UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the Month of August 2023
Commission File Number: 001-39374
Inventiva S.A.
(Translation of registrant’s name into
English)
50 rue de Dijon
21121 Daix France
+33 3 80 44 75 00
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F:
x Form 20-F
¨ Form 40-F
On August 30, 2023, Inventiva S.A. (the “Registrant”)
entered into subscription agreements (the “New Share Subscription Agreements”) with certain investors, pursuant to which the
Registrant agreed to issue and sell, and such investors agreed to purchase and acquire, an aggregate of 9,618,638 of the Registrant’s
ordinary shares, nominal value €0.01 per share (the “New Shares”), in a transaction exempt from registration under the
Securities Act of 1933, as amended (the “Securities Act”).
The
subscription price of the New Shares is €3.18 per ordinary share. Settlement and delivery of the New Shares is expected to
occur on or about September 5, 2023, subject to the satisfaction of customary closing conditions. In connection with the entry into
the New Share Subscription Agreements, the investors party thereto have agreed not to sell, transfer or otherwise dispose of the New Shares
for a period of six months following the date of closing, subject to certain specified exceptions.
The foregoing description of the New Share Subscription Agreements
is qualified in its entirety by reference to the form of New Share Subscription Agreement, a copy of which is filed as Exhibit 99.1
to this Report of Foreign Private Issuer on Form 6-K and is incorporated by reference herein.
Concurrently with the entry into the New Share Subscription Agreement,
on August 30, 2023, the Registrant entered into subscription agreements (the “Royalty Certificate Subscription Agreements”)
with certain investors, pursuant to which the Registrant agreed to issue and sell, and such investors agreed to purchase and acquire,
an aggregate of 51 royalty certificates (the “ Royalty Certificates”), in a transaction exempt from registration under the
Securities Act (collectively with the sale of the New Shares, the “Transactions”).
The Royalty Certificates will provide the holders thereof with the
right to an annual payment of royalties (“Royalties”) equal to 2% of the future net sales, if any, of the Registrant’s
product candidate lanifibranor beginning on the fiscal year following the start of the sales of lanifibranor following the granting of
the market authorization for lanifibranor in (i) the United States, (ii) the countries of the European Union or (iii) the
United Kingdom, whichever occurs the first, if at all.
The Royalty Certificates will have a term of 15 years following the
date of issue and do not provide for an accelerated repayment in case of change of control. The Registrant may at any time repurchase
in full the Royalty Certificates by paying an amount equal to (i) the global cap of €92.1 million minus any Royalties paid prior
to such repurchase or (ii) a price to be agreed between the Registrant and the holders of the Royalty Certificates. The Registrant
has a preemptive right on any transfer of Royalty Certificates.
The
subscription price of the Royalty Certificate is €100,000 per certificate. Settlement and delivery of the Royalty Certificates
is expected to occur on or about September 5, 2023, subject to the satisfaction of customary closing conditions. In connection with
the entry into the Royalty Certificate Subscription Agreements, the investors party thereto have agreed not to sell, transfer or otherwise
dispose of the Royalty Certificates for a period of six months following the date of closing, subject to certain specified exceptions.
The foregoing description of the Royalty Certificate Subscription Agreements
and the terms and conditions of the Royalty Certificates are qualified in their entirety by reference to the form of Royalty Certificate
Subscription Agreement, a copy of which is filed as Exhibits 99.2 to this Report of Foreign Private Issuer on Form 6-K and is incorporated
by reference herein.
The Registrant expects to receive aggregate gross proceeds from the
Transactions of approximately €35.7 million. The Registrant expects to use approximately 95% of the net proceeds from the Transactions
to support its ongoing NATiV3 Phase III clinical trial of lanifibranor for patients suffering from NASH, with the remainder to support
its other clinical and preclinical programs, as well as for general corporate purposes.
A copy of the press release issued on August 31, 2022 in connection
with the Transactions is attached hereto as Exhibit 99.3.
Forward-Looking Statements
This report on Form 6-K contains “forward-looking statements”
within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. All statements, other than statements
of historical facts, included in this Form 6-K are forward-looking statements. These statements include, but are not limited to,
the timing and completion of the Transactions, the commercialization of lanifibranor and achievement of any sales related thereto, payment
of royalties, the Registrant’s anticipated future performance and the expected use of proceeds from the Transactions. Certain of
these statements, forecasts and estimates can be recognized by the use of words such as, without limitation, “believes”, “anticipates”,
“expects”, “intends”, “plans”, “seeks”, “estimates”, “may”, “will”,
“would”, “could”, “might”, “should”, and “continue” and similar expressions.
Such statements are not historical facts but rather are statements of future expectations and other forward-looking statements that are
based on management’s beliefs. These statements reflect such views and assumptions prevailing as of the date of the statements and
involve known and unknown risks and uncertainties that could cause future results, performance or future events to differ materially from
those expressed or implied in such statements. Actual events are difficult to predict and may depend upon factors that are beyond the
Registrant’s control. There can be no guarantees with respect to pipeline product candidates that the clinical trial results will
be available on their anticipated timeline, that future clinical trials will be initiated as anticipated, that product candidates will
receive the necessary regulatory approvals, or that any of the anticipated milestones by the Registrant or its partners will be reached
on their expected timeline, or at all. Actual results may turn out to be materially different from the anticipated future results, performance
or achievements expressed or implied by such statements, forecasts and estimates, due to a number of factors, including that the Registrant
is a clinical-stage company with no approved products and no historical product revenues, the Registrant has incurred significant losses
since inception, the Registrant has a limited operating history and has never generated any revenue from product sales, the Registrant
will require additional capital to finance its operations, in the absence of which, the Registrant may be required to significantly curtail,
delay or discontinue one or more of its research or development programs or be unable to expand its operations or otherwise capitalize
on its business opportunities and may be unable to continue as a going concern, the Registrant’s future success is dependent on
the successful clinical development, regulatory approval and subsequent commercialization of current and any future product candidates,
preclinical studies or earlier clinical trials are not necessarily predictive of future results and the results of the Registrant’s
clinical trials may not support the Registrant’s product candidate claims, the Registrant’s expectations with respect to the
changes to the clinical development plan for lanifibranor for the treatment of NASH may not be realized and may not support the approval
of a New Drug Application, the Registrant may encounter substantial delays in its clinical trials or the Registrant may fail to demonstrate
safety and efficacy to the satisfaction of applicable regulatory authorities, the ability of the Registrant to recruit and retain patients
in clinical studies, enrollment and retention of patients in clinical trials is an expensive and time-consuming process and could be made
more difficult or rendered impossible by multiple factors outside the Registrant’s control, the Registrant’s product candidates
may cause adverse drug reactions or have other properties that could delay or prevent their regulatory approval, or limit their commercial
potential, the Registrant faces substantial competition and the Registrant’s business, and preclinical studies and clinical development
programs and timelines, its financial condition and results of operations could be materially and adversely affected by geopolitical events,
such as the conflict between Russia and Ukraine, related sanctions and related impacts and potential impacts on the initiation, enrollment
and completion of the Registrant’s clinical trials on anticipated timelines, health epidemics, and macroeconomic conditions, including
global inflation, rising interest rates, uncertain financial markets and disruptions in banking systems. Given these risks and uncertainties,
no representations are made as to the accuracy or fairness of such forward-looking statements, forecasts and estimates. Furthermore, forward-looking
statements, forecasts and estimates only speak as of the date of this report on Form 6-K. Readers are cautioned not to place undue
reliance on any of these forward-looking statements.
Please refer to the Universal Registration Document for the year ended
December 31, 2022 filed with the Autorité des Marchés Financiers on March 30, 2023, and the Annual Report on Form 20-F
for the year ended December 31, 2022 filed with the Securities and Exchange Commission on March 30, 2023 for other risks and
uncertainties affecting the Registrant, including those described from time to time under the caption “Risk Factors”. Other
risks and uncertainties of which the Registrant is not currently aware may also affect its forward-looking statements and may cause actual
results and the timing of events to differ materially from those anticipated.
All information in this report on Form 6-K is as of the date of
the report. Except as required by law, the Registrant has no intention and is under no obligation to update or review the forward-looking
statements referred to above. Consequently, the Registrant accepts no liability for any consequences arising from the use of any of the
above statements.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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Inventiva S.A. |
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| Date: August 31, 2023 |
By: |
/s/ Frédéric Cren |
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Name |
Frédéric Cren |
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Title: |
Chief Executive Officer |
Exhibit 99.1
Subscription Agreement
INVENTIVA
50, rue de Dijon
21121 Daix
France
The undersigned, [•] (the “Subscriber”)
hereby confirms its agreement with you as follows:
| 1. | This Subscription Agreement (including the annexes attached hereto, the “Agreement”)
is made as of the date set forth below between Inventiva S.A., a société anonyme organized under the laws of the
French Republic, with a share capital of €421,341.69, consisting of 42,134,169 ordinary shares of €0.01 nominal value each,
and registered with the Commerce and Companies Registry of Dijon under the number 537 530 255 (the “Company”), and
the Subscriber. |
| 2. | Pursuant to the 6th resolution adopted by the Combined General Meeting of Shareholders on 25 January 2023
and the decisions adopted by the Board of Directors dated 30 August 2023, the Company has decided to issue to certain categories
of investors only, 9,618,638 ordinary shares, with a nominal value of €0.01 per share and without preferential subscription rights
(the “New Shares”), fully assimilated to the existing ordinary shares issued by the Company, for a subscription price
of €3.18 per share (the “Subscription Price”) (divided into a nominal amount of €96,186.38 (the “Capital
Increase”) and a total issuance premium of €30,491,082.62) resulting in a capital increase of €30,587,269 to be subscribed
by the Subscriber and the Other Subscribers as defined below (the “Transaction”). It is specified that the Subscription
Price is equal to the volume-weighted average price over a period of ten (10) consecutive trading sessions preceding the date falling
one (1) day before pricing of the Capital Increase decreased by a discount of 5%. |
| 3. | The Company and the Subscriber agree that the Subscriber will subscribe for a number of New Shares set
forth below from the Company and, in turn, the Company, after receipt of the aggregate subscription monies set forth above for all Subscribers
, will issue such New Shares to the Subscriber. The New Shares shall be subscribed for pursuant to, and the manner of settlement shall
be as set forth in, the Terms and Conditions for Subscription of New Shares attached hereto as Annex I and incorporated herein
by reference as if fully set forth herein. |
| 4. | The Company and the Subscriber agree that the Subscriber will subscribe, and the Company will issue to
the Subscriber, the New Shares as follows: |
Number of New Shares: __________________________________________________________
Subscription Price per New Share (including premium): €_______________________
Aggregate Subscription Price (including premium) (the “Subscriber
Aggregated Subscription Price”): €_____________________________
________________________________________________________________________1
1
The Subscriber signatory to include handwritten note “undertaking to subscribe [number of shares subscribed written
in words] (number of shares subscribed written in numbers) shares.”
[Please insert the following in case of
execution of the Agreement by a management company on behalf of investment funds.
Name(s) of the investment funds represented
by the Subscriber and number of New Shares subscribed for by each of them:
________________________________ for _________________________________
New Shares
________________________________ for _________________________________
New Shares
________________________________ for _________________________________
New Shares
________________________________ for _________________________________
New Shares]
Agreed and Accepted
The Subscriber Aggregated Subscription Price will
be paid to the account of Stifel Europe Bank AG acting on behalf of the Company for subsequent transfer to the Company’s account
opened in the books of Société Générale Securities Services (copied below) as set forth in Section 3.2
of Annex I.
[ ]
We acknowledge that we received a copy of this
Subscription Agreement.
Please confirm that the foregoing correctly sets
forth the agreement between us by signing in the space provided below for that purpose.
Subscriber:
[•]
Agreed and Accepted
this ___ day of _____________
| INVENTIVA S.A. |
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| By: |
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| Frédéric Cren |
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| Title: Chief Executive Officer |
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ANNEX I
TERMS AND CONDITIONS FOR SUBSCRIPTION OF New
Shares
| 1. | Authorization and Issue of the Shares |
Subject to the terms and conditions
attached as Annex I to the Agreement (the “Terms and Conditions”), the Company has duly authorized the issue of the
New Shares (the “Transaction”).
| 2. | Agreement to Issue and Subscribe for the New Shares |
| 2.1 | At the Closing Date (defined below), the Company will issue to the Subscriber, and the Subscriber will
subscribe, upon the Terms and Conditions set forth herein and in consideration for the payment of the Subscriber Aggregated Subscription
Price therefor set forth in the Agreement, the number of New Shares set forth in the Agreement to which these Terms and Conditions for
Subscription of New Shares are attached as Annex I. |
| 2.2 | The Company may enter into this same form of Subscription Agreement with other investors (the “Other
Subscribers”) in connection with the Transaction and expects to complete the issuance and sale of New Shares to such Other Subscribers
on the terms set forth herein. The Subscriber and the Other Subscribers are hereinafter sometimes collectively referred to as the “Subscribers”
and this Agreement and the Subscription Agreements executed by the Other Subscribers are hereinafter sometimes collectively referred to
as the “Agreements”. |
| 3. | Closing and Transfer of the New Shares and Funds |
The time and date of closing shall be
no later than noon, Paris time, on the date that is four (4) Business Days following the date of this Agreement (the “Closing
Date”) as agreed by the Company and the Subscriber. For purposes of this Agreement, the term “Business Day”
shall mean a weekday on which banks are open for general banking business in the United States, Qatar and Paris, France.
The Company has designated Société
Générale Securities Services as “banque centralisatrice” and “dépositaire”
(the “Centralizing Bank”) to receive the subscriptions and payment of the aggregate subscription monies for the New
Shares in accordance with Section 3.3 below.
| 3.2 | (a) | Conditions to the Company’s Obligations |
The Company’s obligation to issue
the New Shares to the Subscriber will be subject to (i) the receipt in an augmentation du capital bank account opened at Société
Générale Securities Services, of the Subscriber Aggregated Subscription Price, (ii) the payment of the aggregate subscription
monies in respect of the total number of New Shares subscribed by the Subscriber and the Other Subscribers and (iii) the representations
and warranties of the Subscriber contained in Section 6.1 being true and correct in all material respects as of the Closing Date.
| (b) | Conditions to the Subscriber’s Obligations |
The Subscriber’s obligation to subscribe
for the New Shares will be subject to (i) the receipt of a certified copy of the decisions of the Board of Directors dated 30 August 2023;
(ii) the approval by the French Financial Markets Authority (Autorité des Marchés Financiers) (the “AMF”)
of the French Listing Prospectus (as such term is defined below) prior to the Closing Date; and (iii) the accuracy of the representations
and warranties made by the Company and the fulfillment of the undertakings of the Company to be fulfilled prior to the Closing Date.
The Subscriber’s obligations are
expressly not conditioned on the subscription by any or all of the Other Subscribers of the New Shares that such Other Subscribers have
agreed to subscribe from the Company.
| (c) | Conditions to Either Party’s Performance |
The Company’s and the Subscriber’s
obligation to issue and subscribe for, respectively, the New Shares will be subject to the following condition precedent: no statute,
rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction that prohibits the subscription of the New Shares.
| (a) | No later than 9:00 a.m. CEST on the Closing Date, the Subscriber shall wire transfer the Subscriber
Aggregated Subscription Price to the account of Stifel Europe Bank AG (the “Agent”) and shall notify the Company and
the Agent of (i) the account from which the Subscriber Aggregated Subscription Price will be wired to the account of the Agent for
subsequent transfer to the account opened in the books of Société Générale Securities Services (the “Centralizing
Bank”) and (ii) the account opened in the name of the Subscriber and to which the New Shares will be credited by the Agent. |
The account of the Agent to which the
Subscriber Aggregated Subscription Price shall be wired by the Subscriber is set forth in the Signature Page.
| (b) | By executing this Agreement, the Subscriber irrevocably instructs the Agent to deliver, and the Centralizing
Bank to accept delivery of, the subscription monies from their respective settlement accounts to the augmentation de capital bank
account opened at the Centralizing Bank in its book in the name of the Company upon notice from the Agent to the Centralizing Bank that
the conditions to the closing of the Capital Increase have been satisfied or waived. |
| (c) | On the Closing Date, subject to and upon receipt of the aggregate subscription monies for the New Shares
on the Closing Date and the issuance of the depositary certificate (certificat du dépositaire) required by Article L.
