settlement of such sale by delivery of Registrable Securities, and if the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities Laws by the time such Registrable Securities are scheduled to be delivered. Immediately upon receipt of a Notice of Suspension, the Investors shall discontinue the disposition of Registrable Securities under an effective Registration Statement and Prospectus relating thereto until the Suspension Period is terminated.
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(b) The Company agrees that it will terminate any Suspension Period as promptly as reasonably practicable and will promptly notify in writing each Investor, to the extent it still beneficially owns Registrable Securities, of such termination (provided that in no event shall such notice contain any material, non-public information or subject such Investor to any duty of confidentiality). After the expiration of any Suspension Period in the case of an effective Registration Statement, and without the need for any further request from the Investors, the Company shall, as applicable and as promptly as reasonably practicable, prepare a post-effective amendment or supplement to such Registration Statement, the relevant Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration Statement or the Prospectus, as applicable, will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 1.4 Registration Procedures. The Company will use its commercially reasonable efforts to effect the registration and the offer and sale of Registrable Securities in accordance with the intended method of disposition thereof as soon as reasonably practicable, and shall, in connection therewith:
(a) prepare and promptly file with the SEC a Registration Statement (or a prospectus supplement, as applicable) with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;
(b) (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement, (ii) cause any Prospectus or supplement thereto to be filed pursuant to Rule 424 under the Securities Act when so required and (iii) provide reasonable notice to the Investor to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate (provided that in no event shall such notice contain any material, non-public information);
(c) (i) furnish to the Investor as far in advance as reasonably practicable (and in any case not less than five (5) Business Days) before filing any Registration Statement contemplated by this Agreement or any Prospectus to be used in connection therewith or any supplement or amendment thereto, only upon request of the Investor, copies (or such requested portions of copies) of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide the Investor the opportunity to object to any information pertaining to such Investor and its plan of distribution that is contained therein and make the corrections reasonably requested by such Investor with respect to such information prior to filing a Registration Statement or any
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Prospectus to be used in connection therewith or supplement or amendment thereto, and (ii) furnish to the Investor, without charge, such number of copies of the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including each preliminary prospectus) and any other prospectuses filed under Rule 424 and each Free Writing Prospectus as such Persons reasonably may request in order to facilitate the sale of the Registrable Securities covered by such Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or “blue sky” Laws of such jurisdictions as the Investor reasonably shall request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Investor to consummate the disposition in such jurisdictions; provided, however, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;
(e) enter into customary agreements and take such other actions as are reasonably requested by the Investor in order to expedite or facilitate the disposition of Registrable Securities;
(f) if the Investor could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with a Registration Statement and any amendment or supplement thereof (an “Investor Underwriter Registration Statement”), then, at the Investor’s request, the Company will furnish to the Investor, on the date of the effectiveness of the Investor Underwriter Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (provided that such request shall not be more frequently than on an annual basis unless the Investor is offering Registrable Securities pursuant to an Investor Underwriter Registration Statement), (i) a “comfort letter”, dated such date, from the Company’s independent certified public accountants in form and substance as has been customarily given by independent certified public accountants to underwriters in underwritten offerings of securities by the Company, addressed to the Investor, (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of the Investor Underwriter Registration Statement, in form, scope and substance as has been customarily given in underwritten offerings of securities by the Company, including standard “10b-5” negative assurance for such offerings, addressed to the Investor and (iii) a standard officer’s certificate from the chief executive officer or chief financial officer, or other officers serving such functions, of the Company addressed to the Investor, as has been customarily given by such officers in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary in this Agreement, the Company will not name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act) in any Registration Statement or Investor Underwriter Registration Statement, as applicable, without the Investor’s consent. If the staff of the SEC requires the Company to name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act), and the Investor does not consent thereto, then the Investor’s Registrable Securities shall not be included on the applicable Registration Statement, and the Company shall have no further obligations hereunder with respect to Registrable Securities held
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by the Investor, unless the Investor has not had an opportunity to conduct customary underwriter’s due diligence with respect to the Company at the time the Investor’s consent is sought;
(g) promptly notify the Investor: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of the Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” Laws of any jurisdiction or the initiation of any proceeding for such purpose (provided that in no event shall such notices under clauses (ii) or (iii) contain any material, non-public information unless consented to in advance by the Investor).
