UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM 20-F
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(Mark One)
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from____________to____________
OR
For the fiscal year ended December 31, 2020
OR
Date of event requiring this shell company report
Commission File Number 001-38281
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ERYTECH Pharma S.A.
(Exact name of registrant as specified in its charter and translation of registrant’s name into English)
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France
(Jurisdiction of incorporation or organization)
60 Avenue Rockefeller
69008 Lyon France
(Address of principal executive offices)
Gil Beyen
Chief Executive Officer
ERYTECH Pharma S.A.
60 Avenue Rockefeller
69008 Lyon France
Tel: +33 4 78 74 44 38 Fax: +33 4 78 75 56 29 E-mail: investors@erytech.com
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class
American Depositary Shares, each representing one
ordinary share, nominal value €0.10 per share
Ordinary shares, nominal value €0.10 per share*
Trading Symbol
ERYP
Name of each exchange on which registered
The Nasdaq Global Select Market
*
The Nasdaq Global Select Market*
* Not for trading, but only in connection with the registration of the American Depositary Shares.
Securities registered or to be registered pursuant to Section 12(g) of the Act. None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act. None
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Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.
Ordinary shares, nominal value €0.10 per share: 20,057,562 as of December 31, 2020
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐Yes x No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. ☐ Yes x No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit such files). xYes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and
“emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
Non-accelerated filer
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Accelerated Filer
Emerging growth company
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If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-
Oxley Act (15 U.S.C.7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐ Yes x No
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ☐
International Financial Reporting Standards
as issued by the International Accounting Standards Board x
Other ☐
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow. ☐ Item 17 ☐ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes x No
TABLE OF CONTENTS
INTRODUCTION
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
SUMMARY RISK FACTORS
PART I
Item 1.
Item 2.
Item 3.
Identity of Directors, Senior Management and Advisers
Offer Statistics and Expected Timetable
Key Information
A. Selected Financial Data
B. Capitalization and Indebtedness
C. Reasons for the Offer and Use of Proceeds
D. Risk Factors
Item 4.
Information on the Company
A. History and Development of the Company
B. Business Overview
C. Organizational Structure
D. Property, Plants and Equipment
Item 4A.
Unresolved Staff Comments
Item 5.
Operating and Financial Review and Prospects
A. Operating Results
B. Liquidity and Capital Resources
C. Research and Development, Patents and Licenses
D. Trend Information
E. Off-Balance Sheet Arrangements
F. Tabular Disclosure of Contractual Obligations
G. Safe Harbor
Item 6.
Directors, Senior Management and Employees
A. Directors and Senior Management
B. Compensation
C. Board Practices
D. Employees
E. Share Ownership
Item 7.
Major Shareholders and Related Party Transactions
A. Major Shareholders
B. Related Party Transactions
C. Interests of Experts and Counsel
Item 8.
Financial Information
A. Consolidated Statements and Other Financial Information
B. Significant Changes
Item 9.
The Offer and Listing
A. Offer and Listing Details
B. Plan of Distribution
C. Markets
D. Selling Shareholders
E. Dilution
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F. Expenses of the Issue
Item 10.
Additional Information
A. Share Capital
B. Memorandum and Articles of Association
C. Material Contracts
D. Exchange Controls
E. Taxation
F. Dividends and Paying Agents
G. Statement by Experts
H. Documents on Display
I. Subsidiary Information
Item 11.
Item 12.
Quantitative and Qualitative Disclosures About Market Risk
Description of Securities Other than Equity Securities
A. Debt Securities
B. Warrants and Rights
C. Other Securities
D. American Depositary Shares
PART II
Item 13.
Item 14.
Item 15.
Defaults, Dividend Arrearages and Delinquencies
Material Modifications to the Rights of Security Holders and Use of Proceeds
Controls and Procedures
Item 16A.
Audit Committee Financial Expert
Item 16B.
Code of Ethics
Item 16C.
Principal Accountant Fees and Services
Item 16D.
Exemptions from the Listing Standards for Audit Committees
Item 16E.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Item 16F.
Change in Registrant’s Certifying Accountant
Item 16G.
Corporate Governance
Item 16H. Mine Safety Disclosure
PART III
Item 17.
Item 18.
Item 19.
Financial Statements
Financial Statements
Exhibits
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INTRODUCTION
Unless otherwise indicated in this Annual Report, “ERYTECH,” “the company,” “our company,” “we,” “us” and “our” refer to ERYTECH Pharma S.A.
and its consolidated subsidiary.
®
“ERYTECH Pharma,” “ERYCAPS,” “GRASPA,” the ERYTECH logo and other trademarks or service marks of ERYTECH Pharma S.A. appearing in this
Annual Report on Form 20-F for the year ended December 31, 2020, or the Annual Report, are the property of ERYTECH Pharma S.A. or its subsidiary,
ERYTECH Pharma, Inc. Solely for convenience, the trademarks, service marks and trade names referred to in this Annual Report are listed without
the and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under
applicable law, their right thereto. All other trademarks, trade names and service marks appearing in this Annual Report are the property of their respective
owners. We do not intend to use or display other companies’ trademarks and trade names to imply any relationship with, or endorsement or sponsorship of
us by, any other companies.
Our audited consolidated financial statements have been prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the
International Accounting Standards Board, or IASB. Our consolidated financial statements are presented in euros, and unless otherwise specified, all
monetary amounts are in euros. All references in this Annual Report to “$,” “US$,” “U.S.$,” “U.S. dollars,” “dollars” and “USD” mean U.S. dollars and all
references to “€” and “euros” mean euros, unless otherwise noted. Throughout this Annual Report, references to ADSs mean American Depositary Shares
or ordinary shares represented by such ADSs, as the case may be.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report contains forward-looking statements within the meaning of Section 27A of the U.S. Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, that are based on our management’s beliefs and assumptions and on information
currently available to our management. All statements other than present and historical facts and conditions contained in this Annual Report, including
statements regarding our future results of operations and financial positions, business strategy, plans and our objectives for future operations, are forward-
looking statements. When used in this Annual Report, the words “anticipate,” “believe,” “can,” “could,” “estimate,” “expect,” “intend,” “is designed to,”
“may,” “might,” “plan,” “potential,” “predict,” “objective,” “should,” or the negative of these and similar expressions identify forward-looking statements.
Forward-looking statements include, but are not limited to, statements about:
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our ability to attain, maintain and expand marketing approval for eryaspase, which is known under the trade name GRASPA in Europe and
Israel;
our ability to obtain and maintain regulatory approval of eryaspase in the indications for which we plan to develop, and any related restrictions,
limitations or warnings in the label of an approved drug or therapy;
the initiation, timing, progress and results of our pre-clinical studies and clinical trials including our pivotal Phase 3 clinical trial of eryaspase for
the treatment of second-line pancreatic cancer patients, which we refer to as the TRYbeCA-1 trial, and our proof-of-concept Phase 2 clinical trial
in triple negative breast cancer in Europe, which we refer to as the TRYbeCA-2 trial;
our ability to successfully develop our ERYCAPS platform and advance our pipeline of product candidates;
the size and growth potential of the markets for our product candidates, if approved, and the rate and degree of market acceptance of our product
candidates, including reimbursement that may be received from payors;
the timing of our regulatory filings for our product candidates, along with regulatory developments in the United States, European Union and
other foreign countries;
our ability to maintain and enter into and successfully complete collaborations, licensing arrangements or in-license or acquire rights to other
products, product candidates or technologies;
our reliance on third parties to manufacture and conduct the clinical trials of our lead product candidate, which we refer to as eryaspase or
GRASPA, and our other ERYCAPS product candidates, which could limit our commercialization efforts or delay or limit their future
development or regulatory approval;
our ability to develop sales, commercialization, marketing and manufacturing capabilities and strategy, including future hiring plans;
our ability to produce adequate supplies of our product candidates for preclinical and clinical testing and to fulfill our contractual obligations to
third-party distributors;
the impact of the ongoing COVID-19 pandemic on our business, operations, strategy, goals and anticipated timelines;
the effects of increased competition as well as innovations by new and existing competitors in our industry;
our ability to obtain funding for our operations and working capital requirements;
our ability to maintain, protect and enhance our intellectual property rights and propriety technologies and to operate our business without
infringing the intellectual property rights and proprietary technology of third parties;
regulatory developments in the United States, Europe and other foreign countries;
our ability to attract and retain qualified employees and key personnel;
our estimates regarding expenses, future revenues, capital requirements and needs for additional financing;
our planned level of capital expenditures and our belief that our existing cash, cash equivalents and short- term investments will be sufficient to
fund our operating expenses and capital expenditure requirements;
the uncertainty of economic conditions in certain countries in Europe and Asia, such as those related to the COVID-19 pandemic and general
economic conditions; and
• whether we are classified as a passive foreign investment company, or PFIC, for current and future periods; and
•
other risks and uncertainties, including those listed in the section of this Annual Report titled “Item 3.D—Risk Factors.”
You should refer to the section of this Annual Report titled “Item 3.D—Risk Factors” for a discussion of important factors that may cause our actual results
to differ materially from those expressed or implied by our forward-looking statements. As a result of these
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factors, we cannot assure you that the forward-looking statements in this Annual Report will prove to be accurate. Furthermore, if our forward-looking
statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should
not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time
frame or at all. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or
otherwise, except as required by law.
You should read this Annual Report and the documents that we reference in this Annual Report and have filed as exhibits to this Annual Report completely
and with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from
what we expect. We qualify all of our forward-looking statements by these cautionary statements.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon
information available to us as of the date of this Annual Report, and while we believe such information forms a reasonable basis for such statements, such
information may be limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of,
all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these
statements.
Unless otherwise indicated, information contained in this Annual Report concerning our industry and the markets in which we operate, including our
general expectations and market position, market opportunity and market size estimates, is based on information from independent industry analysts, third-
party sources and management estimates. Management estimates are derived from publicly available information released by independent industry analysts
and third-party sources, as well as data from our internal research, and are based on assumptions made by us based on such data and our knowledge of such
industry and market, which we believe to be reasonable. In addition, while we believe the market opportunity information included in this Annual Report is
generally reliable and is based on reasonable assumptions, such data involve risks and uncertainties and are subject to change based on various factors,
including those discussed under the section of this Annual Report titled “Item 3.D—Risk Factors.”
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SUMMARY RISK FACTORS
Investing in our shares involves numerous risks, including the risks described in “Item 3.D—Risk Factors” of this Annual Report on Form 20-F. Below are
some of our principal risks, any one of which could materially adversely affect our business, financial condition, results of operations, and prospects:
• We will need to raise substantial additional funding to pursue our business objectives, which may not be available on acceptable terms, or at all,
and failure to obtain this necessary capital when needed may force us to delay, limit or terminate our product development efforts, potential
commercialization efforts or other operations.
• We have incurred significant losses since our inception and expect that we will continue to incur significant losses for the foreseeable future and
we may never achieve profitability.
•
Changes in European regulations may limit our ability to attract and obtain additional financing sources outside France.
• We have no approved products, which makes it difficult to assess our future prospects.
• We are heavily dependent on the success of our most advanced product candidate, eryaspase.
• We face substantial competition from companies with considerably more resources and experience than we have, which may result in others
discovering, developing, receiving approval for, or commercializing products before or more successfully than us.
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If our product candidates are not approved for marketing by applicable government authorities, we will be unable to commercialize them.
• Our product candidates will need to undergo clinical trials that are time-consuming and expensive, the outcomes of which are unpredictable, and
for which there is a high risk of failure. If clinical trials of our product candidates fail to satisfactorily demonstrate safety and efficacy to the EMA,
FDA and other regulators, we may incur additional costs or experience delays in completing, or ultimately be unable to complete, the development
and commercialization of these product candidates.
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The United States and European formulations of eryaspase differ, and regulatory authorities in each jurisdiction may not accept data from
alternative eryaspase formulations in other jurisdiction(s), which may result in delays and additional costs in order to conduct additional
comparability studies or the need to repeat nonclinical and clinical studies in order to obtain approval in each jurisdiction in which we intend to
commercialize eryaspase.
In the United States, our product candidates will be regulated as biological products, or biologics, which may subject them to competition sooner
than we currently anticipate.
• We rely on third parties to assist in our discovery and development activities, and the loss of any of our relationships with research institutions
could hinder our product development prospects.
• We rely on third parties to conduct our clinical trials and perform data collection and analysis, which may result in costs and delays that prevent us
from successfully commercializing our product candidates.
• Due to our limited resources and access to capital, our decisions to prioritize development of certain product candidates may adversely affect our
business prospects.
•
Even if we obtain marketing approvals for our product candidates, the terms of approvals and ongoing regulation of our products may limit how
we market our products, which could materially impair our ability to generate revenues.
• Our production capacity could prove insufficient for our needs.
• Our production costs may be higher than we currently estimate.
• Our failure to maintain certain tax benefits applicable to French biopharmaceutical companies may adversely affect our results of operations, our
cash flows and our financial condition.
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The COVID-19 coronavirus could adversely impact our business, including our clinical trials.
• Our ability to compete may decline if we do not adequately protect our proprietary rights.
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The market price of our equity securities may be volatile or may decline regardless of our operating performance.
The dual listing of our ordinary shares and our ADSs may adversely affect the liquidity and value of our ordinary shares and ADSs.
The rights of shareholders in companies subject to French corporate law differ in material respects from the rights of shareholders of corporations
incorporated in the United States.
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Item1.
Identity of Directors, Senior Management and Advisers.
Not applicable.
Item2. Offer Statistics and Expected Timetable
PART I
Not applicable.
Item 3. Key Information.
3.A.Selected Financial Data
We have elected to comply with Item 3.A of Form 20-F (Selected Financial Data), as amended February 10, 2021 and are omitting this disclosure in
reliance thereon.
3.B.Capitalization and Indebtedness
Not applicable.
3.C.Reasons for the Offer and Use of Proceeds
Not applicable.
3.D.Risk Factors
Our business faces significant risks. You should carefully consider all of the information set forth in this Annual Report and in our other filings with the
United States Securities and Exchange Commission, or the SEC, including the following risk factors which we face and which are faced by our industry.
Our business, financial condition or results of operations could be materially adversely affected by any of these risks. This report also contains forward-
looking statements that involve risks and uncertainties. Our results could materially differ from those anticipated in these forward-looking statements, as a
result of certain factors including the risks described below and elsewhere in this Annual Report and our other SEC filings. See “Special Note Regarding
Forward-Looking Statements” above.
3.D.1. Risks Related to our Financial Position and Capital Needs
We will need to raise substantial additional funding to pursue our business objectives, which may not be available on acceptable terms, or at all, and
failure to obtain this necessary capital when needed may force us to delay, limit or terminate our product development efforts, potential
commercialization efforts or other operations.
Our net cash flows used in operating activities were €47.9 million, €43.3 million and €51.7 million for the years ended December 31, 2018, 2019 and 2020,
respectively. As of December 31, 2020, our cash and cash equivalents were €44.4 million ($54.4 million) compared to €73.2 million as of December 31,
2019 which represents an annual cash and cash equivalents net use of €28.7 million. We believe that our cash and cash equivalents as of December 31,
2020 with (i) the sale of shares under the ATM program in February 2021, for a gross amount of €6.6 million ($8.0 million) and (iii) the tranche of
convertible notes issued in March 2021 for a gross amount of €3.0 million enable us to cover our cash requirements until the fourth quarter 2021.
Moreover, we believe that we will be able to fund our operations until the first quarter 2022 with the possibility of further use of the OCABSA agreement
to raise up to a maximum of €42.0 million until June 2022, subject to the regulatory limit of 20% dilution, representing approximately €30.0 million as of
the date of this Annual Report based on a share price of €6.63 (closing share price on the day before the date of this Annual Report). However, we will
need to obtain substantial additional funding to support our continuing operations beyond the first quarter 2022.
Refer to "Item 10.B. Liquidity and capital resources" and "Item 10.C Material Contracts for further information on the ATM program and on the OCABSA
agreement".
Identifying potential product candidates and conducting preclinical testing and clinical trials is a time consuming, expensive and uncertain process that
takes years to complete, and we or any current or future collaborators may never generate the necessary data or results required to obtain regulatory
approval and achieve product sales. In addition, eryaspase or any of our product candidates, if approved, may not achieve commercial success. Our
commercial revenue, if any, will be derived from the sale of drugs that we do not
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expect to be commercially available for several years, if at all. Accordingly, we will need to continue to rely on additional financing to achieve our business
objectives. While we are pursuing various financing strategies, adequate additional financing may not be available to us on acceptable terms, or at all. If we
are unable to raise capital when needed or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs or
any future commercialization efforts.
Raising additional capital may cause dilution to our shareholders, restrict our operations or require us to relinquish rights to our product candidates.
To date, we have financed our operations primarily through a combination of sale of equity securities, debt financings, including, but not limited to, the
ATM offering program in the United States, the convertible bond financing pursuant to the OCABSA Agreement, state-guaranteed loans in France, or PGE
loans, and public assistance programs in support of innovation, such as the conditional advances and subsidies from the Banque Publique d’Investissement,
or Bpifrance, and research tax credits. Until such time, if ever, as we can generate substantial revenue from the sale of our product candidates, we expect to
continue to finance our cash needs through a combination of equity offerings, debt financings, collaborations, strategic alliances and licensing
arrangements. To the extent that we raise additional capital through the sale of equity securities or convertible debt securities, your ownership interest will
be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect your rights as a shareholder. Debt financing
and preferred equity financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such
as incurring additional debt, making capital expenditures or declaring dividends.
We also implemented a convertible bond financing with European High Growth Opportunities Fund in June 2020 and an At the Market Program (ATM) in
the United States, it being specified that the total number of new shares that may be issued in connection with these two instruments is capped at 20% of
the number of shares admitted to trading on Euronext Paris, including shares admitted without a prospectus during the twelve months prior to their
issuance.
If we raise additional funds through collaborations, strategic alliances or marketing, distribution or licensing arrangements with third parties, we may be
required to relinquish valuable rights to our research programs or product candidates or grant licenses on terms that may not be favorable to us. If we are
unable to raise additional funds through equity or debt financings or other arrangements with third parties when needed, we may be required to delay, limit,
reduce or terminate our drug development or future commercialization efforts or grant rights to third parties to develop and market product candidates that
we would otherwise prefer to develop and market ourselves.
We have incurred significant losses since our inception and expect that we will continue to incur significant losses for the foreseeable future and we
may never achieve profitability.
We have not yet generated significant revenues and have incurred significant operating losses since our inception. We incurred net losses of €38.2 million,
€62.7 million and €73.3 million for the years ended December 31, 2018, 2019 and 2020, respectively; these losses have adversely impacted, and will
continue to adversely impact, our equity attributable to shareholders and net assets. These losses are principally the result of our research expenditures and
development costs for conducting preclinical studies and clinical trials, as well as general and administrative expenses associated with our operations. We
anticipate that our operating losses will continue for at least the next several years as we continue our research and development activities and until we
generate substantial revenues from any approved product candidates. As of December 31, 2020, we had a total shareholders' equity of €26.5 million.
We have devoted most of our financial resources to research and development, including our clinical and preclinical development activities. The amount of
our future net losses will depend, in part, on the pace and amount of our future expenditures and our ability to obtain funding through equity or debt
financings, strategic collaborations or tax credits until such time, if ever, as we can generate substantial product revenue. We have not yet received
marketing approval for any of our product candidates. Even if we obtain regulatory approval to market a product candidate, our future revenues will depend
upon the size of any markets in which our product candidates have received approval, and our ability to achieve sufficient market acceptance,
reimbursement from third-party payors and adequate market share for our product candidates in those markets.
We anticipate that our expenses will increase substantially as we:
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continue the preclinical and clinical development of our product candidates;
expand the scope of our current clinical trials for our product candidates;
expand our clinical and commercial manufacturing capabilities for our product candidates;
seek regulatory and marketing approvals for our product candidates that successfully complete clinical trials;
establish a sales, marketing and distribution infrastructure to commercialize any products for which we may obtain marketing approval and for
which we have not entered into a third-party collaboration;
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seek to identify and validate additional product candidates;
acquire or in-license other product candidates and technologies;
• make milestone, royalty or other payments under in-license or collaboration agreements;
• maintain, protect and expand our intellectual property portfolio;
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attract new and retain existing skilled personnel; and
create additional infrastructure or improve existing ones to support our operations.
Our operating results may fluctuate significantly from year to year, such that a period-to-period comparison of our results of operations may not be a good
indication of our future performance. In any particular period or periods, our operating results could be below the expectations of securities analysts or
investors, which could cause the price of the ordinary shares and ADSs to decline.
We may be forced to repay conditional advances prematurely if we fail to comply with our contractual obligations under certain innovation grant
agreements.
Through December 31, 2020, we have received €2.4 million in non-refundable grants and €5.0 million in conditional advances from Bpifrance. To date,
TEDAC is the only ongoing program funded by non-refundable grants and conditional advances. If we fail to comply with our contractual obligations
under the applicable innovation grant agreements, including if we lose our exclusive right to commercially develop our product candidates, we could be
forced to repay the conditional advances (amounting to €4.2 million at the date of this Annual Report) ahead of schedule. Such premature repayment could
adversely affect our ability to finance our research and development projects, in which case we would need to locate alternative sources of capital, which
may not be available on commercially reasonable terms or at all.
We have entered into a note and warrant transaction consisting of tranches of convertible bonds with warrants attached (OCABSA) and may encounter
adverse effects as a result thereof.
On June 24, 2020, we entered into the OCABSA Agreement, pursuant to which we may raise up to €60 million in the aggregate from the exercise of
convertible notes, subject to the regulatory limit of 20% dilution, unless further authorized. The share warrants attached to the notes represent 10% of the
nominal amount of the issued notes and have an exercise price of €8.91 per share. This exercise price represents a 20% premium over the lowest volume-
weighted average daily price of the share over the reference period preceding the issue of the first tranche.
As of December 31, 2020, we issued five tranches of €3.0 million (on July 6, 2020, August 24, 2020, November 17, 2020, December 7, 2020 and
December 22, 2020), for a total amount of €15.0 million, all of which convertible notes have been converted into ordinary shares and no warrants have
been exercised. Since December 31, 2020, we issued one further tranche of €3.0 million on March 2, 2021 and we could decide to issue additional tranches
up to a maximum of €42.0 million until June 2022, subject to the regulatory limit of 20% dilution. There is no guarantee that we will be able to raise this
maximum amount, and our ability to issue additional tranches depends on a number of factors and conditions beyond our control.
By using this financing program, we may encounter the following adverse effects:
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the rapid and frequent sale of the new shares resulting from the conversion of the convertible notes and the exercise of the share warrants by the
investor may adversely impact our share price;
the total amount of issuances of convertible notes and share warrants may depend on certain regulatory approvals making the financing amount
uncertain;
as our share price has an impact on the number of shares issued upon the conversion of the convertible notes and the exercise of the share
warrants, the number of shares issued upon the conversion of the convertible notes and the exercise of the share warrants is uncertain and may
significantly fluctuate during the lifetime of the financing program; and
conversion into ordinary shares of all or part of the convertible notes and the exercise of all or part of the share warrants could have a potentially
significant dilutive effect for our shareholders.
As an example, a shareholder holding 1% of our share capital as of the date of this Annual Report would hold 0.73% of the share capital in the event of the
conversion of outstanding notes, the exercise of outstanding warrants and the use of all the amounts remaining in the OCABSA Agreement (€42.0 million)
and a share price of €6.63 (closing share price on the day before the date of this Annual Report), subject to obtaining additional authorizations relating
thereto if applicable.
7
3.D.2. Risks Related to Development of our Product Candidates
We have no approved products, which makes it difficult to assess our future prospects.
A key element of our strategy is to use and expand our proprietary ERYCAPS platform to build a pipeline of innovative product candidates and to progress
these drug candidates through clinical development for the treatment of severe forms of cancer and orphan diseases. The discovery of therapeutic drugs
based on encapsulating molecules inside red blood cells is an emerging field, and the scientific discoveries that form the basis for our efforts to discover
and develop drug candidates are relatively new. The scientific evidence to support the feasibility of developing drug candidates based on these discoveries
is both preliminary and limited. Although our research and development efforts to date have resulted in a pipeline of product candidates, we have not yet
obtained approval for any products, we have not yet generated any revenues from the sale of approved products and we may not be able to develop product
candidates that are considered to be safe and effective. Our operations to date have been limited to developing our ERYCAPS platform technology and
undertaking preclinical studies and clinical trials of our product candidates, including our lead product candidate, eryaspase, also known as GRASPA, the
approved trade name for eryaspase in Europe. However, we have not yet demonstrated an ability to overcome many of the risks and uncertainties
frequently encountered by companies in new and rapidly evolving fields, particularly in the pharmaceutical industry. Consequently, the ability to predict
our future operating results or business prospects is more limited than if we had a longer operating history or approved products on the market.
