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 April 2021


Commission File Number: 001-35135


Sequans Communications S.A.
(Translation of Registrant’s name into English)

15-55 boulevard Charles de Gaulle
92700 Colombes, France
Telephone : +33 1 70 72 16 00
(Address of Principal Executive Office)



Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F R Form 40-F £
 
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Yes £ NoR
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.
 
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Yes £ NoR
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.  

The information in this report, furnished on Form 6-K, shall be incorporated by reference into each of the following Registration Statements under the Securities Act of 1933, as amended, of the registrant: Form S-8 (File Nos. 333-177919, 333-180487, 333-187611, 333-194903, 333-203539, 333-211011, 333-214444, 333-215911, 333-219430, 333-226458, 333-233473 and 333-239968) and Form F-3 (File No. 333-250122).










Issuance of Equity and Convertible Debt in a Private Placement

On April 6, 2021, Sequans Communications S.A. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Lynrock Lake Master Fund LP, as Purchaser, providing for the issuance to the Purchaser of an unsecured convertible note (the “Note”) in an aggregate principal amount of $40 million and 7,272,724 ordinary shares in the form of 1,818,181 American Depositary Shares (“ADSs”) for $10 million. The transaction closed on April 9, 2021.

The Note shall accrue interest at 6.0% per annum if paid in kind and at 5.0625% per annum if paid in cash. The Note is due April 9, 2024 and is convertible at the option of the Purchaser at any time at a conversion price of $7.66 per ADS. After April 9, 2022, in the event that the market price of Company’s ADS exceeds 130% of the Note conversion price for 20 out of any 30 consecutive days, the Company has the right to redeem the Note at an amount equal to the accreted principal amount plus accrued but unpaid interest, plus a cash amount equal to the interest that would otherwise be payable to October 9, 2023, or the Purchaser may elect to convert and receive the ADSs plus a cash amount equal to the interest that would otherwise be payable to October 9, 2023. The Purchaser also has the right to require the Company to redeem the Note in the event of a change of control at an amount equal to the accreted principal amount plus accrued but unpaid interest, plus a cash amount equal to the interest that would otherwise be payable to April 9, 2024. If the Purchaser elects to convert the Note in connection with a change of control, the Purchaser will also receive a cash amount equal to the interest that would otherwise be payable to April 9, 2024. The Purchaser’s right to convert is limited such that Purchaser does not own directly more than 9.99% of the outstanding shares of the Company.

The Company also entered into a registration rights agreement (the “Registration Rights Agreement”) with the Purchaser pursuant to which the Company shall file a registration statement to register the resale of the 1,818,181 ADSs and the ADSs issuable upon the conversion of the Note.

The above description is qualified in its entirety by the terms of the Purchase Agreement, the Note and the Registration Rights Agreement, which are filed as Exhibits 4.1, 4.2 and 4.3 to this Form 6-K, which is incorporated herein by reference.



















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: April 12, 2021 By:    /s/ Deborah Choate  
    Deborah Choate   
    Chief Financial Officer  
 







EXHIBIT INDEX


The following exhibits are filed as part of this Form 6-K:

Exhibit        Description
    
4.1    Securities Purchase Agreement, dated April 6, 2021, between Sequans Communications S.A. and Lynrock Lake Master Fund LP

4.2    Convertible Promissory Note, dated April 9, 2021, between Sequans Communications S.A. and Lynrock Lake Master Fund LP

4.3    Registration Rights Agreement, dated April 9, 2021, between Sequans Communications S.A. and Lynrock Lake Master Fund LP



Exhibit 4.1
SEQUANS COMMUNICATIONS S.A.

SECURITIES PURCHASE AGREEMENT


This Securities Purchase Agreement (this “Agreement”) is made as of April 6, 2021, by and between Sequans Communications S.A., a société anonyme incorporated in the French Republic (the “Company”), and the purchaser listed on Exhibit A attached to this Agreement (the “Purchaser”). The Company and Purchaser are referred to hereinafter each as a “Party” and collectively as the “Parties”.

RECITALS

WHEREAS, Purchaser desires to subscribe from the Company and the Company desires to issue and sell (1) a convertible promissory note in substantially the form attached to this Agreement as Exhibit B, in the original principal amount set forth on Exhibit A hereto (the “Note”), which shall be convertible on the terms stated therein into the Company’s ADSs, indirectly through the conversion into Ordinary Shares (as defined below) (the ADSs issued or issuable upon conversion of all or any portion of the Note into the Underlying Shares and delivery of those Underlying Shares to the Depositary are referred to herein as the “Conversion Shares”), and (2) 7,272,724 Ordinary Shares represented by 1,818,181 ADSs (the “Shares”). The Shares, the Conversion Shares and the Note are referred to herein as the “Securities”. As used herein, “Ordinary Shares” means the ordinary shares, nominal value €0.02 per share, of the Company, “ADS” means an American Depositary Share each representing the number specified pursuant to the Deposit Agreement (as defined below), “ADR” means an American Depositary Receipt evidencing the ADSs and “Underlying Shares” means the Ordinary Shares underlying the ADSs;

WHEREAS, in connection with, and concurrently with the execution of, this Agreement, the Company and Purchaser have entered into a registration rights agreement, in the form attached as Exhibit C hereto (the “Registration Rights Agreement”), which provides certain registration rights to Purchaser relating to the Shares and the Conversion Shares upon conversion of all or any portion of the Note;

NOW THEREFORE, on and subject to the terms hereof, the parties hereto agree as follows:

ARTICLE I

DEFINED TERMS

The terms defined in this Article I (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the


respective meanings specified in this Article I. The terms defined in this Article I include the plural as well as the singular.

“Accreted Principal Amount” shall have the meaning specified in Section 2.1(c). For the avoidance of doubt, “Accreted Principal Amount” shall include all PIK Amounts added thereto through the time of any determination of such “Accreted Principal Amount.”

“ADR” shall have the meaning specified in the recitals.
“ADS” shall have the meaning specified in the recitals.
“Affiliates” shall have the meaning specified in Section 3.4.
“Agreement” shall have the meaning specified in the preamble.
“Authorized Category” shall have the meaning specified in Section 2.1(b).
“Beneficial Ownership Limitation” shall have the meaning specified in Section 5.2(a).
“Business Day” shall mean any day other than a Saturday, a Sunday, or any other day on which banks in New York City or Paris are authorized or required by law or other governmental action to be closed.
“Cash Amount” shall have the meaning specified in Section 2.1(c).
“Closing” shall have the meaning specified in Section 2.3.
“Closing Date” shall have the meaning specified in Section 2.3.
“Company” shall have the meaning specified in the preamble.
“Company Reports” shall have the meaning specified in Section 4.1.
“Concert Parties” shall have the meaning specified in Section 5.2(a).
“Confidential Information” shall have the meaning specified in Section 8.3.
“Conversion Shares” shall have the meaning specified in the recitals.
“Deposit Agreement” shall have the meaning specified in Section 5.1.
“Depositary” shall have the meaning specified in Section 5.1.
“EY” shall have the meaning specified in Section 4.9.
“Enforceability Exceptions” shall have the meaning specified in Section 3.2.
“Environmental Laws” shall have the meaning specified in Section 4.20.
“Evaluation Date” shall have the meaning specified in Section 4.24.
“Exchange Act” shall have the meaning specified in Section 3.4.
“HALDE” shall have the meaning specified in Section 4.18.
“IFRS” shall have the meaning specified in Section 4.10.
“Intellectual Property Rights” shall have the meaning specified in Section 4.21.
“Interest Payment Date” shall have the meaning specified in Section 2.1(c).
“Knowledge” shall have the meaning specified in Section 4.12.
“Lynrock” shall mean Lynrock Lake Master Fund LP.
“Material Adverse Effect” shall have the meaning specified in Section 4.2.
“Material Contract” shall have the meaning specified in Section 4.14.
“Material Permits” shall have the meaning specified in Section 4.13.
“Maturity Date” shall have the meaning specified in Section 2.1(c).
“Note” shall have the meaning specified in the recitals.
“Note Issue Price” shall have the meaning specified in Section 2.1(a).
“OFAC” shall have the meaning specified in Section 4.23.
“Ordinary Shares” shall have the meaning specified in the recitals.


“Party” or “Parties” shall have the meaning specified in the preamble.
“Person” shall have the meaning specified in Section 4.23.
“PIK Amount” shall have the meaning specified in Section 2.1(c).
“Purchase” shall have the meaning specified in Section 2.3.
“Purchaser” shall have the meaning specified in the preamble.
“Registration Rights Agreement” shall have the meaning specified in the recitals.
“Regulation D” shall have the meaning specified in Section 3.3.
“Shareholders Resolution” shall have the meaning specified in Section 2.1(b).
“Sanctions” shall have the meaning specified in Section 4.23.
“SEC” shall have the meaning specified in Section 3.8.
“Securities” shall have the meaning specified in the recitals.
“Securities Act” shall have the meaning specified in Section 3.3.
“Shares” shall have the meaning specified in the recitals.
“Share Issue Price” shall have the meaning specified in Section 2.2(a).
“Short Sales” shall have the meaning specified in Section 3.7.
“Subsidiary” shall have the meaning specified in Section 4.2.
“Trading Day” shall mean any day on which trading in the ADSs generally occurs on the principal U.S. national securities exchange on which the ADSs are then listed or, if the ADSs are not then listed on U.S. national securities exchange, on the principal other market on which the ADSs are then traded; provided that “Trading Day” shall not include any day on which the ADSs are scheduled to trade on such exchange or market for less than 4.5 hours or any day that the ADSs are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).
“Transaction Documents” shall mean collectively, this Agreement, the Note, the Registration Rights Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.
“Underlying Shares” shall have the meaning specified in the recitals.

ARTICLE II

SUBSCRIPTION AND PURCHASE OF SECURITIES

Section 2.1    Issuance of Note.

(a)    Note Issue Price. Subject to the terms set forth in this Agreement, at the Closing (as defined herein), the Company agrees to issue a Note, and Purchaser agrees to subscribe for a Note with the principal amount set forth opposite its name on Exhibit A at the issue price of 100% of the principal amount of such Note (the “Note Issue Price”).

(b)    Under the terms of its fifteenth resolution, the general meeting of shareholders of the Company approved, on June 26, 2020 (the “Shareholders Resolution”), a delegation of authority to the board of directors of the Company in order to issue debt instruments granting access to the share capital up to a maximum nominal amount of €35,000,000, with the aggregate nominal amount of the underlying shares being limited to a maximum of €2,000,000 and with


subscriptions reserved to a specified class of investors including Qualified Institutional Buyers or Institutional Accredited Investors within the meaning of US securities laws (the “Authorized Category”).

(c)    Interest Applicable. Interest shall accrue on the Accreted Principal Amount (in each case computed on the basis of a 365/366-day year and the actual number of days elapsed in any year) from April 9, 2021 until the Accreted Principal Amount (and any accrued and unpaid interest) is paid in full in cash. Interest shall accrue (i) at an annual rate equal to 6.0% per annum, which shall be payable annually by adding such interest to the Accreted Principal Amount (the “PIK Amount”) on each Interest Payment Date (as defined below) or (ii) if the Company elects, upon written notice to the holder of the Note prior to an Interest Payment Date, to pay the accrued interest relating to that Interest Payment Date to the holder of the Note in cash, at an annual rate equal to 5.0625% per annum (the “Cash Amount”). At any time, the outstanding principal amount of the Note, including, as the case may be, all PIK Amounts added thereto through (and including) such time, is referred to in the Note as the “Accreted Principal Amount”.

“Interest Payment Date” means April 9 of each year starting April 9, 2022, or if any such day is not a Business Day, the next succeeding Business Day and the Maturity Date (as defined below). In the absence of an interest payment election made by the Company prior to any Interest Payment Date as set forth above, interest on the Note shall be payable on such Interest Payment Date by the automatic addition of the PIK Amount to the Accreted Principal Amount as of the open of business on such Interest Payment Date. If the Company makes an interest payment election prior to any Interest Payment Date as set forth above, interest on the Note shall be payable on such Interest Payment Date in cash. “Maturity Date” means the maturity date of the Note (whether the final maturity date thereof or such earlier date on which the Note may become or be declared due and payable pursuant to Section 4.2 of the Note).

In case of conversion or redemption of the Note on a date other than an Interest Payment Date, any accrued and unpaid interest on the Accreted Principal Amount thereof not previously paid in cash or added as PIK Amounts to the Accreted Principal Amount shall be deemed to have accrued at 6.0% per annum. Interest shall accrue at 8.0% per annum on any Accreted Principal Amount (including any accrued and unpaid interest) or any other amount due under the Note from and after the due date therefor until such time as payment in cash therefor is actually delivered to the holder.

(d)    Maturity, Payment and Conversion. The provisions pertaining to maturity, payment, conversion and acceleration of the Note are set forth in the form of Note attached hereto as Exhibit B.

(e)    Subordination. With the exception of secured indebtedness as listed on Part 1 of Exhibit D attached hereto owed (i) to Natixis and to the Fonds Commun de Titrisation Prederic Innovation 3 (represented by Acofi Gestion and Neftys Conseil) for the financing of the research tax credit receivable from the French government and (ii) to Harbert European Specialty Lending Company II S.A.R.L. under the bonds issue agreement dated as of October 26, 2018, the Note and the Accreted Principal Amount (including any accrued and unpaid interest) in respect thereof


and the interest accrued under the Note are the senior unsecured obligations of the Company and will rank pari passu in right of payment with all other senior unsecured and unsubordinated obligations of the Company.

(f)    No Preferential Right to Subscription. Pursuant to article L. 225-132 of the French commercial code, the decision to issue the Note automatically waives the right for any existing shareholder of the Company to a preferential right (droit préférentiel de souscription) for the subscription of the Underlying Shares to be issued by the Company upon conversion of all or any portion of the Note.

Section 2.2    Issuance and Purchase of ADSs.

(a)    Subject to the terms set forth in this Agreement, at the Closing (as defined herein), the Company agrees to issue 1,818,181 ADSs at the issue price of $5.50 per ADS, and Purchaser agrees to subscribe for and purchase the number of Shares at the aggregate issue price (the “Share Issue Price”) set forth opposite its name on Exhibit A.

(b)    Under the terms of the Shareholders Resolution, the general meeting of shareholders of the Company approved a delegation of authority to the board of directors of the Company in order to effect one (or several) share capital increase(s) up to a maximum nominal amount of €2,000,000 through the issuance, inter alia, of shares and/or securities giving access to the share capital with subscriptions reserved to the Authorized Category.

Section 2.3    Closing; Delivery of Shares.

(a)    Subject to Section 6.1 and Section 6.2, the closing (the “Closing”) of the issuance and subscription of the Securities (the “Purchase”) shall occur on a date (the “Closing Date”) no later than three (3) Business Days after the date of this Agreement.
(b)    At the Closing, Purchaser shall deliver or cause to be delivered to the Company:

(1)    a duly completed and signed subscription form for the Note in the form attached as Exhibit E hereto;
(2)    a duly completed and signed subscription form for the Shares in the form attached as Exhibit F hereto;
(3)    the Note Issue Price and the Share Issue Price;

(c)    At the Closing, the Company shall do the following:
(1)    issue 7,272,724 Underlying Shares and deposit such Underlying Shares with the Depositary, in the name and on behalf of Purchaser; and
(2)    cause the Depositary to issue and deliver to Purchaser a book-entry transfer for the Shares to which Purchaser shall be entitled against deposit of the Underlying Shares, pursuant to the Deposit Agreement.




ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser hereby makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to the Company, and all such representations and warranties shall survive the Closing:

Section 3.1    Power and Authorization. Purchaser is duly organized, validly existing and in good standing, and has the power, authority and capacity to execute this Agreement, to perform its obligations hereunder, and to consummate the Purchase.

Section 3.2    Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by Purchaser and constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (such qualifications in clauses (a) and (b) being the “Enforceability Exceptions”). This Agreement and consummation of the Purchase will not violate, conflict with or result in a breach of or default under (i) Purchaser’s organizational documents, (ii) any agreement or instrument to which Purchaser is a party or by which Purchaser or any of its assets are bound or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to Purchaser.

Section 3.3    Accredited Investor/Qualified Institutional Buyer. Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The information Purchaser has provided in writing to the Company as set forth on Purchaser’s signature page hereto is true, correct and complete, as of the date hereof and as of the Closing Date, in all material respects.

Section 3.4    5% Stockholder Status. If Purchaser and its affiliates (as that term is defined in Rule 501(b) of Regulation D under the Securities Act, “Affiliates”) will beneficially own after the Closing Date 5% or more of the Company’s outstanding Ordinary Shares represented by ADSs, Purchaser acknowledges and agrees that it will comply in all material respects with all applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as a result of such holdings. Purchaser is not a subsidiary, affiliate or, to its knowledge, otherwise closely-related to any officer of the Company or any other beneficial owner of 5% or more of the outstanding Ordinary Shares (including Ordinary Shares represented by ADSs) or the voting power to elect members of the Company’s board of directors.

Section 3.5    Restricted Note and Stock. Purchaser (a) acknowledges (i) that the issuance of the Note pursuant to this Agreement has not been registered, nor does the Company have a plan or intent to register such issuance of the Note, under the Securities Act or any state


securities laws, (ii) the Securities are being offered and sold in reliance upon exemptions provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless they are subsequently registered and qualified under the Securities Act and applicable state securities laws or unless an exemption from such registration and qualification is available and (iii) the Securities are “restricted securities” as that term is defined in Rule 144 promulgated under the Securities Act and (b) is purchasing the Securities for investment purposes only for the account of Purchaser and not with any view toward a distribution thereof or with any intention of selling, distributing or otherwise disposing of the Securities in a manner that would violate the registration requirements of the Securities Act. Purchaser is able to bear the economic risk of holding the Securities for an indefinite period and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Securities.

Section 3.6    Legends. Purchaser understands and agrees that any certificates, book-entry, the Securities or any securities issued in respect thereof shall bear the restrictive legend set forth in the form of Note attached hereto as Exhibit B or in Section 7.3 below, respectively.

Section 3.7    No Illegal Transactions. Purchaser has not, directly or indirectly, and no person acting on behalf of or pursuant to any understanding with it has, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving any of the Company’s securities) since the time the Company began negotiating the transactions contemplated by this Agreement with Purchaser. Purchaser covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it will engage, directly or indirectly, in any transactions in the securities of the Company (including Short Sales) prior to the time the transactions contemplated by this Agreement are publicly disclosed. “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Exchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated brokers.