225-146 of the French Commercial Code by the Centralizing Bank, all of the New Shares will be created and registered. All Shares shall
be delivered by the Centralizing Bank to the account specified by the Subscriber pursuant to Section 3.3(a) above. |
| 4. | French Listing Prospectus |
The Company, for the purpose of listing
the New Shares on the regulated market of Euronext Paris (“Euronext”), has prepared and filed with the AMF,
in accordance with French legal and regulatory requirements, including the general regulations and instructions of the AMF, a French-language
listing prospectus consisting of (a) the universal registration document (Document d’Enregistrement Universel) filed
with the AMF under number D.23-0183 on March 30, 2023, without prior authorization of the AMF (the “Universal Registration
Document”), as amended by the amendment to the Universal Registration document to be filed with the AMF on 31 August 2023,
(the “Amendment”), (b) a securities note (Note d’Opération) (the “Note d’Opération”)
and (c) a summary of such listing prospectus (included in the Note d’Opération), including the documents incorporated
by reference therein (collectively, the “French Listing Prospectus”), which is expected to receive the approval by
the AMF on 31 August 2023. As of the Closing Date, all references to the “Universal Registration Document” shall be deemed
to include the Amendment and the French Listing Prospectus, as approved by the AMF.
| 5. | Representations, Warranties and Undertakings of the Company |
| 5.1 | The Company represents and warrants to the Subscriber, as of the date hereof and as of the Closing Date,
that: |
| (a) | Organization and Standing. The Company is a corporation duly organized and validly existing under
the laws of France and has all requisite corporate power and authority to conduct its businesses in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such qualification (except in respect to such conduct of business that
the failure to be so qualified or be in good standing would not have a Material Adverse Effect) as currently conducted and as currently
proposed to be conducted and as described in the Universal Registration Document, the annual report on the Form 20-F filed with the
U.S. Securities and Exchange Commission on 30 March 2023 (the “Form 20-F” and together with the Universal
Registration Document, the “Annual Report”) and any press releases issued by the Company since the publication of the
Annual Report, (the “Press Releases” and, together with the Annual Report, the “Company Public Information”). |
| (b) | Corporate Power, Authorization. The issuance of the New Shares has been duly authorized by the
Company’s shareholders pursuant to the 6th resolution passed at the Combined General Meeting of the Shareholders of the Company
held on 25 January 2023 and by the Board of Directors on 30 August 2023. This Agreement has been duly executed by the Company
and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting creditors’
rights generally. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this
Agreement. |
| (c) | No Insolvency Proceedings. The Company and Affiliates are not (i) insolvent (en état
de cessation des paiements), (ii) subject to a resolution which has been passed or meeting convened for its winding-up (iii) subject
to any conciliation safeguard (including accelerated safeguard), bankruptcy, liquidation or equivalent proceedings under any applicable
insolvency applicable law, including any procedure that aims to prevent or solve business difficulties (prévention et règlement
amiable des difficultés des entreprises) or a petition, request or filing has not been made for the opening of any such proceeding
in relation to the Company. |
In this Agreement, “Affiliate”
means, with respect to the Company, any other person that, directly or indirectly, through one or more intermediaries, Controls or is
Controlled by or is under common Control with such person, in each case from time to time. “Control” shall be construed
by reference to the definition set out Article L. 233-1 of the French Commercial Code
| (d) | Compliance with Laws. The Company and its Affiliates are in compliance in all material respects
with the requirements of all applicable laws to which it is subject and all orders, writs, injunctions and decrees applicable to it or
to its properties. |
| (e) | Capitalization. The share capital of the Company as at the date hereof is €421,341.69, consisting
of 42,134,169 ordinary shares of €0.01 par value each (the “Shares”). The Shares (including the New Shares) do,
and at the Closing Date will, conform to the description of Shares contained in the Annual Report. Except as disclosed in the Company
Public Information, the issuance of the New Shares is not subject to any pre-emptive, preferential subscription right, priority rights
(délai de priorité) or similar rights that have not been validly excluded or waived and to the Company’s knowledge,
no person has any other right of first refusal, pre-emptive right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction. Except as disclosed in the Company Public Information, the Company has not issued any other
options, warrants, calls, securities, rights or obligations to subscribe to or which are convertible into or exchangeable for new shares
of the Company, or entered into any agreement giving any person any right to subscribe or acquire any new shares of the Company (except
the Agreements entered into with the Other Subscribers). |
| (f) | No Conflicts and No Default. The execution and performance of the Agreement by the Company do not
and will not (i) conflict with or violate any provision of the Company’s articles of incorporation (statuts), (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or entitle third parties
to terminate, amend, accelerate or cancel (with or without notice, lapse of time or both), any material agreement, credit facility, material
debt or other material instrument to which the Company is a party or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject, assuming the
correctness of the representations and warranties made by the Subscriber herein, except in the case of these clauses (ii) and (iii) to
the extent that such violation would not reasonably be expected to have a Material Adverse Effect. |
In this Agreement, “Material
Adverse Effect” means any event, violation, or circumstance, individually or in the aggregate that had or could reasonably be
expected to have a material adverse effect on the Company’s equity, business, assets, operations, properties, liabilities or conditions
(financial or otherwise), individually or in the aggregate, whether or not arising from transactions in the ordinary course of business,
or on the Company’s ability to consummate the Transaction.
| (g) | Private Placement. Neither the Company nor any of its Affiliates, nor any person or entity acting
on its or their behalf, has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security,
under any circumstances that would require registration of the New Shares under the United States Securities Act of 1933, as amended (the
“Securities Act”). Assuming the accuracy of the representations and warranties of the Subscriber contained in Section 6.1
hereof, the New Shares are being offered in reliance on an exemption from registration under the Securities Act. |
| (h) | Issuance and Delivery of the New Shares. Upon payment of the aggregate subscription monies for
the New Shares in the manner contemplated by this Agreement and (ii) upon issuance of the Depositary Certificate (certificat du
dépositaire), the New Shares will be duly and validly issued and fully paid. There are no restrictions on transfers of the
New Shares under the laws of France or the articles of incorporation (statuts) of the Company. |
| (i) | PFIC. The Company was not a “passive foreign investment company” (a “PFIC”)
within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) for its
2022 taxable year, and (b) based on the Company’s current projected income, assets and activities, reasonably believes that
it will not become a PFIC for its 2023 taxable year (provided, however, that the Company cannot provide assurance that it will not become
a PFIC for its 2023 taxable year, because the determination as to PFIC status is made at the end of the taxable year, taking into account
activities and assets (including the proceeds of this Transaction) held during the year). |
| (j) | Consents. Excluding (i) any filing required to be made under applicable law or regulation
by the Company with Euronext or the AMF in France, which has been made or shall have been made prior to the Closing Date or as otherwise
set forth herein, and (ii) any applicable filings pursuant to applicable state securities laws, which have been made or will be made
in a timely manner, and assuming the accuracy of the representations made by the Subscriber in Section 6.1 of this Agreement, no
consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing on the part of the Company
is required in connection with the consummation of the Transaction contemplated by this Agreement. |
| (i) | Neither the Company or its Affiliates and, to the Company’s knowledge, any of their respective directors
or officers nor, to the knowledge of the Company without making any special investigation, any of their respective employees or agents
has, in the performance of his or her duties on behalf of the Company, (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign
or domestic government official from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in
the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA,
or any other applicable anti-bribery or anti-corruption laws of the European Union, United Kingdom or France. The Company and its Affiliates
have conducted their businesses on behalf of the Company in compliance with applicable anti-corruption laws and have instituted and maintained,
and will continue to maintain, policies reasonably designed to promote and achieve compliance with such laws and with the representation
and warranty contained herein. |
| (ii) | The Company or its Affiliates and, to the knowledge of the Company, their respective directors or officers,
employees and agents have not obtained or induced directly or indirectly through any person and will not attempt to so obtain or induce
the procurement of this Agreement or any contract, consent, approval, right, interest, privilege or other obligation or benefit related
to this Agreement or a favourable relationship with the Subscriber through any corrupt or illegal business practice including have not
given or agreed to give and shall not give or agree to give to any person, either directly or indirectly, any fee, compensation, monetary
benefit or any other benefit, bribe or kickback, with the object of obtaining or inducing the procurement of this Agreement or any contract,
right, interest, privilege or other obligation or benefit related to this Agreement. For the avoidance of doubt, the representation shall
not apply to any payments that are legitimate in the normal course of business between each party hereto pursuant to this Agreement or
with third parties for the purposes of the implementation of the Transaction (such as fees for the settlement agent or professional advisers
of the Company) and items, including refreshments, of an inconsequential or immaterial cost or value. |
| (l) | Sanctions. Neither the Company and its Affiliates, nor, to the Company’s knowledge, any of
their respective directors, officers, or employees (i) has been or is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or by any governmental agency of any other
applicable jurisdiction (including the United Nations Security Council, the European Union or the member state thereof and the United
Kingdom (together with the OFAC the “Sanction Authority”)), (ii) has violated or is violating any applicable sanctions
administered by a Sanction Authority or has been subject to any claim, proceeding, formal notice or investigation with respect to sanctions
administered by a Sanction Authority; and the Company will not directly or indirectly use the proceeds of the Transaction, or lend, contribute
or otherwise make available such proceeds to joint venture partner or other person or entity, for the purpose of financing the activities
of or business with any person, or in any country or territory, that the Company knows is currently subject to any sanctions administered
by OFAC or a Sanction Authority. |
| (m) | Acknowledgment regarding Subscriber’s Purchase of New Shares. The Company acknowledges and
agrees that the Subscriber is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the
transactions contemplated hereby. The Company further acknowledges that the Subscriber is not acting as a financial advisor or fiduciary
of the Company (or in any similar capacity with respect to the Company) or any Other Subscriber with respect to this Agreement and the
transactions contemplated hereby and any advice given by the Subscriber or any of its respective representatives or agents to the Company
in connection with this Agreement and the transactions contemplated hereby is merely incidental to the Subscriber’s purchase of
the New Shares. The Company further represents to the Subscriber that the Company’s decision to enter into this Agreement has been
based on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. |
| (n) | Market Abuse. The Company has not, directly or indirectly, in relation to the Transaction, done
any act or engaged in any course of conduct in breach of applicable regulations on market abuse including Regulation (EU) n°596/2014
of the European Parliament and of the Council of 16 April 2014 on market abuse (as amended, the “Market Abuse Regulation”),
including (i) insider trading, and (ii) has not taken, directly or indirectly, any action designed to stabilize or manipulate
the price of the New Shares or any security of the Company whether to facilitate the sale or resale of any of the New Shares or any security
of the Company or otherwise. |
| (o) | Other Subscription Agreements. The Subscription Agreements of the Other Subscribers for the subscription
of the New Shares do not include terms or conditions that are more advantageous than the terms and conditions of this Agreement other
than provisions relating to the specific regulations or status applicable to such Other Subscriber. The Company shall not enter into any
side letter or otherwise agree (orally or in writing) to modify or waive any of the terms and provisions of such Subscription Agreement
with any Other Subscriber without the prior written consent of the Subscriber. |
| (p) | Conduct of business. Since 31 December 2022, except as disclosed in the Company Public Information,
there has not been any event, development, circumstance or change which has had or would reasonably be expected to have, individually
or in the aggregate, a material adverse effect on (i) the condition (financial or operational), assets, properties, results of operations
or business activities of the Company or its Affiliates, or (ii) the ability of the Company to comply with its obligations under
this Agreement. |
| (q) | Company Public Information. The Company Public Information accurately reflects in all material
respects the facts that are to be included in such type of document and contains as a whole, taking into account the circumstances in
which it has been made, no material omission likely to affect its meaning as at the date of its filing or issuance (as the case may be). |
| 5.2 | The Company undertakes the following: |
| (a) | Listing Obligation. The Company shall take all necessary action to ensure that the New Shares will
be listed on the Euronext Paris Exchange and will cause the New Shares to be approved for admission to trading and listed on the regulated
market of Euronext on or about the Closing Date. |
| (b) | Interim Covenants. During the period from the date of this Agreement and continuing until the earlier
of the termination of this Agreement and the Closing Date, the Company (a) shall conduct its business in the usual, regular and ordinary
course of business consistent with past practice and (b) shall not effect or take any action required to effect any amendments or
alterations to the Company’s bylaws, any split or combination of the Shares or the issuance of any securities of the Company or
make any distributions or payments of dividends on the Shares. |
| (c) | Share Issuance. The Company shall take all action necessary to cause the New Shares to be issued
to the Subscriber on the Closing Date in accordance with the terms and conditions of this Agreement. |
| (d) | Use of Proceeds. The Company undertakes to use the proceeds from the subscription of the New Shares
as disclosed in the press release relating to the issue of the New Shares and in the French Listing Prospectus. |
| (i) | PFIC. The Company will (a) promptly notify the Subscriber (and in no event later than 30 Business
Days following the end of each calendar year) whether the Company has determined that it or any of its subsidiaries was a PFIC (as each
such term is defined above) for such calendar year and (b) provide the Subscriber with sufficient information, on a timely basis,
to determine whether the Company is a PFIC and allow its investors to make and maintain a Qualified Electing Fund election under Section 1295
of the Code with respect to the Company in the event the Company for any year in which the Company is treated as a PFIC. |
| (ii) | Corporate Status. The Company will not take any action inconsistent with the treatment of the Company
as a corporation for U.S. federal income tax purposes and will not elect to be treated as an entity other than a corporation for U.S.
federal income tax purposes. |
| (f) | Except as required by applicable law and regulation (including any request from the AMF), or upon the
express and specific written consent of the Subscriber, the Company will not make any use of the name of the Subscriber or that of any
Affiliate of the Subscriber, nor refer to its relationship with the Subscriber and/or any of its Affiliates, including in any press release
or other public announcement or in any publicity, marketing materials, or other public relations material, whether distributed publicly
or to any third party or parties in a non-public communication. |
| 5.3 | For the avoidance of doubt, the Subscriber is solely liable for its obligations set forth in or arising
under this Agreement, and no direct or indirect legal or beneficial owner of Subscriber shall have any liability in respect of this Agreement. |
| 6. | Representations and Warranties and Covenants of the Subscriber |
| 6.1 | The Subscriber represents and warrants to the Company that: |
| (a) | Organization. The Subscriber is duly organized and is validly existing under the laws of its state
of incorporation. |
| (b) | Power; Authorization. The execution and performance by the Subscriber of the Agreement has been
duly authorized by all necessary corporate bodies, or, if the Subscriber is not a corporation, such partnership, limited liability company
or other applicable bodies, on the part of the Subscriber. As such (i) the Subscriber has all requisite corporate or other power
and capacity and has taken all requisite corporate or other action to execute and deliver this Agreement, to purchase the New Shares to
pay the Subscription Price, and to carry out and perform all of its obligations under this Agreement; and (ii) this Agreement has
been duly executed by the Subscriber, and when delivered by the Subscriber in accordance with terms hereof, will constitute the valid
and legally binding obligation of the Subscriber, enforceable against it in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors’ rights generally. |
| (c) | Investment Intent. The Subscriber is purchasing the New Shares for its own account as principal,
for investment purposes only, and not with the intent or for the purpose of the resale distribution thereof, in whole or in part, within
the meaning of the Securities Act or the other applicable securities laws of any other jurisdiction to the extent applicable. The Subscriber
understands that its acquisition of the New Shares has not and will not have been registered under the Securities Act in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of such Subscriber’s investment
intent as expressed herein. Except as contemplated by this Agreement, the Subscriber has not entered into any agreement, undertaking,
arrangement, obligation or commitment providing for the disposition of the New Shares. The Subscriber represents that it has not been
organized, reorganized or recapitalized specifically for the purpose of investing in the New Shares. |
| (d) | No Insolvency Proceedings. To the knowledge of the Subscriber, no bankruptcy, insolvency or other
proceedings of general application affecting creditors’ rights have been proposed, commenced or threatened against the Subscriber,
and no judgment has been made or is pending declaring the Subscriber insolvent. |
| (e) | No Violation. Neither the execution of this Agreement by the Subscriber nor the subscription of
the New Shares by the Subscriber violates or will violate (i) any provision of the articles of association (or equivalent constituent
documents) of the Subscriber, (ii) any material applicable law or material regulation binding upon the Subscriber or its assets,
(iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Subscriber or any of its
assets, (iv) the rules of any stock exchange as they apply to the Subscriber, and (v), any other material agreements to which
the Subscriber is a party, in each case, with respect to clauses (i) – (v) of this Section 6.1(e), except to the
extent that such violation would not reasonably be expected to materially impair or delay the Subscriber’s ability to perform its
obligations under this Agreement. |
| (f) | Category of Subscriber. The Subscriber is (i) a natural or legal person (including a company)
trust or investment fund, or any other investment vehicle, in any form, established under French or foreign law, which regularly invest
in the pharmaceutical, biotechnological or medical technology sectors; and/or (ii) a company, institution or entity, in any form,
French or foreign, exercising a significant part of its activities in the pharmaceutical, cosmetic or chemical sectors or researching
in such sectors; provided that, if the Subscriber is acting on behalf of investment funds or other legal entities managed or advised by
it, such representation shall also apply to such funds or legal entities and the Subscriber shall further ensure compliance thereof by
each such funds or entities in connection with the initial distribution of the New Shares. The Subscriber is a “qualified investor”
within the meaning of Article 2(e) of Regulation (UE) 2017/1129, as amended. The Subscriber is subscribing for the number of
New Shares set forth hereto in the ordinary course of its business for investment only and with no present intention of distributing any
of such New Shares or any arrangement or understanding with any other persons regarding the distribution of such New Shares. |
| (g) | Restricted Securities. The Subscriber understands that the New Shares have not been, and will not
be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Subscriber’s representations
as expressed herein. The Subscriber understands that, in addition to the restrictions applicable to the New Shares under this Agreement,
the New Shares may be deemed “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant
to these laws, the Subscriber must hold the New Shares indefinitely unless they are registered with the Securities and Exchange Commission
and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Subscriber
acknowledges that the Company has no obligation to register or qualify the New Shares for resale. The Subscriber further acknowledges
that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the New Shares, and on requirements relating to the Company which are
outside of the Subscriber’s control, and which the Company is under no obligation and may not be able to satisfy. The Subscriber
understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation
or endorsement of the New Shares. |
| (h) | Accredited Investor. The Subscriber is an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act. |
| (i) | No General Solicitation. The Subscriber is not purchasing or subscribing for the New Shares as
a result of any advertisement, article, notice or other communication regarding the New Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar or, to such Subscriber’s knowledge, any other general
solicitation or general advertisement (within the meaning of Rule 502(c) under the Securities Act). |
| (j) | Residence. If the Subscriber is an individual, then the Subscriber resides in the state identified
in the address of the Subscriber set forth in Section 8; if the Subscriber is a partnership, corporation, limited liability company
or other entity, then the office or offices of the Subscriber in which its principal place of business is conducted is identified in the
address or addresses of the Subscriber set forth in Section 8. |
| (k) | Information. The Subscriber has had an opportunity to discuss the Company’s business, management,
financial affairs and the terms and conditions of the offering of the New Shares with the Company’s management. The foregoing, however,
does not limit or modify the representations and warranties of the Company in Section 5.1 of this Agreement or the right of the Subscribers
to rely thereon. |
| (l) | Exculpation among Subscribers. The Subscriber acknowledges that it is not relying on any other
individual or entity (including any Other Subscriber), other than the Company and its officers and directors, in making its investment
or decision to invest in the Company. |
| 6.2 | The Subscriber undertakes that: |
| (a) | It will comply with any notification requirements to the Autorité des marchés financiers
(AMF) with respect to the subscription of the New Shares (notably disclosure of threshold crossing and intent), which may be required
to be made under any applicable law and the Company’s by-laws as well as any requirement in relation with foreign direct investment
in France pursuant to the French Monetary and Financial Code and the French Decree (Décret) No. 2020-892 of July 22,
2020, as amended from time to time and implementing regulation, and applicable to any investment in the Company. |
| (b) | Lock-up. The Subscriber agrees that it will not, during the period beginning on the Closing Date
and ending 6 months after the Closing Date (such period, the “Restricted Period”), (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly of any of the New Shares it owns, or publicly disclose the intention to make
any offer, sale, pledge or disposition of the New Shares, (2) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of the New Shares, in each case other than: |
| (i) | transfers of shares of any New Shares to any Affiliates, or |
| (ii) | transfers of New Shares pursuant to a bona fide third-party tender offer, merger, consolidation or other
similar transaction made to all holders of the Company’s securities involving a change of control of the Company (including, without
limitation, the entering into any lock-up, voting or similar agreement pursuant to which the Subscriber may agree to transfer, sell, tender
or otherwise dispose of New Shares in connection with such transaction, or vote any New Shares in favour of any such transaction) approved
by the Board; provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, such
securities held by the Subscriber shall remain subject to the provisions of this Clause 5.1(g); |
| (c) | It will sign and execute such documents and take such actions as are necessary for the consummation of
the sale of the New Shares to the Subscriber hereunder; provided, that nothing herein shall require the Subscriber to sign, execute and
deliver any document or take any action that, in the good faith determination of the Subscriber, could reasonably be expected to result
in (i) competitive harm to the Subscriber, (ii) the disclosure of any confidential or proprietary information of the Subscriber
or (iii) the breach of any applicable law, regulation or judicial, administrative or regulatory process. |
| 7. | Survival of Representations, Warranties and Agreements |
Notwithstanding any investigation made
by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company and the Subscriber herein
will survive the execution of this Agreement, the transfer to the Subscriber of the New Shares being subscribed and the payment therefor.