(h) if at any time (i) any event or development shall occur or condition shall exist as a result of which the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company will promptly notify the Investor and promptly prepare and file with the SEC (to the extent required) and furnish to the Investor such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package, as so amended or supplemented, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, be misleading, or so that the Disclosure Package will comply with Law;
(i) use its commercially reasonable efforts to make generally available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
(j) use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on the NYSE or, if not the NYSE, the primary trading
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market or any other national securities exchange on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed;
(k) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(l) immediately notify each Investor, at any time when a Prospectus is required to be delivered under the Securities Act, of the occurrence or happening of any event as a result of which the Prospectus contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing (provided that in no event shall such notice contain any material, non-public information), and, as promptly as reasonably practicable prepare and furnish to each such Investor a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(m) in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Investor or its legal counsel;
(n) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose (provided that in no event shall such notices under this clause (n) contain any material, non-public information unless consented to in advance by the Investor);
(o) otherwise use its commercially reasonable efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Investor in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Registrable Securities to be sold from time to time as permitted by Law;
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(p) use its commercially reasonable efforts to cooperate with the Investor and its counsels in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, the NYSE or any other national securities exchange on which the Registrable Securities are listed;
(q) pay the applicable filing fees covering the Registrable Securities in compliance with the SEC rules and to file such amendments or subsequent registration statements as may be required to maintain an effective registration statement for the relevant Effectiveness Period;
(r) use its commercially reasonable efforts to cooperate with the Investor in the disposition of the Registrable Securities covered by such Registration Statement; and
(s) if a Registration Statement is an ASRS that has been outstanding for at least three (3) years, at or prior to the end of the third (3rd) year, the Company shall refile a new ASRS covering the Registrable Securities which remain outstanding. If at any time when the Company is required to re-evaluate its ASR Eligible status or eligibility to use Form F-3 or Form S-3, as applicable, the Company determines that it is not ASR Eligible or eligible to use Form F-3 or Form S-3, as applicable, the Company shall use its commercially reasonable efforts to refile the Transaction Shelf Registration Statement on Form F-3 or Form S-3, as applicable, and, if such form is not available, Form F-1 or Form S-1 (or other appropriate form) and keep the Transaction Shelf Registration Statement continuously effective subject to Section 1.3.
Section 1.5 Effectiveness Period. For purposes of this Article I, the period of distribution of Registrable Securities pursuant to a Registration Statement shall be deemed to extend until the sale of all Registrable Securities covered thereby (such period, the “Effectiveness Period”).
Section 1.6 Indemnification.
(a) Indemnification Rights.
(i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article I, the Company shall indemnify and hold harmless each Investor and each Person, if any, that controls such Investor within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, shareholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, (B) any omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any foreign or state securities
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laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided that the Company shall not be liable to an Investor Registration Rights Indemnitee to the extent that any such Damages are directly caused by any untrue statement or omission (or alleged untrue statement or omission) made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in strict reliance upon and strictly in conformity with written information about such Investor furnished to the Company by or on behalf of such Investor expressly for use therein. This indemnity shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any Investor Registration Rights Indemnitee and shall survive the Transfer of securities by each Investor.
(ii) Each Investor shall, severally and not jointly, indemnify and hold harmless the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors, officers and employees (each, a “Company Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or in any amendment or supplement thereto, in each case, to the extent that such untrue statement was made in strict reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein, (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, to the extent that such omission was made in strict reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Investor expressly for use therein or (C) any violation or alleged violation by the Investor of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that in no event shall the obligations of such Investor hereunder exceed the net proceeds received by it from the sale of its Registrable Securities related to the matter in which Damages are sought. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such securities by such Investor.