Section 3.8    Adequate Information; No Reliance. Purchaser acknowledges and agrees that (a) Purchaser has been furnished with all materials it considers relevant to making an investment decision to enter into the Purchase and has had the opportunity to review the Company’s filings and submissions with the Securities and Exchange Commission (the “SEC”), including, without limitation, all information filed or furnished pursuant to the Exchange Act and all information incorporated into such filings and submissions, (b) Purchaser has sufficient knowledge and expertise to make an investment decision with respect to the transactions contemplated hereby, (c) Purchaser has had a full opportunity to speak directly with directors, officers and Affiliates of the Company and to ask questions of the Company and such directors, officers and Affiliates of the Company concerning the Company, its business, operations, financial performance, financial condition and prospects, and the terms and conditions of the Purchase, and to obtain such additional information as it deems necessary to verify the accuracy of the information furnished to it and has asked such questions, received such answers and


obtained such information as it deems necessary, (d) Purchaser has had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the risks involved in the Purchase and to make an informed investment decision with respect to the Purchase and (e) Purchaser is not relying, and has not relied, upon any statement, advice (whether accounting, tax, financial, legal or other), representation or warranty made by the Company or any of its Affiliates or representatives, except for (i) the publicly available filings and submissions made by the Company with the SEC under the Exchange Act and (ii) the representations and warranties made by the Company in this Agreement.

Section 3.9    Purchaser’s Reporting Requirement. The Company has made no representations to Purchaser regarding Purchaser’s reporting requirements with the SEC related to Purchaser’s present or future ownership in the Company, and Purchaser acknowledges and agrees that it is the responsibility of Purchaser to ensure that Purchaser complies with any disclosure and reporting requirements of the SEC applicable to Purchaser as a result of the Purchase and any subsequent conversion thereof.

Section 3.10    No Public Market. Purchaser understands that no public market exists for the Note, and that there is no assurance that a public market will ever develop for the Note.

Section 3.11    No General Solicitation or Advertising. The offer to enter into the Purchase was directly communicated to Purchaser, and Purchaser was able to ask questions and receive answers concerning the terms of this transaction. At no time was Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.

Section 3.12    Legal Opinions. Purchaser acknowledges and understands that a legal opinion is being delivered by counsel to the Company in reliance on, and assuming the accuracy of, the foregoing representations and warranties of Purchaser.


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to Purchaser, and all such representations and warranties shall survive the Closing.

Section 4.1    Exchange Act Filings. The Company has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since December 31, 2018 (the “Company Reports”). The Company Reports, when they became effective or were filed with or furnished to the SEC, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable,


and the rules and regulations thereunder and none of such documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed or furnished after the date hereof and on or prior to the Closing, when such documents become effective or are filed with the SEC, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the SEC thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

Section 4.2    Due Incorporation. Each of the Company and each of its Subsidiaries has been duly organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing (or the foreign equivalent thereof) as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged, except where the failure to so qualify or have such power or authority (i) would not have and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under the Transaction Documents or to consummate any transactions contemplated hereby or thereby (any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). As used in this Agreement, “Subsidiary” shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC.

Section 4.3    Subsidiaries. The membership interests or capital stock (or the foreign equivalent thereof) , as applicable, of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Company Reports, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.

Section 4.4    Due Authorization. The Company has the full right, power and authority to enter into this Agreement and to perform and discharge its obligations hereunder; and this Agreement and the performance by the Company of its obligations hereunder have been duly authorized, and this Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

Section 4.5    The Note, Conversion Shares and Shares. The Note has been duly authorized and, when issued and delivered upon sale, will have been duly executed, authenticated, issued and delivered and will constitute a valid and legally binding obligation of


the Company. The Ordinary Shares to be issued by the Company upon conversion in whole or in part of the Note as well as the Ordinary Shares to be issued by the Company upon subscription to the Shares pursuant to Section 2.2(a) have been duly authorized for issuance. Upon subscription by the Purchaser for the number of Ordinary Shares issuable in connection with the conversion in whole or in part of the Note, as well as upon subscription for the Ordinary Shares issuable in connection with the issuance of the Shares pursuant to Section 2.2(a), such Ordinary Shares shall be deposited with the Depositary for the issuance of ADSs in the form of ADRs. When issued in accordance with the terms of this Agreement, such Conversion Shares evidenced by such ADRs, the Underlying Shares and the Ordinary Shares issued in connection with the issuance of the Shares pursuant to Section 2.2(a), will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights, and Purchaser will be entitled to the rights specified respectively 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 Conversion Shares or any of the Ordinary Shares issued in connection with the issuance of the Shares pursuant to Section 2.2(a) and the issuance thereof will be free of any restriction upon the voting or transfer thereof pursuant to the laws of the French Republic or the Company’s statuts or any agreement or other instrument to which the Company is a party. Each Security will be issued in compliance with all U.S. federal and state securities laws and the securities laws of any other applicable jurisdiction.

Section 4.6    Capitalization; Indebtedness.
(a) As of the date hereof, the share capital of the Company consists of 141,161,398 issued Ordinary Shares, fully paid, and with a par value of €0.02 each, and total authorized capital of 279,605,651 Ordinary Shares. 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. Other than 204,064 Ordinary Shares reserved for future issuance under the Company’s equity plans, 14,161,790 Ordinary Shares issuable upon the exercise of outstanding stock options, founders warrants and warrants and upon vesting of restricted free shares granted pursuant to the Company’s equity plans, and a maximum of 25,596,375 shares reserved for issuance under outstanding convertible notes and warrants, the Company has no shares of capital stock reserved for issuance, with the exception of the 24,877,618 shares authorized for issuance in connection with the Note to be issued pursuant hereto. Except as set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations.
(b) Except as set forth on Exhibit D, the Company has no indebtedness as of the date of this Agreement.

Section 4.7    No Default, Termination or Lien. The execution, delivery and performance of this Agreement by the Company, the issuance and delivery of the Note and the Shares by the Company, the issuance and delivery of all Conversion Shares in accordance with the terms of the Note, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the terms of this Agreement will not (with or without


notice or lapse of time or both) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under, give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any Subsidiary pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, nor will such actions result in any violation of the provisions of the organizational documents of the Company or any of its Subsidiaries or any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets; provided that an investor in the Company has the right to purchase a warrant providing for the right to acquire ADSs to maintain its proportionate interest in the Company.

Section 4.8    No Consents. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or blue sky laws of the various states and the New York Stock Exchange in connection with the offer and issuance of the Note.

Section 4.9    Independent Accountants. Ernst & Young Audit (“EY”), who has certified certain financial statements and related schedules included or incorporated by reference in the Company Reports, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations thereunder and the Public Company Accounting Oversight Board (United States). Except as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act, EY has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).

Section 4.10    Financial Statements. The financial statements, together with the related notes and schedules, included in the Company Reports present fairly in all material respects the financial condition of the Company and its consolidated Subsidiaries as of the respective dates thereof and the results of operations and cash flows of the Company and its consolidated Subsidiaries for the respective periods covered thereby, all in conformity with International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the entire period involved, except as otherwise disclosed in the Company Reports. Such financial statements, together with the related notes and schedules, comply in all material respects with the Securities Act, the Exchange Act and the rules and regulations thereunder. No other financial statements or supporting schedules or exhibits are required by the Exchange Act or the rules and regulations thereunder to be filed with the SEC.

Section 4.11    No Material Adverse Change. There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, assets, business or operations of the


Company and its Subsidiaries, taken as a whole, from that set forth or contemplated in the Company Reports filed prior to the date hereof.

Section 4.12    Legal Proceedings. There are no legal or governmental proceedings, actions, suits or claims pending or, to the Company’s Knowledge, threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties or assets of the Company or any of its Subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Company Reports and proceedings that would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that are required to be described in the Company Reports and are not so described; and there are no statutes, regulations, contracts or other documents to which the Company or any of its Subsidiaries is subject or by which the Company or any of its Subsidiaries is bound that are required to be described in the Company Reports or to be filed as exhibits to the Company Reports that are not described therein or filed as required. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any legal or governmental proceedings, actions, suits or claims of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. For purposes of this Agreement, “Knowledge” means the actual knowledge (after due inquiry) of the executive officers (as defined in Exchange Act Rule 3b-7) of the Company or its Subsidiaries, as applicable.

Section 4.13    Regulatory Permits. Each of the Company and its Subsidiaries possesses or has applied for all certificates, authorizations, licenses, franchises, permits, orders and approvals issued or granted by the appropriate governmental or regulatory authorities, agencies, courts, commissions or other entities, whether federal, state, local or foreign, or applicable self-regulatory organizations necessary to conduct its business as currently conducted, except (i) where the failure to possess such certificates, authorizations, licenses, franchises, permits, orders and approval, individually or in the aggregate, has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (“Material Permits”) and (ii) as accurately described in all material respects in the Company Reports, and neither the Company nor any of its Subsidiaries has received any written notice of proceedings relating to the revocation or material adverse modification of any such Material Permits (except as accurately described in all material respects in the Company Reports), and to the Company’s Knowledge, there are no facts or circumstances that would give rise to the revocation, termination or material adverse modifications of any Material Permits.

Section 4.14    Material Contracts. Except for the Material Contracts, the Company and its Subsidiaries are not party to any agreements, contracts or commitments that are material to the business, financial condition, assets or operations of the Company and its Subsidiaries or that would be required to be filed pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F. Neither the Company nor any of its Subsidiaries is in material default under, or in material violation of, nor has received written notice of termination or default under any Material Contract. For purposes of this Agreement, “Material Contract” means any contract of the Company that was filed as an exhibit to the Company Reports pursuant to Item 19 and the Instructions as to Exhibits of Form 20-F.



Section 4.15    Investment Company Act. Neither the Company nor any of its Subsidiaries is or, after giving effect to the Purchase and the application of the proceeds thereof, will become an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.

Section 4.16    No Price Stabilization. Neither the Company, its Subsidiaries nor any of the Company’s or its Subsidiaries’ officers, directors or Affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.

Section 4.17    Title to Property. The Company and its Subsidiaries have good and marketable title to all real and personal property owned by them which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except such as are described in the Company Reports or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described in the Company Reports.

Section 4.18    No Labor Disputes. Neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice; except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is (A) no discrimination complaint or unfair labor practice complaint pending or, to the Knowledge of the Company or the Subsidiaries, threatened against the Company or any of the Subsidiaries before the Haute Autorité de Lutte contre les Discriminations et pour l’Égalité (“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.

Section 4.19    Taxes. The Company (i) has timely filed all necessary federal, state, local and foreign income and franchise tax returns (or timely filed applicable extensions therefore) that have been required to be filed and (ii) is not in default in the payment of any taxes which were


payable pursuant to said returns or any assessments with respect thereto, other than any which the Company is contesting in good faith and for which adequate reserves have been provided and reflected in the financial statements included in the Company Reports. The Company does not have any tax deficiency that has been or, to the Company’s Knowledge, is reasonably likely to be asserted or threatened against it.

Section 4.20    Compliance with Environmental Laws. Except as disclosed in the Company Reports, neither the Company nor any of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), or, to the Company’s Knowledge, operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would or would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.

Section 4.21    Intellectual Property Rights. The Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights, except such as would not and would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

Section 4.22    Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, has (i) used any Company funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from Company funds, (iii) caused the Company or any of its Subsidiaries to be in violation of any provision of the United States Foreign Corrupt Practices Act of 1977, as amended, or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment from Company funds.

Section 4.23    OFAC and Similar Laws. None of the Company, any of its Subsidiaries or, to the Company’s Knowledge, any director, officer, agent, employee, affiliate or representative of the Company or any of its Subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor is


the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the issuance of any Note, or lend, contribute or otherwise make available such proceeds to any Subsidiaries, joint venture partners or other Person, to knowingly fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.

Section 4.24    Disclosure Controls and Procedures. Except as disclosed in the Company Reports, the Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to the Company, including any consolidated Subsidiaries, is made known to its chief executive officer and chief financial officer by others within those entities. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of the end of the period covered by the most recently filed annual report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed annual report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date and except as disclosed in the Company Reports, there have been no material changes in the Company’s internal controls (as such term is defined in the rules of the SEC under the Exchange Act) or, to the Company’s Knowledge, in other factors that could affect the Company’s internal controls.

Section 4.25    Accounting Controls. The Company and its Subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Company Reports, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Section 4.26    Absence of Material Changes. Subsequent to the respective dates as of which information is given in the Company Reports, and except as may be otherwise disclosed in such Company Reports, there has not been (i) any Material Adverse Effect, (ii) any transaction which is material to the Company, (iii) any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company, which is material to the Company, (iv) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, (v) any change in the capital stock (other than a change in the number of outstanding Ordinary


Shares or ADSs due to grants of stock under the Company’s stock incentive plans existing on the date hereof or the issuance of shares upon the exercise of outstanding options or warrants) or (vi) any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than grants of stock options under the Company’s stock option plans existing on the date hereof) of the Company.

Section 4.27    Brokers Fees. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Company for a brokerage commission, finder’s fee or like payment in connection with the offering and issuance of any Note or any transaction contemplated by this Agreement.

Section 4.28    Listing and Maintenance Requirements. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, as applicable. The ADSs are registered pursuant to Section 12(b) of the Exchange Act and are listed on the New York Stock Exchange, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the ADSs under the Exchange Act or delisting the ADSs from the New York Stock Exchange, nor has the Company received any notification that either the SEC or the New York Stock Exchange is contemplating terminating such registration or listing. The Conversion Shares will be duly authorized for listing on the New York Stock Exchange immediately upon conversion of all or a portion of the Note in accordance with the terms of the Note and the issuance of the ADSs by the Depositary following the deposit of the Underlying Shares.

Section 4.29    Sarbanes-Oxley Act. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules and regulations promulgated thereunder or implementing provisions thereof that are then in effect.

Section 4.30    New York Stock Exchange Approval Rules. No further approval of the stockholders of the Company under the rules and regulations of the New York Stock Exchange is required for the Company to issue and deliver the Note or Shares to Purchaser or the Conversion Shares upon conversion of all or any portion of the Note.

Section 4.31    No General Solicitation. Neither the Company nor any person acting on its or their behalf has engaged in any general solicitation or general advertising in connection with the offering or issuance of any Note, including but not limited to the methods described in Rule 502(c) under the Securities Act.

Section 4.32    Integration. No offers and sales of securities of the same or similar class as the Note have been made by the Company or on its behalf during the six-month period ending with the date of this Agreement and no such offers or sales are currently being made or contemplated (in each case, whether pursuant to outstanding warrants, options, convertible or exchangeable securities, acquisition agreements or otherwise). Neither the Company nor any other person acting on its behalf will, directly or indirectly, offer or sell any securities of the same or similar class as the Note, or take any other action, so as to cause the offer and issuance


of the Note to fail to be entitled to the exemption afforded by Regulation D under the Securities Act.

ARTICLE V

OTHER AGREEMENTS

Section 5.1    Depositary. As more fully described in the Note, upon conversion of all or any portion of the Note held by Purchaser in accordance with the terms thereof, the Company will cause the Depositary to deliver the relevant number of Conversion Shares to Purchaser against deposit of the Underlying Shares, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 (the “Deposit Agreement”) among the Company, The Bank of New York Mellon, as depositary (the “Depositary”), and the owners and holders from time to time of the ADSs issued thereunder, and Purchaser shall cooperate with the Company and the Depositary in connection therewith.

Section 5.2    Beneficial Ownership Limitation.

(a)    Purchaser shall not request that all or a portion of the Note held by it be converted, and the Company shall not effect the conversion of all or a portion of the Note to the extent that, after giving effect to such issuance after conversion, Purchaser (together with its Affiliates and any other person or entity acting as a group together with Purchaser or any of its Affiliates (collectively, the “Concert Parties”)), would beneficially own ADSs or Ordinary Shares in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of ADSs or Ordinary Shares beneficially owned by Purchaser and its Concert Parties shall include the number of Ordinary Shares issuable upon conversion of the portion of the Note with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which would be issuable upon (i) conversion of the remaining portion of the Note beneficially owned by Purchaser and (ii) conversion or exercise of the unexercised or unconverted portion of any loan to or securities of the Company (or any successor thereto) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by Purchaser or any of its Concert Parties. Except as set forth in the preceding sentence, for purposes of this Section 5.2, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by Purchaser that the Company is not representing to Purchaser that such calculation is in compliance with Section 13(d) of the Exchange Act and Purchaser is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 5.2 applies, the determination of whether and the extent to which a Note may be converted (in relation to other loans or securities owned by Purchaser together with any Affiliates) shall be made in good faith by Purchaser holding such Note in consultation with its own counsel. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes


of this Section 5.2, in determining the number of outstanding Ordinary Shares (including Ordinary Shares represented by ADSs), Purchaser may rely on the number of outstanding Ordinary Shares (including Ordinary Shares represented by ADSs) as reflected in (x) the Company’s (or its successor’s) most recent periodic or annual report, as the case may be, filed with the SEC, (y) a more recent public announcement by the Company (or its successor) or (z) any other notice by the Company or the Depositary (or its successor or successor’s depositary) setting forth the number of Ordinary Shares (including Ordinary Shares represented by ADSs) outstanding. Upon the written or oral request of Purchaser, the Company shall within two (2) Business Days confirm orally and in writing to Purchaser the number of Ordinary Shares (including Ordinary Shares represented by ADSs) then outstanding. In any case, the number of Ordinary Shares (including Ordinary Shares represented by ADSs) outstanding shall be determined after giving effect to the conversion or exercise of loans or securities of the Company, including the Note, by Purchaser or its Concert Parties since the date as of which such number of outstanding Ordinary Shares (including Ordinary Shares represented by ADSs) was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of Ordinary Shares (including Ordinary Shares represented by ADSs) outstanding immediately after giving effect to the issuance of the Conversion Shares issuable upon conversion of the applicable portion of the Note. The provisions of this Section 5.2 shall be construed and implemented in a manner otherwise than in strict conformity with the terms hereof in order to correct such terms (or any portion thereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 5.2 shall apply to any successor to Purchaser.

(b)    Notwithstanding the foregoing, the limitations contained in this Section 5.2 shall not restrict or limit (i) any conversion or prepayment of the Note in connection with a “Change of Control” as contemplated by and defined in the Note (ii) any conversion during the five (5) Trading Day period ending on, and including, April 9, 2024.

Section 5.3    Supplemental Listing Application. Within two (2) Business Days following the Closing Date, the Company shall file with the New York Stock Exchange a supplemental listing application reflecting the transactions contemplated hereby.

Section 5.4    Listing of Shares; Certificates. The Company covenants that (i) all Shares issued pursuant to Section 2.2(a) and (ii) all Conversion Shares at all times that the Note is convertible, will be duly approved for listing subject to official notice of issuance on the New York Stock Exchange. The Company covenants that the certificates, if any, representing the ADRs to be issued to evidence any ADSs issued pursuant to Section 2.2(a) and any Conversion Shares issued upon conversion of all or a portion of the Note, will comply with applicable law.