All notices, requests, consents and
other communications required or permitted hereby shall be in writing, will be sent by email, or mailed, and will be deemed given if delivered
by email, upon electronic confirmation of receipt and addressed to the relevant recipient in the manner provided below, and shall be deemed
to have been duly and sufficiently given only if (a) delivered either personally by hand, or by an international courier service,
and, in each case, (b) confirmed by email to the relevant recipient. Notices shall be deemed effective if given on a Business Day,
in the manners prescribed in the immediately preceding sentence, by 13:30 in the place of receipt or on the following Business Day if
completed after 13:30.
All notices will be delivered as addressed
as follows:
| (a) | if to the Company, to: |
Inventiva S.A.
50, rue de Dijon
21121 Daix
France
Attention: Frédéric Cren
Phone:
Email:
| (b) | if to the Subscriber, to: |
[•]
This Agreement may not be modified or
amended except by written agreement signed by the Company and the Subscriber.
In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
| 11. | Governing Law and Jurisdiction |
This Agreement will be governed by,
and construed in accordance with, the laws of France. Any dispute or suit relating to the interpretation, validity and performance of
this Agreement, or arising out of or as a consequence hereof, shall be subject to the exclusive jurisdiction of the Tribunal de commerce
of Paris.
Each party to this Agreement acknowledges
that Cooley LLP, U.S. counsel for the Company, has in the past performed and may continue to perform legal services for the Subscriber
in matters unrelated to the transactions described in this Agreement. Accordingly, each party to this Agreement hereby (a) acknowledges
that they have had an opportunity to ask for information relevant to this disclosure; and (b) gives its informed consent to Cooley
LLP’s representation of certain of the Subscriber in such unrelated matters and to Cooley LLP’s representation of the Company
in connection with this Agreement and the transactions contemplated hereby.
| 13. | Execution of Agreement |
This Agreement has been executed in
two copies, one for each party.
Exhibit 99.2
Royalty Certificate Subscription Agreement
INVENTIVA
50, rue de Dijon
21121 Daix
France
The undersigned, [•] (the “Subscriber”)
hereby confirms its agreement with you as follows:
| 1. | This Royalty Certificate Subscription Agreement (including the annexes attached hereto, the “Agreement”)
is made as of the date set forth below between Inventiva S.A., a société anonyme organized under the laws of the
French Republic, with a share capital of €421,341.69, consisting of 42,134,169 ordinary shares of €0.01 nominal value each,
and registered with the Commerce and Companies Registry of Dijon under the number 537 530 255 (the “Company”), and
the Subscriber. |
| 2. | Pursuant to the decisions adopted by the Board of Directors dated 30 August 2023, the Company has
decided to issue to certain investors only, 51 royalty certificates (the “Royalty Certificates”), whose Terms and Conditions
are attached hereto as Exhibit A (the “Terms and Conditions of the Royalty Certificates”), for a subscription
price of €100,000 per royalty certificate (the “Subscription Price”) resulting in an offering of 51 Royalty Certificates
for an aggregate amount of €5,100,000 to be subscribed by the Subscriber and the Other Subscribers as defined below (the “Transaction”). |
| 3. | The Company and the Subscriber agree that the Subscriber will subscribe for Royalty Certificates from
the Company and, in turn, the Company, after receipt of the aggregate amount set forth above, will issue the Royalty Certificates to the
Subscriber. The Royalty Certificates shall be subscribed for pursuant to, and the manner of settlement shall be as set forth in, the Terms
and Conditions for Subscription of Royalty Certificates attached hereto as Annex I and incorporated herein by reference as if fully
set forth herein. |
| 4. | This Agreement is signed by the parties electronically, in accordance with the first sentence of the second
paragraph of article 1367 of the French civil code, by means of an electronic signature creation device provided through www.docusign.com
and constitutes an act in electronic form (écrit électronique) in accordance with article 1366 of the French civil
code. Each party also agrees: |
| - | that the electronic signature they affix to the Agreement has the same legal value as its handwritten
signature; |
| - | that the technical means implemented under this signature confer a definite date to each signature; |
| - | that the necessity for plurality of originals, required by Article 1375 of the French civil Code,
is satisfied for the Agreement, and that the process used to conclude the Agreement allows each party to have a copy on a durable support
or to have access to it; |
| - | and recognizes the opposability of the electronic signature and its admissibility as evidence in court. |
| 5. | The Company and the Subscriber agree that the Subscriber will subscribe, and the Company will issue to
the Subscriber, the Royalty Certificates as follows: |
Number of Royalty Certificates: __________________________________________________________
Subscription Price per Royalty Certificate: €____________________________
Aggregate Subscription Price (the “Subscriber Aggregated
Subscription Price”): €____________________________
[Please insert the following in case of
execution of the Agreement by a management company on behalf of investment funds.
Name(s) of the investment funds represented
by the Subscriber and number of Royalty Certificates subscribed for by each of them:
______________________________ for _______________________________
Royalty Certificates
______________________________ for _______________________________
Royalty Certificates
______________________________ for _______________________________
Royalty Certificates
______________________________ for _______________________________
Royalty Certificates]
Agreed and Accepted
The
Subscriber Aggregated Subscription Price will be paid to the account of Stifel Europe Bank AG acting on behalf of the Company for
subsequent transfer to the Company’s account opened in the books of Société Générale Securities Services
(copied below) as set forth in Section 3.2 of Annex I.
[ ]
We acknowledge that we received a copy of this
Subscription Agreement.
Please confirm that the foregoing correctly sets
forth the agreement between us by signing in the space provided below for that purpose.
Subscriber:
[•]
Agreed and Accepted
this ___ day of _____________
| INVENTIVA S.A. |
|
| |
|
|
| |
|
|
| By: |
|
|
| Frédéric Cren |
|
| Title: Chief Executive Officer |
|
ANNEX I
TERMS AND CONDITIONS FOR SUBSCRIPTION OF THE
ROYALTY CERTIFICATES
| 1. | Authorization and Issue of the Royalty Certificates |
Subject
to the terms and conditions attached as Annex I to the Agreement (the “Terms and Conditions”), the Company has
duly authorized the issue of the Royalty Certificates (the “Transaction”).
| 2. | Agreement to Issue and Subscribe for the Royalty Certificates |
| 2.1 | At the Closing Date (defined below), the Company will issue to the Subscriber, and the Subscriber will
subscribe, upon the Terms and Conditions set forth herein and in consideration for the payment of the Subscriber Aggregated Subscription
Price therefor set forth in the Agreement, the number of Royalty Certificates set forth in the Agreement to which these Terms and Conditions
for Subscription of Royalty Certificates are attached as Annex I. |
| 2.2 | The Company will enter into this same form of Subscription Agreement with other investors (the “Other
Subscribers”) in connection with the Transaction and expects to complete the issuance and sale of Royalty Certificates to such
Other Subscribers on the terms set forth herein. The Subscriber and the Other Subscribers are hereinafter sometimes collectively referred
to as the “Subscribers” and this Agreement and the Subscription Agreements executed by the Other Subscribers are hereinafter
sometimes collectively referred to as the “Agreements”. The Company shall not enter into any side letter or otherwise
agree (orally or in writing) to modify or waive any of the terms and provisions of such Subscription Agreement with any Other Subscriber
without the prior written consent of the Subscriber. |
| 3. | Closing and Transfer of the Royalty Certificates and Funds |
The time and date of closing shall be
no later than 2.00 PM, Paris time, on the date that is four (4) Business Days following the date of this Agreement (the “Closing
Date”) as agreed by the Company and the Subscriber.
The
Company has designated Société Générale Securities Services as “banque centralisatrice”
(the “Centralizing Bank”) to receive the subscriptions and payment of the aggregate amount equal to the Subscriber
Aggregated Subscription Price and the Subscription Price for the Royalty Certificates being subscribed by the Other Subscribers in accordance
with Section 3.3 below.
| 3.2 | (a) |
Conditions to the Company’s Obligations |
The
Company’s obligation to issue the Royalty Certificates to the Subscriber will be subject to (i) the receipt of the documentation
necessary for the recording of the Royalty Certificates under registered form (au nominatif) and for the “know your customer”
process (ii) the receipt in a dedicated account opened at Société Générale Securities Services,
the details of which will be communicated to the Subscriber on 30 August, 2023 at the latest, of the aggregate amount equal to the Subscriber
Aggregated Subscription Price and the Subscription Price for the Royalty Certificates being subscribed for by the Other Subscribers, (iii) the
closing of the €30,587,269 capital increase announced by the Company on 30 August, 2023 (the “Reserved Offering”),
and (iv) the representations and warranties of the Subscriber contained in Section 5.1 being true and correct in all material
respects as of the Closing Date.
| (b) | Conditions to the Subscriber’s Obligations |
The Subscriber’s obligation to subscribe
for the Royalty Certificates will be subject to (i) the receipt of a certified copy of the decisions of the Board of Directors dated
30 August 2023 and (ii) the accuracy of the representations and warranties made by the Company and the fulfillment of the undertakings
of the Company to be fulfilled prior to the Closing Date and (iii) the closing of the Reserved Offering.
The Subscriber’s obligations are
expressly not conditioned on the subscription by any or all of the Other Subscribers of the Royalty Certificates that such Other Subscribers
have agreed to subscribe from the Company.
| (c) | Conditions to Either Party’s Performance |
The Company’s and the Subscriber’s
obligation to issue and subscribe for, respectively, the Royalty Certificates will be subject to the following condition precedent: no
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or governmental authority of competent jurisdiction that prohibits the subscription of the Royalty Certificates.
No
later than 9:00 a.m CEST on the Closing Date, the Subscriber shall wire the Subscriber Aggregated Subscription Price to the account
of Stifel Europe Bank AG (the “Agent”) and shall notify the Company and the Agent of the account from which the Subscriber
Aggregated Subscription Price will be wired to the account of the Agent for subsequent transfer to the account opened in the books of
Société Générale Securities Services (the “Centralizing Bank”).
By executing this Agreement, the Subscriber
irrevocably instructs the Agent or its clearing agent to deliver, and the Centralizing Bank to accept delivery of, the subscription monies
from their respective settlement accounts to the bank account opened at the Centralizing Bank in its book in the name of the Company upon
notice from the Agent or the clearing agent to the Centralizing Bank that the conditions to the closing of the Transaction have been satisfied
or waived.
On
the Closing Date, the Company shall register, or cause to be registered by the Société Générale Securities
Services, under the name of the Subscriber on registered form (au nominatif) the number of Royalty Certificates subscribed by the
Subscriber. The Centralizing Bank will deliver the subscription monies to the Company.
At
least one (1) Business Day after the Closing Date, a notice confirming the registration of the Royalty Certificates in the book of
the Company held by Société Générale Securities Services shall be delivered to the Subscriber.
For
purposes of this Agreement, the term “Business Day” shall mean a weekday on which banks are open for general
banking business in the United States, Qatar and Paris, France.
| 4. | Representations, Warranties and Undertakings of the Company |
| 4.1 | The Company represents and warrants to the Subscriber, as of the date hereof and as of the Closing Date,
that: |
| (a) | Organization and Standing. The Company is a corporation duly organized and validly existing under
the laws of France and has all requisite corporate power and authority to conduct its businesses in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such qualification (except in respect to such conduct of business that
the failure to be so qualified or be in good standing would not have a Material Adverse Effect) as currently conducted and as currently
proposed to be conducted and as described in the Universal Registration Document, the annual report on the Form 20-F filed with the
U.S. Securities and Exchange Commission on 30 March 2023 (the “Form 20-F” and together with the Universal
Registration Document, the “Annual Report”) and any press releases issued by the Company since the publication of the
Annual Report, (the “Press Releases” and, together with the Annual Report, the “Company Public Information”). |
| (b) | Corporate Power, Authorization.
The issuance of the Royalty Certificates has been duly authorized by the Company’s Board of Directors on 30 August 2023. The
Company has the legal capacity and power to enter into this Agreement and to perform its obligations hereunder. This Agreement has been
duly executed by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws affecting creditors’ rights generally. |
| (c) | No Insolvency Proceedings. The Company and Affiliates are not (i) insolvent (en état
de cessation des paiements), (ii) subject to a resolution which has been passed or meeting convened for its winding-up (iii) subject
to any conciliation safeguard (including accelerated safeguard), bankruptcy, liquidation or equivalent proceedings under any applicable
insolvency applicable law, including any procedure that aims to prevent or solve business difficulties (prévention et règlement
amiable des difficultés des entreprises) or a petition, request or filing has not been made for the opening of any such proceeding
in relation to the Company; |
In
this Agreement, “Affiliate” means, with respect to the Company, any other person that, directly or indirectly,
through one or more intermediaries, Controls or is Controlled by or is under common Control with such person, in each case from time to
time. Control shall be construed by reference to the definition set out in Article L. 233-1 of the French Commercial Code.
| (d) | Compliance with Laws.
