Sequans Communications 6-K, filed Dec 10, 2020
Sequans Communications (SQNS)
About this 6-K
Sequans Communications filed this 6-K on December 10, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of December 2020
Commission File Number: 001-35135
Sequans Communications S.A.
(Translation of Registrant’s name into English)
15-55 boulevard Charles de Gaulle
92700 Colombes, France
Telephone : +33 1 70 72 16 00
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Yes ☐ No ☒
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Yes ☐ No ☒
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.
The information in this report, furnished on Form 6-K, shall be incorporated by reference into each of the following Registration Statements under the Securities Act of 1933, as amended, of the registrant: Form S-8 (File Nos. 333-177919, 333-180487, 333-187611, 333-194903, 333-203539, 333-211011, 333-214444, 333-215911, 333-219430, 333-233473, 333-226458, 333-233473 and 333-239968) and Form F-3 (File No. 333-250122).
Follow-On Underwritten Public Offering of 4,854,369 ADSs
On December 7, 2020, Sequans Communications S.A. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with B. Riley Securities, Inc. (the “Underwriter”), relating to an underwritten secondary public offering of 2,529,961 American Depositary Shares (the “ADSs”), each representing four ordinary shares, nominal value €0.02 per share, of the Company. The ADSs are being sold by Nokomis Capital Master Fund, L.P. (the “Selling Shareholder”) The offering price to the public is $5.50 per ADS, and the Underwriters has agreed to purchase the ADSs pursuant to the Underwriting Agreement at a price of $5.17 per ADS. Under the terms of the Underwriting Agreement, the Company granted the Underwriters a 30-day option to purchase up to an additional 379,494 ADSs. The offering is expected to close on December 10, 2020.
The net proceeds to the Company are expected to be approximately $1.5 million if the underwriters exercise the over-allotment option in full, after deducting underwriting discounts and estimated offering expenses payable by the Company. If the over-allotment option is exercised, the Company intends to use the net proceeds to cover offering expenses and for general corporate purposes.
The ADSs were offered and sold pursuant to the Company’s effective shelf registration statement on Form F-3 (No. 333-333-250122), which was previously filed with the Securities and Exchange Commission (the “SEC”) on November 16, 2020 and declared effective by the SEC on November 24, 2020, and a prospectus supplement dated December 7, 2020 and filed with the SEC on December 8, 2020 and accompanying base prospectus dated November 24, 2020.
The Underwriting Agreement contains customary representations, warranties, and agreements by the Company and the Selling Shareholder, and customary conditions to closing, indemnification obligations of the Company, the Selling Shareholder and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties, and termination provisions.
The Underwriting Agreement is attached hereto as Exhibit 1.1 to provide investors and security holders with information regarding its terms and is incorporated herein by reference. It is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of the Underwriting Agreement and, as of specific dates, were solely for the benefit of the parties to the Underwriting Agreement, and may be subject to limitations agreed upon by the contracting parties.
The foregoing description of the material terms of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit. A copy of the legal opinion and consent of Orrick, Herrington & Sutcliffe (Europe) LLP relating to the ordinary shares represented by the ADSs is attached hereto as Exhibit 5.1. The Company issued press releases on December 7, 2020 and December 8, 2020 announcing the launch and pricing of the public offering. These press releases are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and are incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| SEQUANS COMMUNICATIONS S.A. (Registrant) | ||||||
| Date: December 10, 2020 |
By: |
/s/ Deborah Choate | ||||
| Deborah Choate | ||||||
| Chief Financial Officer | ||||||
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EXHIBIT INDEX
The following exhibits are filed as part of this Form 6-K:
Exhibit 1.1
SEQUANS COMMUNICATIONS S.A.
2,529,961 American Depositary Shares
Each Representing Four Ordinary Shares, Nominal Value €0.02 Per Share
UNDERWRITING AGREEMENT
December 7, 2020
B. Riley Securities, Inc.
11100 Santa Monica Boulevard
Suite 800
Los Angeles, CA 90025
Ladies and Gentlemen:
Nokomis Capital Master Fund, LP (the “Selling Securityholder”), a shareholder of Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), proposes to sell 10,119,844 Ordinary Shares (as defined below) in the form of ADSs (as defined below), to you as underwriter (the “Underwriter”), and you agree to purchase an aggregate of 2,529,961 ADSs (the “Firm ADSs”), each representing four Ordinary Shares of the Company. The Company has also agreed to grant to the Underwriter an option (the “Option”) to purchase up to an additional 379,494 ADSs on the terms and for the purposes set forth in Section 1(b) (the “Option ADSs”). The Firm ADSs and the Option ADSs are referred to collectively herein as the “Offered ADSs.” Each reference to the Firm ADSs, the Option ADSs or the Offered ADSs herein, unless the context otherwise requires, also includes the Ordinary Shares underlying such ADSs. As used herein, “Ordinary Shares” means the ordinary shares, nominal value €0.02 per share, of the Company, “ADS” means an American Depositary Share representing four such Ordinary Shares, “ADR” means an American Depositary Receipt evidencing the ADSs and “Underlying Shares” means the Ordinary Shares underlying the ADSs.
The Offered ADSs will be delivered by the Depositary (as defined below), against deposit of the underlying Ordinary 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.
The Company and the Selling Securityholder confirm as follows their agreements with the Underwriter.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and agreements of the Company and the Selling Securityholder herein contained and subject to all the terms and conditions of this Agreement, (i) the Selling Securityholder agrees to sell the Firm ADSs to the Underwriter, and (ii) the Underwriter agrees to purchase from the Selling Securityholder the Firm ADSs, at the purchase price of $5.17 for each Firm ADS, net of underwriting discounts and commissions.
(b) On the basis of the representations, warranties and agreements of the Company contained herein and subject to all the terms and conditions of this Agreement, the Company grants the Option to the Underwriter to purchase up to 379,494 Option ADSs at the same price per ADS as the Underwriter shall pay for the Firm ADSs. The Option may be exercised only to cover over-allotments in the sale of the Firm ADSs
by the Underwriter and may be exercised in whole or in part at any time and from time to time on or before the 30th day after the date of this Agreement upon written notice (an “Option ADSs Notice”) by the Underwriter to the Company no later than 12:00 noon, New York City time, at least three and no more than five business days before the date specified for closing in the Option ADSs Notice (an “Option Closing Date”), setting forth the aggregate number of Option ADSs to be purchased and the time and date for such purchase. On an Option Closing Date, the Company will issue and sell to the Underwriter, and the Underwriter will purchase such Option ADSs.
2. Delivery and Payment.
The Underwriter will pay the purchase price for the Firm ADSs by wire transfer payable in same-day funds to the order of the Selling Securityholder in consideration for delivery of the Firm ADSs as described below. Such payment and delivery shall be made on or before December 10, 2020 (the “Closing Date”).
To the extent the Option is exercised, the Underwriter will pay the purchase price for the Option ADSs by wire transfer payable in same-day funds to the order of the Company in consideration for the delivery of the Option ADSs as described below at the time and date specified in the applicable Option ADSs Notice.
The Firm ADSs shall be registered in such names and in such denominations as the Underwriter shall request at least two business days prior to the Closing Date by written notice to the Selling Securityholder and the Company, and shall be delivered by or on behalf of the Selling Securityholder by credit through full fast DWAC transfer to The Depository Trust Company (“DTC”) account(s) specified by the Underwriter.
The Option ADSs shall be registered in such names and in such denominations as the Underwriter shall request at least two business days prior to the Option Closing Date by written notice to the Company, and shall be delivered by or on behalf of the Company by credit through full fast DWAC transfer to DTC account(s) specified by the Underwriter. The cost of original issue tax stamps and other transfer taxes, if any, in connection with the issuance and delivery of the Firm ADSs by the Selling Securityholder and the Option ADSs by the Company, as applicable, to the Underwriter shall be borne by the Selling Securityholder or the Company, as applicable. The Selling Securityholder or the Company, as applicable, will pay and save the Underwriter and any subsequent holder of the Offered ADSs harmless from any and all liabilities with respect to or resulting from any failure or delay in paying federal and state stamp and other transfer taxes, if any, which may be payable or determined to be payable in connection with the original issuance or sale to the Underwriter of the Offered ADSs.