We are heavily dependent on the success of our most advanced product candidate, eryaspase.
Our business and future success depends on our ability to obtain regulatory approval for and, together with third-party collaborators, to successfully
commercialize our lead product candidate, eryaspase, which is under clinical development for oncology indications. Eryaspase is our only product
candidate in late-stage clinical development, and our business currently depends heavily on its successful development. Eryaspase will require additional
clinical and non-clinical development, regulatory review and approval in multiple jurisdictions, substantial investment, access to sufficient commercial
manufacturing capacity and significant marketing efforts before we can generate any revenue from product sales. We cannot be certain eryaspase will
receive regulatory approval or be successfully commercialized even if we receive regulatory approval. In addition, because eryaspase is our most advanced
product candidate, and because our other product candidates are based on the same ERYCAPS platform technology, if eryaspase encounters safety or
efficacy problems, developmental delays or regulatory issues or other problems, our development plans and business would be significantly harmed.
We may not be successful in our efforts to use and expand our ERYCAPS platform to develop marketable products.
We believe that our ERYCAPS platform has broad potential application and can be used to encapsulate a wide range of therapeutic agents within red blood
cells for which long-circulating therapeutic activity and rapid and specific targeting is desired. However, we are at an early stage of development and our
platform has not yet, and may never, lead to approved or marketable products. Even if we are successful in continuing to build our product pipeline, the
potential product candidates that we identify may not be suitable for clinical development, including for reasons related to their harmful side effects, limited
efficacy or other characteristics that indicate that they are unlikely to be products that will receive marketing approval and achieve market acceptance. Use
of red blood cells as the basis for our ERYCAPS platform may result in similar risks that affect the ability of our products to receive marketing approval
and achieve market acceptance. If we do not successfully develop and commercialize product candidates based upon our technological approach, we may
not be able to obtain product or collaboration revenues in future periods, which would harm our business and our prospects.
We face substantial competition from companies with considerably more resources and experience than we have, which may result in others
discovering, developing, receiving approval for, or commercializing products before or more successfully than us.
The biopharmaceuticals industry is highly competitive. Numerous biopharmaceutical laboratories, biotechnology companies, institutions, universities and
other research entities are actively involved in the discovery, research, development and marketing of therapeutics to treat severe forms of cancer and
orphan diseases, making it a highly competitive field. We have competitors in a number of jurisdictions, many of which have substantially greater name
recognition, commercial infrastructures and financial, technical and personnel resources than we have.
L-asparaginase is currently available in four forms, and the current market primarily includes several products marketed by large pharmaceutical
companies, including Jazz Pharmaceuticals PLC and Servier. To our knowledge, there is no potential treatment being developed using non encapsulated L-
asparaginase for the treatment of pancreatic cancer or other solid tumor indications, but this may change and current marketed asparaginase products may
attempt to broaden their indications. Our products and product candidates may also have to compete with other products and product candidates in
development by established pharmaceutical companies and biotechnology companies.
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Established competitors may invest heavily to quickly discover and develop novel compounds that could make our product candidates obsolete or
uneconomical. Any new product that competes with an approved product may need to demonstrate compelling advantages in efficacy, convenience,
tolerability and safety to be commercially successful. Any of our product candidates that are approved in the future will also face other competitive factors,
including generic competition, which could force us to lower prices or could result in reduced sales. In addition, new products developed by others could
emerge as competitors to our product candidates. If we are not able to compete effectively against our current and future competitors, our business will not
grow and our financial condition and operations will suffer.
Intravenous administration of our product candidates could present risks that exist in relation to blood transfusions.
Our product candidates must be intravenously injected and are therefore subject to risks associated with blood transfusions and the blood type compatibility
of the donor. We currently acquire red blood cells from blood donations prepared and tested by blood banks, notably the Établissement Français du Sang,
the New York Blood Center, the American Red Cross and the German Red Cross Blood Donor Service. However, using donor-derived red blood cells
presents risks associated with the potential transmission of infectious agents, such as viruses, bacteria, prions and parasites, as well as risks associated with
the development of allergies or other complications, such as allo-immunization, post-transfusion graft-versus-host disease, anaphylactic shock or death.
Risks associated with the encapsulation of molecules inside red blood cells may vary and will depend on their toxicity. Although the blood banks that
supply our red blood cells follow a strict preparation process, approved by health authorities, to detect and reduce possible risks for contamination by
infectious agents, we cannot guarantee that our product candidates will not be contaminated, which could be detrimental to our product development and
commercialization efforts.
3.D.3. Risks Related to the Discovery and Development of and Obtaining Regulatory Approval for our Product Candidates
If our product candidates are not approved for marketing by applicable government authorities, we will be unable to commercialize them.
The European Commission (following review by the European Medicines Agency, or EMA) in Europe, the U.S. Food and Drug Administration, or FDA, in
the United States and comparable regulatory authorities in other jurisdictions must approve new drug or biologic candidates before they can be
commercialized, marketed, promoted or sold in those territories. We must provide these regulatory authorities with data from preclinical studies and
clinical trials that demonstrate that our product candidates are safe and effective for a defined indication before they can be approved for commercial
distribution. Clinical testing is expensive, difficult to design and implement, can take many years to complete and is inherently uncertain as to outcome. We
must provide data to ensure the identity, strength, quality and purity of the drug substance and drug product. Also, we must assure the regulatory authorities
that the characteristics and performance of the clinical batches will be replicated consistently in the commercial batches. We have focused our development
and planned commercialization efforts on Europe and the United States.
The processes by which regulatory approvals are obtained from the EMA and FDA to market and sell a new product are complex, require a number of
years and involve the expenditure of substantial resources. We cannot assure you that eryaspase or any of our future product candidates will receive EMA
or FDA approval. For example, in September 2015, we submitted a Marketing Authorization Application, or MAA, to the EMA for the approval of
GRASPA as a treatment for acute lymphoblastic leukemia, or ALL. However, in November 2016, we announced our withdrawal of the MAA for GRASPA.
In October 2017, we resubmitted to the EMA our MAA for GRASPA for relapsed or refractory ALL and subsequently announced our withdrawal of the
MAA for GRASPA in June 2018. Even if we obtain marketing approval of any of our product candidates in a major pharmaceutical market such as the
United States or Europe, we may never obtain approval or commercialize our products in other major markets, due to varying approval procedures or
otherwise, which would limit our ability to realize their full market potential.
Our product candidates will need to undergo clinical trials that are time-consuming and expensive, the outcomes of which are unpredictable, and for
which there is a high risk of failure. If clinical trials of our product candidates fail to satisfactorily demonstrate safety and efficacy to the EMA, FDA
and other regulators, we may incur additional costs or experience delays in completing, or ultimately be unable to complete, the development and
commercialization of these product candidates.
Preclinical testing and clinical trials are long, expensive and unpredictable processes that can be subject to extensive delays. We cannot guarantee that any
clinical trials will be conducted as planned or completed on schedule, if at all. It may take several years to complete the preclinical testing and clinical
development necessary to commercialize a product candidate, and delays or failure can occur at any stage. Interim results of clinical trials do not
necessarily predict final results, and success in preclinical testing and early clinical trials does not ensure that later clinical trials will be successful. A
number of companies in the pharmaceutical, biopharmaceutical and biotechnology industries have suffered significant setbacks in advanced clinical trials
even after promising results in earlier trials, and we cannot be certain that we will not face similar setbacks. The design of a clinical trial can determine
whether its results will support approval of a product, and flaws in the design of a clinical trial may not become apparent until the clinical trial is well
advanced. An unfavorable outcome in one or more trials would be a major setback for our product candidates and
9
for us. Due to our limited financial resources, an unfavorable outcome in one or more trials may require us to delay, reduce the scope of, or eliminate one or
more product development programs, which could have a material adverse effect on our business and financial condition and on the value of our securities.
In connection with clinical testing and trials, we face a number of risks, including risks that:
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a product candidate is ineffective, inferior to existing approved medicines, unacceptably toxic, or has unacceptable side effects;
patients may die or suffer other adverse effects for reasons that may or may not be related to the product candidate being tested;
extension studies on long-term tolerance could invalidate the use of our product;
the results may not confirm the positive results of earlier testing or trials; and
the results may not meet the level of statistical significance required by the EMA, FDA or other regulatory agencies to establish the safety and
efficacy of our product candidates.
The results of preclinical studies do not necessarily predict clinical success, and larger and later-stage clinical trials may fail to show the desired safety and
efficacy results despite having progressed through preclinical studies and initial clinical trials. Furthermore, there can be no assurance that any of our
clinical trials will ultimately be successful or support further clinical development of any of our product candidates. Our clinical trials of eryaspase
conducted to date have generated favorable safety and efficacy data, other than our Phase 2b clinical trial in acute myeloid leukemia for which we did not
achieve the primary endpoint. However, we may have different results in other indications. Differences in enrollment criteria and different combinations
with other treatment modalities may also lead to different outcomes in our future clinical trials. As a result, we may not observe a similarly favorable safety
or efficacy profile as in our prior clinical trials. There is a high failure rate for drugs proceeding through clinical trials. Many companies in the
pharmaceutical, biopharmaceutical and biotechnology industries have suffered significant setbacks in late-stage clinical trials after achieving positive
results in early-stage development and we cannot be certain that we will not face similar setbacks. These setbacks have been caused by, among other things,
preclinical findings made while clinical trials were underway, or safety or efficacy observations made in preclinical studies and clinical trials, including
previously unreported adverse events. Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses and many
companies that believed their product candidates performed satisfactorily in preclinical studies and clinical trials nonetheless failed to obtain FDA or EMA
approval. In addition, we cannot assure you that in the course of potential widespread use in the future, we will not suffer setbacks in maintaining
production quality or stability.
If we do not successfully complete preclinical and clinical development, we will be unable to market and sell our product candidates and generate revenues.
Even if we do successfully complete clinical trials, those results are not necessarily predictive of results of additional trials that may be needed before
marketing applications may be submitted to the EMA or FDA, as applicable. For instance, despite having observed favorable results and safety profile in
multiple clinical trials of eryaspase in patients with ALL, based on feedback from the regulatory agencies requiring additional investment, increasingly
competitive landscape and the limited market opportunity for eryaspase with ALL, we decided in June 2018 to cease further clinical developments efforts
in ALL. In addition, our research and development costs amounted to €33.5 million, €52.2 million and €57.6 million during the years ended December 31,
2018, 2019 and 2020, respectively. Although there are a large number of drugs and biologics in development in Europe, the United States and other
countries, only a small percentage result in the submission of a marketing application, even fewer are approved for commercialization, and only a small
number achieve widespread physician and consumer acceptance following regulatory approval. If our clinical trials are substantially delayed or fail to
prove the safety and effectiveness of our product candidates in development, we may not receive regulatory approval of any of these product candidates
and our business and financial condition will be materially harmed.
Delays, suspensions and terminations in our clinical trials could result in increased costs to us and delay or prevent our ability to generate revenues.
Human clinical trials are very expensive, time-consuming, and difficult to design, implement and complete. The completion of trials for eryaspase or our
other product candidates may be delayed for a variety of reasons, including delays in:
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demonstrating sufficient safety and efficacy to obtain regulatory approval to commence a clinical trial;
reaching agreement on acceptable terms with prospective contract research organizations, or CROs, and clinical trial sites;
validating test methods to support quality testing of the drug substance and drug product;
obtaining sufficient quantities of the drug substance or other materials necessary to conduct clinical trials;
• manufacturing sufficient quantities of a product candidate;
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obtaining approval of applications from regulatory authorities for the commencement of a clinical trial;
obtaining institutional review board, or IRB, approval to conduct a clinical trial at a prospective clinical trial site;
determining dosing and clinical trial design; and
patient enrollment, which is a function of many factors, including the size of the patient population, the nature of the protocol, the proximity of
patients to clinical trial sites, the availability of effective treatments for the relevant disease and the eligibility criteria for the clinical trial.
For example, in our Phase 1 clinical trial in the United States in adult ALL patients, patient enrollment took longer than expected.
The commencement and completion of clinical trials for our product candidates may be delayed, suspended or terminated due to a number of factors,
including:
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lack of effectiveness of product candidates during clinical trials;
adverse events, safety issues or side effects relating to the product candidates or their formulation;
inability to raise additional capital in sufficient amounts to continue clinical trials or development programs, which are very expensive;
the need to sequence clinical trials as opposed to conducting them concomitantly in order to conserve resources;
our inability to maintain or enter into collaborations relating to the development and commercialization of our product candidates;
our failure to conduct clinical trials in accordance with regulatory requirements;
our inability to manufacture or obtain from third parties materials sufficient for use in preclinical studies and clinical trials;
governmental or regulatory delays and changes in regulatory requirements, policy and guidelines, including mandated changes in the scope or
design of clinical trials or requests for supplemental information with respect to clinical trial results;
delays in patient enrollment, variability in the number and types of patients available for clinical trials, and lower-than anticipated retention rates
for patients in clinical trials;
difficulty in patient monitoring and data collection due to failure of patients to maintain contact after treatment; and
varying interpretations of our data, and regulatory commitments and requirements by the EMA, FDA and similar regulatory agencies.
For example, our Investigational New Drug application, or IND, submitted to the FDA for eryaspase was on clinical hold from its original submission in
July 2011 until March 21, 2013. Although we received acceptance from the FDA of our IND to extend our pivotal Phase 3 clinical trial of eryaspase for the
treatment of second-line pancreatic cancer patients to the United States in May 2019, we cannot assure you that any future IND will not be subject to
clinical holds.
Many of these factors may also ultimately lead to denial of our marketing application for eryaspase or our other product candidates. If we experience delay,
suspensions or terminations in a clinical trial, the commercial prospects for the related product candidate will be harmed, and our ability to generate product
revenues will be delayed or such revenues could be reduced or fail to materialize.
We may find it difficult to enroll patients in our clinical trials, which could delay or prevent us from proceeding with clinical trials of our product
candidates.
Identifying and qualifying patients to participate in clinical trials of our product candidates is critical to our success. The timing of our clinical trials
depends on our ability to recruit patients to participate, as well as completion of required follow-up periods. If patients are unwilling to enroll in our clinical
trials because of competitive clinical trials for similar patient populations or for other reasons, the timeline for recruiting patients, conducting studies and
obtaining regulatory approval of our product candidates may be delayed. These delays could result in increased costs, delays in advancing our product
candidates, delays in testing the effectiveness of our product candidates or termination of clinical trials altogether.
Some of our current product candidates are being developed to treat severe forms of cancer and other orphan diseases, which are generally defined as
having a patient population of fewer than 200,000 individuals in the United States. For example, 150,000 new cases of pancreatic cancer are diagnosed
each year in the United States and Europe. We may not be able to initiate or continue clinical trials if we cannot enroll a sufficient number of eligible
patients to participate in the clinical trials required by the FDA, EMA or other regulatory authorities. Also, we may not be able to identify, recruit and enroll
a sufficient number of patients, or those with required or
11
desired characteristics, to complete our clinical trials in a timely manner. Patient enrollment can be affected by many factors, including:
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size of the patient population and process for identifying patients;
eligibility and exclusion criteria for our clinical trials;
perceived risks and benefits of our product candidates;
severity of the disease under investigation;
proximity and availability of clinical trial sites for prospective patients;
ability to obtain and maintain patient consent;
patient drop-outs prior to completion of clinical trials;
patient referral practices of physicians;
ability to monitor patients adequately during and after treatment ; and
COVID-19 pandemic; in that respect, we experienced a 3 to 4 months delay in patient enrollment in the TRYbeCA1 trial, which has been
completed to date.
Our ability to successfully initiate, enroll and complete clinical trials in any foreign country is subject to numerous risks unique to conducting business in
foreign countries, including:
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difficulty in establishing or managing relationships with CROs and physicians;
different standards for the conduct of clinical trials;
inability to locate qualified local consultants, physicians and partners; and
the potential burden of complying with a variety of foreign laws, medical standards and regulatory requirements, including the regulation of
pharmaceutical and biotechnology products and treatment.
If we have difficulty enrolling a sufficient number of patients or finding additional clinical trial sites to conduct our clinical trials as planned, we may need
to delay, limit or terminate ongoing or planned clinical trials, any of which could have an adverse effect on our business, financial condition, results of
operations and prospects.
Changes in regulatory requirements, guidance from regulatory authorities or unanticipated events during the clinical trials of our product candidates
could necessitate changes to clinical trial protocols or additional clinical trial requirements, which would result in increased costs to us and could delay
our development timeline.
Changes in regulatory requirements, FDA guidance or guidance from the EMA or other European regulatory authorities, or unanticipated events during our
clinical trials, may force us to amend clinical trial protocols. The regulatory authorities could also impose additional clinical trial requirements.
Amendments to our clinical trial protocols would require resubmission to the FDA, EMA, national clinical trial regulators and IRBs for review and
approval, which may adversely impact the cost, timing or successful completion of a clinical trial. If we experience delays completing, or if we terminate,
any of our clinical trials, or if we are required to conduct additional clinical trials, the commercial prospects for our product candidates may be harmed and
our ability to generate product revenue will be delayed.
The United States and European formulations of eryaspase differ, and regulatory authorities in each jurisdiction may not accept data from alternative
eryaspase formulations in other jurisdiction(s), which may result in delays and additional costs in order to conduct additional comparability studies or
the need to repeat nonclinical and clinical studies in order to obtain approval in each jurisdiction in which we intend to commercialize eryaspase.
The formulations of eryaspase used to conduct clinical trials in the United States and Europe have differed in composition, manufacturing process and
release specifications. After seeking feedback from regulatory agencies, we have conducted studies to harmonize the formulation of eryaspase, including in
vitro comparability studies and stability studies. Even with this additional data, regulatory authorities may not find it acceptable to support the approval of
eryaspase. If regulatory authorities require us to generate
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additional nonclinical or clinical data, the generation of additional data could result in submission delays and additional costs in order to obtain marketing
approval of eryaspase.
In the United States, our product candidates will be regulated as biological products, or biologics, which may subject them to competition sooner than
we currently anticipate.
The Biologics Price Competition and Innovation Act of 2009, or BPCIA, was enacted as part of the 2010 enactments of the Patient Protection and
Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, or collectively, the ACA, to establish an abbreviated
licensure pathway for biological products shown to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product.
“Biosimilarity” means that the biological product is highly similar to the reference product notwithstanding minor differences in clinically inactive
components and there are no clinically meaningful differences between the biological product and the reference product in terms of safety, purity, and
potency of the product. To meet the higher standard of “interchangeability,” an applicant must provide sufficient information to show biosimilarity and
demonstrate that the biological product can be expected to produce the same clinical result as the reference product in any given patient and, if the
biological product is administrated more than once to an individual, the risk in terms of safety or diminished efficacy of alternating or switching between
the use of the biological product and the reference product is not greater than the risk of using the reference product without such alternation or switch.
Under the BPCIA, an application for a biosimilar or interchangeable product cannot be approved by the FDA until 12 years after the reference product was
first licensed, and the FDA will not even accept an application for review until four years after the date of first licensure. The law is evolving, complex and
is still being interpreted and implemented by the FDA. As a result, its ultimate impact, implementation, and meaning are subject to uncertainty. While it is
uncertain when such processes intended to implement BPCIA may be fully adopted by the FDA, any such processes could have a material adverse effect
on the future commercial prospects for our biological products.
We believe that any of our product candidates approved as a biological product under a Biologics License Application, or BLA, should qualify for the 12-
year period of exclusivity. However, there is a risk that this exclusivity could be shortened due to congressional action or otherwise, potentially creating the
opportunity for biosimilar or interchangeable competition sooner than we currently anticipate. Moreover, the process by which an interchangeable product,
once approved, will be substituted for any one of our reference products in a way that is similar to traditional generic substitution for non-biological
products, such as drugs, is not yet clear, and will depend on a number of marketplace and regulatory factors that are still developing and subject to
interpretation.
Even though we have obtained orphan drug designation from the FDA and EMA for eryaspase for the treatment of pancreatic cancer, ALL and AML,
we may not be able to obtain orphan drug marketing exclusivity for any of our other product candidates for other indications.
Regulatory authorities in some jurisdictions, including the United States and the European Union, may designate drugs for relatively small patient
populations as orphan drugs. Under the Orphan Drug Act, the FDA may designate a drug as an orphan drug if it is intended to treat a rare disease or
condition, which is generally defined as a patient population of fewer than 200,000 individuals annually in the United States. Similarly, in Europe, a
medicinal product may receive orphan designation under Article 3 of Regulation (EC) 141/2000, as amended. This applies to products that are intended for
a life-threatening or chronically debilitating condition and either the condition affects no more than five in 10,000 persons in the European Union when the
application is made or the product, without the benefits derived from orphan status, would unlikely generate sufficient return in the European Union to
justify the necessary investment. Moreover, in order to obtain orphan designation in the European Union, it is necessary to demonstrate that there exists no
satisfactory method of diagnosis, prevention or treatment of the condition authorized for marketing in the European Union, or if such a method exists, that
the product will be of significant benefit to those affected by the condition. The EMA will reassess whether GRASPA continues to meet the criteria for
orphan drug designation in the European Union at the time it reviews a marketing authorization application for the product. If the EMA considers that
GRASPA no longer meets these criteria, for example, because it does not offer a significant benefit over existing therapies, it may revoke GRASPA’s
orphan drug designation prior to approval.
The EMA has granted orphan drug designation for GRASPA for the treatment of pancreatic cancer, ALL and AML, and the FDA has granted orphan drug
designation for eryaspase for the same indications. We may seek orphan drug designation for our other product candidates, and with respect to other
indications. Generally, if a drug with an orphan drug designation subsequently receives the first marketing approval for the indication for which it has such
designation, the drug is entitled to a period of marketing exclusivity, which precludes the FDA from approving another marketing application for the same
drug for that time period or the EMA or any other medicines regulator in the European Union from approving a similar medicinal product. The applicable
period is seven years in the United States and usually 10 years in the European Union. The European Union exclusivity period can be reduced to six years
if a drug no longer meets the criteria for orphan drug designation or if the drug is sufficiently profitable so that market exclusivity is no longer justified.
This exclusivity period may increase to 12 years if, among other things, the MAA includes the results of studies from an agreed pediatric investigation
plan. Orphan drug exclusivity may be lost if the FDA or EMA determines that the request for
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designation was materially defective or if the manufacturer is unable to assure sufficient quantity of the drug to meet the needs of patients with the rare
disease or condition.
Even if we obtain orphan drug exclusivity for a product candidate, that exclusivity may not effectively protect the candidate from competition because
different drugs can be approved for the same condition. Even after an orphan drug is approved, the applicable regulatory authority can subsequently
approve another drug for the same condition if it concludes that the later drug is clinically superior in that it is shown to be safer, more effective or makes a
major contribution to patient care. Similarly, if our competitors are able to obtain orphan product exclusivity for their products in the same indications for
which we are developing our product candidates, we may not be able to have our products approved by the applicable regulatory authority for a significant
period of time.
In the European Union, GRASPA contains a known active substance, which would undermine its data and marketing exclusivities; however, this will
not affect GRASPA’s orphan product exclusivity.
In the European Union, data exclusivity refers to the period of time during which another company cannot refer to our data held in the authority’s files in
support of its marketing authorization. The subsequent market exclusivity refers to the period of time during which another company may use our data in
support of its marketing authorization for a generic, hybrid or biosimilar product, but the product in question may not be placed on the market. For products
containing new active substances, this effectively prevents certain products, such as generics and similar biological products, from being placed on the
market during the combined data and marketing exclusivity period. This combined period usually lasts for 10 years from the date of approval of the product
containing the new active substance.
Because the active ingredient in GRASPA is not a new active substance, the 10-year period of protection against generics and similar biological products is
undermined. Competitors developing such products could receive European Union marketing authorizations and place their products on the European
Union market within 10 years of GRASPA’s own marketing authorization, if obtained.
However, if we still have orphan drug designation for GRASPA in the treatments of pancreatic cancer, ALL and AML in Europe at the time we receive
marketing approval from the EMA in these indications, we would still benefit from the independent period of market exclusivity afforded to orphan
products. In the European Union, this is usually a period of 10 years from the date of marketing approval. The exclusivity period can be reduced to six
years if a drug no longer meets the criteria for orphan drug designation or if the drug is sufficiently profitable so that market exclusivity is no longer
justified. The exclusivity period may increase to 12 years if, among other things, the MAA includes the results of studies from an agreed pediatric
investigation plan. During the orphan exclusivity period, regulators should not accept or approve applications for the approval of a similar medicine for the
same therapeutic indication, unless the second product is demonstrably safer, more effective or otherwise clinically superior. Regulators may approve
different products for the same condition as GRASPA.