The Company and its Affiliates are in compliance in all material respects with the requirements of all applicable laws to which
it is subject and all orders, writs, injunctions and decrees applicable to it or to its properties. |
| (e) | Preferential subscription right. The issuance of the Royalty Certificate is not subject to any
pre-emptive, preferential subscription right, priority rights (délai de priorité) or similar rights that have not
been validly excluded or waived and to the Company’s knowledge, no person has any other right of first refusal, pre-emptive right,
right of participation, or any similar right to participate in the transactions contemplated by the Transaction. |
| (f) | Private Placement. Neither
the Company nor any of its Affiliates, nor any person or entity acting on its or their behalf, has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under any circumstances that would require registration of the Royalty
Certificates under the United States Securities Act of 1933, as amended (the “Securities Act”). Assuming the
accuracy of the representations and warranties of the Subscriber contained in Section 5.1 hereof, the Royalty Certificates are being
offered in reliance on an exemption from registration under the Securities Act. |
| (g) | No Conflicts and No Default. The execution and performance of the Agreement by the Company do not
and will not (i) conflict with or violate any provision of the Company’s articles of incorporation (statuts), (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or entitle third parties
to terminate, amend, accelerate or cancel (with or without notice, lapse of time or both), any material agreement, credit facility, material
debt or other material instrument to which the Company is a party or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject, assuming the
correctness of the representations and warranties made by the Subscriber herein, except in the case of these clauses (ii) and (iii) to
the extent that such violation would not reasonably be expected to have a Material Adverse Effect. |
In this Agreement, “Material
Adverse Effect” means any event, violation, or circumstance, individually or in the aggregate that had or could reasonably be
expected to have a material adverse effect on the Company’s equity, business, assets, operations, properties, liabilities or conditions
(financial or otherwise), individually or in the aggregate, whether or not arising from transactions in the ordinary course of business,
or on the Company’s ability to consummate the Transaction.
| (h) | Issuance and Delivery of the Royalty Certificates. Upon payment of the aggregate amount of the
Subscription Price by the Subscriber and the Other Subscribers in the manner contemplated by this Agreement, the Royalty Certificates
will be duly and validly issued and fully paid. Other than restrictions described in the terms and conditions of the Royalty Certificates,
there are no restrictions on transfers of the Royalty Certificates under the laws of France or the articles of incorporation (statuts)
of the Company. |
| (i) | Consents. Excluding any applicable filings and disclosures pursuant to applicable laws, and assuming
the accuracy of the representations made by the Subscriber in Section 5.1 of this Agreement, no consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with any governmental authority on the part of the Company is required
in connection with the consummation of the Transaction contemplated by this Agreement. |
| (i) | Neither the Company or its Affiliates and, to the Company’s knowledge, any of their respective directors
or officers nor, to the knowledge of the Company without making any special investigation, any of their respective employees or agents
has, in the performance of his or her duties on behalf of the Company, (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign
or domestic government official from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in
the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA,
or any other applicable anti-bribery or anti-corruption laws of the European Union, United Kingdom or France. The Company and its Affiliates
have conducted their businesses on behalf of the Company in compliance with applicable anti-corruption laws and have instituted and maintained,
and will continue to maintain, policies reasonably designed to promote and achieve compliance with such laws and with the representation
and warranty contained herein. |
| (ii) | The Company or its Affiliates and, to the knowledge of the Company, their respective directors or officers,
employees and agents have not obtained or induced directly or indirectly through any person and will not attempt to so obtain or induce
the procurement of this Agreement or any contract, consent, approval, right, interest, privilege or other obligation or benefit related
to this Agreement or a favourable relationship with the Subscriber through any corrupt or illegal business practice including, have not
given or agreed to give and shall not give or agree to give to any person, either directly or indirectly, any fee, compensation, monetary
benefit or any other benefit, bribe or kickback, with the object of obtaining or inducing the procurement of this Agreement or any contract,
right, interest, privilege or other obligation or benefit related to this Agreement. For the avoidance of doubt, the representation shall
not apply to any payments that are legitimate in the normal course of business between each party hereto pursuant to this Agreement or
with third parties for the purposes of the implementation of the Transaction (such as fees for the settlement agent or professional advisers
of the Company) and items, including refreshments, of an inconsequential or immaterial cost or value. |
| (k) | Sanctions. Neither the
Company and its Affiliates, nor, to the Company’s knowledge, any of their respective directors, officers, or employees (i) has
been or is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) or by any governmental agency of any other applicable jurisdiction (including the United Nations Security
Council, the European Union or the member state thereof and the United Kingdom (together with the OFAC the “Sanction Authority”)),
(ii) has violated or is violating any applicable sanctions administered by a Sanction Authority or has been subject to any
claim, proceeding, formal notice or investigation with respect to sanctions administered by a Sanction Authority; and the Company will
not directly or indirectly use the proceeds of the Transaction, or lend, contribute or otherwise make available such proceeds to joint
venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country
or territory, that the Company knows is currently subject to any sanctions administered by OFAC or a Sanction Authority. |
| (l) | Other Subscription
Agreements. The Subscription Agreements of the Other Subscribers for the subscription of the Royalty Certificates do not include terms
or conditions that are more advantageous than the terms and conditions of this Agreement other than provisions relating to the specific
regulations or status applicable to such Other Subscriber. The Company shall not enter into any side letter or otherwise agree (orally
or in writing) to modify or waive any of the terms and provisions of such Subscription Agreement with any Other Subscriber without the
prior written consent of the Subscriber. |
| (m) | Company Public Information. The Company Public Information accurately reflects in all material
respects the facts that are to be included in such type of document and contains as a whole, taking into account the circumstances in
which it has been made, no material omission likely to affect its meaning as at the date of its filing or issuance (as the case may be). |
| (n) | Acknowledgment regarding Subscriber’s Purchase of Royalty Certificates. The Company acknowledges
and agrees that the Subscriber is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and
the transactions contemplated hereby. The Company further acknowledges that the Subscriber is not acting as a financial advisor or fiduciary
of the Company (or in any similar capacity with respect to the Company) or any Other Subscriber with respect to this Agreement and the
transactions contemplated hereby and any advice given by the Subscriber or any of its respective representatives or agents to the Company
in connection with this Agreement and the transactions contemplated hereby is merely incidental to the Subscriber’s purchase of
the Royalty Certificates. The Company further represents to the Subscriber that the Company’s decision to enter into this Agreement
has been based on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. |
| 4.2 | The Company undertakes the following: |
| (a) | Interim Covenants. During the period from the date of this Agreement and continuing until the earlier
of the termination of this Agreement and the Closing Date, the Company shall conduct its business in the usual, regular and ordinary course
of business consistent with past practice. |
| (b) | Royalty Certificate Issuance. The Company shall take all action necessary to cause the Royalty
Certificates to be issued to the Subscriber on, or, as soon as possible following, the Closing Date in accordance with the terms and conditions
of this Agreement. |
Upon payment of the Subscriber Aggregated
Subscription Price by the Subscriber in the manner contemplated by this Agreement, the Company shall register these Royalty Certificates
upon records to be maintained by the Company or any other entity appointed as registrar by the Company (as set forth in Terms and Conditions
of the Royalty Certificates attached as Exhibit A) for that purpose in the name of the record holder of such Royalty Certificate.
No physical documents evidencing the title to the Royalty Certificates will be issued.
(i) PFIC.
The Company will (a) promptly notify the Subscriber (and in no event later than 30 Business Days following the end of each calendar
year) whether the Company has determined that it or any of its subsidiaries was a PFIC (as each such term is defined above) for such calendar
year and (b) provide the Subscriber with sufficient information, on a timely basis, to determine whether the Company is a PFIC and
allow its investors to make and maintain a Qualified Electing Fund election under Section 1295 of the U.S. Internal Revenue Code
of 1986, as amended with respect to the Company in the event the Company for any year in which the Company is treated as a PFIC.
(ii) Corporate
Status. The Company will not take any action inconsistent with the treatment of the Company as a corporation for U.S. federal income
tax purposes and will not elect to be treated as an entity other than a corporation for U.S. federal income tax purposes.
| (b) | Except as required by applicable law and regulation (including any request from the AMF), or upon the
express and specific written consent of the Subscriber, the Company will not make any use of the name of the Subscriber or that of any
Affiliate of the Subscriber, nor refer to its relationship with the Subscriber and/or any of its Affiliates, including in any press release
or other public announcement or in any publicity, marketing materials, or other public relations material, whether distributed publicly
or to any third party or parties in a non-public communication. |
| (c) | Use of Proceeds. The Company undertakes to use 100% of the proceeds from the subscription of the
Royalty Certificates to pursue lanifribanor phase III clinical study as disclosed in the press release relating to the issue of the New
Shares and in the French Listing Prospectus. |
| 4.3 | The Company acknowledges and agrees that notwithstanding any provision of this Agreement otherwise requiring
the Subscriber to provide any information or documents to the Company or any third party, the Subscriber shall be entitled to withhold,
edit, redact and/or otherwise limit disclosure of any such information or documents on the grounds of national security and/or financial
or economic sensitivity and the Subscriber shall have no liability whatsoever and shall be free and harmless from any claims whatsoever
for exercising its rights pursuant to this clause. |
| 4.4 | For the avoidance of doubt, the Subscriber is solely liable for its obligations set forth in or arising
under this Agreement, and no direct or indirect legal or beneficial owner of Investor shall have any liability in respect of this Agreement. |
| 5. | Representations and Warranties and Covenants of the Subscriber |
| 5.1 | The Subscriber represents and warrants to the Company that: |
| (a) | Organization. The Subscriber is duly organized and is validly existing under the laws of its state
of incorporation. |
| (b) | Power; Authorization. The execution and performance by the Subscriber of the Agreement has been
duly authorized by all necessary corporate bodies, or, if the Subscriber is not a corporation, such partnership, limited liability company
or other applicable bodies, on the part of the Subscriber. As such (i) the Subscriber has all requisite corporate or other power
and capacity and has taken all requisite corporate or other action to execute and deliver this Agreement, to purchase the Royalty Certificates
to pay the Subscription Price, and to carry out and perform all of its obligations under this Agreement; and (ii) this Agreement
has been duly executed by the Subscriber, and when delivered by the Subscriber in accordance with terms hereof, will constitute the valid
and legally binding obligation of the Subscriber, enforceable against it in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors’ rights generally. |
| (c) | Information. The Subscriber has had an opportunity to discuss the Company’s business, management,
financial affairs and the terms and conditions of the offering of the Royalty Certificates with the Company’s management. The foregoing,
however, does not limit or modify the representations and warranties of the Company in Section 4.1 of this Agreement or the right
of the Subscribers to rely thereon. |
| (d) | Investment Intent. The Subscriber is purchasing the Royalty Certificates for its own account as
principal, for investment purposes only, and not with the intent or for the purpose of the resale distribution thereof, in whole or in
part, within the meaning of the Securities Act or the other applicable securities laws of any other jurisdiction to the extent applicable.
The Subscriber understands that its acquisition of the Royalty Certificates has not and will not have been registered under the Securities
Act in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of such Subscriber’s
investment intent as expressed herein. Except as contemplated by this Agreement, the Subscriber has not entered into any agreement, undertaking,
arrangement, obligation or commitment providing for the disposition of the Royalty Certificates. The Subscriber represents that it has
not been organized, reorganized or recapitalized specifically for the purpose of investing in the Royalty Certificates. |
| (e) | No Insolvency Proceedings. To the knowledge of the Subscriber, no bankruptcy, insolvency or other
proceedings of general application affecting creditors’ rights have been proposed, commenced or threatened against the Subscriber,
and no judgment has been made or is pending declaring the Subscriber insolvent. |
| (f) | No Violation. Neither
the execution of this Agreement by the Subscriber nor the subscription of the Royalty Certificates by the Subscriber violates or will
violate (i) any provision of the articles of association (or equivalent constituent documents) of the Subscriber, (ii) any material
applicable law or material regulation binding upon the Subscriber or its assets, (iii) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Subscriber or any of its assets, (iv) the rules of any stock exchange as
they apply to the Subscriber, and (v), any other material agreements to which the Subscriber is a party, in each case, with respect to
clauses (i) – (v) of this Section 5.1(e), except to the extent that such violation would not reasonably be
expected to materially impair or delay the Subscriber’s ability to perform its obligations under this Agreement. |
| (g) | Category of Subscriber. The Subscriber is a “qualified investor” within the meaning
of Article 2(e) of Regulation (UE) 2017/1129, as amended. The Subscriber is subscribing for the number of Royalty Certificates
set forth hereto in the ordinary course of its business for investment only and with no present intention of distributing any of such
Royalty Certificates or any arrangement or understanding with any other persons regarding the distribution of such Royalty Certificates.
The Subscriber will subscribe for at least an amount equal to EUR 100,000. |
| (h) | Lock-up. The Subscriber
agrees that it will not, during the period beginning on the Closing Date and ending 6 months after the Closing Date (such period, the
“Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly
of any of the Royalty Certificates it owns, or publicly disclose the intention to make any offer, sale, pledge or disposition of the Royalty
Certificates, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of
ownership of the Royalty Certificates, in each case other than (i) as permitted pursuant to the Terms and Conditions of the Royalty
Certificates attached as Exhibit A or (ii) to (x) any Affiliates. |
| (i) | Restricted
Securities. The Subscriber understands that the Royalty Certificates have not been, and will not be, registered under the Securities
Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things,
the bona fide nature of the investment intent and the accuracy of the Subscriber’s representations as expressed herein. The Subscriber
understands that, in addition to the restrictions applicable to the Royalty Certificates under this Agreement, the Royalty Certificates
may be deemed “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Subscriber must hold the Royalty Certificates indefinitely unless they are registered with the Securities and Exchange Commission
and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Subscriber
acknowledges that the Company has no obligation to register or qualify the Royalty Certificates for resale. The Subscriber further acknowledges
that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Royalty Certificates, and on requirements relating to the Company
which are outside of the Subscriber’s control, and which the Company is under no obligation and may not be able to satisfy. The
Subscriber understands that no United States federal or state agency or any other government or governmental agency has passed upon or
made any recommendation or endorsement of the Royalty Certificates. |
| (j) | Accredited Investor.
The Subscriber is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. |
| (k) | No General Solicitation. The Subscriber is not purchasing or subscribing for the Royalty Certificates
as a result of any advertisement, article, notice or other communication regarding the Royalty Certificates published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at any seminar or, to such Subscriber’s knowledge,
any other general solicitation or general advertisement (within the meaning of Rule 502(c) under the Securities Act). |
| (l) | Residence. If the Subscriber is an individual, then the Subscriber resides in the state identified
in the address of the Subscriber set forth in Section 7; if the Subscriber is a partnership, corporation, limited liability company
or other entity, then the office or offices of the Subscriber in which its principal place of business is conducted is identified in the
address or addresses of the Subscriber set forth in Section 7. |
| (m) | Exculpation among Subscribers. The Subscriber acknowledges that it is not relying on any other
individual or entity (including any Other Subscriber), other than the Company and its officers and directors, in making its investment
or decision to invest in the Company. |
| (n) | No rights in the Company’s Securities. The Subscriber understands that by subscribing to
the Royalty Certificates, it shall not be entitled to vote or be deemed the holder of any other securities of the Company, nor shall anything
contained herein be construed to confer upon the Subscriber, as such, the rights of a stockholder of the Company or the right to vote
for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any
corporate action or to receive notice of meetings or other actions affecting stockholders or to receive dividends or subscription rights
or otherwise. |
| 5.2 | The Subscriber undertakes that: |
| (a) | It will comply with any notification requirements which may be required to be made under any applicable
law and the Company’s by-laws. |
| (b) | It will sign and execute and deliver such documents and take such actions as are necessary for the consummation
of the sale of the Royalty Certificates to the Subscriber hereunder; provided, that nothing herein shall require the Subscriber to sign,
execute and deliver any document or take any action that, in the good faith determination of the Subscriber, could reasonably be expected
to result in (i) competitive harm to the Subscriber, (ii) the disclosure of any confidential or proprietary information of the
Subscriber or (iii) the breach of any applicable law, regulation or judicial, administrative or regulatory process. |
| 6. | Survival of Representations, Warranties and Agreements |
Notwithstanding any investigation made
by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company and the Subscriber herein
will survive the execution of this Agreement, the transfer to the Subscriber of the Royalty Certificates being subscribed and the payment
therefor.
All notices, requests, consents and
other communications required or permitted hereby shall be in writing will be sent by email, or mailed, and will be deemed given if delivered
by email, upon electronic confirmation of receipt and addressed to the relevant recipient in the manner provided below, and shall be deemed
to have been duly and sufficiently given only if (a) delivered either personally by hand, or by an international courier service,
and, in each case, (b) confirmed by email to the relevant recipient. Notices shall be deemed effective if given on a
Business Day, in the manners prescribed in the immediately preceding sentence, by 13:30 in the place of receipt or on the following Business
Day if completed after 13:30.
All notices will be delivered as addressed
as follows:
| (a) | if to the Company, to: |
Inventiva S.A.
50, rue de Dijon
21121 Daix
France
Attention: Frédéric Cren
Phone:
Email:
| (b) | if to the Subscriber, to: |
[•]
This Agreement may not be modified or
amended except by written agreement signed by the Company and the Subscriber.
In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
| 10. | Governing Law and Jurisdiction |
This Agreement will be governed by,
and construed in accordance with, the laws of France. Any dispute or suit relating to the interpretation, validity and performance of
this Agreement, or arising out of or as a consequence hereof, shall be subject to the exclusive jurisdiction of the Tribunal de commerce
of Paris.
