EXPLANATORY NOTE
This Registration Statement of Valneva SE (the “Registrant”)
contains:
| · | a base prospectus which covers the offering, issuance and sale by the Registrant of the securities identified
below from time to time in one or more offerings, which together shall have an aggregate initial offering price not to exceed $200,000,000;
and |
| · | a
sales agreement prospectus supplement covering the offering, issuance and sale by the Registrant
of up to a maximum aggregate offering price of $75,000,000 (which amount is included in the
$200,000,000 aggregate offering price set forth in the base prospectus) of the Registrant’s
American Depositary Shares representing ordinary shares that may be issued and sold under
the Open Market Sale AgreementSM,
dated August 12, 2022, between the Registrant and Jefferies LLC. |
The base prospectus immediately follows this explanatory
note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in one or more prospectus supplements
to the base prospectus. The sales agreement prospectus supplement immediately follows the base prospectus.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 12, 2022
PROSPECTUS
$200,000,000
Ordinary
Shares
American Depositary Shares representing Ordinary Shares
Warrants to Purchase Ordinary Shares or American Depositary Shares
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $200,000,000 of our ordinary shares, including ordinary shares represented by American Depositary Shares, or ADSs, as well
as warrants to purchase ordinary shares or ADSs. These securities may be offered individually or in any combination.
This
prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We
will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements
will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information
contained in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated
by reference into this prospectus or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers.
For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in
this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities
with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees or
commissions and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities
and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our
ADSs are listed on the Nasdaq Global Select Market under the symbol “VALN.” On August 11, 2022, the last reported
sale price of the ADSs on the Nasdaq Global Select Market was $20.83 per ADS. Our ordinary shares are listed on Euronext Paris under
the symbol “VLA.” On August 11, 2022, the closing price of our ordinary shares on Euronext Paris was €10.01 per
ordinary share. Each ADS represents two ordinary shares. The applicable prospectus supplement will contain information, where
applicable, as to any other listing, if any, on the Nasdaq Global Select Market or any securities market or other securities exchange
of the securities covered by the prospectus supplement. There is currently no market through which warrants may be sold and purchasers
may not be able to resell warrants purchased under this prospectus. This may affect the pricing of any warrants in the secondary
market, the transparency and availability of trading prices, the liquidity of the warrants and the extent of issuer regulation.
Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities, where
applicable.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 5 of this prospectus under the caption “Risk Factors” and under the caption
“Risk Factors” in our most recent Annual Report on Form 20-F and any other reports or documents incorporated by reference
in this prospectus. We may also include specific risk factors in supplements to this prospectus under the caption “Risk
Factors.” This prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.
Owning
our securities may subject you to tax consequences both in France and in the United States. This prospectus and any applicable
prospectus supplement may not describe these tax consequences fully. You should read the tax discussion in any applicable prospectus
supplement. In addition, your ability to enforce civil liabilities under U.S. federal securities laws may be affected adversely
by the fact that we are incorporated under the laws of France, many of the members of our management board and supervisory board
and experts named in this prospectus are residents of France or elsewhere outside of the United States, and a substantial portion
of our assets and the assets of such persons are located outside the United States. See “Enforcement of Civil Liabilities.”
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2022.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form F-3 that we filed with the Securities and Exchange Commission, or SEC,
using a “shelf” registration process. Under this shelf registration process, we may offer ordinary shares, including
ordinary shares represented by ADSs, and warrants to purchase ordinary shares or ADSs, either individually or in combination,
in one or more offerings, with a total aggregate offering price of up to $200,000,000. This prospectus provides you with a general
description of the securities we may offer.
Each
time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that
we have incorporated by reference into this prospectus. You should read this prospectus, any applicable prospectus supplement
and any related free writing prospectus, together with the information incorporated herein by reference as described under the
heading “Incorporation of Documents by Reference,” before investing in any of the securities offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither
we, nor any agent, underwriter or dealer has authorized any person to give any information or to make any representation other
than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any related free
writing prospectus prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement
to this prospectus or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement
to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free
writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even
though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities
are sold, on a later date.
This
prospectus and the information incorporated herein by reference contain summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified
in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or
will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under the heading “Where You Can Find More Information.”
Unless
otherwise indicated in this prospectus, “Valneva,” “the company,” “our company,” “we,”
“us” and “our” refer to Valneva SE and its consolidated subsidiaries.
In
this prospectus, references to “euro” or “€” are to the legal currency of the countries of the European
Union, including the Republic of France, and references to “dollars,” “U.S. dollars” or “$”
are to the legal currency of the United States of America.
PROSPECTUS
SUMMARY
The
following summary highlights information contained elsewhere in this prospectus and does not contain all of the information that
you need to consider in making your investment decision. We urge you to read this entire prospectus, including the more detailed
consolidated financial statements, notes to the consolidated financial statements and other information incorporated by reference
from our other filings with the SEC or included in any applicable prospectus supplement or free writing prospectus. Investing
in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in
our most recent filings with the SEC including our Annual Reports on Form 20-F and reports on Form 6-K, as well as other information
in this prospectus and any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing
our securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well
as adversely affect the value of an investment in our securities.
Company
Overview
We
are a specialty vaccine company focused on the development, manufacturing and commercialization of prophylactic vaccines for infectious
diseases with significant unmet medical need. We take a highly specialized and targeted approach to vaccine development and then
apply our deep understanding of vaccine science to develop prophylactic vaccines to address these diseases. We have leveraged
our expertise and capabilities both to successfully commercialize two vaccines and to rapidly advance a broad range of vaccine
candidates into and through the clinic. We also
have a robust manufacturing and laboratory platform with facilities across Europe to meet our clinical and commercial needs, including
BioSafety Level 3 manufacturing and R&D facilities.
Our
clinical portfolio is composed of a number of highly differentiated vaccine candidates that are designed to provide preventative
solutions to diseases with high unmet need:
| ● | VLA15
is a Phase 3 vaccine candidate targeting Borrelia, the bacterium that causes Lyme disease,
under development in collaboration with Pfizer. VLA15 targets the six most
prevalent serotypes, or variations, of Borrelia in the United States and in Europe. Pending successful completion of the Phase 3
study, Pfizer could potentially submit a Biologics License
Application, or BLA, to the U.S.
Food and Drug Administration, or FDA, and Marketing Authorization Application to the European
Medicines Agency in 2025. |
| ● | VLA1553
targets the chikungunya virus and is currently the only chikungunya vaccine candidate
that successfully completed primary analysis in pivotal Phase 3 studies. These studies
will support submission of a BLA with the FDA, expected to be completed in the second half of 2022. |
| ● | VLA2001
is an inactivated, whole virus, dual-adjuvanted vaccine against the SARS-CoV-2 virus
that causes COVID-19 and is the only inactivated vaccine to have received a standard
marketing authorization in Europe. |
Our
commercial portfolio includes IXIARO (also marketed as JESPECT in Australia and New Zealand), indicated for the prevention of
Japanese encephalitis in travelers and military personnel, and DUKORAL, indicated for the prevention of cholera and, in Canada,
Switzerland, New Zealand and Thailand, prevention of diarrhea caused by ETEC, the leading causes of travelers’ diarrhea.
Corporate
Information
We
were incorporated on March 24, 1999 as a limited liability company and converted into a European Company (Societas Europaea,
or SE) on May 28, 2013. Our principal executive offices are located at 6 rue Alain Bombard, 44800 Saint-Herblain, France. We are
registered at the Nantes Trade and Companies Registry under the number 422 497 560. Our telephone number at our principal executive
offices is +33 2 28 07 37 10. We have eight wholly owned subsidiaries—Valneva Austria GmbH, a limited liability company
formed under the laws of Austria in 2013, Valneva Scotland Ltd., a private company limited by shares formed under the laws of
Scotland in 2003, Valneva USA, Inc., a Delaware corporation formed in 1997, Vaccines Holdings Sweden AB, a private limited company
formed under the laws of Sweden in 2014, Valneva Sweden AB, a private limited company formed under the laws of Sweden in 1992,
Valneva Canada, Inc., a corporation formed under the laws of Canada in 2015, Valneva UK Ltd., a private company formed under the
laws of England and Wales in 2015, and Valneva France SAS, a société par actions simplifiée formed
under the laws of France in 2019.
Our
agent for service of process in the United States is Valneva USA, Inc., 4550 Montgomery Avenue, Suite 460, Bethesda, MD 20878,
+ 1 301 556 4500.
The
SEC maintains a website that contains reports, proxy information statements and other information regarding issuers that file
electronically with the SEC. The address of that site is www.sec.gov. Our website address is www.valneva.com.
The reference to our website is an inactive textual reference only and information contained in, or that can be accessed through,
our website or any other website cited in this prospectus is not part of this prospectus.
Implications
of Being an Emerging Growth Company
We
qualify as an “emerging growth company” as defined in the U.S. Jumpstart Our Business Startups Act of 2012, or the
JOBS Act. As an emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are
otherwise applicable generally to public companies. These provisions include:
| ● | exemption
from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002; and |
| ● | to
the extent that we no longer qualify as a foreign private issuer, (1) reduced disclosure
obligations regarding executive compensation in our periodic reports and proxy statements
and (2) exemptions from the requirements of holding a non-binding advisory vote on executive
compensation, including golden parachute compensation. |
We
will cease to be an emerging growth company on December 31, 2022. Until then, we may choose to take advantage of some but not
all of these reduced burdens. To the extent that we take advantage of these reduced burdens, the information that we provide stockholders
may be different than you might obtain from other public companies in which you hold equity interests.
In
addition, under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time
as those standards apply to private companies. Since International Financial Reporting Standards make no distinction between public
and private companies for purposes of compliance with new or revised accounting standards, the requirements for our compliance
as a private company and as a public company are the same.
Implications
of Being a Foreign Private Issuer
We
are also considered a “foreign private issuer” under U.S. securities laws. In our capacity as a foreign private issuer,
we are exempt from certain rules under the U.S. Securities Exchange Act of 1934, as amended, or the Exchange Act, that impose
certain disclosure obligations and procedural requirements for proxy solicitations under Section 14 of the Exchange Act. In addition,
members of our management board and supervisory board and our principal shareholders are exempt from the reporting and “short-swing”
profit recovery provisions of Section 16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases
and sales of our securities. Moreover, we are not required to file periodic reports and financial statements with the SEC as frequently
or as promptly as U.S. companies whose securities are registered under the Exchange Act. In addition, we are not required to comply
with Regulation FD, which restricts the selective disclosure of material information.
We
may take advantage of these exemptions until such time as we are no longer a foreign private issuer. We will remain a foreign
private issuer until such time that more than 50% of our outstanding voting securities are held by U.S. residents and any of the
following three circumstances applies: (1) the majority of our executive officers or directors are U.S. citizens or residents;
(2) more than 50% of our assets are located in the United States; or (3) our business is administered principally in the United
States.
The
Securities We May Offer
Under
this prospectus, we may offer ordinary shares, including ADSs representing our ordinary shares, and warrants to purchase ordinary
shares or ADSs, either individually or in any combination, with a total aggregate offering price of up to $200,000,000, from time
to time at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you
with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities,
including, to the extent applicable:
| ● | designation
or classification; |
| ● | aggregate
principal amount or aggregate offering price; |
| ● | maturity,
if applicable; |
| ● | rates
and times of payment of interest or dividends, if any; |
| ● | redemption,
conversion or sinking fund terms, if any; |
| ● | voting
or other rights, if any; and |
| ● | conversion
or exercise prices, if any. |
The
prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated
by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in
this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents
or underwriters, we will include in the applicable prospectus supplement:
| ● | the
names of those agents or underwriters; |
| ● | applicable
fees and commissions to be paid to them; |
| ● | details
regarding over-allotment options, if any; and |
This
prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the
heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus,
and under similar headings in our Annual Report on Form 20-F for the year ended December 31, 2021 as updated by our subsequent
filings including our Reports on Form 6-K which are incorporated by reference into this prospectus, before deciding whether to
purchase any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each
of the risk factors could adversely affect our business, results of operations, financial condition and cash flows, as well as
adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose
all or part of your investment. Additional risks not presently known to us or that we currently believe are immaterial may also
significantly impair our business operations.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that are based on
our management’s beliefs and assumptions and on information currently available to our management. Discussions containing
these forward-looking statements may be found, among other places, in the sections titled “Information on the Company,”
“Risk Factors” and “Operating and Financial Review and Prospects” incorporated by reference from our most
recent Annual Report on Form 20-F and our interim financial reports furnished on Form 6-K with the SEC.
All
statements other than present and historical facts and conditions contained in this prospectus, including statements regarding
our future results of operations and financial positions, business strategy, plans and our objectives for future operations, are
forward-looking statements. When used in this prospectus, the words “anticipate,” “believe,” “can,”
“could,” “estimate,” “expect,” “intend,” “is designed to,” “may,”
“might,” “plan,” “potential,” “predict,” “objective,” “should,”
or the negative of these and similar expressions identify forward-looking statements. Forward-looking statements include, but
are not limited to, statements about:
| ● | timing
and expected outcomes of clinical trials, pre-clinical studies and regulatory submissions; |
| ● | expected
benefits of our approach to vaccine development, particularly with respect to our vaccine
candidates in development; |
| ● | estimates
and expectations regarding the impact of reduced order volumes of VLA2001 on our financial
statements, including potential future write-offs of inventory; |
| ● | our
expectations with respect to future investment in the development and commercialization
of VLA2001; |
| ● | the
potential safety and effectiveness of our vaccine candidates in development and, with
respect to VLA2001, the potential for this vaccine to complement other COVID-19 vaccines,
be used as a booster or be used to treat specific populations or age groups; |
| ● | our
ability to successfully develop, advance and commercialize our pipeline of product candidates; |
| ● | our
expectations and forecasts for sales of our approved products, particularly our COVID-19
vaccine, including order volumes and timing; |
| ● | the
present and future effects of the COVID-19 pandemic on our sales and operations, including
our expectations and assumptions regarding the resumption of travel and the future demand
for travel vaccines and COVID-19 vaccines; |
| ● | the
effectiveness and profitability of our collaborations and partnerships, our ability to
maintain our current collaborations and partnerships and our ability to enter into new
collaborations and partnerships; |
| ● | our
expectations related to future milestone and royalty payments and other revenue under
our collaborations and partnerships; |
| ● | our
ability to safely and effectively scale up our manufacturing capabilities and supply
a sufficient quantity of our products and product candidates; |
| ● | our
ability to meet our obligations under our various collaboration, partnership and distribution
arrangements and financing arrangements; |
| ● | our
estimate regarding future revenue, expenses, capital requirements and need for additional
financing; |
| ● | estimates
of market opportunity for our approved products and vaccine candidates; |
| ● | the
effects of increased competition as well as innovations by new and existing competitors
in our industry; |
| ● | our
ability to obtain, maintain, protect and enforce our intellectual property rights and
propriety technologies and to operate our business without infringing the intellectual
property rights and proprietary technology of third parties; |
| ● | regulatory
developments in the United States, Europe and other countries; |
| ● | statements
regarding future revenue, hiring plans, expenses, capital expenditures, capital requirements
and stock performance; and |
| ● | other
risks and uncertainties, including those listed in this prospectus under the caption
“Risk Factors.” |
You
should refer to the “Risk Factors” section contained in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus,
for a discussion of important factors that may cause our actual results to differ materially from those expressed or implied by
our forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements in this
prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may
be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements
as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time
frame or at all.
Except
as required by law, we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise.
You
should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to this prospectus
completely and with the understanding that our actual future results may be materially different from what we expect. We qualify
all of our forward-looking statements by these cautionary statements.
This
prospectus contains market data and industry forecasts that were obtained from industry publications. These data involve a number
of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. We have not independently verified
any third-party information. While we believe the market position, market opportunity and market size information included in
this prospectus is generally reliable, such information is inherently imprecise.
USE
OF PROCEEDS
We
will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Except as described
in any applicable prospectus supplement or in any free writing prospectuses that we may authorize to be provided to you in connection
with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered hereby to fund the
research and development of our product candidates, for working capital and for general corporate purposes. We may also use a
portion of the net proceeds to invest in or acquire businesses or technologies that we believe are complementary to our own, although
we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will
set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from
the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending these uses, we intend
to invest the net proceeds in investment-grade, interest-bearing securities.
PLAN
OF DISTRIBUTION
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions,
block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents
and/or (3) directly to one or more purchasers. We may distribute the securities from time to time in one or more transactions,
in accordance with applicable law and regulations and existing shareholders delegations of authority, at:
| ● | a
fixed price or prices, which may be changed from time to time; |
| ● | market
prices prevailing at the time of sale; |
| ● | prices
related to such prevailing market prices; or |
The
distribution of securities may be carried out, from time to time, in one or more transactions, including:
| ● | block
transactions and transactions on the Nasdaq Global Select Market or any other organized
market where such securities may be traded; |
| ● | purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant
to a prospectus supplement; |
| ● | ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| ● | sales
through an “at the market offering” as defined in Rule 415(a)(4) under
the Securities Act, into an existing trading market, on an exchange or otherwise; or |
| ● | sales
in other ways not involving market makers or established trading markets, including direct
sales to purchasers. |
Each
time that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe
the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price
of the securities and the proceeds to us, if applicable.
We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit
offers to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved
in the offer or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer,
as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the
time of resale.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement
with the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the
underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the
purchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting
commissions. The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in
the form of concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as
agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will
purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
We
will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealers or
agents in connection with the offering of the securities, and any concessions or commissions allowed by underwriters to participating
dealers. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters
within the meaning of the Securities Act of 1933, as amended, and any commissions received by them and any profit realized by
them on resale of the securities may be deemed to be underwriting commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they
may be required to make in respect thereof.
Sales
to or through one or more underwriters or agents in at-the-market offerings will be made pursuant to the terms of a distribution
agreement with the underwriters or agents. Such underwriters or agents may act on an agency basis or on a principal basis. During
the term of any such agreement, shares may be sold on a daily basis on any stock exchange, market or trading facility on which
the ADSs are traded, in privately negotiated transactions or otherwise as agreed with the underwriters or agents. The distribution
agreement will provide that any ADSs sold will be sold at negotiated prices or at prices related to the then prevailing market
prices for our ADSs. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined
at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we may also
agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our ADSs or other securities.
The terms of each such distribution agreement will be described in a prospectus supplement.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities,
which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances,
these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their
over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing
the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating
in the offering may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which
might otherwise prevail in the open market. These transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course
of their business.
DESCRIPTION
OF SHARE CAPITAL
The
following description of the ordinary shares, the American Depositary Shares and the articles of association, or bylaws, of Valneva
SE (“Valneva,” the “Company,” “us” or “we”) is a summary and does not purport
to be complete. This summary is subject to, and qualified in its entirety by reference to, the complete text of the Company’s
bylaws, which are filed as Exhibit 3.1 to the registration statement of which this prospectus forms a part. The Company encourages
you to read the Company’s bylaws carefully.
As
of July 31, 2022, Valneva had the following series of securities registered pursuant to Section 12(b) of the Securities Exchange
Act of 1934, as amended, or the Exchange Act:
|
|
|
Title
of Each Class |
Trading
Symbol |
Name
of Each Exchange on Which
Registered |
Ordinary
Shares, nominal value €0.15 per share* |
* |
The
Nasdaq Global Select Market* |
American
Depositary Shares, each representing two ordinary shares, nominal value €0.15 per ordinary share |
VALN |
The
Nasdaq Global Select Market |
*
Not for trading, but only in connection with the registration of the American Depositary Shares.
ORDINARY
SHARES
As
of July 31, 2022, our issued share capital consisted of a total of 117,331,343 ordinary shares with a nominal value of €0.15
per share and 20,514 preferred shares convertible into ordinary shares, also with a nominal value of €0.15 per preferred
share. Of these 117,331,343 issued ordinary shares, 117,207,021 shares are outstanding and 124,322 are treasury shares.
The
description below reflects the terms of our bylaws and summarizes the material rights of holders of our ordinary shares under
French law. Please note that this is only a summary and is not intended to be exhaustive. For further information, please refer
to the full text of our bylaws, which are filed as Exhibit 3.1 to the registration statement of which this prospectus forms a
part.
Business
Purpose
Our
business purpose, within France and in every country is the following:
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● |
research
and development within the field of biomedicine and pharmacy; |
|
● |
commercial
exploitation of patents and know-how; |
|
● |
trading
in products of all kinds, and the provision of services in the field of data processing and information technology; |
|
● |
production,
monitoring and marketing of all products, services and research programs with applications to human and animal health, using
the technologies of molecular and cellular biology and all of the associated techniques; |
|
● |
participation
of the Company by all means, direct or indirect, in all operations which may be associated with its company object, though
the creation of new companies, contributions, subscription or purchase of securities or company rights, mergers or otherwise,
the creation, acquisition, leasing, lease management of all patents regarding these activities, within France and abroad; |
and
more generally, all industrial, commercial or financial, securities or property operations, which may be directly or indirectly
associated with its business object or likely to favor its exploitation, realization or development.
Management
Board
The
Management Board is responsible for our management and is composed of a minimum of two members and a maximum of seven members
who perform their duties under the supervision of the Supervisory Board.
Members
of the Management Board
The
members of the Management Board are appointed or have their appointments renewed by the Supervisory Board. The members of the
Management Board must be individuals. They are not required to be shareholders. They may be French citizens or citizens of other
countries. Members of the Management Board cannot be members of the Supervisory Board.
The
maximum age for being a member of the Management Board and the limitations on having such an appointment concurrently with an
appointment in another company are subject to our bylaws and the applicable legal and regulatory provisions. The age limit for
the exercise of duties for a member of the Management Board is seventy years of age. A member of the Management Board is deemed
to have resigned automatically at the end of the financial year during which the member reaches such age.
The
term of office for the members of the Management Board is three years and may be renewed. If there is a vacancy, the Supervisory
Board must fill the vacancy within two months. The replacement is appointed for the time remaining until the Management Board
is up for renewal. A member of the Supervisory Board may be appointed by the Supervisory Board to exercise the duties of a member
of the Management Board for the remaining period until the renewal of the Management Board, provided that such period lasts no
more than six months. During this period, the duties of the party in question on the Supervisory Board shall be suspended.
The
members of the Management Board may be removed from office, with or without cause, by the Supervisory Board or at any General
Meeting of shareholders, by a simple majority vote.
Chairman
of the Management Board
The
Supervisory Board elects a Chairman from among the members of the Management Board to serve for the duration of his appointment
as a member of the Management Board. The Chairman of the Management Board represents us in our relations with third parties.
The
Supervisory Board may assign this power of representation to one or more other members of the Management Board. Assignees have
the title of Managing Director.
Meetings
and Powers of the Management Board
The
Management Board meets as often as is in the Company’s interest and is required to submit a report to the Supervisory Board
at least once per quarter which summarizes the principal actions or events occurring in the management of the Company. Meetings
are called by the Management Board’s Chairman, its Directeur Général or by at least half of its members.
At
least half of the members of the Management Board must be present to constitute a quorum and decisions are made by a majority
of the members of the Management Board present or represented, unless the Management Board has only two members, in which case
decisions must be unanimous. In the case of a tie vote, the Chairman of the Management Board shall have the deciding vote.
The
Management Board has broad power to act under all circumstances on our behalf. It exercises this power within the limits of our
business purpose and subject to any powers expressly given to the Supervisory Board and Shareholders’ Meetings by law and
according to our bylaws, and abiding by any restrictions on powers decided by the Supervisory Board.
Compensation
of the Management Board
The
method and amount of compensation for each member of the Management Board is determined by the Supervisory Board when appointing
such member.
Supervisory
Board
Members
of the Supervisory Board
The
Management Board is supervised by a Supervisory Board made up of a minimum of three members and a maximum of eighteen. The members
of the Supervisory Board are appointed for a renewable term of three years at the General Meeting of shareholders, which may revoke
their appointments at any time. The appointees are selected from among the shareholders and may be individuals or companies. Members
of the Supervisory Board cannot be members of the Management Board.
The
maximum age for membership on the Supervisory Board is eighty years old.
Chairman
of the Supervisory Board
The
Supervisory Board appoints from its members who are individuals a Chairman and a Deputy Chairman, who are in charge of convening
the Supervisory Board meetings and, as the case may be, directing its discussions.
In
a report to the General Meeting of shareholders attached to the Management Board’s Management Report, the Chairman of the
Supervisory Board reports on the conditions for preparing and organizing the work of the Supervisory Board as well as the internal
control procedures set up by us.