Section 5.5    Use of Proceeds. The proceeds of the Purchase shall be used by the Company (i) to repay all outstanding convertible notes due April 14, 2021 held by Nokomis


Capital Master Fund, LP, (ii) to redeem the outstanding bonds held by Harbert European Specialty Lending Company, and (iii) in the event that there is any surplus after the uses referred to in (i) and (ii) of this Section 5.5, for general corporate purposes.


ARTICLE VI

CONDITIONS TO CLOSING

Section 6.1    Purchaser’s Conditions Precedent. The obligation of Purchaser to complete the Purchase is subject to the satisfaction of each of the following conditions precedent:

(a)    each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;

(b)    the Company shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;

(c)    no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof;

(d)    Orrick, Herrington & Sutcliffe LLP, U.S. counsel to the Company and Orrick, Herrington & Sutcliffe (Europe) LLP, French counsel to the Company, shall have furnished to Purchaser opinions in the form attached as Exhibits G-1 and G-2 to the Purchaser and addressed to the Purchaser;

(e)    the Chief Executive Officer and Chief Financial Officer of the Company shall have delivered to Purchaser a certificate, dated as of the Closing Date, certifying to their knowledge, after reasonable inquiry, as to the matters set forth in paragraphs (a) and (b) of this Section 6.1; and

(f)    the Company shall have executed and delivered to Purchaser each of the other Transaction Documents.



Section 6.2    Company Conditions Precedent. The obligation of the Company to complete the issuance of the Securities to Purchaser contemplated by this Agreement is subject to the satisfaction of each of the following conditions precedent:

(a)    each of the representations and warranties of Purchaser contained in this Agreement shall be true and correct as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty need only be true and correct as of such date;

(b)    Purchaser shall have duly performed and complied in all material respects with all covenants and agreements contained in this Agreement that are required to be performed or complied with by it at or before the Closing;

(c)    no court or other governmental or regulatory authorities, agencies, commissions or other entities, whether federal, state, local or foreign, shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement, and there shall not be pending by or before any such entity any suit, action or proceeding in respect thereof;

(d)    Purchaser shall have delivered to the Company a certificate, dated as of the Closing Date, certifying to his or her knowledge, after reasonable inquiry, as to the matters set forth in paragraphs (a) and (b) of this Section 6.2; and

(e)    Purchaser shall have executed and delivered to the Company each of the other Transaction Documents (other than the Note).


ARTICLE VII

CERTAIN COVENANTS

Section 7.1    Rights of the Holder of the Note. Pursuant to the provisions of article L. 228-98 al. 1 of the French commercial code, the Company is expressly authorized to modify its corporate form or corporate purpose after the execution of this Agreement.

Pursuant to article L. 228-99 of the French commercial code, if after the issuance of the Note, (i) the rules pertaining to distribution or to the share capital amortization are modified, (ii) if securities granting a subscription right to specific investors are issued, (iii) in the event of any distribution of available reserves or of share premium or (iv) in the event of the issuance of preferred shares modifying the apportionment of distribution between shareholders, then the Company shall immediately amend the terms and conditions of the Note so as to maintain the right of its holder.



The provisions of this Section 7.1 are without prejudice to the application of the provisions pertaining to the adjustment of the Conversion Rate (as defined in the Note) as set forth in the form of Note attached as Exhibit B hereto.

Section 7.2    Certain Actions. The Company and Purchaser shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement, applicable law and stock exchange listing standards to consummate the transactions contemplated by this Agreement as soon as practicable.

Section 7.3    Legends. To the extent reasonably necessary under applicable law, any certificate, book-entry or ADR issued under this Agreement shall have endorsed, to the extent appropriate, upon its face the following words:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, ASSIGNED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAW, OR (II) ANY EXEMPTION FROM REGISTRATION UNDER SUCH ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.

Section 7.4    Legend Removal. Upon the request of Purchaser or any transferee or proposed transferee thereof, the Company shall instruct the Depositary to remove the legend contemplated by Section 7.3 (and shall revoke any related stop transfer or similar instructions to its registrar and transfer agent), if the Conversion Shares or Shares issued pursuant to Section 2.2(a) are covered by an effective registration statement under the Securities Act or if such person provides reasonable evidence and an opinion of counsel to the effect that a sale, transfer or assignment of such Conversion Shares or Shares may be made without registration under the Securities Act or that such Conversion Shares or Shares are eligible for resale pursuant to Rule 144 under the Securities Act.


ARTICLE VIII
MISCELLANEOUS

Section 8.1    Representation of the Holder of the Note. The holder of the Note will exercise all rights and obligations granted to the masse pursuant to the provisions of articles L.228-46 et seq. of the French commercial code.




Section 8.2    Fees and Expenses. All expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses; it being however agreed between the Parties that the Company will pay or cause to be paid the duly documented fees, disbursements and expenses of Lynrock’s legal counsel actually incurred in connection with the issue of the Securities up to a maximum amount of $150,000.

Section 8.3    Confidentiality; Public Announcements.

(a)    No later than April 7, 2021, at 9:00 a.m. (New York Time), to the extent not already publicly disclosed, the Company shall issue a publicly available press release or file with the SEC a Report on Form 6-K disclosing (i) the material terms of the transactions contemplated by the Transaction Documents and (ii) any other information (or an appropriate summary that, at a minimum, includes the material portions thereof), in each case that constitutes material non-public information under applicable United States federal and state securities laws that was provided by the Company or any of its representatives to Purchaser or its Affiliates.

(b)    The Company will consult with Purchaser before issuing any press release or making any public statement or filing with respect to the Transaction Documents and the transactions contemplated hereby and will provide Purchaser and its counsel with a draft of any press release or other public statement or filing at least one (1) day prior to such disclosure, except where advance notice is not permitted by applicable Law. The Company will in good faith consider comments to or other modifications of such disclosure. Notwithstanding anything herein to the contrary, the Company shall not use Purchaser’s name without Purchaser’s prior written approval, except as required by applicable law; provided, that if the Company has received the requisite approval for any disclosures as required hereunder, the Company or its Affiliates shall be entitled to make disclosures substantially similar (as to form and content) to those prior disclosures that have been so approved.

Section 8.4    Notices. All notices or other communications required or permitted hereunder shall be sent by electronic mail, addressed as follows:

If to the Company:

Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes
Republic of France
Email: cfo@sequans.com
Attention: Chief Financial Officer

With a copy (which shall not constitute notice) to:



Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Email: bcooper@orrick.com
Attention: Brett Cooper

If to Purchaser:

Lynrock Lake Master Fund LP
c/o Lynrock Lake LP
2 International Dr
Suite 130
Rye Brook, NY 10573
Email: cp@lynrocklake.com, mike@lynrocklake.com, ops@lynrocklake.com
Attention: Cynthia Paul, Michael Manley

With a copy (which shall not constitute notice) to:

Akin Gump Strauss Hauer & Feld LLP
2300 N. Field Street
Suite 1800
Dallas, TX 75201
Email: ahilkemann@akingump.com
Attention: Adam Hilkemann

Section 8.5    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement or any other Transaction Document are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties hereto as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.

Section 8.6    Entire Agreement. The Transaction Documents (including the schedules and exhibits hereto and thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties hereto.



Section 8.7    Assignment; No Third Party Beneficiaries. Except for the Underlying Shares, Conversion Shares and Shares, which (subject to applicable securities laws) shall at all times be freely transferable, except in connection with a transfer of the Note in full and except as otherwise expressly provided herein, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party hereto, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party hereto (such consent not to be unreasonably withheld, conditioned or delayed); provided that, notwithstanding anything to the contrary in the preceding language, Purchaser can assign, convey or transfer, in whole or in part, this Agreement to its limited partners, members, Affiliates and any investment fund that is controlled by or is under common control with Purchaser. Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 8.8    Construction. References in the singular shall include the plural, and vice versa, unless the context otherwise requires. References in the masculine shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meanings of the provisions hereof. Neither party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions of this Agreement, and all language in all parts of this Agreement shall be construed in accordance with its fair meaning, and not strictly for or against either party.

Section 8.9    Governing Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the French Republic, without reference to its choice of law rules.

Section 8.10    Electronic Signature. The Company and Purchaser have agreed to sign this Agreement by means of electronic signature within the meaning of the provisions of articles 1367 et seq. of the French civil code via the DocuSign service and consequently declare that the electronic version of this Agreement constitutes the original document and is perfectly valid between them.

The Company and Purchaser declare that this Agreement in its electronic form constitutes literal proof within the meaning of article 1367 of the French civil code and has the same probative value as a written document on paper in accordance with article 1366 of the French civil code and may be validly invoked against them.

Each Party acknowledges that the electronic signature solution offered by DocuSign offers a sufficient degree of reliability to identify signatories and to guarantee the link between each signature and this Agreement.



Consequently, the Company and Purchaser agree not to contest the admissibility, enforceability or probative value of this Agreement signed in electronic form.

Section 8.11    Certain Definitional Provisions. Unless the express context otherwise requires, the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; any references herein to a specific Section, Schedule or Annex shall refer, respectively, to Sections, Schedules or Annexes of this Agreement; wherever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; and references herein to any gender includes each other gender.

[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.

THE COMPANY
SEQUANS COMMUNICATIONS S.A.


By:                            
Name: Georges Karam
Title: Chief Executive Officer


PURCHASER
LYNROCK LAKE MASTER FUND LP
by: Lynrock Lake Partners LLC, its general partner

By:                            
Name: Cynthia Paul
Title:     Manager









EXHIBIT A

SCHEDULE OF PURCHASER



Name and Address Note Principal Amount Number of Shares Share Issue Price
Lynrock Lake Master Fund LP $ 40,000,000  7,272,724 Ordinary Shares represented by 1,818,181 ADSs $ 9,999,995.5 
Address:
c/o Lynrock Lake LP
2 International Dr
Suite 130
Rye Brook, NY 10573



            
EXHIBIT B
FORM OF CONVERTIBLE PROMISSORY NOTE



EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT




EXHIBIT D
PART 1 – EXISTING SECURED DEBT

Name and Address Principal due at March 31, 2021 Maximum amount due if repaid in full at March 31, 2021 Security
HARBERT EUROPEAN SPECIALTY LENDING COMPANY II S.à r.l.
Address:            
c/o Claret Capital Partners Ltd            
Attn: Jerome Fonteneau            
5th Floor, Warwick House, 25 Buckingham Palace Road
London, SW1W 0PP
€5,531,566.66     €6,112,078 Receivables other than customers covered by the factoring agreement; most bank accounts; and patents, trademarks and other IP rights
NATIXIS FACTOR
Address:            
10-12 Avenue Winston Churchill            
94676 Charenton Le Pont Cedex, France
$6,533,901.77 — Certain customer receivables
FONDS COMMUN DE TITRISATION PREDIREC INNOVATION 3
Address :
c/o ACOFI Gestion and Neftys Conseil
58 bis rue de La Boétie
75008 Paris, France

c/o Neftys Conseil
75 rue Lourmel
75015 Paris, France

€3,933,757.50 — French research tax credit receivable from the French government


        
            

            
            
            


            
            

 
PART 2 – EXISTING UNSECURED DEBT

Name Amount due at March 31, 2021
Principal Accrued interest
BPI – Research project financing FELIN €3,375,239 €233,800
BPI – Research project financing LTE4PMR – request for forgiveness in process €1,426,523 €49,656
BPI – Government loans €700,000 —
BPI - Government loan (French COVID-19 economic support plan) €5,000,000 €78,562
NOKOMIS Convertible debt April 2015 $4,250,000 $2,093,141
NOKOMIS Convertible debt September 2018 $4,500,000 $834,375
NOKOMIS Convertible debt August 2019 $5,000,000 $584,063







EXHIBIT E

FORM OF SUBSCRIPTION FORM FOR THE NOTE




EXHIBIT F

FORM OF SUBSCRIPTION FORM FOR THE SHARES




EXHIBIT G-1

FORM OF ORRICK US OPINION




EXHIBIT G-2

FORM OF ORRICK PARIS OPINION



Exhibit 4.2

THE SECURITY REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THE TRANSFER OF THIS SECURITY IS ALSO SUBJECT TO THE CONDITIONS SPECIFIED IN THE SECURITIES PURCHASE AGREEMENT, DATED AS OF APRIL 6, 2021, AS AMENDED AND MODIFIED FROM TIME TO TIME, BETWEEN SEQUANS COMMUNICATIONS S.A. (THE “COMPANY”) AND THE PURCHASER PARTY THERETO. THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITY UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.

SEQUANS COMMUNICATIONS S.A.

CONVERTIBLE PROMISSORY NOTE

April 9, 2021                                    $40,000,000.00

SEQUANS COMMUNICATIONS S.A., a société anonyme incorporated in the French Republic (the “Company”), hereby promises to pay to the order of Lynrock Lake Master Fund LP, a Cayman Islands Exempted Limited Partnership (the “Purchaser”), (i) the principal amount of Forty Million and 00/100 Dollars ($40,000,000.00) plus the portion of the Accreted Principal Amount (as defined below) in excess thereof and (ii) accrued interest on the Accreted Principal Amount in accordance with Article II hereof. This Note is being issued pursuant to a Securities Purchase Agreement, dated as of April 6, 2021 (the “Purchase Agreement”), between the Company and Purchaser. The Purchase Agreement contains terms governing the rights of the holder of this Note, and all provisions of the Purchase Agreement are hereby incorporated herein in full by reference. Unless otherwise indicated herein, capitalized terms used in this Note have the same meanings set forth in the Purchase Agreement.

ARTICLE I
DEFINED TERMS

The terms defined in this Article I (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Note shall have the respective meanings specified in this Article I. The words “herein,” “hereof,” “hereunder” and words of


similar import refer to this Note as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article I include the plural as well as the singular.

“Accreted Principal Amount” shall have the meaning specified in Article II. For the avoidance of doubt, “Accreted Principal Amount” shall include all PIK Amounts added thereto through (and including) the time of any determination of such “Accreted Principal Amount.”

“ADS Conversion Price” shall mean, as of any Conversion Date or other date of determination, $1.00 divided by the ADS Conversion Rate as of such date. The initial ADS Conversion Price is $7.66.

“ADS Conversion Rate” means at any time the quotient of (i) the Conversion Rate at such time divided by (ii) the number of Ordinary Shares then represented by each ADS at such time.

“ADS Delisting Event” means the ADSs cease to be listed or quoted on any of The New York Stock Exchange or The Nasdaq Stock Market (or any of their respective successors).

“Beneficial Ownership Limitation” shall have the meaning specified in section 5.2 of the Purchase Agreement.

“Board of Directors” shall have the meaning specified in Section 5.3(a).

“Business Day” shall mean any day other than a Saturday, a Sunday, or any other day on which banks in New York City or Paris are authorized or required by law or other governmental action to be closed.

“Call Option” shall have the meaning specified in Section 5.5(a).

“Cash Amount” shall have the meaning specified in Article II.

“Change of Control” shall mean the occurrence, directly or indirectly, of one or more of the following events (whether in one transaction or a series of related transactions):
(1)    any sale, exchange, assignment, conveyance, transfer or other disposition of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any person or group of related persons for purposes of Sections 13(d) and 14(d) of the Exchange Act (a “Group”); or
(2)    any consolidation, merger or combination involving the Company; or
(3)    the Company becomes aware that any person or Group is or becomes the beneficial owner, directly or indirectly, of Ordinary Shares (whether direct or in the form of ADSs) representing more than 50% of the total ordinary voting power represented by the issued and outstanding Ordinary Shares of the Company; or
(4)    an ADS Delisting Event; or
(5)    the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company.



“Change of Control Amount” means the amount in cash payable on an Optional Conversion/Redemption Date pursuant to Section 6.2(ii) or Section 6.3(ii).

“Change of Control Notice” shall have the meaning specified in Section 6.1(b).

“Closing Sale Price” shall have the meaning specified in Section 5.1(d).

“Company” shall have the meaning specified in the preamble.

“Company Call Option Notice” shall have the meaning specified in Section 5.5(b).

“Conversion Date” shall have the meaning specified in Section 5.1(b).

“Conversion Notice” shall have the meaning specified in Section 5.1(b).

“Conversion Rate” shall have the meaning specified in Section 5.2.

“Converted Amount” shall have the meaning specified in Section 5.5(d).

“Converted Amount Penalty” shall have the meaning specified in Section 5.5(d).

“Deposit Agreement” shall have the meaning specified in Section 5.1(c)(iii).

“Depositary” shall have the meaning specified in Section 5.1(c)(ii).

“Designated Amount” shall have the meaning specified in Section 5.5(a).

“Distributed Assets” shall have the meaning specified in Section 5.3(d).

“Event of Default” shall have the meaning specified in Section 4.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Expiration Date” shall have the meaning specified in Section 5.3(f).

“Expiration Time” shall have the meaning specified in Section 5.3(f).

“Holder Optional Conversion/Redemption Notice” shall have the meaning specified in Section 6.1(c).

“Holder Reduction Notice” shall have the meaning specified in Section 5.5(c).

“Independent Financial Advisor” shall mean an investment banking or accounting firm of international standing.



“Interest Payment Date” shall have the meaning specified in Article II.

“Mandatory Redemption Date” shall have the meaning specified in Section 5.5(b).

“Mandatory Redemption Penalty” shall have the meaning specified in Section 5.5(d).

“Mandatory Redemption” shall have the meaning specified in Section 5.5(a).

“Mandatory Redemption Price” shall have the meaning specified in Section 5.5(e).

“Ordinary Shares” shall have the meaning specified in Section 3.2.

“Optional Conversion” shall have the meaning specified in Section 6.1(c).

“Optional Conversion/Redemption Date” shall have the meaning specified in Section 6.1(a).

“Optional Redemption” shall have the meaning specified in Section 6.1(c).

“Organic Change” shall have the meaning specified in Section 5.3(l).

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“Permitted Amount” shall have the meaning specified in Section 5.5(c).

“PIK Amount” shall have the meaning specified in Article II.

“Purchase Agreement” shall have the meaning specified in the preamble.

“Purchaser” shall have the meaning specified in the preamble.

“Redemption Amount” shall have the meaning specified in Section 5.5(e).

“Redemption Amount Penalty” shall have the meaning specified in Section 5.5(e).

“Reference Property” shall have the meaning specified in Section 5.3(l).

“Securities Act” shall have the meaning specified in the legend above.

“Specified Converted Amount” shall have the meaning specified in Section 5.5(d).

“Spin-Off” shall have the meaning specified in Section 5.3(d).