(iii) If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to an Investor Registration Rights Indemnitee or a Company Registration Rights Indemnitee, as applicable, with respect to any Damages referred to therein or is unenforceable or insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless as contemplated and to the extent set forth therein, then the Company or the Investor, as applicable, in lieu of indemnifying such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable by such Investor Registration Rights
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Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of such Damages in such proportion as is appropriate to reflect the relative fault of such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the Company or the Investor, as applicable, on the other hand, in connection with the statements or omissions which resulted in such Damages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or the Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 1.6(a)(iii) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 1.6(a)(iii). No Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything herein to the contrary, in no event shall the liability of an Investor in this Section 1.6(a)(iii) be greater in amount than the amount of net proceeds received by it from the sale of such Registrable Securities related to the matter in which indemnification or contribution for Damages are sought.
(b) Notice of Reg Rights Claim.
(i) As used in this Agreement, the term “Reg Rights Claim” means a claim for indemnification or contribution by or on behalf of any Company Registration Rights Indemnitee or Investor Registration Rights Indemnitee, as the case may be, for Damages under Section 1.6(a) (such Person making a Reg Rights Claim, a “Reg Rights Indemnified Person”). The Company (for its own Damages or for the Damages incurred by any other Company Registration Rights Indemnitee) or of an Investor (for its own Damages or for the Damages incurred by any other Investor Registration Rights Indemnitee), as applicable, shall give notice of a Reg Rights Claim under this Agreement pursuant to a written notice of such Reg Rights Claim executed by the Company or the Investor, as applicable (a “Notice of Reg Rights Claim”), and delivered to the Company or the Investor, as applicable (such receiving party, the “Reg Rights Indemnifying Person”), promptly after such Reg Rights Indemnified Person becomes aware of the existence of any potential claim by such Reg Rights Indemnified Person for indemnification arising out of or resulting from any item indemnified pursuant to the terms of Section 1.6(a)(i) or Section 1.6(a)(ii) as applicable; provided that the failure to timely give such notice shall not limit or reduce the Reg Rights Indemnified Person’s right to indemnification hereunder unless (and then only to the extent that) the Reg Rights Indemnifying Person’s defense of such Reg Rights Claim is actually materially and adversely prejudiced thereby.
(ii) Each Notice of Reg Rights Claim shall: (A) state the aggregate amount (where practicable) that the Reg Rights Indemnified Person has incurred or paid in
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Damages arising from such Reg Rights Claim (which amount may include the amount of Damages claimed by a third party in an action (a “Third-Party Reg Rights Claim”) brought against such Reg Rights Indemnified Person based on alleged facts, which if true, would give rise to liability for Damages to such Reg Rights Indemnified Person); and (B) contain a brief description, in reasonable detail (to the extent reasonably available to the Reg Rights Indemnified Person) of the facts, circumstances or events giving rise to the alleged Damages based on the Reg Rights Indemnified Person’s good faith belief and knowledge thereof, including the identity and address of any third party claimant (to the extent reasonably available to the Reg Rights Indemnified Person).
(c) Defense of Third-Party Reg Rights Claims.
(i) Subject to the provisions hereof, the applicable Reg Rights Indemnifying Person shall have the right (at its own expense) to elect to defend and assume control of the defense of any Third-Party Reg Rights Claim on behalf of a Reg Rights Indemnified Person, utilizing legal counsel reasonably acceptable to such Reg Rights Indemnified Person. In the event such election is made, the Reg Rights Indemnified Person (unless itself controlling the Third-Party Reg Rights Claim in accordance with this Section 1.6(c)) may participate, through counsel of its own choice and, except as provided herein, at its own expense, in the defense of any Third-Party Reg Rights Claim. The reasonable and documented costs and expenses incurred by the Reg Rights Indemnifying Person in connection with such defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Reg Rights Indemnifying Person.