We rely on third parties to assist in our discovery and development activities, and the loss of any of our relationships with research institutions could
hinder our product development prospects.
We currently have and expect to continue to depend on collaborations with public and private research institutions to conduct some of our early-stage drug
discovery activities. If we are unable to enter into research collaborations with these institutions, or if any one of these institutions fails to work efficiently
with us, the research, development or marketing of our product candidates planned as part of the research collaboration could be delayed or canceled. In the
event a research agreement is terminated or we become no longer in a position to renew the arrangement under acceptable conditions, our drug discovery
and development activities may also be delayed.
We rely on third parties to conduct our clinical trials and perform data collection and analysis, which may result in costs and delays that prevent us
from successfully commercializing our product candidates.
We rely, and will rely in the future, on medical institutions, clinical investigators, CROs, contract laboratories and collaborators to perform data collection
and analysis and to carry out our clinical trials.
For example, in June 2019, we entered in an exclusive worldwide license agreement with SQZ Biotechnologies pursuant to which we and SQZ
Biotechnologies will focus on the development of novel red blood cell-based therapeutics for the treatment of immuno-oncology and tolerance induction.
Our other main subcontractors and key partners include Etablissement Français du Sang, the American Red Cross, the New York Blood Center, Medac
GmbH and the German Red Cross Blood Donor Service.
Our development activities or clinical trials conducted in reliance on third parties may be delayed, suspended, or terminated if:
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the third parties do not devote a sufficient amount of time or effort to our activities or otherwise fail to successfully carry out their contractual
duties or to meet regulatory obligations or expected deadlines;
• we replace a third party; or
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the quality or accuracy of the data obtained by third parties is compromised due to their failure to adhere to clinical protocols, regulatory
requirements, or for other reasons.
We generally would not have the ability to control the performance of third parties in their conduct of development activities. In the event of a default,
bankruptcy or shutdown of, or a dispute with, a third party, we may be unable to enter into a new agreement with another third party on commercially
acceptable terms. Further, third-party performance failures may increase our development costs, delay our ability to obtain regulatory approval, and delay
or prevent the commercialization of our product candidates. In addition, our third-party agreements usually contain a clause limiting such third party’s
liability, such that we may not be able to obtain full compensation for any losses we may incur in connection with the third party’s performance failures.
While we believe that there are numerous alternative sources to provide these services, in the event that we seek such alternative sources, we may not be
able to enter into replacement arrangements without incurring delays or additional costs.
We may enter into collaboration agreements with third parties for the development and commercialization of our product candidates, which may affect
our ability to generate revenues.
We have limited capabilities for product development and may seek to enter into collaborations with third parties for the development and potential
commercialization of our product candidates. For example, in June 2019, we entered into a collaboration with SQZ Biotechnologies to focus on the
development of novel red blood-cell based therapeutics for the treatment of immuno-oncology and tolerance induction. Should we seek to collaborate with
any additional third parties with respect to a prospective development program, we may not be able to locate a suitable collaborator and may not be able to
enter into an agreement on commercially reasonable terms or at all. Even if we succeed in securing collaborators for the development and
commercialization of our product candidates, we will have limited control over the amount and timing that our collaborators may dedicate to the
development or commercialization of our product candidates. These collaborations pose a number of risks, including the following:
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collaborators may not have sufficient resources or decide not to devote the necessary resources due to internal constraints such as budget
limitations, lack of human resources, or a change in strategic focus;
collaborators may believe our intellectual property is not valid or is unenforceable or the product candidate infringes on the intellectual property
rights of others;
collaborators may dispute their responsibility to conduct development and commercialization activities pursuant to the applicable collaboration,
including the payment of related costs or the division of any revenues;
collaborators may decide to pursue a competitive product developed outside of the collaboration arrangement;
collaborators may not be able to obtain, or believe they cannot obtain, the necessary regulatory approvals; or
collaborators may delay the development or commercialization of our product candidates in favor of developing or commercializing another
party’s product candidate.
Thus, collaboration agreements may not lead to development or commercialization of product candidates in the most efficient manner or at all.
Some collaboration agreements are terminable without cause on short notice. Once a collaboration agreement is signed, it may not lead to
commercialization of a product candidate. We also face competition in seeking out collaborators. If we are unable to secure new collaborations that achieve
the collaborator’s objectives and meet our expectations, we may be unable to advance our product candidates and may not generate meaningful revenues.
Due to our limited resources and access to capital, our decisions to prioritize development of certain product candidates may adversely affect our
business prospects.
Because we have limited resources and access to capital to fund our operations, we must decide which product candidates to pursue and the amount of
resources to allocate to each. As such, we are currently primarily focused on the development of eryaspase for the treatment of pancreatic cancer and other
solid tumors. Our decisions concerning the allocation of research, collaboration, management and financial resources toward particular compounds, product
candidates or therapeutic areas may not lead to the development of viable commercial products and may divert resources away from more promising
opportunities. Similarly, our potential decisions to delay, terminate or collaborate with third parties with respect to some of our product development
programs may also prove not to be optimal and could cause us to miss valuable opportunities. If we do not accurately evaluate the commercial potential or
target market for a particular product candidate, we may relinquish valuable rights to that product candidate through collaboration, licensing or other
arrangements in cases in which it would have been more advantageous for us to retain sole development and commercialization rights. If we make incorrect
determinations regarding the market potential of our product candidates or misread trends in the pharmaceutical industry, our business prospects could be
harmed.
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3.D.4. Risks Related to the Commercialization of Our Product Candidates
Even if we successfully complete clinical trials of our product candidates, those candidates may not be commercialized successfully for other reasons.
Even if we successfully complete clinical trials for one or more of our product candidates and obtain relevant regulatory approvals, those candidates may
not be commercialized for other reasons, including:
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failing to receive regulatory clearances required to market them as drugs;
being subject to proprietary rights held by others;
failing to obtain clearance from regulatory authorities on the manufacturing of our products;
being difficult or expensive to manufacture on a commercial scale;
having adverse side effects that make their use less desirable;
failing to compete effectively with products or treatments commercialized by competitors; or
failing to show that the long-term benefits of our products exceed their risks.
Even if any of our product candidates are commercialized, they may fail to achieve the degree of market acceptance by physicians, patients, third-party
payors or the medical community in general necessary for commercial success.
Even if the medical community accepts a product as safe and efficacious for its indicated use, physicians may choose to restrict the use of the product if we
are unable to demonstrate that, based on experience, clinical data, side-effect profiles and other factors, our product is preferable to any existing drugs or
treatments. We cannot predict the degree of market acceptance of any product candidate that receives marketing approval, which will depend on a number
of factors, including, but not limited to:
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the demonstration of the clinical efficacy and safety of the product;
the approved labeling for the product and any required warnings;
the advantages and disadvantages of the product compared to alternative treatments;
our ability to educate the medical community about the safety and effectiveness of the product;
the experience of clinicians with other potential treatments that use red blood cells to deliver therapeutics;
the coverage and reimbursement policies of government and commercial third-party payors pertaining to the product; and
the market price of our product relative to competing treatments.
If we are unable to establish sales, marketing and distribution capabilities for our product candidates, whether it be an internal infrastructure or an
arrangement with a third party, we may not be successful in commercializing those product candidates if and when they are approved.
We do not have a sales or marketing infrastructure and have no experience in the sale, marketing or distribution of pharmaceutical drugs. To achieve
commercial success for eryaspase, including in the United States, for the treatment of pancreatic cancer, as well as eryaspase for the treatment of other
indications and any other product candidates for which we may obtain marketing approval, we will need to establish a sales and marketing organization to
market or co-promote those products. There are risks involved with establishing our own sales, marketing and distribution capabilities. For example,
recruiting and training a sales force in competition with other pharmaceutical or biotechnology companies is expensive and time-consuming and could
delay any product launch. If the commercial launch of a product candidate for which we recruit a sales force and establish marketing capabilities is delayed
or does not occur for any reason, we would have prematurely or unnecessarily incurred these commercialization expenses. This may be costly, and our
investment would be lost if we cannot retain or reposition our sales and marketing personnel.
Factors that may inhibit our efforts to commercialize products on our own include:
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our inability to recruit, train and retain adequate numbers of effective sales and marketing personnel;
the inability of sales personnel to obtain access to physicians and educate an adequate number of physicians on the benefits of any future
products;
the lack of complementary products to be offered by sales personnel, which may put us at a competitive disadvantage relative to companies with
more products; and
unforeseen costs and expenses associated with creating an independent sales and marketing organization.
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If we are unable to establish our own sales, marketing and distribution capabilities and enter into arrangements with third parties to perform these services,
our revenue and our profitability, if any, are likely to be lower than if we were to sell, market and distribute any products that we develop ourselves.
Even if we obtain marketing approvals for our product candidates, the terms of approvals and ongoing regulation of our products may limit how we
market our products, which could materially impair our ability to generate revenues.
Even if we receive regulatory approval for a product candidate, this approval may carry conditions that limit the market for the product or put the product at
a competitive disadvantage relative to alternative therapies. For instance, a regulatory approval may limit the indicated uses for which we can market a
product or the patient population that may utilize the product or may be required to carry a warning in its labeling and on its packaging. Products with
boxed warnings are subject to more restrictive advertising regulations than products without such warnings. These restrictions could make it more difficult
to market any product candidate effectively. Accordingly, assuming we receive marketing approval for one or more of our product candidates, we will
continue to expend time, money and effort in all areas of regulatory compliance.
Government restrictions on pricing and reimbursement, as well as other healthcare payor cost-containment initiatives, may negatively impact our
ability to generate revenues even if we obtain regulatory approval to market a product.
Our ability to commercialize any products successfully also will depend in part on the extent to which coverage and adequate reimbursement for these
products and related treatments will be available from government health administration authorities, private health insurers and other organizations.
Government authorities and other third-party payors, such as private health insurers and health maintenance organizations, determine which medications
they will cover and establish reimbursement levels. Assuming we obtain coverage for a given product by a third-party payor, the resulting reimbursement
payment rates may not be adequate or may require co-payments that patients find unacceptably high. Patients who are prescribed medications for the
treatment of their conditions, and their prescribing physicians, generally rely on third-party payors to reimburse all or part of the costs associated with their
prescription drugs. Patients are unlikely to use our products unless coverage is provided and reimbursement is adequate to cover all or a significant portion
of the cost of our products. Therefore, coverage and adequate reimbursement is critical to new product acceptance. Coverage decisions may depend upon
clinical and economic standards that disfavor new drug products when more established or lower cost therapeutic alternatives are already available or
subsequently become available.
Government authorities and other third-party payors are developing increasingly sophisticated methods of controlling healthcare costs, such as by limiting
coverage and the amount of reimbursement for particular medications. Increasingly, third-party payors are requiring that drug companies provide them with
predetermined discounts from list prices as a condition of coverage, are using restrictive formularies and preferred drug lists to leverage greater discounts in
competitive classes and are challenging the prices charged for medical products. In addition, in the United States, federal programs impose penalties on
drug manufacturers in the form of mandatory additional rebates and/or discounts if commercial prices increase at a rate greater than the Consumer Price
Index-Urban, and these rebates and/or discounts, which can be substantial, may impact our ability to raise commercial prices. Further, no uniform policy
requirement for coverage and reimbursement for drug products exists among third-party payors in the United States. Therefore, coverage and
reimbursement for drug products can differ significantly from payor to payor. As a result, the coverage determination process is often a time-consuming
and costly process that will require us to provide scientific and clinical support for the use of our products to each payor separately, with no assurance that
coverage and adequate reimbursement will be applied consistently or obtained in the first instance.
The continuing efforts of governments, insurance companies, managed care organizations and other payors of healthcare costs to contain or reduce costs of
healthcare may negatively affect our commercialization prospects, including:
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our ability to set a price we believe is fair for our products, if approved;
our ability to obtain and maintain market acceptance by the medical community and patients;
our ability to generate revenues and achieve profitability; and
the availability of capital.
We cannot be sure that coverage and reimbursement will be available for any potential product candidate that we may commercialize and, if reimbursement
is available, what the level of reimbursement will be. Coverage and reimbursement may impact the demand for, or the price of, any product candidate for
which we obtain marketing approval. If coverage and reimbursement are not available or reimbursement is available only to limited levels, we may not
successfully commercialize any product candidate for which we obtain marketing approval.
In the United States, the ACA is significantly impacting the provision of, and payment for, healthcare. Various provisions of the ACA are designed to
expand Medicaid eligibility, subsidize insurance premiums, provide incentives for businesses to provide healthcare
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benefits, prohibit denials of coverage due to pre-existing conditions, establish health insurance exchanges, and provide additional support for medical
research. With regard to pharmaceutical products specifically, the ACA, among other things, expanded and increased industry rebates for drugs covered
under Medicaid programs and made changes to the coverage requirements under the Medicare prescription drug benefit.
There have been executive, judicial and Congressional challenges to certain aspects of the ACA. For example, since January 2017, President Trump signed
several Executive Orders and other directives designed to delay the implementation of certain provisions of the ACA or otherwise circumvent some of the
requirements for health insurance mandated by the ACA. Concurrently, the U.S. Congress has considered legislation that would repeal or repeal and
replace all or part of the ACA. While Congress has not passed comprehensive repeal legislation, several bills affecting the implementation of certain taxes
under the ACA have been signed into law. Legislation enacted in 2017, informally titled the Tax Cuts and Jobs Act, or the Tax Act, included a provision
which repealed, effective January 1, 2019, the tax-based shared responsibility payment imposed by the ACA on certain individuals who fail to maintain
qualifying health coverage for all or part of a year that is commonly referred to as the “individual mandate.” The 2020 federal spending package
permanently eliminated, effective January 1, 2020, the ACA-mandated “Cadillac” tax on high-cost employer-sponsored health coverage and medical
device tax and, effective January 1, 2021, also eliminates the health insurer tax. The Bipartisan Budget Act of 2018, or the BBA, among other things,
amended the ACA, effective January 1, 2019, to increase from 50 percent to 70 percent the point-of-sale discount that is owed by pharmaceutical
manufacturers who participate in Medicare Part D and to close the coverage gap in most Medicare drug plans, commonly referred to as the “donut hole.”
On December 14, 2018, a Texas U.S. District Court Judge ruled that ACA is unconstitutional in its entirety because the “individual mandate” was repealed
by Congress as part of the Tax Act. Additionally, on December 18, 2019, the U.S. Court of Appeals for the 5th Circuit upheld the District Court ruling that
the individual mandate was unconstitutional and remanded the case back to the District Court to determine whether the remaining provisions of the ACA
are invalid as well. The U.S. Supreme Court is currently reviewing this case, although it is uncertain when a decision will be made. Although the U.S.
Supreme Court has yet ruled on the constitutionality of the ACA, on January 28, 2021, President Biden issued an executive order to initiate a special
enrollment period from February 15, 2021 through May 15, 2021 for purposes of obtaining health insurance coverage through the ACA marketplace. The
executive order also instructs certain governmental agencies to review and reconsider their existing policies and rules that limit access to healthcare,
including among others, reexamining Medicaid demonstration projects and waiver programs that include work requirements, and policies that create
unnecessary barriers to obtaining access to health insurance coverage through Medicaid or the ACA. It is also unclear how the Supreme Court ruling, other
litigation and healthcare reform measures of the Biden administration will impact ACA and our business.
In addition, both the Budget Control Act of 2011 and the American Taxpayer Relief Act of 2012 have instituted, among other things, mandatory reductions
in Medicare payments to certain providers. The Budget Control Act of 2011, among other things, includes reductions to Medicare payments to providers of
2% per fiscal year, which went into effect on April 1, 2013 and, due to subsequent legislative amendments to the statute will remain in effect through 2030,
except for a temporary suspension from May 1, 2020 through March 31, 2021 due to the COVID-19 pandemic, unless additional Congressional action is
taken. On January 2, 2013, the American Taxpayer Relief Act of 2012 was signed into law, which, among other things, reduced Medicare payments to
several providers, including hospitals, and increased the statute of limitations period for the government to recover overpayments to providers from three to
five years. Additional legislative proposals to reform healthcare and government insurance programs, along with the trend toward managed healthcare in
the United States, could influence the purchase of medicines and reduce reimbursement and/or coverage of our product candidates, if approved.
Recently, there has been heightened governmental scrutiny over the manner in which manufacturers set prices for their marketed products. Such scrutiny
has resulted in several recent U.S. Congressional inquiries and proposed and enacted federal and state legislation designed to, among other things, bring
more transparency to drug pricing, review the relationship between pricing and manufacturer patient programs, reduce the costs of drugs under Medicare
and reform government program reimbursement methodologies for drug products. At the federal level, the Trump administration’s budget proposal for
fiscal year 2021 included a $135 billion allowance to support legislative proposals seeking to reduce drug prices, increase competition, lower out-of-pocket
drug costs for patients, and increase patient access to lower-cost generic and biosimilar drugs. On July 24, 2020 and September 13, 2020, the Trump
administration announced several executive orders related to prescription drug pricing that seek to implement several of the administration’s proposals. As
a result, the FDA released a final rule on September 24, 2020, effective November 30, 2020, providing guidance for states to build and submit importation
plans for drugs from Canada. Further, on November 20, 2020, the U.S. Department of Health and Human Services finalized a regulation removing safe
harbor protection for price reductions from pharmaceutical manufacturers to plan sponsors under Part D, either directly or through pharmacy benefit
managers, unless the price reduction is required by law. The implementation of the rule has been delayed by the Biden administration from January 1, 2022
to January 1, 2023 in response to ongoing litigation. The rule also creates a new safe harbor for price reductions reflected at the point-of-sale, as well as a
safe harbor for certain fixed fee arrangements between pharmacy benefit managers and manufacturers, the implementation of which have also been delayed
pending review by the Biden administration until March 22, 2021. On November 20, 2020, the Centers for Medicare & Medicaid Services, or CMS, issued
an interim final rule implementing President Trump’s Most Favored Nation executive order, which would tie Medicare Part B payments for certain
physician-administered drugs to the lowest price paid in other economically advanced countries, effective January 1, 2021. On December 28, 2020, the
United States District Court in Northern
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California issued a nationwide preliminary injunction against implementation of the interim final rule. The likelihood of implementation of any of the other
Trump administration reform initiatives is uncertain as it is unclear whether the Biden administration will work to reverse these measures or pursue similar
policy initiatives. At the state level, legislatures have increasingly passed legislation and implemented regulations designed to control pharmaceutical and
biological product pricing, including price or patient reimbursement constraints, discounts, restrictions on certain product access and marketing cost
disclosure and transparency measures, and, in some cases, designed to encourage importation from other countries and bulk purchasing.
We expect that the ACA, as well as other healthcare reform measures that may be adopted in the future, may result in more rigorous coverage criteria and
lower reimbursement, and in additional downward pressure on the price that we receive for any approved product candidate. Any reduction in
reimbursement from Medicare or other government-funded programs may result in a similar reduction in payments from private payors. The
implementation of cost containment measures or other healthcare reforms may prevent us from being able to generate revenue, attain profitability or
commercialize our drugs. Moreover, we cannot predict what healthcare reform initiatives may be adopted in the future.
In some foreign countries, the proposed pricing for a drug must be approved before it may be lawfully marketed. In addition, in some foreign markets, the
pricing of prescription drugs is subject to government control and reimbursement may in some cases be unavailable. The requirements governing drug
pricing vary widely from country to country. For example, the European Union provides options for its member states to restrict the range of medicinal
products for which their national health insurance systems provide reimbursement and to control the prices of medicinal products for human use. A
member state may approve a specific price for the medicinal product, may refuse to reimburse a product at the price set by the manufacturer or may instead
adopt a system of direct or indirect controls on the profitability of the company placing the medicinal product on the market. There can be no assurance that
any country that has price controls or reimbursement limitations for biopharmaceutical products will allow favorable reimbursement and pricing
arrangements for eryaspase or any of our other product candidates that may be approved. Historically, biopharmaceutical products launched in the
European Union do not follow price structures of the United States and generally tend to have significantly lower prices.
We believe that pricing pressures at the federal and state levels in the United States, as well as internationally, will continue and may increase, which may
make it difficult for us to sell our potential product candidates that may be approved in the future at a price acceptable to us or any third parties with whom
we may choose to collaborate. Further, it is possible that additional governmental action is taken in response to the COVID-19 pandemic.
Any of our product candidates for which we obtain marketing approval could be subject to post-marketing restrictions or withdrawal from the market,
and we may be subject to substantial penalties if we fail to comply with regulatory requirements or experience unanticipated problems with our
products following approval.
Any of our product candidates for which we obtain marketing approval, as well as the manufacturing processes, post-approval studies and measures,
labeling, advertising and promotional activities for such products, among other things, will be subject to continual requirements of and review by the EMA,
FDA and other regulatory authorities. These requirements include submissions of safety and other post-marketing information and reports, registration and
listing requirements, requirements relating to manufacturing, quality control, quality assurance and corresponding maintenance of records and documents,
requirements regarding the distribution of samples to physicians and recordkeeping. Even if marketing approval of a product candidate is granted, the
approval may be subject to limitations on the indicated uses for which the product may be marketed or to the conditions of approval, including the FDA
requirement to implement a REMS to ensure that the benefits of a drug or biological product outweigh its risks.
The EMA and FDA may also impose requirements for costly post-marketing studies or clinical trials and surveillance to monitor the safety or efficacy of a
product, such as long-term observational studies on natural exposure. The FDA and other agencies, including the Department of Justice, closely regulate
and monitor the post-approval marketing and promotion of products to ensure that they are manufactured, marketed and distributed only for the approved
indications and in accordance with the provisions of the approved labeling. The EMA and FDA impose stringent restrictions on manufacturers’
communications regarding off-label use and if we do not market any of our product candidates for which we receive marketing approval for only their
approved indications, we may be subject to warnings or enforcement action for off-label marketing. Violation of the Federal Food, Drug and Cosmetic Act,
or FDCA, and other statutes, including the civil False Claims Act, relating to the promotion and advertising of prescription drugs may lead to investigations
or allegations of violations of federal and state health care fraud and abuse laws and state consumer protection laws.
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Post marketing regulations in the EU and in State Members also require specifications regarding promotion and advertising of prescription drugs.
The EMA, FDA and other regulatory agencies actively enforce the laws and regulations prohibiting the promotion of drugs for off-label uses. If we are
found to have improperly promoted off-label use, we may become subject to significant liability.
The EMA, FDA and other regulatory agencies strictly regulate the promotional claims that may be made about prescription drug products, such as our
product candidates, if approved. In particular, a product may not be promoted for uses that are not approved by the EMA, FDA or such other regulatory
agencies as reflected in the product’s approved labeling. However, we may share truthful and not misleading information that is otherwise consistent with
the product’s approved labeling. For example, if we receive marketing approval for eryaspase, physicians, in their professional medical judgment, may
nevertheless prescribe eryaspase to their patients in a manner that is inconsistent with the approved label. If we are found to have promoted such off-label
use, we may become subject to significant liability under the FDCA and other statutory authorities, such as laws prohibiting false claims for
reimbursement. The federal government has levied large civil and criminal fines against companies for alleged improper promotion and has enjoined
several companies from engaging in off-label promotion. The FDA has also requested that companies enter into consent decrees or permanent injunctions
under which specified promotional conduct is changed or curtailed. If we cannot successfully manage the promotion of our products, if approved, we could
become subject to significant liability, which would harm our reputation and negatively impact our financial condition. In addition to European legislation,
each Member State of the European Union also enforce specific laws regarding the regulation of promotional claims which may change depending of the
country marketing.
Our future growth depends, in part, on our ability to penetrate foreign markets, where we would be subject to additional regulatory burdens and other
risks and uncertainties.
Our future profitability will depend, in part, on our ability to commercialize our product candidates in markets within and without the United States and
Europe. If we commercialize our product candidates in foreign markets, we would be subject to additional risks and uncertainties, including:
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economic weakness, including inflation, or political instability in particular economies and markets;
the burden of complying with complex and changing foreign regulatory, tax, accounting and legal requirements, many of which vary between
countries;
different medical practices and customs in foreign countries affecting acceptance in the marketplace;
tariffs and trade barriers;
other trade protection measures, import or export licensing requirements or other restrictive actions by U.S. or foreign governments;
longer accounts receivable collection times;
longer lead times for shipping;
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
• workforce uncertainty in countries where labor unrest is common;
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language barriers for technical training;
reduced protection of intellectual property rights in some foreign countries, and related prevalence of generic alternatives to therapeutics;
foreign currency exchange rate fluctuations and currency controls;
differing foreign reimbursement landscapes;
uncertain and potentially inadequate reimbursement of our products; and
the interpretation of contractual provisions governed by foreign laws in the event of a contract dispute.