3. Representations and Warranties of the Company and Selling Securityholder.
(i) Representations and Warranties of the Company. The Company represents, warrants and covenants to the Underwriter that:
(a) The Company meets the requirements for the use of Form F-3, including General Instruction I.B.1, a registration statement (Registration No. 333-250122) on Form F-3 relating to the Offered ADSs, including a base prospectus relating to the Offered ADSs (the “Base Prospectus”) and such amendments thereto as may have been required to the date of this Agreement, has been prepared by the Company under the provisions of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (collectively referred to as the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder, has been filed with the Commission, and has been declared effective by the Commission, and the offering of the Offered ADSs complies with Rule 415 under the Act. A final prospectus
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supplement to the Base Prospectus relating to the Offered ADSs and the offering thereof will be filed promptly by the Company with the Commission in accordance with Rule 424(b) of the Rules and Regulations (such final prospectus supplement, as so filed, the “Prospectus Supplement”). Such registration statement at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents otherwise deemed to be a part thereof or included therein by the Rules and Regulations (including Rule 430B thereof), and any registration statement relating to the offering contemplated by this Agreement and filed pursuant to Rule 462(b) of the Rules and Regulations (“Rule 462(b)”), is herein called the “Registration Statement.” The term “preliminary prospectus” means any preliminary prospectus (including any preliminary prospectus supplement) relating to the Offered ADSs and the offering thereof as first filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (“Rule 424(b)”). The term “Prospectus” means the Base Prospectus together with the Prospectus Supplement, except that if such Base Prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement was first filed pursuant to Rule 424(b), the term “Prospectus” shall mean the Base Prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement. Any reference herein to the Registration Statement, the Base Prospectus, a preliminary prospectus, the Prospectus Supplement, or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, a preliminary prospectus, the Prospectus Supplement, or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the time the Registration Statement initially became effective (the “Effective Date”), the date of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, or the Prospectus, as the case may be, and deemed to be incorporated therein by reference. The term “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations (“Rule 433”), relating to the Offered ADSs in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
(b) The Company and the Depositary have prepared and filed with the Commission registration statements relating to the ADSs on Form F-6 (Nos. 333-173002 and 333-224589) and a related prospectus, which may be in the form of the ADR certificate, for registration under the Act of the ADSs evidenced by ADRs, have filed such amendments thereto and such amended prospectuses as may have been required to the date hereof, and will file such additional amendments thereto and such amended prospectuses as may hereinafter be required. The registration statements on Form F-6 for registration of the ADSs evidenced by ADRs, as amended at the time it became effective (including by the filing of any post-effective amendments thereto), and the prospectus included therein, as then amended are hereinafter called the “ADS Registration Statement.” The Form F-6s were declared effective under the Act on April 14, 2011 and May 14, 2018 and (i) no stop order preventing or suspending the effectiveness of the ADS Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission, (ii) the ADS Registration Statement complies and, as amended or supplemented, if applicable, will comply in all material respects with the Act and the applicable rules and regulations of the Commission thereunder, (iii) the ADS Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading; and (iv) all of the ADSs are registered pursuant to the ADS Registration Statement.
(c) No order preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and no stop order suspending the effectiveness of the Registration Statement (including any related registration statement filed pursuant to Rule 462(b)) or any post-effective amendment thereto has been issued, and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission. On the Effective Date, on the date the Base Prospectus, any preliminary
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prospectus, the Prospectus Supplement, or the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if required), at all times during the period through and including the Closing Date and, if later, the applicable Option Closing Date and when any post-effective amendment to the Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, the Registration Statement and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto), including the financial statements included or incorporated by reference in the Prospectus, did and will comply in all material respects with all applicable provisions of the Act, the Exchange Act, the rules and regulations of the Commission under the Exchange Act (the “Exchange Act Rules and Regulations”), and the Rules and Regulations and will contain all statements required to be stated therein in accordance with the Act, the Exchange Act, the Exchange Act Rules and Regulations, and the Rules and Regulations. As of the applicable effective date as to each part of the Registration Statement, no part of the Registration Statement, the Prospectus or any such amendment or supplement thereto did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. At the Effective Date, the date the Base Prospectus or any amendment or supplement to the Base Prospectus, including any preliminary prospectus or the Prospectus Supplement, is filed with the Commission, the date of first use of any preliminary prospectus or the Prospectus Supplement, and at the Closing Date and, if later, the applicable Option Closing Date, the Prospectus did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As of the Applicable Time, neither (w) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined below) and, the Pricing Prospectus (as defined below) and the documents and other information listed on Schedule I hereto, all considered together (collectively, the “General Disclosure Package”), (x) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, nor (y) any roadshow or investor presentations delivered by the Company to and approved by the Underwriter for use in connection with the marketing of the Offered ADSs (the “Marketing Materials”), when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted 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.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 6:30 p.m. (New York City time) on December 7, 2020 or such other time as agreed by the Company and the Underwriter.
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule I hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Pricing Prospectus” means the Base Prospectus, as amended or supplemented immediately prior to the Applicable Time, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof. For purposes of this definition, information contained in a form of prospectus that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus only if the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b) is prior to the Applicable Time.
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Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered ADSs or until any earlier date that the issuer notified or notifies the Underwriter as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified. If there occurs an event or development as a result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will promptly notify the Underwriter so that any use of the General Disclosure Package may cease until it is amended or supplemented to correct such untrue statement or omission.
The foregoing representations and warranties in this Section 3(c) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter or the Selling Securityholder furnished in writing to the Company by the Underwriter or the Selling Securityholder, as applicable, specifically for inclusion in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto. The Company acknowledges that the statements set forth in the fifth and eighth through fifteenth paragraphs (inclusive of such paragraphs) under the heading “Underwriting” in the Pricing Prospectus and the Prospectus constitute the only information relating to the Underwriter furnished in writing to the Company by the Underwriter, specifically for inclusion in the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus. The Company acknowledges that the only such information furnished by the Selling Securityholder consists of (i) the name of the Selling Securityholder, (ii) the number of ADSs and Ordinary Shares beneficially owned by the Selling Securityholder, (iii) the information set forth in the beneficial ownership table set forth under the caption “Selling Securityholder” in the Pricing Prospectus and the Prospectus and (iv) the number of Firm ADSs to be offered by the Selling Securityholder (collectively, the “Selling Securityholder Information”).
(d) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Offered ADSs and (ii) as of the date hereof, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Rules and Regulations (“Rule 405”)), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(e) The documents that are incorporated by reference in the Base Prospectus, any preliminary prospectus, the Pricing Prospectus and the Prospectus or from which information is so incorporated by reference, when they became or become effective or were or are filed with the Commission, as the case may be, complied or will comply in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the Rules and Regulations or the Exchange Act Rules and Regulations, as applicable; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, comply in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the Rules and Regulations or the Exchange Act Rules and Regulations, as applicable. No such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule I hereto.
(f) The Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation or have any equity interest in any corporation, firm, partnership, joint venture, association or other entity, other than the subsidiaries set forth on Schedule II hereto (the “Subsidiaries”). The Company has been duly incorporated and is validly existing as a société anonyme in good standing incorporated in the French Republic and registered with the Registry of Commerce and
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Companies under number 450 249 677 RCS Nanterre. Each of the Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. The Company and each of its Subsidiaries has full power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus. The Company and each of its Subsidiaries is duly licensed or qualified to do business and in good standing in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such license or qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not materially and adversely affect the Company and its Subsidiaries, taken as a whole, or their respective businesses, properties, business prospects, conditions (financial or other) or results of operations, taken as a whole (such effect is referred to herein as a “Material Adverse Effect”). All of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and owned by the Company free and clear of all claims, liens, charges and encumbrances; there are no securities outstanding that are convertible into or exercisable or exchangeable for capital stock of any Subsidiary. The Company and its Subsidiaries are not engaged in any discussions or a party to any agreement or understanding, written or oral, regarding the acquisition of an interest in any corporation, firm, partnership, joint venture, association or other entity where such discussions, agreements or understandings would require amendment to the Registration Statement pursuant to applicable securities laws. Complete and correct copies of the statuts of the Company and the charters and bylaws of each of its Subsidiaries and all amendments thereto have been delivered to the Underwriter, and no changes therein will be made subsequent to the date hereof and prior to the Closing Date or, if later, the applicable Option Closing Date.
(g) The Company has authorized, issued and outstanding capital stock as set forth under the caption “Capitalization” in the Pricing Prospectus and the Prospectus as of the respective dates set forth therein. All of the outstanding shares of capital stock 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. The Ordinary Shares in the form of the Offered ADSs, including the Firm ADSs to be sold by the Selling Securityholder, have been duly authorized for issuance and, upon due and authorized execution and delivery by the Depositary of the ADRs evidencing the Offered ADSs against deposit of the Underlying Shares in respect thereof in accordance with the provisions of the Deposit Agreement and when paid for as contemplated herein, such Offered ADSs evidenced by such ADRs, and the Underlying Shares, will be validly issued, fully paid and nonassessable and the persons in whose names the Offered ADRs are registered will be entitled to the rights specified therein and in the Deposit Agreement; no preemptive right, resale right, right of first refusal or similar rights exist with respect to any of the Ordinary Shares in the form of the Offered ADSs and the issue and sale thereof will be free of any restriction upon the voting or transfer thereof pursuant to the laws of France or the Company’s statuts or any agreement or other instrument to which the Company is a party. The description of the capital stock, including the Offered ADSs and the Ordinary Shares, of the Company and the Deposit Agreement included in or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus is complete and accurate in all material respects. Except as set forth in or incorporated by reference in the Pricing Prospectus and the Prospectus, the Company does not have outstanding and, at the Closing Date and, if later, the applicable Option Closing Date, will not have outstanding, any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. No further approval or authority of securityholders or the Board of Directors of the Company will be required for the issuance and sale of the Offered ADSs, including the Firm ADSs to be sold by the Selling Securityholder, as contemplated herein. The certificates evidencing the ADSs are in due and proper legal form and have been duly authorized for issuance by the Company.