Meetings
and Powers of the Supervisory Board
The
Supervisory Board meets as often as is in our interests but least once per quarter. Meetings are called by the Chairman or Deputy
Chairman, or by a member of the Supervisory Board, under the circumstances and according to the conditions set forth in the bylaws.
The Chairman shall convene the Supervisory Board at a date which may not be later than fifteen days when at least one member of
the Management Board or at least one third of the members of the Supervisory Board submit a substantiated request to do so.
Supervisory
Board meetings may also be held (i) by videoconference or any other electronic means of telecommunication or remote transmission,
or (ii) by written decision on the conditions and within the limits provided for by law.
At
least half of the members of the Supervisory Board must be present to constitute a quorum and decisions are made by a majority
of the members of the Supervisory Board present or represented. In the case of a tie vote, the Chairman of the Supervisory Board
shall have the deciding vote.
The
Supervisory Board exercises permanent control over our management by the Management Board and the powers explicitly conferred
on it by the French laws. It alone has the authority to authorize certain significant transactions.
Under
French law, any agreement entered into, directly or through an intermediary, between us and one of the members of the Management
Board or Supervisory Board, or a shareholder that holds over 10% of the voting rights, or, if such shareholder is a company, the
controlling company thereof, must be subject to prior authorization from the Supervisory Board. The interested member cannot vote
on such decision. The same applies to agreements in which a person referred above has an indirect interest. Such prior authorization
also applies to agreements between us and another company if one of the members of our Management Board or Supervisory Board is
the owner, a partner with unlimited liability, manager, director, managing director, member of the Management Board or of the
Supervisory Board, or, in a general manner is in a position of responsibility within the other company. These provisions are not
applicable to agreements concerning ordinary operations entered into under normal conditions.
Compensation
of the Supervisory Board
Compensation
for attendance at board meetings is determined at the annual ordinary General Meeting. The General Meeting of shareholders may
allocate an annual fixed sum and our Supervisory Board allocates this sum among its members as it sees fit. In addition, the Supervisory
Board may allocate exceptional compensation (rémunération exceptionnelle) for missions or mandates entrusted
to its members; in this case, this remuneration is subject to the provisions regarding related-parties agreements.
Committees
The
Supervisory Board may decide to establish committees responsible for reviewing matters which the Supervisory Board or its Chairman
wish to submit to them for examination and advice.
Supervisory
Board Observers
The
Supervisory Board may appoint one or more observers.
The
observers may attend all Supervisory Board meetings, with the right to speak but not to vote. They hold the same information and
communication rights as the Supervisory Board’s members and they are bound to the same confidentiality obligations.
Rights
and Obligations Attached to Ordinary Shares
Each
of our ordinary shares gives the right to a share of the profits and assets in proportion to the amount of capital it represents.
It also gives the right to vote and be represented in the General Meeting of shareholders under the conditions set forth by the
law and the bylaws.
If
we are liquidated, any assets remaining after payment of the debts, liquidation expenses and all of the remaining obligations
will first be used to repay in full the par value of our ordinary shares. Any surplus will be distributed pro rata among shareholders
in proportion to the number of ordinary shares respectively held by them, taking into account, where applicable, of the rights
attached to ordinary shares of different classes.
Shareholders
are liable for corporate liabilities only up to the par value of the ordinary shares they hold; they are not liable to further
capital calls.
We
have not issued any ordinary shares giving holders privileged rights compared to those attached to other ordinary shares.
Shareholders’
rights may be modified as allowed by French law. Only the extraordinary shareholders’ meeting is authorized to amend any
and all provisions of our bylaws. It may not, however, increase shareholder commitments without the prior approval of each shareholder.
Voting
Rights
The
voting rights attached to the ordinary shares are in proportion to the amount of capital they represent and each share gives the
right to one vote. However, ordinary shares fully paid up and evidenced as having been held in registered form in the name of
the same shareholder for at least two years, carry a double voting right in respect to that granted to other ordinary shares,
according to the portion of share capital they represent. The ownership of a share implies, ipso facto, the acceptance of our
bylaws and any decision of our shareholders. However, ADSs are not eligible for double voting rights.
Under
French law, treasury shares or ordinary shares held by entities controlled by us are not entitled to voting rights and do not
count for quorum purposes.
They
is no limitation on voting rights in our bylaws nor limit the right of non-residents of France or non-French persons to own or,
where applicable, to vote our securities.
Under
French law, the holders of warrants of the same class (i.e., warrants that were issued at the same time and with the same rights),
including founders’ warrants, are entitled to vote as a separate class at a general meeting of that class of warrant holders
under certain circumstances, principally in connection with any proposed modification of the terms and conditions of the class
of warrants or any proposed issuance of preferred shares or any modification of the rights of any outstanding class or series
of preferred shares.
Dividends
We
may only distribute dividends out of our distributable profits, plus any amounts held in our reserves that the shareholders decide
to make available for distribution, other than those reserves that are specifically required by law. The conditions for payment
of dividends in cash shall be set at the shareholders’ meeting.
“Distributable
Profits” consist of our statutory net profit in each fiscal year, calculated in accordance with accounting standards applicable
in France, as increased or reduced by any profit or loss carried forward from prior years, less any contributions to the reserve
accounts. Pursuant to French law, we must allocate at least 5% of our statutory net profit for each year to our legal reserve
fund before dividends may be paid with respect to that year. Such allocation is compulsory until the amount in the legal reserve
is equal to 10% of the aggregate par value of our issued and outstanding share capital.
Dividends
are distributed to shareholders pro rata according to their respective holdings of ordinary shares. In the case of interim dividends,
distributions are made to shareholders on the date set by our Management Board during the meeting in which the distribution of
interim dividends is approved. The actual dividend payment date is decided by the shareholders at an ordinary general shareholders’
meeting or by our Management Board in the absence of such a decision by the shareholders. Shareholders that own ordinary shares
on the actual payment date are entitled to the dividend.
Pursuant
to French law, dividends must be paid within a maximum of nine months after the close of the relevant fiscal year, unless extended
by court order. Dividends not claimed within five years after the payment date shall be deemed to expire and revert to the French
state.
Shareholders
may be granted an option to receive dividends in cash or in ordinary shares, in accordance with legal conditions.
Change
in Share Capital
Any
change to the capital or the rights attached to the ordinary shares is subject to legal provisions, as our bylaws do not set forth
any particular requirements.
Increase
in Share Capital
Pursuant
to French law, our share capital may be increased only with shareholders’ approval at an extraordinary general shareholders’
meeting following the recommendation of our Management Board. The shareholders may delegate to our Management Board either the
authority (délégation de compétence) or the power (délégation de pouvoir) to
carry out any increase in share capital.
Increases
in our share capital may be effected by:
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● |
issuing
additional shares; |
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● |
increasing
the nominal value of existing shares; |
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creating
a new class of equity securities (preference shares); and |
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exercising
the rights attached to securities giving access to the share capital. |
Increases
in share capital by issuing additional securities may be effected through one or a combination of the following issuances:
|
● |
in
consideration for cash; |
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● |
in
consideration for assets contributed in kind; |
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● |
through
an exchange offer or merger; |
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● |
by
conversion of previously issued debt instruments; |
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● |
by
exercise of the rights attached to securities giving access to the share capital; |
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● |
by
capitalization of profits, reserves or share premium; and |
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● |
subject
to certain conditions, by way of offset against debt incurred by us. |
Decisions
to increase the share capital through the capitalization of reserves, profits and/or share premium require shareholders’
approval at an extraordinary general shareholders’ meeting, acting under the quorum and majority requirements applicable
to ordinary shareholders’ meetings. Increases effected by an increase in the nominal value of shares require unanimous approval
of the shareholders, unless effected by capitalization of reserves, profits or share premium. All other capital increases require
shareholders’ approval at an extraordinary general shareholders’ meeting acting under the regular quorum and majority
requirements for such meetings.
Reduction
in Share Capital
Pursuant
to French law, any reduction in our share capital requires shareholders’ approval at an extraordinary general shareholders’
meeting following the recommendation of our Management Board. The share capital may be reduced either by decreasing the nominal
value of the outstanding shares or by reducing the number of outstanding shares. The number of outstanding shares may be reduced
by the repurchase and cancellation of shares. Holders of each class of shares must be treated equally unless each affected shareholder
agrees otherwise, depending on the contemplated operations.
Preferential
Subscription Rights
According
to French law, if we issue additional securities for cash, current shareholders will have preferential subscription rights to
these securities on a pro rata basis. Preferential subscription rights entitle the individual or entity that holds them to subscribe
pro rata based on the number of shares held by them to the issuance of any securities increasing, or that may result in an increase
of, our share capital by means of a cash payment or a set-off of cash debts. Pursuant to French law, the preferential subscription
rights are transferable during a period equivalent to the subscription period relating to a particular offering but starting two
days prior to the opening of the subscription period and ending two days prior to the closing of the subscription period.
The
preferential subscription rights with respect to any particular offering may be waived at an extraordinary general meeting by
a two-thirds vote of our shareholders or individually by each shareholder.
Our
Management Board and our independent auditors are required by French law to present reports to the shareholders’ meeting
that specifically address any proposal to waive the preferential subscription rights.
Form,
Holding and Transfer of Shares
Form
of Shares
The
ordinary shares are held under registered or bearer form, if the legislation so permits, according to the shareholder’s
choice. The preferred shares convertible into ordinary shares are held under registered form.
Further,
in accordance with applicable laws, we may request at any time from the central depository responsible for holding our shares,
the information referred to in Article L. 228-2 of the French Commercial Code. Thus, we are, in particular and at any time, entitled
to request the name and year of birth or, in the case of a legal entity, the name and the year of incorporation, nationality and
address of holders of securities conferring immediate or long-term voting rights at its shareholders’ meeting and the amount
of securities owned by each of them and, where applicable, the restrictions that the securities could be affected by.
Holding
of Shares
In
accordance with French law concerning the “dematerialization” of securities, the ownership rights of shareholders
are represented by book entries instead of share certificates. Shares issued are registered in individual accounts opened by us
or any authorized intermediary, in the name of each shareholder and kept according to the terms and conditions laid down by the
legal and regulatory provisions.
Ownership
of ADSs by Non-French Residents
Neither
the French Commercial Code nor our bylaws currently impose any restrictions on the right of non-French residents or non-French
shareholders to own and vote shares. However, non-French residents must file a declaration for statistical purposes with the Bank
of France (Banque de France) within 20 working days following the date of certain direct foreign investments in us, including
any purchase of our ADSs. In particular, such filings are required in connection with investments exceeding €15,000,000 that
lead to the acquisition of at least 10% of our share capital or voting rights or cross such 10% threshold. Violation of this filing
requirement may be sanctioned by five years of imprisonment and a fine of up to twice the amount of the relevant investment. This
amount may be increased fivefold if the violation is made by a legal entity.
Further,
any investment:
(i)
by (a) any non-French citizen, (b) any French citizen not residing in France, (c) any non-French entity or (d) any French entity
controlled by one of the aforementioned persons or entities;
(ii)
that will result in the relevant investor (a) acquiring control of an entity registered in France, (b) acquiring all or part of
a business line of an entity registered in France, or (c) for non-EU or non-EEA investors crossing, directly or indirectly, alone
or in concert, a 25% threshold of voting rights in an entity registered in France; and
(iii)
developing activities in certain strategic industries related to (a) activity likely to prejudice national defense interests,
participating in the exercise of official authority or are likely to prejudice public policy and public security (including weapons,
double-use items, IT systems, cryptology, date capturing devices, gambling, toxic agents or storage of data), (b) activities relating
to essential infrastructure, goods or services (including energy, water, transportation, space, telecom, public health, farm products
or media), and (c) research and development activity related to critical technologies (including cybersecurity, artificial intelligence,
robotics, additive manufacturing, semiconductors, quantum technologies, energy storage or biotechnology) or dual-use items,
is
subject to the prior authorization of the French Ministry of Economy, which authorization may be conditioned on certain undertakings.
In
the context of the ongoing COVID-19 pandemic, the Decree (décret) n°2020 892 dated July 22, 2020, as amended
(i) on December 28, 2020 by the Decree n° 2020-1729 and (ii) on December 22, 2021 by the Decree n° 2021-1758, has created
until December 31, 2022 a new 10% threshold of the voting rights for the non-European investments made (i) in an entity with its
registered office in France and (ii) whose shares are admitted to trading on a regulated market, in addition to the 25% above-mentioned
threshold. A fast-track procedure shall apply for any non-European investor exceeding this 10% threshold who will have to notify
the Minister of Economy who will then have 10 days to decide whether or not the transaction should be subject to further examination.
In
the absence of such authorization, the relevant investment shall be deemed null and void. The relevant investor may be found criminally
liable and may be sanctioned with a fine not to exceed the greater of the following amounts: (i) twice the amount of the relevant
investment, (ii) 10% of the annual turnover before tax of the target company or (iii) €5 million (for a company) or €1
million (for a natural person).
Foreign
Exchange Controls
Under
current French foreign exchange control regulations there are no limitations on the amount of cash payments that we may remit
to residents of foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments
or transfers of funds made by a French resident to a non-resident such as dividend payments be handled by an accredited intermediary.
All registered banks and substantially all credit institutions in France are accredited intermediaries.
Availability
of Preferential Subscription Rights
While
our current shareholders waived their preferential subscription rights with respect to certain offerings at a shareholders’
general meeting held on June 23, 2022, in the future our shareholders will have preferential subscription rights. Under French
law, shareholders have preferential rights to subscribe for cash issues of new ordinary shares or other securities giving rights
to acquire additional ordinary shares on a pro rata basis. Holders of our securities in the United States (which may be in the
form of ordinary shares or ADSs) may not be able to exercise preferential subscription rights for their securities unless a registration
statement under the Securities Act is effective with respect to such rights or an exemption from the registration requirements
imposed by the Securities Act is available. We may, from time to time, issue new ordinary shares or other securities giving rights
to acquire additional ordinary shares (such as warrants) at a time when no registration statement is in effect and no Securities
Act exemption is available. If so, holders of our securities in the United States will be unable to exercise any preferential
subscription rights and their interests will be diluted. We are under no obligation to file any registration statement in connection
with any issuance of new ordinary shares or other securities. We intend to evaluate at the time of any rights offering the costs
and potential liabilities associated with registering the rights, as well as the indirect benefits to us of enabling the exercise
by holders of ADSs in the United States of the subscription rights, and any other factors we consider appropriate at the time,
and then to make a decision as to whether to register the rights. We cannot assure you that we will file a registration statement.
For
holders of our ordinary shares in the form of ADSs, the depositary may make these rights or other distributions available to ADS
holders. If the depositary does not make the rights available to ADS holders and determines that it is impractical to sell the
rights, it may allow these rights to lapse. In that case the holders will receive no value for them. The section herein titled
“Description of American Depositary Shares—Dividends and Distributions” explains in detail the depositary’s
responsibility in connection with a rights offering. See also “Risk Factors—Your right as a holder of ADSs to
participate in any future preferential subscription rights offering or to elect to receive dividends in shares may be limited,
which may cause dilution to your holdings” in our Annual Report on Form 20-F.
Assignment
and Transfer of Shares
Shares
are freely negotiable, subject to applicable legal and regulatory provisions. French law notably provides for standstill obligations
and prohibition of insider trading.
Repurchase
and Redemption of Ordinary Shares
Under
French law, we may acquire our own ordinary shares. Such acquisition may be challenged on the ground of market abuse regulations.
However, Market Abuse Regulation 596/2014 of April 16, 2014 and its delegated regulations, or MAR, provides for safe harbor exemptions
when the acquisition is made (i) under a buy-back program to be authorized by the shareholders in accordance with the provisions
of Article L. 225-209 of the French Commercial Code and with the General Regulations of the French Financial Markets Authority,
or AMF and (ii) for the following purposes:
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● |
to
decrease our share capital, with the approval of the shareholders at an extraordinary general meeting; in this case, the ordinary
shares repurchased must be cancelled within one month from the expiry of the purchase offer; |
|
● |
to
meet obligations arising from debt securities that are exchangeable into equity instruments; |
|
● |
to
provide ordinary shares for distribution to employees or managers under a profit-sharing, free ordinary share or share option
plan; or |
|
● |
we
benefit from a simple exemption when the acquisition is made under a liquidity contract complying with the General Regulations
of, and market practices accepted by, the AMF. |
All
other purposes, and especially share buy-backs made for external growth operations in pursuance of Article L. 225-209 of the French
Commercial Code, while not forbidden, must be pursued in strict compliance of market manipulation and insider dealing rules.
Under
MAR and in accordance with the General Regulations of the AMF, a corporation shall report to the competent authority of the trading
value on which the shares have been admitted to trading or are traded, no later than by the end of the seventh daily market session
following the date of the execution of the transaction, all the transactions relating to the buy-back program, in a detailed form
and in an aggregated form.
No
such repurchase of ordinary shares may result in us holding, directly or through a person acting on our behalf, more than 10%
of our issued share capital. Ordinary shares repurchased by us continue to be deemed “issued” under French law but
are not entitled to dividends or voting rights so long as we hold them directly or indirectly, and we may not exercise the preemptive
rights attached to them.
Sinking
Fund Provisions
Our
bylaws do not provide for any sinking fund provisions.
General
Meeting of Shareholders
General
Meetings of shareholders are called by the Management Board, or failing that, by the Supervisory Board. They can also be called
by the auditor(s) or an officer appointed by a court upon request, by any interested party or by the Works Council in an emergency,
by one or more shareholders holding at least five percent of the ordinary shares or by an association of our shareholders. Meetings
are held at our registered offices or at any other location indicated in the convening notice.
The
meeting is published in the French Bulletin of Mandatory Legal Notices (Bulletin des Annonces Légales Obligatoires or
BALO) at least 35 days prior to the date of a General Meeting of shareholders. In addition to the information concerning us, the
notice indicates in particular the agenda of the General Meeting of shareholders and the draft resolutions that will be presented.
In
the 21 days preceding the meeting, we will publish the information and documents relating to the meeting on our web site.
The
General Meeting of shareholders must be announced at least 15 days beforehand, by a notice placed in a journal that publishes
legal announcements in the department where the headquarters are located, and in the BALO. Holders of registered ordinary shares
who have owned them for at least one month as of the date on which the latest notice is published receive individual notices.
When a General Meeting of shareholders is unable to take action because the requisite quorum is not present, a second meeting
is called at least ten days in advance using the same procedure as the first one.
The
General Meeting of shareholders may only take action on items on the agenda. However, it may dismiss and replace one or more members
of the Supervisory Boards any time. The General Meeting may also dismiss the members of the Management Board. One or more shareholders
representing at least the percentage of share capital fixed by law, and acting according to the legally required conditions and
deadlines, are allowed to request that items and/or draft resolutions be added to the agenda of the General Meeting of shareholders.
Each
shareholder has the right to attend the meetings and take part in deliberation (i) personally; (ii) by granting proxy to another
shareholder, his or her spouse or partner in a civil union or any other natural or legal person of his or her choice; (iii) by
sending a proxy to the company without indication of the beneficiary; (iv) by voting by correspondence; or (v) by videoconference
or another means of telecommunication, including internet, in accordance with applicable laws and regulations that allow identification;
by presenting proof of identity and ownership of ordinary shares, subject to:
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● |
for
holders of registered ordinary shares, an entry in the shareholder registry at least two business days before the General
Meeting of shareholders; and |
|
● |
for
holders of bearer ordinary shares, filing, under the conditions provided by law, of a certificate of participation issued
by an authorized intermediary two days before the date of the General Meeting of shareholders. |
The
final date for returning voting ballots by correspondence is set by the Management Board and disclosed in the notice of meeting
published in the BALO. This date cannot be earlier than three days prior to the meeting as provided in the bylaws.
A
shareholder who has voted by correspondence will no longer be able to participate directly in the meeting or to be represented.
In the case of returning the proxy form and the voting by correspondence form, the proxy form is taken into account, subject to
the votes cast in the voting by correspondence form.
A
shareholder may be represented at meetings by any individual or legal entity by means of a proxy form which we send to such shareholder
either at the shareholder’s request or at our initiative. A shareholder’s request for a proxy form must be received
at the registered office at least five days before the date of the meeting. The proxy is only valid for a single meeting, for
two meetings (an ordinary and an extraordinary meeting convened for the same day or within 15 days) or for successive meetings
convened with the same agenda.
A
shareholder may vote by correspondence by means of a voting form, which we send to such shareholder either at the shareholder’s
request or at our initiative, or which we include in an appendix to a proxy voting form under the conditions provided for by current
laws and requirements. A shareholder’s request for a voting form must be received at the registered office at least six
days before the date of the meeting. The voting form is also available on our website at least 21 days before the date of the
meeting. The voting by correspondence form addressed by a shareholder is only valid for a single meeting or for successive meetings
convened with the same agenda.
The
above legislation provides that shareholders (and all the persons who may attend the general meeting of shareholders) may participate
in the meeting by means of a teleconference or audio-visual conference call if this conference allows for the identification of
the participants, transmits at least the voice of the participants and allows the continuous and simultaneous retransmission of
the debates.
Our
Bylaws and French Corporate Law Contain Provisions that May Delay or Discourage a Takeover Attempt
Provisions
contained in our bylaws and French corporate law could make it more difficult for a third-party to acquire us, even if doing so
might be beneficial to our shareholders. In addition, provisions of our bylaws impose various procedural and other requirements,
which could make it more difficult for shareholders to effect certain corporate actions. These provisions include the following:
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● |
under
French law, the owner of 90% of the share capital or voting rights of a public company listed on a regulated market in a Member
State of the European Union or in a state party to the European Economic Area, or EEA, Agreement, including from the main
French stock exchange, has the right to force out minority shareholders following a tender offer made to all shareholders; |
|
● |
under
French law, a non-resident of France as well as any French entity controlled by non-residents of France may have to file a
declaration for statistical purposes with the Bank of France (Banque de France) within 20 working days following the
date of certain direct foreign investments in us, including any purchase of our ADSs. In particular, such filings are required
in connection with investments exceeding €15,000,000 that lead to the acquisition of at least 10% of our share capital
or voting rights or cross such 10% threshold. See “Ownership of ADSs by Non-French Residents” herein; |
|
● |
under
French law, certain investments in a French company relating to certain strategic industries (such as research and development
in biotechnologies and activities relating to public health) and activities by individuals or entities not French, not resident
in France of controlled by entities not French or not resident in France are subject to prior authorization of the Ministry
of Economy. See “Ownership of ADSs by Non-French Residents” herein; |
|
● |
a
merger (i.e., in a French law context, a share for share exchange following which our company would be dissolved into the
acquiring entity and our shareholders would become shareholders of the acquiring entity) of our company into a company incorporated
in the European Union would require the approval of our Management Board as well as a two-thirds majority of the votes held
by the shareholders present, represented by proxy or voting by mail at the relevant meeting; |
|
● |
a
merger of our company into a company incorporated outside of the European Union would require 100% of our shareholders to
approve it; |
|
● |
under
French law, a cash merger is treated as a share purchase and would require the consent of each participating shareholder; |
|
● |
our
shareholders may grant in the future our Management Board broad authorizations to increase our share capital or to issue additional
ordinary shares or other securities (for example, warrants) to our shareholders, the public or qualified investors, including
as a possible defense following the launching of a tender offer for our ordinary shares; |
|
● |
our
shareholders have preferential subscription rights on a pro rata basis on the issuance by us of any additional securities
for cash or a set-off of cash debts, which rights may only be waived by the extraordinary general meeting (by a two-thirds
majority vote) of our shareholders or on an individual basis by each shareholder; |
|
● |
our
Supervisory Board appoints the members of the Management Board and shall fill any vacancy within two months; |
|
● |
our
Supervisory Board has the right to appoint members of the Supervisory Board to fill a vacancy created by the resignation or
death of a member of the Supervisory Board for the remaining duration of such member’s term of office, and subject to
the approval by the shareholders of such appointment at the next shareholders’ meeting, which prevents shareholders
from having the sole right to fill vacancies on our Supervisory Board; |
|
● |
our
Management Board can be convened by the Chairman of the Management Board, its chief executive officer or at least half of
the members of the Management Board; |
|
● |
our
Supervisory Board can be convened by the Chairman or the Deputy Chairman or one member of the Supervisory Board. A member
of the Management Board or one-third of the members of the Supervisory Board may send a written request to the Chairman to
convene the Supervisory Board. If the chairman does not convene the Supervisory Board 15 days following the receipt of such
request, the authors of the request may themselves convene the Supervisory Board; |
|
● |
our
Supervisory Board meetings can only be regularly held if at least half of its members attend either physically or by way of
videoconference or teleconference enabling the members’ identification and ensuring their effective participation in
the Supervisory Board’s decisions; |
|
● |
approval
of at least a majority of the votes held by shareholders present, represented by a proxy, or voting by mail at the relevant
ordinary shareholders’ general meeting is required to remove members of the Management Board and/or members of the Supervisory
Board with or without cause; |
|
● |
the
crossing of certain ownership thresholds has to be disclosed and can impose certain obligations; see “Key Provisions
of Our Bylaws and French Law Affecting Our Ordinary Shares” herein; |
|
● |
advance
notice is required for nominations to the Supervisory Board or for proposing matters to be acted upon at a shareholders’
meeting, except that a vote to remove and replace a member of the Supervisory Board can be proposed at any shareholders’
meeting without notice; |
|
● |
transfers
of shares shall comply with applicable insider trading rules and regulations, and in particular with MAR; and |
|
● |
pursuant
to French law, our bylaws, including the sections relating to the number of members of the Management and Supervisory Boards,
and election and removal of members of the Management and Supervisory Boards from office may only be modified by a resolution
adopted by two-thirds of the votes of our shareholders present, represented by a proxy or voting by mail at the meeting. |
Shareholder
Identification
Ordinary
shares may be registered or bearer ordinary shares, at the option of the shareholder, subject to the applicable legal requirements.