Each party to this Agreement acknowledges
that Cooley LLP, U.S. counsel for the Company, has in the past performed and may continue to perform legal services for the Subscriber
in matters unrelated to the transactions described in this Agreement. Accordingly, each party to this Agreement hereby (a) acknowledges
that they have had an opportunity to ask for information relevant to this disclosure; and (b) gives its informed consent to Cooley
LLP’s representation of certain of the Subscriber in such unrelated matters and to Cooley LLP’s representation of the Company
in connection with this Agreement and the transactions contemplated hereby.
| 12. | Execution of Agreement |
This Agreement has been executed in
two copies, one for each party.
Exhibit A
Terms and Conditions of the Royalty Certificates
Terms and Conditions of the Royalty Certificates
The terms and
conditions of the Royalty Certificates (the “Conditions”) are as follows:
The issue by Inventiva S.A., a limited
liability company (société anonyme) incorporated and organized under the laws of France, whose registered office
is at 50, rue de Dijon, 21121 Daix, France, registered with the Trade and Companies Register of Dijon under number 537 530 255 (“Inventiva”
or the “Company”), of its 51 royalty certificates (the “Royalty Certificates”) for an amount of
€100,000 each as decided by the board of directors (conseil d’administration) of the Company on 30 August 2023.
51 Royalty Certificates (the “Total Number
of Royalty Certificates”) have been issued pursuant to Subscription Agreements entered into by the Company and each investor
in consideration for the Subscription Price paid by each investor as set forth in Appendix A.
All capitalized terms used in these Conditions
shall have the following meaning:
“Affiliate”
when used with reference to a specified Person, means any Person that, directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with such specified Person, in each case from time to time; for such purposes, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise and shall include the notion of control within the meaning of Article L.
233-3, paragraphs I and II, of the French Commercial Code (Code de commerce). For the avoidance of doubt, (i) Affiliates of
a Fund shall include (x) any Fund Manager and (y) any other Fund that is managed or advised by such Fund’s Fund Manager
or by any Affiliate of that Fund Manager, and (ii) Affiliates of a Fund Manager shall include any Fund managed or advised by it or
by any of its Affiliates. For the purposes of this definition and these Conditions, no holder of Inventiva Shares shall be considered
an Affiliate unless such holder of Inventiva Shares exercises 50% or more of the voting rights in Inventiva. As of the date hereof, the
sole Affiliate of Inventiva is Inventiva Inc., whose registered office is at 10-34 44 th Dr, Long Island, 11101 New York, United-States
of America
“Agent”
has the meaning ascribed to this term under Condition 8.1 (Representatives Committee).
“Business Day” means any day
except (i) a Saturday, a Sunday, (ii) a day that is not a trading day on the regulated market of Euronext Paris, (iii) a
day on which banks in Paris, the United States and Qatar are authorized or required by Law to remain closed or (iv) a day on which
T2 (Trans-European Automated Real-time Gross Settlement Express Transfer System) is not open (or any combination of the above).
“Certificate Payment Date”
means fifteen (15) Business Days after the publication of the Company’s audited financial statements for the prior fiscal year in
which the relevant Net Sales (or in respect of any Commercialization Agreement, any amounts received under the Commercialization Agreement
in respect of the Product or resulting from Net Sales of the Product) were recorded by the Company or any of its Affiliates.
“Collective
Decisions” has the meaning ascribed to this term under Condition 8.2 (Collective
decisions).
“Commercialize”
means commercial manufacture, marketing, promotion, sale or distribution.
“Commercialization Agreement”
means any agreement under which the Company or any of its Affiliates grants or has (directly or indirectly, including through sublicenses)
granted or authorized the grant of a license to a third party (including, without limitation, third party agents, distributors and wholesalers)
to Commercialize any Product (such third party, a “Commercialization Partner”).
“Commercialization
Partners” has the meaning given in the definition of Commercialization Agreement.
“Conditions” means these terms
and conditions.
“Disposal
Transaction” means any transaction (or series of related transactions) as a result of which the Company (or any of its
Affiliates) or any Third Party Acquirer (or any of its Affiliates) directly or indirectly disposes of or grant any rights to or under
any assets or rights (including intellectual property rights) relating to Lanifibranor or any Product be it through an asset or share
sale, transfer or swap of assets, merger, reorganization, joint venture, lease or any other transaction or arrangement having a similar
result or effect.
“Entity” means any entity,
company, corporation, group, de facto company, association, partnership, joint venture, whether governmental or private, or whether
or not having a separate legal personality.
“€” and “Euro”
means the currency introduced at the start of the third stage of European economic and monetary union pursuant to the Treaty establishing
the European Community (signed in Rome on 25 March 1957), as amended.
“FTT”
has the meaning ascribed to this term under Condition 6 (Taxation)
“Full Purchase”
has the meaning ascribed to these terms under Condition 4.2 (Cancellation and Full Purchase of the Royalty Certificates).
“Fund” means any Entity in
the form of trusts or investment funds, or other investment vehicles, in any form, that (a) has been established to pool the resources
of multiple underlying investors or utilize the resources of the one underlying investor, (b) is managed or advised by a Fund Manager
and (c) has been established to invest in a class of assets or investments, rather than in a single asset or investment.
“Fund Manager” means a general
partner, trustee, nominee, investment manager or advisor or other person appointed by a Fund to manage or advise directly or indirectly
that Fund on a day-to-day basis in relation to all or part of its assets.
“General
Meeting” has the meaning ascribed to this term under Condition 8.2 (Collective
decisions).
“Governmental Entity” means
any domestic or foreign court or other judicial authority or governmental, administrative or regulatory body, department, agency, commission
or authority.
“Independent
Expert” has the meaning ascribed to this term under Condition 7.3 (Independent Expert - Audits)
“Inventiva Shares” means ordinary
shares of Inventiva, each with a par value of €0.01 (ISIN Code: FR0013233012).
“Issue Date” means the closing
date of the purchase of the Royalty Certificates by the investors under the Subscription Agreements which is expected to be on or about
5 September 2023.
“Lanifibranor” means an orally-available
small molecule in development for the treatment of NASH that acts to induce anti-fibrotic, anti-inflammatory and beneficial vascular and
metabolic changes in the body by activating all three peroxisome proliferator-activated receptors, or PPAR, isoforms, and including any
deuterated derivatives or analogs, racemates, salts, metabolites, esters, diastereomers, tautomers, enantiomers, prodrug forms, hydrates,
solvates, intermediates, polymorphs and degradants thereof, in each case, that have a similar pharmacological effect, in crystal, powder
or other form. PPARs are well-characterized nuclear receptor proteins that regulate gene expression, and their relevance for the fibrotic,
inflammatory, vascular and metabolic processes that characterize NASH is well-established.
“Law” means any domestic, EU,
foreign, federal, local or municipal laws, rules, judgments orders, regulations, statutes, ordinances, codes, decisions, injunctions,
orders, decrees or requirements of any Governmental Entity.
“Lock-up Period” means the
period beginning on the Issue Date and ending on the date that is six months following the Issue Date.
“Net Sales”
means the gross amount billed or invoiced or otherwise recognized as revenue by the Company, its Commercialization Partners or any of
their respective Affiliates for sales or other dispositions of the Product in or in relation to the Territory to third parties, in bona
fide, arms-length transactions, less the total of the following items, as specifically allocated to such Products, actually
allowed and taken by such third parties and not otherwise recovered by or reimbursed to the Company, its Commercialization Partners or
any of their respective Affiliates and not previously deducted from the amount invoiced:
| (i) | trade, cash and/or quantity discounts, credits or allowances actually allowed (provided that such discounts
are applied in a normal and customary manner with respect to other similarly situated products of the selling party, and not in a manner
which is unreasonably disproportionate to one or more Products when compared to other products of the selling party); |
| (ii) | charge back payments, price reductions and rebates allowed or granted to managed care organizations, government
agencies or trade customers, including wholesalers and chain and pharmacy buying groups (provided that such discounts are applied in a
normal and customary manner with respect to other similarly situated products of the selling party, and not in a manner which is unreasonably
disproportionate to one or more Products when compared to other products of the selling party); |
| (iii) | credits actually allowed for claims, allowances for damaged goods, retroactive price reductions or rejected
or returned goods; |
| (iv) | prepaid freight, distribution, postage, shipping, customs duties and insurance charges to the extent added
to the sale price (whether or not specifically identified as such in the invoice to the third party); and |
| (v) | sales taxes, value added taxes, duties and other governmental charges to the extent added to the sale
price (whether or not specifically identified as such in the invoice to the third party). |
For purposes of
determining Net Sales, “sale” will not include transfers or dispositions for charitable, promotional, pre-clinical, clinical,
regulatory or governmental purposes (in each case, for no consideration). Net Sales shall include the amount or fair market value of all
other consideration received by the Company, its Commercialization Partners or any of their respective Affiliates, in respect of
the Product, whether such consideration is in cash, payment in kind, exchange or other form. Net Sales shall not include sales between
or among the Company, its Commercialization Partners (on the basis that it is the sale or disposal of the Product by the Commercialization
Partner or its Affiliate that constitutes the Net Sale for purposes of these Conditions) or their respective Affiliates.
“Offered
Certificates” has the meaning ascribed to this term under Condition 3.2 (Transfer
and Company’s pre-emptive right).
“Outstanding Royalty Certificates”
means, as of the date of determination, all Royalty Certificates issued under these Conditions, except for the Royalty Certificates purchased
by the Company and/or cancelled in accordance with these Conditions.
“Person” means a natural person,
an Entity or a Governmental Entities.
“Preemption
Right” has the meaning ascribed to this term under Condition 3.2 (Transfer
and Company’s pre-emptive right).
“Product” means any product
containing Lanifibranor, in any and all finished forms, presentations, delivery systems, strength, dosages, formulations and routes of
administration.
“Public
Disclosure” means with respect to the Company (i) its universal registration document (document d’enregistrement
universel) as amended from time to time, (ii) its annual report on the Form of 20-F filed with the U.S. Securities and Exchange
Commission, (iii) its half year financial report and (iv) any press release issued by the Company on its websites.
“Qualified Institutional Buyers”
or “QIBs” means qualified institutional buyer as defined in Rule 144A under the U.S. Securities Act of 1933,
as amended.
“Qualified Investor” means
persons or entities which enter into the definition provided in point e), Article 2 of Regulation (EU) 2017/1129 of 14 June 2017
on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market.
“Registrar”
has the meaning ascribed to this term under Condition 2 (Form, denomination and title)
“Reports”
has the meaning ascribed to this term under Condition 7.2 (Reporting obligations).
“Representatives
Committee” has the meaning ascribed to this term under Condition 8.1 (Representatives Committee).
“Royalty” means, with respect
to a Royalty Certificate and any Certificate Payment Date, the product of (i) the Royalty Rate and (ii) a fraction, the numerator
of which is the amount of Net Sales of the Product during the fiscal year preceding the Certificate Payment Date and the denominator of
which is the Total Number of Royalty Certificates (rounded up to the nearest multiple of euro 0.0001).
“Royalty Cap” means, with respect
to the aggregate amount of Royalty Certificates, an amount equal to ninety-two point one million euros (€ 92,1 million) provided
that such amount shall be reduced by an amount equal to the aggregate of the Royalty Cap per Certificate in respect of all Royalty Certificates
purchased by the Company and/or cancelled in accordance with these Conditions.
“Royalty Cap per Certificate”
means the Royalty Cap divided by the Total Number of Royalty Certificates.
“Royalty Certificate” or “Certificate”
means the royalty certificates issued by the Company and whose terms and conditions are described herein.
“Royalty Certificate Holder”
means the holder of a Royalty Certificate.
“Royalty Certificates Expiration Date”
means 5 September 2038 i.e. the date that is fifteen (15) years following the Issue Date.
“Royalty Rate” means two per
cent (2%).
“Selling
Holder” has the meaning ascribed to this term under Condition 3.2 (Transfer
and Company’s pre-emptive right).
“Subscription Agreements” means
the subscription agreements pursuant to which the Royalty Certificates are issued by the Company and purchased by the initial Royalty
Certificates Holders.
“Subscription Price” means,
with respect to each investor, the aggregate amount corresponding to €[100,000] euros per Royalty Certificates, paid by such investor
for its Royalty Certificate(s) upon their issuance.
“Tax” means any federal, state,
local or foreign income, profits, gross receipts, license, payroll, employment, severance, stamp, occupation, premium, windfall profits,
environmental, customs duty, capital stock, franchise, sales, social security, unemployment, disability, use, property, withholding, excise,
transfer, registration, production, value added, alternative minimum, occupancy, estimated or any other tax of any kind whatsoever, together
with any interest, penalty or addition thereto, imposed by any Governmental Entity responsible for the imposition of any such tax, whether
disputed or not.
“Territory” means the United
States of America and each country of the European Union (including any additional member states as may become members of the European
Union prior to the Royalty Certificates Expiration Date) and the United Kingdom.
“Third
Party Acquirer” has the meaning ascribed to this term under Condition 7.4 (Disposal).
“Written
Decision” has the meaning ascribed to this term under Condition 8.2 (Collective
decisions).
| 2. | Form, denomination and title |
The Certificates will be issued
in dematerialised registered form. Title to the Certificates will be evidenced by book-entries (inscription en compte), in accordance
with Articles L. 211-3 et seq. of the French Monetary and Financial Code.
The Certificates holders’
rights shall be evidenced by a book entry on a securities account open in their name in the books of the Company or any other entity appointed
as registrar by the Company (the “Registrar”) which expression shall, where the context so admits, include any successor
for the time being as Registrar.
On the Issue Date, the Registrar
appointed by the Company is Société Générale Securities Services.
No physical document of title
will be issued in respect of the Certificates.
The Royalty Certificates are sui generis
debt instruments referred to in Article L. 228-36-A of the French Commercial Code (Code de commerce) that represent the right
of the Royalty Certificate Holders to receive payment of Royalties (if any) on each Certificate Payment Date.
The rights of the
Royalty Certificates Holders are limited to the rights expressed in these Conditions. Without prejudice to Condition 8 (Representation
of the Royalty Certificate Holders), no Royalty Certificate Holder, as such, shall be entitled to vote or be deemed the holder of
any other securities of the Company, nor shall anything contained herein be construed to confer upon the Royalty Certificate Holder, as
such, the rights of a shareholder of the Company or the right to vote upon any matter submitted to the shareholders at any meeting thereof,
or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting shareholders (except as
provided herein), or to receive dividends or subscription rights or otherwise.
The Royalty Certificates
constitute direct, unconditional, unsubordinated and unsecured financial instruments of the Company
and ranking equally between themselves. Other than as set out in these Conditions, holders of Royalty Certificates have no rights
to receive any sums (including any right of redemption of the Subscription Price) from the Company at any time in regard to such Royalty
Certificates.
| 3.2 | Transfer and Company’s pre-emptive right |
The Royalty Certificates
cannot be sold, transferred or otherwise disposed of during the Lock-Up Period to any person. Notwithstanding the foregoing, a
Royalty Certificate Holder may at any time transfer its Royalty Certificate in whole but not in part to its Affiliate (subject to any
applicable Laws) or as set forth in the Subscription Agreement.
In the event that,
after the Lock-Up Period, any Royalty Certificate Holder (the “Selling Holder”) intends to sell, transfer, or otherwise
dispose of, which sale, transfer or other disposal may only be in whole, but not in part, its Certificates (the “Offered
Certificates”), the Company shall have a preemption right to purchase the Offered Certificate on the same terms and conditions
as offered by the prospective third-party purchaser (the “Preemption Right”).
The Selling Holder
shall provide written notice in accordance with Condition 9 (Notices) to the Company specifying (i) the postal
and email addresses of the third-party purchaser, (ii) confirming that the new Royalty Certificate Holder is a Qualified Investor
and/or a QIB and (iii) the price, terms, and conditions of the proposed sale. The Company shall have five (5) Business Days
from the receipt of such notice to inform the Selling Holder in accordance with Condition 9 (Notices) that it may exercise
its Preemption Right. The Company shall have fifteen (15) additional Business Days following the receipt of the notice by the Selling
Holder to exercise its Preemption Right. Any Royalty Certificate so purchased will automatically be cancelled and may not be re issued
or re sold.
If the Company does
not exercise its Preemption Right within the specified timeframe, the Selling Holder shall be free to sell the Offered Certificate to
the third-party purchaser on the terms specified in the notice and shall provide written notice in accordance with Condition 9 (Notices)
of the account details of the new Royalty Certificate Holder for the purpose of receiving Royalty payments hereunder as well as
written notice of the notice details of the new Royalty Certificate Holder .
Any transfer not complying with the present Condition
shall be deemed null and void, and the Company or the Registrar shall not be bound to recognize such transfer and shall forthwith inform
the Royalty Certificate Holder. Notwithstanding the foregoing, a Royalty Certificate Holder may transfer its Royalty Certificate in whole
but not in part to its Affiliate (subject to any applicable Laws) or to other Royalty Certificate Holders.
In accordance with Articles L. 211-15 and L. 211-17
of the French Monetary and Financial Code (Code monétaire et financier), transfers of the Royalty Certificates will be made
by transfer from account to account and the transfer of ownership of the Royalty Certificates will occur once they are recorded as book
entries in the acquirer’s securities account.
| 4. | PURCHASE AND CANCELLATION |
| 4.1 | Purchase of the Royalty Certificates by the Company |
The Company, subject to a thirty (30) calendar
days prior written notice to the relevant Royalty Certificate Holders, will have the right at any time to purchase all or part of the
Royalty Certificate(s) of one or more Royalty Certificate Holder(s) at the lesser of (i) the price per Royalty Certificate
to be agreed with the relevant Royalty Certificate Holder and (ii) the Royalty Cap per Certificate minus the amount of Royalties
per Certificate effectively paid with respect to such Royalty Certificate. Royalty Certificates so purchased by the Company or any of
its Affiliates will be automatically cancelled and may not be re issued or re sold.