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(h) The financial statements and schedules included or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus present fairly 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, all in conformity with International Financial Reporting Standards applied on a consistent basis throughout the entire period involved, except as otherwise disclosed in the Pricing Prospectus or the Prospectus. No other financial statements or schedules of the Company are required by the Act, the Exchange Act, the Exchange Act Rules and Regulations or the Rules and Regulations to be included in the Registration Statement, the Pricing Prospectus or the Prospectus. Ernst & Young Audit (the “Accountants”), who have reported on such financial statements and schedules, are independent accountants with respect to the Company as required by the Act and the Rules and Regulations of the Public Company Accounting Oversight Board (“PCAOB”). The summary and selected consolidated financial and statistical data included or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented and incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus. All disclosures contained in the Registration Statement or the General Disclosure Package regarding “non-IFRS financial measures” (correlating to “non-GAAP financial measures”, as such term is defined in the Rules and Regulations) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent applicable.
(i) Subsequent to the respective dates as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus and prior to or on the Closing Date and, if later, the applicable Option Closing Date, except as set forth in or contemplated by the Registration Statement, the Pricing Prospectus and the Prospectus, (i) there has not been and will not have been any change in the capitalization of the Company (other than in connection with the exercise of options or similar instruments, including the Bons de souscription de parts de Créateurs d’Entreprise (“BSPCE”), to purchase the Ordinary Shares granted pursuant to the Company’s stock option or similar plans from the shares reserved therefor as described in the Registration Statement, the Pricing Prospectus and the Prospectus), or any Material Adverse Effect arising for any reason whatsoever, (ii) neither the Company nor any of its Subsidiaries has incurred nor will any of them incur, except in the ordinary course of business as described in the Pricing Prospectus and the Prospectus, any material liabilities or obligations, direct or contingent, nor has the Company or any of its Subsidiaries entered into nor will it enter into, except in the ordinary course of business as described in the Pricing Prospectus and the Prospectus, any material transactions other than pursuant to this Agreement and the transactions referred to herein and (iii) the Company has not and will not have paid or declared any dividends or other distributions of any kind on any class of its capital stock.
(j) The Company is not, will not become as a result of the transactions contemplated hereby, and will not conduct its business in a manner that would cause it to become, an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(k) Except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, there are no actions, suits or proceedings pending or, to the best knowledge of the Company, threatened against or affecting the Company, or any of its Subsidiaries or any of its or their officers in their capacity as such, nor any basis therefor, before or by any federal or state court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign (including the New York Stock Exchange (the “NYSE”), wherein an unfavorable ruling, decision or finding would have a Material Adverse Effect.
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(l) The Company and each Subsidiary has, and at the Closing Date and, if later, the applicable Option Closing Date, will have, performed all the obligations required to be performed by it, and is not, and at the Closing Date, and, if later, the applicable Option Closing Date, will not be, in default, under any contract or other instrument to which it is a party or by which its property is bound or affected, which default might reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, no other party under any contract or other instrument to which it or any of its Subsidiaries is a party is in default in any respect thereunder, which default might reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is, and at the Closing Date and, if later, the applicable Option Closing Date, will not be, in violation of any provision of its statuts, certificate or articles of organization or by-laws or other organizational documents, as the case may be.
(m) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body or the Company’s securityholders is required for the consummation by the Company of the transactions on its part contemplated herein, except such as have been obtained under the laws of France, the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the listing of the Ordinary Shares and the Offered ADSs on the NYSE.
(n) The Company has full corporate power and authority to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the Company. The Deposit Agreement constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(o) The performance of this Agreement and the consummation of the transactions contemplated hereby will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its Subsidiaries pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or conflict with or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, (i) the statuts of the Company or the certificate or articles of incorporation or by-laws or other organizational documents of any of the Subsidiaries, (ii) any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of its or their properties is bound or affected, or (iii) any judgment, ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties of the Company or any of its Subsidiaries, except as to clauses (ii) and (iii) above for such breaches, violations or defaults which would not result in a Material Adverse Effect.
(p) The Company and its Subsidiaries have good and marketable title to all properties and assets described in the Pricing Prospectus and the Prospectus as owned by them, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Pricing Prospectus and the Prospectus or are not material to the business of the Company or its Subsidiaries. The Company and its Subsidiaries have valid, subsisting and enforceable leases for the properties described in the Pricing Prospectus and the Prospectus as leased by them. The Company and its Subsidiaries own or lease all such properties as are necessary to their operations as now conducted or as proposed to be conducted, except where the failure to so own or lease would not have a Material Adverse Effect.
(q) There is no document, contract, permit or instrument, affiliate transaction or off-balance sheet transaction (including, without limitation, any “variable interests” in “variable interest entities,” as such terms are defined in Financial Accounting Standards Board Interpretation No. 46, as codified in Accounting Standards Codification Topic 810) of a character required to be described in the Registration Statement, the Pricing Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required. All such contracts to which the Company or any of its Subsidiaries is a party have been duly authorized, executed and delivered by the Company or such Subsidiary, constitute valid and binding agreements of the Company or such Subsidiary and are enforceable against and by the Company or such Subsidiary in accordance with the terms thereof.
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(r) The Company has not distributed and will not distribute prior to the later of (i) the Closing Date or, if later, the applicable Option Closing Date, and (ii) completion of the distribution of the Offered ADSs, any offering material in connection with the offering and sale of the Offered ADSs other than any preliminary prospectuses, the Prospectus, the Registration Statement, any Issuer Free Writing Prospectus listed in Schedule I hereto, and other materials, if any, permitted by the Act and the Rules and Regulations. Neither the Company nor, to the knowledge of the Company, any of its directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that might reasonably be expected, to cause or result, under the Act or otherwise, in, or that has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered ADSs.
(s) No holder of securities of the Company has rights to the registration of any securities of the Company because of the filing of the Registration Statement.
(t) The Ordinary Shares and the ADSs are registered under Section 12(b) of the Exchange Act and the Company has filed an application to list the Underlying Shares and the Offered ADSs on the NYSE.
(u) Except as disclosed in or specifically contemplated by the Pricing Prospectus and the Prospectus (i) each of the Company and each of its Subsidiaries owns or has adequate rights to use all trademarks, trade names, domain names, patents, patent rights, mask works, copyrights, technology, know-how (including trade secrets and other unpatented or unpatentable proprietary or confidential information, systems or procedures), service marks, trade dress rights, and other intellectual property (collectively, “Intellectual Property”) and has such other licenses, approvals and governmental authorizations, in each case, sufficient to conduct its business as now conducted and as now proposed to be conducted, except where the failure to own, license or have such rights would not, individually or in the aggregate, have a Material Adverse Effect and, to the Company’s and its Subsidiaries’ knowledge, none of the foregoing Intellectual Property rights owned or licensed by the Company or any of its Subsidiaries is invalid or unenforceable, (ii) the Company has no knowledge of any infringement by it or any of its Subsidiaries of Intellectual Property rights of others, where such infringement could have a Material Adverse Effect, (iii) the Company is not aware of any infringement, misappropriation or violation by others of, or conflict by others with rights of the Company or any of its Subsidiaries with respect to, any Intellectual Property, (iv) there is no pending claim being made, or to the best knowledge of the Company or any Subsidiary, threatened against the Company or any of its Subsidiaries or, to the best knowledge of the Company and its Subsidiaries, any employee of the Company or any of its Subsidiaries, regarding Intellectual Property or other infringement that could have a Material Adverse Effect and (v) the Company and its Subsidiaries have not received any notice of infringement with respect to any patent or any notice challenging the validity, scope or enforceability of any Intellectual Property owned by or licensed to the Company or any of its Subsidiaries, in each case the loss of which patent or Intellectual Property (or loss of rights thereto) would have a Material Adverse Effect.
(v) The Company and each of its Subsidiaries has filed all federal, state, local and foreign income tax returns that have been required to be filed and has paid all taxes and assessments received by it to the extent that such taxes or assessments have become due other than taxes and assessments the Company is contesting in good faith by appropriate actions promptly instituted and diligently conducted. Except as disclosed in the Pricing Prospectus, neither the Company nor any of its Subsidiaries has any tax deficiency that has been or, to the best knowledge of the Company, might be asserted or threatened against it that could have a Material Adverse Effect.
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(w) The Company or its Subsidiaries owns or possesses all authorizations, approvals, orders, licenses, registrations, other certificates and permits of and from all governmental regulatory officials and bodies, necessary to conduct their respective businesses as contemplated in the Pricing Prospectus and the Prospectus, except where the failure to own or possess all such authorizations, approvals, orders, licenses, registrations, other certificates and permits would not have a Material Adverse Effect. There is no proceeding pending or, to the Company’s knowledge, threatened (or any basis therefor known to the Company) that may cause any such authorization, approval, order, license, registration, certificate or permit to be revoked, withdrawn, cancelled, suspended or not renewed; and the Company and each of its Subsidiaries is conducting its business in compliance with all laws, rules and regulations applicable thereto (including, without limitation, all applicable federal, state and local environmental laws and regulations) except where such noncompliance would not have a Material Adverse Effect.