(ii) A Reg Rights Indemnifying Person shall not be entitled to assume control of such defense, and the applicable Reg Rights Indemnified Person may assume the control and defense thereof, at the sole expense of the applicable Reg Rights Indemnifying Person, if (A) the Reg Rights Claim relates to, or arises in connection with, any criminal or governmental proceeding, action, indictment, allegation or investigation, (B) the Reg Rights Claim seeks an injunction against the Reg Rights Indemnified Person, to the extent that such defense relates to the claim for such injunction, (C) a conflict of interest between the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person exists with respect to the Reg Rights Claim or the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person have one or more conflicting defenses, in the reasonable view of counsel to the Reg Rights Indemnified Person, or (D) the Reg Rights Indemnifying Person has elected to have the Reg Rights Indemnified Person defend, or assume the control and defense of, a Third-Party Reg Rights Claim in accordance with this Section 1.6(c); provided that in no event shall the Reg Rights Indemnifying Person be liable for the fees and expenses of more than one separate counsel (and one local counsel) for all similarly-situated Reg Rights Indemnified Persons, which counsel shall be selected by the Investors (in the case of the Investor Registration Rights Indemnitees) or by the Company (in the case of the Company Registration Rights Indemnitees).
(iii) Any party controlling the defense of any Third-Party Reg Rights Claim pursuant hereto shall: (A) conduct the defense of such Third-Party Reg Rights Claim with reasonable diligence and keep the other parties reasonably informed of material developments in
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the Third-Party Reg Rights Claim at all stages thereof, (B) as promptly as reasonably practicable, submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other parties and their counsel to confer on the conduct of the defense thereof, and (D) permit the other parties and their counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties not controlling the defense will render to the party controlling the defense such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the party controlling the defense in connection therewith. The Reg Rights Indemnifying Person shall reimburse the parties not controlling the defense for any reasonable and documented costs and expenses incurred in connection with providing such assistance. Notwithstanding anything to the contrary in this Agreement, no Party shall be required to disclose any information to the other Party or its Representatives, if doing so would be reasonably expected to violate any Law to which such Party is subject or could jeopardize (in the reasonable discretion of the disclosing Party) any attorney-client privilege available with respect to such information.
(iv) If the Reg Rights Indemnifying Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnifying Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim on the Reg Rights Indemnified Person’s behalf and without the consent of the Reg Rights Indemnified Person; provided that (A) such settlement shall not involve any injunctive relief binding upon the Reg Rights Indemnified Person or any of its Affiliates, (B) such settlement expressly and unconditionally releases the Reg Rights Indemnified Person and the other applicable Reg Rights Indemnified Persons (that is, each of the Company Registration Rights Indemnitees, if the Reg Rights Indemnified Person is a Company Registration Rights Indemnitee, and each of the Investor Registration Rights Indemnitees, if the Reg Rights Indemnified Person is an Investor Registration Rights Indemnitee) from any and all liabilities with respect to such Third-Party Reg Rights Claim, with prejudice; (C) such settlement shall not include any admission as to fault, culpability or failure to act on the part of the Reg Rights Indemnified Person and (D) the Reg Rights Indemnifying Person unconditionally acknowledges in writing to the Reg Rights Indemnified Person its obligation to pay (and pays) all Damages of the Reg Rights Indemnified Person with respect to such Third-Party Reg Rights Claim. In all other events, the consent of the Reg Rights Indemnified Person shall be required to effect such a settlement. If the Reg Rights Indemnified Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnified Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim only with the consent of the Reg Rights Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). No settlement by the Reg Rights Indemnified Person of such Third-Party Reg Rights Claim effected in accordance with this Section 1.6(c) shall limit or reduce the right of any Reg Rights Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Reg Rights Claim, to the extent such Damages are indemnifiable hereunder. As used in this Section 1.6(c)(iv), the term “settlement” refers to any consensual resolution of the claim in question, including by consent decree or by permitting any
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judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.