“Spin-Off Valuation Period” shall have the meaning specified in Section 5.3(d).

“Successor Company” shall have the meaning specified in Section 8.1(a).

“Trading Day” shall mean any day on which trading in the ADSs generally occurs on the principal U.S. national securities exchange on which the ADSs are then listed or, if the ADSs are not then listed on U.S. national securities exchange, on the principal other market on which the ADSs are then traded; provided that “Trading Day” shall not include any day on which the ADSs are scheduled to trade on such exchange or market for less than 4.5 hours or any day that the ADSs are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).

“Transaction Documents” shall mean collectively, this Note, the Purchase Agreement, the Registration Rights Agreement and the other documents and agreements entered into in connection with the transactions contemplated hereby and thereby.

“Trigger Event” shall have the meaning specified in Section 5.3(d).

“Underlying Shares” shall have the meaning specified in Section 5.1(c)(i).

“VWAP” shall mean, for each of the relevant Trading Days, the per ADS volume-weighted average price as displayed under the heading “Bloomberg VWAP” on the Company’s Bloomberg page (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one ADS on such Trading Day mutually determined, using a volume-weighted average method, by the Company and Purchaser). If the Company and Purchaser are unable to agree upon the fair market value of one ADS, then such fair market value shall be determined by an Independent Financial Advisor retained for this purpose by the Company.


ARTICLE II
PAYMENT OF INTEREST

Interest shall accrue on the Accreted Principal Amount (in each case computed on the basis of a 365/366-day year and the actual number of days elapsed in any year) from April 9, 2021 until the Accreted Principal Amount (and any accrued and unpaid interest) is paid in full in cash. Interest shall accrue (i) at an annual rate equal to 6.0% per annum, which shall be payable annually by adding such interest to the Accreted Principal Amount (the “PIK Amount”) on each Interest Payment Date (as defined below) or (ii) if the Company elects, upon written notice to the holder of this Note prior to an Interest Payment Date, to pay the accrued interest relating to that Interest Payment Date to the holder of this Note in cash, at an annual rate equal to 5.0625% per annum (the “Cash Amount”). At any time, the outstanding principal amount of the Note,


including, as the case may be, all PIK Amounts added thereto through (and including) such time, is referred to in the Note as the “Accreted Principal Amount”.

“Interest Payment Date” means April 9 of each year starting April 9, 2022, or if any such day is not a Business Day, the next succeeding Business Day and the Maturity Date (as defined below). In the absence of an interest payment election made by the Company prior to any Interest Payment Date as set forth above, interest on the Note shall be payable on such Interest Payment Date by the automatic addition of the PIK Amount to the Accreted Principal Amount as of the open of business on such Interest Payment Date. If the Company makes an interest payment election prior to any Interest Payment Date as set forth above, interest on the Note shall be payable on such Interest Payment Date in cash. “Maturity Date” means the maturity date of the Note (whether the final maturity date thereof or such earlier date on which the Note may become or be declared due and payable pursuant to Section 4.2).

In case of conversion or redemption of the Note on a date other than an Interest Payment Date, any accrued and unpaid interest on the Accreted Principal Amount thereof not previously paid in cash or added as PIK Amounts to the Accreted Principal Amount shall be deemed to have accrued at 6.0% per annum. Interest shall accrue at 8.0% per annum on any Accreted Principal Amount (including any accrued and unpaid interest) or any other amount due under the Note from and after the due date therefor until such time as payment in cash therefor is actually delivered to the holder.


ARTICLE III
PAYMENT OF PRINCIPAL ON NOTE

Section 3.1    Scheduled Payment. Unless converted or redeemed as set forth below, the Accreted Principal Amount (including any accrued and unpaid interest) of this Note shall be due and payable in cash on April 9, 2024.

Section 3.2    Conversion. Notwithstanding any provision contained in this Article III, the holder of this Note may convert, indirectly through the procedure set forth in Section 5.1(c), all or any portion of the Accreted Principal Amount (including any accrued and unpaid interest) of this Note into the Company’s American Depositary Shares (“ADSs”), each representing the number specified pursuant to the Deposit Agreement (as defined below) of the ordinary shares of the Company, nominal value €0.02 per share (“Ordinary Shares”), in accordance with Article V, until the time as such Accreted Principal Amount (including any accrued and unpaid interest) of this Note has been paid in full. For the avoidance of doubt, (i) any reference in this Note to the conversion of the Note into ADSs shall mean the issuance of ADSs following conversion of the Note in accordance with the procedure set forth in Section 5.1(c) and (ii) any reference in this Note to “Accreted Principal Amount (including any accrued and unpaid interest)” shall mean, at any time, accrued and unpaid interest previously added as PIK Amounts to the Accreted Principal Amount together with any other interest accrued on the Accreted Principal Amount to such time that has not been previously paid in cash.



Section 3.3    Mandatory Redemption. The Company shall have no right to redeem or repurchase, or to cause the conversion of, the Note prior to April 9, 2022. The Company shall have the right, subject to the provisions of Section 5.5, to redeem all of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) of this Note or any portion thereof that is equal to $1,000 or an integral multiple of $1,000 in excess thereof, solely after April 9, 2022 and subject to the conditions specified in respect of the Call Option provided for in Section 5.5.

Section 3.4    Optional Conversion or Conversion upon a Change of Control. Notwithstanding any provision contained in this Article III, if a Change of Control occurs at any time prior to the payment of this Note in full, the holder of this Note shall have the right, in its sole discretion, to require that the Company convert or redeem all (but not less than all) of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) of the Note, in accordance with Article VI.


ARTICLE IV
EVENTS OF DEFAULT; REMEDIES ON DEFAULT

Section 4.1    Event of Default. An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:

(a)    the Company defaults in the payment of Accreted Principal Amount or interest or any Mandatory Redemption Penalty or Change of Control Amount on the Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise (including pursuant to Section 5.5 and Article VI) and such failure to pay is not cured within three (3) Business Days after the occurrence thereof; or

(b)    the Company’s failure to deliver, when required by this Note, a Change of Control Notice or notice of a Change of Control or an Organic Change pursuant to Section 5.4(c);

(c)    a default in the Company’s obligation to convert this Note in accordance with Article V upon the exercise of the conversion right with respect thereto, if such default is not cured within five (5) Business Days after its occurrence;

(d)    the Company defaults in the performance of, or compliance with, any material term contained in any Transaction Document and the default is not remedied within thirty (30) days after the Company receives written notice of the default from Purchaser (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 4.1(d)); or

(e)    the Company (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the


filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property or (v) is adjudicated as insolvent or to be liquidated; or

(f)    any representation, warranty or certification made herein or pursuant to any Transaction Document by the Company was not true or correct in any material respect as of the time made; or

(g)    the Company, any subsidiary of the Company or any of their respective affiliates fails to pay principal when due (whether at stated maturity or otherwise) or an uncured default exists that results in the acceleration of maturity of any indebtedness for borrowed money of the Company, any subsidiary of the Company or any of their respective affiliates in an aggregate amount in excess of $10,000,000 (or its foreign currency equivalent), unless such indebtedness is discharged, or such acceleration is rescinded, stayed or annulled, within any applicable cure period set forth in the relevant agreement or instrument; or

(h)    one or more final non-appealable judgments for the payment of money in any aggregate amount in excess of $10,000,000 shall be rendered against the Company, any subsidiary of the Company or any of their respective affiliates and the same shall remain undischarged for a period of sixty (60) days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Company, any subsidiary of the Company or any of their respective affiliates to enforce any such judgment; or

(i)    an Event of Default under any other Note issued pursuant to the Purchase Agreement; or

(j)    a court or governmental authority of competent jurisdiction enters an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, or any such petition shall be filed against the Company and such petition shall not be dismissed within sixty (60) days.


Section 4.2    Acceleration.

(a)    If an Event of Default with respect to the Company described in subsection (e) of Section 4.1 has occurred, the Note shall automatically become immediately due and payable.



(b)    If any other Event of Default has occurred and is continuing, the holder of the Note may, at any time, at its option, by notice to the Company, declare the Note to be immediately due and payable.

(c)    Upon the Note becoming due and payable under this Section 4.2, whether automatically or by declaration, the Note will forthwith mature and the entire unpaid Accreted Principal Amount (including any accrued and unpaid interest) and, if applicable, any Mandatory Redemption Penalty or Change of Control Amount shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived.

Section 4.3    Other Remedies. If any Event of Default has occurred and is continuing, and irrespective of whether the Note has become or has been declared immediately due and payable under Section 4.2, the holder of the Note may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein, for an injunction against a violation of any of the terms hereof or thereof or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

Section 4.4    No Waivers or Election of Remedies; Expenses. No course of dealing and no delay on the part of the holder of the Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. The Company shall pay the Accreted Principal Amount (including any accrued and unpaid interest) and any Mandatory Redemption Penalty and Change of Control Amount of the Note without any deduction for any setoff or counterclaim. No right, power or remedy conferred by the Purchase Agreement or by the Note upon the holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. The Company will pay to the holder of the Note on demand such further amount as shall be sufficient to cover all reasonable costs and expenses of such holder incurred in any enforcement or collection under this Article IV, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.

Section 4.5    Waiver of Demand. The Company hereby waives diligence, presentment, protest and demand and notice of protest and demand, dishonor and nonpayment of this Note, and expressly agrees that the holder hereof may accept security for this Note or release security for this Note, all without in any way affecting the liability of the Company hereunder.


ARTICLE V
CONVERSION

Section 5.1    Conversion Procedure.



(a)    At any time prior to the payment of the Accreted Principal Amount (including any accrued and unpaid interest) of this Note in full, the holder of this Note may convert all of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) of this Note or any portion thereof that is equal to $1,000 or an integral multiple of $1,000 in excess thereof, into a number of ADSs (excluding any fractional ADS) equal to the product obtained by multiplying (i) the portion of the Accreted Principal Amount (including any accrued and unpaid interest) designated by such holder to be converted, by (ii) the ADS Conversion Rate then in effect.

(b)    Except as otherwise expressly provided herein, each conversion of this Note shall be deemed to have been effected as of the close of business on the date (the “Conversion Date”) on which the holder of this Note has completed, signed and delivered to the Company an irrevocable conversion notice in the form attached to this Note as Attachment 1 (the “Conversion Notice”). At such time as such conversion has been effected, the rights of the holder of this Note as such holder to the extent of the conversion (except the right to receive in cash any unpaid Converted Amount Penalty or Change of Control Amount) shall cease, and the Person or Persons in whose name or names the ADSs are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the ADSs represented thereby. Notwithstanding any other provision of this Agreement, if any Conversion Date, Mandatory Redemption Date or Optional Conversion/Redemption Date is an Interest Payment Date for which the Company has not elected to pay a Cash Amount, (i) any conversion or redemption of this Note shall be deemed to have been effected on such Conversion Date, Mandatory Redemption Date or Optional Conversion/Redemption Date only after the addition of the applicable PIK Amount to the Accreted Principal Amount as of the open of business on such date and (ii) if such Conversion Date, Mandatory Redemption Date or Optional Conversion/Redemption Date is April 9, 2024, any conversion of this Note effected on such date shall be effected as of immediately after the open of business on such date (and after the addition of any PIK Amount as of the open of business on such date) and prior to any payment of the Accreted Principal Amount (including any accrued or unpaid interest) of this Note in cash.

(c)    As soon as possible after a conversion has been effected (but in any event within five (5) Business Days in the case of clause (i) below), the holder of this Note shall subscribe for the number of Ordinary Shares issuable upon conversion (in whole or in part) of this Note, and the Company shall do the following:

(i)    register the issuance to the converting holder of the number of Ordinary Shares issuable upon conversion (in whole or in part) of this Note (the “Underlying Shares”) in the Company’s share transfer registry;

(ii)    issue the Underlying Shares and deposit such Underlying Shares with The Bank of New York Mellon, as depositary (the “Depositary”), in the name and on behalf of the holder of the Note;



(iii)    cause the Depositary to issue and deliver to the converting holder certificates or a book-entry transfer for the number of ADSs to which Purchaser shall be entitled against deposit of the Underlying Shares, pursuant to the Amended and Restated Deposit Agreement dated as of May 14, 2018 (the “Deposit Agreement”) among the Company, the Depositary and the owners and holders from time to time of the ADSs issued thereunder; and

(iv)    except where the entire Accreted Principal Amount (including any accrued or unpaid interest) is converted in full, deliver to the converting holder a new Note representing the portion of the Accreted Principal Amount (including any accrued and unpaid interest) which was not converted provided, however, that the Company shall be entitled to reduce on its books and records the outstanding Accreted Principal Amount (including any accrued and unpaid interest) of this Note so converted.

The converting holder shall cooperate with the Company and the Depositary to facilitate the process outlined above, including through the execution of the Conversion Notice and surrender of the Note for conversion.

(d)    If a fractional ADS would, except for the provisions hereof, be deliverable upon conversion of this Note, the Company, in lieu of delivering such fractional share, shall in the event the conversion is being consummated in connection with repayment in full of the Note, pay in cash an amount equal to the market price of such fractional share based on the closing price of the ADSs on the New York Stock Exchange (the “Closing Sale Price”) on the Conversion Date.

(e)    The issuance of the Underlying Shares and ADSs upon conversion of this Note shall be made without charge to the holder hereof for any issuance tax in respect thereof or other cost incurred by the Company in connection with such conversion and the related issuance of Underlying Shares and ADSs, unless the tax is due because the holder requests such Underlying Shares and ADSs to be issued in a name other than the holder’s name, in which case the holder shall pay the tax. Upon conversion of this Note, the Company shall take all such actions as are necessary in order to ensure that the Ordinary Shares and ADSs issuable with respect to such conversion shall be validly issued, fully paid and nonassessable.

(f)    The Company shall not close its books against the transfer of Ordinary Shares or ADSs issued or issuable upon conversion of this Note in any manner which interferes with the timely conversion of this Note.

(g)    The conversion of this Note shall be subject to the Beneficial Ownership Limitations set forth in Section 5.2 of the Purchase Agreement, which are incorporated herein by reference.



Section 5.2    Conversion Rate. The Conversion Rate shall be equal to the quotient obtained by dividing 522.1932 Ordinary Shares by $1,000 Accreted Principal Amount (including any accrued and unpaid interest) of the Note (subject to adjustment as provided in this Article V, the “Conversion Rate”), such initial Conversion Rate being based on an initial ADS Conversion Price of $7.66 per ADS. To address dilution of the conversion rights granted under this Note, the Conversion Rate shall be subject to adjustment from time to time pursuant to Section 5.3.

Section 5.3    Adjustments to Conversion Rate. If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Conversion Rate itself will not be adjusted but rather the ADS Conversion Rate will automatically adjust proportionally to account for such change such that the aggregate number of Ordinary Shares represented by all of the ADSs received upon conversion of the Note remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:

(a)    In case the Company shall, at any time or from time to time while the Note is outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares (other than a dividend or distribution in connection with a Change of Control), then the Conversion Rate shall be adjusted based on the following formula:
                        
CR1 = CR0 ×     OS1                  
         OS0                  
where

CR0 =     the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such dividend or distribution;

CR1 =     the Conversion Rate in effect on the ex-dividend date for such dividend or distribution;

OS0 =    the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such dividend or distribution; and

OS1 =     the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, giving effect to such dividend or distribution.

Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the ex-dividend date for such dividend or distribution. If any dividend or distribution that is the subject of this Section 5.3(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the board of directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such dividend or distribution


shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.

(b)    In case outstanding Ordinary Shares (directly or in the form of ADSs) shall be subdivided or split into a greater number of Ordinary Shares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a Change of Control), the Conversion Rate shall be adjusted based on the following formula:
                        
CR1 = CR0 ×     OS1                  
         OS0                  
where

CR0 =     the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination;

CR1 =     the Conversion Rate in effect on the effective date of such subdivision or combination;

OS0 =     the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and

OS1 =     the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, giving effect to such subdivision or combination.

Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date of such subdivision or combination.

(c)    In case the Company shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in Section 5.3(a) above) or warrants to all or substantially all holders of its Ordinary Shares (whether direct or in the form of ADSs), other than an issuance in connection with a Change of Control, entitling them to purchase, for a period expiring within forty-five (45) calendar days of the date of issuance, Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share less than the average of the Closing Sale Prices of the ADSs during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the ex-dividend date for the distribution divided by the number of Ordinary Shares then represented by each ADS, the Conversion Rate shall be adjusted based on the following formula:
                        
CR1 = CR0 ×     OS0+X                  
         OS0+Y                  
                        
where



CR0 =     the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such issuance;
        
CR1 =     the Conversion Rate in effect on the ex-dividend date for such issuance;
        
OS0 =     the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such issuance;
        
X = the total number of Ordinary Shares issuable (directly or in the form of ADSs) pursuant to such rights or warrants; and
        
Y = the number of Ordinary Shares equal to the quotient of (x) aggregate price payable to exercise such rights or warrants, divided by (y) the quotient of (i) the average of the Closing Sale Prices of the ADSs during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the ex-dividend date for such issuance divided by (ii) the number of Ordinary Shares then represented by each ADS.

Any adjustment made pursuant to this Section 5.3(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the ex-dividend date for such issuance. If any rights or warrants described in this Section 5.3(c) are not so issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or Ordinary Shares are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered. In determining the aggregate price payable to exercise such rights and warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and the value of such consideration (if other than cash, to be determined in good faith by the Board of Directors). For purposes of this Section 5.3(c), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such issuance shall not include Ordinary Shares held in treasury, if any. The Company will not issue any such rights or warrants in respect of Ordinary Shares held in treasury, if any.

(d)    In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Ordinary Shares (whether direct or in the form of ADSs) shares of any class of capital stock of the Company or evidences of its indebtedness or assets (including securities, but excluding (i) any dividends or distributions referred to in Section 5.3(a), (ii) any rights or warrants referred to in Section 5.3(c), (iii) any dividends or distributions referred to in Section 5.3(e), (iv) any dividends or distributions in connection with an Organic Change to which Section 5.3(e) applies, or (v) any Spin-Offs to which the provisions set forth below in this Section 5.3(d) applies) (any of the foregoing hereinafter in this Section 5.3(d) called the “Distributed Assets”),


then, in each such case, the Conversion Rate shall be adjusted based on the following formula:
                
CR1 = CR0 ×     SP0         
         SP0 – FMV         
where

CR0 =     the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such distribution;
        
CR1 =     the Conversion Rate in effect on the ex-dividend date for such distribution;
        
SP0 =     the average of the Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the ex-dividend date for such distribution; and
        
FMV =     the fair market value on the ex-dividend date for such distribution of the Distributed Assets so distributed applicable to one (1) Ordinary Share, as determined in good faith by the Board of Directors.