Foreign sales of our products could also be adversely affected by the imposition of governmental controls, political and economic instability, trade
restrictions and changes in tariffs.
Adverse market and economic conditions may exacerbate certain risks associated with commercializing our product candidates.
Future sales of our product candidates, it they are approved, will be dependent on purchasing decisions of and reimbursement from government health
administration authorities, distributors and other organizations. As a result of adverse conditions affecting the
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global economy and credit and financial markets, including disruptions due to political instability or otherwise, these organizations may defer purchases,
may be unable to satisfy their purchasing or reimbursement obligations, or may delay payment for eryaspase or any of our product candidates that are
approved for commercialization in the future. In addition, there have been concerns for the overall stability and suitability of the euro as a single currency
given the economic and political challenges facing individual Eurozone countries. Continuing deterioration in the creditworthiness of Eurozone countries,
the withdrawal of one or more member countries from the European Union, or the failure of the euro as a common European currency or an otherwise
diminished value of the euro could materially and adversely affect our future product revenue from European sales of our products.
3.D.5. Risks Related to the Production and Manufacturing of our Product Candidates and Future Products, if Any
Our production capacity could prove insufficient for our needs.
Our production capacity may prove insufficient in the future to meet the growth of our business, including producing sufficient quantities of product
candidates for preclinical studies, clinical trials and, ultimately, our customers and distributors. For instance, we have initiated a Phase 3 clinical trial in
Europe and the United States in patients with second-line metastatic pancreatic cancer. Although we have extended our production capacity for our current
clinical trials and a potential commercial launch, if approved, with the construction of a manufacturing facility in Princeton, New Jersey and the extension
of our manufacturing facility in Lyon, France, there is no guarantee that we will or have properly estimated our required manufacturing capacities in or
outside of the United States and Europe or that the third parties we rely on to provide required machinery and materials for the manufacturing process will
be able to perform on our proposed timelines or meet our manufacturing demands, if at all. Also, if we must increase production capacity for any reason,
we may need to make considerable investments that could lead to significant financing needs or require us to enter into subcontracting agreements in order
to outsource part of the production.
We may not have access to the raw materials and other components, including asparaginase and red blood cells, necessary for the manufacturing of
our product candidates.
We are dependent on third parties for the supply of various materials that are necessary to produce our product candidates for clinical trials.
With respect to eryaspase, we rely on Medac GmbH, or Medac, for the supply of asparaginase. Since we rely on a single-source supplier for asparaginase,
if our agreement with Medac GmbH were to be terminated or if this supplier is unable to meet our demands for asparaginase, we could experience delays in
our research or planned clinical trials or commercialization. We could be unable to find alternative suppliers of acceptable quality, in the appropriate
volumes and at an acceptable cost.
With regard to the supply of red blood cells, we rely on the New York Blood Center and the American Red Cross in the United States and the French Blood
Agency (Établissement Français du Sang) and the German Red Cross Blood Donor Service in Europe. The French Blood Agency (Établissement Français
du Sang) is the sole operator in its territory for blood transfusions and is in charge of satisfying national needs for blood products. Although we have
entered into agreements with the New York Blood Center, the American Red Cross, the French Blood Agency (Établissement Français du Sang) and the
German Red Cross Blood Donor Service related to the supply of those materials, the supply could be reduced or interrupted at any time. In such case, we
may not be able to find other suppliers of acceptable materials in appropriate quantities at an acceptable cost. If we lose key suppliers or the supply of
materials is diminished or discontinued, or in the event of a major or international crisis impacting blood banks and the practice of blood donation, we may
not be able to continue to develop, manufacture and market our product candidates or products in a timely and competitive manner.
In addition, these materials are subject to stringent manufacturing processes and rigorous testing. Delays in the completion and validation of facilities and
manufacturing processes of these materials could adversely affect our ability to complete trials and commercialize our products in a cost-effective and
timely manner. If we encounter difficulties in the supply of these materials, chemicals or biological products, or if we were not able to maintain our supply
agreements or establish new supply agreements in the future, our product development and our business prospects could be significantly compromised.
Our manufacturing facilities are subject to significant government regulations and approvals. If we or our third-party manufacturers fail to comply
with these regulations or maintain these approvals, our business will be materially harmed.
We currently manufacture our product candidates for use in Europe in our facility in Lyon, France. In addition, we have entered into agreements with the
American Red Cross, the French Blood Agency (Établissement Français du Sang), the German Red Cross Blood Donor Service and the New York Blood
Center to produce eryaspase for use in our clinical trials in Europe and in the United States and we built a U.S. manufacturing facility in Princeton, New
Jersey, which began producing eryaspase for use in our U.S clinical trials in the fourth quarter of 2019. We also have an agreement with Medac to provide
us with L-asparaginase for use in our production of eryaspase. We and our third-party manufacturers are subject to ongoing regulation and periodic
inspection by the EMA, FDA and
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other regulatory bodies to ensure compliance with current Good Manufacturing Practices, or cGMP, as part of our clinical trials. Any failure to follow and
document our or their adherence to such cGMP regulations or other regulatory requirements may lead to significant delays in the availability of products
for commercial sale or clinical trials, may result in the termination of or a hold on a clinical trial, or may delay or prevent filing or approval of marketing
applications for our products.
Failure to comply with applicable regulations could also result in the EMA, FDA or other applicable regulatory authorities taking various actions,
including:
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levying fines and other civil penalties;
imposing consent decrees or injunctions;
requiring us to suspend or put on hold one or more of our clinical trials;
suspending or withdrawing regulatory approvals;
delaying or refusing to approve pending applications or supplements to approved applications;
requiring us to suspend manufacturing activities or product sales, imports or exports;
requiring us to communicate with physicians and other customers about concerns related to actual or potential safety, efficacy, and other issues
involving our products;
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imposing operating restrictions; and
seeking criminal prosecutions.
Any of the foregoing actions could be detrimental to our reputation, business, financial condition or operating results. Furthermore, our key suppliers may
not continue to be in compliance with all applicable regulatory requirements, which could result in our failure to produce our products on a timely basis and
in the required quantities, if at all. In addition, before any additional products would be considered for marketing approval in the United States, Europe or
elsewhere, our suppliers will have to pass an audit by the applicable regulatory agencies. We are dependent on our suppliers’ cooperation and ability to pass
such audits, and the audits and any audit remediation may be costly. Failure to pass such audits by us or any of our suppliers would affect our ability to
commercialize our product candidates in the United States, Europe or elsewhere.
Our production costs may be higher than we currently estimate.
We manufacture our product candidates according to manufacturing best practices applicable to drugs for clinical trials and to specifications approved by
the applicable regulatory authorities. If any of our products are found to be non-compliant, we would be required to manufacture the product again, which
would entail additional costs and may prevent delivery of the product to patients on time.
Other risks inherent in the production process may have the same effect, such as:
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contamination of the controlled atmosphere area;
unusable premises and equipment;
new regulatory requirements requiring a partial and/or extended stop to the production unit to meet the requirements;
unavailable qualified personnel;
power failure of extended duration;
logistical error; and
rupture in the cold chain, which is a system for storing and transporting blood and blood products within the correct temperature range and
conditions.
In addition, a rise in direct or indirect energy rates may increase product manufacturing and logistical costs. Any of these risks, should they occur, could
disrupt our activities and compromise our financial position, results, reputation or growth.
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3.D.6. Risks Related to Our Employees and Business
We may encounter difficulties in managing our growth, which could disrupt our operations.
As of December 31, 2020, we had 206 employees, and we expect to increase our number of employees and the scope of our operations. To manage our
development and expansion, including the potential commercialization of our product candidates in Europe and the United States, we will need to
implement and improve our managerial, operational and financial systems, expand our facilities and continue to recruit and train additional qualified
personnel. Also, our management may need to divert a disproportionate amount of its attention away from its day-to-day activities and devote a substantial
amount of time to managing these development activities. Due to our limited resources, we may not be able to effectively manage the expansion of our
operations or recruit and train additional qualified personnel. This may result in weaknesses in our infrastructure, give rise to operational mistakes, loss of
business opportunities, loss of employees and reduced productivity among remaining employees. The physical expansion of our operations may lead to
significant costs and may divert financial resources from other projects, such as the development of our product candidates. If our management is unable to
effectively manage our expected development and expansion, our expenses may increase more than expected, our ability to generate or increase our
revenue could be reduced and we may not be able to implement our business strategy. Our future financial performance and our ability to commercialize
our product candidates, if approved, and compete effectively will depend, in part, on our ability to effectively manage the future development and
expansion of our company.
We depend on qualified management personnel and our business could be harmed if we lose key personnel and cannot attract new personnel.
Our success depends to a significant degree upon the technical and management skills of our senior management team. The loss of the services of any of
these individuals could have a material adverse effect on our ability to achieve our corporate objectives and successfully execute our business plan.
Although we have implemented an executive compensation policy that includes variable compensation based on performance as well as share-based
compensation plans for the benefit of our key employees, we cannot guarantee that this policy will be sufficient to retain these key employees. Our success
also will depend upon our ability to attract and retain additional qualified management, marketing, technical, and sales executives and personnel. We
compete for key personnel against numerous companies, including larger, more established companies with significantly greater financial resources than
we possess. There can be no assurance that we will be successful in attracting or retaining such personnel, and the failure to do so, could harm our
operations and our growth prospects.
Our failure to maintain certain tax benefits applicable to French biopharmaceutical companies may adversely affect our results of operations, our cash
flows and our financial condition.
As a French biopharmaceutical company, we have benefited from certain tax advantages, including, for example, the CIR, which is a French tax credit
aimed at stimulating research and development. The CIR can be offset against French corporate income tax due and the portion in excess, if any, may be
refunded. The CIR is calculated based on our claimed amount of eligible research and development expenditures in France and amounted to €4.4 million,
€3.9 million and €3.4 million for the years ended December 31, 2018, 2019 and 2020, respectively. The French tax authorities, with the assistance of the
Research and Higher Education Ministry, may audit each research and development program in respect of which a CIR benefit has been claimed and assess
whether such program qualifies in its view for the CIR benefit. The French tax authorities may challenge our eligibility for, or our calculation of, certain tax
reductions or deductions in respect of our research and development activities. Should the French tax authorities be successful, the CIR representing the
majority of the our operating revenues (74% of revenues for the year ended December 31, 2019 and more than 90% for the years ended December 31, 2018
and December 31, 2020), our credits may be reduced, which would have a negative impact on our results of operations and future cash flows. We believe,
due to the nature of our business operations, that we will continue to be eligible to receive the CIR tax credit. However, if the French Parliament decides to
eliminate, or to reduce the scope or the rate of, the CIR benefit, either of which it could decide to do at any time, our results of operations could be
adversely affected.
The COVID-19 coronavirus could adversely impact our business, including our clinical trials.
In December 2019, a novel strain of coronavirus, COVID-19, was reported to have surfaced in Wuhan, China. Since then, the COVID-19 coronavirus has
spread globally, including to France, the United States and many of the countries in which we have planned or ongoing clinical trials. If the COVID-19
coronavirus continues to spread in France and the United States, we may experience disruptions that could severely impact our business and clinical trials,
including:
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delays or difficulties in enrolling patients in our clinical trials;
delays or difficulties in clinical site initiation, including difficulties in recruiting clinical site investigators and clinical site staff;
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diversion of healthcare resources away from the conduct of clinical trials, including the diversion of hospitals serving as our clinical trial sites
and hospital staff supporting the conduct of our clinical trials;
interruption of key clinical trial activities, such as clinical trial site monitoring, due to limitations on travel imposed or recommended by federal
or state governments, employers and others; and
limitations in employee resources that would otherwise be focused on the conduct of our clinical trials, including because of sickness of
employees or their families or the desire of employees to avoid contact with large groups of people.
We experienced a 3 to 4 months delay in patient enrollment in the TRYbeCA1 study which has been completed to date, and therefore in the intermediary
analysis of this study. With the exception of this delay, we did not suffer any delay in other studies that would be related to the economic and health effects
of the COVID-19 pandemic.
For our clinical trials that are being conducted in countries which are experiencing heightened impact from the COVID-19 coronavirus, in addition to the
risks listed above, we may also experience the following adverse impacts:
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delays in receiving approval from local regulatory authorities to initiate our planned clinical trials;
delays in clinical sites receiving the supplies and materials needed to conduct our clinical trials;
interruption in global shipping that may affect the transport of clinical trial materials, such as investigational drug product and comparator drugs
used in our clinical trials;
changes in local regulations as part of a response to the COVID-19 coronavirus outbreak which may require us to change the ways in which our
clinical trials are conducted, which may result in unexpected costs, or to discontinue the clinical trials altogether;
delays in necessary interactions with local regulators, ethics committees and other important agencies and contractors due to limitations in
employee resources or forced furlough of government employees; and
refusal of the EMA or the FDA to accept data from clinical trials in these affected geographies.
The global outbreak of the COVID-19 coronavirus and the virus variants continues to rapidly evolve. The extent to which the COVID-19 coronavirus may
impact our business and clinical trials will depend on future developments, which are highly uncertain and cannot be predicted with confidence, such as the
ultimate geographic spread of the disease, the duration of the outbreak, travel restrictions and social distancing in the European Union, the United States
and other countries, business closures or business disruptions and the effectiveness of actions taken in the European Union, the United States and other
countries to contain and treat the disease such as the lockdown measures put in place in most countries. Further, the adverse effect on the financial markets,
on the market price of our ADSs and/or ordinary shares, is unknown. To date, the global economy remains heavily impacted by the outbreak of the
COVID-19 coronavirus. We believe that the recently emerged variants of the Covid-19 coronavirus are not likely to modify the risks as described above..
Our business may become subject to economic, political, regulatory and other risks associated with international operations.
We are a company based in France with international operations, including in the United States. A significant portion of our suppliers and collaborative and
clinical trial relationships are located outside the United States. Accordingly, our future results could be harmed by a variety of factors, including:
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economic weakness, including inflation, or political instability in particular non-U.S. economies and markets;
differing regulatory requirements for drug approvals in non-U.S. countries;
differing jurisdictions could present different issues for securing, maintaining or obtaining freedom to operate in such jurisdictions;
potentially reduced protection for intellectual property rights;
difficulties in compliance with non-U.S. laws and regulations;
changes in non-U.S. regulations and customs, tariffs and trade barriers;
changes in non-U.S. currency exchange rates of the euro and currency controls;
changes in a specific country's or region's political or economic environment, including the withdrawal of the United Kingdom from the EU;
trade protection measures, import or export licensing requirements or other restrictive actions by U.S. or non-U.S. governments;
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differing reimbursement regimes and price controls in certain non-U.S. markets;
negative consequences from changes in tax laws;
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
◦ workforce uncertainty in countries where labor unrest is more common than in the United States;
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difficulties associated with staffing and managing international operations, including differing labor relations;
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad; and
business interruptions resulting from geo-political actions, including war and terrorism, or natural disasters including earthquakes, typhoons,
floods and fires, or public health emergencies, such as the novel COVID-19 coronavirus.
Our business may be exposed to foreign exchange risks.
Owing to the international scope of our operations, fluctuations in exchange rates, particularly between the euro and the U.S. dollar, may adversely affect
us. Although we are based in the France, we source research and development, manufacturing, consulting and other services from the United States as well
as other countries outside the European Union. We incur some of our expenses, and may in the future derive revenues, in currencies other than the euro.
We use the euro as our functional currency for our financial communications. However, a significant portion of our expenses, financial assets and liabilities
are denominated in U.S dollars and are exposed to changes in foreign currency exchange rates. We also entered into a license agreement with SQZ
Biotechnologies in 2019 and any potential revenues pursuant to this agreement will be made in U.S. dollars. We do not currently engage in hedging
transactions or the use of forward contracts but may in the future in order to minimize the impact of uncertainty in future exchange rates on cash flows. A
deterioration of the U.S dollar of the Euro could reduce our cash and cash equivalents. Refer to "Item 11. Quantitative and Qualitative Disclosures About
Market Risk" for more information.
As we advance our clinical development in the United States and potentially commercialize our product candidates in that market, we expect to face greater
exposure to exchange rate risk.. We cannot predict the impact of foreign currency fluctuations, and foreign currency fluctuations in the future may
adversely affect our financial condition, results of operations and cash flows. Therefore, fluctuations in the exchange rate between the euro and the U.S.
dollar will also affect, among other matters, the value of our ordinary shares and ADSs.
We may use hazardous chemicals and biological materials in our business. Any claims relating to improper handling, storage or disposal of these
materials could be time-consuming and costly.
Our research and development processes involve the controlled use of hazardous materials, including chemicals and biological materials. We cannot
eliminate the risk of accidental contamination or discharge and any resultant injury from these materials. We may be sued for any injury or contamination
that results from our use or the use by third parties of these materials, and our liability may exceed any insurance coverage and our total assets. French and
U.S. federal, state, local or foreign laws and regulations govern the use, manufacture, storage, handling and disposal of these hazardous materials and
specified waste products, as well as the discharge of pollutants into the environment and human health and safety matters. Compliance with environmental
laws and regulations may be expensive and may impair our research and development efforts. If we fail to comply with these requirements, we could incur
substantial costs, including civil or criminal fines and penalties, clean-up costs or capital expenditures for control equipment or operational changes
necessary to achieve and maintain compliance. In addition, we cannot predict the impact on our business of new or amended environmental laws or
regulations or any changes in the way existing and future laws and regulations are interpreted and enforced.
Product liability and other lawsuits could divert our resources, result in substantial liabilities and reduce the commercial potential of our product
candidates.
Although we comply with cGMP, and Good Clinical Practices, or GCPs, the risk that we may be sued on product liability claims is inherent in the
development and commercialization of biopharmaceutical products. Side effects of, or manufacturing defects in, products that we develop could result in
the deterioration of a patient’s condition, injury or even death. Our liability could be sought after by patients participating in the clinical trials in the context
of the development of the therapeutic products tested and unexpected side effects resulting from the administration of these products. For example, we
reported adverse events in our Phase 2b clinical trial of second-line treatment of patients with metastatic pancreatic cancer compared to treatment with
chemotherapy alone. The percentage of patients with at least one adverse event reported as grade 3 or 4 (i.e., most commonly, increased gamma glutamyl
transferase, neutropenia, deterioration of general health and anemia) amounted to 79% in the eryaspase treatment arm, versus 86% in the control arm, and
the percentage of patients with at least one reported severe adverse event (i.e., most commonly, deterioration in general health and gastrointestinal
hemorrhage) amounted to 45% in the eryaspase treatment arm versus 50% in the control arm.
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Once a product is approved for sale and commercialized, the likelihood of product liability lawsuits increases. Criminal or civil proceedings might be filed
against us by patients, regulatory authorities, biopharmaceutical companies and any other third party using or marketing our products. These actions could
include claims resulting from acts by our partners, licensees and subcontractors, over which we have little or no control. These lawsuits may divert our
management from pursuing our business strategy and may be costly to defend. In addition, if we are held liable in any of these lawsuits, we may incur
substantial liabilities and may be forced to limit or forgo further commercialization of the affected products.
We maintain product liability insurance coverage for our clinical trials at levels which we believe are appropriate for our clinical trials. Nevertheless, our
insurance coverage may be insufficient to reimburse us for any expenses or losses we may suffer. In addition, in the future, we may not be able to obtain or
maintain sufficient insurance coverage at an acceptable cost or to otherwise protect against potential product or other legal or administrative liability claims
by us or our collaborators, licensees or subcontractors, which could prevent or inhibit the commercial production and sale of any of our product candidates
that receive regulatory approval. Product liability claims could also harm our reputation, which may adversely affect our ability to commercialize our
products successfully.
Our internal computer systems, or those of our third-party contractors or consultants, may fail or suffer security breaches, which could result in a
material disruption of our product development programs.
Despite the implementation of security measures, our internal computer systems and those of our third-party contractors and consultants are vulnerable to
damage from computer viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures. While we do not
believe that we have experienced any such system failure, accident or security breach to date, including cybersecurity incidents, if such an event were to
occur and cause interruptions in our operations, it could result in a material disruption of our programs. For example, the loss of clinical trial data for our
product candidates could result in delays in our regulatory approval efforts and significantly increase our costs to recover or reproduce the lost data. To the
extent that any disruption or security breach results in a loss of or damage to our data or applications or other data or applications relating to our technology
or product candidates, or inappropriate disclosure of confidential or proprietary information, we could incur liabilities and the further development of our
product candidates could be delayed. As these threats continue to evolve, particularly around cybersecurity, we may be required to expend significant
resources to enhance our control environment, processes, practices and other protective measures. Despite these efforts, such events could materially
adversely affect our business, financial condition or results of operations.
We may acquire businesses or products, or form strategic alliances, in the future, and we may not realize the benefits of such acquisitions.
Our current growth strategy does not involve plans to acquire companies or technologies facilitating or enabling us to access to new medicines, new
research projects, or new geographical areas, or enabling us to express synergies with our existing operations. However, if such acquisitions were to
become necessary in the future, we may not be able to identify appropriate targets or make acquisitions under satisfactory conditions, in particular,
satisfactory price conditions. In addition, we may be unable to obtain the financing for these acquisitions on favorable terms, which could require us to
finance these acquisitions using our existing cash resources that could have been allocated to other purposes. If we acquire businesses with promising
markets or technologies, we may not be able to realize the benefit of acquiring such businesses if we are unable to successfully integrate them with our
existing operations and company culture. We may encounter numerous difficulties in developing, manufacturing and marketing any new products resulting
from a strategic alliance or acquisition that delay or prevent us from realizing their expected benefits or enhancing our business. We cannot assure you that,
following any such acquisition, we will achieve the expected synergies to justify the transaction.
European data processing is governed by restrictive regulations governing the collection, processing, and cross-border transfer of personal data.
The collection and use of personal data in the European Union is governed by the provisions of the General Data Protection Regulation ((EU) 2016/679), or
GDPR. This legislation imposes requirements relating to having legal bases for processing personal data relating to identifiable individuals and securing
transfers of such data outside the European Economic Area including to the United States, providing information to those individuals regarding the
processing of their personal data, keeping personal data secure, having data processing agreements with third parties who process personal data, responding
to individuals’ requests to exercise their rights in respect of their personal data, reporting security breaches involving personal data to the competent
national data protection authority and affected individuals, conducting record-keeping and,where applicable, appointing data protection officers, conducting
data protection impact assessments. The GDPR imposes additional responsibilities and liabilities in relation to personal data that we process and we may be
required to put in place additional mechanisms ensuring compliance with the new data protection rules. The GDPR applies across the EEA and, by virtue
of the UK GDPR in the United Kingdom, in a broadly uniform manner. However, the GDPR provides that EEA member states can make their own further
laws and regulations to introduce specific requirements related to the processing of ‘special categories of personal data,’ including personal data related to
health, biometric data used for unique
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identification purposes and genetic information; as well as personal data related to criminal offences or convictions – in the United Kingdom, the United
Kingdom Data Protection Act 2018 complements the UK GDPR in this regard. This fact may lead to greater divergence on the law that applies to the
processing of such data types across the EEA and/or United Kingdom, compliance with which, as and where applicable, may increase our costs and could
increase our overall compliance risk. Such country-specific regulations could also limit our ability to collect, use and share data in the context of our EEA
and/or United Kingdom establishments (regardless of where any processing in question occurs), and/or could cause our compliance costs to increase,
ultimately having an adverse impact on our business, and harming our business and financial condition. Failure to comply with the requirements of the
GDPR and related national data protection laws of the member states of the European Union may result in substantial fines, other administrative penalties
and civil claims being brought against us, which could have a material adverse effect on our business, results of operations and financial condition.
Moreover, in some European countries, including France, the hosting of personal health data must be carried out by specifically certified hosting service
providers. The absence or suspension of the appropriate certification of such hosting service provider may adversely affect our business, or even lead to
penalties related to breach of security of personal data.
We are subject to U.S. and certain foreign export and import controls, sanctions, embargoes, anti-corruption laws, and anti-money laundering laws and
regulations. Compliance with these legal standards could impair our ability to compete in domestic and international markets. We can face criminal
liability and other serious consequences for violations, which can harm our business.
We are subject to export control and import laws and regulations, including the U.S. Export Administration Regulations, U.S. Customs regulations, various
economic and trade sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls, the U.S. Foreign Corrupt
Practices Act of 1977, as amended, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the U.S. Travel Act, the USA PATRIOT Act, and other
state and national anti-bribery and anti-money laundering laws in the countries in which we conduct activities. Anti-corruption laws are interpreted broadly
and prohibit companies and their employees, agents, contractors, and other collaborators from authorizing, promising, offering, or providing, directly or
indirectly, improper payments or anything else of value to recipients in the public or private sector. We may engage third parties to sell our products sell our
products outside the United States, to conduct clinical trials, and/or to obtain necessary permits, licenses, patent registrations, and other regulatory
approvals. We have direct or indirect interactions with officials and employees of government agencies or government-affiliated hospitals, universities, and
other organizations. We can be held liable for the corrupt or other illegal activities of our employees, agents, contractors, and other collaborators, even if we
do not explicitly authorize or have actual knowledge of such activities. Any violations of the laws and regulations described above may result in substantial
civil and criminal fines and penalties, imprisonment, the loss of export or import privileges, debarment, tax reassessments, breach of contract and fraud
litigation, reputational harm, and other consequences.