To
identify the holders of bearer ordinary shares, we are authorized to ask in accordance with current legal and regulatory requirements,
the central depositary that maintains the records of the issue of these ordinary shares, in exchange for a fee, for the holders’
name or business name, year of birth or year of incorporation, address and nationality, e-mail address, number of securities held
giving immediate or future access to the capital and any restrictions to which the securities are subject.
Modification
of the Bylaws
Our
bylaws may only be amended by approval at an extraordinary shareholders’ meeting. Our bylaws may not, however, be amended
to increase shareholder commitments without the approval of each shareholder. Decisions are made by a two-thirds majority of the
votes held by the shareholders present, represented by proxy, or voting by mail.
Crossing
the Threshold Set in the Bylaws
Without
prejudice to the legal or regulatory stipulations, any natural person or legal entity who goes above or below, directly or indirectly,
acting alone or in concert (de concert), a percentage of the share capital or voting rights equal to or higher than 2%
or a multiple of this percentage, must inform us of the total number of ordinary shares, voting rights and securities giving access
to capital or voting rights that it, he or she owns immediately or eventually, within four trading days of the date on which such
ownership threshold is crossed.
If
shareholders fail to comply with these obligations, shares or voting rights exceeding the fraction that should have been declared
are deprived of voting rights at General Meetings of Shareholders for any meeting that would be held until the expiry of a period
of two years from the date of regularization of the notification in accordance with Article L. 233-14 of the Commercial Code,
if the failure to declare has been determined and one or several shareholders holding at least 5% of the capital make a request
thereof, as recorded in the minutes of the General Meeting.
These
requirements are without prejudice to the threshold crossing declarations provided for under French law in Articles L. 233-7,
L. 233-9 and L. 233-10 of the French Commercial Code, which impose a declaration to us and to the AMF upon crossing of the following
thresholds in share capital or voting rights no later than the fourth trading day following the crossing: 5%, 10%, 15%, 20%, 25%,
30%, 33.33%, 50%, 66.66%, 90% and 95%.
Furthermore,
any shareholder crossing, alone or acting in concert, these 10%, 15%, 20% or 25% thresholds shall file a declaration pursuant
to which it shall set out its intention for the following 6 months, including notably whether it intends to continue acquiring
shares of the company or to acquire control over the company and its intended strategy for the company.
In
addition, and subject to certain exemptions, any shareholder crossing, alone or acting in concert, the 30% threshold shall file
a mandatory public tender offer. Also, any shareholder holding directly or indirectly a number between 30% and 50% of the capital
or voting rights and who, in less than 12 consecutive months, increases their holding of capital or voting rights by at least
1% of the company’s capital or voting rights, shall file a mandatory public tender offer.
Differences
in Corporate Law
We
are a société européenne à directoire et conseil de surveillance, or S.E., incorporated under
the laws of France. The laws applicable to French S.E. differ from laws applicable to U.S. corporations and their shareholders.
Set forth below is a summary of certain differences between the provisions of the French Commercial Code applicable to us and
the Delaware General Corporation Law, the law under which many public companies in the United States are incorporated. This summary
is not intended to be a complete discussion of the respective rights.
|
|
France |
|
Delaware |
Number
of the members of the Management Board and of the Supervisory Board |
|
Under
French law, a société européenne à directoire et conseil de surveillance must have at least
three and may have up to eighteen members of the Supervisory Board. The number of members of the Management Board cannot be
greater than seven. In addition, the composition of the Management Board endeavors to seek a balanced representation of women
and men. The number of members of the Management Board and of the Supervisory Board is fixed by or in the manner provided
in the bylaws. The number of members of the Supervisory Board of each gender may not be less than 40%. Any appointment made
in violation of this limit that is not remedied will be null and void as well as the deliberations taken by the Supervisory
Board member irregularly appointed. The members of the Supervisory Board are appointed at the shareholders’ general
meetings. |
|
Under
Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner
provided in the bylaws, unless the certificate of incorporation fixes the number of directors. |
Members
of the Management Board and of the Supervisory Board Qualifications |
|
Under
French law, a corporation may prescribe qualifications for the members of the Management Board and of the Supervisory Board
under its bylaws. In addition, under French law, members of a supervisory board of a corporation may be legal entities (with
the exception of the chairman of the supervisory board), and such legal entities may designate an individual to represent
them and to act on their behalf at meetings of the supervisory board. |
|
Under
Delaware law, a corporation may prescribe qualifications for directors under its certificate of incorporation or bylaws. |
Removal
of members of the Management Board and of the Supervisory Board |
|
Under
French law, the members of the Management Board and of the Supervisory Board may be removed from office, with or without cause
and without notice, at any shareholders’ meeting, by a simple majority vote of the shareholders present and voting at
the meeting in person or by proxy. In addition, the members of the Management Board may be removed by the Supervisory Board
if provided in the bylaws. Our bylaws provide this possibility. |
|
Under
Delaware law, unless otherwise provided in the certificate of incorporation, directors may be removed from office, with or
without cause, by a majority stockholder vote, though in the case of a corporation whose board is classified, stockholders
may effect such removal only for cause. |
|
|
France |
|
Delaware |
Vacancies
on the Management Board and on the Supervisory Board |
|
Under
French law, vacancies on the Management Board resulting from death or a resignation have to be filled by the Supervisory Board
within two months. In case of a vacancy on the Management Board, the Supervisory Board may appoint, for the time remaining
until the renewal of the member (which may not exceed six months) one of its members to serve as a member of the Management
Board, resulting in the suspension from his or her duties on the Supervisory Board. Vacancies on the Supervisory Board resulting
from death or a resignation, may be filled by the remaining members of the Supervisory Board pending ratification by the shareholders
by the next shareholders’ meeting. |
|
Under
Delaware law, vacancies on a corporation’s board of directors, including those caused by newly created directorships,
may be filled by a majority of the remaining directors (even though less than a quorum). |
Annual
General Meeting |
|
Under
French law, the annual general meeting of shareholders shall be held at such place, on such date and at such time as decided
each year by the Management Board and notified to the shareholders in the convening notice of the annual meeting, within six
months after the close of the relevant fiscal year unless such period is extended by court order. |
|
Under
Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be provided
by the certificate of incorporation or by the bylaws, or by the board of directors if neither the certificate of incorporation
or the bylaws so provide. |
General
Meeting |
|
Under
French law, general meetings of the shareholders may be called by the Management Board or, failing that, by the statutory
auditors, or by a court appointed agent (mandataire ad hoc) or liquidator in certain circumstances, or by the majority
shareholder in capital or voting rights following a public tender offer or exchange offer or the transfer of a controlling
block on the date decided by the Management Board or the relevant person. General meetings of the shareholders may also be
called by the Supervisory Board. |
|
Under
Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as
may be authorized by the certificate of incorporation or by the bylaws. |
|
|
France |
|
Delaware |
Notice
of General Meetings |
|
A
first convening notice is published in the BALO at least 35 days prior to a meeting and made available on the website of the
company at least 21 days prior to the meeting. Subject to special legal provisions, the meeting notice is sent out at least
15 days prior to the date of the meeting, by means of a notice inserted both in a legal announcement bulletin (journal
d’annonces légales) of the registered office department and in the BALO. Further, the holders of registered
ordinary shares for at least a month at the time of the latest of the insertions of the notice of meeting shall be summoned
individually, by regular letter (or by registered letter if they request it and include an advance of expenses) sent to their
last known address. This notice to registered shareholders may also be transmitted by electronic means of telecommunication,
in lieu of any such mailing, to any shareholder requesting it beforehand by registered letter with acknowledgment of receipt
in accordance with legal and regulatory requirements, specifying his e-mail address. When the shareholders’ meeting
cannot deliberate due to lack of required quorum, the second meeting must be called at least ten calendar days in advance
in the same manner as used for the first notice. The convening notice shall specify the name of the company, its legal form,
share capital, registered office address, registration number with the French Registry of Commerce and Companies (registre
du commerce et des sociétés), the place, date, hour and agenda of the meeting and its nature (ordinary and/or
extraordinary meeting). The convening notice must also indicate the conditions under which the shareholders may vote by correspondence
and the places and conditions in which they can obtain voting forms by mail. |
|
Under
Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the
stockholders must be given to each stockholder entitled to vote at the meeting not less than 10 nor more than 60 days before
the date of the meeting and shall specify the place, date, hour, means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote, the record date for voting if it is different from the record
date determining notice and, in the case of a special meeting, purpose or purposes for which the meeting is called. |
|
|
France |
|
Delaware |
Proxy |
|
Each
shareholder has the right to attend the meetings and participate in the discussions (i) personally, or (ii) by granting proxy
to another shareholder, his/her spouse, his/her partner with whom he/she has entered into a civil union or to any natural
or legal person of his/her choice; or (iii) by sending a proxy to the company without indication of the beneficiary (in which
case, such proxy shall be cast in favor of the resolutions supported by the Management Board), or (iv) by voting by correspondence,
or (v) by video conference or another means of telecommunication in accordance with applicable laws that allow identification.
The proxy is only valid for a single meeting, for two meetings (an ordinary and an extraordinary meeting convened for the
same day or within 15 days) or for successive meetings convened with the same agenda. |
|
Under
Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy,
but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
A director of a Delaware corporation may not issue a proxy representing the director’s voting rights as a director. |
Shareholder
action by written consent |
|
Under French
law, shareholders’ action by written consent is not permitted in a société européenne. |
|
Under Delaware
law, a corporation’s certificate of incorporation (1) may permit stockholders to act by written consent if such action
is signed by all stockholders, (2) may permit stockholders to act by written consent signed by stockholders having the minimum
number of votes that would be necessary to take such action at a meeting or (3) may prohibit actions by written consent. |
|
|
France |
|
Delaware |
Preemptive
Rights |
|
Under
French law, in case of issuance of additional ordinary shares or other securities for cash or set-off against cash debts,
the existing shareholders have preferential subscription rights to these securities on a pro rata basis unless such
rights are waived by a two-thirds majority of the votes held by the shareholders present at the extraordinary meeting deciding
or authorizing the capital increase, voting in person or represented by proxy or voting by mail. The votes cast do not include
votes attached to shares held by shareholders who did not take part in the vote, abstained or whose votes were blank or null.
In case such rights are not waived by the extraordinary general meeting, each shareholder may individually either exercise,
assign or not exercise its preferential subscription rights. Preferential subscription rights may only be exercised during
the subscription period. In accordance with French law, the exercise period shall not be less than five trading days. Preferential
subscription rights are transferable during a period equivalent to the subscription period but starting two business days
prior to the opening of the subscription period and ending two business days prior to the closing of the subscription period. |
|
Under
Delaware law, unless otherwise provided in a corporation’s certificate of incorporation, a stockholder does not, by
operation of law, possess preemptive rights to subscribe to additional issuances of the corporation’s stock or to any
security convertible into such stock. |
|
|
France |
|
Delaware |
Sources
of Dividends |
|
Under
French law, dividends may only be paid by a French société européenne out of “distributable
profits,” plus any distributable reserves and “distributable premium” that the shareholders decide to make available
for distribution, other than those reserves that are specifically required by law. “Distributable profits” consist
of the unconsolidated net profits of the relevant corporation for each fiscal year, as increased or reduced by any profit or loss
carried forward from prior years.
“Distributable
premium” refers to the contribution paid by the shareholders in addition to the par value of their ordinary shares for their
subscription that the shareholders decide to make available for distribution.
Except
in case of a share capital reduction, no distribution can be made to the shareholders when the net equity is, or would become,
lower than the amount of the share capital plus the reserves which cannot be distributed in accordance with the law or the bylaws. |
|
Under
Delaware law, dividends may be paid by a Delaware corporation either out of (1) surplus as defined in and computed in accordance
with Delaware law or (2) in case there is no such surplus, out of its net profits for the fiscal year in which the dividend
is declared and/or the preceding fiscal year, except when the capital is diminished by depreciation in the value of its property,
or by losses, or otherwise, to an amount less than the aggregate amount of capital represented by issued and outstanding stock
having a preference on the distribution of assets. |
|
|
France |
|
Delaware |
Repurchase
of Ordinary Shares |
|
Under
French law, a corporation may acquire its own ordinary shares. Such acquisition may be challenged on the ground of market abuse
regulations. However, MAR provides for safe harbor exemptions when the acquisition is made for the following purposes:
●
to decrease its share capital, with the approval of the shareholders at the extraordinary general meeting;
●
to meet obligations arising from debt securities that are exchangeable into equity instruments; or
●
with a view to distributing the relevant shares to employees or managers under a profit-sharing, restricted free ordinary share
or share option plan.
All
other purposes, and especially share buy-backs made for external growth operations in pursuance of Article L. 225-209 of the French
Commercial Code, while not forbidden, must be pursued in strict compliance of market manipulation and insider dealing rules.
Under
the MAR and in accordance with the General Regulations of the AMF, a corporation shall report to the competent authority of the
trading venue on which the shares have been admitted to trading or are traded, no later than by the end of the seventh daily market
session following the date of the execution of the transaction, all the transactions relating to the buy-back program, in a detailed
form and in an aggregated form.
No
such repurchase of ordinary shares may result in the company holding, directly or through a person acting on its behalf, more
than 10% of its issued share capital. |
|
Under Delaware
law, a corporation may generally redeem or repurchase shares of its stock unless the capital of the corporation is impaired
or such redemption or repurchase would impair the capital of the corporation. |
|
|
France |
|
Delaware |
Liability
of members of the Management Board and of the Supervisory Board |
|
Under French
law, the bylaws may not include any provisions limiting the liability of members of the Management Board. Civil liabilities
of the members of the Management Board and of the Supervisory Board may be sought for (1) an infringement of laws and regulations
applicable to a company, (2) breach of the bylaws and (3) management failure. Civil liabilities of the members of the Supervisory
Board may be sought for the infractions committed by the members of the Management Board if, by knowing it, they did not reveal
it to the shareholders’ meeting. |
|
Under
Delaware law, a corporation’s certificate of incorporation may include a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for damages arising from a breach of fiduciary duty as a director.
However, no provision can limit the liability of a director for:
●
any breach of the director’s duty of loyalty to the corporation or its stockholders;
●
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
●
intentional or negligent payment of unlawful dividends or stock purchases or redemptions; or
●
any transaction from which the director derives an improper personal benefit. |
Voting Rights |
|
French law provides
that, unless otherwise provided in the bylaws, each shareholder is entitled to one vote for each share of capital stock held
by such shareholder. As from April 2016, double voting rights are automatically granted to the shares held in registered form
for more than two years, unless provided otherwise in the bylaws. Our bylaws do not provide otherwise. |
|
Delaware law provides
that, unless otherwise provided in the certificate of incorporation, each stockholder is entitled to one vote for each share
of capital stock held by such stockholder. |
|
|
France |
|
Delaware |
Shareholder
Vote on Certain Transactions |
|
Generally,
under French law, completion of merger, dissolution, sale, lease or exchange of all or substantially all of a corporation’s
assets requires:
●
the approval of the Management Board; and
●
approval by a two-thirds majority of the votes held by the shareholders present, represented by proxy or voting by mail at the
relevant meeting or, in the case of a merger with a non-European Union company, approval of all shareholders of the corporation
(by exception, the extraordinary general meeting of the acquiring company may delegate to the Management Board authority to decide
a merger-absorption or to determine the terms and conditions of the merger plan). |
|
Generally,
under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion
of a merger, consolidation, sale, lease or exchange of all or substantially all of a corporation’s assets or dissolution
requires:
●
the approval of the board of directors; and
●
approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for
more or less than one vote per share, a majority of the votes of the outstanding stock of a corporation entitled to vote on the
matter. |
Dissent or Dissenters’
Appraisal Rights |
|
French law does not
provide for any such right but provides that a merger is subject to shareholders’ approval by a two-thirds majority
vote as stated above. |
|
Under Delaware law,
a holder of shares of any class or series has the right, in specified circumstances, to dissent from a merger or consolidation
by demanding payment in cash for the stockholder’s shares equal to the fair value of those shares, as determined by
the Delaware Chancery Court in an action timely brought by the corporation or a dissenting stockholder. Delaware law grants
these appraisal rights only in the case of mergers or consolidations and not in the case of a sale or transfer of assets or
a purchase of assets for stock. |
|
|
|
|
Further,
no appraisal rights are available for shares of any class or series that is listed on a national securities exchange or held of
record by more than 2,000 stockholders, unless the agreement of a merger or consolidation requires the holders to accept for their
shares anything other than:
●
shares of stock of the surviving corporation;
●
shares of stock of another corporation that are either listed on a national securities exchange or held of record by more than
2,000 stockholders;
●
cash in lieu of fractional shares of the stock described in the two preceding bullet points; or
●
any combination of the above.
●
In addition, appraisal rights are not available to holders of shares of the surviving corporation in specified mergers that do
not require the vote of the stockholders of the surviving corporation. |
Standard of Conduct
for members of the Management Board and of the Supervisory Board |
|
French law does not
contain specific provisions setting forth the standard of conduct of a member of the Management Board and of the Supervisory
Board. However, members of the Management Board and of the Supervisory Board have a duty to act without self-interest, on
a well-informed basis and they cannot make any decision against a corporation’s corporate interest (intérêt
social). In addition, members of the Management Board shall take into account social and environmental issues arising
out of the Company’s activity. |
|
Delaware law does not
contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors
is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self-interest,
on a well-informed basis and in a manner they reasonably believe to be in the best interest of the stockholders. |
|
|
France |
|
Delaware |
Shareholder
Suits |
|
French
law provides that a shareholder, or a group of shareholders, may initiate a legal action to seek indemnification from the Management
Board (but not from the Supervisory Board) of a corporation in the corporation’s interest if it fails to bring such legal
action itself. If so, any damages awarded by the court are paid to the corporation and any legal fees relating to such action
are borne by the relevant shareholder or the group of shareholders. The plaintiff must remain a shareholder through the duration
of the legal action. There is no other case where shareholders may initiate a derivative action to enforce a right of a corporation.
A
shareholder may alternatively or cumulatively bring individual legal action against the members of the Management Board only,
provided he has suffered distinct damages from those suffered by the corporation. In this case, any damages awarded by the court
are paid to the relevant shareholder. |
|
Under
Delaware law, a stockholder may initiate a derivative action to enforce a right of a corporation if the corporation fails to enforce
the right itself. The complaint must:
●
state that the plaintiff was a stockholder at the time of the transaction of which the plaintiff complains or that the plaintiff’s
shares thereafter devolved on the plaintiff by operation of law; and allege with particularity the efforts made by the plaintiff
to obtain the action the plaintiff desires from the directors and the reasons for the plaintiff’s failure to obtain the
action; or
●
state the reasons for not making the effort.
Additionally,
the plaintiff must remain a stockholder through the duration of the derivative suit. The action will not be dismissed or compromised
without the approval of the Delaware Court of Chancery. |
Amendment of Certificate
of Incorporation |
|
Under French law, corporations
are not required to file a certificate of incorporation with the French Registry of Commerce and Companies (registre du
commerce et des sociétés) and only have bylaws (statuts) as organizational documents. |
|
Under
Delaware law, generally a corporation may amend its certificate of incorporation if:
●
its board of directors has adopted a resolution setting forth the amendment proposed and declared its advisability; and
●
the amendment is adopted by the affirmative votes of a majority (or greater percentage as may be specified by the corporation)
of the outstanding shares entitled to vote on the amendment and a majority (or greater percentage as may be specified by the corporation)
of the outstanding shares of each class or series of stock, if any, entitled to vote on the amendment as a class or series. |
|
|
France |
|
Delaware |
Amendment
of Bylaws |
|
Under French
law, only the extraordinary shareholders’ meeting is authorized to adopt or amend the bylaws. The extraordinary shareholders’
meeting may authorize the Supervisory Board to amend the by-laws to comply with legal provisions, subject to the ratification
of such amendments by the next extraordinary shareholders’ meeting. |
|
Under Delaware
law, the stockholders entitled to vote have the power to adopt, amend or repeal bylaws. A corporation may also confer, in
its certificate of incorporation, that power upon the board of directors. |
Legal
Name; Formation; Registered Office
Our
legal name and commercial name is Valneva SE. We were incorporated on March 24, 1999. Our headquarters are located at 6 rue
Alain Bombard, 44800 Saint-Herblain, France. We are registered at the Nantes Trade and Companies Registry under the number 422
497 560. Our telephone number at our principal executive offices is +33 228 073 710. Our agent for service of process in the United
States is Valneva USA, Inc. Our website address is www.valneva.com. The reference to our website is an inactive textual reference
only and information contained in, or that can be assessed through, our website is not part of this prospectus.
Listing
Our
ADSs are listed on the Nasdaq Global Select Market under the symbol “VALN” and our ordinary shares are listed on Euronext
Paris under the symbol “VLA.”
Transfer
Agent and Registrar
The
depositary for our ADSs is Citibank, N.A. CACEIS is our transfer agent and registrar for our ordinary shares and currently maintains
our share register for our ordinary shares. The share register reflects only record owners of our ordinary shares. Holders of
our ADSs will not be treated as one of our shareholders and their names will therefore not be entered in our share register. The
depositary, the custodian or their nominees will be the holder of the shares underlying the ADSs. Holders of our ADSs have a right
to receive the ordinary shares underlying their ADSs. For discussion on our ADSs and ADS holder rights, see “Description
of American Depositary Shares” in this prospectus.
LIMITATIONS
AFFECTING SHAREHOLDERS OF A FRENCH COMPANY
Ownership
of ADSs by Non-French Residents
Neither
the French Commercial Code nor our bylaws currently impose any restrictions on the right of non-French residents or non-French shareholders
to own and vote shares. However, non-French residents must file a declaration for statistical purposes with the Bank
of France (Banque de France) within 20 working days following the date of certain direct foreign investments in us, including
any purchase of our ADSs. In particular, such filings are required in connection with investments exceeding €15,000,000 that
lead to the acquisition of at least 10% of our share capital or voting rights or cross such 10% threshold. Violation of this filing
requirement may be sanctioned by five years of imprisonment and a fine of up to twice the amount of the relevant investment. This
amount may be increased fivefold if the violation is made by a legal entity.
Further,
any investment:
(i)
by (a) any non-French citizen, (b) any French citizen not residing in France, (c) any non-French entity
or (d) any French entity controlled by one of the aforementioned persons or entities;
(ii)
that will result in the relevant investor (a) acquiring control of an entity registered in France, (b) acquiring all
or part of a business line of an entity registered in France, or (c) for non-EU or non-EEA investors
crossing, directly or indirectly, alone or in concert, a 25% threshold of voting rights in an entity registered in France; and
(iii)
developing activities in certain strategic industries related to (a) activity likely to prejudice national defense interests,
participating in the exercise of official authority or are likely to prejudice public policy and public security (including weapons, double-use items,
IT systems, cryptology, date capturing devices, gambling, toxic agents or storage of data), (b) activities relating to essential
infrastructure, goods or services (including energy, water, transportation, space, telecom, public health, farm products or media),
and (c) research and development activity related to critical technologies (including cybersecurity, artificial intelligence,
robotics, additive manufacturing, semiconductors, quantum technologies, energy storage or biotechnology) or dual-use items,
is
subject to the prior authorization of the French Ministry of Economy, which authorization may be conditioned on certain undertakings.
In
the context of the ongoing COVID-19 pandemic, the Decree (décret) n°2020 892 dated July 22, 2020,
as amended on December 28, 2020 by the Decree n° 2020-1729 and (ii) on December 22, 2021 by the Decree n° 2021-1758,
has created until December 31, 2022 a new 10% threshold of the voting rights for the non-European investments made
(i) in an entity with its registered office in France and (ii) whose shares are admitted to trading on a regulated market,
in addition to the 25% above-mentioned threshold. A fast-track procedure shall apply for any non-European investor exceeding
this 10% threshold who will have to notify the Minister of Economy who will then have 10 days to decide whether or not the transaction
should be subject to further examination.