In the event that
the Company agrees to enter into a transaction with a Royalty Certificate Holder that would result in the direct or indirect transfer
(in any way whatsoever) of all or part of that Royalty Certificate Holder’s Certificates to the Company under this Condition 4.1,
each other Royalty Certificate Holder will have the right to sell a pro-rata portion of its Royalty Certificates to the Company on the
same terms and conditions and on the same date as agreed among the Company and the transferring Royalty Certificate Holder.
At least fifteen
(15) Business Days prior to the completion of the transaction between the transferring Royalty Certificate Holder and the Company, the
Company shall provide written notice in accordance with Condition 9 (Notices) to the other Royalty Certificate Holders
specifying the identity of the transferring Royalty Certificate Holder and the price, terms, and conditions of the proposed acquisition.
Each other Royalty Certificate Holder shall have five (5) Business Days from the receipt of such notice to inform the Company in
accordance with Condition 9 (Notices) that it may exercise its tag along right.
For the avoidance of doubt, the initial Royalty
Certificate Holders shall, for the purpose of this Condition, be deemed not to be an Affiliate of the Company.
| 4.2 | Cancellation and Full Purchase of the Royalty Certificates |
All the Outstanding Royalty Certificates will
be cancelled when the aggregate amount of Royalties paid in respect of the Outstanding Royalty Certificates equals the Royalty Cap. Upon
cancellation of such Royalty Certificates, no further amounts shall be due and payable by the Company.
The Company, subject to a thirty (30) calendar
days prior written notice to the relevant Royalty Certificate Holders will have the right at any time to purchase all, and no less than
all of the Outstanding Royalty Certificates from the Royalty Certificate Holders (a “Full Purchase”) for an amount
equal to the lesser of (A) (i) the Royalty Cap minus (ii) the amount of Royalties effectively paid to the Royalty
Certificate Holders in respect of the Outstanding Royalty Certificates prior to the date of the Full Purchase or (B) any amount to
be approved by a Collective Decision approved by one or more Royalty Certificate Holders holding together not less than 90% of the Outstanding
Royalty Certificates. All the Royalty Certificates will be immediately cancelled upon their Full Purchase by the Company and may not be
re issued or re sold.
| 4.3 | Cancellation of the Royalty Certificates upon the Royalty Certificates Expiration Date |
Any Outstanding Royalty Certificates on the Royalty
Certificates Expiration Date will be cancelled, provided that all Royalties, if any, that are due in accordance with these Conditions
have been paid as at such date. Upon cancellation of such Royalty Certificates, no further amounts shall be due and payable.
The right of the
Royalty Certificate Holders to receive payment of Royalties shall be contingent upon commercial sales or other dispositions of the Product
or otherwise the receipt of any damages pursuant to Condition 5.5 (Infringement Actions) that are treated as Net Sales. Payment
of Royalties in respect of Net Sales in respect to such commercial sales or other dispositions shall occur on the Certificate Payment
Date immediately following the fiscal year in which such commercial sales occur. In the event that no commercial sales or other dispositions
occur in a fiscal year, no payment of Royalties shall be due in respect of that fiscal year.
Royalties shall become irrevocably due by the
Company upon the occurrence of commercial sales or other dispositions with respect to which such Royalties are calculated in accordance
with these Conditions.
When commercial sales or other dispositions of
the Product occur during a fiscal year, the Company shall, on or prior to the related Certificate Payment Date, pay, or cause to be paid
in respect of the Royalty Certificate(s) owned by a Royalty Certificate Holder by wire transfer to the account designated by each
of the Royalty Certificate Holders, an amount equal to the product of (i) the Royalty and (ii) the number of Royalty Certificates
owned by such Royalty Certificate Holder.
All payments in respect of the Royalty Certificates,
including payments of Royalties, will be made in Euros by the Company by credit or transfer to a Euro-denominated account (or any other
account to which euros may be credited or transferred). All payment of the Royalties validly made to the Royalty Certificate Holders will
be an effective discharge of the Company, as the case may be, in respect of such payment. The Company shall not be responsible or account
for any wire or other fees charged to the accounts of such Royalty Certificate Holders.
The Company’s obligations to pay Royalties
in respect of any Royalty Certificate shall terminate automatically upon the purchase in full of the Royalty Certificates and/or cancellation
in accordance with Condition 4 (Purchase and Cancellation).
| 5.2 | Payment on Business Days |
If the due date for payment of any Royalties is
not a Business Day, payment shall be made on the next following Business Day, and the Royalty Certificate Holders shall not be entitled
to any interest or other sums in respect of thereof.
If any amounts payable by the Company shall be
overdue for ten (10) Business Days, the Company shall additionally pay to the Royalty Certificate Holders to whom such payment is
owed simple interest on the sum outstanding at the rate per annum equal to six (6) months EURIBOR plus 4%. The payment of such interest
shall not prevent the Royalty Certificate Holders from exercising any other rights it may have as a consequence of the lateness of any
payment. Such interest payment shall not be applied toward determination of the Royalty Cap.
Payments made to Royalty Certificate Holders in
respect of the Royalty Certificates will not be subject to any clawback.
As from the Issue Date and as long as there are
Outstanding Royalty Certificates, if the Company, its Commercialization Partners or any of their respective Affiliates recovers any monetary
damages from any third party in any action for infringement of any intellectual property rights relating to Lanifibranor or any Product
(but only in circumstances where the infringing product competes with the Product in a manner that has had a detrimental effect on Net
Sales of the Product), where such definitive damages (whether in the form of an irrevocable judgment (décision de justice irrévocable)
or settlement) are awarded for such infringement of such intellectual property rights relating to Lanifibranor or any Product, (i) such
damages will be allocated first to the reimbursement of any expenses incurred by the Company in bringing such action (including reasonable
attorney’s fees) not already reimbursed from other damages awarded under the same action, then (ii) any residual amount of
such damages will be treated as Net Sales (and for purposes of these Conditions, such amount shall be deemed commercial sales of the Product)
of the Product for purposes of Royalties.
This Condition does not purport to be a comprehensive
description of all the tax considerations that may arise in respect of the Royalty Certificates or that may be relevant to any Royalty
Certificate Holders.
This Condition is not intended to be, nor should
it be construed to be, legal or tax advice.
Royalty Certificate Holders should therefore
consult their own professional advisers as to the effects of state, local or foreign laws, including French tax law, to which they may
be subject.
Withholding taxes in respect of the Royalty
Certificates
All payments by or on behalf of the Company in
respect of the Royalty Certificates shall be made free and clear of, and without withholding or deduction for, any Taxes, unless such
withholding or deduction is required by law.
No additional amount will be paid to the Royalty
Certificate Holders if a withholding or deduction in respect of any present or future Taxes is applicable on payments made in respect
of the Royalty Certificates.
French financial transaction tax
Pursuant to Article 235 ter ZD of
the French Tax Code (Code général des impôts) as in force and applicable on the date hereof, a financial transaction
tax (the “FTT”) applies, subject to certain exceptions, to acquisitions for consideration resulting in a transfer of
ownership of equity securities (titres de capital) within the meaning of Article L. 212-1 A of the French Monetary and Financial
Code (Code monétaire et financier) or assimilated equity securities (titres de capital assimilés) within the
meaning of Article L. 211-41 of the French Monetary and Financial Code (Code monétaire et financier) admitted to trading
on a regulated market, which are issued by a company having its head office in France and whose market capitalization exceeds €1
billion on 1st December of the year preceding the year of imposition.
Since the Royalty Certificates do not qualify
as equity securities and given that the market capitalization of the Company did not exceed €1 billion on 1st December 2022,
the acquisition of these Royalty Certificates should not be subject to the FTT.
Registration duties
Pursuant to Article 726 of the French Tax
Code (Code général des impôts) as in force and applicable on the date hereof, registration duties apply to
the transfer for consideration of equity securities (droits sociaux) issued by a listed French company 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 Royalty Certificates should remain outside of the scope of the aforementioned
0.1% registration duties since the Royalty Certificates do not qualify as equity securities (droits sociaux).
| 7. | UNDERTAKINGS FROM THE COMPANY |
| 7.1 | Commercialization Partners |
Company shall ensure
that all of its Commercialization Agreements include reporting obligations and audit rights that are sufficient to ensure that the Company
can fulfil its reporting obligations and audit rights provided for in Condition 7.2 and 7.3,
including such obligations on its Commercialization Partners and their respective Affiliates to report Net Sales as are necessary to ensure
that Royalty Certificate Holders (and/or the Independent Expert, where applicable, as provided in Condition 7.3)
can obtain satisfactory confirmation and reasonable evidence of the Net Sales of the Product by the Company, its Commercialization Partners
and their respective Affiliates for purposes of the Royalty.
If the Company ceases
at any time prior to the Royalty Certificates Expiration Date to be a publicly-listed Company, the Company will provide the Royalty
Certificate Holders with such information and updates as it would otherwise have provided had it remained a publicly-listed Company, including
a copy of Commercialization Agreements (including any related amendments, modification, supplement or waivers that may exist from time
to time) on request of the Royalty Certificate Holders, provided that the Company shall be entitled to redact commercially sensitive information
from the copy of the Commercialization Agreement provided to the Royalty Certificate Holders in a manner consistent with its redactions
in its public filings of such agreements as a publicly-listed Company.
As from the issuance of Royalty Certificates and
as long as there are Outstanding Royalty Certificates,
| (i) | the Company shall keep the Royalty Certificate Holders (as the case may be through the Representatives
Committee) informed in writing or through Public Disclosure once a year, no later than April 30 of each year, of the status,
in reasonable detail, of the development of the Product as it is being developed, and, if applicable, if the Company or any of its Affiliates
becomes aware of any fact or event which could reasonably result in the commercialization of the Product being delayed or not occurring,
provided that for the avoidance of doubt this obligation will be deemed to be satisfied if equivalent information is included in the Public
Disclosure. The above notwithstanding, the Company shall be under no obligation to disclose any inside information (information privilégiée)
to the Royalty Certificate Holders prior to the public disclosure of such information to the market; and |
| (ii) | concurrently with each payment of Royalties on the Certificate Payment Date, the Company shall deliver
to Royalty Certificate Holders a written report setting forth in reasonable detail, the calculation of the Royalty payable to the Royalty
Certificate Holder for the prior fiscal year identifying, on a country-by-country basis, gross sales generated by or on behalf of the
Company or any of its Affiliates, licensees or sublicensees (including any Commercialization Partners), foreign currency exchange rates
used (which shall be rates of exchange determined in a manner consistent with the Company’s method for calculating rates of exchange
in the preparation of the Company’s annual financial statements in accordance with generally accepted accounting principles), and
a detailed break-down of all permitted deductions from gross sales used to determine Net Sales (including the available information of
any items falling within subparagraphs (iv) or (v) of the definition of Net Sales to the extent those have been added to the
sales price) and the Royalty due to the Royalty Certificate Holder – Inventiva shall use best efforts to obtain from licensees or
sublicensees (including any Commercialization Partners) the authorization to provide the relevant section needed to justify the Net Sales
calculation from copies of any royalty reports or similar communications received by the Company or its Affiliates from its Commercialization
Partners or their respective Affiliates. |
(collectively, the “Reports”).
| 7.3 | Independent Expert - Audits |
In the case of a
dispute as to the calculation(s) of the Royalty, the Company shall submit the disputed calculation, by any written means in accordance
with Condition 9 (Notices), within ten (10) Business Days of receipt of a written notice from the Representatives
Committee giving rise to such dispute to the Royalty Certificate Holder(s).
If the Royalty Certificate Holder(s) and
the Company are unable to agree upon such calculation(s) of the Royalty within ten (10) Business Days of such disputed calculation(s),
then the Company shall provide, within twenty (20) Business Days of receipt of such notice, an independent expert (the “Independent
Expert”) designated by common agreement between the Representatives Committee and the Company (or failing such agreement, by
the President of the Commercial Court of Paris, France upon request of the Company or of the Representatives Committee) with access during
normal business hours to any document which are reasonably required to enable the Independent Expert to verify the accuracy of the calculation
of the Royalties by the Company (including, for avoidance of doubt, to verify the accuracy of the calculation of Net Sales to which the
Royalty relates, which may include reviewing the reporting from Commercialization Partners to the Company of the Net Sales of those Commercialization
Partners and reviewing all deductions from gross sales used to determine Net Sales).
The fees charged by such Independent Expert shall
be paid (i) by the Company in the event the Independent Expert were to identify an error leading to a difference of more than 5%
in the Company’s calculation of the Royalty, and (ii) in all other cases by the Royalty Certificates Holders, provided that,
in such case, the fees of the Independent Expert will be deducted from the next payment of Royalties with each Royalty Certificate Holder
pro rata the number of Outstanding Royalty Certificates it holds. The Independent Expert shall disclose to the Representatives
Committee and to the Company any matters directly related to its findings.
The Independent Expert shall provide the Company
with a copy of all disclosures, reports or findings made or delivered to the Representatives Committee.
If the Independent
Expert concludes that any Royalty should have been paid but was not paid when due, the Company shall pay the relevant Royalties, and any
applicable interests pursuant to Condition 5.3 (Late Payment), to the Royalty Certificate Holders within thirty (30)
Business Days of the date on which the Representatives Committee delivers to the Company the Independent Expert’s written report
concluding that Net Sales have been received by the Company.
The decision of the Independent Expert shall be
final, conclusive and binding on the Company and the Royalty Certificate Holders.
In any case of any
Disposal Transaction (other than in connection with the entry into and performance of a Commercialization Agreement or for the
avoidance of doubt, any change of control (as defined in the definition of “Affiliate”) of the Company):
| (i) | all provisions of these Conditions shall remain fully applicable to the Company, including the obligation
to pay the Royalties (if any and regardless of whether the Third Party Acquirer complies with sub-paragraph (ii)(b) below) (the name
of the beneficiary of the Disposal Transaction (the “Third Party Acquirer”) shall be substituted for the term “Company”
in all Conditions of this Agreement solely for the purpose of determining the Royalties payable by the Company in relation to any Net
Sales attributable to the Third Party Acquirer or any of its Affiliates or their respective Commercialization Partners); |
| (ii) | as a condition of executing the Disposal Transaction, the Company shall cause the Third Party Acquirer
by way of a written agreement (a) to comply with these Conditions vis-à-vis the Company and vis-à-vis the Royalty Certificate
Holders as if, where applicable, the Third Party Acquirer were in place of the Company under these Conditions, mutatis mutandis (including
in particular Condition 7 (Undertakings from the Company) and the corresponding definitions), (b) to pay to the Company
or any of its Affiliates an amount equivalent to the Royalty due under these Conditions in relation to Net Sales attributable to such
Third Party Acquirer or any of its Affiliates (or their respective Commercialization Partners) (such amount, the “Third Party
Acquirer Pro Rata Royalty”), and (c) to impose the same obligations as provided for in this Condition 7.4 on any further
third party acquirer(s) in case of any subsequent Disposal Transaction(s) by the Third Party Acquirer; |
| (iii) | the Company shall, at its own initiative or upon request of the Representatives Committee, for the benefit
of the Company and/or Royalty Certificate Holders enforce these Conditions against the Third Party Acquirer in case the Third Party Acquirer
fails to comply with its applicable obligations under these Conditions, and shall pass through (after first allocating the proceeds and/or
damages to the reimbursement of any expenses incurred by the Company in bringing such action (including reasonable attorney’s fees)
not already reimbursed from other damages awarded under the same action) to the Royalty Certificate Holders the proceeds and/or damages
of any such enforcement or claim attributable to the breach (including non-payment of amounts due to the Company) of the Third Party Acquirer
of these Conditions. For avoidance of doubt, amounts recovered and paid to Royalty Certificate Holders under this sub-paragraph shall
not result in double-counting with payments of Royalties. |
| (iv) | the Company shall promptly (and in any event within fifteen (15) Business Days) after signing of the relevant
agreement provide to the Representatives Committee and/or Royalty Certificate Holders a copy of the written agreement (which may be redacted
in respect of commercially sensitive information) between the Company (or any of its Affiliates) and the Third Party Acquirer (or any
of its Affiliates) relating to the Disposal Transaction that fulfils the requirements in subparagraph (ii) above together with notice
details of the Third Party Acquirer. |
In all cases, the Company shall ensure that (a) its
Affiliates (from time to time, including future Affiliates) comply with these Conditions including any provisions of these Conditions
stated to be applicable to the Company’s Affiliates and (b) the Third Party Acquirer shall be an entity of financial standing
at least equivalent to that of the Company.