Section 1.7 Free Writing Prospectuses. Except for a Prospectus relating to Registrable Securities included in a Registration Statement, an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) prepared by the Company or other materials prepared by Company, each Investor represents and agrees that it (a) will not make any offer relating to the Registrable Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a Free Writing Prospectus, and (b) will not distribute any written materials in connection with the offer or sale pursuant to a Registration Statement of Registrable Securities, in each case, without the prior written consent of the Company.
Section 1.8 Information from and Obligations of each Investor. The Company’s obligation to include the Investor’s Registrable Securities in any Registration Statement or Prospectus is contingent upon each of the Investors:
(a) furnishing to the Company in writing information with respect to its ownership of Registrable Securities and the intended method of disposition of its Registrable Securities as may be required by the Company and as required by Law for use in connection with a Registration Statement or Prospectus (or any amendment or supplement thereto) and all information required to be disclosed in order to make the information the Investor previously furnished to the Company not contain a material misstatement of fact or necessary to cause such Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material fact with respect to the Investor necessary in order to make the statements therein not misleading;
(b) complying in all material respects with (i) the Securities Act and the Exchange Act, (ii) all applicable state securities Laws, (iii) the rules of any securities exchange or trading market on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed or traded, and (iv) all other applicable regulations, in each case, in connection with, and only to the extent applicable to, the registration and the disposition of Registrable Securities by the Investor;
(c) following its actual knowledge thereof, notifying the Company of the occurrence of any event that makes any statement made in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus regarding the Investor untrue in any material respect or that requires the making of any changes in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements not misleading; provided, however, that such Investor shall not be required to notify the Company of any disposition of securities pursuant to any such Registration Statement or Prospectus;
(d) providing the Company with such information related to the Investor as may be required to enable the Company to prepare a supplement or post-effective amendment to any such Registration Statement or a supplement to such Prospectus or Free Writing Prospectus;
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(e) using commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement and any related Prospectus; and
(f) furnishing the Company with all information required to be included in such Registration Statement or Prospectus by applicable securities Laws in connection with the disposition of such Registrable Securities as the Company reasonably requests.
Section 1.9 Rule 144 Reporting.
(a) With a view to making available to each Investor the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to make and keep available adequate current public information, as defined in Rule 144(c), including all periodic and annual reports and other documents (other than Form 6-K reports) required of the Company under Sections 13 or 15(d) of the Exchange Act, and so long as an Investor beneficially owns any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Investor may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any Registrable Securities without registration.
(b) For the avoidance of doubt, each Investor may sell any Registrable Securities in compliance with Rule 144, regardless of whether a Registration Statement has been filed with the SEC or is effective. The Company agrees to (i) make and keep public information available as those terms are understood and defined in Rule 144, (ii) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, and (iii) so long as an Investor owns any Registrable Securities, furnish to such Investor upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act.
Section 1.10 Termination of Registration Rights. Notwithstanding anything to the contrary contained herein and subject to Section 1.11, the registration rights granted under this Article I terminate and are of no further force and effect (other than Section 1.2 and Section 1.6), on the date on which there cease to be any Registrable Securities.
Section 1.11 Transfer of Registration Rights. Each Investor shall have the right to Transfer to any Person (such Person, a “Transferee Investor”), directly or indirectly, by written agreement, all of its related rights and obligations granted under this Article I in connection with a Transfer of all of its Registrable Securities to such Person; provided, that in the case of Transfers to limited partners, members or Affiliates of an Investor, such Investor shall have the right to transfer its related rights and obligations under this Article I in connection with the Transfer of all or any portion of its Registrable Securities. Such Transferee Investor shall, following such Transfer, become responsible for all obligations applicable to the Investor under this Article I with respect to the Registrable Securities Transferred to such Transferee Investor.