In
the absence of such authorization, the relevant investment shall be deemed null and void. The relevant investor may be found criminally
liable and may be sanctioned with a fine not to exceed the greater of the following amounts: (i) twice the amount of the
relevant investment, (ii) 10% of the annual turnover before tax of the target company or (iii) €5 million (for a company)
or €1 million (for a natural person).
Foreign
Exchange Controls
Under
current French foreign exchange control regulations there are no limitations on the amount of cash payments that we may remit
to residents of foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments
or transfers of funds made by a French resident to a non-resident such as dividend payments be handled by an accredited
intermediary. All registered banks and substantially all credit institutions in France are accredited intermediaries.
Availability
of Preferential Subscription Rights
While
our current shareholders waived their preferential subscription rights with respect to certain offerings at a shareholders’
general meeting held on June 23, 2022, in the future our shareholders will have preferential subscription rights. Under French
law, shareholders have preferential rights to subscribe for cash issues of new ordinary shares or other securities giving rights
to acquire additional ordinary shares on a pro rata basis. Holders of our securities in the United States (which may be in the
form of ordinary shares or ADSs) may not be able to exercise preferential subscription rights for their securities unless a registration
statement under the Securities Act is effective with respect to such rights or an exemption from the registration requirements
imposed by the Securities Act is available. We may, from time to time, issue new ordinary shares or other securities giving rights
to acquire additional ordinary shares (such as warrants) at a time when no registration statement is in effect and no Securities
Act exemption is available. If so, holders of our securities in the United States will be unable to exercise any preferential
subscription rights and their interests will be diluted. We are under no obligation to file any registration statement in connection
with any issuance of new ordinary shares or other securities. We intend to evaluate at the time of any rights offering the costs
and potential liabilities associated with registering the rights, as well as the indirect benefits to us of enabling the exercise
by holders of ADSs in the United States of the subscription rights, and any other factors we consider appropriate at the time,
and then to make a decision as to whether to register the rights. We cannot assure you that we will file a registration statement.
For
holders of our ordinary shares in the form of ADSs, the depositary may make these rights or other distributions available to ADS
holders. If the depositary does not make the rights available to ADS holders and determines that it is impractical to sell the
rights, it may allow these rights to lapse. In that case the holders will receive no value for them. The section of this prospectus
titled “Description of American Depositary Shares” explains in detail the depositary’s responsibility in connection
with a rights offering.
DESCRIPTION
OF AMERICAN DEPOSITARY SHARES
Citibank
is the depositary for the ADSs representing our ordinary shares. Citibank’s depositary offices are located at 388 Greenwich
Street, New York, New York 10013. ADSs represent ownership interests in securities that are on deposit with the depositary. ADSs
may be represented by certificates that are commonly known as American Depositary Receipts, or ADRs. The depositary typically
appoints a custodian to safekeep the securities on deposit. In this case, the custodian is Citibank Europe plc, located at 1 North
Wall Quay, Dublin 1 Ireland.
We
have appointed Citibank as depositary pursuant to a deposit agreement. The form of the deposit agreement is on file with the SEC
under cover of a registration statement on Form F-6. You may obtain a copy of the deposit agreement from the SEC’s
website (www.sec.gov). Please refer to registration number 333-255301 when retrieving such copy. The portions of this
summary description that are italicized describe matters that may be relevant to the ownership of ADSs but that may not be contained
in the deposit agreement.
We
are providing you with a summary description of the material terms of the ADSs and of your material rights as an owner of ADSs.
Please remember that summaries by their nature lack the precision of the information summarized and that the rights and obligations
of an owner of ADSs will be determined by reference to the terms of the deposit agreement and not by this summary. We urge you
to review the deposit agreement in its entirety.
Each
ADS represents the right to receive, and to exercise the beneficial ownership interests in, two ordinary shares that
are on deposit with the depositary and/or custodian. An ADS also represents the right to receive, and to exercise the beneficial
interests in, any other property received by the depositary or the custodian on behalf of the owner of the ADS but that has not
been distributed to the owners of ADSs because of legal restrictions or practical considerations. We and the depositary may agree
to change the ADS-to-Share ratio by amending the deposit agreement. This amendment may give rise to, or change, the
depositary fees payable by ADS owners. The custodian, the depositary and their respective nominees will hold all deposited property
for the benefit of the holders and beneficial owners of ADSs. The deposited property does not constitute the proprietary assets
of the depositary, the custodian or their nominees. Beneficial ownership in the deposited property will under the terms of the
deposit agreement be vested in the beneficial owners of the ADSs. The depositary, the custodian and their respective nominees
will be the record holders of the deposited property represented by the ADSs for the benefit of the holders and beneficial owners
of the corresponding ADSs. A beneficial owner of ADSs may or may not be the holder of ADSs. Beneficial owners of ADSs will be
able to receive, and to exercise beneficial ownership interests in, the deposited property only through the registered holders
of the ADSs, the registered holders of the ADSs (on behalf of the applicable ADS owners) only through the depositary, and the
depositary (on behalf of the owners of the corresponding ADSs) directly, or indirectly, through the custodian or their respective
nominees, in each case upon the terms of the deposit agreement.
If
you become an owner of ADSs, you will become a party to the deposit agreement and therefore will be bound to its terms and to
the terms of any ADR that represents your ADSs. The deposit agreement and the ADR specify our rights and obligations as well as
your rights and obligations as an owner of ADSs and those of the depositary. As an ADS holder you appoint the depositary to act
on your behalf in certain circumstances. The deposit agreement and the ADRs are governed by New York law. However, our obligations
to the holders of ordinary shares will continue to be governed by the laws of France, which may be different from the laws in
the United States.
In
addition, applicable laws and regulations may require you to satisfy reporting requirements and obtain regulatory approvals in
certain circumstances. You are solely responsible for complying with such reporting requirements and obtaining such approvals.
Neither the depositary, the custodian, us or any of their or our respective agents or affiliates shall be required to take any
actions whatsoever on your behalf to satisfy such reporting requirements or obtain such regulatory approvals under applicable
laws and regulations.
The
manner in which you own the ADSs (e.g., in a brokerage account vs. as registered holder, or as holder of certificated vs. uncertificated
ADSs) may affect your rights and obligations, and the manner in which, and extent to which, the depositary’s services are
made available to you.
As
an owner of ADSs, we will not treat you as one of our shareholders and you will not have direct shareholder rights. The depositary
will hold on your behalf the shareholder rights attached to the ordinary shares underlying your ADSs. As an owner of ADSs, you
will be able to exercise the shareholders rights for the ordinary shares represented by your ADSs through the depositary only
to the extent contemplated in the deposit agreement. To exercise any shareholder rights not contemplated in the deposit agreement
you will, as an ADS owner, need to arrange for the cancellation of your ADSs and become a direct shareholder.
As
an owner of ADSs, you may hold your ADSs either by means of an ADR registered in your name, through a brokerage or safekeeping
account, or through an account established by the depositary in your name reflecting the registration of uncertificated ADSs directly
on the books of the depositary (commonly referred to as the “direct registration system” or “DRS”). The
direct registration system reflects the uncertificated (book-entry) registration of ownership of ADSs by the depositary. Under
the direct registration system, ownership of ADSs is evidenced by periodic statements issued by the depositary to the holders
of the ADSs. The direct registration system includes automated transfers between the depositary and The Depository Trust Company,
or DTC, the central book-entry clearing and settlement system for equity securities in the United States. If you decide to hold
your ADSs through your brokerage or safekeeping account, you must rely on the procedures of your broker or bank to assert your
rights as ADS owner. Banks and brokers typically hold securities such as the ADSs through clearing and settlement systems such
as DTC. The procedures of such clearing and settlement systems may limit your ability to exercise your rights as an owner of ADSs.
Please consult with your broker or bank if you have any questions concerning these limitations and procedures. All ADSs held through
DTC will be registered in the name of a nominee of DTC. This summary description assumes you have opted to own the ADSs directly
by means of an ADS registered in your name and, as such, we will refer to you as the “holder.” When we refer to “you,”
we assume the reader owns ADSs and will own ADSs at the relevant time.
The
registration of the ordinary shares in the name of the depositary or the custodian shall, to the maximum extent permitted by applicable
law, vest in the depositary or the custodian the record ownership in the applicable ordinary shares with the beneficial ownership
rights and interests in such ordinary shares being at all times vested with the beneficial owners of the ADSs representing the
ordinary shares. The depositary or the custodian shall at all times be entitled to exercise the beneficial ownership rights in
all deposited property, in each case only on behalf of the holders and beneficial owners of the ADSs representing the deposited
property.
Dividends
and Distributions
As
a holder of ADSs, you generally have the right to receive the distributions we make on the securities deposited with the custodian.
Your receipt of these distributions may be limited, however, by practical considerations and legal limitations. Holders of ADSs
will receive such distributions under the terms of the deposit agreement in proportion to the number of ADSs held as of the specified
record date, after deduction of the applicable fees, taxes and expenses.
Distributions
of Cash
Whenever
we make a cash distribution for the securities on deposit with the custodian, we will deposit the funds with the custodian. Upon
receipt of confirmation of the deposit of the requisite funds, the depositary will arrange for the funds received in a currency
other than U.S. dollars to be converted into U.S. dollars and for the distribution of the U.S. dollars to the holders, subject
to the laws and regulations of France.
The
conversion into U.S. dollars will take place only if practicable and if the U.S. dollars are transferable to the United States.
The depositary will apply the same method for distributing the proceeds of the sale of any property (such as undistributed rights)
held by the custodian in respect of securities on deposit.
The
distribution of cash will be made net of the fees, expenses, taxes and governmental charges payable by holders under the terms
of the deposit agreement. The depositary will hold any cash amounts it is unable to distribute in a non-interest bearing
account for the benefit of the applicable holders and beneficial owners of ADSs until the distribution can be effected or the
funds that the depositary holds must be escheated as unclaimed property in accordance with the laws of the relevant states of
the United States.
Distributions
of Shares
Whenever
we make a free distribution of ordinary shares for the securities on deposit with the custodian, we will deposit the applicable
number of ordinary shares with the custodian. Upon receipt of confirmation of such deposit, the depositary will either distribute
to holders new ADSs representing the ordinary shares deposited or modify the ADS-to-ordinary shares
ratio, in which case each ADS you hold will represent rights and interests in the additional ordinary shares so deposited. Only
whole new ADSs will be distributed. Fractional entitlements will be sold and the proceeds of such sale will be distributed as
in the case of a cash distribution.
The
distribution of new ADSs or the modification of the ADS-to-ordinary shares ratio upon a distribution of ordinary shares
will be made net of the fees, expenses, taxes and governmental charges payable by holders under the terms of the deposit agreement.
In order to pay such taxes or governmental charges, the depositary may sell all or a portion of the new ordinary shares so distributed.
No
such distribution of new ADSs will be made if it would violate a law (e.g., the U.S. securities laws) or if it is not operationally
practicable. If the depositary does not distribute new ADSs as described above, it may sell the ordinary shares received upon
the terms described in the deposit agreement and will distribute the proceeds of the sale as in the case of a distribution of
cash.
Distributions
of Rights
Whenever
we intend to distribute rights to subscribe for additional ordinary shares, we will give prior notice to the depositary and we
will assist the depositary in determining whether it is lawful and reasonably practicable to distribute rights to subscribe for
additional ADSs to holders.
The
depositary will establish procedures to distribute rights to subscribe for additional ADSs to holders and to enable such holders
to exercise such rights if it is lawful and reasonably practicable to make the rights available to holders of ADSs, and if we
provide all of the documentation contemplated in the deposit agreement (such as opinions to address the lawfulness of the transaction).
You may have to pay fees, expenses, taxes and other governmental charges to subscribe for the new ADSs upon the exercise of your
rights. The depositary is not obligated to establish procedures to facilitate the distribution and exercise by holders of rights
to subscribe for new ordinary shares other than in the form of ADSs.
The
depositary will not distribute the rights to you if:
|
● |
We
do not timely request that the rights be distributed to you or we request that the rights not be distributed to you; or |
|
● |
We
fail to deliver satisfactory documents to the depositary; or |
|
● |
It
is not reasonably practicable to distribute the rights. |
The
depositary will sell the rights that are not exercised or not distributed if such sale is lawful and reasonably practicable. The
proceeds of such sale will be distributed to holders as in the case of a cash distribution. If the depositary is unable to sell
the rights, it will allow the rights to lapse.
Elective
Distributions
Whenever
we intend to distribute a dividend payable at the election of shareholders either in cash or in additional shares, we will give
prior notice thereof to the depositary and will indicate whether we wish the elective distribution to be made available to you.
In such case, we will assist the depositary in determining whether such distribution is lawful and reasonably practicable.
The
depositary will make the election available to you only if it is reasonably practicable and if we have provided all of the documentation
contemplated in the deposit agreement. In such case, the depositary will establish procedures to enable you to elect to receive
either cash or additional ADSs, in each case as described in the deposit agreement.
If
the election is not made available to you, you will receive either cash or additional ADSs, depending on what a shareholder in
France would receive upon failing to make an election, as more fully described in the deposit agreement.
Other
Distributions
Whenever
we intend to distribute property other than cash, ordinary shares or rights to subscribe for additional ordinary shares, we will
notify the depositary in advance and will indicate whether we wish such distribution to be made to you. If so, we will assist
the depositary in determining whether such distribution to holders is lawful and reasonably practicable.
If
it is reasonably practicable to distribute such property to you and if we provide to the depositary all of the documentation contemplated
in the deposit agreement, the depositary will distribute the property to the holders in a manner it deems practicable.
The
distribution will be made net of fees, expenses, taxes and governmental charges payable by holders under the terms of the deposit
agreement. In order to pay such taxes and governmental charges, the depositary may sell all or a portion of the property received.
The
depositary will not distribute the property to you and will sell the property if:
|
● |
We
do not request that the property be distributed to you or if we request that the property not be distributed to you; or |
|
● |
We
do not deliver satisfactory documents to the depositary; or |
|
● |
The
depositary determines that all or a portion of the distribution to you is not reasonably practicable. |
The
proceeds of such a sale will be distributed to holders as in the case of a cash distribution.
Redemption
Whenever
we decide to redeem any of the securities on deposit with the custodian, we will notify the depositary in advance. If it is practicable
and if we provide all of the documentation contemplated in the deposit agreement, the depositary will provide notice of the redemption
to the holders.
The
custodian will be instructed to surrender the shares being redeemed against payment of the applicable redemption price. The depositary
will convert into U.S. dollars upon the terms of the deposit agreement the redemption funds received in a currency other than
U.S. dollars and will establish procedures to enable holders to receive the net proceeds from the redemption upon surrender of
their ADSs to the depositary. You may have to pay fees, expenses, taxes and other governmental charges upon the redemption of
your ADSs. If less than all ADSs are being redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as the depositary may determine.
Changes
Affecting Ordinary Shares
The
ordinary shares held on deposit for your ADSs may change from time to time. For example, there may be a change in nominal or par
value, split-up, cancellation, consolidation or any other reclassification of such ordinary shares or a recapitalization,
reorganization, merger, consolidation or sale of assets of the Company.
If
any such change were to occur, your ADSs would, to the extent permitted by law and the deposit agreement, represent the right
to receive the property received or exchanged in respect of the ordinary shares held on deposit. The depositary may in such circumstances
deliver new ADSs to you, amend the deposit agreement, the ADRs and the applicable Registration Statement(s) on Form F-6, call
for the exchange of your existing ADSs for new ADSs and take any other actions that are appropriate to reflect as to the ADSs
the change affecting the Shares. If the depositary may not lawfully distribute such property to you, the depositary may sell such
property and distribute the net proceeds to you as in the case of a cash distribution.
Issuance
of ADSs upon Deposit of Ordinary Shares
Upon
completion of the global offering, the ordinary shares being offered pursuant to the prospectus will be deposited by us with the
custodian. Upon receipt of confirmation of such deposit, the depositary will issue ADSs to the underwriters named in the prospectus.
After
the closing of the global offering, the depositary may create ADSs on your behalf if you or your broker deposit ordinary shares
with the custodian. The depositary will deliver these ADSs to the person you indicate only after you pay any applicable issuance
fees and any charges and taxes payable for the transfer of the ordinary shares to the custodian. Your ability to deposit ordinary
shares and receive ADSs may be limited by U.S. and French legal considerations applicable at the time of deposit.
The
issuance of ADSs may be delayed until the depositary or the custodian receives confirmation that all required approvals have been
given and that the ordinary shares have been duly transferred to the custodian. The depositary will only issue ADSs in whole numbers.
When
you make a deposit of ordinary shares, you will be responsible for transferring good and valid title to the depositary. As such,
you will be deemed to represent and warrant that:
|
● |
The
ordinary shares are duly authorized, validly issued, fully paid, non-assessable and legally obtained. |
|
● |
All
preemptive (and similar) rights, if any, with respect to such ordinary shares have been validly waived or exercised. |
|
● |
You
are duly authorized to deposit the ordinary shares. |
|
● |
The
ordinary shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, and are not, and the ADSs issuable upon such deposit will not be, “restricted securities” (as defined
in the deposit agreement). |
|
● |
The
ordinary shares presented for deposit have not been stripped of any rights or entitlements. |
If
any of the representations or warranties are incorrect in any way, we and the depositary may, at your cost and expense, take any
and all actions necessary to correct the consequences of the misrepresentations.
Transfer,
Combination, and Split Up of ADRs
As
an ADR holder, you will be entitled to transfer, combine or split up your ADRs and the ADSs evidenced thereby. For transfers of
ADRs, you will have to surrender the ADRs to be transferred to the depositary and also must:
|
● |
ensure
that the surrendered ADR is properly endorsed or otherwise in proper form for transfer; |
|
|
|
|
● |
provide
such proof of identity and genuineness of signatures as the depositary deems appropriate; |
|
● |
provide
any transfer stamps required by the State of New York or the United States; and |
|
● |
pay
all applicable fees, charges, expenses, taxes and other government charges payable by ADR holders pursuant to the terms of
the deposit agreement, upon the transfer of ADRs. |
To
have your ADRs either combined or split up, you must surrender the ADRs in question to the depositary with your request to have
them combined or split up, and you must pay all applicable fees, charges and expenses payable by ADR holders, pursuant to the
terms of the deposit agreement, upon a combination or split up of ADRs.
Withdrawal
of Ordinary Shares Upon Cancellation of ADSs
As
a holder, you will be entitled to present your ADSs to the depositary for cancellation and then receive the corresponding number
of underlying ordinary shares at the custodian’s offices. Your ability to withdraw the ordinary shares held
in respect of the ADSs may be limited by U.S. and French legal considerations applicable at the time of withdrawal. In order to
withdraw the ordinary shares represented by your ADSs, you will be required to pay to the depositary the fees for cancellation
of ADSs and any charges and taxes payable upon the transfer of the ordinary shares. You assume the risk for delivery of all funds
and securities upon withdrawal. Once canceled, the ADSs will not have any rights under the deposit agreement.
If
you hold ADSs registered in your name, the depositary may ask you to provide proof of identity and genuineness of any signature
and such other documents as the depositary may deem appropriate before it will cancel your ADSs. The withdrawal of the ordinary
shares represented by your ADSs may be delayed until the depositary receives satisfactory evidence of compliance with all applicable
laws and regulations. Please keep in mind that the depositary will only accept ADSs for cancellation that represent a whole number
of securities on deposit.
You
will have the right to withdraw the securities represented by your ADSs at any time except for:
|
● |
Temporary
delays that may arise because (i) the transfer books for the ordinary shares or ADSs are closed, or (ii) ordinary
shares are immobilized on account of a shareholders’ meeting or a payment of dividends. |
|
● |
Obligations
to pay fees, taxes and similar charges. |
|
● |
Restrictions
imposed because of laws or regulations applicable to ADSs or the withdrawal of securities on deposit. |
The
deposit agreement may not be modified to impair your right to withdraw the securities represented by your ADSs except to comply
with mandatory provisions of law.
Voting
Rights
As
a holder, you generally have the right under the deposit agreement to instruct the depositary to exercise the voting rights for
the ordinary shares represented by your ADSs. The voting rights of holders of ordinary shares are described in the
sections of this prospectus entitled “Description of Share Capital” and “Limitations Affecting Shareholders
of a French Company.”
At
our request, the depositary will distribute to you any notice of shareholders’ meeting received from us together with information
explaining how to instruct the depositary to exercise the voting rights of the securities represented by ADSs. In lieu of distributing
such materials, the depositary may distribute to holders of ADSs instructions on how to retrieve such materials upon request.
If
the depositary timely receives voting instructions from a holder of ADSs, it will endeavor to vote the securities (in person or
by proxy) represented by the holder’s ADSs in accordance with such voting instructions.
Securities
for which no voting instructions have been received will not be voted (except as otherwise contemplated in the deposit agreement).
Please note that the ability of the depositary to carry out voting instructions may be limited by practical and legal limitations
and the terms of the securities on deposit. We cannot assure you that you will receive voting materials in time to enable you
to return voting instructions to the depositary in a timely manner.
Fees
and Charges
As
an ADS holder, you will be required to pay the following fees under the terms of the deposit agreement:
Service |
|
Fees |
Issuance
of ADSs (e.g., an issuance of ADS upon a deposit of ordinary shares, upon a change in the ADS(s)-to-ordinary share
ratio, or for any other reason), excluding ADS issuances as a result of distributions of ordinary shares |
|
Up
to U.S. 5¢ per ADS issued |
|
|
Cancellation
of ADSs (e.g., a cancellation of ADSs for delivery of deposited property, upon a change in the ADS(s)-to ordinary
share ratio, or for any other reason) |
|
Up
to U.S. 5¢ per ADS cancelled |
|
|
Distribution
of cash dividends or other cash distributions (e.g., upon a sale of rights and other entitlements) |
|
Up
to U.S. 5¢ per ADS held |
|
|
Distribution
of ADSs pursuant to (i) stock dividends or other free stock distributions, or (ii) exercise of rights to purchase
additional ADSs |
|
Up
to U.S. 5¢ per ADS held |
|
|
Distribution
of securities other than ADSs or rights to purchase additional ADSs (e.g., upon a spin-off) |
|
Up
to U.S. 5¢ per ADS held |
|
|
ADS
Services |
|
Up
to U.S. 5¢ per ADS held on the applicable record date(s) established by the depositary |
|
|
Registration
of ADS transfers (e.g., upon a registration of the transfer of registered ownership of ADSs, upon a transfer of ADSs into
DTC and vice versa, or for any other reason) |
|
Up
to U.S. 5¢ per ADS (or fraction thereof) transferred |
|
|
Conversion
of ADSs of one series for ADSs of another series (e.g., upon conversion of Partial Entitlement ADSs for Full Entitlement ADSs,
or upon conversion of Restricted ADSs (each as defined in the Deposit Agreement) into freely transferable ADSs, and vice
versa). |
|
Up
to U.S. 5¢ per ADS (or fraction thereof) converted |
As
an ADS holder, you will also be responsible to pay certain charges such as:
|
● |
taxes
(including applicable interest and penalties) and other governmental charges; |
|
● |
the
registration fees as may from time to time be in effect for the registration of ordinary shares on the share register and
applicable to transfers of ordinary shares to or from the name of the custodian, the depositary or any nominees upon the making
of deposits and withdrawals, respectively; |
|
● |
certain
cable, telex and facsimile transmission and delivery expenses; |
|
● |
the
fees, expenses, spreads, taxes and other charges of the depositary and/or service providers (which may be a division, branch
or affiliate of the depositary) in the conversion of foreign currency; |
|
● |
the
reasonable and customary out-of-pocket expenses incurred by the depositary in connection with compliance with exchange
control regulations and other regulatory requirements applicable to ordinary shares, ADSs and ADRs; and |
|
● |
the
fees, charges, costs and expenses incurred by the depositary, the custodian, or any nominee in connection with the ADR program. |
ADS
fees and charges for (i) the issuance of ADSs, and (ii) the cancellation of ADSs are charged to the person for whom
the ADSs are issued (in the case of ADS issuances) and to the person for whom ADSs are cancelled (in the case of ADS cancellations).