For clarity, (a) this
Condition 7.4 is without prejudice to the Company’s rights under Condition 4.2 (Cancellation and Full Purchase
of the Royalty Certificates) and (b) in the event of the entry into and performance of a Commercialization Agreement or of a
change of control (as defined in the definition of “Affiliate”) of the Company, all provisions of these Conditions shall remain
fully applicable to the Company, including the obligation to pay the Royalties (if any).
| 8. | Representation of the Royalty Certificate Holders |
| 8.1 | Representatives Committee |
A committee of representatives
for the Royalty Certificate Holders (the “Representatives Committee”), comprising up to a maximum of three (3) Royalty
Certificate Holders, and having the powers set out in this Condition 8.1, the initial representatives being designated by
the Royalty Certificate Holders within sixty (60) days after the Issue Date through a Collective Decision at a simple majority.
The Representatives Committee shall, subject to
applicable law, have the power to:
| (i) | represent the Royalty Certificate Holders vis-à-vis the Company and any of the Company’s
Affiliates; |
| (ii) | designate an Independent Expert as provided for under Condition 7.3
(Independent Expert - Audits); |
| (iii) | undertake any conservatory measures in the exclusive interest of the Royalty Certificate Holders; |
| (iv) | undertake, in connection with the Royalty Certificates and/or these Conditions, any legal proceedings
against the Company and any of the Company’s Affiliates; |
| (v) | designate a third-party professional firm as an agent or representative of the Royalty Certificate Holders
(the “Agent”) to undertake any of the above activities set out in (i-iv) above on behalf of and/or at the direction
of the Representatives Committee. The fees and expenses of the Agent will be borne by the Royalty Certificate Holders. |
The Representatives Committee may not interfere
in the management of the affairs of the Company.
A decision of the Representatives Committee shall
be made at a simple majority.
Any member of the Representatives Committee may
be replaced at any time by a decision of the Royalty Certificate Holders holding no less than 66 2/3% of the total number of the Outstanding
Royalty Certificates.
In circumstances where a member of the Representatives
Committee is a Royalty Certificate Holder, in case of transfer by such member of all its Royalty Certificates to a given transferee, the
transferee of such Royalty Certificates shall be automatically appointed as new the member of the Representatives Committee (unless decided
otherwise by a decision of the Royalty Certificate Holders holding no less than 66 2/3% of the total number of the Outstanding Royalty
Certificates).
The following persons may not be appointed as
member of the Representatives Committee or Agent:
| (i) | the Company, the members of the Company’s board of directors, the Company’s executive officers,
the Company’s statutory auditors or the Company’s employees, as well as the Affiliates, ascendants, descendants or spouses
of any such persons; or |
| (ii) | companies guaranteeing all or part of the obligations of the Company, their respective managers, executive
officers, members of their management body, executive board or supervisory board, their statutory auditors or their employees, as well
as the Affiliates, ascendants, descendants or spouses of any such persons; or |
| (iii) | companies holding one third (33 1/3 %) or more of the share capital of the Company, or companies in which
the Company holds one third (33 1/3 %) or more of the share capital; |
| (iv) | the legal and financial advisors of the aforementioned persons. |
Save in case of willful misconduct, fraud or gross
negligence, the Representatives Committee (and its members) shall not bear any liability whatsoever in its capacity as (member of the)
Representatives Committee for the Royalty Certificate Holders.
Except as set forth above with respect to the
fees and expenses of the Agent designated by the Representatives Committee, the Company shall reimburse the Representatives Committee
for any reasonable costs and expenses incurred by the Representatives Committee in the performance of its role and duties as representative
for the Royalty Certificate Holders, upon submission of a written invoice. In the event that the costs or expenses of the Representatives
Committee are advanced or incurred by any Royalty Certificate Holder (whether in the capacity of member of the Representatives Committee
or otherwise), the Company shall reimburse such Royalty Certificate Holder through adding the amount of such costs or expenses to be reimbursed
to the Royalty payable to such Royalty Certificate Holder on the Certificate Payment Date.
Collective decisions (the “Collective
Decisions”) of the Royalty Certificates Holders are adopted either (i) in a general meeting (the “General Meeting”)
or (ii) by consent following a written consultation (the “Written Decision”), and will be binding on all Royalty
Certificate Holders.
The Company shall hold a register
of the Collective Decisions and shall make it available, upon request, to any subsequent holder of any of the Royalty Certificates Holder.
The rights of each Royalty Certificate
Holder to participate in the Collective Decisions will be evidenced by entries in the books of the Company or the Registrar, as the case
may be, in the name of such Royalty Certificate Holder at midnight (Paris time) on the Business Day preceding the date of the General
Meeting.
The General Meeting may be held
at any time on convocation either by the Company or by the Representatives Committee.
One or more Royalty Certificate
Holders, holding together at least one-third (1/3rd) of the Outstanding Royalty Certificates, may address to the Company and
the Representatives Committee a demand for convocation of the General Meeting, together with the proposed agenda for such General Meeting.
If such General Meeting has not been convened within one (1) month after such demand, the Royalty Certificate Holders may commission
one of their members to petition the competent court in Paris to appoint an agent (mandataire) who will call the General Meeting.
Notice of date, hour, place and agenda of any
General Meeting will be given by way of a notice in accordance with Condition 9 (Notices) not less than five (5) calendar
days prior to the date of such general meeting on first notice, and five (5) calendar days on second notice. The Board of Directors
or the Representatives Committee may decide that any votes cast during a General Meeting may be expressed by videoconference or by any
means of telecommunications that enable the identification of Royalty Certificates Holders, and such under the conditions provided for
by applicable regulations for shareholders meetings.
Except as otherwise stated in
the Conditions, the General Meeting can only validly deliberate based on the first call if the Royalty Certificate Holders present or
represented hold at least one-third (1/3) of the total number of the Outstanding Royalty Certificates. On second notice, no quorum will
be required. Decisions of the General Meeting shall be taken with a majority of 66 2/3% of the votes (for avoidance of doubt, on the basis
of one vote per Outstanding Royalty Certificate) held by the Royalty Certificate Holders present or represented.
At
the initiative of the Company or the Representatives Committee, Collective Decisions may also be taken by Written Decision made by Royalty
Certificate Holders holding no less than 66 2/3% of the total number of
Outstanding Royalty Certificates. Any Written Decision shall, for all intents and purposes, have the same effect as a resolution adopted
at a General Meeting. Such a decision may be embodied in a single document or in several documents, signed by or on behalf of one or more
Royalty Certificate Holders. The Representatives Committee shall promptly (and in any event within five (5) Business Days after their
adoption) circulate a copy of any adopted Written Decisions to all Royalty Certificate Holders.
For the avoidance of doubt, the provisions of
Articles L. 228-46 et seq. of the French Commercial Code (Code de commerce) shall not apply to the Royalty Certificates.
All notices and other communications required
or permitted to be given or made pursuant to these Conditions shall be in writing in the English language and shall be: (i) delivered
by hand against an acknowledgement of delivery dated and signed by the recipient; (ii) sent by an overnight international courier
service of recognized international standing (all charges paid); or (iii) sent by e-mail transmission and confirmed by return of
e-mail, in each case at the address set forth below:
INVENTIVA S.A..
50, rue de Dijon
21121 Daix
France
Email: [•]
Attention: [•]
| - | if to the Royalty Certificate Holders, to the addresses set forth in Appendix A hereto; or to such
other persons or at such other addresses as hereafter may be furnished by the Company or any of the Royalty Certificate Holders by like
notice to the Company and the (other) Royalty Certificate Holders, as applicable. Any Third Party Acquirer shall promptly notify all Royalty
Certificate Holders of its address for notices under these Conditions. |
Any such notice will be deemed to have been received:
| (i) | if personally received by hand delivery or by courier service, on the date of delivery as evidenced by
an acknowledgement of receipt from the addressee; |
| (ii) | if sent by e-mail, on the date of the acknowledgment by the recipient of such e-mail transmission; |
provided that any delivery after 13.30 (local
time at the place of receipt) is deemed to be delivered on the next following Business Day.
| 10. | GOVERNING LAW and JURISDICTION |
These Conditions and the Royalty Certificates
shall be governed by, and construed in accordance with, French Law.
Any claim in connection with these Conditions
and the Royalty Certificates shall be brought before the competent court of the jurisdiction of the Paris Court of Appeal.
All claims against the Company
for payment of any amounts under the Royalty Certificates shall, unless the Royalty Certificate Holder or any of its Affiliates notifies
the Company, any successor or any of their respective Affiliates of its entitlement to the overdue amounts in accordance with applicable
law, lapse after five (5) years from the due date for payment thereof.
Appendix A
| Investors |
Number of Certificates |
Subscription Price per
Investor |
| |
|
|
| |
|
|
| |
|
|
| TOTAL |
|
|
Exhibit 99.3
 |
PRESS RELEASE |
Inventiva announces
a financing of approximately €35.7 million from new and existing investors, consisting of a €30.6 million reserved capital
increase and a €5.1 million issuance of royalty certificates
Daix
(France), Long Island City (New York, United States), August 31, 2023
– Inventiva (Euronext Paris and Nasdaq: IVA) (the “Company”), a clinical-stage biopharmaceutical company focused
on the development of oral small molecule therapies for the treatment of patients with non-alcoholic steatohepatitis (“NASH”)
and other diseases with significant unmet medical needs, today announced an approximately €35.7 million financing.
The financing consists
of two transactions: (i) a capital increase reserved to specified categories of investors (the "Capital Increase"),
for an amount of €30,587,269 million through the issuance of 9,618,638 newly-issued ordinary shares with a nominal value of €0.01
per share (the "New Shares"), at a subscription price of €3.18 per share and (ii) the issuance of royalty
certificates (the "Royalty Certificates"), for an amount of €5.1 million (together with the Capital Increase, the
"Transaction").
Frederic
Cren, Chief Executive Officer of Inventiva, said: "We are very pleased with this transaction
and especially of the support from existing and new investors: a testament of the potential of our pipeline and particularly of our lead
compound in development, lanifibranor. The proceeds of this financing will contribute to the development of lanifibranor and extend our
cash runway beyond two key milestones: the recruitment of the last patient of our pivotal phase III clinical trial in NASH expected before
the end of the year and the publication of the results of the trial combining lanifibranor with SGLT2 inhibitor empagliflozin expected
for the first quarter of 2024."
Reasons for
the issuance and use of the proceeds of the Transaction
The Company intends
to use the net proceeds from the Capital Increase, together with its available cash, according to the following:
| - | 95%
of the net proceeds for the Phase III evaluation of lanifibranor in the treatment of patients
suffering from NASH; and |
| - | 5%
of the net proceeds for its other pre-clinical and clinical programs, in particular Yap-Tead,
as well as for general corporate purposes. |
In
the Company's opinion, before the Capital Increase and the issuance of the Royalty Certificates, the Company's net working capital is
not sufficient to meet its obligations over the next twelve months. As of June 30, 20231, the
Company’s cash and cash equivalents are estimated to be €31.2 million,
short-term deposits to €0.05 million2, and long-term deposits to €9.3 million3, compared to €86.7
million, €1.0 million and €0.7 million as of December 31, 2022. This cash position enables the Group to continue
its activities until end of fourth quarter 2023.
To cover its obligations
until the end of August 2024, based on its current business plan, the Company estimates that its additional cash requirements will
amount to €80.0 million.
1
This information is subject to a limited review, still in progress at the date of the transaction,
by the Company's statutory auditors for the six months ended June 30, 2023. They are subject to the final adjustments of the limited
review and to other developments that may arise and cause the Company's preliminary information to differ from the financial information
that will be reflected in the Company's consolidated financial statements for the six months ended June 30, 2023.
2
Short-term deposits are classified as "other current assets" in the consolidated
statement of financial position under IFRS, and are considered by the Company to be liquid and readily available.
3
The two-year long-term deposit can be accessed before expiry of the term with 31 days' notice
and is considered liquid by the Company.
|
PRESS RELEASE |
Following completion
of the Capital Increase and the issuance of Royalty Certificates, the Company will have sufficient net working capital to meet its current
obligations until the beginning of the second quarter of 2024, and will have net working capital until the beginning of the third quarter
of 2024, subject the disbursement of the European Investment Bank second tranche of the €25 million loan (the "EIB Financing")
in accordance with the terms of the financing agreement entered into with the Company on 16 May 2022 (see the Company's press release
of July 4, 2022 detailing the conditions precedent to the granting of EIB Financing) and subject to other sources of financing expected
by the end of 2023. As a result, the Company will not have sufficient net working capital over the next twelve months after the Capital
Increase and the issuance of the Royalty Certificates.
To
date, and subject to the settlement and delivery of the New Shares, the remaining conditions precedent to the EIB Financing are as follows:
(i) the receipt by the Company of at least €70 million (it being specified that as of
today, the Company has already reached an amount of approximately €22.5 million, which does not include the amount raised under
the Transaction) and (ii) operating targets. The Company expects to meet these conditions by the end of 2023.
In addition to
the proceeds of the Capital Increase and the Royalty Certificates, the Company plans to extend its expected financing horizon through
:
| - | additional
financing through the issuance of equity or debt securities, public offerings or private
placements, or bank loans; |
| - | the
sale of ADSs under the At-the-Market financing program; |
| - | strategic
transactions such as business development partnerships and/or licensing agreements; |
| - | milestone
payments that may be received in connection with partnerships. |
Should the above
measures fail to materialize, the Company would have to raise new financing to ensure the continuity of its business.
Main characteristics
of the Transaction
Capital Increase
The Company's Board
of Directors, by virtue of the powers granted to it by the 6th resolution of the shareholders' general meeting of January 25,
2023 (capital increase without the exercise of preemptive subscription rights in favor of specific categories of beneficiaries) and in
accordance with Articles L. 225-138 et seq. of the French Commercial Code (Code de commerce) has decided on August 30,
2023 to proceed with the Capital Increase and has determined the final number of ordinary shares offered and the subscription price.
The specific categories
of persons defined by the 6th resolution of the shareholders' general meeting include: (i) natural or legal persons (including
companies) trusts or investment funds, or other investment vehicles, in any form, established under French or foreign law, which regularly
invest in the pharmaceutical, biotechnological or medical technology sectors; and/or (ii) companies, institutions or entities, in
any form, French or foreign, exercising a significant part of its activities in the pharmaceutical, cosmetic or chemical sectors, or
medical devices and/or technologies, or researching in such sectors; and/or (iii) French or foreign investment services companies,
or any foreign establishment having an equivalent status, able to guarantee the completion of an issue intended to be placed with the
persons referred to in (i) and/or (ii) above, and, in this context, to subscribe to the securities that are being issued.
Qatar Holding LLC,
a new investor, has agreed to subscribe to the Capital Increase for an amount of approximately €16.4 million corresponding to 5,157,233
New Shares, representing an approximate 9.97% stake in the Company.
Sofinnova Partner
and Yiheng Capital, which are existing shareholders of the Company, participated in the Transaction.
|
PRESS RELEASE |
Sofinnova Partner,
which held a 8.0% stake in the Company, prior to the Capital Increase, subscribed to the Capital Increase for an amount of approximately
€5.4 million corresponding to 1,688,327 New Shares. After the Capital Increase, Sofinnova Partner will hold 9.8% of the share capital
of the Company, on a non-diluted basis.
Yiheng Capital,
which held a 6.3% stake in the Company prior to the Capital Increase, subscribed to the Capital Increase for an amount of approximately
€3.8 million corresponding to 1,200,750 New Shares. After the Capital Increase, Yiheng Capital will hold 7.4% of the share capital
of the Company, on a non-diluted basis.
The price of the
New Shares was decided by the Board of Directors on August 30, 2023, pursuant to the delegation of authority granted by the 6th
resolution of the shareholders' general meeting, and is equal to the weighted average of the prices quoted for the last 10 trading sessions
on the regulated market of Euronext Paris prior to the setting of the price (i.e. the trading sessions of August 29, 28, 25, 24,
23, 22, 21, 18, 17 and 16, 2023, i.e. €3.34), less a discount of around 5%, i.e. €3.18. The price of the New Shares represents
discount of 0.22% compared with the volume-weighted average price of the Company's shares during the trading session preceding the setting
of the issue price in the amount of €3.19.
Settlement and
delivery of the New Shares is expected to occur on September 5, 2023. The New Shares will be fungible with the existing shares of
the Company and will be admitted to trading on the regulated market of Euronext Paris under ISIN FR0013233012.
Investors participating
in the Capital Increase have agreed to a six (6) month lock-up on the New Shares subject to a number of customary exceptions.
Royalty Certificates
The Royalty Certificates
are being issued pursuant to a decision of Board of Directors on August 30, 2023, in accordance with the provisions of Article L.
228-36-A of the French Commercial Code (Code de commerce) to some of the investors as the ones who participated in the Capital
Increase.
The Royalty Certificates
give the holders thereto the right to an annual payment of royalties (the "Royalties") equal to 2% of the future net
sales of lanifibranor (the "Product"), if any, beginning on the fiscal year following the start of the sales of the
Product following the granting of the market authorization (Autorisation de mise sur le marché) for the Product in (i) the
United States or (ii) the countries of the European Union or (iii) the United Kingdom, whichever occurs the first.
The aggregate amount
of Royalties that may be paid under the Royalty Certificates is capped at €92.1 million globally corresponding to three times of
the amount of gross proceeds from the Transaction (not including subscriptions received solely in connection with the Capital Increase).