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ARTICLE II
TERMINATION
Section 2.1 Termination. This Agreement shall terminate upon the earlier of (i) the time when there are no Registrable Securities outstanding, (ii) the time when all of the Registrable Securities (a) are freely transferable under Rule 144 and the securities laws of any other applicable jurisdiction without limitation, or any volume, manner-of-sale or other restrictions or conditions, without registration and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Company’s transfer agent and the Investor, and (B) do not and/or shall not when issued bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP, and (iii) the mutual written agreement of each Investor and the Company.
Section 2.2 Effect of Termination; Survival. In the event of any termination of this Agreement pursuant to Section 2.1, this Agreement shall be terminated, and there shall be no further liability or obligation hereunder on the part of any Party, other than Section 1.6, Section 1.9, this Section 2.2 and Article III, which provisions shall survive such termination; provided, however, that nothing contained in this Agreement (including this Section 2.2) shall relieve a Party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent occurring prior to such termination.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 No Confidential Information. In no event shall the Company or its Representatives provide any non-public records, books, Contracts, instruments, computer data or other data or information concerning the Company or its subsidiaries to an Investor unless the Investor has agreed to accept such information in writing beforehand.
Section 3.2 Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.
Section 3.3 Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.
If to the Company, addressed to it at:
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
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Les Portes de la Défense
92700 Colombes
Republic of France
Email: deborah@sequans.com
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Lowenstein Sandler LLP
1251 Avenue of the Americas, 18th Floor
New York, New York 10020
Attention: | Steven E. Siesser, Esq. | |||||||
| Brooke A. Gillar, Esq. | ||||||||
Email: | ssiesser@lowenstein.com; | |||||||
bgillar@lowenstein.com | ||||||||
and
ARCHERS (AARPI)
28 rue Dumont d’Urville 75116
Paris, France
Attention: | Véronique Gedeon | |||||||
| Mark Richardson | ||||||||
Email: | mrichardson@archers.fr; | |||||||
| vgedeon@archers.fr | ||||||||
If to the Investor, addressed to it at: to such address or addresses set forth on the signature page hereto.
Section 3.4 Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
“Action” means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case, whether civil, criminal or investigative).
“Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of an Investor shall be deemed to be an “Affiliate” of the Investor.
“American Depositary Shares” or “ADSs” means those certain American Depositary Shares issued pursuant to a deposit agreement by and among the Company, Bank of New York
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Mellon (or any successor thereto), as depositary, and the owners and holders of American Depositary Shares, as such agreement may from time to time be amended.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“ASR Eligible” means the Company meets or is deemed to meet the eligibility requirements to file an ASRS as set forth in the General Instruction to Form F-3 or Form S-3, as applicable.
“ASRS” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.
“Board” or “Board of Directors” means the board of directors of the Company, or any duly authorized committee thereof.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States, a legal holiday in the Republic of France or any day on which banking institutions in the State of New York or in the Republic of France are authorized or required by law or other governmental action to close.
“Common Warrant” has the meaning set forth in recitals to this Agreement.
“Common Warrant Shares” has the meaning set forth in recitals to this Agreement.
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(ii).
“Contract” means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license, sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.
“controlling person” has the meaning set forth in Section 1.6(a)(i).
“Damages” means any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities, judgments, and reasonable and documented out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs.
“Disclosure Package” means, with respect to any offering of Registrable Securities, (a) the preliminary Prospectus or Prospectus, as applicable, (b) each Free Writing Prospectus, and
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(c) all other information, in each case, that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of Registrable Securities at the time of sale of such securities.
“Effectiveness Date” means, with respect to the Transaction Shelf Registration Statement, no later than the 60th calendar day following the Filing Date (or, in the event of a “full review” by the SEC, the 75th calendar day following the Filing Date) and with respect to any additional Registration Statements which may be required pursuant to this Agreement, the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the SEC, the 75th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the SEC that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the 5th Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above.