In the event where there has been a payment of a dividend or other distribution on the Ordinary Shares (directly or in the form of ADSs) consisting of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”) that are, or when issued, will be, traded or listed on the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or any other U.S. national securities exchange or market, then the Conversion Rate shall instead be adjusted based on the following formula:
                
CR1 = CR0 ×     FMV0 + MP0         
         MP0         
where

CR0 =    the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such distribution;
        
CR1 =     the Conversion Rate in effect on the ex-dividend date for such distribution;
        
FMV0     = the average of the Closing Sale Prices of the Distributed Assets applicable to one (1) Ordinary Share during the ten consecutive Trading Day period commencing on and including the effective date of the Spin-Off (the “Spin-Off Valuation Period”); and
        
MP0 =     the average of the Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the Spin-Off Valuation Period.



Any adjustment made pursuant to this Section 5.3(d) shall become effective immediately prior to 9:00 a.m., New York City time, on the ex-dividend date for such distribution. If any dividend or distribution of the type described in this Section 5.3(d) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Rights or warrants distributed by the Company to all holders of Ordinary Shares (whether direct or in the form of ADSs) entitling the holders thereof to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 5.3 (and no adjustment to the Conversion Rate under this Section 5.3 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 5.3(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Note, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights. In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 5.3 was made, (A) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase and (B) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.

No adjustment of the Conversion Rate shall be made pursuant to this Section 5.3(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed to Purchaser upon conversion by Purchaser of this Note.

(e)    In case the Company shall pay a dividend or otherwise distribute to all or substantially all holders of its Ordinary Shares (direct or in the form of ADSs) a dividend or other distribution of exclusively cash excluding (i) any dividend or distribution in


connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary and (ii) any dividend or distribution in connection with a Change of Control, then the Conversion Rate shall be adjusted based on the following formula:
                
CR1 = CR0 ×     SP0         
         SP0 – DIV         
where

CR0 =    the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the ex-dividend date for such dividend or distribution;
        
CR1 =    the Conversion Rate in effect on the ex-dividend date for such dividend or distribution;
        
SP0 =    the average of the Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the ex-dividend date for such distribution; and
        
DIV =    the amount in cash per Ordinary Share the Company distributes to holders of its Ordinary Shares.

Any adjustment made pursuant to this Section 5.3(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the ex-dividend date for such dividend or distribution. If any dividend or distribution of the type described in this Section 5.3(e) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

(f)    In case of purchases of the Ordinary Shares (directly or in the form of ADSs) pursuant to a tender offer or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Ordinary Shares (directly or indirectly in the form of ADSs), to the extent that the fair market value, as determined in good faith by the Board of Directors, of cash and any other consideration included in the payment per Ordinary Share (or equivalent payment per Ordinary Share represented by the ADSs) exceeds the Closing Sale Price of the ADSs divided by the number of Ordinary Shares then represented by each ADS on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (as it may be amended) (the “Expiration Date”), the Conversion Rate shall be adjusted based on the following formula:
                
CR1 = CR0 ×     FMV + (SP1 x OS1)         
         SP1 x OS0         
where



CR0 =    the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date;
        
CR1 =    the Conversion Rate in effect immediately after 5:00 p.m., New York City time, on the Expiration Date;
        
FMV =     the fair market value, on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for Ordinary Shares (directly or indirectly in the form of ADSs) validly tendered or exchanged and not withdrawn as of the Expiration Date, as determined in good faith by the Board of Directors;
        
OS1 =    the number of Ordinary Shares outstanding immediately after the last time tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), after giving effect to the purchase of all Ordinary Shares or ADSs, as the case may be, accepted for purchase or exchange in such tender or exchange offer;
        
OS0 =     the number of Ordinary Shares outstanding immediately before the Expiration Time; and
        
SP1 =    the average of the Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the ten (10) consecutive Trading Day period commencing on the Trading Day immediately after the Expiration Date.

Any adjustment made pursuant to this Section 5.3(f) shall become effective immediately prior to 9:00 a.m., New York City time, on the Trading Day immediately following the Expiration Date. If the Company, or one of its Subsidiaries, is obligated to purchase Ordinary Shares (directly or indirectly in the form of ADSs) pursuant to any such tender or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting all such purchases or all such purchases are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this Section 5.3(f) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 5.3(f).

(g)    In cases where the fair market value, as determined in good faith by the Board of Directors, of Distributed Assets and cash, including with respect to a Spin-Off, as to which Section 5.3(d) and Section 5.3(e) apply, applicable to one (1) Ordinary Share, distributed to holders of the Ordinary Shares (whether direct or in the form of ADSs) equals or exceeds the average of the Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the ex-dividend date for such distribution, then, rather than being entitled to an adjustment in the Conversion Rate, Purchaser will be entitled to receive upon conversion of each $1,000 of Accreted Principal Amount (including any accrued and unpaid interest) in respect of this Note, in addition to the ADS, the kind and amount of assets, debt securities or rights, warrants or options comprising the distribution, if any, that Purchaser would have received if Purchaser had converted such $1,000 of Accreted Principal Amount


(including any accrued and unpaid interest) in respect of this Note immediately prior to the record date for determining the shareholders entitled to receive the distribution.

(h)    In addition to those adjustments required by clauses (a)-(g) of this Section 5.3, and to the extent permitted by applicable law and subject to the applicable rules of the New York Stock Exchange and any other securities exchange on which any of the Company’s securities are then listed, the Company from time to time may increase the Conversion Rate by any amount for a period of at least twenty (20) Business Days if the Board of Directors determines that such increase would be in the Company’s best interest, and the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of the Ordinary Shares or the ADSs or rights to purchase Ordinary Shares or ADSs in connection with a dividend or distribution of Ordinary Shares or ADSs (or rights to acquire Ordinary Shares or ADSs) or similar event.

(i)    All calculations under this Article V shall be made in good faith by the Company in accordance with this Article V, and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of an Ordinary Share, as the case may be. No adjustment need be made for rights to purchase Ordinary Shares (directly or indirectly in the form of ADSs) pursuant to a Company plan for reinvestment of dividends or for any issuance of Ordinary Shares (directly or indirectly in the form of ADSs) or convertible or exchangeable securities or, except as provided in this Section 5.3, rights to purchase Ordinary Shares (directly or indirectly in the form of ADSs) or convertible or exchangeable securities. The Company shall certify to Purchaser that all calculations are made in compliance with this Article V, and shall show Purchaser in detail the facts upon which such calculations and adjustments were made
.
(j)    For purposes of this Section 5.3, the number of Ordinary Shares at any time outstanding shall not include Ordinary Shares held in the treasury of the Company but shall include Ordinary Shares issuable in respect of scrip certificates issued in lieu of fractions of Ordinary Shares. The Company will not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Company.

(k)    Notwithstanding any of the foregoing clauses in this Section 5.3, the applicable Conversion Rate will not be adjusted pursuant to this Section 5.3 (i) in the event of a distribution that would otherwise give rise to adjustment pursuant to clause (d) or (e) of this Section 5.3, if (but only if) Purchaser otherwise participates in such distribution, at the same time such distribution is effected to holders of Ordinary Shares, on an as-converted basis (as if Purchaser had converted the Accreted Principal Amount (including any accrued and unpaid interest) at the then applicable Conversion Rate) but without the conversion of this Note actually taking place or (ii) solely by reason of the issuance or conversion of any other Note pursuant to the Purchase Agreement.

(l)    Organic Change. Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Company's assets or other transaction (other than a subdivision or combination solely of Ordinary Shares), which in


each case is effected in such a manner that holders of Ordinary Shares (whether direct or in the form of ADSs) are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for or upon conversion of Ordinary Shares is referred to herein as an "Organic Change." In the event of an Organic Change prior to repayment in full of the Note, then:

(A)    at the effective time of the Organic Change, the right to convert each $1,000 Accreted Principal Amount (including any accrued and unpaid interest) of this Note into the number of ADSs equal to the ADS Conversion Rate multiplied by $1,000 will be changed into the right to convert such Accreted Principal Amount (including any accrued and unpaid interest) of this Note into the kind and amount of shares of stock, other securities or other property or assets (including cash) or any combination thereof that a holder of a number of ADSs equal to the ADS Conversion Rate immediately prior to such Organic Change multiplied by $1,000 would have owned or been entitled to receive (the "Reference Property," with each "unit of Reference Property" meaning the kind and amount of Reference Property that a holder of one ADS would have owned or been entitled to receive upon such Organic Change); and

(B)    at or prior to the Effective Time of such Organic Change, the Company (or other Person that becomes the "Company" pursuant to Section 8.1 as a result of such Organic Change) and any other issuer of securities constituting Reference Property shall execute and deliver to the holder a supplement to this Note providing for such change in the right to convert each $1,000 Accreted Principal Amount (including any accrued and unpaid interest) of this Note;

provided, however, that at and after the effective time of the Organic Change, the daily VWAP will be calculated based on the value of a unit of Reference Property that a holder of one ADS would have owned or been entitled to receive upon such Organic Change.

The Company shall not become a party to any Organic Change unless the terms thereof are consistent with this Section 5.3(1).

Such supplement described in the first paragraph of this Section 5.3(1) shall provide for anti-dilution and other adjustments, and covenants for protection of the interests of the holders of this Note, in respect of the Reference Property (and, if the Reference Property represents underlying securities, such securities) that shall be as nearly equivalent as is practicable to the adjustments and covenants provided for in this Article V in respect of ADSs and Ordinary Shares.

When the Company executes and delivers such supplement to this Note pursuant to the foregoing, the Company shall promptly deliver to the holder an officer's certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or assets that will comprise a unit of Reference Property (and, if the Reference Property represents underlying securities, such securities) after any such Organic Change, any adjustment to be made with


respect thereto and that all conditions precedent in this Note to such execution and delivery have been complied with.

None of the foregoing provisions shall affect (i) the right of the holder of this Note to convert all or any portion of the Accreted Principal Amount (including accrued and unpaid interest) of this Note into ADSs prior to the effective time of such Organic Change or (ii) if such Organic Change constitutes a Change of Control, the rights of the holder of this Note, at its option, to cause redemption or conversion of this Note upon the Optional Conversion/Redemption Date in respect of such Change of Control in accordance with Article VI or (iii) regardless of whether such Organic Change constitutes a Change of Control, the right of the holder of this Note to continue to hold this Note after consummation of such Organic Change and at any time thereafter prior to the payment of the Accreted Principal Amount (including any accrued and unpaid interest) of this Note in full, to convert this Note into Reference Property.

The above provisions of this Section 5.3(1) shall similarly apply to successive Organic Changes.

Notwithstanding the Conversion Rate adjustment provisions described in Section 5.3(a) through (f), no adjustment to the Conversion Rate shall be made pursuant to such provisions in the event of any dividend, distribution or issuance upon an Organic Change to which the provisions under this Section 5.3(1) apply.

Section 5.4    Notices.

(a)    Immediately upon any adjustment of the Conversion Rate, the Company shall send written notice thereof to the holder of this Note, setting forth in reasonable detail and certifying the calculation of such adjustment.

(b)    The Company shall send written notice to the holder of this Note at least twenty (20) days prior to the date on which the Company closes its books or takes a record (i) with respect to any dividend or distribution upon Ordinary Shares (whether direct or in the form of ADSs), any subdivision, stock split, reverse stock split or combination, or any tender offer or exchange offer or (ii) with respect to any pro rata subscription offer to holders of Ordinary Shares (whether direct or in the form of ADSs).

(c)    The Company shall also give at least twenty (20) days’ prior written notice to the holder of this Note of the date on which any Change of Control, Organic Change, dissolution or liquidation shall take place.


Section 5.5    Company Call Option.

(a)    Subject to the terms of this Section 5.5, if at any time on or after April 9, 2022, the VWAP of an ADS exceeds 130% of the ADS Conversion Price on (i) each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30)


consecutive Trading Days ending on, and including, the Trading Day immediately preceding the date of the Company Call Option Notice (as defined below) and (ii) the Trading Day immediately before the date of such Company Call Option Notice, the Company shall have the right the (“Call Option”) to redeem (a “Mandatory Redemption”) all of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) of this Note or any portion thereof that is equal to $1,000 or an integral multiple of $1,000 in excess thereof, as designated in the Mandatory Redemption Notice (as defined below) (such designated amount, the “Designated Amount”).

(b)    The Company may exercise its Call Option by delivering within not more than one (1) day following the end of such thirty (30) consecutive Trading Day-period a written notice to the holder of this Note (the “Company Call Option Notice”). The Company Call Option Notice shall be irrevocable and shall state (i) the date selected for the Mandatory Redemption in accordance with this Section 5.5, which shall be no later than twenty (20) Business Days following the date of the Company Call Option Notice (the “Mandatory Redemption Date”), (ii) Designated Amount (i.e., the amount of the Accreted Principal Amount (including any accrued and unpaid interest)) designated by the Company to be subject to a Mandatory Redemption pursuant to this Section 5.5), (iii) the Mandatory Redemption Price (as defined below), and (iv) the respective amounts of the Redemption Amount Penalty and the Converted Amount Penalty (each, as defined below), assuming the holder does not deliver a Holder Reduction Notice.

(c)    If in lieu of Mandatory Redemption the holder is not able to convert the entire Designated Amount pursuant to Article V in due consideration of the Beneficial Ownership Limitation and therefore needs to reduce the Designated Amount to a smaller amount (the “Permitted Amount”), no later than the close of business on the date two Trading Days prior to the Mandatory Redemption Date, the holder of this Note, at its election, may deliver to the Company a written notice (the “Holder Reduction Notice”) that refers to this Section 5.5(c) and specifies the Permitted Amount. Notwithstanding any other provisions of this Note, if the holder delivers a Holder Reduction Notice, only the Redemption Amount (as defined below) (and not the entire Designated Amount) shall be redeemed on the Mandatory Redemption Date, and the portion of the Accreted Principal Amount (including accrued and unpaid interest) in excess of the Redemption Amount not converted by the holder of this Note shall remain outstanding subject to any future subsequent exercise of the Call Option. For avoidance of doubt, any future subsequent exercise of the Call Option must again satisfy the 130% of VWAP threshold and other conditions of this Section 5.5.

(d)    If during the period from (and including) the date of the Company Call Option Notice to (and including) the Trading Day prior to the Mandatory Redemption Date, the holder of this Note converts all or a portion of the Accreted Principal Amount (including accrued and unpaid interest) of the Note (the “Converted Amount”) pursuant to Article V, then, on the Mandatory Redemption Date, the Company shall pay to the holder of this Note an amount in cash equal to 100% of the Cash Amount that would have been payable by the Company on such portion of the outstanding Accreted Principal


Amount (including any accrued and unpaid interest) as equals the Specified Converted Amount in respect of interest accrued thereon at 5.0625% per annum for the remaining period from the Mandatory Redemption Date until (and including) October 9, 2023 had the Company not exercised its Call Option (the “Converted Amount Penalty”).

“Specified Converted Amount” means the lesser of (i) the Converted Amount and (ii) the lesser of (x) the Designated Amount or (y) if the holder has delivered a Holder Reduction Notice, the Permitted Amount.

(e)    Unless the Converted Amount is at least equal to the lesser of the (i) Designated Amount and (ii) if the holder has delivered a Holder Reduction Notice, the Permitted Amount, on the Mandatory Redemption Date, the Company shall (i) redeem the Note or any portion thereof in cash at a price equal to 100% of the outstanding Accreted Principal Amount (including any unpaid accrued and unpaid interest) or any portion thereof equal to the Redemption Amount (the “Mandatory Redemption Price”), and (ii) pay to the holder of this Note the amount in cash equal to 100% of the Cash Amount that would have been payable by the Company on such portion of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) as equals the Redemption Amount in respect of interest accrued thereon at 5.0625% per annum for the remaining period from the Mandatory Redemption Date until (and including) October 9, 2023 had the Company not exercised its Call Option (the “Redemption Amount Penalty” and, together with any Converted Amount Penalty, a “Mandatory Redemption Penalty”).

“Redemption Amount” means the amount, if any, by which (i) the lesser of (x) the Designated Amount or (y) the Permitted Amount exceeds (ii) the Converted Amount.

(f)    Notwithstanding the foregoing, the Note may not be converted or redeemed by the Company pursuant to Section 5.5 if the principal amount of the Note has been accelerated pursuant to Section 4.2, and such acceleration has not been rescinded, on or prior to such date.

Section 5.6    Adjustments of Prices. Whenever any provision of this Note requires the Company to calculate the Closing Sale Prices or the daily VWAPs over a span of multiple days (including the Spin-Off Valuation Period and any other period for determining the Closing Sale Prices for purposes of adjustments to the Conversion Rate pursuant to Section 5.3), the Company shall make any adjustments to each that it reasonably determines to be appropriate to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate (or changes to the market price per ADS resulting from any such event) where the ex-dividend date, effective date or Expiration Time, as the case may be, of the event occurs at any time during the period when such Closing Sale Prices or daily VWAPs are to be calculated, without duplication of any adjustment made pursuant to Section 5.3. The Company will likewise make appropriate adjustments where a Conversion Rate adjustment otherwise required to be made pursuant to the provisions of Sections 5.3(a) through (f) is not


made in accordance with the provisions of Section 5.3(g) that permit participation by Purchaser in a distribution in lieu of such Conversion Rate adjustment.

ARTICLE VI
HOLDER’S RIGHTS UPON CHANGE OF CONTROL

Section 6.1    General.

(a)    Subject to the terms of this Article VI, if a Change of Control occurs at any time prior to the payment of this Note in full, regardless of whether the Change of Control also constitutes an Organic Change or an Organic Change otherwise occurs, the holder of this Note shall have the right, in its sole discretion, to require that the Company convert or redeem all (but not less than all) of the outstanding Accreted Principal Amount (including any unpaid accrued and unpaid interest) of the Note on the date specified by the Company (the “Optional Conversion/Redemption Date”), that is not less than twenty (20) nor more than sixty (60) days following the date of the Change of Control Notice (as defined below).

(b)    On or before the twentieth (20th) day after the occurrence of a Change of Control, the Company shall provide to the holder of this Note a written notice (the “Change of Control Notice”) of the occurrence of the Change of Control specifying:

(i)    the events causing the Change of Control;
(ii)    the effective date of the Change of Control; and
(iii)    the Optional Conversion/Redemption Date.

No failure of the Company to give the foregoing notice and no defect therein shall limit the holders’ right of optional conversion or redemption or affect the validity of the proceedings for the conversion or the redemption of the Note.