(x) The Company and each of its Subsidiaries maintains insurance of the types and in the amounts generally deemed adequate for its business, including, but not limited to, insurance covering real and personal property owned or leased by the Company and its Subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect.
(y) Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s or its Subsidiaries’ knowledge, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries has, directly or indirectly, (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any unlawful payment from corporate funds to any foreign or domestic government official or employee or foreign or domestic political party or campaign, (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, or (iv) made any bribe, illegal rebate, payoff, influence payment, kickback or other unlawful payment.
(z) The books, records and accounts of the Company and its Subsidiaries accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the results of operations of, the Company and its Subsidiaries. The Company and each of its Subsidiaries maintains a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s consolidated financial statements in accordance with International Financial Reporting Standards and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. As disclosed in the Pricing Prospectus and Prospectus, the Company has identified material weaknesses (as such term is defined in Rule 1-02(a)(4) of Regulation S-X under the Act) in its internal control over financial reporting in 2018 and 2019 which have not been remediated as of the date hereof, and as a result, the Company’s system of internal control over financial reporting is not effective. Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus, there has been 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.
(aa) The Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; as a result of the material weaknesses in internal control over financial reporting disclosed in the Pricing Prospectus and Prospectus, the Company’s disclosure controls and procedures are not effective.
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(bb) There are no affiliations or associations between any member of FINRA and any of the Company’s officers, directors, or, to the Company’s knowledge, 5% or greater securityholders.
(cc) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering and sale of the Offered ADSs contemplated herein, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(dd) The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering laws of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines administered or enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(ee) (i) Except as would not, individually or in the aggregate, have a Material Adverse Effect, each of the Company and each of its Subsidiaries is in compliance with all applicable rules, laws and regulation relating to pollution, the protection of health or the environment, and the use, transportation, treatment, storage and disposal of, or exposure to, hazardous or toxic substances or wastes (“Environmental Law”), (ii) none of the Company nor any of its Subsidiaries has received any written notice from any governmental authority or third party, or otherwise has knowledge, of an asserted claim under Environmental Laws, and (iii) to the knowledge of the Company or the Subsidiaries, no facts currently exist that are reasonably likely to subject the Company or any of its Subsidiaries to liability under Environmental Laws, including any liability for remediation of any releases or threatened releases of hazardous or toxic substances.
(ff) The statistical, industry-related and market-related data included or incorporated by reference in the Registration Statement, the Pricing Prospectus, the Prospectus or the Marketing Materials are based on or derived from sources the Company reasonably and in good faith believes are reliable and accurate, and such data agrees in all material respects with the sources from which they are derived.
(gg) Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus, each stock option or similar instrument, including the BSPCE, granted under any stock option or similar plan of the Company or any Subsidiary (each, a “Stock Plan”) was granted with a per share exercise price no less than the fair market value per Ordinary Share on the grant date of such option, and no such grant involved any “back-dating,” “forward-dating” or similar practice with respect to the effective date of such grant; except as would not, individually or in the aggregate, have a Material Adverse Effect, each such option (i) was granted in compliance with applicable law and with the applicable Stock Plan(s), (ii) was duly approved or ratified by the board of directors (or a duly authorized committee thereof) of the Company or such Subsidiary, as applicable, and (iii) has been properly accounted for in the Company’s financial statements in accordance with International Financial Reporting Standards.
(hh) The Company was not a “passive foreign investment company” (“PFIC”) as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended, for the taxable year ended December 31, 2019 and, based on certain estimates of the Company’s gross income and the value of its assets, the intended use of proceeds from the offering and sale of the Offered ADSs and the nature of the Company’s business, the Company does not expect to be classified as a PFIC for the taxable year ending December 31, 2020.
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(ii) The Company was not a “controlled foreign corporation” (“CFC”) as defined in the U.S. Internal Revenue Code of 1986, as amended, for the taxable year ended December 31, 2019 and, based on the Company’s expectations with respect to its shareholders, the Company does not expect to be classified as a CFC for the taxable year ending December 31, 2020.
(jj) 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 Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (“HALDE”) or the National Labor Relations Board, respectively, 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.
(kk) Neither the Company’s independent registered public accountants or the Audit Committee of the Board of Directors of the Company have been advised of any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; and the Company has taken all necessary actions to ensure that, upon and at all times after the filing of the Registration Statement, the Company and the Subsidiaries and their respective officers and directors, in their capacities as such, will be in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and the rules and regulations promulgated thereunder.
(ll) Each “forward-looking statement” (within the meaning of Section 27A of the Act or Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Prospectus, the Prospectus or the Marketing Materials has been made or reaffirmed with a reasonable basis and in good faith.
(mm) Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company or the Subsidiaries, any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is currently the subject of any inquiry conducted by, or declaration issued by, TRACFIN or the Office central pour la répression de la grande délinquance financière (“OCRGDF”) and the Company will not directly or indirectly use the proceeds of the offering of the Offered ADSs contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity for the purpose of financing the activities of any person currently the subject of any inquiry conducted by or declaration issued by TRACFIN or the OCRGDF.
(nn) Subject to any prohibitions or restrictions under any applicable corporate or other similar laws, no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company, except as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
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(oo) Except pursuant to this Agreement, neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or by the Registration Statement.
(pp) The Company is a “foreign private issuer” within the meaning of Rule 405 under the Act.
(ii) Representations and Warranties of the Selling Securityholder. The Selling Securityholder represents, warrants and covenants to the Underwriter that:
(a) The Selling Securityholder has been duly formed and is validly existing as an exempted limited partnership in good standing under the laws of its jurisdiction of organization, with power and authority (corporate and other) to own, lease and/or operate its properties and conduct its business, and has been duly registered or qualified as a foreign limited partnership for the transaction of business, and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to so qualify or to be in good standing would not reasonably be expected to result in a material adverse effect upon the ability of the Selling Securityholder to consummate the transactions contemplated in this Agreement.
(b) The Selling Securityholder has, and on the Closing Date hereinafter mentioned will have valid and unencumbered title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Firm ADSs to be delivered by the Selling Securityholder on the Closing Date and has the legal right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Firm ADSs to be delivered by the Selling Securityholder under this Agreement on the Closing Date hereunder free and clear of all liens, encumbrances, equities or claims arising under this Agreement.
(c) No consent, approval, authorization or order of, or filing with, any third party (including any governmental agency or body or any court) is required to be obtained or made by the Selling Securityholder for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Firm ADSs sold by the Selling Securityholder, except as expressly contemplated hereby and such as have been obtained and made under the Act and such as may be required under state securities laws.
(d) The execution, delivery and performance of this Agreement and the consummation of the transactions therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Securityholder is a party or by which the Selling Securityholder is bound or which any of the property or assets of the Selling Securityholder is subject, except for such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect upon the ability of the Selling Securityholder to consummate the transactions contemplated by this Agreement; nor will such action result in any violation of the provisions of the Certificate of Formation or operating agreement or other similar organizational documents of the Selling Securityholder; nor will such action result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Securityholder or any of its respective properties, except where such violations would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect upon the ability of the Selling Securityholder to consummate the transactions contemplated by this Agreement.
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(e) (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) at the Applicable Time relating to the Firm ADSs and (D) on the Closing Date, the Registration Statement did not and will not include 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 not misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will not include 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 not misleading. The preceding sentence applies only to statements in or omissions from any such document that are made in reliance upon and in conformity with the written information furnished to the Company by the Selling Securityholder specifically for use therein, it being understood and agreed that the only information furnished by the Selling Securityholder is the Selling Securityholder Information.
(f) The sale of the Firm ADSs by the Selling Securityholder pursuant to this Agreement is not prompted by any material information known to the Selling Securityholder concerning the Company or any of its subsidiaries that is not set forth in the General Disclosure Package.
(g) This Agreement has been duly authorized, executed and delivered by the Selling Securityholder.
(h) The Selling Securityholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Offered ADSs.
(i) There are no contracts, agreements, or understandings between the Selling Securityholder and any person that would give rise to a valid claim against the Selling Securityholder or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the sale of the Offered ADSs (other than this Agreement).
(j) Neither the Selling Securityholder nor, to the knowledge of the Selling Securityholder, any director, officer, agent, employee or affiliate of the Selling Securityholder (i) is the subject or target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of Commerce or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), (ii) is located, organized or resident in a country or territory that is the subject or target of Sanctions (including, but not limited to, Crimea, Cuba, Iran, North Korea and Syria) (each a “Sanctioned Country”), (iii) is a Person on the list of “Specially Designated Nationals and Blocked Persons” or any other Sanctions-related list, or (iv) is owned or otherwise controlled by any Person on a Sanctions-related list. The Selling Securityholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) to fund or facilitate any activities of or business with any Person that, at the time of such funding or facilitating, is the subject or target of Sanctions, or is located, organized or resident in a Sanctioned Country, or (ii) in any other manner that will result in a violation by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(iii) Officer’s Certificates. Any certificate signed by any officer of the Company or any of the Subsidiaries or any officer of the Selling Securityholder that is delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Firm ADSs or Option ADSs, as applicable, shall be deemed to be a representation and warranty by the Company or the Selling Securityholder, as applicable, as to matters covered thereby, to the Underwriter.