In the case of ADSs issued by the depositary into DTC, the ADS issuance and cancellation fees and charges may be deducted from
distributions made through DTC, and may be charged to the DTC participant(s) receiving the ADSs being issued or the DTC participant(s)
holding the ADSs being cancelled, as the case may be, on behalf of the beneficial owner(s) and will be charged by the DTC participant(s)
to the account of the applicable beneficial owner(s) in accordance with the procedures and practices of the DTC participants as
in effect at the time. ADS fees and charges in respect of distributions and the ADS service fee are charged to the holders as
of the applicable ADS record date. In the case of distributions of cash, the amount of the applicable ADS fees and charges is
deducted from the funds being distributed. In the case of (i) distributions other than cash and (ii) the ADS service
fee, holders as of the ADS record date will be invoiced for the amount of the ADS fees and charges and such ADS fees and charges
may be deducted from distributions made to holders of ADSs. For ADSs held through DTC, the ADS fees and charges for distributions
other than cash and the ADS service fee may be deducted from distributions made through DTC, and may be charged to the DTC participants
in accordance with the procedures and practices prescribed by DTC and the DTC participants in turn charge the amount of such ADS
fees and charges to the beneficial owners for whom they hold ADSs. In the case of (i) registration of ADS transfers, the
ADS transfer fee will be payable by the ADS holder whose ADSs are being transferred or by the person to whom the ADSs are transferred,
and (ii) conversion of ADSs of one series for ADSs of another series, the ADS conversion fee will be payable by the Holder
whose ADSs are converted or by the person to whom the converted ADSs are delivered.
In
the event of refusal to pay the depositary fees, the depositary may, under the terms of the deposit agreement, refuse the requested
service until payment is received or may set off the amount of the depositary fees from any distribution to be made to the ADS
holder. Certain depositary fees and charges (such as the ADS services fee) may become payable shortly after the closing of the
ADS global offering. Note that the fees and charges you may be required to pay may vary over time and may be changed
by us and by the depositary. You will receive prior notice of such changes. The depositary may reimburse us for certain expenses
incurred by us in respect of the ADR program, by making available a portion of the ADS fees charged in respect of the ADR program
or otherwise, upon such terms and conditions as we and the depositary agree from time to time.
Amendments
and Termination
We
may agree with the depositary to modify the deposit agreement at any time without your consent. We undertake to give holders of
ADSs 30 days’ prior notice of any modifications that would materially prejudice any of their substantial rights under the
deposit agreement. We will not consider to be materially prejudicial to your substantial rights any modifications or supplements
that are reasonably necessary for the ADSs to be registered under the Securities Act or to be eligible for book-entry settlement,
in each case without imposing or increasing the fees and charges you are required to pay. In addition, we may not be able to provide
you with prior notice of any modifications or supplements that are required to accommodate compliance with applicable provisions
of law.
You
will be bound by the modifications to the deposit agreement if you continue to hold your ADSs after the modifications to the deposit
agreement become effective. The deposit agreement cannot be amended to prevent you from withdrawing the ordinary shares represented
by your ADSs (except as permitted by law).
We
have the right to direct the depositary to terminate the deposit agreement. Similarly, the depositary may in certain circumstances
on its own initiative terminate the deposit agreement. In either case, the depositary must give notice to the holders at least
30 days before termination. Until termination, your rights under the deposit agreement will be unaffected.
After
termination, the depositary will continue to collect distributions received (but will not distribute any such property until you
request the cancellation of your ADSs) and may sell the securities held on deposit. After the sale, the depositary will hold the
proceeds from such sale and any other funds then held for the holders of ADSs in a non-interest bearing account. At
that point, the depositary will have no further obligations to holders other than to account for the funds then held for the holders
of ADSs still outstanding (after deduction of applicable fees, taxes and expenses).
In
connection with any termination of the deposit agreement, the depositary may make available to owners of ADSs a means to withdraw
the ordinary shares represented by ADSs and to direct the depositary of such ordinary shares into an unsponsored American depositary
share program established by the depositary. The ability to receive unsponsored American depositary shares upon termination of
the deposit agreement would be subject to satisfaction of certain U.S. regulatory requirements applicable to the creation of unsponsored
American depositary shares and the payment of applicable depositary fees.
Books
of Depositary
The
depositary will maintain ADS holder records at its depositary office. You may inspect such records at such office during regular
business hours but solely for the purpose of communicating with other holders in the interest of business matters relating to
the ADSs and the deposit agreement.
The
depositary will maintain in New York facilities to record and process the issuance, cancellation, combination, split-up and
transfer of ADSs. These facilities may be closed from time to time, to the extent not prohibited by law.
Transmission
of Notices, Reports and Proxy Soliciting Material
The
depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited
securities that we make generally available to holders of deposited securities. Subject to the terms of the deposit agreement,
the depositary will send you copies of those communications or otherwise make those communications available to you if we ask
it to.
Limitations
on Obligations and Liabilities
The
deposit agreement limits our obligations and the depositary’s obligations to you. Please note the following:
|
● |
We
and the depositary are obligated only to take the actions specifically stated in the deposit agreement without negligence
or bad faith. |
|
● |
The
depositary disclaims any liability for any failure to carry out voting instructions, for any manner in which a vote is cast
or for the effect of any vote, provided it acts in good faith and in accordance with the terms of the deposit agreement. |
|
● |
The
depositary disclaims any liability for any failure to accurately determine the lawfulness or practicality of any action, for
the content of any document forwarded to you on our behalf or for the accuracy of any translation of such a document, for
the investment risks associated with investing in ordinary shares, for the validity or worth of the ordinary shares, for any
tax consequences that result from the ownership of ADSs or other deposited property, for the credit-worthiness of any third
party, for allowing any rights to lapse under the terms of the deposit agreement, for the timeliness of any of our notices
or for our failure to give notice or for any act or omission of or information provided by DTC or any DTC participant. |
|
|
|
|
● |
The
depositary shall not be liable for acts or omissions of any successor depositary in connection with any matter arising wholly
after the resignation or removal of the depositary. |
|
● |
We
and the depositary will not be obligated to perform any act that is inconsistent with the terms of the deposit agreement. |
|
● |
We
and the depositary disclaim any liability if we or the depositary are prevented or forbidden from or subject to any civil
or criminal penalty or restraint on account of, or delayed in, doing or performing any act or thing required by the terms
of the deposit agreement, by reason of any provision, present or future of any law or regulation including regulations of
any stock exchange, or by reason of present or future provision of any provision of our Articles of Incorporation, or any
provision of or governing the securities on deposit, or by reason of any act of God or war or other circumstances beyond our
control. |
|
● |
We
and the depositary disclaim any liability by reason of any exercise of, or failure to exercise, any discretion provided for
in the deposit agreement or in our Articles of Incorporation or in any provisions of or governing the securities
on deposit. |
|
● |
We
and the depositary further disclaim any liability for any action or inaction in reliance on the advice or information received
from legal counsel, accountants, any person presenting Shares for deposit, any holder of ADSs or authorized representatives
thereof, or any other person believed by either of us in good faith to be competent to give such advice or information. |
|
● |
We
and the depositary also disclaim liability for the inability by a holder or beneficial holder to benefit from any distribution,
offering, right or other benefit that is made available to holders of ordinary shares but is not, under the terms of the deposit
agreement, made available to you. |
|
● |
We
and the depositary may rely without any liability upon any written notice, request or other document believed to be genuine
and to have been signed or presented by the proper parties. |
|
● |
We
and the depositary also disclaim liability for any consequential or punitive damages for any breach of the terms of the deposit
agreement. |
|
● |
We
and the depositary disclaim liability arising out of losses, liabilities, taxes, charges or expenses resulting from the manner
in which a holder or beneficial owner of ADSs holds ADSs, including resulting from holding ADSs through a brokerage account. |
|
● |
No
disclaimer of any Securities Act liability is intended by any provision of the deposit agreement. |
Nothing
in the deposit agreement gives rise to a partnership or joint venture, or establishes a fiduciary relationship, among us, the
depositary and you as ADS holder.
Nothing
in the deposit agreement precludes Citibank (or its affiliates) from engaging in transactions in which parties adverse to us or
the ADS owners have interests, and nothing in the deposit agreement obligates Citibank to disclose those transactions, or any
information obtained in the course of those transactions, to us or to the ADS owners, or to account for any payment received as
part of those transactions.
As
the above limitations relate to our obligations and the depositary’s obligations to you under the deposit agreement, we
believe that, as a matter of construction of the clause, such limitations would likely to continue to apply to ADS holders who
withdraw the ordinary shares from the ADS facility with respect to obligations or liabilities incurred under the deposit agreement
before the cancellation of the ADSs and the withdrawal of the ordinary shares, and such limitations would most likely not apply
to ADS holders who withdraw the ordinary shares from the ADS facility with respect to obligations or liabilities incurred after
the cancellation of the ADSs and the withdrawal of the ordinary shares and not under the deposit agreement.
In
any event, you will not be deemed, by agreeing to the terms of the deposit agreement, to have waived our or the depositary’s
compliance with U.S. federal securities laws and the rules and regulations promulgated thereunder. In fact, you cannot waive our
or the depositary’s compliance with U.S. federal securities laws and the rules and regulations promulgated thereunder.
Taxes
You
will be responsible for the taxes and other governmental charges payable on the ADSs and the securities represented by the ADSs.
We, the depositary and the custodian may deduct from any distribution the taxes and governmental charges payable by holders and
may sell any and all property on deposit to pay the taxes and governmental charges payable by holders. You will be liable for
any deficiency if the sale proceeds do not cover the taxes that are due.
The
depositary may refuse to issue ADSs, to deliver, transfer, split and combine ADRs or to release securities on deposit until all
taxes and charges are paid by the applicable holder. The depositary and the custodian may take reasonable administrative actions
to obtain tax refunds and reduced tax withholding for any distributions on your behalf. However, you may be required to provide
to the depositary and to the custodian proof of taxpayer status and residence and such other information as the depositary and
the custodian may require to fulfill legal obligations. You are required to indemnify us, the depositary and the custodian for
any claims with respect to taxes based on any tax benefit obtained for you.
Foreign
Currency Conversion
The
depositary will arrange for the conversion of all foreign currency received into U.S. dollars if such conversion is practical,
and it will distribute the U.S. dollars in accordance with the terms of the deposit agreement. You may have to pay fees and expenses
incurred in converting foreign currency, such as fees and expenses incurred in complying with currency exchange controls and other
governmental requirements.
If
the conversion of foreign currency is not practical or lawful, or if any required approvals are denied or not obtainable at a
reasonable cost or within a reasonable period, the depositary may take the following actions in its discretion:
|
● |
Convert
the foreign currency to the extent practical and lawful and distribute the U.S. dollars to the holders for whom the conversion
and distribution is lawful and practical. |
|
● |
Distribute
the foreign currency to holders for whom the distribution is lawful and practical. |
|
● |
Hold
the foreign currency (without liability for interest) for the applicable holders. |
Governing
Law/Waiver of Jury Trial
The
deposit agreement, the ADRs and the ADSs will be interpreted in accordance with the laws of the State of New York. The rights
of holders of ordinary shares (including ordinary shares represented by ADSs) are governed by the laws of France.
AS
A PARTY TO THE DEPOSIT AGREEMENT, YOU IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THE DEPOSIT AGREEMENT OR THE ADRs AGAINST US AND/OR THE DEPOSITARY.
The
deposit agreement provides that, to the extent permitted by law, ADS holders waive the right to a jury trial of any claim they
may have against us or the depositary arising out of or relating to our ordinary shares, the ADSs or the deposit agreement, including
any claim under U.S. federal securities laws. If we or the depositary opposed a jury trial demand based on the waiver,
the court would determine whether the waiver was enforceable in the facts and circumstances of that case in accordance with applicable
case law. However, you will not be deemed, by agreeing to the terms of the deposit agreement, to have waived our or the depositary’s
compliance with U.S. federal securities laws and the rules and regulations promulgated thereunder.
DESCRIPTION
OF WARRANTS
Warrants
(bons de souscription d’actions) may be offered separately or together with ordinary shares or ADSs. Each series
of warrants will be issued under any separate warrant agreement to be entered into between us and one or more purchasers of such
warrants. The applicable prospectus supplement will include details of the warrant agreements and terms and conditions covering
the warrants being offered.
The
particular terms of each issue or series of warrants will be described in the related prospectus supplement. If warrants for the
purchase of ordinary shares or ADSs are offered, the description will include, where applicable:
| ● | the
designation and aggregate number of warrants offered; |
| ● | the
price at which the warrants will be offered; |
| ● | the
currency or currency unit in which the warrants are denominated; |
| ● | the
date on which the right to exercise the warrants will commence and the date on which
the right will expire; |
| ● | the
number of ordinary shares or ADSs that may be purchased upon exercise of each warrant
and the price at which and currency or currencies in which that amount of ordinary shares
or ADSs may be purchased upon exercise of each warrant; |
| ● | the
date or dates, if any, on or after which the warrants and the related ordinary shares
or ADSs will be transferable separately; |
| ● | the
minimum or maximum amount, if any, of warrants that may be exercised at any one time; |
| ● | whether
the warrants will be subject to redemption or call, and, if so, the terms of such redemption
or call provisions; and |
| ● | any
other terms, conditions and rights (or limitations on such rights) of the warrants. |
We
reserve the right to set forth in a prospectus supplement or applicable free writing prospectus specific terms of the warrants
that are not within the options and parameters set forth in this prospectus. In addition, to the extent that any particular terms
and conditions of the warrants described in a prospectus supplement or applicable free writing prospectus differ from any of the
terms described in this prospectus, the description of such terms and conditions set forth in this prospectus shall be deemed
to have been superseded or supplemented by the description of such differing terms and conditions set forth in such prospectus
supplement or applicable free writing prospectus with respect to such warrants.
TAXATION
The
material French and U.S. federal income tax consequences relating to the purchase, ownership and disposition of any of the securities
offered by this prospectus will be set forth in the prospectus supplement pertaining to those securities.
LEGAL
MATTERS
Unless
the applicable prospectus supplement indicates otherwise, the validity of our ordinary shares, including ordinary shares represented
by the ADSs, and certain other matters governed by French law will be passed on for us by Hogan
Lovells Paris LLP, Paris, France. Unless otherwise indicated in any prospectus supplement, Cooley LLP, Boston, Massachusetts,
will be representing us in regards to certain matters governed by U.S. law in connection with any offering. Additional legal matters
may be passed upon for any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Valneva SE incorporated in this prospectus by reference to the Annual Report on Form 20-F for
the year ended December 31, 2021 have been audited by Deloitte & Associés (PCAOB ID: 1756) and PricewaterhouseCoopers Audit
(PCAOB ID: 1347), independent registered public accounting firms as stated in their report. Such financial statements are incorporated
by reference in reliance upon the report of such firms given their authority as experts in accounting and auditing.
The
offices of Deloitte & Associés are located at 19, boulevard Alfred Daney, 33041 Bordeaux Cedex, France.
The
offices of PricewaterhouseCoopers Audit are located at 63, rue de Villiers, 92208 Neuilly-sur-Seine Cedex, France.
ENFORCEMENT
OF CIVIL LIABILITIES
We
are a corporation organized under the laws of France. The majority of our members of the Management Board and Supervisory Board
are citizens and residents of countries other than the United States, and the majority of our assets are located outside of the
United States. We have appointed an agent for service of process in the United States; however, it may be difficult for investors:
|
● |
to
obtain jurisdiction over us or our non-U.S. resident members of the Management Board and Supervisory Board in U.S.
courts in actions predicated on the civil liability provisions of the U.S. federal securities laws; |
|
● |
to
enforce judgments obtained in such actions against us or our non-U.S. resident members of the Management Board and
supervisory; |
|
● |
to
bring an original action in a French court to enforce liabilities based upon the U.S. federal securities laws against us or
our non-U.S. resident members of the Management Board and Supervisory Board; and |
|
● |
to
enforce against us or our Management Board in non-U.S. courts, including French courts, judgments of U.S. courts
predicated upon the civil liability provisions of the U.S. federal securities laws. |
Nevertheless,
a final judgment for the payment of money rendered by any federal or state court in the United States based on civil liability,
whether or not predicated solely upon the U.S. federal securities laws, would be recognized and enforced in France provided that
a French judge considers that this judgment meets the French legal requirements concerning the recognition and the enforcement
of foreign judgments and is capable of being immediately enforced in the United States. A French court is therefore likely to
grant the enforcement of a foreign judgment without a review of the merits of the underlying claim, only if (1) that judgment
is enforceable in the jurisdiction of the U.S. court which rendered it, (2) that judgment was rendered by a court having
jurisdiction over the dispute (the condition will be met if the dispute is clearly connected to the jurisdiction of the U.S. court
and French courts did not have exclusive jurisdiction over the matter), (3) that judgment does not contravene French international
public order and public policy, including the right to due process, and (4) the U.S. judgment is not tainted with fraud and
is not incompatible with a judgment rendered by a French court in the same matter, or with an earlier judgment rendered by a foreign
court in the same matter.
In
addition, French law guarantees full compensation for the harm suffered but is limited to the actual damages, so that the victim
does not suffer or benefit from the situation. Such system excludes damages such as, but not limited to, punitive and exemplary
damages.
As
a result, the enforcement, by U.S. investors, of any judgments obtained in U.S. courts in civil and commercial matters, including
judgments under the U.S. federal securities law against us or members of our Management Board and Supervisory Board or certain
experts named herein who are residents of France or countries other than the United States would be subject to the above conditions.
Finally,
there may be doubt as to whether a French court would impose civil liability on us, the members of our Management Board and Supervisory
Board or certain experts named herein in an original action predicated solely upon the U.S. federal securities laws brought in
a court of competent jurisdiction in France against us or such members, officers or experts, respectively.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. Under the Exchange
Act, we file annual reports on Form 20-F and other information with the SEC. We also furnish to the SEC under cover of Form 6-K
material information required to be made public in France, filed with and made public by any stock exchange on which we are listed
or distributed by us to our shareholders. As a foreign private issuer, we are exempt from, among other things, the rules under
the Exchange Act prescribing the furnishing and content of proxy statements and the members of our management board and supervisory
board and our principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section
16 of the Exchange Act.
The
SEC maintains a web site that contains reports and information statements and other information about issuers, such as us, who
file electronically with the SEC. The address of that website is www.sec.gov.
This
prospectus and any prospectus supplement are part of a registration statement on Form F-3 that we filed with the SEC and do not
contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or
us, as provided below. Forms of the documents establishing the terms of the offered securities are or may be filed as exhibits
to the registration statement of which this prospectus forms a part. Statements in this prospectus or any prospectus supplement
about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers.
You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the
registration statement through the SEC’s website, as provided above.
We
also maintain a website at www.valneva.com through which you can access our SEC filings. The information set forth on our website
is not part of this prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows
us to disclose important information to you by referring you to those other documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede
this information. We filed a registration statement on Form F-3 under the Securities Act of 1933, as amended, with the SEC with
respect to the securities we may offer pursuant to this prospectus. This prospectus omits certain information contained in the
registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further
information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the
provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete
and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including
the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of
the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
| ● | our
Annual Report on Form 20-F for the year ended December 31, 2021, filed with the SEC on
March 24, 2022; |
| ● | our
Reports on Form 6-K filed or furnished with the SEC on January 10, 2022, January 19,
2022, January 26, 2022, February 1, 2022, February 4, 2022, February 23, 2022, March
1, 2022, March 8, 2022, March 14, 2022, March 22, 2022, March 25, 2022 (excluding exhibit
99.3 filed therewith), April 19, 2022, April 26, 2022, May 5, 2022 (excluding exhibit
99.4 filed therewith, and as amended by Amendment No. 1 to Form 6-K filed on August 11, 2022), May 16, 2022, May 20, 2022, May 25, 2022, June 3, 2022, June 8,
2022, June 10, 2022, June 15, 2022, June 23, 2022, June 24, 2022, July 20, 2022, August
3, 2022 and August 11, 2022 and our Report on Form 6-K/A filed on August 11, 2022; and |
| ● | the
description of ADSs representing our ordinary shares contained in our Registration Statement
on Form 8-A filed with the SEC on May 3, 2021, including any amendments or reports filed
for the purpose of updating such description. |
We
are also incorporating by reference all subsequent Annual Reports on Form 20-F that we file with the SEC and certain reports on
Form 6-K that we furnish to the SEC after the date of this prospectus (if they state that they are incorporated by reference into
this prospectus) prior to the termination of the offering of securities under this prospectus. In all cases, you should rely on the later information over different
information included in this prospectus or any accompanying prospectus supplement.
Unless
expressly incorporated by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished
to, but not filed with, the SEC. Copies of all documents incorporated by reference in this prospectus, other than exhibits to
those documents unless such exhibits are specifically incorporated by reference in this prospectus, will be provided at no cost
to each person, including any beneficial owner, who receives a copy of this prospectus on the written or oral request of that
person made to:
Valneva
SE
6 rue Alain Bombard
44800
Saint-Herblain
France
+33
2 28 07 37 10
You
may also access these documents on our website, www.valneva.com. The information contained on, or that can be accessed
through, our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive
textual reference.
You
should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone
to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus.
We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or
in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such
offer or solicitation.
EXPENSES
ASSOCIATED WITH REGISTRATION
The
following is an estimate of the expenses (all of which are to be paid by us) that we may incur in connection with the securities
being registered hereby.
SEC registration fee | |
$ | 18,540 | |
FINRA filing fee | |
| 30,500 | |
Legal fees and expenses | |
| (1 | ) |
Accounting fees and expenses | |
| (1 | ) |
Printing expenses | |
| (1 | ) |
Miscellaneous expenses | |
| (1 | ) |
Total | |
$ | (1 | ) |
(1)
These fees will be determined and calculated at the time of each issuance of securities pursuant to this registration statement
and accordingly cannot be estimated at this time.
$200,000,000
Ordinary
Shares
American Depositary Shares representing Ordinary
Shares
Warrants
to Purchase Ordinary Shares or American Depositary Shares
PROSPECTUS
The
information in this prospectus supplement is not complete and may be changed. We may not sell these securities or accept
an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus supplement is not an offer to sell these securities, and it is not soliciting offers to buy these securities
in any jurisdiction where such offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 12, 2022
PROSPECTUS
SUPPLEMENT
Up
to $75,000,000
American
Depositary Shares representing Ordinary Shares
We
have entered into an Open Market Sale AgreementSM, or the Sales Agreement, with Jefferies LLC, or Jefferies, relating
to the sale of American Depositary Shares, or ADSs, each ADS representing two ordinary shares, offered by this prospectus supplement.
In accordance with the terms of the Sales Agreement, we may offer and sell ADSs having an aggregate offering price of up to $75.0
million from time to time through Jefferies, acting as sales agent.
Our
ADSs are listed on the Nasdaq Global Select Market under the symbol “VALN.” On August 11, 2022, the last reported
sale price of our ADSs was $20.83 per ADS. Our ordinary shares are listed on the regulated market of Euronext in Paris under the
symbol “VLA.” On August 11, 2022, the closing price of our ordinary shares on Euronext Paris was €10.01 per ordinary
share.
Sales
of our ADSs, if any, under this prospectus supplement may be made in sales deemed to be an “at the market offering”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act, from time to time.
Jefferies is not required to sell any specific number or dollar amount of securities, but will act as sales agent and use commercially
reasonable efforts to arrange on our behalf for the sale of all ADSs requested to be sold by us, consistent with its normal sales
practices, on mutually agreed terms between us and Jefferies. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement.
Jefferies
will be entitled to compensation at a commission rate of 3.0% of the gross sales price per ADS sold under the Sales Agreement.
See “Plan of Distribution” beginning on page S-19 of this prospectus supplement for additional information regarding
the compensation to be paid to Jefferies. In connection with the sale of the ADSs on our behalf, Jefferies will be deemed to be
an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be
underwriting commissions. We have also agreed to provide indemnification and contribution to Jefferies with respect to certain
liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange
Act.
Under the authority granted by our shareholders, the ADSs we are offering may only be purchased by: (i) natural person(s) or legal entity(ies), including companies, trusts, investment funds or other investment vehicle(s), regardless of their form, under French or foreign law, investing on a regular basis in the pharmaceutical, biotechnological or medical technology sector, and/or (ii) French or foreign companies, institutions or entities of any form, carrying out a significant portion of their business in the pharmaceutical, cosmetics or chemical sector or in the field of medical devices and/or technologies or research in these areas.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the
heading “Risk Factors” on page S-5 of this prospectus supplement and in the documents that are incorporated by reference
into this prospectus supplement.
Neither
the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus supplement. Any representation to the contrary is a criminal offense.