3.D.7. Risks Related to Other Legal Compliance Matters
We are subject to anti-bribery, anti-kickback, fraud and abuse and other healthcare laws and regulations which may require substantial compliance
efforts and could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm and diminished profits and future earnings,
among other penalties.
Healthcare providers, physicians and others will play a primary role in the recommendation and prescription of our products, if approved. Our business
operations in the United States and our arrangements with clinical investigators, healthcare providers, consultants, third party payors and patients may
expose us to broadly applicable federal and state anti-bribery fraud and abuse and other healthcare laws. These laws may impact, among other things, our
research, proposed sales, marketing and education programs of our product candidates that obtain marketing approval. Restrictions under applicable U.S.
federal, state and foreign healthcare laws and regulations include, but are not limited to, the following:
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the U.S. federal Anti-Kickback Statute, which prohibits, among other things, persons or entities from knowingly and willfully soliciting, offering,
receiving or providing remuneration, including any kickback, bribe or rebate, directly or indirectly, in cash or in kind, to induce or reward, or in
return for, either the referral of an individual for, or the purchase or lease, order or recommendation of, any item, good, facility or service, for
which payment may be made under federal healthcare programs such as Medicare and Medicaid;
the U.S. federal civil and criminal false claims laws, including the civil False Claims Act, which can be enforced by individuals, on behalf of the
government, through civil whistleblower or qui tam actions, and civil monetary penalties laws prohibits individuals or entities from, among other
things, knowingly presenting, or causing to be presented, claims for payment that are false or fraudulent or making a false statement to avoid,
decrease, or conceal an obligation to pay money to the federal government;
the U.S. federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created additional federal, civil and criminal
statutes that impose criminal and civil liability for, among other things, executing or attempting to execute
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a scheme to defraud any healthcare benefit program or knowingly and willingly falsifying, concealing or covering up a material fact or making
false statements relating to healthcare matters;
• HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, or HITECH, and their implementing
regulations, which impose requirements on certain healthcare providers, health plans and healthcare clearinghouses, known as “covered entities,”
and persons or entities that perform functions or activities that involve individually identifiable health information on behalf of a covered entity,
known as “business associates,” including mandatory contractual terms as well as their covered subcontractors, with respect to safeguarding the
privacy, security and transmission of individually identifiable health information;
• U.S. federal transparency requirements under the Physician Payments Sunshine Act, enacted as part of the ACA, that require applicable
manufacturers of covered drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid, or the
Children’s Health Insurance Program, with specific exceptions, to track and annually report to the CMS payments and other transfers of value
provided to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, and certain
ownership and investment interests held by physicians or their immediate family members. Beginning in 2022, such obligations will include
payments and other transfers of value provided in the previous year to certain other healthcare professionals, including physician assistants, nurse
practitioners, clinical nurse specialists, certified nurse anesthetists, anesthesiologist assistants, and certified nurse midwives;
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analogous state or foreign laws and regulations, such as state anti-kickback and false claims laws, which may apply to items or services
reimbursed by any third-party payor, including commercial insurers, state marketing and/or transparency laws applicable to manufacturers that
may be broader in scope than the federal requirements, state laws that require biopharmaceutical companies to comply with the biopharmaceutical
industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government, state laws that require
drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers, marketing
expenditures, or drug pricing, state and local laws that require the registration of pharmaceutical sales representatives, and state laws governing the
privacy and security of health information in certain circumstances, many of which differ from each other in significant ways and may not have
the same effect as HIPAA, thus complicating compliance efforts;
• GDPR, the local EU data protection laws, and other ex-U.S. protections;
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the French “transparency” provisions, or “French Sunshine Act” (Articles L. 1453-1 and D. 1453-1 and seq. PHC), which contains provisions
regarding transparency of fees received by some healthcare professionals from industries, such as companies manufacturing or marketing
healthcare products (medicinal products, medical devices, etc.) or services related to these products in France. According to the provisions, these
companies shall publicly disclose (on a specific public website available at www.entreprises-transparence.sante.gouv.fr) the advantages and fees
paid to healthcare professionals amounting to €10 or above, as well as the agreements concluded with the latter, along with detailed information
about each agreement (the precise subject matter of the agreement, the date of signature of the agreement, its end date, the total amount paid to the
healthcare professional, etc.); and
the French “anti-gift” provisions (Articles L.1453-3 to L.1453-12 PHC), setting out a general prohibition of payments and rewards from
industries, i.e. companies manufacturing or marketing health products, to - but not only - healthcare professionals, with limited exceptions and
strictly defines the conditions under which such payments or awards are lawful, notably the authorization of the Professional Boards if the
financial counterpart is higher than a certain amount, this limit being different according to the nature of the benefit concerned
Ensuring that our business arrangements with third parties comply with applicable healthcare laws and regulations will likely be costly. It is possible that
governmental authorities will conclude that our business practices do not comply with current or future statutes, regulations or case law involving
applicable fraud and abuse or other healthcare laws and regulations. If our operations were found to be in violation of any of these laws or any other
governmental regulations that may apply to us, we may be subject to significant civil, criminal and administrative penalties, damages, fines, disgorgement,
imprisonment, possible exclusion from government funded healthcare programs, such as Medicare and Medicaid, additional reporting requirements and
oversight if we become subject to a corporate integrity agreement or similar agreement to resolve allegations of non-compliance with these laws,
contractual damages, reputational harm, diminished profits and future earnings, and curtailment of our operations, any of which could substantially disrupt
our operations. If the physicians or other providers or entities with whom we expect to do business are found not to be in compliance with applicable laws,
they may be subject to significant criminal, civil or administrative sanctions, including exclusions from government funded healthcare programs.
If we fail to comply with environmental, health and safety laws and regulations, we could become subject to fines or penalties or incur costs that could
have a material adverse effect on the success of our business.
We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use,
storage, treatment and disposal of hazardous materials and wastes. Our research and development activities
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involve the use of biological and hazardous materials and produce hazardous waste products. We generally contract with third parties for the disposal of
these materials and wastes. We cannot eliminate the risk of contamination or injury from these materials, which could cause an interruption of our
commercialization efforts, research and development efforts and business operations, environmental damage resulting in costly clean-up and liabilities
under applicable laws and regulations governing the use, storage, handling and disposal of these materials and specified waste products. Although we
believe that the safety procedures utilized by our third-party manufacturers for handling and disposing of these materials generally comply with the
standards prescribed by these laws and regulations, we cannot guarantee that this is the case or eliminate the risk of accidental contamination or injury from
these materials. In such an event, we may be held liable for any resulting damages and such liability could exceed our resources and state or federal or other
applicable authorities may curtail our use of certain materials and/or interrupt our business operations. Furthermore, environmental laws and regulations are
complex, change frequently and have tended to become more stringent. We cannot predict the impact of such changes and cannot be certain of our future
compliance. In addition, we may incur substantial costs in order to comply with current or future environmental, health and safety laws and regulations.
These current or future laws and regulations may impair our research, development or production efforts. Failure to comply with these laws and regulations
also may result in substantial fines, penalties or other sanctions.
Although we maintain professional liability insurance which cover for costs and expenses we may incur due to environmental liability that may be asserted
against us or due to injuries to our employees resulting from the use of hazardous materials, may not provide adequate coverage against potential liabilities.
Our employees may engage in misconduct or other improper activities, including violating applicable regulatory standards and requirements or
engaging in insider trading, which could significantly harm our business.
We are exposed to the risk of employee fraud or other misconduct. Misconduct by employees could include intentional failures to comply with legal
requirements or the requirements of CMS, EMA, FDA and other government regulators, provide accurate information to applicable government
authorities, comply with fraud and abuse and other healthcare laws and regulations in the United States and abroad, report financial information or data
accurately or disclose unauthorized activities to us. In particular, sales, marketing and business arrangements in the healthcare industry are subject to
extensive laws and regulations intended to prevent fraud, misconduct, kickbacks, self-dealing and other abusive practices. These laws and regulations
restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales commission, customer incentive programs and other business
arrangements. Employee misconduct could also involve the improper use of, including trading on, information obtained in the course of clinical trials,
which could result in regulatory sanctions and serious harm to our reputation. We have adopted a Code of Business Conduct and Ethics, but it is not always
possible to identify and deter employee misconduct, and the precautions we take to detect and prevent this activity may be ineffective in controlling
unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to comply
with these laws or regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those
actions could have a significant impact on our business, including the imposition of significant civil, criminal and administrative penalties, damages, fines,
disgorgement, imprisonment, possible exclusion from government funded healthcare programs, such as Medicare and Medicaid, additional reporting
requirements and oversight if we become subject to a corporate integrity agreement or similar agreement to resolve allegations of non-compliance,
contractual damages, reputational harm, diminished profits and future earnings, and curtailment of our operations.
Changes in European regulations may limit our ability to attract and obtain additional financing sources outside France.
As a result of the implementation of Regulation (EU) 2019/452 of the European Parliament and of the Council of March 19, 2019 establishing a framework
for the screening of foreign direct investments into the European Union, the list of sectors of activity which are subject to a control by the French
authorities has been extended to cover foreign investments in additional economic sectors. Prior authorization of the Minister of Economy is required for
investments in: (i) businesses participating, even occasionally, under the exercise of French public authority, (ii) businesses that would be liable to
negatively impact public order, public security or the national defense interest, as well as (iii) business focused on research, production or trade of arms,
ammunition, gunpowder and explosive substances.
A foreign direct investment will be subject to authorization where there is an (i) acquisition of control, under article L.233-3 of the French Commercial
Code, of an entity subject to French law, (ii) where a party acquires all or part of a branch of activity of an entity subject to French law, (iii) or where a
party crosses directly or indirectly, and acting alone or in concert, the 25% voting rights threshold of an entity subject to French law.
The French government has adapted the foreign investment control procedure in France within the context of the ongoing COVID-19 pandemic in two
ways: (i) the inclusion, by a Ministerial order (arrêté) of April 27, 2020, of biotechnologies in the list of critical technologies and (ii) the addition, by a
Decree (décret) of July 22, 2020 as amended by Decree n°2020-1729 of December 28, 2020, of the threshold of 10% of voting rights of a company subject
to French law whose securities are listed on a stock exchange as triggering the control procedure.
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The Decree of July 22, 2020, as amended by the decree of December 28, 2020, currently provides that this new 10% threshold will be effective until
December 31, 2021 and a fast-track review procedure for foreign investments exceeding this threshold.
If an investment in the company subject to prior authorization is realized without this authorization having been granted, the Minister will be able to order
the investor, subject to a fine for non-performance, to: (i) file an authorization application, (ii) restore the previous situation, or (iii) amend the investment
and, if he considers that the conditions for the authorization have not been met, the Minister may also revoke the authorization or order the investor, subject
to a fine for non-performance, to comply with the authorization. In both cases, he may also take provisional measures.
Furthermore, an investor who has carried out a transaction without prior authorization or has not complied with the orders or measures set by the French
Minister of Economy will be liable to a fine of up to the greater of the following amounts: (i) double the amount of the irregular investment, (ii) 10% of the
turnover (excluding taxes) of the company, (iii) five million euros for legal entities, and (iv) one million euros for individuals.
Inclusion of biotechnologies in the list of critical technologies subject to foreign investment control procedure could discourage foreign investment in the
Company's securities, thereby limiting access to foreign sources of financing. If interested investors do not or cannot obtain such authorization, their
investment could be cancelled and be subject to additional fees and/or monetary penalties.
Future changes to tax laws could materially adversely affect our company and reduce net returns to our shareholders.
Our tax treatment is subject to the enactment of, or changes in, tax laws, regulations and treaties, or the interpretation thereof, tax policy initiatives and
reforms under consideration and the practices of tax authorities in jurisdictions in which we operate, including those related to the Organization for
Economic Co-Operation and Development’s Base Erosion and Profit Shifting Project, the European Commission’s state aid investigations and other
initiatives. Such changes may include (but are not limited to) the taxation of operating income, investment income, dividends received or (in the specific
context of withholding tax) dividends paid. We are unable to predict what tax reform may be proposed or enacted in the future or what effect such changes
would have on our business, but such changes, to the extent they are brought into tax legislation, regulations, policies or practices, could affect our financial
position and overall or effective tax rates in the future in countries where we have operations, reduce post-tax returns to our shareholders, and increase the
complexity, burden and cost of tax compliance.
For example, the Tax Act enacted many significant changes to the U.S. tax laws. Future guidance from the Internal Revenue Service and other tax
authorities with respect to the Tax Act may affect us, and certain aspects of the Tax Act could be repealed or modified in future legislation. In addition, it is
uncertain if and to what extent various states will conform to the Tax Act or any newly enacted federal tax legislation. Changes in corporate tax rates, the
realization of net deferred tax assets relating to our operations, the taxation of foreign earnings, and the deductibility of expenses under the Tax Act or
future reform legislation could have a material impact on the value of our deferred tax assets, could result in significant one-time charges, and could
increase our future U.S. tax expense. We urge you to consult with your legal and tax advisors with respect to this legislation and the potential tax
consequences of investing in or holding our common shares.
Tax authorities may disagree with our positions and conclusions regarding certain tax positions, resulting in unanticipated costs, taxes or non-
realization of expected benefits.
A tax authority may disagree with tax positions that we have taken, which could result in increased tax liabilities. For example, the U.S. Internal Revenue
Service or another tax authority could challenge our allocation of income by tax jurisdiction and the amounts paid between our affiliated companies
pursuant to our intercompany arrangements and transfer pricing policies, including amounts paid with respect to our intellectual property development.
Similarly, a tax authority could assert that we are subject to tax in a jurisdiction where we believe we have not established a taxable connection, often
referred to as a “permanent establishment” under international tax treaties, and such an assertion, if successful, could increase our expected tax liability in
one or more jurisdictions. A tax authority may take the position that material income tax liabilities, interest and penalties are payable by us, in which case,
we expect that we might contest such assessment. Contesting such an assessment may be lengthy and costly and if we were unsuccessful in disputing the
assessment, the implications could increase our anticipated effective tax rate, where applicable.
For U.S. tax purposes, our ability to use our net operating loss carryforwards to offset future taxable income may be subject to certain limitations.
In general, under Section 382 of the U.S. Internal Revenue Code, or the Code, a corporation that undergoes an “ownership change” is subject to limitations
on its ability to utilize its pre-change net operating loss carryforwards, or NOLs, to offset future taxable income. We have not performed a detailed analysis
to determine whether an ownership change under Section 382 of the Code has occurred after each of our previous issuances of ordinary shares. In addition,
if we underwent an ownership change in the past, our ability to utilize NOLs could be limited by Section 382 of the Code. Future changes in our share
ownership, some of which are outside of our
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control, could result in an ownership change under Section 382 of the Code. Furthermore, our ability to utilize NOLs of companies that we may acquire in
the future may be subject to limitations. As a result, even if we attain profitability, we may be unable to use a material portion of our NOLs and other tax
attributes, which could negatively impact our future cash flows.
3.D.8. Risks Related to Intellectual Property
Our ability to compete may decline if we do not adequately protect our proprietary rights.
Our commercial success depends on obtaining and maintaining proprietary rights to our product candidates and defending these rights against third-party
challenges. We will only be able to protect our product candidates and their uses from unauthorized use by third parties to the extent that valid and
enforceable patents, or effectively protected trade secrets, cover them. Our ability to obtain patent protection for our product candidates is uncertain due to
a number of factors, including:
• we or our licensors may not have been the first to make the inventions covered by pending patent applications or issued patents;
• we or our licensors may not have been the first to file patent applications for our product candidates or the compositions we developed or for
their uses;
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others may independently develop identical, similar or alternative products or compositions and uses thereof;
our or our licensors’ disclosures in patent applications may not be sufficient to meet the statutory requirements for patentability;
any or all of our or our licensors’ pending patent applications may not result in issued patents;
• we or our licensors may not seek or obtain patent protection in countries that may eventually provide us a significant business opportunity;
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any patents issued to us or our licensors may not provide a basis for commercially viable products, may not provide any competitive advantages,
or may be successfully challenged by third parties;
our or our licensors’ compositions and methods may not be patentable;
others may design around our patent claims to produce competitive products which fall outside of the scope of our patents; or
others may identify prior art or other bases which could invalidate our or our licensors’ patents.
Even if we have or obtain patents covering our product candidates or compositions, we may still be barred from making, using and selling our product
candidates or technologies because of the patent rights of others. Others may have filed, and in the future, may file, patent applications covering
compositions or products that are similar or identical to ours. There are many issued U.S. and foreign patents relating to chemical compounds and
therapeutic products, and some of these relate to compounds we intend to commercialize. Numerous U.S. and foreign issued patents and pending patent
applications owned by others exist in the cancer treatment field in which we are developing products. These could materially affect our ability to develop
our product candidates or sell our products if approved. Because patent applications can take many years to issue, there may be currently pending
applications unknown to us that may later result in issued patents that our product candidates or compositions may infringe. These patent applications may
have priority over patent applications filed by us.
Obtaining and maintaining a patent portfolio entails significant expense and resources. Part of the expense includes periodic maintenance fees, renewal
fees, annuity fees, various other governmental fees on patents and/or applications due in several stages over the lifetime of patents and/or applications, as
well as the cost associated with complying with numerous procedural provisions during the patent application process. We may not choose to pursue or
maintain protection for particular inventions. In addition, there are situations in which failure to make certain payments or noncompliance with certain
requirements in the patent process can result in abandonment or lapse of a patent or patent application, resulting in partial or complete loss of patent rights
in the relevant jurisdiction. If we choose to forgo patent protection or allow a patent application or patent to lapse purposefully or inadvertently, our
competitive position could suffer.
Legal actions to enforce our patent rights can be expensive and may involve the diversion of significant management time. In addition, these legal actions
could be unsuccessful and could also result in the invalidation of our patents or a finding that they are unenforceable. We may or may not choose to pursue
litigation or other actions against those that have infringed on our patents, or used them without authorization, due to the associated expense and time
commitment of monitoring these activities. If we fail to protect or to enforce our intellectual property rights successfully, our competitive position could
suffer, which could harm our results of operations.
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Issued patents covering our product candidates could be found invalid or unenforceable if challenged in court.
If we initiate legal proceedings against a third party to enforce a patent covering our product candidate or technology, the defendant could counterclaim that
the patent covering our product candidate or technology is invalid or unenforceable. In patent litigation in the United States, defendant counterclaims
alleging invalidity and unenforceability are commonplace. Grounds for a validity challenge include alleged failures to meet any of several statutory
requirements, including lack of novelty, obviousness or non-enablement. Grounds for unenforceability assertions include allegations that someone
connected with prosecution of the patent withheld relevant information from the USPTO, or made a misleading statement, during prosecution. Third parties
may also raise similar claims before administrative bodies in the United States or abroad, even outside the context of litigation. Such mechanisms include
re-examination, post-grant review and/or inter partes review and equivalent proceedings in foreign jurisdictions, and opposition proceedings. Such
proceedings could result in revocation or amendment of our patents in such a way that they no longer cover our product candidates or competitive products.
The outcome following legal assertions of invalidity and unenforceability is unpredictable. With respect to validity, for example, we cannot be certain that
there is no invalidating prior art, of which we and the patent examiner were unaware during prosecution. If a defendant were to prevail on a legal assertion
of invalidity or unenforceability, we would lose at least part, and perhaps all, of the patent protection on our product candidates.
Biopharmaceutical patents and patent applications involve highly complex legal and factual questions, which, if determined adversely to us, could
negatively impact our patent position.
The patent positions of biopharmaceutical companies can be highly uncertain and involve complex legal and factual questions. The interpretation and
breadth of claims allowed in some patents covering biopharmaceutical compositions may be uncertain and difficult to determine and are often affected
materially by the facts and circumstances that pertain to the patented compositions and the related patent claims. The standards of the U.S. Patent and
Trademark Office, or USPTO, are evolving and could change in the future. Consequently, we cannot predict the issuance and scope of patents with
certainty. Patents, if issued, may be challenged, invalidated or circumvented. U.S. patents and patent applications may also be subject to interference
proceedings, and U.S. patents may be subject to reexamination proceedings, post-grant review and/or inter partes review in the USPTO. Foreign patents
may be subject also to opposition or comparable proceedings in the corresponding foreign patent office, which could result in either loss of the patent or
denial of the patent application or loss or reduction in the scope of one or more of the claims of the patent or patent application. In addition, such
interference, reexamination, post-grant review, inter partes review and opposition proceedings may be costly. Accordingly, rights under any issued patents
may not provide us with sufficient protection against competitive products or processes.
In addition, changes in or different interpretations of patent laws in the United States and foreign countries may permit others to use our or our licensors’
discoveries or to develop and commercialize our technology and products without providing any compensation to us, or may limit the number of patents or
claims we can obtain. The laws of some countries do not protect intellectual property rights to the same extent as U.S. laws and those countries may lack
adequate rules and procedures for defending our intellectual property rights.
If we fail to obtain and maintain patent protection and trade secret protection for our product candidates, we could lose our competitive advantage and
competition we face would increase, reducing any potential revenues and adversely affecting our ability to attain or maintain profitability.
Developments in patent law could have a negative impact on our business.
From time to time, the U.S. Supreme Court, other federal courts, the U.S. Congress, the USPTO or similar foreign authorities may change the standards of
patentability and any such changes could have a negative impact on our business. In addition, the Leahy-Smith America Invents Act, or the America
Invents Act, which was signed into law in 2011, includes a number of significant changes to U.S. patent law. These changes include a transition from a
“first-to-invent” system to a “first-to-file” system, changes to the way issued patents are challenged, and changes to the way patent applications are
disputed during the examination process. These changes may favor larger and more established companies that have greater resources to devote to patent
application filing and prosecution. The USPTO has developed new regulations and procedures to govern the full implementation of the America Invents
Act, and many of the substantive changes to patent law associated with the America Invents Act, and, in particular, the first-to-file provisions, became
effective on March 16, 2013. Substantive changes to patent law associated with the America Invents Act, or any subsequent U.S. legislation regarding
patents, may affect our ability to obtain patents, and if obtained, to enforce or defend them. Accordingly, it is not clear what, if any, impact the America
Invents Act will have on the cost of prosecuting our U.S. patent applications, our ability to obtain U.S. patents based on our discoveries and our ability to
enforce or defend any patents that may issue from our patent applications, all of which could have a material adverse effect on our business.
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If we do not obtain protection under the Hatch-Waxman Amendments and similar non-U.S. legislation for extending the term of patents covering each
of our product candidates, our business may be materially harmed.
Depending upon the timing, duration and conditions of FDA marketing approval of our product candidates, one or more of our U.S. patents may be eligible
for limited patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984, referred to as the Hatch-Waxman
Amendments, and similar legislation in the European Union. The Hatch-Waxman Amendments permit a patent term extension of up to five years for a
patent covering an approved product as compensation for effective patent term lost during product development and the FDA regulatory review process.
However, we may not receive an extension if we fail to apply within applicable deadlines, fail to apply prior to expiration of relevant patents or otherwise
fail to satisfy applicable requirements. Moreover, the length of the extension could be less than we request. If we are unable to obtain patent term extension
or the term of any such extension is less than we request, the period during which we can enforce our patent rights for that product will be shortened and
our competitors may obtain approval to market competing products sooner. As a result, our revenue from applicable products could be reduced, possibly
materially.
If we are unable to protect the confidentiality of our trade secrets, our business and competitive position would be harmed.
In addition to patent protection, because we operate in the highly technical field of development of therapies, we rely in part on trade secret protection in
order to protect our proprietary technology and processes. However, trade secrets are difficult to protect. We have entered into confidentiality and
intellectual property assignment agreements with our employees, consultants, outside scientific collaborators, sponsored researchers, and other advisors.
These agreements generally require that the other party keep confidential and not disclose to third parties all confidential information developed by the
party or made known to the party by us during the course of the party’s relationship with us. These agreements also generally provide that inventions
conceived by the party in the course of rendering services to us will be our exclusive property. However, these agreements may not be honored and may not
effectively assign intellectual property rights to us.