(c)    Any conversion or redemption of this Note under this Article VI shall be made at the option of the holder of this Note upon delivery to the Company by the holder of a written notice (a “Holder Optional Conversion/Redemption Notice”) stating whether it elects to require the Company to convert (an “Optional Conversion”) or to redeem (an “Optional Redemption”) all of the outstanding Accreted Principal Amount (including any unpaid accrued and unpaid interest) of the Note.


Section 6.2    Mechanics of Holder Optional Conversion. If the holder of this Note delivers a Holder Optional Conversion/Redemption Notice electing an Optional Conversion in accordance with this Article VI, then, on the Optional Conversion/Redemption Date, the Company shall (i) issue to the holder of this Note a number of ADSs equal to the product obtained by multiplying (x) the entire outstanding Accreted Principal Amount (including any accrued and unpaid interest), by (y) the ADS Conversion Rate in effect as of the Optional Conversion/Redemption Date, in accordance with the procedure and terms and conditions set


forth in Article V, and (ii) pay to the holder of this Note an amount in cash equal to 100% of the Cash Amount that would have been payable by the Company to the holder of this Note on the then outstanding Accreted Principal Amount (including any accrued and unpaid interest) in respect of interest accrued thereon at 5.0625% per annum for the remaining period from the Optional Conversion/Redemption Date until (and including) April 9, 2024 had the outstanding Accreted Principal Amount (including any accrued and unpaid interest) not been converted pursuant to this Article VI. The Company shall not become a party to any Change of Control unless the terms thereof are consistent with this Section 6.2.

Section 6.3    Mechanics of Holder Optional Redemption. If the holder of this Note delivers a Holder Optional Conversion/Redemption Notice electing an Optional Redemption in accordance with this Article VI, then, on the Optional Conversion/Redemption Date, the Company shall (i) redeem the Note in cash at a price equal to 100% of the outstanding Accreted Principal Amount (including any accrued and unpaid interest) and (ii) pay to the holder of this Note an amount in cash equal to 100% of the Cash Amount that would have been payable by the Company to the holder of this Note on the outstanding Accreted Principal Amount (including any accrued and unpaid interest) in respect of interest accrued thereon at 5.0625% per annum for the remaining period from the Optional Conversion/Redemption Date until (and including) April 9, 2024 had the outstanding Accreted Principal Amount (including any accrued and unpaid interest) not been redeemed pursuant to this Article VI.

Section 6.4    No Affect on Holder Conversion Right. None of the foregoing provisions shall affect the right of the holder of this Note to convert all or any portion of the Accreted Principal Amount (including accrued and unpaid interest) of this Note into ADSs prior to the effective time of any Change of Control even if such Change of Control is an Organic Change.


ARTICLE VII
CERTAIN COVENANTS OF THE COMPANY

Section 7.1    Protective Provisions. For so long as the Note is outstanding, the Company will not, without the consent of Purchaser, create, incur, assume or suffer to exist (collectively, “incur”) any indebtedness for borrowed money; provided, however, that this Section 7.1 will not prohibit the Company from incurring any of the following:

(a)     working capital indebtedness secured by a receivables facility not exceeding in the aggregate at any time $35 million less the then outstanding amount of any such indebtedness specified in clause (d) below,

(b)    indebtedness owed to a French government or European Union-related authority not exceeding in the aggregate at any time $40 million less the then outstanding amount of any such indebtedness specified in clause (d) below,



(c)    indebtedness that is subordinated to this Note not exceeding in the aggregate at any time $30 million less the then outstanding amount of any such indebtedness specified in clause (d) below

(d)    indebtedness of the Company in existence on the date of this Note and specified on Exhibit D to the Purchase Agreement;

(e)    indebtedness under this Note or under the Purchase Agreement with respect to the Note;

(f)    intercompany indebtedness solely between or among the Company and any of its Subsidiaries; or

(g)    indebtedness constituting trade payables incurred in the ordinary course of business.

Section 7.2    Negative Pledge. For so long as the Note is outstanding, the Company will not grant a consensual security interest or pledge its personal property assets to another third-party lender in connection with debt for borrowed money (other than (i) purchase money security interests or capital leases incurred in the ordinary course of business, (ii) up to $35 million of working capital indebtedness secured by a receivables facility, and (iii) secured indebtedness owed at the date of this Note and listed on Part 1 of Exhibit D to the Purchase Agreement) without the consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed, in the case of a security interest or pledge granted or made to a strategic corporate partner or joint venture partner as a component of a financing transaction or other business relationship with a strategic corporate partner or joint venture partner (whether directly or involving an investment fund controlled by the relevant strategic corporate partner or joint venture partner)).

ARTICLE VIII
SUCCESSORS

Section 8.1    The Company May Consolidate, Combine, Merge, etc., only on Certain Terms. The Company shall not, in a single transaction or through a series of related transactions, consolidate, combine or merge with or into any other Person, or, directly or indirectly, sell, exchange, assign, convey, transfer , or otherwise dispose of, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person or group of affiliated Persons (in each case other than to one or more of its Subsidiaries), except that the Company may consolidate, combine or merge with or into, or sell, exchange, assign, convey, transfer, or otherwise dispose of, all or substantially all of its assets to another Person if:

(a)    the Company is the surviving Person or the resulting, surviving, transferee or successor Person (the “Successor Company”) (if other than the Company) is a corporation organized or existing under the laws of Canada or any province or territory thereof or the European Union or any province or territory thereof or France or Taiwan


or the State of Israel or Japan or any territory thereof or the Republic of Korea or the United States, any state of the United States or the District of Columbia and expressly assumes, by an agreement supplemental hereto, all obligations of the Company under this Note and the other Transaction Documents including payment of the Accreted Principal Amount (and any accrued and unpaid interest) on the Note, and the performance and observance of all of the covenants and conditions of this Note and the other Transaction Documents to be performed by the Company; and

(b)    immediately after giving effect to such transaction, no Event of Default has occurred and is continuing; and

(c)    if such transaction constitutes an Organic Change, the Company or the Successor Company, as applicable, complies with the provisions of Section 5.3(l) and, if the transaction constitutes a Change of Control, Article VI.

Section 8.2    Successor Substituted. Upon any consolidation or combination of the Company with, or merger of the Company with or into, any other Person or any sale, exchange, assignment, conveyance, transfer, or other disposal of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person in accordance with Section 8.1, the Successor Company formed by such consolidation or combination or with or into which the Company is merged or to which such sale, exchange, assignment, conveyance, transfer, or other disposal is made shall succeed to, and may exercise every right and power of, the Company under this Note and the other Transaction Documents with the same effect as if such Successor Company had been named as the Company herein. If the predecessor is still in existence after such transaction, it will be released from its obligations and covenants under the Transaction Documents.


ARTICLE IX
TRANSFER OF THE NOTE

Notwithstanding anything herein to the contrary, the holder of this Note shall be entitled to transfer this Note in full and no less than in full at any time. Any such transfer shall be notified to the Company according to the terms hereof no later than on the day of transfer and be accompanied by updated wire instructions for the new holder of this Note; and upon any such transfer, any reference herein to “Purchaser” shall thereafter mean the holder of this Note.


ARTICLE X
AMENDMENT AND WAIVER

The provisions of this Note may only be amended with the written consent of the Company and the holder of this Note.




ARTICLE XI
CANCELLATION

After the entire Accreted Principal Amount (including any accrued and unpaid interest) and any Mandatory Redemption Penalty and Change of Control Amount at any time owed on this Note has been paid in full or this Note has been converted in full to ADSs or other property or redeemed in full, this Note shall be surrendered to the Company for cancellation and shall not be reissued.


ARTICLE XII
NOTICES

Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 8.4 of the Purchase Agreement.


ARTICLE XIII
PAYMENTS

This Note is payable without relief from valuation or appraisement laws. All payments to be made to Purchaser of the Note shall be made in the lawful money of the United States of America in immediately available funds; provided, that the Company shall not have the right to pre-pay the outstanding principal of this Note (except solely as specified in Section 5.5) without the consent of Purchaser of this Note.


ARTICLE XIV
PLACE OF PAYMENT

Payments of principal and interest shall be made by wire transfer to the account designated in writing by the Purchaser at or prior to the time of initial issuance of this Note, or to such other address or to the attention of such other person as specified by Purchaser upon prior written notice to the Company.


ARTICLE XV
GOVERNING LAW

(a)    THIS NOTE AND ALL ISSUES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE FRENCH REPUBLIC (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW).



(b)    The parties agree that the competent courts within the jurisdiction of the Paris Court of Appeal (Cour d’Appel de Paris) shall have exclusive jurisdiction (and are deemed to be a convenient forum for each party) as to resolution of any dispute.


ARTICLE XVI
SUBORDINATION

With the exception of secured indebtedness owed (i) to Natixis and to the Fonds Commun de Titrisation Prederic Innovation 3 (represented by Acofi Gestion and Neftys Conseil) for the financing of the research tax credit receivable from the French government and (ii) to Harbert European Specialty Lending Company II S.A.R.L. under the bonds issue agreement dated as of October 26, 2018, the Note and the Accreted Principal Amount (including any accrued and unpaid interest) in respect thereof and the interest accrued under the Note are the senior unsecured obligations of the Company and will rank pari passu in right of payment with all other senior unsecured and unsubordinated obligations of the Company.
IN WITNESS WHEREOF, the Company has executed and delivered this Note on April 9, 2021.


SEQUANS COMMUNICATIONS S.A.

By:                            
Name:    Georges Karam
Title:    Chief Executive Officer




ATTACHMENT 1

FORM OF CONVERSION NOTICE

SEQUANS COMMUNICATIONS
Société anonyme au capital de [______] euros
Les Portes de la Défense, 15-55 boulevard Charles de Gaulle - 92700 Colombes
RCS Nanterre 450 249 677
(la « Société »)

NOTICE DE CONVERSION – BULLETIN DE SOUSCRIPTION
Émission d’actions ordinaires à la suite de la conversion d’obligations convertibles

La soussignée, Lynrock Lake Master Fund LP, société de droit [●] dont le siège social est situé [●] (« Lynrock »),
Connaissance prise :
    de la délégation de compétence consentie au conseil d’administration par l’assemblée générale extraordinaire de la Société du 26 juin 2020 dans sa quinzième résolution à l’effet de procéder à une ou plusieurs augmentations de capital réservées à des catégories de personnes ;
    des décisions du conseil d’administration de la Société en date du 5 avril 2021, faisant usage de la délégation susmentionnée, de :
o    procéder à l’émission d’un emprunt obligataire (l’« Emprunt ») d’un montant total de 40.000.000 US dollars en la forme d’obligations convertibles en actions (les « OC ») ;
o    supprimer le droit préférentiel de souscription attribué aux actionnaires au profit des bénéficiaires d’OC et de réserver à Lynrock la souscription de la totalité de l’Emprunt, soit 40.000.000 euros (l’« OC Lynrock ») ;
o    déléguer tous pouvoirs au Président-directeur général de la Société aux fins de recueillir les demandes de conversion de tout ou partie de l’OC Lynrock, arrêter le nombre et le montant nominal total des actions ordinaires émises sur conversion(s) de l’OC Lynrock et réaliser les augmentations consécutives du capital social de la Société ;
    des termes et conditions de l’OC Lynrock ;
    des décisions du Président-directeur général de la Société en date de ce jour d’arrêter, pour les besoins des présentes, un taux de change euro / US dollar de référence à [●] égal au taux publié ce jour par la Banque Centrale Européenne (le « Taux de Référence ») ;
Déclare :
    convertir l’OC Lynrock en [totalité] [partie], la présente conversion représentant un montant total (principal et intérêts courus à la date des présentes) de [●] US dollars [(le solde de l’OC Lynrock, soit [●] US dollars, ne faisant pas l’objet de la présente conversion)] ;
    en conséquence, souscrire [●] actions nouvelles ordinaires de la Société de 0,02 euro de valeur nominale chacune, à un prix d’émission unitaire égal à la contre-valeur en euros de [●] US dollar, soit [●] euro sur la base du Taux de Référence, la différence entre ce prix unitaire en euros et la valeur nominale constituant la prime d’émission, représentant une souscription d’un montant total égal à la contre-valeur en euros de [●] US dollars, soit [●] euros (prime d’émission incluse) sur la base du Taux de Référence ;


    Libérer en conséquence le montant de sa souscription, soit la contre-valeur en euros de [●] US dollars, par conversion [de la totalité] [partielle] de l’OC Lynrock conformément aux termes et conditions de l’OC Lynrock ; le solde, soit [●] US dollars, étant à régler sans délai par la Société aux fins de solder définitivement [la portion de] l’OC Lynrock ici convertie.
Par ailleurs, la soussignée ordonne la Société de mouvementer sans délai après l’émission par la Société des [●] actions nouvelles ordinaires et leur inscription en compte au nom de Lynrock dans le registre des actionnaires au nominatif pur tenu par la Société, lesdites actions nouvelles vers le compte d’actionnaire n° 543 A afin qu’elles soient détenues par The Bank of New York Mellon, agissant en qualité de dépositaire des actions de la Société sous-jacentes des ADS en circulation, en la forme nominative administrée par l’intermédiaire de Société Générale Securities Services, teneur de compte pour le compte de The Bank of New York Mellon.
Après l’émission et l’inscription en compte desdites actions nouvelles ordinaires, The Bank of New York Mellon procédera dans un délai n’excédant pas deux jours ouvrés à l’émission et la livraison au bénéfice de Lynrock des [●] ADS représentant chacun quatre actions ordinaires nouvelles de la Société de 0,02 euro de valeur nominale chacune.
 
Fait à [●], le [●] [●] 202[●] en deux exemplaires originaux, un pour la Société et l’autre pour Lynrock.
Lynrock Lake Master Fund LP



        
Nom:    [●]
Dument autorisé

* Veuillez faire précéder votre signature de la mention manuscrite : « Bon pour souscription à [●] ([●]) actions nouvelles ordinaires par conversion [en totalité] [partielle] de l’OC Lynrock ».
 
Free translation for information purposes only:
The undersigned, Lynrock Lake Master Fund LP, a [●] corporation having its registered office located [●] (“Lynrock”),
Having full knowledge of:
    the delegation of authority granted to the board of directors by the extraordinary general meeting of the Company on June 26, 2020 in its fifteenth resolution for the purpose of carrying out one or more capital increases reserved to specific categories of persons;
    the decisions from the board of directors of the Company on April 5, 2021, making use of the aforementioned delegation, to:
o    issue a convertible loan in an aggregate amount of US$ 40,000,000 (the “Loan”) in the form of convertible notes (the “Notes”);
o    suppress shareholders’ preferential subscription right to the benefit of the Noteholders, and to reserve to Lynrock the subscription of the Loan in full, i.e. US$ 40,000,000 (the “Lynrock Note”);
o    delegate all powers to the CEO of the Company so as to collect full or partial Lynrock Note conversion notices, set the number and total nominal amount of the ordinary shares to be


issued upon conversion(s) of the Lynrock Note and complete the correlative capital increases of the Company;
    terms and conditions of the Lynrock Note;
    the decisions from the CEO of the Company dated the date hereof to set, for purposes of this conversion notice, a reference euro / dollar exchange rate at [●] equal to the rate published on the date hereof by the European Central Bank (the “Reference Rate”);
Hereby:
-    converts the Lynrock Note in [full] [part], the present conversion representing a total amount (principal and accrued interests as of the date hereof) of US$ [●] [(the balance of the Lynrock Note, i.e. US$ [●], remaining outstanding)];
-    accordingly subscribes [●] new ordinary shares of the Company of €0.02 nominal value each, at an issue price equal to the counter-value in euros of US$ [●] per share, i.e. € [●] on the basis of the Reference Rate, the difference between this price per share in euros and the nominal value corresponding to an issuance premium, representing a subscription for a total amount equal to the counter-value in euros of US$ [●], i.e. € [●] (issue premium included) on the basis of the Reference Rate .
-    settles the aforementioned subscription, i.e. an amount of U$ [●], by conversion of the Lynrock Note in [full] [part] according to the terms and conditions of the Lynrock Note; the balance, i.e. US$ [●], to be paid without delay by the Company so as to settle for good the [portion of the] Lynrock Note up to the full amount converted hereby.
Furthermore, the undersigned orders the Company to transfer without delay, upon issuance by the Company of the [●] new ordinary shares and their allocation to Lynrock in the shareholder registry held by the Company (nominatif pur), such new shares to shareholder account no. 543 A, in order for those to be held by The Bank of New York Mellon, acting as depositary of the Company shares underlying outstanding ADSs, in registered form administered through its custodian, Société Générale Securities Services (nominatif administré).
Upon issuance and registration of such new ordinary shares, The Bank of New York Mellon will issue and deliver to Lynrock within no more than two business days the [●] ADS each representing four new ordinary shares of the Company with a par value of €0.02 each.
Signed in [●], on [●] [●], 202[●] in two original copies, one to the Company and the other to Lynrock.
Lynrock Lake Master Fund LP
Name:    [●]
Duly authorized

* Signature to be preceded by the following handwritten words: “Good for subscription to [●] ([●]) new ordinary shares by conversion of the Lynrock Note in [full] [part]”.
End of translation.



Exhibit 4.3










REGISTRATION RIGHTS AGREEMENT

between

SEQUANS COMMUNICATIONS S.A.
and

LYNROCK LAKE MASTER FUND LP


Dated April ____, 2021



TABLE OF CONTENTS
Page

ARTICLE I REGISTRATION RIGHTS                            1
Section 1.1    Registrations                                    1
Section 1.2    Expenses                                    2
Section 1.3    Suspensions                                    3
Section 1.4    Registration Procedures                            3
Section 1.5    Effectiveness Period                                7
Section 1.6    Indemnification                                8
Section 1.7    Free Writing Prospectuses                            12
Section 1.8    Information from and Obligations of the Investor                12
Section 1.9    Rule 144 Reporting                                13
Section 1.10    Termination of Registration Rights                        14
Section 1.11    Transfer of Registration Rights                        14

ARTICLE II TERMINATION                                14
Section 2.1    Termination                                    14
Section 2.2    Effect of Termination; Survival                        14

ARTICLE III GENERAL PROVISIONS                            15
Section 3.1    No Confidential Information                            15
Section 3.2    Fees and Expenses                                15
Section 3.3    Notices                                    15
Section 3.4    Definitions                                    16
Section 3.5    Interpretation; Headings                            20
Section 3.6    Severability                                    20
Section 3.7    Entire Agreement; Amendments                        21
Section 3.8    Assignment; No Third Party Beneficiaries                    21
Section 3.9    Further Assurances                                21
Section 3.10    Governing Law; Consent to Jurisdiction; Waiver of Jury Trial        21
Section 3.11    Counterparts                                    22
Section 3.12    Specific Performance                                23
Section 3.13    Waiver                                        23
Section 3.14    Recapitalization, Exchanges, etc.                        23
Section 3.15    Obligations Limited to Parties to this Agreement.                 23





REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT, dated as of _________________, 2021, (this “Agreement”), is made between Sequans Communications S.A., a French limited company (société anonyme) (the “Company”), and Lynrock Lake Master Fund LP, a Cayman Islands Exempted Limited Partnership (the “Investor”). The Investor and the Company are referred to hereinafter each as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, pursuant to a Securities Purchase Agreement dated as of April [7], 2021 between the Company and the Investor (the “Purchase Agreement”), the Investor purchased (i) a promissory note (the “Note”) convertible into the Company’s American Depositary Shares (“ADSs”), each currently representing four (4) ordinary shares of the Company, nominal value €0.02 per share (“Ordinary Shares”) and (ii) [7,272,724] Ordinary Shares represented by [1,818,181] ADSs (the “Shares”);

WHEREAS, the terms and conditions of the Investor’s right to subscribe for Ordinary Shares represented by ADSs issuable upon conversion of all or a portion of the Note (the “Conversion Shares”) are set forth in the Note; and

WHEREAS, the Parties are entering into this Agreement to set forth certain rights of the Investor relating to the registration of the Shares and the Conversion Shares.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I
REGISTRATION RIGHTS

Section 1.1    Registrations.