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4. Agreements of the Company and Selling Securityholder.
(i) Agreements of the Company. The Company covenants and agrees with the Underwriter as follows:
(a) The Company will not, either prior to the Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Offered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement, the Base Prospectus or the Prospectus, unless a copy thereof shall first have been submitted to the Underwriter within a reasonable period of time prior to the filing thereof and the Underwriter shall not have objected thereto in good faith.
(b) The Company will notify the Underwriter promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriter promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriter, without charge, a copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Underwriter, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to the Underwriter, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each
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Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Underwriter and by all dealers to whom the Offered ADSs may be sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriter, without charge, such number of copies of such supplement or amendment to the Prospectus as the Underwriter may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriter, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Underwriter after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and, if requested by the Underwriter, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company will cooperate with the Underwriter and counsel to the Underwriter in connection with the registration or qualification of the Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriter may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as required under the Rules and Regulations, furnish to its securityholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company, will pay or reimburse if paid by the Underwriter all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the
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Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriter or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriter in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriter in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company, the Accountants and the Depositary (including any costs and expenses necessary in connection with closing and settlement), (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including communication and electronic marketing expenses incurred by the Underwriter on behalf of the Company, such as NetRoadshow and any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriter), and (xi) all other costs and expenses of the Underwriter incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriter (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event shall the Company be required to pay or reimburse if paid by the Underwriter any costs and expenses in excess of $50,000 in the aggregate (“Expense Cap”); provided, that expenses incurred by the Underwriter on behalf of the Company in connection with clause (x) above shall not be included in the Expense Cap and shall be paid by the Company. The Company will pay or reimburse if paid by the Selling Securityholder the fees and expenses of the Selling Securityholder’s counsel, up to $20,000 in the aggregate, but will not be responsible for (i) the underwriting discounts and commissions, incentive or advisory fees payable to the Underwriter in connection with the sale of the Firm ADSs, or (ii) any transfer taxes associated with the Firm ADSs.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Option ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) Prior to the termination of the Option, the Company shall not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of the Offered ADSs, without prior notice to the Underwriter.
(m) The Company will use its best efforts to cause the Offered ADSs and the Underlying Shares to be listed on the NYSE and to maintain such listing on the NYSE.
(ii) Agreements of the Selling Securityholder. The Selling Securityholder covenants and agrees with the Underwriter as follows:
(a) Upon execution of this Agreement, the Selling Securityholder confirms that the note conversion notice has been issued to the Company, all conditions thereunder have been satisfied and the notes have been converted substantially in accordance with the terms and conditions of the note purchase agreements, and the Selling Securityholder has directed the Company to facilitate the sale of the Firm ADSs to the Underwriter as contemplated herein.
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(b) The Selling Securityholder will pay (i) the amount of any fees and expenses of the Underwriter above the Expense Cap in accordance with Section 4(i)(i) above, (ii) the underwriting discounts and commissions, incentive or advisory fees payable to the Underwriter in connection with the sale of the Firm ADSs and (iii) any transfer taxes associated with the Firm ADSs.
(c) The Selling Securityholder shall deliver to the Underwriter, prior to or at the Closing Date, a properly completed and signed IRS Form W-8 or IRS Form W-9, as appropriate, together with all required attachments to such form.
5. Further Agreements
(a) The Company and the Selling Securityholder represent and agree that, without the prior written consent of the Underwriter, and the Underwriter represents and agrees that, without the prior written consent of the Company, it has not made and will not make any offer relating to the ADSs that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations. Any such Free Writing Prospectus the use of which has been consented to by the Company and the Underwriter is listed on Schedule I and herein called a “Permitted Free Writing Prospectus.”
(b) The Company agrees that is has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and that it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, record keeping and legending.
6. Conditions of the Obligations of the Underwriter. The obligations of the Underwriter hereunder are subject to the following conditions:
(a) All filings required by Rule 424 and Rule 430B of the Rules and Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement.
(b) (i) No stop order suspending the effectiveness of the ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall be pending or threatened by the Commission, (ii) no order suspending the effectiveness of the ADS Registration Statement, the Registration Statement or the qualification or registration of the ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities, (iv) after the date hereof no amendment or supplement to the ADS Registration Statement, the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriter and the Underwriter does not object thereto in good faith, and (v) the Underwriter shall have received certificates, dated the Closing Date and, if later, the applicable Option Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph.
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(c) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Underwriter any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriter at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Underwriter, have a Material Adverse Effect or if, in the judgment of the Underwriter, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriter at the initial public offering price.
(e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with.
(f) The Underwriter shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Underwriter and counsel for the Underwriter from Orrick, Herrington & Sutcliffe LLP, U.S. counsel to the Company and Orrick, Herrington & Sutcliffe (Europe) LLP, French counsel to the Company.
(g) The Underwriter shall have received an opinion, dated the Closing Date, satisfactory in form and substance to the Underwriter and counsel for the Underwriter from Akin Gump Strauss Hauer & Feld LLP and Maples and Calder, special counsel to the Selling Securityholder.
(h) Reserved.
(i) The Underwriter shall have received an opinion with respect to the Option ADSs on the applicable Option Closing Date, satisfactory in form and substance to the Underwriter and counsel for the Underwriter, of Emmet, Marvin & Martin, LLP, counsel for the Depositary, addressed to the Underwriter.
(j) The Underwriter shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from The NBD Group, Inc., counsel to the Underwriter, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Underwriter.
(k) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriter a letter, dated the date of its delivery, addressed to the Underwriter and in form and substance satisfactory to the Underwriter, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and
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Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriter a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(l) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriter a certificate, dated the date of its delivery, signed by the Chief Financial Officer of the Company with respect to certain financial data contained in the Registration Statement, the General Disclosure Package, the Prospectus and the roadshow presentation, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Underwriter.
(m) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriter a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriter, to the effect that:
(i) Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Prospectus and the Prospectus) and (A) as of the date of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) in the case of the certificate delivered at the Closing Date and the applicable Option Closing Date, since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty).
(iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled.
(n) Concurrently with the execution and delivery of this Agreement and at the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriter a certificate, dated the delivery date signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriter.
(o) Reserved.
(p) The Deposit Agreement shall be in full force and effect and the Company, the Selling Securityholder (in the case of the Firm ADSs) and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
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(q) The Depositary shall have furnished or caused to be furnished to the Underwriter a certificate satisfactory to the Underwriter of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Underwriter reasonably requests.
(r) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriter may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(s) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(t) At the Closing Date, there shall be furnished to the Underwriter a certificate, dated the date of its delivery, signed by the Selling Securityholder, in form and substance satisfactory to the Underwriter, to the effect that:
(i) The Selling Securityholder has, solely with respect to Selling Securityholder Information, carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Prospectus and the Prospectus) and (A) as of the date of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) in the case of the certificate delivered at the Closing Date, since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading.
(ii) Each of the representations and warranties of the Selling Securityholder contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects (subject to any materiality qualification).
(iii) Each of the covenants required to be performed by the Selling Securityholder herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled.
(u) The Company and Selling Securityholder shall have furnished to the Underwriter such certificates, in addition to those specifically mentioned herein, as the Underwriter may have reasonably requested as to the accuracy and completeness at the Closing Date and the applicable Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company or Selling Securityholder herein, as to the performance by the Company or Securityholder of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriter.
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7. Indemnification.
(a) The Company will indemnify and hold harmless the Underwriter, the partners, members, directors, officers, employees, agents and affiliates of the Underwriter and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, liabilities, expenses and damages (including any and all investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted), to which they, or any of them, may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any Marketing Materials or any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, or the omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading in the light of the circumstances in which they were made, or arise out of or are based in whole or in part on any inaccuracy in the representations and warranties of the Company contained herein or any failure of the Company to perform its obligations hereunder or under law in connection with the transactions contemplated hereby; provided, however, that the Company will not be liable to the extent that such loss, claim, liability, expense or damage arises from the sale of the Offered ADSs in the public offering to any person by an Underwriter and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. The Company acknowledges that the statements set forth in the fifth and eighth through fifteenth paragraphs (inclusive of such paragraphs) under the heading “Underwriting” in the Pricing Prospectus and the Prospectus constitute the only information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. This indemnity agreement will be in addition to any liability that the Company might otherwise have.