In addition to contractual measures, we try to protect the confidential nature of our proprietary information using physical and technological security
measures. Such measures may not, for example, in the case of misappropriation of a trade secret by an employee or third party with authorized access,
provide adequate protection for our proprietary information. Our security measures may not prevent an employee or consultant from misappropriating our
trade secrets and providing them to a competitor, and recourse we take against such misconduct may not provide an adequate remedy to protect our
interests fully. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret can be difficult, expensive, and time-consuming, and the
outcome is unpredictable. In addition, courts outside the United States may be less willing to protect trade secrets. Trade secrets may be independently
developed by others in a manner that could prevent legal recourse by us. If any of our confidential or proprietary information, such as our trade secrets,
were to be disclosed or misappropriated, or if any such information was independently developed by a competitor, our competitive position could be
harmed.
We will not seek to protect our intellectual property rights in all jurisdictions throughout the world and we may not be able to adequately enforce our
intellectual property rights even in the jurisdictions where we seek protection.
Filing, prosecuting and defending patents on our product candidates in all countries and jurisdictions throughout the world would be prohibitively
expensive, and our intellectual property rights in some countries outside the United States could be less extensive than those in the United States, assuming
that rights are obtained in the United States. Competitors may use our technologies in jurisdictions where we do not pursue and obtain patent protection to
develop their own products and further, may export otherwise infringing products to territories where we have patent protection, but enforcement is not as
strong as that in the United States. These products may compete with our products and our patents or other intellectual property rights may not be effective
or sufficient to prevent them from competing. Even if we pursue and obtain issued patents in particular jurisdictions, our patent claims or other intellectual
property rights may not be effective or sufficient to prevent third parties from so competing.
In addition, the laws of some foreign countries do not protect intellectual property rights to the same extent as the federal and state laws in the United
States. Many companies have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. The
legal systems of some countries, particularly developing countries, do not favor the enforcement of patents and other intellectual property protection,
especially those relating to biopharmaceuticals or biotechnologies. This could make it difficult for us to stop the infringement of our patents, if obtained, or
the misappropriation of our other intellectual property rights. For example, many foreign countries have compulsory licensing laws under which a patent
owner must grant licenses to third parties. In addition, many countries limit the enforceability of patents against third parties, including government
agencies or government contractors. In these countries, patents may provide limited or no benefit. Patent protection must ultimately be sought on a country-
by-country basis, which is an expensive and time-consuming process with uncertain outcomes. Accordingly, we may choose not to seek patent protection in
certain countries, and we will not have the benefit of patent protection in such countries.
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Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and attention from other aspects of
our business, could put our patents at risk of being invalidated or interpreted narrowly, could put our patent applications at risk of not issuing and could
provoke third parties to assert claims against us. We may not prevail in any lawsuits that we initiate and the damages or other remedies awarded, if any,
may not be commercially meaningful. In addition, changes in the law and legal decisions by courts in the United States and foreign countries may affect
our ability to obtain adequate protection for our technology and the enforcement of intellectual property. Accordingly, our efforts to enforce our intellectual
property rights around the world may be inadequate to obtain a significant commercial advantage from the intellectual property that we develop or license.
Third parties may assert ownership to inventions we develop.
Collaborators or third party partners may in the future make claims challenging the inventorship or ownership of our intellectual property developed in the
context of their collaboration with us. We have written agreements with collaborators and third party partners that provide us the ownership of intellectual
property or provide that we must negotiate certain intellectual property rights with collaborators and third party partners with respect to joint inventions or
inventions made by them that arise from the results of the collaboration. In some instances, written provisions or conditions may be challenged or may not
be adequate to address clearly the resolution of intellectual property rights that may arise from a collaboration. If we cannot successfully negotiate
ownership of intellectual property to the inventions that result from our use of a third-party partner or collaborator’s materials where required, or if disputes
otherwise arise with respect to the intellectual property developed with the use of a third-party partner or collaborator’s samples, we may be limited in our
ability to capitalize on the market potential of these inventions. In addition, we may face claims by third parties that our agreements with employees,
contractors, or consultants obligating them to assign intellectual property to us are ineffective, or in conflict with prior or competing contractual obligations
of assignment, which could result in ownership disputes regarding intellectual property we have developed or will develop and interfere with our ability to
capture the commercial value of such inventions. Litigation may be necessary to resolve an ownership dispute, and if we are not successful, we may be
precluded from using certain intellectual property, or may lose our exclusive rights in that intellectual property. Either outcome could have an adverse
impact on our business.
If we fail to comply with our obligations under license or technology agreements with third parties, we could lose license rights that are critical to our
business.
We license intellectual property that is critical to our business, including licenses underlying the technology in our diagnostic tests, and in the future, we
may enter into additional agreements that provide us with licenses to valuable intellectual property or technology. These licenses impose various royalty
payments, milestones, and other obligations on us. If we fail to comply with any of these obligations, the licensor may have the right to terminate the
license. Termination by the licensor would cause us to lose valuable rights, and could prevent us from distributing our current tests, or inhibit our ability to
commercialize future test candidates. Our business would suffer if any current or future licenses terminate, if the licensors fail to abide by the terms of the
license, if the licensors fail to prevent infringement by third parties, if the licensed patents or other rights are found to be invalid or unenforceable, or if we
are unable to enter into necessary licenses on acceptable terms.
Third parties may assert that our employees or consultants have wrongfully used or disclosed confidential information or misappropriated trade
secrets.
We employ individuals who were previously employed at universities or other biotechnology or pharmaceutical companies, including our competitors or
potential competitors. Although we try to ensure that our employees and consultants do not use the proprietary information or know-how of others in their
work for us, and no such claims against us are currently pending, we may be subject to claims that we or our employees, consultants or independent
contractors have used or disclosed intellectual property, including trade secrets or other proprietary information, of a former employer or other third parties.
Litigation may be necessary to defend against these claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose
valuable intellectual property rights or personnel. Even if we are successful in defending against such claims, litigation could result in substantial costs and
be a distraction to management and other employees.
A dispute concerning the infringement or misappropriation of our proprietary rights or the proprietary rights of others could be time-consuming and
costly, and an unfavorable outcome could harm our business.
There is significant litigation in the biopharmaceutical industry regarding patent and other intellectual property rights. While we are not currently subject to
any pending intellectual property litigation, and are not aware of any such threatened litigation, we may be exposed to future litigation by third parties
based on claims that our product candidates, technologies or activities infringe the intellectual property rights of others. If our development activities are
found to infringe any such patents, we may have to pay significant damages or seek licenses to such patents. A patentee could prevent us from using the
patented drugs or compositions. We may need to resort to litigation to enforce a patent issued to us, to protect our trade secrets, or to determine the scope
and validity of third-party proprietary rights. From time to time, we may hire scientific personnel or consultants formerly employed by other
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companies involved in one or more areas similar to the activities conducted by us. Either we or these individuals may be subject to allegations of trade
secret misappropriation or other similar claims as a result of prior affiliations. If we become involved in litigation, it could consume a substantial portion of
our managerial and financial resources, regardless of whether we win or lose. We may not be able to afford the costs of litigation. Any adverse ruling or
perception of an adverse ruling in defending ourselves against these claims could have a negative impact on our cash position. Any legal action against us
or our collaborators could lead to:
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payment of damages, potentially treble damages, if we are found to have willfully infringed a party’s patent rights;
injunctive or other equitable relief that may effectively block our ability to further develop, commercialize, and sell products; or
us or our collaborators having to enter into license arrangements that may not be available on commercially acceptable terms, if at all.
Any of these outcomes could hurt our cash position and financial condition and our ability to develop and commercialize our product candidates.
If our trademarks and trade names are not adequately protected, we may not be able to build name recognition in our markets of interest.
Our registered or unregistered trademarks or trade names may be challenged, infringed, circumvented or declared generic or determined to be infringing on
other marks. We may not be able to protect our rights to these trademarks and trade names, which we will need to build name recognition by potential
partners or customers in our markets of interest. Over the long term, if we are unable to establish name recognition based on our trademarks and trade
names, we may not be able to compete effectively.
3.D.9. Risks Related to Ownership of our Securities and our Status as a Non-U.S. Company with Foreign Private Issuer Status
The market price of our equity securities may be volatile or may decline regardless of our operating performance.
The market price for our ADSs and ordinary shares has fluctuated and is likely to continue to fluctuate, substantially. The stock market in general and the
market for biopharmaceutical companies in particular have experienced extreme volatility that in some instances is unrelated to the operating performance
of particular companies. For example, on the day we announced our positive Phase 2b clinical trial results evaluating eryaspase in metastatic pancreatic
cancer in March 2017, the closing price per ordinary share on Euronext Paris increased by 71% compared to the average of the closing price per ordinary
share for the previous 20 trading days. Conversely, on the day we announced the discontinuation of our developments in AML in June 2018, the closing
price per ordinary share on Euronext Paris decreased by 31% compared to the average of the closing price per ordinary share for the previous 20 trading
days. A significant decrease in our share price could have a significant adverse effect on our financial condition, reputation and prospects.
As a result of this volatility in our market and industry, holders of our equity securities may not be able to sell their ADSs or ordinary shares at or above the
price originally paid for the security. The market price for our ADSs and ordinary shares may be influenced by numerous factors, some of which are
beyond our control, including:
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actual or anticipated fluctuations in our financial condition and operating results;
actual or anticipated changes in our growth rate relative to our competitors;
competition from existing products or new products that may emerge;
announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, collaborations, or capital
commitments;
failure to meet or exceed financial estimates and projections of the investment community or that we provide to the public;
issuance of new or updated research or reports by securities analysts;
fluctuations in the valuation of companies perceived by investors to be comparable to us;
share and ADS price and volume fluctuations attributable to inconsistent trading volume levels of our shares and ADSs;
additions or departures of key management or scientific personnel;
lawsuits threatened or filed against us, disputes or other developments related to proprietary rights, including patents, litigation matters, and our
ability to obtain patent protection for our technologies;
changes to coverage policies or reimbursement levels by commercial third-party payors and government payors and any announcements relating
to coverage policies or reimbursement levels;
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announcement or expectation of additional debt or equity financing efforts;
adverse regulatory decisions, including failure to receive regulatory approval for any of our product candidates;
the termination of a strategic alliance or the inability to establish additional strategic alliances;
sales of our ordinary shares or ADSs by us, our insiders or our other shareholders; and
general economic and market conditions.
These and other market and industry factors may cause the market price and demand for our ordinary shares and ADSs to fluctuate substantially, regardless
of our actual operating performance, which may limit or prevent holders of our equity securities from readily selling their ordinary shares or ADSs and may
otherwise negatively affect the liquidity of the trading market for the ordinary shares and ADSs.
In addition, in the past, stockholders have initiated class action lawsuits against pharmaceutical and biotechnology companies following periods of
volatility in the market prices of these companies’ stock. Such litigation, if instituted against us, could cause us to incur substantial costs and divert
management’s attention and resources from our business.
The dual listing of our ordinary shares and our ADSs may adversely affect the liquidity and value of our ordinary shares and ADSs.
Our ADSs are listed on Nasdaq, and our ordinary shares are listed on Euronext Paris. We cannot predict the effect our dual listing will have on the value of
our ADSs and ordinary shares. However, the dual listing of our ADSs and ordinary shares may dilute the liquidity of these securities in one or both markets
and may adversely affect the trading market or price for our ADSs or ordinary shares.
If we do not achieve our projected development and commercialization goals in the timeframes we announce and expect, our business will be harmed
and the price of our securities could decline as a result.
We sometimes estimate for planning purposes the timing of the accomplishment of various scientific, clinical, regulatory and other product development
objectives. These milestones may include our expectations regarding the commencement or completion of scientific studies, clinical trials, the submission
of regulatory filings, or commercialization objectives. From time to time, we may publicly announce the expected timing of some of these milestones, such
as the completion of an ongoing clinical trial, the initiation of other clinical programs, receipt of marketing approval, or a commercial launch of a product.
The achievement of many of these milestones may be outside of our control. All of these milestones are based on a variety of assumptions which may
cause the timing of achievement of the milestones to vary considerably from our estimates, including:
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our available capital resources or capital constraints we experience;
the rate of progress, costs and results of our clinical trials and research and development activities, including the extent of scheduling conflicts
with participating clinicians and collaborators, and our ability to identify and enroll patients who meet clinical trial eligibility criteria;
our receipt of approvals by the EMA, FDA and other regulatory agencies and the timing thereof;
other actions, decisions or rules issued by regulators;
our ability to access sufficient, reliable and affordable supplies of compounds and raw materials used in the manufacture of our product
candidates;
the efforts of our collaborators with respect to the commercialization of our products; and
the securing of, costs related to, and timing issues associated with, product manufacturing as well as sales and marketing activities.
If we fail to achieve announced milestones in the timeframes we expect, the commercialization of our product candidates may be delayed, our business and
results of operations may be harmed, and the trading price of the ordinary shares and ADSs may decline as a result.
Our ownership is concentrated in the hands of our principal shareholders and ADS holders and management, who continue to be able to exercise a
direct or indirect controlling influence on us.
As of December 31, 2020, our executive officers, directors, current 5% or greater shareholders and their respective affiliated entities, including BVF
Partners L.P, RA Capital Management LLC and Auriga Ventures III FCPR, together beneficially owned approximately 40% of our ordinary shares
(including ordinary shares in the form of ADSs). As a result, these shareholders, acting together, will have
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significant influence over all matters that require approval by our shareholders, including the election of directors and approval of significant corporate
transactions. Corporate action might be taken even if other shareholders oppose them. This concentration of ownership might also have the effect of
delaying or preventing a change of control of our company that other shareholders may view as beneficial.
If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, the price of the ordinary
shares and ADSs and their trading volume could decline.
The trading market for the ADSs and ordinary shares depends in part on the research and reports that securities or industry analysts publish about us or our
business. If no or few securities or industry analysts cover our company, the trading price for our ADSs and ordinary shares would be negatively impacted.
If one or more of the analysts who covers us downgrades our equity securities or publishes incorrect or unfavorable research about our business, the price
of the ordinary shares and ADSs would likely decline. If one or more of these analysts ceases coverage of our company or fails to publish reports on us
regularly, or downgrades our securities, demand for the ordinary shares and ADSs could decrease, which could cause the price of the ordinary shares and
ADSs or their trading volume to decline.
We do not currently intend to pay dividends on our securities and, consequently, the ability of our shareholders and ADS holders to achieve a return on
investment will depend on appreciation in the price of the ordinary shares and ADSs. In addition, French law may limit the amount of dividends we are
able to distribute.
We have never declared or paid any cash dividends on our share capital and do not currently intend to do so for the foreseeable future. We currently intend
to invest our future earnings, if any, to fund our growth. Therefore, our shareholders and ADS holders are not likely to receive any dividends for the
foreseeable future and any increase in value will depend solely upon future appreciation. Consequently, holders of our equity securities may need to sell all
or part of their holdings of ordinary shares or ADSs after price appreciation, which may never occur, as the only way to realize any future gains.
Further, under French law, the determination of whether we have been sufficiently profitable to pay dividends is made on the basis of our statutory financial
statements prepared and presented in accordance with accounting standards applicable in France. In addition, payment of dividends may subject us to
additional taxes under French law. Please see the section of this Annual Report titled “Item 10.B—Memorandum and Articles of Association” for further
details on the limitations on our ability to declare and pay dividends and the taxes that may become payable by us if we elect to pay a dividend. Therefore,
we may be more restricted in our ability to declare dividends than companies not based in France.
In addition, exchange rate fluctuations may affect the amount of euros that we are able to distribute, and the amount in U.S. dollars that our shareholders
receive upon the payment of cash dividends or other distributions we declare and pay in euros, if any. These factors could harm the value of our equity
securities, and, in turn, the U.S. dollar proceeds that holders receive from the sale of ADSs.
Future sales, or the possibility of future sales, of a substantial number of our ADSs or ordinary shares could adversely affect the market price of our
ADSs and ordinary shares.
As of December 31, 2020, 20,057,562 ordinary shares were issued and outstanding. Sales of a substantial number of shares of our ordinary shares or ADSs
in the public market, or the perception that these sales might occur, could depress the market price of our securities and could impair our ability to raise
capital through the sale of additional equity securities. A substantial number of our shares are now generally freely tradable, subject, in the case of sales by
our affiliates, to the volume limitations and other provisions of Rule 144 under the U.S. Securities Act of 1933, as amended, or the Securities Act. If
holders of these shares sell, or indicate an intent to sell, substantial amounts of our securities in the public market, the trading price of our securities could
decline significantly.
We have also filed a registration statement with the SEC to register the ordinary shares that may be issued under our equity incentive plans. The ordinary
shares subject to outstanding options under our equity incentive plans, ordinary shares reserved for future issuance under our equity incentive plans and
ordinary shares subject to outstanding warrants will become eligible for sale in the public market in the future, subject to certain legal and contractual
limitations. Sales of a large number of the shares issued under these plans in the public market could have an adverse effect on the market price of our
securities. In addition, pursuant to the OCABSA Agreement, we may issue ordinary shares upon conversion of convertible notes and/or exercise of share
warrants. In the event that such ordinary shares are sold in the public market, such sales of ordinary shares pursuant to the OCABSA Agreement could also
have an adverse effect on the market price of our securities.
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The rights of shareholders in companies subject to French corporate law differ in material respects from the rights of shareholders of corporations
incorporated in the United States.
We are a French company with limited liability. Our corporate affairs are governed by our bylaws and by the laws governing companies incorporated in
France. The rights of shareholders and the responsibilities of members of our board of directors are in many ways different from the rights and obligations
of shareholders in companies governed by the laws of U.S. jurisdictions. For example, in the performance of its duties, our board of directors is required by
French law to consider the interests of our company, its shareholders, its employees and other stakeholders, rather than solely our shareholders and/or
creditors. It is possible that some of these parties will have interests that are different from, or in addition to, the interests of our shareholders or holders of
our ADSs. See the sections of this Annual Report titled “Item 10. B—Memorandum and Articles of Association” and “Item 16.G—Corporate
Governance.”
U.S. holders of our equity securities may have difficulty enforcing civil liabilities against our company and directors and senior management and
experts named herein.
Certain members of our board of directors and senior management and certain experts named herein are non-residents of the United States, and all or a
substantial portion of our assets and the assets of such persons are located outside the United States. As a result, it may not be possible to serve process on
such persons or us in the United States or to enforce judgments obtained in U.S. courts against them or us based on civil liability provisions of the securities
laws of the United States. Additionally, it may be difficult to assert U.S. securities law claims in actions originally instituted outside of the United States.
Foreign courts may refuse to hear a U.S. securities law claim because foreign courts may not be the most appropriate forums in which to bring such a
claim. Even if a foreign court agrees to hear a claim, it may determine that the law of the jurisdiction in which the foreign court resides, and not U.S. law, is
applicable to the claim. Further, if U.S. law is found to be applicable, the content of applicable U.S. law must be proved as a fact, which can be a time-
consuming and costly process, and certain matters of procedure would still be governed by the law of the jurisdiction in which the foreign court resides. In
particular, there is some doubt as to whether French courts would recognize and enforce certain civil liabilities under U.S. securities laws in original actions
or judgments of U.S. courts based upon these civil liability provisions. In addition, awards of punitive damages in actions brought in the United States or
elsewhere may be unenforceable in France. An award for monetary damages under the U.S. securities laws would be considered punitive if it does not seek
to compensate the claimant for loss or damage suffered but is intended to punish the defendant. French law provides that a shareholder, or a group of
shareholders, may initiate a legal action to seek indemnification from the directors of a corporation in the corporation’s interest if it fails to bring such legal
action itself. If so, any damages awarded by the court are paid to the corporation and any legal fees relating to such action may be borne by the relevant
shareholder or the group of shareholders.
The enforceability of any judgment in France will depend on the particular facts of the case as well as the laws and treaties in effect at the time. The United
States and France do not currently have a treaty providing for recognition and enforcement of judgments (other than arbitration awards) in civil and
commercial matters.
Our bylaws and French corporate law contain provisions that may delay or discourage a takeover attempt.
Provisions contained in our bylaws and French corporate law could make it more difficult for a third-party to acquire us, even if doing so might be
beneficial to our shareholders. In addition, provisions of our bylaws impose various procedural and other requirements, which could make it more difficult
for shareholders to effect certain corporate actions. These provisions include the following:
•
•
•
under French law, the owner of 90% of the share capital or voting rights of a public company listed on a regulated market in a Member State of
the European Union or in a state party to the European Economic Area, or EEA, Agreement, including France, has the right to force out
minority shareholders following a tender offer made to all shareholders;
under French law, a non-resident of France as well as any French entity controlled by non-residents of France may have to file a declaration for
statistical purposes with the Bank of France (Banque de France) within 20 working days following the date of certain direct foreign investments
in us, including any purchase of our ADSs. In particular, such filings are required in connection with investments exceeding €15,000,000 that
lead to the acquisition of at least 10% of our share capital or voting rights or cross such 10% threshold. See “Item 10.B - Limitations Affecting
Shareholders of a French Company;”
under French law, certain investments in a French company relating to certain strategic industries by individuals or entities not residents in a
Member State of the European Union or controlled by individuals of entities not resident in a Member State of the European Union are subject
to prior authorization of the Ministry of Economy pursuant to Law n°2019-486 (and as from April 1, 2020 pursuant to the decree n°2019-1590).
See “Item 10.B - Limitations Affecting Shareholders of a French Company;”. Within the context of the ongoing COVID-19 pandemic, the
French government has included biotechnologies in the list of strategic industries by a Ministerial order (arrêté) of April 27, 2020. See section
D "Risk Factors - Risks Related to our Financial Position and Capital Needs ";
38
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
a merger (i.e., in a French law context, a stock for stock exchange following which our company would be dissolved without being liquidated
into the acquiring entity and our shareholders would become shareholders of the acquiring entity) of our company into a company incorporated
in the European Union would require the approval of our board of directors as well as a two-thirds majority of the votes held by the shareholders
present, represented by proxy or voting by mail at the relevant meeting;
a merger of our company into a company incorporated outside of the European Union would require the unanimous approval of our
shareholders;
under French law, a cash merger is treated as a share purchase and would require the consent of each participating shareholder;
our shareholders have granted and may grant in the future our board of directors broad authorizations to increase our share capital or to issue
additional ordinary shares or other securities, such as warrants, to our shareholders, the public or qualified investors, including as a possible
defense following the launching of a tender offer for our shares;
our shareholders have preferential subscription rights on a pro rata basis on the future issuance by us of any additional securities for cash or a
set-off of cash debts, which rights may only be waived by the extraordinary general shareholders’ meeting (by a two-thirds majority vote) of our
shareholders or on an individual basis by each shareholder;
our board of directors has the right to appoint directors to fill a vacancy created by the resignation or death of a director, for the remaining
duration of such director’s term of office and subject to the approval by the shareholders of such appointment at the next shareholders’ meeting,
which prevents shareholders from having the sole right to fill vacancies on our board of directors;
our board of directors can be convened by our chairman or our managing director, if any, or, when no board meeting has been held for more than
two consecutive months, by directors representing at least one third of the total number of directors;
our board of directors meetings can only be regularly held if at least half of the directors attend either physically or by way of videoconference
or teleconference enabling the directors’ identification and ensuring their effective participation in the board’s decisions;
our shares are nominative or bearer, if the legislation so permits, according to the shareholder’s choice;
approval of at least a majority of the votes held by shareholders present, represented by a proxy, or voting by mail at the relevant ordinary
shareholders’ general meeting is required to remove directors with or without cause;
advance notice is required for nominations to the board of directors or for proposing matters to be acted upon at a shareholders’ meeting, except
that a vote to remove and replace a director can be proposed at any shareholders’ meeting without notice;
our bylaws can be changed in accordance with applicable laws;
the crossing of certain thresholds has to be disclosed and can impose certain obligations; see the section of this Annual Report titled “Item 10.B
—Memorandum and Articles of Association”;
transfers of shares shall comply with applicable insider trading rules and regulations and, in particular, with the Market Abuse Directive and
Regulation dated April 16, 2014; and
pursuant to French law, the sections of our bylaws relating to the number of directors and election and removal of a director from office, may
only be modified by a resolution adopted by two-thirds of the votes held by our shareholders present, represented by a proxy or voting by mail
at the meeting.
Holders of our ADSs may not be able to exercise their right to vote the ordinary shares underlying such ADSs.
Holders of our ADSs may exercise voting rights with respect to the ordinary shares represented by the ADSs only in accordance with the provisions of the
amended and restated deposit agreement. The amended and restated deposit agreement provides that, upon receipt of notice of any meeting of holders of
our ordinary shares, the depositary will fix a record date for the determination of ADS holders who shall be entitled to give instructions for the exercise of
voting rights. Upon timely receipt of notice from us, if we so request, the depositary shall distribute to the holders as of the record date (1) the notice of the
meeting or solicitation of consent or proxy sent by us and (2) a statement as to the manner in which instructions may be given by the holders.