“Effectiveness Period” has the meaning set forth in Section 1.5.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor regulatory organization.
“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act relating to the Registrable Securities included in the applicable Registration Statement that has been approved for use by the Company.
“Governmental Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body of competent jurisdiction.
“Investor” has the meaning set forth in the preamble to this Agreement.
“Investor Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(i).
“issuer free writing prospectus” has the meaning set forth in Section 1.7.
“Law” any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law), statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.
“Notice of Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Notice of Suspension” has the meaning set forth in Section 1.3(a).
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“Order” means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena, writ, decree or verdict entered by or with any Governmental Entity.
“Ordinary Shares” means ordinary shares, nominal value €0.01 per share, of the Company.
“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.
“Person” means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
“Pre-Funded Warrant” has the meaning set forth in recitals to this Agreement.
“Prospectus” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference, or deemed to be incorporated by reference, into such prospectus.
“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.
“Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnified Person” has the meaning set forth in Section 1.6(b)(i).
“Reg Rights Indemnifying Person” has the meaning set forth in Section 1.6(b)(i).
“Registrable Securities” means (i) the Shares, (ii) the Warrant Shares, (iii) the Common Warrant Shares and (iv) any Ordinary Shares or Ordinary Shares represented by ADSs issued (or issuable upon the conversion or exercise of any warrant, right or other security that is issued) as a result of any stock split, recapitalization, exchange, dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares, the Warrant Shares, and/or the Common Warrant Shares; provided, that a security will cease to be a Registrable Security on the earliest to occur of (a) the date such Registrable Security has been resold by such Investor pursuant to a Registration Statement or Rule 144 or (b) upon the date such Registrable Security becomes eligible for resale by such Investor under Rule 144 without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144.
“Registration Expenses” means (whether or not any Registration Statement is declared effective or any of the transactions described herein is consummated) all expenses incurred by the Company in filing a Registration Statement, including, all registration and filing fees, fees and disbursements of counsel for the Company, SEC or FINRA registration and filing fees, all applicable ratings agency fees, expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such
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registration, fees and expenses of compliance with securities or “blue sky” Laws, costs of any comfort letters required by any underwriter, listing fees, printing, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, the Company’s internal expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on the New York Stock Exchange or any other securities exchange, roadshow expenses, all other expenses incident to the registration of the Registrable Securities; provided, that the term “Registration Expenses” does not include, and the Company shall not be responsible for, Selling Expenses.
“Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act filed with the SEC covering the resale of Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such Registration Statement.
“Representatives” means a Person’s officers, directors, employees, accountants, consultants, legal counsel, investment bankers, other advisors, authorized agents and other representatives.
“Rule 144” means Rule 144 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“Rule 415” means Rule 415 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“Selling Expenses” means, in connection with the registration or offering and sale of the Registrable Securities, (a) all underwriting fees, discounts and selling commissions fees, (b) stock transfer taxes applicable to the sale of the Registrable Securities, and (c) fees and expenses of any counsel to the Investors other than the counsel referred to in the definition of Registration Expenses.
“settlement” and “settle” have the meanings set forth in Section 1.6(c)(iv).
“Shares” has the meaning set forth in the recitals to this Agreement.
“Shelf Registration Statement” means a registration statement filed with the SEC for the sale of Registrable Securities pursuant to Rule 415 under the Securities Act.
“Suspension Period” has the meaning set forth in Section 1.3(a).
“Third-Party Reg Rights Claim” has the meaning set forth in Section 1.6(b)(ii).
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“Transaction Documents” means collectively, this Agreement, the Purchase Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Transaction Shelf Registration Statement” has the meaning set forth in Section 1.1(a).
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities.
“Transferee Investor” shall have the meaning set forth in Section 1.11.
“Warrant Shares” shall have the meaning set forth in the recitals to this Agreement.