(b) The Selling Securityholder will indemnify and hold harmless the Underwriter, the partners, members, directors, officers, employees, agents and affiliates of the Underwriter and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, liabilities, expenses and damages described in the indemnity contained in subsection (a) of this Section, as incurred, but only insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with the Selling Securityholder Information furnished to the Company in writing by the Selling Securityholder expressly for use therein; provided, however, that the liability of the Selling Securityholder pursuant to this subsection (b) shall not exceed the proceeds (net of any underwriting discounts and commissions but before deducting expenses) from the sale of the Offered ADSs sold by such Selling Securityholder hereunder (the “Selling Securityholder Proceeds”); provided, further that the Selling Securityholder will not be liable to the extent that such loss, claim, liability, expense or damage arises from the sale of the Offered ADSs in the public offering to any person by an Underwriter and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. The Selling Securityholder acknowledges that the statements set forth in the fifth and eighth through fifteenth paragraphs (inclusive of such paragraphs) under the heading “Underwriting” in the Pricing Prospectus and the Prospectus constitute the only information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. This indemnity agreement will be in addition to any liability that the Selling Securityholder might otherwise have.
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(c) The Underwriter will indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, the Selling Securityholder, its directors and each person, if any, who controls the Selling Securityholder within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any and all losses, claims, liabilities, expenses and damages described in the indemnity contained in subsection (a) of this Section, as incurred, but only insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. The Company and Selling Securityholder acknowledges that the statements set forth in the fifth and eighth through fifteenth paragraphs (inclusive of such paragraphs) under the heading “Underwriting” in the Pricing Prospectus and the Prospectus constitute the only information relating to the Underwriter furnished in writing to the Company by the Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus, the Base Prospectus, Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials. This indemnity will be in addition to any liability that the Underwriter might otherwise have.
(d) Any party that proposes to assert the right to be indemnified under this Section 7 shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 7, notify each such indemnifying party in writing of the commencement of such action, enclosing with such notice a copy of all papers served, but the omission so to notify such indemnifying party will not relieve it from any liability that it may have to any indemnified party under the foregoing provisions of this Section 7 unless, and only to the extent that, such omission results in the loss of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (i) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (ii) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (iii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (iv) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted
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to practice in such jurisdiction at any one time for all such indemnified party or parties. All such reasonable fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. An indemnifying party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld or delayed).
(e) If the indemnification provided for in this Section 7 is applicable in accordance with its terms but for any reason is held to be unavailable to or insufficient to hold harmless an indemnified party under paragraphs (a), (b), (c) and (d) of this Section 7 in respect of any losses, claims, liabilities, expenses and damages referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company or Selling Securityholder from persons other than the Underwriter, such as persons who control the Company or Selling Securityholder within the meaning of the Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) by such indemnified party as a result of such losses, claims, liabilities, expenses and damages in such proportion as shall be appropriate to reflect the relative benefits received by the Company or Selling Securityholder, as applicable, on the one hand, and the Underwriter, on the other hand. The relative benefits received by the Company or Selling Securityholder, as applicable, on the one hand, and the Underwriter, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company or Selling Securityholder, as applicable, on the one hand, and the total underwriting discount received by the Underwriter, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of the Offered ADSs as set forth in the table on the cover page of the Prospectus. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company or Selling Securityholder, as applicable, on the one hand, and the Underwriter, on the other hand, with respect to the statements or omissions that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to 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 the Company, Selling Securityholder or the Underwriter, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, Selling Securityholder and the Underwriter agree that it would not be just and equitable if contributions pursuant to this Section 7(e) were to be determined by pro rata allocation (even if the Underwriter was treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss claim, liability, expense or damage, or action in respect thereof, referred to above in this Section 7(e) shall be deemed to include, for purposes of this Section 7(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(e), (i) the Underwriter shall not be required to contribute any amount in excess of the underwriting discounts and commissions received by it; (ii) the contribution by the Selling Securityholder pursuant to this Section 7(e) shall not exceed the Selling Securityholder Proceeds (without duplication of any amounts such Selling Securityholder has paid under Section 7(b)); (iii) the Selling Securityholder shall only be liable to the extent that the relevant losses, claims, liabilities, expenses
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and damages arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission, in each case, which relates to the Selling Securityholder made in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Marketing Materials Preliminary Prospectus in reliance upon and in conformity with any Selling Securityholder Information furnished to the Company in writing by the Selling Securityholder expressly for use therein; and (iv) no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7(e), any person who controls a party to this Agreement within the meaning of the Act will have the same rights to contribution as that party, and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against any such party in respect of which a claim for contribution may be made under this Section 7(e), will notify any such party or parties from whom contribution may be sought, but the omission so to notify will not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 7(e). No party will be liable for contribution with respect to any action or claim settled without its written consent (which consent will not be unreasonably withheld).
(f) The indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company and Selling Securityholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Underwriter, (ii) acceptance of any of the Offered ADSs and payment therefor, or (iii) any termination of this Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, the aggregate liability of the Selling Securityholder based on the Selling Securityholder’s representations and warranties contained in Section 3(ii) hereof, under any certificate delivered pursuant to this Agreement, under the indemnity and contribution agreements contained in this Section 7, or otherwise pursuant to this Agreement shall not exceed the Selling Securityholder Proceeds received by the Selling Securityholder.
8. Reimbursement of Certain Expenses. In addition to its other obligations under Section 7(a) or Section 7(b) of this Agreement, the Company and Selling Securityholder, as appropriate, hereby agrees to reimburse the Underwriter on a quarterly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any claim, action, investigation, inquiry or other proceeding arising out of or based upon, in whole or in part, any statement or omission or alleged statement or omission, or any inaccuracy in the representations and warranties of the Company or Selling Securityholder contained herein or failure of the Company or Selling Securityholder to perform its or their respective obligations hereunder or under law, all as described in Section 7(a) and Section 7(b), notwithstanding the absence of a judicial determination as to the propriety and enforceability of the obligations under this Section 8 and the possibility that such payment might later be held to be improper; provided, however, that, to the extent any such payment is ultimately held to be improper, the persons receiving such payments shall promptly refund them.
9. Termination. The obligations of the Underwriter under this Agreement may be terminated at any time on or prior to the Closing Date (or, with respect to the Option ADSs, on or prior to the applicable Option Closing Date), by notice to the Company and the Selling Securityholder from the Underwriter, without liability on the part of the Underwriter to the Company or Selling Securityholder if, prior to delivery and payment for the Firm ADSs or Option ADSs, as the case may be, in the sole judgment of the Underwriter, (i) trading in any of the equity securities of the Company shall have been suspended or limited by the Commission or by the NYSE, (ii) trading in securities generally on the NYSE or the NASDAQ Stock Market shall have been suspended or limited or minimum or maximum prices shall have been generally established on such exchange, or additional material governmental restrictions, not in force on the date of this Agreement, shall
25
have been imposed upon trading in securities generally by such exchange, by order of the Commission or any court or other governmental authority, or by the NYSE, (iii) a general banking moratorium shall have been declared by either federal or New York State or French authorities or any material disruption of the securities settlement or clearance services in the United States shall have occurred, or (iv) any material adverse change in the financial or securities markets in the United States or France or in political, financial or economic conditions in the United States or France, any outbreak or material escalation of hostilities involving the United States or France, a declaration of a national emergency or war by the United States or France, or other calamity or crisis, either within or outside the United States or France, shall have occurred, the effect of which is such as to make it, in the sole judgment of the Underwriter, impracticable or inadvisable to proceed with completion of the public offering or the delivery of and payment for the Offered ADSs.
If for any reason the purchase of the Offered ADSs by the Underwriter is not consummated or if for any reason the Company shall be unable to perform its obligations hereunder, the Company and the Selling Securityholder will reimburse the Underwriter for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriter) incurred by the Underwriter in connection with the offering of the Offered ADSs in accordance with Section 4(i)(i).
10. Default by the Company or Selling Securityholder. If the Company or Selling Securityholder shall fail at the Closing Date or Option Closing Date, as applicable, to sell the number of Offered ADSs that they are obligated to sell hereunder, then this Agreement shall terminate without any liability on the party of any non-defaulting party; provider, however, that the provisions of Sections 1, 4(i)(i), 7, 8 and 12 shall remain in full force and effect. No action take pursuant to this Section shall relieve the Company or Selling Securityholder from liability, if any, in respect of such default.
11. No Fiduciary Relationship. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriter, the Company and the Selling Securityholder each acknowledges and agrees that (i) the purchase and sale of the Offered ADSs pursuant to this Agreement (including the determination of the terms of the offering of the Offered ADSs) is an arm’s-length commercial transaction between the Company, the Selling Securityholder and the Underwriter, (ii) in connection therewith and with the process leading to such transaction, the Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Selling Securityholder, (iii) the Underwriter has not assumed an advisory or fiduciary responsibility in favor of the Company or the Selling Securityholder with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company or the Selling Securityholder on other matters) or any other obligation to the Company or the Selling Securityholder except the obligations expressly set forth in this Agreement, (iv) the Underwriter and its respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company or the Selling Securityholder and have no obligation to disclose or account to the Company or the Selling Securityholder for any of such differing interests, and (v) the Company and the Selling Securityholder each has consulted its own legal, tax, accounting and financial advisors to the extent it deemed appropriate. The Company and the Selling Securityholder each hereby agrees that it will not claim that the Underwriter has rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company or the Selling Securityholder, in connection with such transaction or the process leading thereto.