Jefferies
The
date of this prospectus supplement is , 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS supplement
This
prospectus supplement is part of a registration statement on Form F-3 that we filed with the Securities and Exchange Commission,
or SEC, utilizing a “shelf” registration process. Under the shelf registration statement, we may from time to time
sell any combination of the securities described in the registration statement. Under this prospectus supplement, we may offer
and sell ADSs representing our ordinary shares having an aggregate offering price of up to $75.0 million from time to time at
prices and on terms to be determined by market conditions at the time of the offering. This prospectus supplement, together with
the accompanying base prospectus and the documents incorporated by reference herein and therein, includes all material information
relating to this offering.
We
provide information to you about this offering of ADSs, representing our ordinary shares in two separate documents that are bound
together: (1) this sales agreement prospectus supplement, which describes the specific details regarding this offering, and (2)
the accompanying base prospectus, which provides general information, some of which may not apply to this offering. Generally,
when we refer to this “prospectus,” we are referring to both documents combined. If information in this sales agreement
prospectus supplement is inconsistent with the accompanying base prospectus, you should rely on this sales agreement prospectus
supplement. If any statement in one of these documents is inconsistent with a statement in another document having a later date
(for example, a document incorporated by reference in this prospectus supplement), the statement in the document having the later
date modifies or supersedes the earlier statement. Any statement so modified or superseded will not be deemed, except as so modified
or superseded, to constitute a part of this prospectus supplement.
You
should rely only on the information contained in or incorporated by reference in this prospectus supplement, the accompanying
base prospectus and in any free writing prospectus that we authorized for use in connection with this offering. We have not, and
the sales agent has not, authorized anyone to provide you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not, and the sales agent is not, making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus
supplement, the accompanying base prospectus, the documents incorporated by reference in this prospectus supplement and in any
free writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those
respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
You should read this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference in this
prospectus supplement, and any free writing prospectus that we have authorized for use in connection with this offering, in their
entirety before making an investment decision.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus supplement were made solely for the benefit of the parties to such
agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be
deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate
only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
Unless
otherwise indicated, all references in this prospectus supplement to “Valneva,” “the company,” “our
company,” “we,” “us” and “our” refer to Valneva SE and its consolidated subsidiaries.
PRESENTATION
OF FINANCIAL AND OTHER INFORMATION
We
present our consolidated financial statements in euros and in accordance with IFRS as issued by the IASB. None of the financial statements incorporated
by reference into this prospectus supplement were prepared in accordance with generally accepted accounting principles in the
United States.
Unless
otherwise specified, all monetary amounts are in euros. All references in this prospectus supplement to “$,” “US$,”
“U.S.$,” “U.S. dollars,” “dollars” and “USD” mean U.S. dollars and all references
to “€” and “euros,” mean euros, unless otherwise noted. Throughout this prospectus supplement, references
to ADSs mean ADSs or ordinary shares represented by such ADSs, as the case may be.
We
have made rounding adjustments to some of the figures included in this prospectus supplement. Accordingly, numerical figures shown
as totals in some tables may not be an arithmetic aggregation of the figures that preceded them.
PROSPECTUS
supplement SUMMARY
This
summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated
by reference into this prospectus supplement, and does not contain all of the information that you need to consider in making
your investment decision. For a more complete understanding of our business and this offering, you should carefully read the entire
prospectus and the documents incorporated by reference herein, including our consolidated financial statements and the notes thereto,
which are incorporated herein by reference. Investing in our securities involves risks. Therefore, carefully consider the risk
factors set forth in this prospectus supplement and in our most recent filings with the SEC including our Annual Reports on Form
20-F and reports on Form 6-K, as well as other information in this prospectus supplements and the documents incorporated by reference
herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results
and financial condition, as well as adversely affect the value of an investment in our securities.
Company
Overview
We
are a specialty vaccine company focused on the development, manufacturing and commercialization of prophylactic vaccines for infectious
diseases with significant unmet medical need. We take a highly specialized and targeted approach to vaccine development and then
apply our deep understanding of vaccine science to develop prophylactic vaccines to address these diseases. We have leveraged
our expertise and capabilities both to successfully commercialize two vaccines and to rapidly advance a broad range of vaccine
candidates into and through the clinic. We also
have a robust manufacturing and laboratory platform with facilities across Europe to meet our clinical and commercial needs, including
BioSafety Level 3 manufacturing and research and development facilities.
Our
clinical portfolio is composed of a number of highly differentiated vaccine candidates that are designed to provide preventative
solutions to diseases with high unmet need:
| ● | VLA15 is a Phase 3 vaccine candidate targeting Borrelia, the bacterium that causes Lyme disease, under development in collaboration with Pfizer. VLA15 targets the six most prevalent serotypes, or variations, of Borrelia in the United States and in Europe. Pending successful completion of the Phase 3 study, Pfizer could potentially submit a Biologics License Application, or BLA, to the U.S. Food and Drug Administration, or FDA, and Marketing Authorization Application to the European Medicines Agency in 2025. |
| ● | VLA1553
targets the chikungunya virus and is currently the only chikungunya vaccine candidate
that successfully completed primary analysis in pivotal Phase 3 studies. These results
will support submission of a BLA with the FDA, expected to be completed in the second half of 2022. |
| ● | VLA2001
is an inactivated, whole virus, dual-adjuvanted vaccine against the SARS-CoV-2 virus
that causes COVID-19 and is the only inactivated vaccine to have received a standard
marketing authorization in Europe. |
Our
commercial portfolio includes IXIARO (also marketed as JESPECT in Australia and New Zealand), indicated for the prevention of
Japanese encephalitis in travelers and military personnel, and DUKORAL, indicated for the prevention of cholera and, in Canada,
Switzerland, New Zealand and Thailand, prevention of diarrhea caused by ETEC, the leading causes of travelers’ diarrhea.
Corporate
Information
We
were incorporated on March 24, 1999 as a limited liability company and converted into a European Company (Societas Europaea,
or SE) on May 28, 2013. Our principal executive offices are located at 6 rue Alain Bombard, 44800 Saint-Herblain, France. We are
registered at the Nantes Trade and Companies Registry under the number 422 497 560. Our telephone number at our principal executive
offices is +33 2 28 07 37 10. We have eight wholly owned subsidiaries—Valneva Austria GmbH, a limited liability company
formed under the laws of Austria in 2013, Valneva Scotland Ltd., a private company limited by shares formed under the laws of
Scotland in 2003, Valneva USA, Inc., a Delaware corporation formed in 1997, Vaccines Holdings Sweden AB, a private limited company
formed under the laws of Sweden in 2014, Valneva Sweden AB, a private limited company formed under the laws of Sweden in 1992,
Valneva Canada, Inc., a corporation formed under the laws of Canada in 2015, Valneva UK Ltd., a private company formed under the
laws of England and Wales in 2015, and Valneva France SAS, a société par actions simplifiée formed
under the laws of France in 2019.
Our
agent for service of process in the United States is Valneva USA, Inc., 4550 Montgomery Avenue, Suite 460, Bethesda, MD 20878,
+ 1 301 556 4500.
The
SEC maintains a website that contains reports, proxy information statements and other information regarding issuers that file
electronically with the SEC. The address of that site is www.sec.gov. Our website address is www. valneva.com.
The reference to our website is an inactive textual reference only and information contained in, or that can be accessed through,
our website or any other website cited in this prospectus supplement is not part of this prospectus supplement.
Implications
of Being an Emerging Growth Company
We
qualify as an “emerging growth company” as defined in the U.S. Jumpstart Our Business Startups Act of 2012, or the
JOBS Act. As an emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are
otherwise applicable generally to public companies. These provisions include:
| ● | exemption
from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002; and |
| ● | to
the extent that we no longer qualify as a foreign private issuer, (1) reduced disclosure
obligations regarding executive compensation in our periodic reports and proxy statements
and (2) exemptions from the requirements of holding a non-binding advisory vote on executive
compensation, including golden parachute compensation. |
We
will cease to be an emerging growth company on December 31, 2022. Until then, we may choose to take advantage of some but not
all of these reduced burdens. To the extent that we take advantage of these reduced burdens, the information that we provide stockholders
may be different than you might obtain from other public companies in which you hold equity interests. In addition, under the
JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards
apply to private companies. Since International Financial Reporting Standards make no distinction between public and private companies
for purposes of compliance with new or revised accounting standards, the requirements for our compliance as a private company
and as a public company are the same.
Implications
of Being a Foreign Private Issuer
We
are also considered a “foreign private issuer” under U.S. securities laws. In our capacity as a foreign private issuer,
we are exempt from certain rules under the U.S. Securities Exchange Act of 1934, as amended, or the Exchange Act, that impose
certain disclosure obligations and procedural requirements for proxy solicitations under Section 14 of the Exchange Act. In addition,
members of our management board and supervisory board and our principal shareholders are exempt from the reporting and “short-swing”
profit recovery provisions of Section 16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases
and sales of our securities. Moreover, we are not required to file periodic reports and financial statements with the SEC as frequently
or as promptly as U.S. companies whose securities are registered under the Exchange Act. In addition, we are not required to comply
with Regulation FD, which restricts the selective disclosure of material information.
We
may take advantage of these exemptions until such time as we are no longer a foreign private issuer. We will remain a foreign
private issuer until such time that more than 50% of our outstanding voting securities are held by U.S. residents and any of the
following three circumstances applies: (1) the majority of our executive officers or directors are U.S. citizens or residents;
(2) more than 50% of our assets are located in the United States; or (3) our business is administered principally in the United
States.
THE
OFFERING
Securities
offered by us |
ADSs,
each representing two ordinary shares, having an aggregate offering price of up to $75,000,000 and representing, together
with all the other shares which have been admitted to trading on Euronext Paris without a French listing prospectus, on a 12-month
rolling basis less than 20% of the total number of the Company’s securities admitted to trading on Euronext Paris. |
Plan
of Distribution |
“At
the market offering” that may be made from time to time through our sales agent, Jefferies LLC. See “Plan of Distribution”
on page S-19 of this prospectus supplement. |
Purchaser
restrictions |
Under the authority granted by our shareholders, the ADSs we are offering may only be purchased by: (i) natural person(s) or legal entity(ies), including companies, trusts, investment funds or other investment vehicle(s), regardless of their form, under French or foreign law, investing on a regular basis in the pharmaceutical, biotechnological or medical technology sector, and/or (ii) French or foreign companies, institutions or entities of any form, carrying out a significant portion of their business in the pharmaceutical, cosmetics or chemical sector or in the field of medical devices and/or technologies or research in these areas. In order to purchase ADSs in the offering, you will be required to execute and provide to Jefferies
an investor letter representing that you satisfy the foregoing investor criteria. |
The
ADSs |
Each
ADS represents two ordinary shares, nominal value €0.15 per ordinary share. The offered ADSs may be evidenced by American
Depositary Receipts, or ADRs. The Depositary will hold the ordinary shares underlying the ADSs and you will have the rights of an
ADS holder as provided in the deposit agreement among us, the Depositary and all holders and beneficial owners of ADSs issued
thereunder. |
Depositary |
Citibank,
N.A. |
Use
of Proceeds |
We
currently intend to use the net proceeds from this offering primarily to fund the research and development of our product
candidates, for working capital
and for general corporate purposes. We may also use a portion of the net proceeds to acquire or invest in businesses, products
or technologies that we believe are complementary to our own, although we have no current plans, commitments or agreements
with respect to any acquisitions as of the date of this prospectus supplement. See “Use of Proceeds” on page S-9
of this prospectus supplement. |
Risk
Factors |
Investing
in our securities involves significant risks. See “Risk Factors” on page S-5 of this prospectus supplement,
and in documents incorporated by reference into this prospectus supplement. |
Nasdaq
Global Select Market symbol for ADSs |
“VALN” |
Euronext
Paris symbol for Ordinary Shares |
“VLA” |
The
number of ordinary shares (including ordinary shares represented by ADSs) outstanding as of June 30, 2022 was 117,202,021, which
excludes:
|
● |
15,625
ordinary shares issuable upon the exercise of outstanding equity warrants (bons de souscription d’actions); |
| ● | 2,739,613
ordinary shares issuable upon exercise of outstanding stock options; |
| ● | 1,145,756
ordinary shares issuable upon full vesting of outstanding free ordinary shares (actions
ordinaires gratuites); and |
| ● | ordinary
shares that may be issued in the future under our share-based compensation plans and
other delegations of authority from our shareholders. |
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described below and
under the heading “Risk Factors” in our Annual Report on Form 20-F for the year ended December 31, 2021 as updated
by our subsequent filings including our Reports on Form 6-K, which are incorporated by reference into this prospectus supplement,
before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this
prospectus supplement is a part. The risk factors included in our Annual Report include a discussion of specific risks related
to an investment in, and ownership of, ADSs under the caption “- Risks related to Ownership of Our Ordinary Shares and ADSs.”
Each of the risk factors could adversely affect our business, results of operations, financial condition and cash flows, as well
as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to
lose all or part of your investment. Additional risks not presently known to us or that we currently believe are immaterial may
also significantly impair our business operations. Please also read carefully the section below titled “Special Note Regarding
Forward-Looking Statements.”
You
may experience immediate and substantial dilution in the net tangible book value per ADS of your investment.
The
offering price per ADS in this offering may exceed the net tangible book value per ADS outstanding prior to this offering. After
giving effect to the sale of ADSs in the aggregate amount of $75.0 million at an assumed offering price of $20.83 per ADS, the last
reported sale price of our ADSs on August 11, 2022 on the Nasdaq Global Select Market, and after deducting commissions and estimated
offering expenses, our as adjusted net tangible book value as of June 30, 2022 would have been €131.9 million ($137.0 million
based on an exchange rate of €1.00 = $1.0387, the exchange rate reported by the European Central Bank on June 30, 2022),
or €1.06 per ordinary share ($2.20 per ADS). You will experience additional dilution at the end of the vesting period for our
free shares that we have granted, and upon exercise of any outstanding warrants or options to purchase ordinary shares, or if
we otherwise issue additional ordinary shares or ADSs below the offering price. See the section titled “Dilution”
below for a more detailed illustration of the dilution you would incur if you participate in this offering. Because the sales
of the securities offered hereby will be made directly into the market or in negotiated transactions, the prices at which we sell
these securities will vary and these variations may be significant. Purchasers of the securities we sell, as well as our existing
shareholders, will experience significant dilution if we sell the securities at prices significantly below the price at which
they invested.
Future
sales of ordinary shares or ADSs by existing shareholders could depress the market price of the ordinary shares or ADSs.
Future
sales of a substantial number of our ADSs or ordinary shares, including as part of this offering, or the perception that such
sales will occur, could cause a decline in the market price of our ADSs and/or ordinary shares. Sales in the United States of
our ADSs and ordinary shares held by our directors, officers and affiliated shareholders or ADS holders are subject to restrictions.
If these shareholders or ADS holders sell substantial amounts of ordinary shares or ADSs in the public market, or the market perceives
that such sales may occur, the market price of our ADSs or ordinary shares and our ability to raise capital through an issue of
equity securities in the future could be adversely affected.
Raising
additional capital, including as a result of this offering, may cause dilution to our shareholders, restrict our operations or
require us to relinquish rights to our product candidates.
Until
such time, if ever, as we can generate substantial revenue from the sale of our product candidates, we expect to finance
our cash needs through a combination of equity offerings, debt financing, collaborations, strategic alliances and licensing arrangements.
To the extent that we raise additional capital through the sale of equity securities, or convertible debt securities, your ownership
interest will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect
your rights as a shareholder. Debt financing and preferred equity financing, if available, may involve agreements that include
covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures
or declaring dividends. If we raise additional funds through collaborations, strategic alliances or marketing, distribution or
licensing arrangements with third parties, we may be required to relinquish valuable rights to our research programs or product
candidates or grant licenses on terms that may not be favorable to us. If we are unable to raise additional funds through equity
or debt financings or other arrangements with third parties when needed, we may be required to delay, limit, reduce or terminate
our drug development or future commercialization efforts or grant rights to third parties to develop and market product candidates
that we would otherwise prefer to develop and market ourselves.
We
have broad discretion in the use of the net proceeds from this offering and may use them in ways with which you do not agree and
in ways that may not increase the value of your investment.
Our
management will have broad discretion in the application of the net proceeds that we receive from this offering. We may spend
or invest these proceeds in a way with which our shareholders and ADS holders disagree. The failure by our management to apply
these funds effectively could harm our business and financial condition. Pending their use, we may invest the net proceeds from
this offering in a manner that does not produce income or that loses value. These investments may not yield a favorable return
to our investors.
The
actual number of ADSs we will issue under the sales agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement
notice to Jefferies at any time throughout the term of the sales agreement. The number of ADSs that are sold by Jefferies after
delivering a placement notice will fluctuate based on the market price of our ADSs during the sales period and limits we set with
Jefferies. Because the price of each ADS sold will fluctuate based on the market price of our ADSs during the sales period, it
is not possible at this stage to predict the number of ADSs that will be ultimately issued.
The
ADSs offered hereby will be sold in “at the market offerings,” and investors who buy ADSs at different times will
likely pay different prices.
Investors
who purchase ADSs in this offering at different times will likely pay different prices, and so may experience different outcomes
in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and numbers of ADSs
sold, and there is no minimum or maximum sales price under the sales agreement. Investors may experience a decline in the value
of their ADSs as a result of ADS sales made at prices lower than the prices they paid.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement and the accompanying prospectus contain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that are based on
our management’s beliefs and assumptions and on information currently available to our management. Discussions containing
these forward-looking statements may be found, among other places, in the sections titled “Information on the Company,”
“Risk Factors” and “Operating and Financial Review and Prospects” incorporated by reference from our most
recent Annual Report on Form 20-F and our interim financial reports filed on Form 6-K filed with the SEC.
All
statements other than present and historical facts and conditions contained in this prospectus supplement, including statements
regarding our future results of operations and financial positions, business strategy, plans and our objectives for future operations,
are forward-looking statements. When used in this prospectus supplement, the words “anticipate,” “believe,”
“can,” “could,” “estimate,” “expect,” “intend,” “is designed
to,” “may,” “might,” “plan,” “potential,” “predict,” “objective,”
“should,” or the negative of these and similar expressions identify forward-looking statements. Forward-looking statements
include, but are not limited to, statements about:
| ● | timing
and expected outcomes of clinical trials, pre-clinical studies and regulatory submissions; |
| ● | expected
benefits of our approach to vaccine development, particularly with respect to our vaccine
candidates in development; |
| ● | estimates
and expectations regarding the impact of reduced order volumes of VLA2001 on our financial
statements, including potential future write-offs of inventory; |
| ● | our
expectations with respect to future investment in the development and commercialization
of VLA2001; |
| ● | the
potential safety and effectiveness of our vaccine candidates in development and, with
respect to VLA2001, the potential for this vaccine to complement other COVID-19 vaccines,
be used as a booster or be used to treat specific populations or age groups; |
| ● | our
ability to successfully develop, advance and commercialize our pipeline of product candidates; |
| ● | our
expectations and forecasts for sales of our approved products, particularly our COVID-19
vaccine, including order volumes and timing; |
| ● | the
present and future effects of the COVID-19 pandemic on our sales and operations, including
our expectations and assumptions regarding the resumption of travel and the future demand
for travel vaccines and COVID-19 vaccines; |
| ● | the
effectiveness and profitability of our collaborations and partnerships, our ability to
maintain our current collaborations and partnerships and our ability to enter into new
collaborations and partnerships; |
| ● | our
expectations related to future milestone and royalty payments and other revenue under
our collaborations and partnerships; |
| ● | our
ability to safely and effectively scale up our manufacturing capabilities and supply
a sufficient quantity of our products and product candidates; |
| ● | our
ability to meet our obligations under our various collaboration, partnership and distribution
arrangements and financing arrangements; |
| ● | our
estimate regarding future revenue, expenses, capital requirements and need for additional
financing; |
| ● | estimates
of market opportunity for our approved products and vaccine candidates; |
| ● | the
effects of increased competition as well as innovations by new and existing competitors
in our industry; |
| ● | our
ability to obtain, maintain, protect and enforce our intellectual property rights and
propriety technologies and to operate our business without infringing the intellectual
property rights and proprietary technology of third parties; |
| ● | regulatory
developments in the United States, Europe and other countries; |
| ● | statements
regarding future revenue, hiring plans, expenses, capital expenditures, capital requirements
and stock performance; |
| ● | the
anticipated use of proceeds from this offering, if any; and |
| ● | other
risks and uncertainties, including those listed in this prospectus supplement under the
caption “Risk Factors.” |
You
should refer to the “Risk Factors” section contained in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus
supplement, for a discussion of important factors that may cause our actual results to differ materially from those expressed
or implied by our forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements
in this prospectus supplement will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate,
the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not
regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans
in any specified time frame or at all.
Except
as required by law, we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise.
You
should read this prospectus supplement and the documents that we reference in this prospectus supplement completely and with the
understanding that our actual future results may be materially different from what we expect. We qualify all of our forward-looking
statements by these cautionary statements.
This
prospectus supplement contains market data and industry forecasts that were obtained from industry publications. These data involve
a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. We have not independently
verified any third-party information. While we believe the market position, market opportunity and market size information included
in this prospectus supplement is generally reliable, such information is inherently imprecise.
USE
OF PROCEEDS
We
may issue and sell our ADSs representing our ordinary shares, having aggregate sales proceeds of up to $75.0 million from time
to time. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering
amount, commissions and proceeds to us, if any, are not determinable at this time. There can be no assurance that we will sell
any shares under or fully utilize the sales agreement with Jefferies as a source of financing.
We
currently intend to use the net proceeds from this offering primarily to fund the research and development of our product candidates,
for working capital and for general corporate purposes. We may also use a portion of the net proceeds to acquire or invest in
businesses, products or technologies that we believe are complementary to our own, although we have no current plans, commitments
or agreements with respect to any acquisitions as of the date of this prospectus supplement.
Our
expected use of net proceeds to us from this offering represents our current intentions based upon our present plans and business
condition. The amount and timing of our actual expenditures will depend upon numerous factors, including the results of our research
and development efforts, the timing and success of preclinical studies, our ongoing clinical trials or clinical trials we may
commence in the future and the timing of regulatory submissions. As a result, our management will have broad discretion over the
use of the net proceeds from this offering.
Pending
the use of net proceeds, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term,
investment-grade, interest bearing instruments.
DILUTION
Our
net tangible book value as of June 30, 2022 was €62.5 million ($65.0 million), (with this and all other convenience translations
presented in this section, “Dilution,” based on the exchange rate reported by the European Central Bank June 30, 2022,
of €1.00 = $1.0387), or €0.53 per ordinary share (equivalent to $1.11 per ADS). Net tangible book value per ordinary share
is determined by dividing (1) our total assets less our intangible assets and our total liabilities by (2) 117,202,021 ordinary shares
outstanding as of June 30, 2022.
After
giving effect to the sale of our ADSs in the aggregate amount of $75.0 million at an assumed offering price of $20.83 per ADS, the
last reported sale price of our ADSs on the Nasdaq Global Select Market on August 11, 2022, and after deducting estimated commissions
and offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2022 would have been €131.9 million
($137.0 million), or €1.06 per ordinary share ($2.20 per ADS). This represents an immediate increase in net tangible book value
of €0.53 per ordinary share ($1.09 per ADS) to existing shareholders and an immediate decrease in net tangible book value of
$18.63 per ADSs to investors purchasing in this offering.
The
following table illustrates this calculation on a per ADS basis. The information is illustrative only and will adjust based on
the actual prices at which ADSs are sold, the actual number of ADSs sold and other terms of the offering determined at the time
our ADSs are sold pursuant to this prospectus supplement.
Assumed
public offering price per ADS |
|
|
|
$ |
20.83 |
Net
tangible book value per ADS as of June 30, 2022 |
$ |
1.11 |
|
|
|
Increase
in net tangible book value per ADS attributable to this offering |
$ |
1.09 |
|
|
|
As
adjusted net tangible book value per ADS as of June 30, 2022, after giving effect to this offering |
|
|
|
$ |
2.20 |
Decrease
in net tangible book value per ADSs to investors purchasing in this offering |
|
|
|
$ |
18.63 |
The
number of ordinary shares (including ordinary shares represented by ADSs) outstanding as of June 30, 2022 was 117,202,021, which
excludes:
|
● |
15,625
ordinary shares issuable upon the exercise of outstanding equity warrants (bons de souscription d’actions); |
| ● | 2,739,613
ordinary shares issuable upon exercise of outstanding stock options; |
| ● | 1,145,756
ordinary shares issuable upon full vesting of outstanding free ordinary shares (actions
ordinaires gratuites); and |
| ● | ordinary
shares that may be issued in the future under our share-based compensation plans and
other delegations of authority from our shareholders. |
The
ADSs subject to the sales agreement with Jefferies will be sold from time to time at various prices. An increase of $1.00 per
ADS in the price at which the ADSs are sold from the assumed offering price of $20.83 per ADS shown in the table above, assuming
all of our securities in the aggregate amount of $75.0 million during the term of the sales agreement with Jefferies are sold
at that price, would increase our as adjusted net tangible book value per ADS after the offering to $2.21 per ADS, which would
represent dilution to new investors in this offering of $19.62 per ADS, after deducting commissions
and estimated offering expenses payable by us. A decrease of $1.00 per ADS in the price at which the ADSs are sold from the assumed
offering price of $20.83 per ADS shown in the table above, assuming all of our securities in the aggregate amount of $75.0 million
during the term of the sales agreement with Jefferies are sold at that price, would decrease our as adjusted net tangible book
value per ADS after the offering to $2.20 per ADS, which would represent dilution to new investors
in this offering of $17.63 per ADS, after deducting commissions and estimated offering expenses payable by us. This information
is supplied for illustrative purposes only.