Holders of our ADSs may instruct the depositary of their ADSs to vote the ordinary shares underlying such ADSs. Otherwise, holders of our ADSs will not
be able to exercise voting rights unless they withdraw the ordinary shares underlying the ADSs they hold. However, a holder of our ADSs may not know
about the meeting far enough in advance to withdraw those ordinary shares. If we ask for a holder of our ADSs’ instructions, the depositary, upon timely
notice from us, will notify him or her of the upcoming vote and
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arrange to deliver our voting materials to him or her. We cannot guarantee to any holder of ADSs that he or she will receive the voting materials in time to
ensure that he or she can instruct the depositary to vote his or her ordinary shares or to withdraw his or her ordinary shares so that he or she can vote them
directly. Pursuant to the terms of our amended deposit agreement, in certain situations if, in the opinion of our management, the matter is not materially
adverse to the interests of our shareholders, we may request that if the depositary does not receive timely voting instructions from a holder of ADSs, the
depositary may give a proxy to a person designated by us to vote, in its discretion, the ordinary shares underlying the unvoted ADSs, as long as the matter
is endorsed by our board. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of
carrying out voting instructions. This means that a holder of ADSs may not be able to exercise his or her right to vote, and there may be nothing he or she
can do if the ordinary shares underlying his or her ADSs are not voted as he or she requested.
The right as a holder of ADSs to participate in any future preferential subscription rights or to elect to receive dividends in shares may be limited,
which may cause dilution to the holders of our ADSs.
Under French law, if we issue additional securities for cash, current shareholders will have preferential subscription rights for these securities on a pro rata
basis unless they waive those rights at an extraordinary meeting of our shareholders (by a two-thirds majority vote) or individually by each shareholder.
However, our ADS holders in the United States will not be entitled to exercise or sell such rights unless we register the rights and the securities to which
the rights relate under the Securities Act or an exemption from the registration requirements is available. In addition, the amended and restated deposit
agreement provides that the depositary will not make rights available to holders of our ADSs unless the distribution to ADS holders of both the rights and
any related securities are either registered under the Securities Act or exempted from registration under the Securities Act. Further, if we offer holders of
our ordinary shares the option to receive dividends in either cash or shares, under the amended and restated deposit agreement the depositary may require
satisfactory assurances from us that extending the offer to holders of our ADSs does not require registration of any securities under the Securities Act
before making the option available to holders of our ADSs. We are under no obligation to file a registration statement with respect to any such rights or
securities or to endeavor to cause such a registration statement to be declared effective. Moreover, we may not be able to establish an exemption from
registration under the Securities Act. Accordingly, ADS holders may be unable to participate in our rights offerings or to elect to receive dividends in
shares and may experience dilution in their holdings. In addition, if the depositary is unable to sell rights that are not exercised or not distributed or if the
sale is not lawful or reasonably practicable, it will allow the rights to lapse, in which case holders of our ADSs will receive no value for these rights.
Holders of our ADSs may be subject to limitations on the transfer of such ADSs and the withdrawal of the underlying ordinary shares.
ADSs, which may be evidenced by ADRs, are transferable on the books of the depositary. However, the depositary may close its books at any time or from
time to time when it deems expedient in connection with the performance of its duties. The depositary may refuse to deliver, transfer or register transfers of
ADSs generally when our books or the books of the depositary are closed, or at any time if we or the depositary think it is advisable to do so because of any
requirement of law, government or governmental body, or under any provision of the amended and restated deposit agreement, or for any other reason
subject to an ADS holder’s right to cancel such ADSs and withdraw the underlying ordinary shares. Temporary delays in the cancellation of such ADSs and
withdrawal of the underlying ordinary shares may arise because the depositary has closed its transfer books or we have closed our transfer books, the
transfer of ordinary shares is blocked to permit voting at a shareholders’ meeting or we are paying a dividend on our ordinary shares. In addition, a holder
of ADSs may not be able to cancel his or her ADSs and withdraw the underlying ordinary shares when he or she owes money for fees, taxes and similar
charges and when it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to the
withdrawal of ordinary shares or other deposited securities.
As a foreign private issuer, we are exempt from a number of rules under the U.S. securities laws and are permitted to file less information with the SEC
than a U.S. company. This may limit the information available to holders of our ADSs or ordinary shares.
We are a foreign private issuer, as defined in the SEC’s rules and regulations and, consequently, we are not subject to all of the disclosure requirements
applicable to public companies organized within the United States. For example, we are exempt from certain rules under the U.S. Securities Exchange Act
of 1934, as amended, or the Exchange Act, that regulate disclosure obligations and procedural requirements related to the solicitation of proxies, consents
or authorizations applicable to a security registered under the Exchange Act, including the U.S. proxy rules under Section 14 of the Exchange Act. In
addition, our officers and directors are exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act and
related rules with respect to their purchases and sales of our securities. Moreover, while we currently make annual and semi-annual filings with respect to
our listing on Euronext Paris and expect to continue to file such reports, we are not required to file periodic reports and financial statements with the SEC
as frequently or as promptly as U.S. public companies and we are not required to file quarterly reports on
40
Form 10-Q or current reports on Form 8-K under the Exchange Act. Accordingly, there is less publicly available information concerning our company than
there would be if we were a U.S. domestic issuer.
As a foreign private issuer, we are permitted and we follow certain home country practices in relation to corporate governance matters that differ
significantly from Nasdaq’s corporate governance standards. These practices may afford less protection to shareholders than they would enjoy if we
complied fully with the corporate governance standards of the Nasdaq Global Select Market.
As a foreign private issuer listed on the Nasdaq Global Select Market, we are subject to Nasdaq’s corporate governance standards. However, Nasdaq rules
provide that foreign private issuers are permitted to follow home country corporate governance practices in lieu of Nasdaq’s corporate governance
standards as long as notification is provided to Nasdaq of the intention to take advantage of such exemptions. We currently rely on exemptions for foreign
private issuers and follow French corporate governance practices in lieu of Nasdaq’s corporate governance standards, to the extent possible. Certain
corporate governance practices in France, which is our home country, may differ significantly from Nasdaq corporate governance standards. For example,
as a French company, neither the corporate laws of France nor our bylaws require a majority of our directors to be independent and we can include non-
independent directors as members of our remuneration committee, and our independent directors are not required to hold regularly scheduled meetings at
which only independent directors are present.
We are also exempt from provisions set forth in Nasdaq rules which require an issuer to provide in its bylaws for a generally applicable quorum, and that
such quorum may not be less than one-third of the outstanding voting stock. Consistent with French law, our bylaws provide that a quorum requires the
presence of shareholders having at least (1) 20% of the shares entitled to vote in the case of an ordinary shareholders’ general meeting or at an
extraordinary shareholders’ general meeting where shareholders are voting on a capital increase by capitalization of reserves, profits or share premium, or
(2) 25% of the shares entitled to vote in the case of any other extraordinary shareholders’ general meeting.
As a foreign private issuer, we are required to comply with Rule 10A-3 of the Exchange Act, relating to audit committee composition and responsibilities.
Under French law, the audit committee may only have an advisory role and appointment of our statutory auditors, in particular, must be decided by the
shareholders at our annual meeting.
Therefore, our shareholders may be afforded less protection than they otherwise would have under Nasdaq’s corporate governance standards applicable to
U.S. domestic issuers.
We are an “emerging growth company” under the JOBS Act and are able to avail ourselves of reduced disclosure requirements applicable to emerging
growth companies, which could make our ADSs less attractive to investors.
We are an “emerging growth company,” as defined in the U.S. Jumpstart Our Business Startups Act of 2012, or the JOBS Act, and we intend to take
advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth
companies,” including not being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, or the
Sarbanes-Oxley Act, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of
any golden parachute payments not previously approved. In addition, Section 107 of the JOBS Act also provides that an emerging growth company can
take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting
standards. We have elected not to take advantage of the extended transition period provided under Section 7(a)(2)(B) of the Securities Act for complying
with new or revised accounting standards. Since IFRS makes no distinction between public and private companies for purposes of compliance with new or
revised accounting standards, the requirements for our compliance as a private company and as a public company are the same.
We cannot predict if holders of our ADSs will find the ADSs less attractive because we may rely on these exemptions. If some holders find the ADSs less
attractive as a result, there may be a less active trading market for the ADSs and the price of the ADSs may be more volatile. We may take advantage of
these reporting exemptions until we are no longer an emerging growth company. We will remain an emerging growth company until the earliest of (i) the
last day of the fiscal year in which we have total annual gross revenue of $1.07 billion or more; (ii) December 31, 2022, which is the last day of our fiscal
year following the fifth anniversary of the date of the completion of our November 2017 global offering; (iii) the date on which we have issued more than
$1.0 billion in nonconvertible debt during the previous three years; and (iv) the date on which we are deemed to be a large accelerated filer under the rules
of the SEC.
We may lose our foreign private issuer status in the future, which could result in significant additional cost and expense.
While we currently qualify as a foreign private issuer, the determination of foreign private issuer status is made annually on the last business day of our
most recently completed second fiscal quarter and, accordingly, the next determination will be made with respect
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to us on June 30, 2021. In the future, we would lose our foreign private issuer status if we fail to meet the requirements necessary to maintain our foreign
private issuer status as of the relevant determination date. We will remain a foreign private issuer until such time that more than 50% of our outstanding
voting securities are held by U.S. residents and any of the following three circumstances applies: (i) the majority of our executive officers or directors are
U.S. citizens or residents; (ii) more than 50% of our assets are located in the United States; or (iii) our business is administered principally in the United
States.
The regulatory and compliance costs to us under U.S. securities laws as a U.S. domestic issuer would likely be significantly more than costs we incur as a
foreign private issuer. If we lost our foreign private issuer status, we would be required to file periodic reports and registration statements on U.S. domestic
issuer forms with the SEC, which are more detailed and extensive in certain respects than the forms available to a foreign private issuer. We would be
required under current SEC rules to prepare our financial statements in accordance with U.S. GAAP, rather than IFRS, and modify certain of our policies to
comply with corporate governance practices associated with U.S. domestic issuers. Such conversion of our financial statements to U.S. GAAP would
involve significant time and cost. In addition, we would lose our ability to rely upon exemptions from certain corporate governance requirements on U.S.
stock exchanges that are available to foreign private issuers such as the ones described herein and exemptions from procedural requirements related to the
solicitation of proxies.
U.S. holders of our ADSs or ordinary shares may suffer adverse tax consequences if we are characterized as a passive foreign investment company.
Based on the composition of our gross income, assets, activities and market capitalization in 2020, the nature of our business and due to fluctuations in our
stock price, we believe that we may have been characterized as a passive foreign investment company, or PFIC, for our taxable year ending December 31,
2020. However, because our PFIC status is subject to a number of uncertainties and it is very early in the year, neither we nor our tax advisors can provide
any assurances with respect to our PFIC status for the prior, current, or any future taxable year. Moreover, because the calculation of the value of our assets
may be based in part on the value of our ADSs, the value of which may fluctuate considerably, our PFIC status may change from year to year and is
difficult to predict. A separate determination must be made after the close of each taxable year as to whether we are a PFIC for that year. As a result, our
PFIC status may change from year to year and we have not yet made any determination as to our expected PFIC status for the current year. Our status as a
PFIC will depend on the composition of our income (including whether we receive certain non-refundable grants or subsidies and whether such amounts
and reimbursements of certain refundable research tax credits will constitute gross income for purposes of the PFIC income test) and the composition and
value of our assets, which may be determined in large part by reference to the market value of the ADSs and our ordinary shares, which may be volatile,
from time to time. Our status may also depend, in part, on how quickly we utilize the cash proceeds from our global offerings in our business. Our U.S.
counsel expresses no opinion regarding our conclusions or our expectations regarding our PFIC status.
Generally, if, for any taxable year, at least 75% of our gross income is passive income, or at least 50% of the value of our assets is attributable to assets that
produce passive income or are held for the production of passive income, including cash, we will be characterized as a PFIC for U.S. federal income tax
purposes. For purposes of these tests, passive income includes dividends, allocations of income with respect to any partnership, interest, and gains from the
sale or exchange of investment property and rents and royalties other than rents and royalties which are received from unrelated parties in connection with
the active conduct of a trade or business. If we are characterized as a PFIC, U.S. holders of the ADSs may suffer adverse tax consequences, including
having gains realized on the sale of the ADSs treated as ordinary income, rather than capital gain, the loss of the preferential rate applicable to dividends
received on the ADSs by individuals who are U.S. holders, and having interest charges apply to distributions by us and the proceeds of sales of the ADSs.
See “Item 10. E. Taxation—Material U.S. Federal Income Tax Considerations—Passive Foreign Investment Company Considerations.”
If a U.S. holder is treated as owning at least 10% of our ADSs or ordinary shares, such holder may be subject to adverse U.S. federal income tax
consequences.
If a U.S. holder (as defined below under “Item 10. E. Taxation—Material U.S. Federal Income Tax Considerations”) is treated as owning (directly,
indirectly or constructively) at least 10% of the value or voting power of our ADSs or ordinary shares, such U.S. holder will be treated as a “United States
shareholder” with respect to each “controlled foreign corporation” in our group (if any). Because our group includes at least one U.S. subsidiary
(ERYTECH Pharma, Inc.), if we were to form or acquire any non-U.S. subsidiaries in the future, they may be treated as controlled foreign corporations. A
U.S. shareholder of a controlled foreign corporation will be required to annually report and include in its U.S. taxable income its pro rata share of “Subpart
F income,” “global intangible low-taxed income” and investments in U.S. property by the controlled foreign corporations, regardless of whether we make
any distributions. An individual that is a U.S. shareholder with respect to a controlled foreign corporation generally would not be allowed certain tax
deductions or foreign tax credits that would be allowed to a U.S. shareholder that is a U.S. corporation. We cannot provide any assurances that we will
assist investors in determining whether any non-U.S. subsidiaries that we may form or acquire in the future would be treated as a controlled foreign
corporation or whether such investor would be treated as a U.S. shareholder with respect to any of such controlled foreign corporations. Further, we cannot
provide any assurances that we will furnish to any U.S.
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shareholder the information that may be necessary to comply with the reporting and tax paying obligations discussed above. Failure to comply with these
reporting and tax paying obligations may subject you to significant monetary penalties and may prevent the statute of limitations with respect to your U.S.
federal income tax return for the year for which reporting was due from starting. U.S. holders should consult their tax advisors regarding the potential
application of these rules to their investment in our ADSs or ordinary shares.
We have identified material weaknesses in our internal control over financial reporting. If we are unable to remediate these material weaknesses, or if
we experience additional material weaknesses in the future or otherwise fail to maintain an effective system of internal controls, we may not be able to
accurately or timely report our financial condition or results of operations, which may adversely affect investor confidence in us and, as a result, the
trading price of our ADSs or ordinary shares.
We have identified two material weaknesses in our internal control over financial reporting as of December 31, 2018, which have not been remediated as of
December 31, 2020. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a
reasonable possibility that a material misstatement of our financial statements will not be prevented or detected on a timely basis.
If we are unable to remediate these material weaknesses, or if we experience additional material weaknesses in the future or otherwise fail to maintain an
effective system of internal controls, we may not be able to accurately or timely report our financial condition or results of operations, which may adversely
affect investor confidence in us and, as a result, the value of our securities.
In connection with the preparation of our financial results for the year ended December 31, 2018, our management concluded that, as of December 31,
2018, our internal control over financial reporting was not effective as a result of two material weaknesses in our internal control over financial reporting
related to: (i) the monitoring of research and development projects, as controls designed to track actual costs incurred against invoices received were not
operating at a sufficient level of precision due to insufficient personnel with an appropriate level of knowledge and training in internal control over complex
processes; and (ii) the lack of sufficiently developed and documented internal controls for our U.S. subsidiary. We believe these two material weaknesses
concerning (i) the monitoring of research and development projects and (ii) the lack of sufficiently developed and documented internal controls for our U.S.
subsidiary were not fully remediated as of December 31, 2020.
During the year 2020, we have deployed the following remediation efforts focused on improving our internal control over financial reporting and to
specifically address the control deficiencies that led to our material weaknesses:
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•
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hire a vendor coordinator to reinforce the team dedicated to the monitoring of research and development projects for which process level controls
have not been considered as effective in 2019;
strengthen the controls over our research and development financial information to detect and correct errors and some of which are still in the
process of being implemented;
analyze the existing segregation of duties environment implemented in our U.S. subsidiary, identify potential organizational conflicts due to the
size of the team and when possible define mitigating controls;
• On-going design and implementation of effective controls over certain information technology (“IT”) systems relevant to the preparation of the
consolidated financial statements, with a specific focus on users’ access controls.
We plan to continue to deploy the following remediation efforts focused on improving our internal control over financial reporting and to specifically
address the control deficiencies that led to our material weaknesses:
•
•
•
reinforce our U.S. finance team by the recruitment of a new staff accountant to ensure a proper segregation of duties at an operational level.
keep implementing effective controls over certain information technology (“IT”) systems relevant to the preparation of the consolidated financial
statements.
finalize the implementation and the rolling out of the controls over our research and development financial information to detect and correct
errors.
We believe that these activities will further support the remediation of these material weaknesses. However, we cannot assure you that the measures we
have taken to date, and actions we may take in the future, will be sufficient to remediate the control deficiencies that led to our material weaknesses in our
internal control over financial reporting or that they will prevent or avoid potential future material weaknesses. In addition, our independent registered
public accounting firm has not performed an evaluation of our internal control over financial reporting in accordance with the provisions of the Sarbanes-
Oxley Act because no such evaluation has been
43
required. Had our independent registered public accounting firm performed an evaluation of our internal control over financial reporting in accordance with
the provisions of the Sarbanes-Oxley Act, additional material weaknesses may have been identified. If we are unable to successfully remediate our existing
or any future material weaknesses in our internal control over financial reporting, or identify any additional material weaknesses, the accuracy and timing
of our financial reporting may be adversely affected, we may be unable to maintain compliance with securities law requirements regarding timely filing of
reports in addition to applicable stock exchange listing requirements, investors may lose confidence in our financial reporting, and the trading price of our
ADSs or ordinary shares may decline as a result.
If we fail to establish and maintain proper internal controls, our ability to produce accurate financial statements or comply with applicable regulations
could be impaired.
We are required, pursuant to Section 404(a) of the Sarbanes-Oxley Act, or Section 404(a), to furnish a report by management on, among other things the
effectiveness of our internal control over financial reporting on an annual basis. This assessment includes disclosure of any material weaknesses identified
by our management in our internal control over financial reporting. In connection with the preparation of our financial results for the year ended December
31, 2020, we identified two material weaknesses in our internal control over financial reporting. Our Management’s Report on Internal Control over
Financial Reporting included in this Annual Report describes these material weaknesses and includes our conclusion that our internal controls were not
effective as of the end of the period covered by this Annual Report. While we have established certain procedures and control over our financial reporting
processes, including initiating remediation efforts with respect to the material weaknesses, we cannot assure you that these efforts will prevent restatements
of our financial statements in the future. Although Section 404(b) of the Sarbanes-Oxley Act, or Section 404(b), requires our independent registered public
accounting firm to issue an annual report that addresses the effectiveness of our internal control over financial reporting, we have opted to rely on the
exemptions provided in the JOBS Act, and consequently will not be required to comply with SEC rules that implement Section 404(b) until such time as
we are no longer an EGC.
The presence of material weaknesses could result in financial statement errors which, in turn, could lead to errors in our financial reports, delays in our
financial reporting, which could require us to restate our operating results or our auditors may be required to issue a qualified audit report. We might not
identify one or more material weaknesses in our internal controls in connection with evaluating our compliance with Section 404(a). In order to maintain
and improve the effectiveness of our disclosure controls and procedures and internal control over financial reporting, we will need to expend significant
resources and provide significant management oversight. Implementing any appropriate changes to our internal control may require specific compliance
training of our directors and employees, entail substantial costs in order to modify our existing accounting systems, take a significant period of time to
complete and divert management’s attention from other business concerns. These changes may not, however, be effective in achieving and maintaining the
adequacy of our internal control.
If either we are unable to conclude that we have effective internal control over financial reporting, as is the case currently, or, at the appropriate time, our
independent auditors are unwilling or unable to provide us with an unqualified report on the effectiveness of our internal control over financial reporting as
required by Section 404(b), investors may lose confidence in the accuracy or completeness of our financial reports, the price of our ADSs or ordinary
shares could decline and we may be subject to litigation, sanctions or investigations by regulatory authorities, including the SEC and Nasdaq. Failure to
remediate any material weakness in our internal control over financial reporting, or to maintain other effective control systems required of public
companies, could also restrict our future access to the capital markets. In addition, if we are unable to meet the requirements of Section 404, we may not be
able to remain listed on Nasdaq.
Item 4. Information on the Company.
4.A.History and Development of the Company
Our legal and commercial name is ERYTECH Pharma S.A. We were incorporated as a société par actions simplifiée, or S.A.S., under the laws of the
French Republic on October 26, 2004 and became a société anonyme, or S.A., on September 29, 2005. We are registered at the Register of Commerce and
Companies of Lyon (Registre du commerce et des sociétés) under the number 479 560 013. In April 2014, we incorporated our wholly-owned U.S.
subsidiary, ERYTECH Pharma, Inc. In February 2016, we opened our U.S. office in Cambridge, Massachusetts and in 2018, we entered into a lease
agreement for a U.S. manufacturing facility in Princeton, New Jersey, United States, which has been operational since the fourth quarter of 2019.
Our principal executive offices are located at 60 Avenue Rockefeller, 69008 Lyon, France. Our telephone number at our principal executive offices is +33 4
78 74 44 38. Our agent for service of process in the United States is ERYTECH Pharma, Inc. Our website address is www.erytech.com. The reference to
our website is an inactive textual reference only and information contained in, or that can be accessed through, our website or any other website cited
herein is not part of this Annual Report. The U.S. Securities and Exchange Commission maintains a website (www.sec.gov) that contains reports, proxy
and information statements and other information regarding registrants, such as ERYTECH, that file electronically with the SEC. We expect our capital
expenditures to
44
increase in absolute terms in the near term as we continue to advance our research and development programs, prepare for commercialization, if approved,
and grow our operations. For the near future, these investments will be located in France where our corporate headquarters and our primary production
facility are currently located, and in the United States for our secondary production facility.
Our actual capital expenditures for the years ended December 31, 2018, 2019 and 2020 amounted to €14.2 million, €12.1 million and €0.4 million,
respectively. These capital expenditures were related primarily to the buildup of our fixed assets for our pharmaceutical facility and laboratory and to a
lesser extent to the purchase of office and computer equipment. We do not capitalize clinical research and development costs until we obtain marketing
authorization for a product candidate.
4.B.Business Overview
4.B.1. Overview
We are a clinical-stage biopharmaceutical company developing innovative therapies for severe forms of cancer and orphan diseases. Leveraging our
proprietary ERYCAPS platform, which uses a novel technology to encapsulate therapeutic drug substances inside erythrocytes, or red blood cells, or RBC.
We are developing a pipeline of product candidates for patients with high unmet medical needs. Our lead product candidate eryaspase, which we also refer
to as GRASPA, targets the metabolism of cancer cells by depriving the cells of asparagine, an amino acid necessary for their survival and critical in
maintaining the cells’ rapid growth rate. We are currently developing eryaspase for the treatment of severe tumors, including pancreatic cancer, acute
lymphoblastic leukemia, or ALL, and triple negative breast cancer, or TNBC.
In 2018, we initiated a pivotal Phase 3 clinical trial of eryaspase for the treatment of second-line advanced pancreatic cancer patients. Patient enrollment in
this trial, which we refer to as the TRYbeCA-1 trial, began in September 2018 in Europe. The U.S. Food and Drug Administration, or FDA, approved our
Investigational New Drug, or IND, application in May 2019, and the TRYbeCA-1 trial opened for patient enrollment in the United States in October 2019.
We have obtained clinical trial authorizations in the United States and from 11 European countries and have conducted the clinical trial at close to 90
clinical sites in Europe and in the United States. In April 2020, the FDA granted eryaspase Fast Track Designation as a potential second-line treatment for
patients with metastatic pancreatic cancer. Eryaspase has also received orphan drug designation, or ODD, for pancreatic cancer in both the United States
and Europe. We completed the patient enrollment in the TRYbeCA-1 trial in December 2020. A total of 512 patients participated in the trial, slightly above
the target enrollment of 482 patients. The trial recently accrued the required number of events for the planned interim superiority analysis, to be performed
by an Independent Data Monitoring Committee, or IDMC. We published the results from the interim superiority analysis from the TRYbeCA-1 trial on
February 8, 2021. Based on such analysis, the trial will continue toward a final analysis, expected in the fourth quarter 2021.