(a)    Transaction Shelf Registration Statement. Within thirty (30) days following the date of this Agreement, the Company shall file with the SEC a Shelf Registration Statement on Form F-3 (such Shelf Registration Statement shall be an ASRS to the extent that the Company is then ASR Eligible and, if the Company is not then eligible to register for resale the Registrable Securities on Form F-3, such registration shall be on another appropriate form) with respect to the registration under the Securities Act (the “Transaction Shelf Registration Statement”) of the resale of all the Registrable Securities. The Transaction Shelf Registration Statement shall include a Prospectus with a plan of distribution approved in advance by the Investor and shall be sufficient to permit the resale of all the Registrable Securities pursuant to the Investor’s intended method of disposition (including the resale of Registrable Securities into an existing trading market at other than a fixed price as permitted by Rule 415(a)(4)); provided that,


in the event the SEC does not permit such number of Registrable Securities to be registered under the Transaction Shelf Registration Statement, the number of Registrable Securities that shall be registered under the Transaction Shelf Registration Statement shall be the maximum number of Registrable Securities permitted by the SEC. Notwithstanding any other provision of this Agreement if the SEC sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement, unless otherwise directed in writing by the Investor as to its Registrable Securities, the Company shall first reduce or eliminate any securities to be included other than Registrable Securities. In the event of a cutback hereunder, the Company shall give the Investor at least five (5) Business Days prior written notice along with the number of excluded Registrable Securities. In the event the Company amends the Transaction Registration Statement or otherwise excludes Registrable Securities in accordance with the foregoing, the Company shall use its commercially reasonable efforts to file with the SEC, as promptly as possible, one or more Registration Statements on Form F-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Transaction Registration Statement, as amended, which shall also be deemed a Transaction Shelf Registration Statement hereunder. The Company shall use its commercially reasonable efforts to cause such Transaction Shelf Registration Statement to become effective as promptly as practicable (but in no event later than sixty (60) days after the date of this Agreement) and to keep the Transaction Shelf Registration Statement continuously effective subject to the Securities Act and the provisions of Section 1.3. The Company hereby represents that, as of the date hereof, it is eligible to use Form F-3 for primary offerings under General Instruction I.B(1) of Form F-3.

(b)    Registrable Securities in Form of ADSs. Notwithstanding anything to the contrary herein, unless the Company has previously caused the Ordinary Shares to be listed on a national securities exchange or trading system (it being acknowledged that the Company shall have no obligation to so list the Ordinary Shares) and a market exists for the Ordinary Shares not held in the form of ADSs, in any registration pursuant to this Section 1.1, any Registrable Securities sold pursuant thereto shall be in the form of ADSs.

(c)    Replacement Registration Statements. If the Transaction Shelf Registration Statement filed under Section 1.1(a) or any Registration Statement filed under this Section 1.1(c) ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend such Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the Registrable Securities covered by and not sold under the Transaction Shelf Registration Statement. If such a Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after such filing and to keep such Registration


Statement continuously effective during the Effectiveness Period, and such Registration Statement shall be deemed a Transaction Shelf Registration Statement hereunder.
Section 1.2    Expenses. Except as specifically provided herein, all Registration Expenses incurred in connection with the registration or offering and sale of the Registrable Securities shall be borne by the Company and all Selling Expenses shall be borne by the Investor; provided that, notwithstanding anything herein to the contrary, in no event shall the Investor bear or be responsible for any fees or expenses of the Company’s legal counsel in connection with the registration or offering and sale of Registrable Securities.

Section 1.3    Suspensions.

(a)    Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice (a “Notice of Suspension”) to the Investor (provided that in no event shall such notice contain any material, non-public information), to delay the filing or effectiveness of a Registration Statement or require the Investor to suspend the use of the Prospectus for sales of Registrable Securities under an effective Registration Statement for a reasonable period of time not to exceed, combined with any other suspensions under this Agreement, sixty (60) consecutive days or ninety (90) days in the aggregate in any twelve (12)-month period (a “Suspension Period”) if the Board determines in good faith that such filing, effectiveness or use would (i) require the public disclosure of material non-public information concerning any material transaction or negotiations involving the Company that would interfere with such material transaction or negotiations or (ii) otherwise materially interfere with material financing plans, acquisition activities or business activities of the Company; provided, that if at the time of receipt of such notice by the Investor, the Investor shall have sold all or a portion of the Registrable Securities pursuant to an effective Registration Statement and the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities Laws by the time such Registrable Securities are scheduled to be delivered. Immediately upon receipt of a Notice of Suspension, the Investor shall discontinue the disposition of Registrable Securities under an effective Registration Statement and Prospectus relating thereto until the Suspension Period is terminated.

(b)    The Company agrees that it will terminate any Suspension Period as promptly as reasonably practicable and will promptly notify in writing the Investor, to the extent it still beneficially owns Registrable Securities, of such termination (provided that in no event shall such notice contain any material, non-public information). After the expiration of any Suspension Period, and without the need for any further request from the Investor, the Company shall, as applicable and as promptly as reasonably practicable, prepare a post-effective amendment or supplement to such Registration Statement, the relevant Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration Statement or the Prospectus, as applicable,


will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Section 1.4    Registration Procedures. The Company will use its commercially reasonable efforts to effect the registration and the offer and sale of Registrable Securities in accordance with the intended method of disposition thereof as soon as reasonably practicable, and shall, in connection therewith:

(a)    prepare and promptly file with the SEC a Registration Statement (or a prospectus supplement, as applicable) with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;

(b)    (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement, (ii) cause any Prospectus or supplement thereto to be filed pursuant to Rule 424 under the Securities Act when so required and (iii) provide reasonable notice to the Investor to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate (provided that in no event shall such notice contain any material, non-public information);

(c)    (i) furnish to the Investor as far in advance as reasonably practicable before filing any Registration Statement contemplated by this Agreement or any Prospectus to be used in connection therewith or any supplement or amendment thereto, only upon request of the Investor, copies (or such requested portions of copies) of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide the Investor the opportunity to object to any information pertaining to the Investor and its plan of distribution that is contained therein and make the corrections reasonably requested by the Investor with respect to such information prior to filing a Registration Statement or any Prospectus to be used in connection therewith or supplement or amendment thereto, and (ii) furnish to the Investor, without charge, such number of copies of the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including each preliminary prospectus) and any other prospectuses filed under Rule 424 and each Free Writing Prospectus as such Persons reasonably may request in order to facilitate the sale of the Registrable Securities covered by such Registration Statement;



(d)    use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or “blue sky” Laws of such jurisdictions as the Investor reasonably shall request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Investor to consummate the disposition in such jurisdictions; provided, however, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;

(e)    enter into customary agreements and take such other actions as are reasonably requested by the Investor in order to expedite or facilitate the disposition of Registrable Securities;

(f)    if the Investor could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with a Registration Statement and any amendment or supplement thereof (an “Investor Underwriter Registration Statement”), then, at the Investor’s request, the Company will furnish to the Investor, on the date of the effectiveness of the Investor Underwriter Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (provided that such request shall not be more frequently than on an annual basis unless the Investor is offering Registrable Securities pursuant to an Investor Underwriter Registration Statement), (i) a “comfort letter”, dated such date, from the Company’s independent certified public accountants in form and substance as has been customarily given by independent certified public accountants to underwriters in underwritten offerings of securities by the Company, addressed to the Investor, (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of the Investor Underwriter Registration Statement, in form, scope and substance as has been customarily given in underwritten offerings of securities by the Company, including standard “10b-5” negative assurance for such offerings, addressed to the Investor and (iii) a standard officer’s certificate from the chief executive officer or chief financial officer, or other officers serving such functions, of the Company addressed to the Investor, as has been customarily given by such officers in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary in this Agreement, the Company will not name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act) in any Registration Statement or Investor Underwriter Registration Statement, as applicable, without the Investor’s consent. If the staff of the SEC requires the Company to name the Investor as an underwriter (as defined in Section 2(a)(11) of the Securities Act), and the Investor does not consent thereto, then the Investor’s Registrable Securities shall not be included on the applicable Registration Statement, and the Company shall have no further obligations hereunder with respect to Registrable Securities held by the Investor, unless the Investor has not had an opportunity to conduct customary underwriter’s due diligence with respect to the Company at the time the Investor’s consent is sought;



(g)    promptly notify the Investor: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of the Company’s draft responses thereto) from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” Laws of any jurisdiction or the initiation of any proceeding for such purpose (provided that in no event shall such notices under clauses (ii) or (iii) contain any material, non-public information unless consented to in advance by the Investor).

(h)    if at any time (i) any event or development shall occur or condition shall exist as a result of which the Registration Statement, the Prospectus or the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when such statements are made or the Prospectus or the Disclosure Package is delivered to a purchaser, not misleading, or (ii) it is necessary to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package to comply with Law, the Company will promptly notify the Investor (provided that in no event shall such notice contain any material, non-public information) and promptly prepare and file with the SEC (to the extent required) and furnish to the Investor such amendments or supplements to the Registration Statement, the Prospectus and the Disclosure Package as may be necessary so that the statements in the Registration Statement, the Prospectus and the Disclosure Package, as so amended or supplemented, will not include any untrue statement of a material fact or, in the light of the circumstances existing when such statements are made or the Prospectus or the Disclosure Package is delivered to a purchaser, be misleading, or so that the Registration Statement, the Prospectus and the Disclosure Package will comply with Law;

(i)    use its commercially reasonable efforts to make generally available to the Investor, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;



(j)    use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on the New York Stock Exchange (the “NYSE”) or, if not the NYSE, the primary trading market or any other national securities exchange on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed;

(k)    provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;

(l)    immediately notify the Investor, at any time when a Prospectus is required to be delivered under the Securities Act, of the occurrence or happening of any event as a result of which the Prospectus contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing (provided that in no event shall such notice contain any material, non-public information), and as promptly as reasonably practicable prepare and furnish to the Investor a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;

(m)    use its commercially reasonable efforts to cooperate with the Investor in the disposition of the Registrable Securities covered by such Registration Statement;

(n)    in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Investor or its legal counsel;

(o)    use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose (provided that in no event shall such notices under this clause (p) contain any material, non-public information unless consented to in advance by the Investor);

(p)    otherwise use its commercially reasonable efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Investor in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and


transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Registrable Securities to be sold from time to time as permitted by Law;

(q)    use its commercially reasonable efforts to cooperate with the Investor and its counsel in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, the NYSE or any other national securities exchange on which the Registrable Securities are listed;

(r)    pay the applicable filing fees covering the Registrable Securities in compliance with the SEC rules and to file such amendments or subsequent registration statements as may be required to maintain an effective registration statement for the relevant Effectiveness Period; and

(s)    if a Registration Statement is an ASRS that has been outstanding for at least three (3) years, at or prior to the end of the third (3rd) year, the Company shall refile a new ASRS covering the Registrable Securities which remain outstanding. If at any time when the Company is required to re-evaluate its ASR Eligible status or eligibility to use Form F-3 the Company determines that it is not ASR Eligible or eligible to use Form F-3, the Company shall use its commercially reasonable efforts to refile the Transaction Shelf Registration Statement on Form F-3 and, if such form is not available, Form F-1 (or other appropriate form) and keep the Transaction Shelf Registration Statement continuously effective subject to Section 1.3.

Section 1.5    Effectiveness Period. For purposes of this Article I, the period of distribution of Registrable Securities pursuant to a Registration Statement shall be deemed to extend until the sale of all Registrable Securities covered thereby (such period, the “Effectiveness Period”).

Section 1.6    Indemnification.

(a)    Indemnification Rights.

(i)    In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article I, the Company shall indemnify and hold harmless the Investor and each Person, if any, that controls the Investor within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, stockholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package,


any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, (B) any omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided that the Company shall not be liable to an Investor Registration Rights Indemnitee to the extent that any such Damages are directly caused by any untrue statement or omission (or alleged untrue statement or omission) made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in strict reliance upon and strictly in conformity with written information about the Investor furnished to the Company by or on behalf of the Investor expressly for use therein. This indemnity shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any Investor Registration Rights Indemnitee and shall survive the Transfer of securities by the Investor.

(ii)    The Investor shall indemnify and hold harmless the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors, officers and employees (each, a “Company Registration Rights Indemnitee”), to the fullest extent lawful, from and against any and all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or in any amendment or supplement thereto, (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, to the extent that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor expressly for use therein or (C) any violation or alleged violation by the Investor of the Securities Act, the Exchange Act, any foreign or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that in no event shall the obligations of the Investor hereunder exceed the net proceeds received by it from the sale of its Registrable Securities related to the matter in which Damages are sought. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such securities by the Investor.


(iii)    If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to an Investor Registration Rights Indemnitee or a Company Registration Rights Indemnitee, as applicable, with respect to any Damages referred to therein or is unenforceable or insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless as contemplated therein, then the Company or the Investor, as applicable, in lieu of indemnifying such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable by such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of such Damages in such proportion as is appropriate to reflect the relative fault of such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the Company or the Investor, as applicable, on the other hand, in connection with the statements or omissions which resulted in such Damages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or the Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; the Company and the Investor agree that it would not be just and equitable if contribution pursuant to this Section 1.6(a)(iii) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 1.6(a)(iii). No Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything herein to the contrary, in no event shall the liability of the Investor be greater in amount than the amount of net proceeds received by it from the sale of such Registrable Securities related to the matter in which indemnification or contribution for Damages are sought.

(b)    Notice of Reg Rights Claim.

(i)    As used in this Agreement, the term “Reg Rights Claim” means a claim for indemnification or contribution by or on behalf of any Company Registration Rights Indemnitee or Investor Registration Rights Indemnitee, as the case may be, for Damages under Section 1.6(a) (such Person making a Reg Rights Claim, a “Reg Rights Indemnified Person”). The Company (for its own Damages or for the Damages incurred by any other Company Registration Rights Indemnitee) or the Investor (for its own Damages or for the Damages incurred by


any other Investor Registration Rights Indemnitee), as applicable, shall give notice of a Reg Rights Claim under this Agreement pursuant to a written notice of such Reg Rights Claim executed by the Company or the Investor, as applicable (a “Notice of Reg Rights Claim”), and delivered to the Company or the Investor, as applicable (such receiving party, the “Reg Rights Indemnifying Person”), promptly after such Reg Rights Indemnified Person becomes aware of the existence of any potential claim by such Reg Rights Indemnified Person for indemnification arising out of or resulting from any item indemnified pursuant to the terms of Section 1.6(a)(i) or Section 1.6(a)(ii), as applicable; provided that the failure to timely give such notice shall not limit or reduce the Reg Rights Indemnified Person’s right to indemnification hereunder unless (and then only to the extent that) the Reg Rights Indemnifying Person’s defense of such Reg Rights Claim is actually materially and adversely prejudiced thereby.

(ii)    Each Notice of Reg Rights Claim shall: (A) state the aggregate amount (where practicable) that the Reg Rights Indemnified Person has incurred or paid in Damages arising from such Reg Rights Claim (which amount may include the amount of Damages claimed by a third party in an action (a “Third-Party Reg Rights Claim”) brought against such Reg Rights Indemnified Person based on alleged facts, which if true, would give rise to liability for Damages to such Reg Rights Indemnified Person); and (B) contain a brief description, in reasonable detail (to the extent reasonably available to the Reg Rights Indemnified Person) of the facts, circumstances or events giving rise to the alleged Damages based on the Reg Rights Indemnified Person’s good faith belief and knowledge thereof, including the identity and address of any third party claimant (to the extent reasonably available to the Reg Rights Indemnified Person).

(c)    Defense of Third-Party Reg Rights Claims.

(i)    Subject to the provisions hereof, the applicable Reg Rights Indemnifying Person shall have the right (at its own expense) to elect to defend and assume control of the defense of any Third-Party Reg Rights Claim on behalf of a Reg Rights Indemnified Person, utilizing legal counsel reasonably acceptable to such Reg Rights Indemnified Person. In the event such election is made, the Reg Rights Indemnified Person (unless itself controlling the Third-Party Reg Rights Claim in accordance with this Section 1.6(c)) may participate, through counsel of its own choice and, except as provided herein, at its own expense, in the defense of any Third-Party Reg Rights Claim. The reasonable and documented costs and expenses incurred by the Reg Rights Indemnifying Person in connection with such defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Reg Rights Indemnifying Person.



(ii)    A Reg Rights Indemnifying Person shall not be entitled to assume control of such defense, and the applicable Reg Rights Indemnified Person may assume the control and defense thereof, at the sole expense of the applicable Reg Rights Indemnifying Person, if (A) the Reg Rights Claim relates to, or arises in connection with, any criminal or governmental proceeding, action, indictment, allegation or investigation, (B) the Reg Rights Claim seeks an injunction against the Reg Rights Indemnified Person, to the extent that such defense relates to the claim for such injunction, (C) a conflict of interest between the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person exists with respect to the Reg Rights Claim or the Reg Rights Indemnifying Person and the Reg Rights Indemnified Person have one or more conflicting defenses, in the reasonable view of their respective counsel, or (D) the Reg Rights Indemnifying Person has elected to have the Reg Rights Indemnified Person defend, or assume the control and defense of, a Third-Party Reg Rights Claim in accordance with this Section 1.6(c); provided that in no event shall the Reg Rights Indemnifying Person be liable for the fees and expenses of more than one separate counsel for all Reg Rights Indemnified Persons, which counsel shall be selected by the Investor (in the case of the Investor Registration Rights Indemnitees) or by the Company (in the case of the Company Registration Rights Indemnitees).