MATERIAL
U.S. FEDERAL INCOME AND FRENCH TAX CONSIDERATIONS
Material
U.S. federal income tax considerations for U.S. Holders
The
following is a description of the material U.S. federal income tax consequences to the U.S. Holders described below of owning
and disposing of our ordinary shares or ADSs. It is not a comprehensive description of all tax considerations that may be relevant
to a particular person’s decision to acquire securities. This discussion applies only to a U.S. Holder that holds our ordinary
shares or ADSs as a capital asset for tax purposes (generally, property held for investment). In addition, it does not describe
all of the tax consequences that may be relevant in light of a U.S. Holder’s particular circumstances, including state,
local and non-U.S. tax consequences, estate tax consequences, alternative minimum tax consequences, the impact of special
tax accounting rules under Section 451(b) of the Code, the potential application of the Medicare contribution tax, and tax
consequences applicable to U.S. Holders subject to special rules, such as:
|
● |
banks,
insurance companies, and certain other financial institutions; |
|
● |
U.S.
expatriates and certain former citizens or long-term residents of the United States; |
|
● |
dealers
or traders in securities who use a mark-to-market method of tax accounting; |
|
● |
persons
holding ordinary shares or ADSs as part of a hedging transaction, “straddle,” wash sale, conversion transaction
or integrated transaction or persons entering into a constructive sale with respect to ordinary shares or ADSs; |
|
● |
persons
whose “functional currency” for U.S. federal income tax purposes is not the U.S. dollar; |
|
● |
brokers,
dealers or traders in securities, commodities or currencies; |
|
● |
tax-exempt entities
or government organizations; |
|
● |
S
corporations, partnerships, or other entities or arrangements classified as partnerships for U.S. federal income tax purposes
(and investors therein); |
|
● |
regulated
investment companies or real estate investment trusts; |
|
● |
persons
who acquired our ordinary shares or ADSs pursuant to the exercise of any employee stock option or otherwise as compensation; |
|
● |
persons
holding shares or ADSs in connection with a trade or business outside the United States; |
|
● |
persons
that own or are deemed to own ten percent or more of our shares (by vote or value); and |
|
● |
persons
holding our ordinary shares or ADSs in connection with a trade or business, permanent establishment, or fixed base outside
the United States. |
If
an entity that is classified as a partnership for U.S. federal income tax purposes holds ordinary shares or ADSs, the U.S. federal
income tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Partnerships
holding ordinary shares or ADSs and partners in such partnerships are encouraged to consult their tax advisors as to the particular
U.S. federal income tax consequences of holding and disposing of ordinary shares or ADSs.
The
discussion is based on the Code, administrative pronouncements, judicial decisions, final, temporary and proposed Treasury
Regulations, and the income tax treaty between France and the United States, or the Treaty, all as of the date hereof, changes to
any of which may affect the tax consequences described herein — possibly with retroactive effect. There can be no assurances
that the U.S. Internal Revenue Service, or the IRS, will not take a position different from what is described below concerning the
tax consequences of the acquisition, ownership and disposition of ordinary shares or ADSs or that such a position would not be
sustained by a court.
A
“U.S. Holder” is a holder who, for U.S. federal income tax purposes, is a beneficial owner of ordinary shares or ADSs
and is:
|
(1) |
an
individual who is a citizen or resident of the United States; |
|
(2) |
a
corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under
the laws of the United States, any state therein or the District of Columbia; |
|
(3) |
an
estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
|
(4) |
a
trust if (1) a U.S. court is able to exercise primary supervision over the administration of the trust and one or more
U.S. persons have authority to control all substantial decisions of the trust or (2) the trust has a valid election to
be treated as a U.S. person under applicable U.S. Treasury Regulations. |
U.S.
Holders are encouraged to consult their tax advisors concerning the U.S. federal, state, local and non-U.S. tax consequences
of owning and disposing of ordinary shares or ADSs in their particular circumstances.
The
discussion below assumes that the representations contained in the deposit agreement are true and that the obligations in the
deposit agreement and any related agreement will be complied with in accordance with their terms. Generally, a holder of an ADS
should be treated for U.S. federal income tax purposes as holding the ordinary shares represented by the ADS. Accordingly, no
gain or loss will be recognized upon an exchange of ADSs for ordinary shares.
Passive
Foreign Investment Company rules
Under
the Code, we will be a PFIC for any taxable year in which (1) 75% or more of our gross income consists of passive income
or (2) 50% or more of the value of our assets (generally determined on the basis of a weighted quarterly average) consists
of assets that produce, or are held for the production of, passive income. For purposes of these tests, passive income includes
dividends, interest, gains from the sale or exchange of investment property and certain rents and royalties. Cash and cash-equivalents
are passive assets for these purposes. In addition, for purposes of the above calculations, a non-U.S. corporation that
directly or indirectly owns at least 25% by value of the shares of another corporation is treated as holding and receiving
directly its proportionate share of assets and income of such corporation. If we are a PFIC for any taxable year during which
a U.S. Holder holds our shares, the U.S. Holder may be subject to adverse tax consequences regardless of whether we continue to
qualify as a PFIC, including ineligibility for any preferred tax rates on capital gains or on actual or deemed dividends, interest
charges on certain taxes treated as deferred and additional reporting requirements.
We
do not believe that we were characterized as a PFIC for the year ended December 31, 2021 and do not expect to be a PFIC for
the year ending December 31, 2022. However, the determination of whether we are a PFIC is a fact-intensive determination made
on an annual basis applying principles and methodologies that in some circumstances are unclear and subject to varying interpretation.
As a result, there can be no assurance that we will not be treated as a PFIC for the current or any future taxable year. In addition,
the total value of our assets for PFIC testing purposes (including goodwill) may be determined in part by reference to the market
price of our ordinary shares or ADSs from time to time, which may fluctuate considerably. Accordingly, if our market capitalization
declines while we hold a substantial amount of cash and cash-equivalents for any taxable year we may be a PFIC for that taxable
year. Under the income test, our status as a PFIC depends on the composition of our income for the relevant taxable year which
will depend on the transactions we enter into in the future and our corporate structure. The composition of our income and assets
is also affected by how we spend the cash we raise in any offering, including this offering. Even if we determine that we are
not a PFIC for a taxable year, there can be no assurance that the IRS will agree with our conclusion and that the IRS would not
successfully challenge our position. Accordingly, our U.S. counsel expresses no opinion with respect to our PFIC status for any
prior, current or future taxable year.
If
we are classified as a PFIC in any year with respect to which a U.S. Holder owns our ordinary shares or ADSs, we will continue
to be treated as a PFIC with respect to such U.S. Holder in all succeeding years during which the U.S. Holder owns the ordinary
shares or ADSs, regardless of whether we continue to meet the tests described above unless we cease to be a PFIC and the U.S.
Holder has made a “deemed sale” election under the PFIC rules. If such a deemed sale election is made, a U.S. Holder
will be deemed to have sold the ordinary shares or ADSs the U.S. Holder holds at their fair market value and any gain from such
deemed sale would be subject to the rules described below. After the deemed sale election, so long as we do not become a PFIC
in a subsequent taxable year, the U.S. Holder’s ordinary shares or ADSs with respect to which such election was made will
not be treated as shares in a PFIC and the U.S. Holder will not be subject to the rules described below with respect to any “excess
distribution” the U.S. Holder receives from us or any gain from an actual sale or other disposition of the ordinary shares
or ADSs. U.S. Holders should consult their tax advisors as to the possibility and consequences of making a deemed sale election
if we are a PFIC and cease to be a PFIC and such election becomes available.
For
each taxable year that we are treated as a PFIC with respect to U.S. Holders, U.S. Holders will be subject to special tax rules
with respect to any “excess distribution” such U.S. Holder receives and any gain such U.S. Holder recognizes from
a sale or other disposition (including a pledge) of ordinary shares or ADSs, unless our ordinary shares or ADSs constitute “marketable
stock” and such U.S. Holder makes a mark-to-market election (as discussed below). Distributions a U.S. Holder
receives in a taxable year that are greater than 125% of the average annual distributions a U.S. Holder received during the shorter
of the three preceding taxable years or the U.S. Holder’s holding period for the ordinary shares or ADSs will be treated
as an excess distribution. Under these special tax rules:
|
● |
the
excess distribution or gain will be allocated ratably over a U.S. Holder’s holding period for the ordinary shares or
ADSs; |
|
● |
the
amount allocated to the taxable year of the disposition or distribution (as applicable), and any taxable year prior to the
first taxable year in which we became a PFIC, will be treated as ordinary income; and |
|
● |
the
amount allocated to each other year will be subject to the highest tax rate in effect for that year and the interest charge
generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year. |
The
tax liability for amounts allocated to years prior to the year of disposition or “excess distribution” cannot be offset
by any net operating losses for such years, and gains (but not losses) realized on the sale of the ordinary shares or ADSs cannot
be treated as capital, even if a U.S. Holder holds the ordinary shares or ADSs as capital assets.
If
we are a PFIC, a U.S. Holder generally will be subject to similar rules with respect to distributions we receive from, and our
dispositions of the stock of, any of our direct or indirect subsidiaries or any other entities in which we hold equity interests
that also are PFICs, or lower-tier PFICs, as if such distributions were indirectly received by, and/or dispositions were indirectly
carried out by, such U.S. Holder. U.S. Holders should consult their tax advisors regarding the application of the PFIC rules to
lower-tier PFICs.
U.S.
Holders can avoid the interest charge on excess distributions or gain relating to the ordinary shares or ADSs by making an effective
QEF Election. However, a U.S. Holder can only make a QEF election with respect to ordinary shares or ADSs in a PFIC if such company
agrees to furnish such U.S. Holder with certain tax information annually. We do not presently intend to provide the information
required to allow a U.S. Holder to make a QEF election if we are a PFIC.
U.S.
Holders can avoid the interest charge on excess distributions or gain relating to the ordinary shares or ADSs by making a mark-to-market election
with respect to the ordinary shares or ADSs, provided that the ordinary shares or ADSs are “marketable stock.” Ordinary
shares or ADSs will be marketable stock if they are “regularly traded” on certain U.S. stock exchanges or on a non-U.S. stock
exchange that meets certain conditions. For these purposes, the ordinary shares or ADSs will be considered regularly traded during
any calendar year during which they are traded, other than in de minimis quantities, on at least 15 days during
each calendar quarter. Any trades that have as their principal purpose meeting this requirement will be disregarded. Our ADSs
will be listed on the Nasdaq Global Select Market, which is a qualified exchange for these purposes. Consequently, if our ADSs
remain listed on the Nasdaq Global Select Market and are regularly traded, and you are a holder of ADSs, we expect the mark-to-market election
would be available to U.S. Holders if we are a PFIC. Each U.S. Holder should consult its tax advisor as to the whether a mark-to-market election
is available or advisable with respect to the ordinary shares or ADSs.
A
U.S. Holder that makes a mark-to-market election must include in ordinary income for each year an amount equal to the
excess, if any, of the fair market value of the ordinary shares or ADSs at the close of the taxable year over the U.S. Holder’s
adjusted tax basis in the ordinary shares or ADSs. An electing U.S. Holder may also claim an ordinary loss deduction for the excess,
if any, of the U.S. Holder’s adjusted basis in the ordinary shares or ADSs over the fair market value of the ordinary shares
or ADSs at the close of the taxable year, but this deduction is allowable only to the extent of any net mark-to-market gains
for prior years. Gains from an actual sale or other disposition of the ordinary shares or ADSs in any year in which we are a PFIC
will be treated as ordinary income, and any losses incurred on a sale or other disposition of the shares will be treated as an
ordinary loss to the extent of any net mark-to-market gains for prior years. Once made, the election cannot be revoked
without the consent of the IRS unless the ordinary shares or ADSs cease to be marketable stock.
However,
a mark-to-market election generally cannot be made for equity interests in any lower-tier PFICs that we own, unless
shares of such lower-tier PFIC are themselves “marketable stock.” As a result, even if a U.S. Holder validly makes
a mark-to-market election with respect to our ordinary shares or ADSs, the U.S. Holder may continue to be subject to
the PFIC rules (described above) with respect to its indirect interest in any of our investments that are treated as an equity
interest in a PFIC for U.S. federal income tax purposes. U.S. Holders should consult their tax advisors as to the availability
and desirability of a mark-to-market election, as well as the impact of such election on interests in any lower-tier
PFICs.
Unless
otherwise provided by the U.S. Treasury, each U.S. shareholder of a PFIC is required to file an annual report containing such
information as the U.S. Treasury may require. A U.S. Holder’s failure to file the annual report may result in substantial
penalties and extend the statute of limitations with respect to the U.S. Holder’s federal income tax return. U.S. Holders
should consult their tax advisors regarding the requirements of filing such information returns under these rules.
WE
STRONGLY URGE YOU TO CONSULT YOUR TAX ADVISOR REGARDING THE IMPACT OF OUR PFIC STATUS ON YOUR INVESTMENT IN THE ORDINARY SHARES
OR ADSs AS WELL AS THE APPLICATION OF THE PFIC RULES TO YOUR INVESTMENT IN THE ORDINARY SHARES OR ADSs.
Taxation
of distributions
Subject
to the discussion above under “Passive Foreign Investment Company rules,” distributions paid on ordinary shares or
ADSs, other than certain pro rata distributions of ordinary shares or ADSs, will generally be treated as dividends
to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles).
Because we may not calculate our earnings and profits under U.S. federal income tax principles, we expect that distributions generally
will be reported to U.S. Holders as dividends. Subject to applicable limitations, dividends paid to certain non-corporate U.S.
Holders may be taxable at preferential rates applicable to “qualified dividend income.” However, the qualified dividend
income treatment will not apply if we are treated as a PFIC with respect to the U.S. Holder for our taxable year of the distribution
or the preceding taxable year. The amount of a dividend will include any amounts withheld by us in respect of French income taxes.
The amount of the dividend will be treated as foreign-source dividend income to U.S. Holders and will not be eligible for the
dividends-received deduction generally available to U.S. corporations under the Code. Dividends will generally be included in
a U.S. Holder’s income on the date of the U.S. Holder’s receipt of the dividend. The amount of any dividend income
paid in foreign currency will be the U.S. dollar amount calculated by reference to the exchange rate in effect on the date of
actual or constructive receipt, regardless of whether the payment is in fact converted into U.S. dollars. If the dividend is converted
into U.S. dollars on the date of receipt, a U.S. Holder should not be required to recognize foreign currency gain or loss in respect
of the dividend income. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into U.S. dollars after
the date of receipt. Such gain or loss would generally be treated as U.S.-source ordinary income or loss. The amount of any distribution
of property other than cash (and other than certain pro rata distributions of ordinary shares or ADSs or rights
to acquire ordinary shares or ADSs) will be the fair market value of such property on the date of distribution.
For
foreign tax credit purposes, our dividends will generally be treated as passive category income. Subject to applicable limitations,
some of which vary depending upon the U.S. Holder’s particular circumstances, certain French income taxes withheld from
dividends on ordinary shares or ADSs at a rate not exceeding the rate provided by the Treaty may be creditable against the U.S.
Holder’s U.S. federal income tax liability. However, recently issued Treasury Regulations, which apply to foreign taxes
paid or accrued in taxable years beginning on or after December 28, 2021, may in some circumstances prohibit a U.S. person from
claiming a foreign tax credit with respect to certain non-U.S. taxes that are not creditable under applicable income tax treaties.
The rules governing foreign tax credits are complex and U.S. Holders should consult their tax advisors regarding the creditability
of foreign taxes in their particular circumstances. In lieu of claiming a foreign tax credit, U.S. Holders may, at their election,
deduct foreign taxes, including any French income tax, in computing their taxable income, subject to generally applicable limitations
under U.S. law. An election to deduct foreign taxes instead of claiming foreign tax credits applies to all foreign taxes paid
or accrued in the taxable year.
Sale
or other taxable disposition of ordinary shares and ADSs
Subject
to the discussion above under “Passive Foreign Investment Company rules,” gain or loss realized on the sale or other
taxable disposition of ordinary shares or ADSs will be capital gain or loss, and will be long-term capital gain or loss if the
U.S. Holder held the ordinary shares or ADSs for more than one year. The amount of the gain or loss will equal the difference
between the U.S. Holder’s tax basis in the ordinary shares or ADSs disposed of and the amount realized on the disposition,
in each case as determined in U.S. dollars. This gain or loss will generally be U.S.-source gain or loss for foreign tax credit
purposes. The deductibility of capital losses is subject to limitations.
If
the consideration received by a U.S. Holder is not paid in U.S. dollars, the amount realized will be the U.S. dollar value of
the payment received determined by reference to the spot rate of exchange on the date of the sale or other disposition. However,
if the ordinary shares or ADSs are treated as traded on an “established securities market” and you are either a cash
basis taxpayer or an accrual basis taxpayer that has made a special election (which must be applied consistently from year to
year and cannot be changed without the consent of the IRS), you will determine the U.S. dollar value of the amount realized in
a non-U.S. dollar currency by translating the amount received at the spot rate of exchange on the settlement date of
the sale. If you are an accrual basis taxpayer that is not eligible to or does not elect to determine the amount realized using
the spot rate on the settlement date, you will recognize foreign currency gain or loss to the extent of any difference between
the U.S. dollar amount realized on the date of sale or disposition and the U.S. dollar value of the currency received at the spot
rate on the settlement date.
Information
reporting and backup withholding
Payments
of dividends and sales proceeds that are made within the United States or through certain U.S.-related financial intermediaries
generally are subject to information reporting, and may be subject to backup withholding, unless (i) the U.S. Holder is a
corporation or other exempt recipient or (ii) in the case of backup withholding, the U.S. Holder provides a correct taxpayer
identification number and certifies that it is not subject to backup withholding.
Backup
withholding is not an additional tax. The amount of any backup withholding from a payment to a U.S. Holder will be allowed as
a credit against the holder’s U.S. federal income tax liability and may entitle it to a refund, provided that the required
information is timely furnished to the IRS.
Information
with respect to foreign financial assets
Certain
U.S. Holders who are individuals and certain closely-held entities may be required to report information relating to the ordinary
shares or ADSs, subject to certain exceptions (including an exception for ordinary shares or ADSs held in accounts maintained
by financial institutions, in which case the accounts themselves may have to be reported if maintained by non-U.S. financial
institutions). U.S. Holders should consult their tax advisors regarding their reporting obligations with respect to their ownership
and disposition of the ordinary shares or ADSs.
Material
French Tax Considerations
The
following describes the material French income tax consequences to U.S. holders of purchasing, owning and disposing of our ADSs
and, unless otherwise noted, this discussion is the opinion of Gide Loyrette Nouel A.A.R.P.I, our French tax counsel, insofar
as it relates to matters of French tax law and legal conclusions with respect to those matters.
This
discussion does not purport to be a complete analysis or listing of all potential tax effects of the acquisition, ownership or
disposition of our ADSs to any particular investor, and does not discuss tax considerations that arise from rules of general application
or that are generally assumed to be known by investors. All of the following is subject to change. Such changes could apply retroactively
and could affect the consequences described below.
The
description of the French income tax and wealth tax consequences set forth below is based on the Convention Between the Government
of the United States of America and the Government of the French Republic for the Avoidance of Double Taxation and the Prevention
of Fiscal Evasion with Respect to Taxes on Income and Capital of August 31, 1994, or the Treaty, which came into force on December
30, 1995 (as amended by any subsequent protocols, including the protocol of January 13, 2009), and the tax guidelines issued by
the French tax authorities in force as of the date of this prospectus supplement.
This
discussion applies only to investors that are entitled to Treaty benefits under the “Limitation on Benefits” provision
contained in the Treaty.
In
2011, France introduced a comprehensive set of new tax rules applicable to French assets that are held by or in foreign trusts.
These rules provide inter alia for the inclusion of trust assets in the settlor’s net assets for the purpose of applying
the French real estate wealth tax, for the application of French gift and death duties to French assets held in trust, for a specific
tax on capital on the French assets of foreign trusts not already subject to the French real estate wealth tax and for a number
of French tax reporting and disclosure obligations. The following discussion does not address the French tax consequences applicable
to securities (including ADSs) held in trusts. If ADSs are held in trust, the grantor, trustee and beneficiary are urged to consult
their own tax advisor regarding the specific tax consequences of acquiring, owning and disposing of securities (including ADSs).
U.S.
holders are urged to consult their own tax advisors regarding the tax consequences of the purchase, ownership and disposition
of securities in light of their particular circumstances, especially with regard to the “Limitations on Benefits”
provision.
Estate
and Gift Taxes and Transfer Taxes
In
general, a transfer of securities by gift or by reason of death of a U.S. holder that would otherwise be subject to French gift
or inheritance tax, respectively, will not be subject to such French tax by reason of the Convention between the Government of
the United States of America and the Government of the French Republic for the Avoidance of Double Taxation and the Prevention
of Fiscal Evasion with Respect to Taxes on Estates, Inheritances and Gifts, dated November 24, 1978 (as amended by the protocol
of December 8, 2004), unless (i) the donor or the transferor is domiciled in France at the time of making the gift or at the time
of his or her death, or (ii) the securities were used in, or held for use in, the conduct of a business through a permanent establishment
or a fixed base in France.
Financial
Transaction Tax
Pursuant
to Article 235 ter ZD of the Code général des impôts (French Tax Code, or FTC), purchases of shares
or ADSs of a French company listed on a regulated market of the European Union or on a foreign regulated market formally acknowledged
by the French Financial Market Authority, or AMF, are subject to a 0.3% French tax on financial transactions provided that the
issuer’s market capitalization exceeds 1 billion euros as of December 1 of the year preceding the taxation year pursuant
to Regulations BOI-ANNX-000467-29/12/2021 issued on December 29, 2021. A list of French relevant companies whose market capitalization
exceeds 1 billion euros as of December 1 of the year preceding the taxation year is published annually and at least once a year,
by the French State. As at December 1, 2021, our market capitalization did exceed 1 billion euros. However, the Nasdaq Global
Select Market is not currently acknowledged by the French AMF, even though this may change in the future.
Purchases
of our securities may be subject to such tax provided that (i) its market capitalization continues to exceed 1 billion euros and
(ii) that the Nasdaq Global Select Market becomes a foreign regulated market formally acknowledged by the AMF.
In
the case where Article 235 ter ZD of the FTC is not applicable, transfers of shares issued by a French company, which is listed
on a regulated or organized market within the meaning of the French Financial and Monetary Code, are subject to uncapped registration
duties at the rate of 0.1% if the transfer is evidenced by a written statement (“acte”) executed either in
France or outside France. Although there is no case law or official guidelines published by the French tax authorities on this
point, transfers of ADSs should remain outside of the scope of the aforementioned 0.1% registration duties.
Tax
on Sale or Other Disposition
As
a matter of principle, under French tax law, a U.S. holder should not be subject to any French tax on any capital gain from the
sale, exchange, repurchase or redemption by us of ordinary shares or ADSs, provided such U.S. holder is not a French tax resident
for French tax purposes and has not held more than 25% of our dividend rights, known as “droits aux benefices sociaux,”
at any time during the preceding five years, either directly or indirectly, and, as relates to individuals, alone or with
relatives (as an exception, a U.S holder resident, established or incorporated in a non-cooperative State or territory as defined
in Article 238-0 A of the FTC other than those States or territories mentioned in 2° of 2 bis of the same Article 238-0 A
should be subject to a 75% withholding tax in France on any such capital gain, regardless of the fraction of the dividend rights
it holds).