12. Miscellaneous. Notice given pursuant to any of the provisions of this Agreement shall be in writing and, unless otherwise specified, shall be mailed or delivered (a) if to the Company, at the office of the Company, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France, Attention: Chief Executive Officer, with a copy to Orrick, Herrington & Sutcliffe LLP, 405 Howard Street, San Francisco, California, 94105, Attention: Brett Cooper, Esq., (b) if to the Selling Securityholder, at the office of the Selling Securityholder, 2305 Cedar Springs Road, Suite 420, Dallas, TX 75201, Attention: Brett Hendrickson, with a copy to Akin
26
Gump Strauss Hauer & Feld LLP, 2300 N. Field Street, Suite 1800, Dallas, Texas, 75201, Attention: Jason Daniel, Esq. and (c) if to the Underwriter, at the offices of B. Riley Securities, Inc. at 11100 Santa Monica Blvd., Suite 800, Los Angeles, California, 90025, Attention: Andy Moore, with a copy to The NBD Group, Inc., 350 N. Glendale Avenue, Suite B-522, Glendale, California 91206, Attention: Sara L. Terheggen, Esq. Any such notice shall be effective only upon receipt.
This Agreement has been and is made solely for the benefit of the Underwriter, the Company, the Selling Securityholder and their respective controlling persons, directors and officers referred to in Section 7, and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” as used in this Agreement shall not include a purchaser, as such purchaser, of Offered ADSs from the Underwriter.
This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York.
Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and the Company and the Selling Securityholder each consents to the jurisdiction of such courts and personal service with respect thereto. The Company and the Selling Securityholder each hereby irrevocably waives any objection to the venue of a proceeding in any such court and consent to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Agreement is brought by any third party against the Underwriter or any indemnified party. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 as agent upon whom process against the Company may be served. The Underwriter, the Company and the Selling Securityholder (on their behalf and, to the extent permitted by applicable law, on behalf of their securityholders and affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company and the Selling Securityholder each agrees that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and the Selling Securityholder and may be enforced in any other courts to the jurisdiction of which the Company or the Selling Securityholder is or may be subject, by suit upon such judgment.
In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company and the Selling Securityholder each will indemnify the Underwriter against any loss incurred by the Underwriter as a result of any variation as between (a) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (b) the rate of exchange at which the Underwriter is able to purchase United States dollars with the amount of the judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent several (and not joint) obligation of the Company and the Selling Securityholder and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.
This Agreement may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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Each of the Company, the Selling Securityholder and the Underwriter hereby waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or the transactions contemplated hereby.
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Please confirm that the foregoing correctly sets forth the agreement among the Company, the Selling Securityholder and the Underwriter.
| Very truly yours, | ||||
| SEQUANS COMMUNICATIONS S.A. | ||||
| By: | /s/ Deborah Choate | |||
| Name: Deborah Choate | ||||
| Title: Chief Financial Officer | ||||
| NOKOMIS CAPITAL MASTER FUND, LP | ||||
| By: Nokomis Capital, L.L.C., its General Partner | ||||
| By: | /s/ Brett Hendrickson | |||
| Name: Brett Hendrickson | ||||
| Title: Manager | ||||
| By: Nokomis Capital Advisors, L.P., its General Partner | ||||
| By: | /s/ Brett Hendrickson | |||
| Name: Brett Hendrickson | ||||
| Title: Manager | ||||
| Confirmed as of the date first above mentioned: | ||
| B. RILEY SECURITIES, INC. | ||
| By: | /s/ Jimmy Baker | |
| Name: Jimmy Baker | ||
| Title: Head of Capital Market | ||
[Underwriting Agreement Signature Page]
SCHEDULE I
Issuer General Use Free Writing Prospectuses: None
Permitted Free Writing Prospectuses: None
Additional Documents Incorporated by Reference: None
Pricing Information:
Purchase Price Per ADS: $5.50
Number of Firm ADS Offered: 2,529,961
Underwriting Discount: 6.0%
Firm ADS Closing Date: December 10, 2020
SCHEDULE II
SUBSIDIARIES
| Name |
Country of Incorporation | Year of Incorporation | Equity Interest | |||||
| Sequans Communications Ltd. |
United Kingdom | 2005 | 100 | % | ||||
| Sequans Communications Inc. |
United States (California) | 2008 | 100 | % | ||||
| Sequans Communications Ltd. Pte. |
Singapore | 2008 | 100 | % | ||||
| Sequans Communications (Israel) Ltd. |
Israel | 2010 | 100 | % | ||||
| Sequans Communications Finland Oy |
Finland | 2020* | 100 | % | ||||
| * | registration in process |
EXHIBIT 5.1
|
Orrick, Herrington & Sutcliffe (Europe) LLP | |
| 31, avenue Pierre 1er de Serbie 75782 Paris Cedex 16 France | ||
| Siren : 808 676 316 | ||
|
T +33 1 53 53 75 00 | ||
| F +33 1 53 53 75 01 | ||
|
orrick.com |
December 10, 2020
Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
92700 Colombes, France
| Re: |
Registration Statement on Form F-3 |
Ladies and Gentlemen:
We have acted as counsel to Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), in connection with the sale by Nokomis Capital Master Fund, LP (the “Selling Securityholder”) of 2,529,961 American Depositary Shares (“ADSs”) each representing four ordinary shares (the “Shares”) of the Company, as described in the prospectus dated November 24, 2020 (the “Prospectus”) which is part of the Company’s registration statement on Form F-3 (File No. 333-250122) filed by the Company on November 16, 2020 with the Securities and Exchange Commission (the “Commission”) (the “Registration Statement”) and its prospectus supplement dated December 7, 2020 (the “Prospectus Supplement”), under the Securities Act of 1933, as amended (the “Securities Act”).
We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed and have relied on a certificate of an officer of the Company as to factual statements contained in such instruments, documents and records. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures and (b) the conformity to the originals of all documents submitted to us as copies.
Based upon the foregoing examination and in reliance thereon, and subject to the assumptions stated, we are of the opinion that (1) the Company is duly incorporated and validly existing as a separate legal entity subject to suit in its own name, in the form of a société anonyme and (2) the Shares represented by ADSs sold by the Selling Securityholder pursuant to the Registration Statement and its Prospectus Supplement are validly issued, fully paid up and non-assessable and may be freely traded (librement négociables).
The opinion expressed above is limited to the laws of the French Republic and we do not express any opinion as to the effect of any other laws.
Orrick, Herrington & Sutcliffe (Europe) LLP, Partnership à Responsabilité Limitée. Cabinet de Solicitors of the Supreme Court of England and Wales depuis le 9 août 2009. Membres de la Law Society of England and Wales. Inscrit au Barreau de Paris en application de la Directive 98/5/CE.
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Sequans Communications S.A. December 10, 2020 Page 2 |
We consent to the filing of this opinion as an exhibit to the Report on Form 6-K and its incorporation by reference into the Registration Statement and to the use of and references to our name under the captions “Legal Matters” in the Prospectus and the Prospectus Supplement. In giving this consent, we do not thereby admit that we are 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.
| Very truly yours,
/s/ Orrick, Herrington & Sutcliffe (Europe) LLP
ORRICK, HERRINGTON & SUTCLIFFE (EUROPE) LLP Etienne Boursican |
Exhibit 99.1
|
|
Sequans Communications S.A. Announces Launch of Public
Secondary Offering of American Depositary Shares
PARIS, France – December 7, 2020 – Sequans Communications S.A. (NYSE: SQNS), (“Sequans” or the “Company”), a leading developer and provider of 5G and 4G chips and modules for IoT devices, today announced the launch of an underwritten public secondary offering of its American Depositary Shares (the “ADSs”). Each ADS represents four ordinary shares of the Company, nominal value €0.02 per share. The ADSs to be sold in the proposed offering will be offered by Nokomis Capital Master Fund, LP (“Nokomis”) and will be issued pursuant to the conversion of $12.4 million in principal and accrued paid-in-kind interest of Sequans’ convertible notes. The Company expects to grant the underwriters a 30-day option to purchase up to an additional 15% of the number of ADSs sold by Nokomis in the proposed offering to cover over-allotments, if any. The proposed offering is subject to market and other conditions, and there can be no assurance as to whether or when the offering may be completed, or as to the actual size or terms of the offering. The Company intends to use the net proceeds from the over-allotment option, if exercised, for general corporate purposes, including the payment of certain expenses associated with the secondary offering.