Section 3.5 Interpretation; Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall limit the applicability of a more general provision, representation or warranty. It is the intent of the Parties that each representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent effect and that such provisions are cumulative. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless otherwise specified.
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Section 3.6 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Purchase Agreement and this Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.
Section 3.7 Entire Agreement; Amendments. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 3.8 Assignment; No Third Party Beneficiaries. Except as expressly provided herein, including, without limitation, the transfer of rights and obligations as set forth in Section 1.11, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 3.9 Further Assurances. Each Party shall cooperate, take such actions, enter into such agreements (including customary indemnification and contribution agreements) and execute such documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby; provided, however, that no Party shall be obligated to take any actions or omit to take any actions that would be inconsistent with applicable Law.
Section 3.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its
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Affiliates). Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by either Party, (b) agrees that service of process will be validly effected by sending notice in accordance with Section 3.3, (c) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above named courts, and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
(b) EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.
(c) The Company agrees that service to the Process Agent (as defined below) or as otherwise specified in Section 3.3 shall be valid and sufficient service, and the Company waives any objections to such service. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 (the “Process Agent”), as the designee, appointee and agent of the Company to receive, for and on behalf of the Company, service of process for the purposes of this Section 3.10. The Company irrevocably waives any requirements for service abroad of process or other documents, including under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Company agrees that service of process in respect of it upon the Process Agent shall be deemed to be effective service of process upon it. The Company agrees that the failure of the Process Agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any Action based thereon. If for any reason the Process Agent shall cease to be available to act as such, the Company agrees to irrevocably appoint another such agent as its authorized agent for service of process, on the terms and for the purposes of this Section 3.10. Nothing herein shall in any way be deemed to limit the ability of the Investor to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable Law
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Section 3.11 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) in counterparts, and by the Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 3.12 Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by the other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. Each Party further agrees that neither the other Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 3.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 3.13 Waiver. Any Party entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.
Section 3.14 Recapitalization, Exchanges, etc.
(a) The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares or other securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise), which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, stock splits, recapitalizations, pro rata distributions of stock and the like occurring after the date of this Agreement.
(b) The Company agrees that it shall not effect or permit to occur any combination or subdivision of Ordinary Shares or other securities constituting Registrable Securities which would adversely affect the ability of the Investors to include such Registrable Securities in any registration contemplated by this Agreement or the marketability of such Registrable Securities in any such registration.
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Section 3.15 Obligations Limited to Parties to this Agreement. Each of the Parties hereto covenants, agrees and acknowledges that no Person other than the Investors (and their transferees or assignees) and the Company shall have any obligation hereunder and that notwithstanding that an Investor is a limited partnership, limited liability company or other entity, no recourse under this Agreement shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, shareholder or Affiliate of any of the foregoing, as such, for any obligations of the Investor under this Agreement or for any claim based on, in respect of or by reason of such obligation or its creation.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the date first written above, by their respective officers thereunto duly authorized.
| SEQUANS COMMUNICATIONS SA | ||||||||
| By: | /s/ Georges Karam | |||||||
| Name: Georges Karam | ||||||||
| Title: Chief Executive Officer | ||||||||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form F-3) and related Prospectus of Sequans Communication S.A. for the registration of 1,171,987,620 Ordinary Shares represented by 117,198,762 American Depositary Shares, 222,458,520 Ordinary Shares represented by 22,245,852 American Depositary Shares issuable upon the exercise of Pre-Funded Warrants, 209,166,800 Ordinary Shares represented by 20,916,680 American Depositary Shares, or pre-funded warrants in lieu thereof, issuable upon the exercise of Common Warrants and to the incorporation by reference therein of our report dated April 30, 2025, with respect to the consolidated financial statements of Sequans Communication S.A. included in its Annual Report (Form 20-F) for the year ended December 31, 2024, filed with the Securities and Exchange Commission.
/s/ Ernst & Young Audit
Paris La Défense, France
July 16, 2025