Under
application of the Treaty, a U.S. holder who is a U.S. resident for purposes of the Treaty and entitled to Treaty benefit will
not be subject to French tax on any such capital gain unless the ordinary shares or the ADSs form part of the business property
of a permanent establishment or fixed base that the U.S. holder has in France. U.S. holders who own ordinary shares or ADSs through
U.S. partnerships that are not resident for Treaty purposes are advised to consult their own tax advisors regarding their French
tax treatment and their eligibility for Treaty benefits in light of their own particular circumstances. A U.S. holder that is
not a U.S. resident for Treaty purposes or is not entitled to Treaty benefit (and in both cases is not resident, established or
incorporated in a non-cooperative State or territory as defined in Article 238-0 A of the FTC other than those States or territories
mentioned in 2° of 2 bis of the same Article 238-0 A) and has held more than 25% of our dividend rights, known as “droits
aux benefices sociaux,” at any time during the preceding five years, either directly or indirectly, and, as relates
to individuals, alone or with relatives will be subject to a levy in France at the rate of 12.8% if such U.S. holder is an individual
or 25% for corporate bodies or other legal entities (as from January 1, 2022). Special rules apply to U.S. holders who are residents
of more than one country.
Taxation
of Dividends
Dividends
paid by a French corporation to non-residents of France are generally subject to French withholding tax at a rate of 12.8% when
the recipient is an individual and 25% otherwise. Dividends paid by a French corporation in a non-cooperative State or territory,
as defined in Article 238-0 A of the FTC other than those States or territories mentioned in 2° of 2 bis of the same Article
238-0 A, may be subject to French withholding tax at a rate of 75%. However, eligible U.S. holders, other than individuals subject
to the French withholding tax at a rate of 12.8%, entitled to Treaty benefits under the “Limitation on Benefits” provision
contained in the Treaty who are U.S. residents, as defined pursuant to the provisions of the Treaty, will not be subject to this
25% or 75% withholding tax rate, but may be subject to the withholding tax at a reduced rate (as described below).
Under
the Treaty, the rate of French withholding tax on dividends paid to an eligible U.S. holder who is a U.S. resident as defined
pursuant to the provisions of the Treaty and whose ownership of the ordinary shares or ADSs is not effectively connected with
a permanent establishment or fixed base that such U.S. holder has in France, may be reduced to 15%, or to 5% if such U.S. holder
is a corporation and owns directly or indirectly at least 10% of the share capital of the issuer; such U.S. holder may claim a
refund from the French tax authorities of the amount withheld in excess of the Treaty rates of 15% or 5%, if any.
For
U.S. holders that are not individuals but are U.S. residents, as defined pursuant to the provisions of the Treaty, the requirements
for eligibility for Treaty benefits, including the reduced 5% or 15% withholding tax rates contained in the “Limitation
on Benefits” provision of the Treaty, are complex, and certain technical changes were made to these requirements by the
protocol of January 13, 2009. U.S. holders are advised to consult their own tax advisors regarding their eligibility for Treaty
benefits in light of their own particular circumstances. Dividends paid to an eligible U.S. holder may immediately be subject
to the reduced rates of 5% or 15% provided that:
| ● | such
holder establishes before the date of payment that it is a U.S. resident under the Treaty
by completing and providing the depositary with a treaty form (Form 5000) in accordance
with the French guidelines (BOI-INT-DG-20-20-20-20-12/09/2012); or |
| ● | the
depositary or other financial institution managing the securities account in the United
States of such holder provides the French paying agent with a document listing certain
information about the U.S. holder and its ordinary shares or ADSs and a certificate whereby
the financial institution managing the U.S. holder’s securities account in the
United States takes full responsibility for the accuracy of the information provided
in the document. |
Otherwise,
dividends paid to a U.S. holder, other than individuals subject to the French withholding tax at a rate of 12.8%, will be subject
to French withholding tax at the rate of 25%, or 75% if paid in a non-cooperative State or territory (as defined in Article 238-0
A of the FTC, other than those States or territories mentioned in 2° of 2 bis of the same Article 238-0 A), and then reduced
at a later date to 5% or 15%, provided that such holder duly completes and provides the French tax authorities with the treaty
forms Form 5000 and Form 5001 before December 31 of the second calendar year following the year during which the dividend is paid.
Certain
qualifying pension funds and certain other tax-exempt entities are subject to the same general filing requirements as other U.S.
holders except that they may have to supply additional documentation evidencing their entitlement to these benefits.
Form
5000 and Form 5001, together with instructions, will be provided by the depositary to all U.S. holders registered with the depositary.
The depositary will arrange for the filing with the French tax authorities of all such forms properly completed and executed by
U.S. holders of ordinary shares or ADSs and returned to the depositary in sufficient time so that they may be filed with the French
tax authorities before the distribution in order to immediately obtain a reduced withholding tax rate. Otherwise, the depositary
must withhold tax at the full rate of 25% or 75% as applicable. In that case, the U.S. holders may claim a refund from the French
tax authorities of the excess withholding tax.
Since
the withholding tax rate applicable under French domestic law to U.S. holders who are individuals does not exceed the cap provided
in the Treaty (i.e. 15%), the 12.8% rate shall apply, without any reduction provided under the Treaty.
Subject
to certain specific conditions, a corporate U.S. Holder which is in a tax loss position for the fiscal year during which the dividend
is received may be entitled to a deferral regime and to obtain a withholding tax refund. Furthermore, subject to certain conditions,
a corporate U.S. Holder may compute the withholding tax on a net basis (i.e., after deduction of expenses) and obtain a partial
withholding tax refund.
Real
Estate Wealth Tax
On
January 1, 2018, the French wealth tax was replaced with a real estate wealth tax (“impôt sur la fortune immobilière”,
or IFI). Individuals holding directly or indirectly through one or more legal entities real estate assets or rights with a value
exceeding €1,300,000 may fall within the scope of the IFI. A general exclusion applies to real estate assets owned by companies
carrying out a commercial or industrial activity when the taxpayer (together with the members of his/her household) holds directly
or indirectly less than 10% of the share capital or voting rights of the company. ADSs owned by a U.S. holder should not fall
within the scope of the IFI provided that such U.S. holder does not own (together with the members of his/her household) directly
or indirectly a shareholding exceeding 10% of the financial rights and voting rights of our share capital. U.S. holders holding
directly or indirectly a shareholding exceeding 10% of the financial rights and voting rights of our share capital should seek
additional advice.
THE
DISCUSSION ABOVE IS A SUMMARY OF THE MATERIAL FRENCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES OF AN INVESTMENT IN OUR ADSs OR
ORDINARY SHARES AND IS BASED UPON LAWS AND RELEVANT INTERPRETATIONS THEREOF IN EFFECT AS OF THE DATE OF THIS PROSPECTUS SUPPLEMENT,
ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY WITH RETROACTIVE EFFECT. EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT ITS OWN TAX
ADVISOR ABOUT THE TAX CONSEQUENCES TO IT OF AN INVESTMENT IN ADSs OR ORDINARY SHARES IN LIGHT OF THE INVESTOR’S OWN CIRCUMSTANCES.
PLAN
OF DISTRIBUTION
We
have entered into a Sales Agreement with Jefferies, acting as agent, under which we may offer and sell ADSs, each ADS representing two ordinary shares, from time to time and representing, together with all the other ordinary shares which have been admitted to
trading on Euronext Paris without a French listing prospectus, over a rolling period of 12 months, less than 20% of the total number of the Company's securities admitted to trading on Euronext Paris. Sales of our
ADSs, if any, under this prospectus supplement may be made in sales deemed to be an “at the market offering” as defined
in Rule 415(a)(4) under the Securities Act. Pursuant to this prospectus supplement, we may offer and sell ADS having an aggregate
offering price of up to $75.0 million.
Under the authority granted by our shareholders, the ADSs we are offering may only be purchased by: (i) natural person(s) or legal entity(ies), including companies, trusts, investment funds or other investment vehicle(s), regardless of their form, under French or foreign law, investing on a regular basis in the pharmaceutical, biotechnological or medical technology sector, and/or (ii) French or foreign companies, institutions or entities of any form, carrying out a significant portion of their business in the pharmaceutical, cosmetics or chemical sector or in the field of medical devices and/or technologies or research in these areas.
Each
time we wish to issue and sell our ADSs under the Sales Agreement, we will notify Jefferies of the number of ADSs to be issued,
any time period over which such sales may be made, any limitation on the number of ADSs to be sold, and any limitation on the
price at which such sales may be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of
such notice, Jefferies has agreed to use its commercially reasonable efforts, consistent with its normal trading and sales practices,
to arrange on our behalf for the sale of all such ADSs requested to be sold by us on the specified terms.
The
obligations of Jefferies under the Sales Agreement to sell our ADSs are subject to a number of conditions that we must meet including
the determination of our Supervisory Board and Management Board to issue the shares underlying the ADSs to be sold under the Sales
Agreement.
We
expect to deliver ordinary shares to Jefferies for settlement on the second trading day following the date on which the sale of
the ADSs was made. However, the purchaser of any ADSs in the offering may agree for settlement to occur on an alternative settlement
cycle, as permitted under Rule 15c6-1 promulgated under the Exchange Act.
Sales
of our ADSs as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company
or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust
or similar arrangement.
We
will pay Jefferies a commission equal to 3.0% of the aggregate gross proceeds we receive from each sale of our ADSs. Because there
is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions
and proceeds to us, if any, are not determinable at this time. In addition, we have agreed to reimburse Jefferies for the incurred
fees and disbursements of its outside counsel, payable upon execution of the Sales Agreement, in an amount not to exceed $150,000,
in addition to certain ongoing disbursements of its legal counsel, unless we and Jefferies otherwise agree. We estimate that the
total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the
Sales Agreement, will be approximately $663,040. The remaining sale proceeds, after deducting any other transaction fees, will equal
our net proceeds from the sale of such ADSs.
Jefferies
will provide written confirmation to us before the open of trading on the regulated market of Euronext in Paris on the day following
each day in which ADSs are sold through it as sales agent under the Sales Agreement. Each confirmation will include the number
of ADSs sold through it as sales agent on that day, the price of the ADSs sold, the gross proceeds to us and copies of such documents
as required by French law and the limits and other conditions set forth in our corporate authorizations.
We
will report at least quarterly the number of ADSs sold through Jefferies under the Sales Agreement, the net proceeds to us and
the compensation paid by us to Jefferies in connection with the sales of ADSs.
In
connection with the sale of our ADSs on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning
of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions. We have agreed to indemnify
Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute
to payments Jefferies may be required to make in respect of such liabilities.
The
offering of our ADSs pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all ADSs subject
to the Sales Agreement and (ii) the termination of the Sales Agreement as permitted therein.
This
summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions.
A copy of the Sales Agreement will be filed as an exhibit to a on Form 6-K filed under the Exchange Act, and incorporated
by reference in this prospectus supplement.
Jefferies
and its affiliates have provided and may in the future provide various investment banking, commercial banking, financial advisory
and other financial services for us and our affiliates, for which services they have received, and may in the future receive,
customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts
of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
This
prospectus supplement in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute
this prospectus supplement electronically.
The
address of Jefferies LLC is 520 Madison Avenue, New York, New York 10022.
MATERIAL
CHANGES
Except
as described above or otherwise described in our Annual Report on Form 20-F for the fiscal year ended December 31, 2021 and in
our Reports on Form 6-K incorporated by reference into this prospectus supplement, no reportable material changes have occurred
since December 31, 2021.
ENFORCEMENT
OF JUDGMENTS
We
are a corporation organized under the laws of France. The majority of our members of the Management Board and Supervisory Board
are citizens and residents of countries other than the United States, and the majority of our assets are located outside of the
United States. We have appointed an agent for service of process in the United States; however, it may be difficult for investors:
|
● |
to
obtain jurisdiction over us or our non-U.S. resident members of the Management Board and Supervisory Board in U.S.
courts in actions predicated on the civil liability provisions of the U.S. federal securities laws; |
|
● |
to
enforce judgments obtained in such actions against us or our non-U.S. resident members of the Management Board and
supervisory; |
|
● |
to
bring an original action in a French court to enforce liabilities based upon the U.S. federal securities laws against us or
our non-U.S. resident members of the Management Board and Supervisory Board; and |
|
● |
to
enforce against us or our Management Board in non-U.S. courts, including French courts, judgments of U.S. courts
predicated upon the civil liability provisions of the U.S. federal securities laws. |
Nevertheless,
a final judgment for the payment of money rendered by any federal or state court in the United States based on civil liability,
whether or not predicated solely upon the U.S. federal securities laws, would be recognized and enforced in France provided that
a French judge considers that this judgment meets the French legal requirements concerning the recognition and the enforcement
of foreign judgments and is capable of being immediately enforced in the United States. A French court is therefore likely to
grant the enforcement of a foreign judgment without a review of the merits of the underlying claim, only if (1) that judgment
is enforceable in the jurisdiction of the U.S. court which rendered it, (2) that judgment was rendered by a court having
jurisdiction over the dispute (the condition will be met if the dispute is clearly connected to the jurisdiction of the U.S. court
and French courts did not have exclusive jurisdiction over the matter), (3) that judgment does not contravene French international
public order and public policy, including the right to due process, and (4) the U.S. judgment is not tainted with fraud and
is not incompatible with a judgment rendered by a French court in the same matter, or with an earlier judgment rendered by a foreign
court in the same matter.
In
addition, French law guarantees full compensation for the harm suffered but is limited to the actual damages, so that the victim
does not suffer or benefit from the situation. Such system excludes damages such as, but not limited to, punitive and exemplary
damages.
As
a result, the enforcement, by U.S. investors, of any judgments obtained in U.S. courts in civil and commercial matters, including
judgments under the U.S. federal securities law against us or members of our Management Board and Supervisory Board or certain
experts named herein who are residents of France or countries other than the United States would be subject to the above conditions.
Finally,
there may be doubt as to whether a French court would impose civil liability on us, the members of our Management Board and Supervisory
Board or certain experts named herein in an original action predicated solely upon the U.S. federal securities laws brought in
a court of competent jurisdiction in France against us or such members, officers or experts, respectively.
LEGAL
MATTERS
The
validity of our ordinary shares, including ordinary shares represented by ADSs offered by this prospectus supplement and certain
other matters governed by French law will be passed on for us by Hogan Lovells Paris LLP. Cooley LLP, Boston, Massachusetts, will
be representing us in regards to certain matters governed by U.S. law in connection with this offering. French and U.S. legal
counsel to the placement agent in connection with this offering is Gide Loyrette Nouel A.A.R.P.I., Paris, France and Goodwin Procter
LLP, New York, New York, respectively.
EXPERTS
The consolidated financial statements of Valneva SE incorporated in this prospectus supplement by reference to the Annual Report on Form
20-F for the year ended December 31, 2021 have been audited by Deloitte & Associés (PCAOB ID: 1756) and PricewaterhouseCoopers
Audit (PCAOB ID: 1347), independent registered public accounting firms as stated in their report. Such financial statements are incorporated
by reference in reliance upon the report of such firms given their authority as experts in accounting and auditing.
The
offices of Deloitte & Associés are located at 19, boulevard Alfred Daney, 33041 Bordeaux Cedex, France.
The
offices of PricewaterhouseCoopers Audit are located at 63, rue de Villiers, 92208 Neuilly-sur-Seine Cedex, France.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus supplement is part of a registration statement we filed with the SEC. This prospectus supplement does not contain all
of the information set forth in the registration statement and the exhibits to the registration statement. For further information
with respect to us and the securities we are offering under this prospectus supplement, we refer you to the registration statement
and the exhibits and schedules filed as a part of the registration statement. You should rely only on the information contained
in this prospectus supplement or incorporated by reference herein. We have not authorized anyone else to provide you with different
information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus supplement is accurate as of any date other than the date on the front page of this prospectus
supplement, regardless of the time of delivery of this prospectus supplement or any sale of the securities offered by this prospectus
supplement.
We
are subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. Under the Exchange
Act, we file annual reports on Form 20-F and other information with the SEC. We also furnish to the SEC under cover of Form 6-K
material information required to be made public in France, filed with and made public by any stock exchange on which we are listed
or distributed by us to our shareholders. As a foreign private issuer, we are exempt from, among other things, the rules under
the Exchange Act prescribing the furnishing and content of proxy statements and the members of our management board and supervisory
board and our principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section
16 of the Exchange Act. The SEC maintains a website that contains reports, proxy and information statements and other information
regarding issuers, such as us, that file electronically with the SEC. The address of the SEC website is www.sec.gov.
We
maintain a website at www.valneva.com. Information contained in or accessible through our website does not constitute a
part of this prospectus supplement.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important
information to you by referring you to those publicly available documents. The information that we incorporate by reference in
this prospectus supplement is considered to be part of this prospectus supplement. Any statement contained in this prospectus
supplement or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of
this prospectus supplement to the extent that a statement contained in this prospectus supplement or a subsequently filed document
incorporated by reference modifies or replaces that statement. The SEC file number for the documents incorporated by reference
in this prospectus supplement is 001-40377.
The
documents we are incorporating by reference are:
| ● | our
Reports on Form 6-K filed or furnished with the SEC on January 10, 2022, January 19, 2022, January 26, 2022, February 1, 2022, February 4, 2022, February 23, 2022, March 1, 2022, March 8, 2022, March 14, 2022, March 22, 2022, March 25, 2022 (excluding exhibit
99.3 filed therewith), April 19, 2022, April 26, 2022, May 5, 2022 (excluding exhibit
99.4 filed therewith, and as amended by Amendment No. 1 to Form 6-K filed on August 11, 2022), May 16, 2022, May 20, 2022, May 25, 2022, June 3, 2022, June 8, 2022, June 10, 2022, June 15, 2022, June 23, 2022, June 24, 2022, July 20, 2022, August 3, 2022 and August 11, 2022 and our Report on Form 6-K/A filed on August 11, 2022; and |
| ● | the
description of ADSs representing our ordinary shares contained in our Registration Statement
on Form 8-A filed with the SEC on May 3, 2021, including any amendments or reports filed
for the purpose of updating such description. |
We
are also incorporating by reference all subsequent Annual Reports on Form 20-F that we file with the SEC and certain reports on
Form 6-K that we furnish to the SEC after the date of this prospectus supplement (if they state that they are incorporated by
reference into this prospectus supplement) prior to the termination of this offering. In all cases, you should rely on the later
information over different information included in this prospectus supplement.
Notwithstanding
the statements in the preceding paragraphs, no document, report or exhibit (or portion of any of the foregoing) or any other information
that we have “furnished” to the SEC pursuant to the Exchange Act shall be incorporated by reference into this prospectus
supplement.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or
oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus supplement but not
delivered with the prospectus supplement, including exhibits that are specifically incorporated by reference into such documents.
You should direct any requests for documents to:
Valneva
SE
6 rue Alain Bombard
44800
Saint-Herblain
France
+33
2 28 07 37 10
Up
to $75,000,000
American Depositary Shares representing Ordinary Shares
PROSPECTUS
SUPPLEMENT
Jefferies
,
2022
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
8.
Indemnification
of Directors and Officers.
Under
French law, provisions of bylaws that limit the liability of directors are prohibited. However, French law allows société européenne to
contract for and maintain liability insurance against civil liabilities incurred by any of their directors and officers involved
in a third-party action, provided that they acted in good faith and within their capacities as directors or officers of the company.
Criminal liability cannot be indemnified under French law, whether directly by the company or through liability insurance.
We
maintain liability insurance for the members of our Supervisory Board and Management Board, including insurance against liability
under the Securities Act of 1933, as amended, and we have entered into agreements with the members of our Supervisory Board and
Management Board to provide contractual indemnification. With certain exceptions and subject to limitations on indemnification
under French law, these agreements will provide for indemnification for damages and expenses including, among other things, attorneys’
fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding arising out of
his or her actions in that capacity.
Certain
of the members of our Supervisory Board may, through their relationships with their employers or partnerships, be insured and/or
indemnified against certain liabilities in their capacity as members of our Supervisory Board.
In
any underwriting agreement we enter into in connection with the sale of ordinary shares, ADSs or warrants being registered hereby,
the underwriters will agree to indemnify, under certain conditions, us, members of our management board and supervisory board
and persons who control us within the meaning of the Securities Act against certain liabilities.
Item
9.
Exhibits.
The
following exhibits are filed with this registration statement or are incorporated herein by reference.
Exhibit
Number |
|
Exhibit
Description |
|
Filed
Herewith |
|
Incorporated
by Reference
herein from
Form or
Schedule |
|
Filing
Date |
|
SEC
File/
Reg.
Number |
1.1* |
|
Form
of Underwriting Agreement. |
|
|
|
|
|
|
|
|
3.1 |
|
Bylaws
(statuts) of the registrant (English translation). |
|
X |
|
|
|
|
|
|
4.1 |
|
Deposit
Agreement. |
|
|
|
F-1/A
(Exhibit
4.1) |
|
April
29, 2020 |
|
333-255155 |
4.2 |
|
Form
of American Depositary Receipt (included in Exhibit 4.2). |
|
|
|
F-1/A
(Exhibit
4.2) |
|
April
29, 2020 |
|
333-255155 |
4.3* |
|
Form
of Warrant. |
|
|
|
|
|
|
|
|
5.1 |
|
Opinion of Hogan Lovells Paris LLP |
|
X |
|
|
|
|
|
|
23.1 |
|
Consent
of Deloitte & Associés |
|
X |
|
|
|
|
|
|
23.2 |
|
Consent
of PricewaterhouseCoopers Audit |
|
X |
|
|
|
|
|
|
23.3 |
|
Consent
of Hogan Lovells Paris LLP (included in the opinion filed as Exhibit 5.1). |
|
X |
|
|
|
|
|
|
24.1 |
|
Powers
of Attorney (included on the signature page of this registration statement). |
|
X |
|
|
|
|
|
|
107 |
|
Calculation
of Filing Fee Tables. |
|
X |
|
|
|
|
|
|
*
To be subsequently filed, if applicable, by an amendment to this registration statement or as an exhibit to a report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, including any Report on Form 6-K, and incorporated herein by
reference.
Item
10.
Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the registration statement
is on Form F-3 and information required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934, as amended, or the Exchange Act, that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form
20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be furnished, provided, that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed
to include financial statements and information required by Section 10(a)(3) of the Securities Act, or Item 8.A of Form 20-F if
such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s Annual Report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s Annual Report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(d)
The undersigned registrant hereby undertakes
that, for the purpose of determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(e)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
(f)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 of
a third party that is incorporated by reference in the registration statement in accordance with Item 1100(c)(1) of Regulation
AB (17 CFR 229.1100(c)(1)) shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Saint-Herblain, France on
August 12, 2022.
|
|
VALNEVA
SE |
|
|
|
|
By: |
/s/
Thomas Lingelbach |
|
|
Name: Thomas Lingelbach |
|
|
Title: Chief Executive
Officer |
POWER
OF ATTORNEY AND SIGNATURES
We,
the undersigned members of the management board and supervisory board and authorized representative of Valneva SE, hereby severally
constitute and appoint Thomas Lingelbach and Peter Bühler, and each of them singly, our true and lawful attorneys with full
power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration
Statement on Form F-3 filed herewith and any and all amendments (including post-effective amendments) to said Registration Statement,
and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with said
Registration Statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, and generally to do all such things in our name and on our behalf in our
capacities as members of the management board and supervisory board to enable Valneva SE to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming
all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Name
|
|
Title
|
|
Date
|
/s/
Thomas Lingelbach
Thomas
Lingelbach
|
|
Chairman
of the Management Board, President, Chief Executive Officer
(Principal Executive Officer) |
|
August
12, 2022 |
/s/
Peter Bühler
Peter
Bühler
|
|
Chief
Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
|
August
12, 2022 |
/s/
Frédéric Grimaud
Frédéric
Grimaud
|
|
Chairman
of the Supervisory Board |
|
August
12, 2022 |
/s/
James Sulat
James
Sulat
|
|
Deputy
Chairman of the Supervisory Board |
|
August
12, 2022 |
/s/
James Connolly
James
Connolly
|
|
Member
of the Supervisory Board |
|
August
12, 2022 |
/s/
Anne-Marie Graffin
Anne-Marie
Graffin
|
|
Member
of the Supervisory Board |
|
August
12, 2022 |
/s/
Sharon Tetlow
Sharon
Tetlow
|
|
Member
of the Supervisory Board |
|
August
12, 2022 |
/s/
Johanna Willemina Pattenier
Johanna
Willemina Pattenier
|
|
Member
of the Supervisory Board |
|
August
12, 2022 |
/s/
Maïlys Ferrère
Bpifrance
Participations, represented by Maïlys Ferrère
|
|
Member
of the Supervisory Board |
|
August
12, 2022 |
SIGNATURE
OF AUTHORIZED U.S. REPRESENTATIVE
Pursuant
to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Valneva
SE, has signed this registration statement on August 12, 2022.
|
Valneva USA, Inc. |
|
|
|
By: |
/s/
Thomas Lingelbach |
|
|
Name: Thomas Lingelbach |
|
|
Title: Director |