(iii)    Any party controlling the defense of any Third-Party Reg Rights Claim pursuant hereto shall: (A) conduct the defense of such Third-Party Reg Rights Claim with reasonable diligence and keep the other parties reasonably informed of material developments in the Third-Party Reg Rights Claim at all stages thereof, (B) as promptly as reasonably practicable, submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other parties and their counsel to confer on the conduct of the defense thereof, and (D) permit the other parties and their counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties not controlling the defense will render to the party controlling the defense such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the party controlling the defense in connection therewith. The Reg Rights Indemnifying Person shall reimburse the parties not controlling the defense for any reasonable and documented costs and expenses incurred in connection with providing such assistance. Notwithstanding anything to the contrary in this Agreement, no Party shall be required to disclose any information to the other Party or its Representatives, if doing so would be reasonably expected to violate any Law to which such Party is subject or could jeopardize (in the reasonable discretion of the disclosing Party) any attorney-client privilege available with respect to such information.



(iv)    If the Reg Rights Indemnifying Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnifying Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim on the Reg Rights Indemnified Person’s behalf and without the consent of the Reg Rights Indemnified Person; provided that (A) such settlement shall not involve any injunctive relief binding upon the Reg Rights Indemnified Person or any of its Affiliates, (B) such settlement expressly and unconditionally releases the Reg Rights Indemnified Person and the other applicable Reg Rights Indemnified Persons (that is, each of the Company Registration Rights Indemnitees, if the Reg Rights Indemnified Person is a Company Registration Rights Indemnitee, and each of the Investor Registration Rights Indemnitees, if the Reg Rights Indemnified Person is an Investor Registration Rights Indemnitee) from any and all liabilities with respect to such Third-Party Reg Rights Claim, with prejudice and (C) the Reg Rights Indemnifying Person unconditionally acknowledges in writing to the Reg Rights Indemnified Person its obligation to pay all Damages of the Reg Rights Indemnified Person with respect to such Third-Party Reg Rights Claim. In all other events, the consent of the Reg Rights Indemnified Person shall be required to effect such a settlement (which consent shall not be unreasonably withheld, conditioned or delayed). If the Reg Rights Indemnified Person controls the defense of and defends any Third-Party Reg Rights Claim under this Section 1.6(c), the Reg Rights Indemnified Person shall have the right to effect a settlement of such Third-Party Reg Rights Claim only with the consent of the Reg Rights Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). No settlement by the Reg Rights Indemnified Person of such Third-Party Reg Rights Claim effected in accordance with this Section 1.6(c) shall limit or reduce the right of any Reg Rights Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Reg Rights Claim, to the extent such Damages are indemnifiable hereunder. As used in this Section 1.6(c)(iv), the term “settlement” refers to any consensual resolution of the claim in question, including by consent decree or by permitting any judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.

Section 1.7    Free Writing Prospectuses. Except for a Prospectus relating to Registrable Securities included in a Registration Statement, an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) prepared by the Company or other materials prepared by Company, the Investor represents and agrees that it (a) will not make any offer relating to the Registrable Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a Free Writing Prospectus, and (b) will not distribute any written materials in connection with the offer or sale pursuant to a Registration Statement of Registrable Securities, in each case, without the prior written consent of the Company.



Section 1.8    Information from and Obligations of the Investor. The Company’s obligation to include the Investor’s Registrable Securities in any Registration Statement or Prospectus is contingent upon the Investor:

(a)    furnishing to the Company in writing information with respect to its ownership of Registrable Securities and the intended method of disposition of its Registrable Securities as may be requested by the Company and as required by Law for use in connection with a Registration Statement or Prospectus (or any amendment or supplement thereto) and all information required to be disclosed in order to make the information the Investor previously furnished to the Company not contain a material misstatement of fact or necessary to cause such Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material fact with respect to the Investor necessary in order to make the statements therein not misleading;

(b)    complying in all material respects with (i) the Securities Act and the Exchange Act, (ii) all applicable state securities Laws, (iii) the rules of any securities exchange or trading market on which the Ordinary Shares or Ordinary Shares represented by ADSs are listed or traded, and (iv) all other applicable regulations, in each case, in connection with, and only to the extent applicable to, the registration and the disposition of Registrable Securities by the Investor;

(c)    following its actual knowledge thereof, notifying the Company of the occurrence of any event that makes any statement made in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus regarding the Investor untrue in any material respect or that requires the making of any changes in a Registration Statement, Prospectus, issuer free writing prospectus or other Free Writing Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements not misleading;

(d)    providing the Company with such information related to the Investor as may be required to enable the Company to prepare a supplement or post-effective amendment to any such Registration Statement or a supplement to such Prospectus or Free Writing Prospectus;

(e)    using commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement and any related Prospectus; and

(f)    furnishing the Company with all information required to be included in such Registration Statement or Prospectus by applicable securities Laws in connection with the disposition of such Registrable Securities as the Company reasonably requests.


Section 1.9    Rule 144 Reporting.


(a)    With a view to making available to the Investor the benefits of certain rules and regulations of the SEC which may permit the sale of the Note and the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to make and keep available adequate current public information, as defined in Rule 144(c), including all periodic and annual reports and other documents (other than Form 6-K reports) required of the Company under Sections 13 or 15(d) of the Exchange Act, and so long as the Investor beneficially owns the Note, any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Investor may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any Registrable Securities without registration.

(b)     For the avoidance of doubt, the Investor may sell the Note and any Registrable Securities in compliance with Rule 144, regardless of whether a Registration Statement has been filed with the SEC or is effective. The Company agrees to (i) make and keep public information available as those terms are understood and defined in Rule 144, (ii) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, and (iii) so long as the Investor beneficially owns the Note or any Registrable Securities or securities convertible into or exercisable for Registrable Securities, furnish to the Investor upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act.

Section 1.10    Termination of Registration Rights. Notwithstanding anything to the contrary contained herein, the registration rights granted under this Article I terminate and are of no further force and effect (other than Section 1.2 and Section 1.6), on the date on which there cease to be any Registrable Securities.

Section 1.11    Transfer of Registration Rights. The Investor shall have the right to Transfer to any Person (such Person, a “Transferee Investor”), directly or indirectly, by written agreement, all of its related rights and obligations granted under this Article I in connection with a Transfer of all of its Registrable Securities (or the Note) to such Person; provided, that in the case of Transfers to limited partners, members or Affiliates of the Investor, the Investor shall have the right to transfer its related rights and obligations under this Article I in connection with the Transfer of all or any portion of its Registrable Securities (or the Note).

ARTICLE II
TERMINATION

Section 2.1    Termination. This Agreement shall terminate upon the earlier of (i) the time when all of the Registrable Securities (A) are freely transferable under Rule 144 and the


securities laws of any other applicable jurisdiction without limitation, or any volume, manner-of-sale or other restrictions or conditions, without registration and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c) (or any similar rule then in force), as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Company’s transfer agent and the Investor, and (B) do not and/or shall not when issued (upon exercise, conversion or otherwise) bear a restrictive legend relating to the Securities Act or the securities laws of any other applicable jurisdiction or a restricted CUSIP and (ii) the mutual written agreement of the Investor and the Company.

Section 2.2    Effect of Termination; Survival. In the event of any termination of this Agreement pursuant to Section 2.1, this Agreement shall be terminated, and there shall be no further liability or obligation hereunder on the part of any Party, other than Section 1.6, Section 1.9, this Section 2.2 and Article III, which provisions shall survive such termination; provided, however, that nothing contained in this Agreement (including this Section 2.2) shall relieve a Party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent occurring prior to such termination.

ARTICLE III
GENERAL PROVISIONS

Section 3.1    No Confidential Information. In no event shall the Company or its Representatives provide any non-public records, books, Contracts, instruments, computer data or other data or information concerning the Company or its subsidiaries to the Investor unless the Investor has agreed to accept such information; provided that, if the Company needs to restructure the Note as part of a Change of Control (as defined in the Note), then the Investor agrees to use reasonable efforts to enter into a non-disclosure agreement and be temporarily restricted.

Section 3.2    Fees and Expenses. Except as provided in the Purchase Agreement, all expenses incurred by the Parties in connection with the negotiation, execution and delivery of this Agreement will be borne solely and entirely by the Party incurring such expenses.

Section 3.3    Notices. Except as may otherwise be provided herein, all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be conclusively deemed to have been duly given when sent by electronic mail to the address set forth below if sent between 8:00 am and 5:00 pm recipient’s local time on a Business Day, or on the next Business Day if sent by electronic mail other than between 8:00 am and 5:00 pm recipient’s local time.

If to the Company, addressed to it at:

Sequans Communications S.A.
15-55 boulevard Charles de Gaulle
Les Portes de la Défense
92700 Colombes


Republic of France
Email: cfo@sequans.com
Attention: Chief Financial Officer

With a copy (which shall not constitute notice) to:

Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Email:    bcooper@orrick.com
Attention: Brett Cooper

If to the Investor, addressed to it at:

Lynrock Lake Master Fund LP
c/o Lynrock Lake LP
2 International Dr
Suite 130
Rye Brook, NY 10573
Email: ops@lynrocklake.com, cp@lynrocklake.com, mike@lynrocklake.com
Attention: Cynthia Paul, Michael Manley

With copies (which shall not constitute notice) to each of the following:

Akin Gump Strauss Hauer & Feld LLP
2300 N. Field Street
Suite 1800
Dallas, TX 75201
Email: ahilkemann@akingump.com
Attention: Adam Hilkemann

Section 3.4    Definitions. For purposes of this Agreement, the following terms have the meanings indicated:

“Action” means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case, whether civil, criminal or investigative).

“Affiliate” of a specified Person means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that no portfolio company of the Investor shall be deemed to be an “Affiliate” of the Investor for purposes of Section 1.11.

“Agreement” has the meaning set forth in the preamble to this Agreement.



“ASR Eligible” means the Company meets or is deemed to meet the eligibility requirements to file an ASRS as set forth in the General Instruction to Form F-3.

“ASRS” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

“Board” or “Board of Directors” means the board of directors of the Company, or any duly authorized committee thereof.

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States, a legal holiday in the Republic of France or any day on which banking institutions in the State of California or in the Republic of France are authorized or required by law or other governmental action to close.

“Company” has the meaning set forth in the preamble to this Agreement.

“Company Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(ii).

“Contract” means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license, sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.

“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.

“controlling person” has the meaning set forth in Section 1.6(a)(i).

“Conversion Shares” has the meaning set forth in the recitals to this Agreement.

“Damages” means any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities, judgments, and reasonable and documented out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs

“Disclosure Package” means, with respect to any offering of Registrable Securities, (a) the preliminary Prospectus or Prospectus, as applicable, (b) each Free Writing Prospectus, and (c) all other information, in each case, that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of Registrable Securities at the time of sale of such securities.

“Effectiveness Period” has the meaning set forth in Section 1.5.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

“FINRA” means the Financial Industry Regulatory Authority, Inc. or any successor regulatory organization.

“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act relating to the Registrable Securities included in the applicable Registration Statement that has been approved for use by the Company.

“Governmental Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body of competent jurisdiction.

“Investor” has the meaning set forth in the preamble to this Agreement.

“Investor Underwriter Registration Statement” shall have the meaning set forth in Section 1.4(f).

“Investor Registration Rights Indemnitee” has the meaning set forth in Section 1.6(a)(

“issuer free writing prospectus” has the meaning set forth in Section 1.7.

“Law” any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law), statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.

“Note” has the meaning set forth in the recitals to this Agreement.

“Notice of Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).

“Notice of Suspension” has the meaning set forth in Section 1.3(a).

“NYSE” has the meaning set forth in Section 1.4(j).

“Order” means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena, writ, decree or verdict entered by or with any Governmental Entity.

“Ordinary Shares” has the meaning set forth in the recitals to this Agreement.

“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.



“Person” means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.

“Prospectus” means the prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference, or deemed to be incorporated by reference, into such prospectus.

“Process Agent” shall have the meaning set forth in Section 3.10(c).

“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.

“Reg Rights Claim” has the meaning set forth in Section 1.6(b)(i).

“Reg Rights Indemnified Person” has the meaning set forth in Section 1.6(b)(i).

“Reg Rights Indemnifying Person” has the meaning set forth in Section 1.6(b)(i).

“Registrable Securities” means (i) the Conversion Shares, including such Conversion Shares issuable in respect of the Accreted Principal Amount (as defined in the Note) and all accrued and unpaid interest through the maturity date of the Note, (ii) the Shares, (iii) any Ordinary Shares, Ordinary Shares represented by ADSs or other securities (A) which the Note (or any successor or replacement instrument or security), including the Accreted Principal Amount (as defined in the Note) and all accrued and unpaid interest, may be converted into or exchanged for through the maturity date of the Note or (B) issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares or other securities referenced in clauses (i) and (ii) above, and (iv) any ADSs in respect of any securities described in clause (i), (ii) or (iii) above; provided, that any such securities will cease to be Registrable Securities when (a) they are sold pursuant to a Registration Statement or (b) they are sold pursuant to Rule 144 (or any similar provisions then in force).

“Registration Expenses” means (whether or not any Registration Statement is declared effective or any of the transactions described herein is consummated) all expenses incurred by the Company in filing a Registration Statement, including, all registration and filing fees, fees and disbursements of counsel for the Company, SEC or FINRA registration and filing fees, all applicable ratings agency fees, expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration, fees and expenses of compliance with securities or “blue sky” Laws, costs of any comfort letters required by any underwriter, listing fees, printing, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, the Company’s internal expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on the NYSE or any other


securities exchange, roadshow expenses, all other expenses incident to the registration of the Registrable Securities; provided, that the term “Registration Expenses” does not include, and the Company shall not be responsible for, Selling Expenses.

“Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act filed with the SEC covering the resale of Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such Registration Statement.

“Representatives” means a Person’s officers, directors, employees, accountants, consultants, legal counsel, investment bankers, other advisors, authorized agents and other representatives.

“Rule 144” means Rule 144 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.

“Rule 415” means Rule 415 under the Securities Act or any replacement or successor rule promulgated under the Securities Act.

“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

“Selling Expenses” means, in connection with the registration or offering and sale of the Registrable Securities, (a) all underwriting fees, discounts and selling commissions fees, (b) stock transfer taxes applicable to the sale of the Registrable Securities, and (c) fees and expenses of any counsel to the Investor other than the counsel referred to in the definition of Registration Expenses.

“settlement” and “settle” have the meanings set forth in Section 1.6(c)(iv).

“Shelf Registration Statement” means a registration statement filed with the SEC for the sale of Registrable Securities pursuant to Rule 415.

“Suspension Period” has the meaning set forth in Section 1.3(a).

“Third-Party Reg Rights Claim” has the meaning set forth in Section 1.6(b)(ii).

“Transaction Shelf Registration Statement” has the meaning set forth in Section 1.1(a).

“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities.



“Transferee Investor” shall have the meaning set forth in Section 1.11.

Section 3.5    Interpretation; Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days” shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall limit the applicability of a more general provision, representation or warranty. It is the intent of the Parties that each representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent effect and that such provisions are cumulative. Any reference in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless otherwise specified.

Section 3.6    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Purchase Agreement, the Note and this Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated to the fullest extent possible.



Section 3.7    Entire Agreement; Amendments. This Agreement, the Purchase Agreement and the Note (including the schedules and exhibits hereto and thereto) constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed on behalf of the Parties.

Section 3.8    Assignment; No Third Party Beneficiaries. Except as expressly provided herein, including, without limitation, the transfer of rights and obligations as set forth in Section 1.11, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written consent of the other Party. Subject to the immediately preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 3.9    Further Assurances. Each Party shall cooperate, take such actions, enter into such agreements (including customary indemnification and contribution agreements) and execute such documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby; provided, however, that no Party shall be obligated to take any actions or omit to take any actions that would be inconsistent with applicable Law.

Section 3.10    Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.

(a)    This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates). Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by either party hereto, (b) agrees that service of process will be validly effected by sending notice in accordance with Section 3.3, (c) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the


above named courts, and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.

(b)    EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.

(c)    The Company agrees that service to the Process Agent (as defined below) or as otherwise specified in Section 3.3 shall be valid and sufficient service, and the Company waives any objections to such service. The Company hereby irrevocably designates GKL Corporate/Search, Inc., One Capitol Mall, Suite 660, Sacramento, California 95814 (the “Process Agent”), as the designee, appointee and agent of the Company to receive, for and on behalf of the Company, service of process for the purposes of this Section 3.10. The Company irrevocably waives any requirements for service abroad of process or other documents, including under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Company agrees that service of process in respect of it upon the Process Agent shall be deemed to be effective service of process upon it. The Company agrees that the failure of the Process Agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any Action based thereon. If for any reason the Process Agent shall cease to be available to act as such, the Company agrees to irrevocably appoint another such agent in New York City as its authorized agent for service of process, on the terms and for the purposes of this Section 3.10. Nothing herein shall in any way be deemed to limit the ability of the Investor to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable Law.

Section 3.11    Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form or any electronic signature complying with the U.S. federal ESIGN Act of 200, e.g., www.docusign.com) in counterparts, and by the Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.



Section 3.12    Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by the other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. Each Party further agrees that neither the other Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 3.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

Section 3.13    Waiver. Any party hereto entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.

Section 3.14    Recapitalization, Exchanges, etc.

(a)    The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares or other securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise), which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, stock splits, recapitalizations, pro rata distributions of stock and the like occurring after the date of this Agreement.

(b)    The Company agrees that it shall not effect or permit to occur any combination or subdivision of Ordinary Shares or other securities constituting Registrable Securities which would adversely affect the ability of the Investor to include such Registrable Securities in any registration contemplated by this Agreement or the marketability of such Registrable Securities in any such registration.

Section 3.15    Obligations Limited to Parties to this Agreement. Each of the Parties hereto covenants, agrees and acknowledges that no Person other than the Investor (and its transferees or assignees) and the Company shall have any obligation hereunder and that notwithstanding that an Investor is a limited partnership, limited liability company or other entity, no recourse under this Agreement shall be had against any former, current or future


director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of the Investor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of the Investor under this Agreement or for any claim based on, in respect of or by reason of such obligation or its creation.

[Signature Page Follows]



IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, as of the date first written above, by their respective officers thereunto duly authorized.


SEQUANS COMMUNICATIONS S.A.
By:                                
Name:
Title:



LYNROCK LAKE MASTER FUND LP
by: Lynrock Lake Partners LLC, its general partner

By:                            
Name: Cynthia Paul
Title:     Manager