The net proceeds from the issuance of the Royalty Certificates will be used for the Phase III evaluation of lanifibranor in the treatment
of patients suffering from NASH.
The Royalty Certificates
do not have any additional financial rights besides the right to Royalties referred to above. Specifically, the Royalty Certificates
do not grant any financial rights on any other products that may be developed by the Company beyond lanifibranor.
The subscription
price for the Royalty Certificates is €5.1 million and has been calculated based on the net present value (NPV) of expected cash
flows related to the Royalty Certificates. The NPV calculation depends strongly on assumptions made by the Company with regards to the
chances of success of its studies, the commercialization calendar of lanifibranor, the market size addressed by lanifibranor, the market
share of the product and the discount rate. In the process of setting the discount rate, the Company analyzed the expected cash flow
derived from its business plan as regards to its market capitalization.
|
PRESS RELEASE |
The Royalty Certificates
have a term of 15 years following their issuance and do not provide for an accelerated repayment in case of change of control. The Company
may at any time repurchase in full the Royalty Certificates by paying an amount equal to (i) the global cap of €92.1 million
minus any Royalties paid prior to such repurchase or (ii) a price to be agreed between the Company and the holders of the Royalty
Certificates. The Company may also redeem the Royalty Certificates from each holder, subject to offering such redemption to every holders.
Lastly, the Company has a pre-emptive right in the event of the sale of Royalty Certificates by a holder.
The Royalty Certificates
are subject to a six month lock-up period after which they will become freely transferable (in whole, but not in part) only to qualified
institutional buyers, as defined in Rule 144A under the U.S. Securities Act of 1933, as amended, or qualified investors pursuant
to Article 2(e) of Regulation (EU) 2017/1129. The Company has a preemptive right on any transfer of Royalty Certificates.
The payment of
Royalties in the event of the commercialization of the Product (2% of sales of the Product in the United States, in European Union countries
and in the United Kingdom) will result in a decrease in cash flow generated by sales of the Product, which will have an unfavourable
effect on the Company's financial position, particularly at the beginning of the commercialization phase.
Settlement and
delivery of the Royalty Certificates is expected to occur on September 5, 2023. The Royalty Certificates will not be listed on any
stock exchange and will not be assigned an ISIN.
Impact of the
Capital Increase on the share capital
Following the settlement
and delivery of the New Shares, expected to occur on September 5, 2023, the Company’s total share capital will be equal to
€517,528.07 million divided into 51,752,807 shares.
For illustration
purposes, the impact of the issuance of the New Shares on the ownership of a shareholder holding 1% of the Company’s share capital
prior to the Capital Increase and not subscribing to it), is as follows:
| | |
Percentage of capital | |
| | |
Non-diluted
basis | | |
Diluted basis(1) | |
| Before issuance of the New Shares from the Capital Increase | |
| 1 | % | |
| 0.90 | % |
| After issuance of 9,618,638 New Shares from the Capital Increase | |
| 0.81 | % | |
| 0.75 | % |
(1) Calculations
are based on the assumption that all share subscription warrants (BSA), warrants for the subscription of business creators' shares (BSPCE)
and stock options (options de souscription d'actions) will be exercised and that all free shares allocated will vest.
Impact of the
Capital Increase on shareholders' equity
For illustration
purposes, the impact of the issuance of the New Shares on the Company's equity per share (calculation made on the basis of the Company's
equity at June 30, 2023) is as follows:
| | |
Equity per share in euros | |
| | |
Non-diluted
basis | | |
Diluted basis(1) | |
| Before issuance of the New Shares from the Capital Increase | |
€ | 0.49 | | |
€ | 0.49 | |
| After issuance of 9,618,638 New Shares from the Capital Increase | |
€ | 0.97 | | |
€ | 0.93 | |
(1) Calculations
are based on the assumption that all share subscription warrants (BSA), warrants for the subscription of business creators' shares (BSPCE)
and stock options (options de souscription d'actions) will be exercised and that all free shares allocated will vest.
|
PRESS RELEASE |
Evolution of
the shareholding structure following the Transaction
The shareholding
structure of the Company prior to the issuance of the New Shares is set forth below:
| | |
Shareholding at June 30, 2023 | |
| | |
On a non-diluted basis | |
| Shareholders | |
Number of Shares | | |
% of share capital | | |
Number of voting
rights | | |
% of voting
rights | |
| Frédéric Cren | |
| 5 612 224 | | |
| 13.3 | % | |
| 11 224 448 | | |
| 20.3 | % |
| Pierre Broqua | |
| 3 882 500 | | |
| 9.2 | % | |
| 7 765 000 | | |
| 14.0 | % |
| Sub-total - Concert | |
| 9 494 724 | | |
| 22.5 | % | |
| 18 989 448 | | |
| 34.3 | % |
| BVF Partners L.P. | |
| 8 395 638 | | |
| 19.9 | % | |
| 8 395 638 | | |
| 15.2 | % |
| New Enterprise Associates (NEA) | |
| 5 572 953 | | |
| 13.2 | % | |
| 5 572 953 | | |
| 10.1 | % |
| Sofinnova | |
| 3 381 939 | | |
| 8.0 | % | |
| 4 422 500 | | |
| 8.0 | % |
| Yiheng | |
| 2 644 926 | | |
| 6.3 | % | |
| 2 644 926 | | |
| 4.8 | % |
| ISLS Consulting | |
| 111 000 | | |
| 0.3 | % | |
| 222 000 | | |
| 0.4 | % |
| Directors (non-executive) | |
| 10 000 | | |
| 0.0 | % | |
| 10 000 | | |
| 0.0 | % |
| Employees | |
| 975 127 | | |
| 2.3 | % | |
| 1 909 840 | | |
| 3.5 | % |
| Treasury shares | |
| 106 115 | | |
| 0.3 | % | |
| | | |
| | |
| Free Float | |
| 11 441 747 | | |
| 27.2 | % | |
| 13 185 957 | | |
| 23.8 | % |
| Total | |
| 42 134 169 | | |
| 100.0 | % | |
| 55 353 262 | | |
| 100.0 | % |
The issuance of
the New Shares will have the following impact on the allocation of the share capital and the voting rights of the Company :
| | |
Shareholding following the Capital Increase | |
| | |
On a non-diluted basis | |
| Shareholders | |
Number of Shares | | |
% of share capital | | |
Number of voting
rights | | |
% of voting
rights | |
| Frédéric Cren | |
| 5 612 224 | | |
| 10.84 | % | |
| 11 224 448 | | |
| 17.3 | % |
| Pierre Broqua | |
| 3 882 500 | | |
| 7.50 | % | |
| 7 765 000 | | |
| 12.0 | % |
| Sub-total - Concert | |
| 9 494 724 | | |
| 18.35 | % | |
| 18 989 448 | | |
| 29.2 | % |
| BVF Partners L.P. | |
| 8 395 638 | | |
| 16.22 | % | |
| 8 395 638 | | |
| 12.9 | % |
| New Enterprise Associates (NEA) | |
| 5 572 953 | | |
| 10.77 | % | |
| 5 572 953 | | |
| 8.6 | % |
| Sofinnova | |
| 5 070 266 | | |
| 9.80 | % | |
| 6 110 827 | | |
| 9.4 | % |
| Qatar Holding LLC | |
| 5 157 233 | | |
| 9.97 | % | |
| 5 157 233 | | |
| 7.9 | % |
| Yiheng | |
| 3 845 676 | | |
| 7.43 | % | |
| 3 845 676 | | |
| 5.9 | % |
| ISLS Consulting | |
| 111 000 | | |
| 0.21 | % | |
| 222 000 | | |
| 0.3 | % |
| David Nikodem | |
| - | | |
| 0.00 | % | |
| - | | |
| - | |
| M. J GOLDBERG | |
| - | | |
| 0.00 | % | |
| - | | |
| - | |
| Directors (non-executive) | |
| 10 000 | | |
| 0.02 | % | |
| 10 000 | | |
| 0 | |
| Employees | |
| 975 127 | | |
| 1.88 | % | |
| 1 909 840 | | |
| 2.9 | % |
| Treasury shares | |
| 106 115 | | |
| 0.21 | % | |
| | | |
| | |
| Free float | |
| 13 014 075 | | |
| 25.15 | % | |
| 14 758 285 | | |
| 22.7 | % |
| Total | |
| 51 752 807 | | |
| 100.0 | % | |
| 64 971 900 | | |
| 100.0 | % |
Stifel
is acting as Sole Agent in connection with the Transaction.
|
PRESS RELEASE |
Documentation
Application will
be made to list the New Shares to be issued pursuant to the Capital Increase on the regulated market of Euronext in Paris pursuant to
a listing prospectus subject to an approval from the French Autorité des marchés financiers (“AMF“)
and comprising the 2022 Universal Registration Document (Document d’enregistrement universel) filed with the AMF on March 30,
2023 under number D.23-0183, which incorporates the 2022 annual financial report (rapport financier annuel), as completed by an
amendment to such universal registration document, which will be filed with the AMF on August 31, 2023 as well as a Securities Note
(Note d’opération), including a summary of the prospectus. As from such filing with the AMF, copies of the 2022 Universal
Registration Document, as amended and of the listing prospectus, will be available free of charge at the Company’s head office
located at 50 rue de Dijon, 21121 Daix, France, on the Company’s website (www.inventivapharma.com) and on the website of
the AMF (www.amf-france.org).
This hyperlink
is included pursuant to the Regulation (EU) 2017/1129 of the European Parliament and of the Council of June 14, 2017 (the "Prospectus
Regulation") for the convenience of investors and the contents of this website is not incorporated by reference into this press
release.
About Inventiva
Inventiva
is a clinical-stage biopharmaceutical company focused on the research and development of oral small molecule therapies for the treatment
of patients with NASH, mucopolysaccharidoses (“MPS”) and other diseases with significant unmet medical needs. The
Company benefits from a strong expertise and experience in the field of compounds targeting nuclear receptors, transcription factors
and epigenetic modulation. Inventiva is currently advancing one clinical candidate, has a pipeline of two preclinical programs and continues
to explore other development opportunities to add to its pipeline.
Inventiva’s
lead product candidate, lanifibranor, is currently in a pivotal Phase III clinical trial, NATiV3, for the treatment of adult patients
with NASH, a common and progressive chronic liver disease for which there are currently no approved therapies.
Inventiva’s
pipeline also includes odiparcil, a drug candidate for the treatment of adult MPS VI patients. As part of Inventiva’s decision
to focus clinical efforts on the development of lanifibranor, it suspended its clinical efforts relating to odiparcil and is reviewing
available options with respect to its potential further development. Inventiva is also in the process of selecting an oncology development
candidate for its Hippo signalling pathway program.
The Company has
a scientific team of approximately 90 people with deep expertise in the fields of biology, medicinal and computational chemistry, pharmacokinetics
and pharmacology, and clinical development. It owns an extensive library of approximately 240,000 pharmacologically relevant molecules,
approximately 60% of which are proprietary, as well as a wholly-owned research and development facility.
Inventiva is a public company listed
on compartment B of the regulated market of Euronext Paris (ticker: IVA, ISIN: FR0013233012) and on the Nasdaq Global Market in
the United States (ticker: IVA).
www.inventivapharma.com
|
PRESS RELEASE |
Contacts
Inventiva
Pascaline Clerc
VP of Global External Affairs
media@inventivapharma.com
+1 240 620 9175 |
Brunswick
Group
Tristan Roquet Montegon /
Aude Lepreux /
Matthieu Benoist
Media relations
inventiva@brunswickgroup.com
+33 1 53 96 83 83 |
Westwicke,
an ICR Company
Patricia L. Bank
Investor relations
patti.bank@westwicke.com
+1 415 513-1284 |
Important Notice
This
press release contains certain forward-looking statements with respect to the Transaction, including statements regarding the anticipated
completion and timing of the Transaction, the Company's expected use of proceeds from the Transaction, the satisfaction of all conditions
related to and receipt of proceeds from the EIB Financing and the Company's cash position following the Transaction, as well as statements
regarding Inventiva’s clinical trial, clinical development plans, business and regulatory strategy, the anticipated timing of Inventiva's
Phase III clinical trial of lanifibranor, the commercialization of lanifibranor and achievement of any sales related thereto, payment
of royalties and anticipated future performance. Although the Company believes its expectations are based on reasonable assumptions,
these forward-looking statements are subject to numerous risks and uncertainties, which could cause actual results to differ materially
from those expressed in, or implied or projected by, the forward-looking statements. These risks and uncertainties include among other
things, the uncertainties inherent in research and development, including related to safety, progression of, and results from, its ongoing
and planned clinical trials, including clinical trials for lanifibranor and odiparcil, review and approvals by regulatory authorities,
such as the FDA or the EMA, of its product candidates, the success of any in-licensing or out-licensing strategies, and the Company’s
continued ability to raise capital to fund its development, including as part of the Transaction, as well as those discussed or identified
in the Company’s public filings with the French Autorité des Marchés Financiers, in particular in the 2022 Universal
Registration Document, as amended by its Amendment. Other than as required by applicable
law, the Company does not undertake any obligation to update or revise any forward-looking information or statements. This press release
and the information contained herein do not constitute an offer to sell or a solicitation of an offer to buy or subscribe to shares in
the Company in any country. This press release has been prepared in both French and English. In the event of any differences between
the two texts, the French language version shall supersede.
Disclaimers
This press release
does not constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction, and shall not constitute
an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of that jurisdiction.
The distribution
of this document may, in certain jurisdictions, be restricted by local legislations. Persons into whose possession this document comes
are required to inform themselves about and to observe any such potential local restrictions.
A French listing
prospectus comprising (i) the 2022 Universal Registration Document filed with the AMF on March 30, 2023 (document d’enregistrement
universel 2022) under number D.23-0183, as completed by an amendment to such Universal Registration Document 2022, which will be filed
with the AMF on August 31, 2023, and (ii) a Securities Note (Note d’opération), including a summary of the prospectus,
will be submitted to the approval by the AMF and will be published on the AMF’s website at www.amf-france.org. Following
the filing of the amendment to the universal registration document with the AMF, copies of Company’s 2022 Universal Registration
Document, as amended, will be available free of charge at the Company’s head office located at 50 rue de Dijon, 21121 Daix, France.
|
PRESS RELEASE |
France
The ordinary
shares have not been and will not be offered or sold to the public in France (except for public offerings defined in Article L.411-2
1° of the French Code monétaire et financier).
The ordinary
shares may only be offered or sold in France pursuant to Article L. 411-1 of the French Code monétaire et financier to qualified
investors (investisseurs qualifiés) (as such term is defined in Article 2(e) of Prospectus Regulation) acting for their
own account, and in accordance with Articles L. 411-1, L. 411-2 and D. 411-2 to D.411-4, D.744-1 and D. 754-1 and D. 764-1 of the French
Code monétaire et financier.
This announcement
is not an advertisement and not a prospectus within the meaning of the Prospectus Regulation.
European
Economic Area
In relation
to each Member State of the European Economic Area (each, a ‘‘Member State’’) no offer to the public of ordinary
shares may be made in that Member State other than:
| - | to
any legal entity which is a ‘‘qualified investor’’ as defined in
the Prospectus Regulation; |
| - | to
fewer than 150 natural or legal persons (other than a qualified investor as defined in the
Prospectus Regulation), subject to obtaining the prior consent of the representatives of
the Underwriters for any such offer; or |
| - | in
any other circumstances falling within Article 1(4) of the Prospectus Regulation,
provided that no such offer of ordinary shares and ADSs shall require us or any Underwriter
to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or supplement
a prospectus pursuant to Article 23 of the Prospectus Regulation and each person who
initially acquires any shares or to whom any offer is made will be deemed to have represented,
acknowledged and agreed to and with each of the Underwriters and the Company that it is a
‘‘qualified investor’’ as defined in the Prospectus Regulation. |
For the purposes
of this provision, the expression an ‘‘offer to the public’’ in relation to any ordinary shares in any Member
State means the communication in any form and by any means of sufficient information on the terms of the offer and any ordinary shares
to be offered so as to enable an investor to decide to purchase any ordinary shares.
United Kingdom
This document
is only being distributed to, and is only directed at, persons in the United Kingdom that (i) are “investment professionals”
falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the
“Order”), (ii) are persons falling within Article 49(2)(a) to (d) (“high net worth companies,
unincorporated associations, etc.”) of the Order, or (iii) are persons to whom an invitation or inducement to engage
in investment activity (within the meaning of Article 21 of the Financial Services and Markets Act 2000) in connection with the
issuance or sale of any securities may otherwise lawfully be communicated or caused to be communicated (all such persons together being
referred to as “Relevant Persons”). This document is directed only at Relevant Persons and must not be acted on or
relied on by persons who are not Relevant Persons. Any investment or investment activity to which this document relates is available
only to Relevant Persons and will be engaged in only with Relevant Persons.
United States
of America
This press release
shall not constitute an offer to sell or a solicitation of an offer to buy these securities in the United States of America, nor shall
there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful
prior to the registration or qualification under the securities laws of any such state or other jurisdiction.
Neither the
New Shares nor the Royalty Certificates have been registered under the Securities Act of 1933, as amended, and may not be offered or
sold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements.
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