B. Riley Securities is acting as sole bookrunner for the offering.
The proposed offering is being made pursuant to the Company’s shelf registration statement on Form F-3 (File No. 333-250122) that was declared effective by the Securities and Exchange Commission (“SEC”) on November 24, 2020. The ADSs may be offered only by means of a prospectus. A preliminary prospectus supplement describing the terms of the proposed offering and the accompanying base prospectus will be filed with the SEC and will be available on the SEC’s website located at http://www.sec.gov. Alternatively, copies of the preliminary prospectus supplement and accompanying prospectus relating to the proposed offering, when available, may be obtained from B. Riley Securities, Inc., Attention: Prospectus Department, 1300 17th St. North, Ste. 1300, Arlington, VA 22209, or by email at prospectuses@brileyfin.com, or by telephone at (703) 312-9580. The final terms of the proposed offering will be disclosed in a final prospectus supplement to be filed with the SEC.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Sequans Communications
Sequans Communications S.A. (NYSE: SQNS) is a leading developer and provider of 5G and 4G chips and modules for IoT devices. For 5G/4G massive IoT applications, Sequans provides a comprehensive product portfolio based on its flagship Monarch LTE-M/NB-IoT and Calliope Cat 1 chip platforms, featuring industry-leading low power consumption, a large set of integrated functionalities, and global deployment capability. For 5G/4G broadband and critical IoT applications, Sequans offers a product portfolio based on its Cassiopeia 4G Cat 4/Cat 6 and high-end Taurus 5G chip platforms, optimized for low-cost residential, enterprise, and industrial applications. Founded in 2003, Sequans is based in Paris, France with additional offices in the United States, United Kingdom, Israel, Hong Kong, Singapore, Taiwan, South Korea, and China.
Forward-Looking Statements
This press release contains forward-looking statements (within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended). Words such as “anticipate,” “believe,” “expect,” “intend,” “may,” “will,” and similar expressions are intended to identify forward-looking statements. The forward-looking statements in this press release include statements about the Company’s expectations regarding the completion of the proposed secondary public offering, its expectations with respect to granting the underwriters a 30-day option to purchase additional ADSs and the anticipated use of proceeds from the over-allotment option, if any. These statements involve risks, estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in these statements, including, among others, risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the proposed offering, as well as risks and uncertainties associated with the Company’s business and finances in general. In addition, please refer to the risk factors contained in the Company’s Form 20-F for the fiscal year ended December 31, 2019 and other SEC filings available at www.sec.gov. Given these risks and uncertainties, readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date on which they are made. The Company undertakes no obligation to update or revise any forward-looking statements for any reason, except as required by law.
Investor Contacts:
Media Relations: Kimberly Tassin, +1.425.736.0569, Kimberly@sequans.com
Investor Relations: Claudia Gatlin, +1 212.830.9080, Claudia@sequans.com
Disclaimer
The announcement is for information purposes only and does not, and shall not, in any circumstances, constitute a public offering by Sequans, nor a solicitation of an offer to subscribe for securities in any jurisdiction outside the United States, including France. No prospectus (including any amendment, supplement or replacement thereto) or any other offering material has been prepared in connection with the offering of the ADSs that has been approved by the Autorité des marchés financiers or by the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers; no ADSs have been offered or sold nor will be offered or sold, directly or indirectly, to the public in France; the prospectus or any other offering material relating to the ADSs have not been distributed or caused to be distributed and will not be distributed or caused to be distributed to the public in France; such offers, sales and distributions have been and shall only be made in France to persons licensed to provide the investment service of portfolio management for the account of third parties, qualified investors (investisseurs qualifiés) and/or restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, all as defined in Articles L. 411-2, D. 411-1, D. 411-4, D.744-1, D.754-1 and D. 764-1 of the French Code monétaire et financier. The direct or indirect distribution to the public in France of any so acquired ADSs may be made only as provided by Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier and applicable regulations thereunder. This communication does not constitute an offer or invitation to subscribe for or to purchase any of the ADSs and neither this communication nor anything herein shall form the basis of any contract or commitment whatsoever. Any contact with potential qualified investors in France does not and will not constitute financial and banking solicitation (démarchage bancaire et financier) as set forth in Articles L. 341-1 and seq. of the French Code monétaire et financier.
2
Exhibit 99.2
|
|
|
Sequans Communications S.A. Announces Pricing of Public Secondary Offering of
American Depositary Shares
Paris, France – December 8, 2020 – Sequans Communications S.A. (NYSE: SQNS), (“Sequans” or the “Company”), a leading developer and provider of 5G and 4G chips and modules for IoT devices, today announced the pricing of an underwritten public secondary offering of 2,529,961 American Depositary Shares (the “ADSs”), at a price of $5.50 per ADS. Each ADS represents four ordinary shares of the Company, nominal value €0.02 per share. The ADSs to be sold in the offering will be offered by Nokomis Capital Master Fund, L.P. (“Nokomis”) and will be issued pursuant to the conversion of $12.4 million in principal and accrued paid-in-kind interest of Sequans’ convertible notes. The Company has granted the underwriters a 30-day option to purchase an additional 379,494 ADSs to cover over-allotments, if any. The Company intends to use the net proceeds from the over-allotment option, if exercised, for general corporate purposes, including the payment of certain expenses associated with the secondary offering. The offering is expected to close on December 10, 2020, subject to customary closing conditions.
B. Riley Securities is acting as sole bookrunner for the offering.
The offering is being made pursuant to the Company’s shelf registration statement on Form F-3 (File No. 333-250122) that was declared effective by the Securities and Exchange Commission (“SEC”) on November 24, 2020. The ADSs may be offered only by means of a prospectus. A preliminary prospectus supplement and the accompanying base prospectus relating to the offering was filed with the SEC on December 7, 2020, and a final prospectus supplement and accompanying base prospectus relating to the offering will be filed with the SEC and will be available on the SEC’s website at www.sec.gov. Copies of the final prospectus supplement and accompanying base prospectus relating to this offering may also be obtained, when available, by contacting B. Riley Securities, Inc., Attention: Prospectus Department, 1300 17th St. North, Ste. 1300, Arlington, VA 22209, or by email at prospectuses@brileyfin.com, or by telephone at (703) 312-9580.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Sequans Communications
Sequans Communications S.A. (NYSE: SQNS) is a leading developer and provider of 5G and 4G chips and modules for IoT devices. For 5G/4G massive IoT applications, Sequans provides a comprehensive product portfolio based on its flagship Monarch LTE-M/NB-IoT and Calliope Cat 1 chip platforms, featuring industry-leading low power consumption, a large set of integrated functionalities, and global deployment capability. For 5G/4G broadband and critical IoT applications, Sequans offers a product portfolio based on its Cassiopeia 4G Cat 4/Cat 6 and high-end Taurus 5G chip platforms, optimized for low-cost residential, enterprise, and industrial applications. Founded in 2003, Sequans is based in Paris, France with additional offices in the United States, United Kingdom, Israel, Hong Kong, Singapore, Taiwan, South Korea, and China.
Forward-Looking Statements
This press release contains forward-looking statements (within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended). Words such as “anticipate,” “believe,” “expect,” “intend,” “may,” “will,” and similar expressions are intended to identify forward-looking statements. The forward-looking statements in this press release include statements about the Company’s expectations regarding the completion of the secondary public offering and the anticipated use of proceeds from the over-allotment option, if any. These statements involve risks, estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in these statements, including, among others, risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the proposed offering, as well as risks and uncertainties associated with the Company’s business and finances in general. In addition, please refer to the risk factors contained in the Company’s Form 20-F for the fiscal year ended December 31, 2019 and other SEC filings available at www.sec.gov. Given these risks and uncertainties, readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date on which they are made. The Company undertakes no obligation to update or revise any forward-looking statements for any reason, except as required by law.
Investor Contacts:
Media Relations: Kimberly Tassin, +1.425.736.0569, Kimberly@sequans.com
Investor Relations: Claudia Gatlin, +1 212.830.9080, Claudia@sequans.com
Disclaimer
The announcement is for information purposes only and does not, and shall not, in any circumstances, constitute a public offering by Sequans, nor a solicitation of an offer to subscribe for securities in any jurisdiction outside the United States, including France. No prospectus (including any amendment, supplement or replacement thereto) or any other offering material has been prepared in connection with the offering of the ADSs that has been approved by the Autorité des marchés financiers or by the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers; no ADSs have been offered or sold nor will be offered or sold, directly
2
or indirectly, to the public in France; the prospectus or any other offering material relating to the ADSs have not been distributed or caused to be distributed and will not be distributed or caused to be distributed to the public in France; such offers, sales and distributions have been and shall only be made in France to persons licensed to provide the investment service of portfolio management for the account of third parties, qualified investors (investisseurs qualifiés) and/or restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, all as defined in Articles L. 411-2, D. 411-1, D. 411-4, D.744-1, D.754-1 and D. 764-1 of the French Code monétaire et financier. The direct or indirect distribution to the public in France of any so acquired ADSs may be made only as provided by Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier and applicable regulations thereunder. This communication does not constitute an offer or invitation to subscribe for or to purchase any of the ADSs and neither this communication nor anything herein shall form the basis of any contract or commitment whatsoever. Any contact with potential qualified investors in France does not and will not constitute financial and banking solicitation (démarchage bancaire et financier) as set forth in Articles L. 341-1 and seq. of the French Code monétaire et financier.
3