We are also supporting a proof-of-concept investigator-sponsored, or IST, Phase 1 clinical trial, which we refer to as the rESPECT trial, evaluating the
safety and tolerability of eryaspase in combination with FOLFIRINOX for the treatment of first-line pancreatic cancer patients, as well as in other
indications of pancreatic cancer. The Georgetown Lombardi Comprehensive Cancer Center is the sponsor of this trial. We announced the enrollment of the
first patient in this trial in January 2021. Two more patients were enrolled in February, completing the first treatment cohort. The trial is expected to
determine the maximum tolerated dose by the end of 2021.
We launched a proof-of-concept Phase 2 clinical trial in TNBC in Europe, which we refer to as the TRYbeCA-2 trial, in the fourth quarter of 2018. The
trial is enrolling patients in three European countries. We expect to report first results from the TRYbeCA-2 trial in the fourth quarter of 2021.
We are also supporting a Phase 2 clinical trial initiated and sponsored by investigators of the Nordic Society of Pediatric Hematology and Oncology, or
NOPHO. This trial is evaluating the safety and pharmacological profile of eryaspase in ALL patients, who developed hypersensitivity reactions to
pegylated L-asparaginase. In December 2020, positive results from the trial were presented at the American Society of Hematology 2020 Annual Meeting.
The trial was conducted at 21 clinical sites in the Nordic and Baltic countries of Europe and enrolled 55 patients. The primary objective of the trial was
enzyme activity of eryaspase. The endpoint was met. We are in discussions with the FDA to evaluate the possibility of pursuing regulatory approval for
eryaspase in the United States in this indication based on this investigator sponsored Phase 2 trial. We expect to provide an update in the first half of 2021.
If the potential for an approval can be confirmed, we anticipate filing a BLA in the second half of 2021.
In addition to the encapsulation of L-asparaginase, we believe that our ERYCAPS platform has broad potential application and can be used to encapsulate a
wide range of therapeutic agents for which long-circulating therapeutic activity or rapid and specific targeting is desired. For example, we developed
erymethionase, a preclinical product candidate which encapsulates methionine-γ-lyase in RBC and is designed to target the amino acid metabolism of
cancer cells and induce tumor starvation. We intend to continue to work on the development of erymethionase as well as potential other therapeutic
strategies based on methionine depletion, depending on financial resources and business strategy.We have also developed two preclinical programs aimed
at maximizing the value creation potential of
45
our ERYCAPS program, which we believe may result in attractive partnering opportunities: enzyme replacement and immune modulation. As part of our
value creation strategy, in June 2019, we entered into a collaboration with SQZ Biotechnologies, a cell therapy company developing novel treatments in
multiple therapeutic areas, to focus on the development of novel red blood cell-based therapeutics for the treatment of immuno-oncology and tolerance
induction.
Corporate Information
We were incorporated in 2004. In May 2013, we completed the initial public offering of our ordinary shares on Euronext Paris. In November 2017, we
completed a global public offering, consisting of a U.S. initial public offering of American Depositary Shares, or ADSs, each representing one ordinary
share, and a concurrent private placement in Europe and other countries outside of the United States and Canada of our ordinary shares. Our ordinary
shares are listed on Euronext Paris under the ticker symbol “ERYP” and our ADSs are listed on the Nasdaq Global Select Market under the symbol
“ERYP.”
4.B.2. Our Strategy
Our mission is to help patients live better, longer. Our vision is to be the leader in red blood-cell based therapeutics to treat severe forms of cancer and
orphan diseases. The key elements of our strategy to achieve this goal include the following:
Advance the development of eryaspase for the treatment of pancreatic cancer Following positive Phase 2b clinical trial results regarding eryaspase as
second-line treatment of advanced pancreatic cancer, we launched TRYbeCA-1, a pivotal Phase 3 clinical trial of eryaspase, also as a second-line treatment
for advanced pancreatic cancer, in Europe and in the United States. Patient enrollment began in September 2018 and was completed in December 2020. A
total of 512 patients participated in the trial. An interim superiority analysis was conducted by an independent data monitoring committee and announced
on February 8, 2021. Based on such analysis, the trial will continue toward a final analysis, expected in the fourth quarter 2021. In view of broadening the
indication scope of eryaspase to other pancreatic cancer settings such as first-line metastatic and locally advanced pancreatic cancer, we are supporting a
proof-of-concept investigator-sponsored Phase 1 clinical trial, evaluating the safety eryaspase in combination with FOLFIRINOX. The Georgetown
Lombardi Comprehensive Cancer Center is the sponsor of the trial. This rESPECT trial is expected to determine the maximum tolerated dose by the end of
2021.
Develop eryaspase for the treatment of other oncology indications Based on the results of scientific publications and preclinical studies as well as our
clinical trials to date, we believe that targeting the asparagine metabolism of cancer cells could potentially slow down or halt the growth of different tumor
types. Based on these results, we are conducting other clinical trials and are planning to seek regulatory authorizations for eryaspase for the treatment of
selected oncology indications beyond pancreatic cancer. Current development tracks are in:
• ALL: Following positive results in December 2020 of a Phase 2 clinical trial initiated and sponsored by NOPHO, we are currently evaluating
the possibility of pursuing regulatory approval in the United States based on this investigator sponsored Phase 2 trial. We are in discussions with
the FDA regarding our planned BLA submission of eryaspase for the treatment ALL and anticipate to provide an update in the first half of 2021.
If the potential for an approval can be confirmed, we expect filing a BLA in the second half of 2021.
•
TNBC: we continue our Phase 2 proof-of-concept clinical trial initiated in Europe in the fourth quarter of 2018. The trial is now enrolling
patients in three European countries and we expect to report first results in the fourth quarter of 2021.
Leverage our ERYCAPS platform to develop additional innovative and novel red blood-cell based therapeutics targeting cancer and orphan diseases In
addition to encapsulating L-asparaginase, the active ingredient in eryaspase, we plan to leverage the broad applicability of our ERYCAPS platform to
develop additional product candidates that use other therapeutic drug substances. We developed at a preclinical stage erymethionase, methionine-γ-lyase, or
MGL, encapsulated in red blood cells, to target methionine-dependent cancer cells and induce tumor starvation. We intend to continue to work on the
development of our methionine depletion program in the future, subject to future financial resources and business strategy, but are not currently devoting
significant financial resources due to other strategic priorities. We are also evaluating other cancer metabolism targeting enzymes such as arginine-
deiminase. In addition to our developments in cancer metabolism, we are also evaluating other therapeutic approaches such as cancer immunotherapy and
enzyme replacement therapies for metabolic diseases in view of potentially establishing partnering options. To support this strategy, we intend to continue
to seek robust worldwide intellectual property protection for our ERYCAPS platform and our resulting product candidates.
Execute on research and development and commercialization opportunities that maximize the value of our proprietary ERYCAPS platform We seek to
maximize shareholder value from our proprietary ERYCAPS platform technology through a combination of in-house development and well-selected
partnering opportunities in development and commercialization. In some instances, we may elect to continue development and commercialization activities
through the expansion of our in-house capabilities, but we will also
46
evaluate and pursue collaborative arrangements with third parties for the development and distribution of our product candidates for specified indications
and in specified territories where appropriate. For example, in June 2019, we entered into a collaboration with SQZ Biotechnologies for the immune
modulation program. We may also explore co-development or out-licenses of our platform technology to third parties and the creation of spin-out
companies. As we move our product candidates through development toward regulatory approval in the United States and Europe, we will evaluate several
options for each product candidate’s commercialization strategy. These options include building our own internal sales force and distribution units or
entering into collaborations with third parties for the distribution and marketing of approved products.
4.B.3. Our ERYCAPS Platform Technology
Our ERYCAPS platform uses our proprietary technology to entrap active drug substances inside red blood cells using reversible hypotonic and hypertonic
osmotic stress. Our platform technology uses transfusion-grade, standard packed red blood cells of all four blood groups (O, A, B and AB) from blood
donors with a specific blood type which we obtain from blood banks. We match the red blood cells used to the blood type of the patient receiving
treatment. To allow the therapeutic compounds to enter into the red blood cells, we subject the red blood cells to a hypotonic solution. This causes swelling
of cells and opening of pores in the cellular membrane. At this time, therapeutic molecules can enter the red blood cells. Once the desired concentration of
molecules is reached inside the red blood cells, we subject the red blood cells to a hypertonic solution to restore the osmotic pressure to normal. This step
causes water to flow out of the cell and the pores to close, rendering the cellular membrane impermeable to molecules above a specific size, including the
molecules that have been trapped inside the cell.
The extent to which a red blood cell can swell, known as osmotic fragility, is not uniform and varies between packages of red blood cells. When we obtain
a package of red blood cells from a blood bank, we measure a number of key hematological parameters, including the osmotic fragility of the particular
sample. Based on the level of osmotic fragility measured, we are able to calculate the specific amount of osmotic pressure to apply in order to achieve the
desired concentration of drug substance in each production batch. This patent-protected process allows us to reduce variations in the amount of drug
substance to be encapsulated, which ensures that quantifiable amounts of drug substance can be captured in each batch. Our expertise in understanding
osmotic fragility and optimizing the red blood cell encapsulation parameters is the cornerstone of our proprietary ERYCAPS platform.
We believe that our ERYCAPS platform technology is an innovative approach that offers several key potential benefits:
•
Prolonged duration of activity. Red blood cells are biocompatible carriers that have a half-life of approximately one month in the body, and this
duration of activity appears not to be significantly affected by our proprietary encapsulation process. This long half-life, coupled with the
protection from the cellular membrane, allows encapsulated therapeutic drug substances to remain in the body longer, thereby increasing the
duration of their therapeutic activity and their potential efficacy with lower dosages and fewer injections. In the case of L-asparaginase,
encapsulation of red blood cells has been shown in our clinical trials to extend the half-life of free-form L-asparaginase from one day to
approximately two to three weeks.
• Decreased risk of side effects. The red blood cell membrane protects the body from toxicities associated with the trapped drug substance, which
reduces the potential for adverse side effects from the drug.
• High reproducibility with rapid turnaround on commercial scale. Our encapsulation process is automated and is designed to produce batches
of loaded red blood cells in a highly reproducible, reliable and rapid manner. At our cGMP-certified production facilities, the process for
delivering eryaspase to patients typically takes approximately 24 hours from the start of production to delivery of the product candidate to the
hospital. We have produced over 5,100 bags of eryaspase to date for use in clinical trials, and we estimate our current production facilities,
including our expanded Lyon facilities and our newly constructed U.S. facility in Princeton, New Jersey, which has been operational since the
fourth quarter of 2019 will be sufficient to establish supply for our ongoing Phase 2 and Phase 3 clinical trials, as well as anticipated initial
commercial needs of eryaspase, if we receive the appropriate marketing authorizations.
•
•
Stability and ease of administration. After manufacturing and release of the product, eryaspase has shown to remain stable for five days in
refrigeration followed by six hours at room temperature. This allows efficient transportation to the hospitals where the patients are treated, as
well as flexibility in the timing of the administration to the patients.
Broad applicability. Our initial efforts have focused on encapsulating enzymes, such as L-asparaginase, that deplete nutrients necessary for the
growth and proliferation of tumor cells, resulting in their starvation and death. Based on our preclinical studies and clinical experience to date,
we believe that a variety of additional therapeutic molecules can be encapsulated within red blood cells to induce tumor starvation, both for
blood cancers and solid tumors, and to develop cancer immunotherapies and enzyme replacement therapies.
Our intellectual property portfolio contains issued patents and patent applications in the United States and foreign countries, including 15 patent families
directed to our production process, our ERYCAPS platform, our product candidates, methods of use and/or
®
47
treatment, and related diagnostic tests. Our core patent covers eryaspase in the United States until the end of 2029, with potential extension to the end of
2034, and in Europe until 2025, with a potential extension to 2030. We have exclusively in-licensed one patent family from Radboud University in the
Netherlands relating to synergistic combinations of amino acid depletion agents.
4.B.4. Our Pipeline
4.B.5. Our Lead Product Candidate Eryaspase—A Unique Approach to Cancer Treatment
Eryaspase, our first product candidate developed using our proprietary ERYCAPS platform consists of the enzyme L-asparaginase encapsulated inside
erythrocytes, or red blood cells. L-asparaginase breaks down asparagine, a naturally occurring amino acid, into L-aspartic acid and ammonia. Asparagine is
produced by healthy cells in the body for their own use in protein synthesis. Cancer cells also need asparagine to grow and proliferate, even more than
normal cells, but most cancer cells cannot produce enough asparagine and must rely on circulating asparagine to survive. Injection of L-asparaginase, either
by intravenous or intramuscular modes of administration, can lower asparagine levels throughout the body, thereby depriving cancer cells of a key nutrient
and causing them to starve and ultimately die. The use of L-asparaginase to deplete asparagine is a well-established treatment for ALL patients, and in
particular, pediatric ALL patients. However, important side effects including allergies, coagulation disorders, pancreatic and hepatic toxicities can limit
treatment compliance, particularly in adults, limiting the potential use of current, non-encapsulated L-asparaginases beyond ALL. We believe that
encapsulating L-asparaginase in red blood cells, utilizing our proprietary ERYCAPS platform, reduce the side effects of L-asparaginase, which we believe
broadens the potential use of L-asparaginase outside the pediatric ALL setting, including for the treatment of aggressive solid and liquid tumors. Eryaspase
has been administered to more than 630 patients in clinical trials and compassionate use programs to date.
Eryaspase is administered by intravenous infusion. Once administered, the red blood cells containing L-asparaginase circulate in the bloodstream and
remove asparagine mainly through a mechanism of active transportation of asparagine into the red blood cells. Active transporters for asparagine are
present in the membrane of red blood cells. They cause normal red blood cells to contain two to three times more asparagine within the cell than in the
surrounding plasma. When L-asparaginase is encapsulated in the red blood cells, it causes the inner concentration of asparagine to decrease, which
activates the natural mechanism of the red blood cell to draw asparagine circulating in the blood plasma into the red blood cell. This asparagine is rapidly
degraded inside the red blood cells as well. When maintained long enough, this pumping and degradation activity leads to a systemic depletion of
asparagine levels in the bloodstream without releasing L-asparaginase into the bloodstream. The red blood cell membrane also protects the encapsulated L-
asparaginase from antibodies present in the patient’s blood that would substantially lessen or neutralize the enzyme’s activity or cause
48
allergic reactions. As a result, the enzyme can remain active and potentially effective in the red blood cell for a longer period of time, while at the same
time reducing the potential for toxicity and related side effects. Our research indicates that the encapsulation process does not significantly alter the life
span of the red blood cell.
The following diagram illustrates the main mode of action of eryaspase:
Clinical Development of Eryaspase (GRASPA)
The table below sets forth summary information regarding our clinical trials of eryaspase conducted to date.
Completed clinical trials
PHASE
TRIAL
REFERENCE
Metastatic Pancreatic Cancer
# OF
PATIENTS
ENROLLED
AGE
INDICATION
PRIMARY
ENDPOINTS
DOSE
REGION
DESIGN
2b
1
GRASPANC
2013-03
141
18+
Second-line patients
with metastatic
pancreatic
adenocarcinoma
• Efficacy (progression-
free survival or overall
survival) and safety of
eryaspase in
combination with
chemotherapy
100 U/kg
EU
Randomized,
open label,
controlled
GRASPANC
2008-02
12
18+
Second-line
• Determination of the
maximum tolerated
dose (MTD) and
recommended Phase 2
dose
25 /
50 /
100 /
150
U/kg
EU
Non- randomized,
open label
Acute Lymphoblastic Leukemia
2/3
GRASPALL
2009-06
2a
1/2
1/2
1
GRAALL SA2-
2008
GRASPALL
2005-01
GRASPALL
2012-09
GRASPALL
2012-10-EAP
80
1 to 55
Relapsed/refractory • Mean duration (days)
of ASNase activity
>100 U/L
• Incidence of allergic
reactions (induction
phase)
30
55+
First-line
• Efficacy and safety of
eryaspase with
combination therapy
and determination of
the MTD in elderly
24
14
1 to 55
Relapsed/refractory • Determination of the
MTD and
recommended Phase 2
dose
18+
First-line
• Determination of the
18
Up to 55 At risk - all lines
MTD and
recommended Phase 3
dose
• Safety of eryaspase in
combination with
polychemotherapy
150 U/
kg
EU
Randomized,
open label
EU
EU
US
50 /
100 /
150 U/kg
50 /
100 /
150 U/
kg
50 /
100 /
150 /
200 U/
kg
Non-randomized,
open label
Randomized,
open label
Non-
randomized,
open label
150 U/kg
EU
Non-randomized,
open label
PHASE
TRIAL
REFERENCE
Acute Myeloid Leukemia
# OF
PATIENTS
ENROLLED
AGE
INDICATION
PRIMARY
ENDPOINTS
DOSE
REGION
DESIGN
2b
ENFORCE 1
123
65 to 85
First-line, unfit
• Overall survival
100 U/ kg
EU
Multicenter, open
label,
randomized,
controlled
On going clinical trials
PHASE
TRIAL
REFERENCE
Solid Tumors
# OF
PATIENTS
PLANNED
AGE
INDICATION
PRIMARY
ENDPOINTS
DOSE
REGION
DESIGN
1
3
2
STUDY00002008
(rESPECt)
12-18
(max 21)
18+
TRYbeCA-1
512*
18+
TRYbeCA-2
64
18+
First line patients
with locally
advanced and
metastatic
pancreatic cancer
Second-line patients
with metastatic
pancreatic
adenocarcinoma
Metastatic or locally
recurrent Triple-
Negative Breast
Cancer / 1st line
25 / 50 / 75 /
100 U/Kg
US
Single arm, Open
label
Determination of the
MTD, tolerability and
safety of Eryaspase in
combination with the
dose-modified
FOLFIRINOX
• Overall survival
100 U/kg
EU/US
• Objective response
100 U/kg
EU
rate determined by an
independent
radiological review
Open label,
randomized
Open label,
randomized 1:1
(chemotherapy ±
eryaspase)
Acute Lymphoblastic Leukemia
2
NOPHO
55*
1 to 45
Second-line post
PEG-asparaginase
• PK / PD, safety and
immunogenicity
150 U/kg
EU
Single arm, open
label
*
Enrollment for these clinical trials is completed at the date of this Annual Report. The figures represent the number of patients effectively enrolled.
Eryaspase for the Treatment of Pancreatic Cancer and Other Solid Tumors
Researchers have investigated the potential to target asparagine metabolism in solid tumor indications, and based on the observation that many solid
tumors, like lymphoblasts, lack the asparagine synthetase, or ASNS, enzyme, a rationale for the use of asparaginase in solid tumors exists. L-asparaginase
has been shown to have growth inhibitory effects in different solid tumor cell lines and in xenograft models. The toxicity profile of existing asparaginase
products has, however, been prohibitive for their use in patients. Historically, Phase 1 clinical trials conducted by researchers have been modified or halted
because of excess toxicity.
Background and Potential for L-asparaginase as a Treatment for Pancreatic Cancer
We estimate there are approximately 150,000 new cases of pancreatic cancer diagnosed each year in Europe and the United States. Pancreatic cancer is a
particularly aggressive cancer, with a five-year survival rate of less than 10%, and is one of the fastest growing cancer indications. According to estimates
published by the American Cancer Society, pancreatic cancer is currently the fourth largest
cause of cancer deaths in the United States. According to an article published in the scientific journal Cancer Research in 2014, pancreatic cancer is
projected to surpass colon and breast cancer to become the second largest cause of cancer deaths by 2030. The following table summarizes the number of
estimated cases and deaths in the United States in 2017 and 2030 in various solid tumor indications, as well as the five-year survival rate of each type of
cancer for the years 2006 through 2012.
INDICATION
Lung and bronchus
Pancreas
Liver
Colon and rectum
Breast
Prostate
Bladder
Brain and other nervous system
Oesophagus
Kidney
Ovary
(1)
Refers to female survival rate.
CASES (U.S., IN
THOUSANDS)
DEATHS (U.S., IN
THOUSANDS)
2017
2030
2017
2030
5-YEAR
SURVIVAL
RATE
223
54
41
135
255
161
79
24
17
64
22
225
88
83
114
294
228
113
N/A
N/A
69
N/A
156
156
43
29
50
41
27
17
17
16
14
14
63
51
47
37
24
22
17
17
16
14
19 %
9
18
66
91(1)
99
79
35
21
75
46
Completed Phase 1 Clinical Trial of Eryaspase for the Treatment of Pancreatic Cancer
In 2011, we completed an open-label Phase 1 clinical trial in 12 patients with pancreatic cancer at four sites in France. The enrolled patients were separated
into four cohorts of three subjects each. Eryaspase was administered as one injection of four different doses, 25 Units, or U, per kilogram, 50 U per
kilogram, 100 U per kilogram or 150 U per kilogram. The primary endpoint of the trial was the determination of the maximum tolerated dose. Secondary
endpoints included assessments of safety and exploratory measures of efficacy. No dose-limiting toxicities were reported, even at the highest dose
administered in the trial.
Phase 2b Clinical Trial for Eryaspase for the Treatment of Second-Line Metastatic Pancreatic Cancer
In 2014, we commenced a multi-center, open-label, randomized Phase 2b clinical trial to evaluate the efficacy of eryaspase as a second-line treatment for
patients with metastatic pancreatic cancer. The trial was conducted at 16 sites in France and performed in collaboration with the Groupe Coopérateur
Multidisciplinaire en Oncologie. Professor Pascal Hammel, a gastroenterologist-oncologist at Beaujon Hospital in Paris, was the principal investigator of
the trial. The original recruitment objective was 90 patients. In February 2016, we elected to continue to enroll patients to increase the statistical power of
the trial. In September 2016, we completed enrollment of 141 patients in this trial. In March 2017, we reported positive top-line results from this trial,
which also included three data safety monitoring board, or DSMB, safety reviews. In September 2017, we presented the full results of this trial at the
ESMO Congress in Madrid, Spain and the results of the trial were published in the European Journal of Cancer in November 2019.
Trial Design
In this trial, patients in the active arm were treated with eryaspase in addition to the current standard of chemotherapy, consisting of either gemcitabine or
FOLFOX, depending on which treatment the patient had received as first-line therapy. Patients in the control arm were patients treated with chemotherapy
alone. Patients were randomized at a 2:1 ratio. Prior to enrolling each patient in this trial, we used a diagnostic test to assess the level of ASNS expression
in such patient’s cancer cells. We included both patients with no or low ASNS expression levels and patients with normal or high ASNS expression levels
in the trial.
Endpoints
The co-primary endpoints of the Phase 2b clinical trial were progression-free survival, or PFS, and overall survival, or OS, rates, as measured by the hazard
ratio, or HR, for the patients that were enrolled with no or low ASNS expression levels. The HR represents the chance of events occurring in the treatment
arm relative to the chance of events occurring in the control arm. An HR of one means that there is no difference in survival between the two groups, while
an HR of greater than one or less than one means that survival was better in one of the groups. The outcome of the trial would be considered positive if the
HR was below 0.85 for the low or no ASNS expression group, irrespective of statistical significance. The secondary endpoints of the clinical trial included
overall progression-free
survival and overall survival rates, as measured by HR, in the entire patient population and for the patients enrolled with normal or high ASNS expression
levels, as well as objective response rates and safety outcomes.
Efficacy Results
The primary objectives of the trial were met, with an overall survival HR of 0.65 and a progression-free survival HR of 0.72 in the patient population with
no or low ASNS expression levels. This sub-group of the patient population constituted approximately 70% of the trial population. There was also an
overall survival benefit in the entire patient population, with a statistically significant overall survival HR of 0.60 (nominal p-value = 0.008), meaning that a
reduction in risk of death rate of 40% was observed. The PFS hazard ratio was 0.56 (nominal p-value = 0.011). The graph below shows the Kaplan-Meier
overall survival curve of the trial in the entire patient population. A Kaplan-Meier plot is a graphical statistical method commonly used to describe survival
characteristics. Similar results were observed for progression-free survival.
The baseline characteristics and demographics in the patient population were balanced, and overall survival and progression-free survival results appeared
to be consistent across different sub-groups, including age, gender and prior treatment.
An unexpected finding from these results was that the ASNS expression level in the patients did not appear to be predictive of treatment efficacy. However,
the ASNS expression level does appear to be a prognostic factor. Patients with high ASNS expression levels appear to have a worse prognosis, and their
relative response to eryaspase seems to be relatively higher in this group than the patients with no, low or normal ASNS expression levels. Based on this
finding, we believe future clinical trials may be conducted in the entire patient population, independent of ASNS expression levels.
Ongoing – TRYbeCA-1 Trial
Following our positive Phase 2b clinical trial results, we launched TRYbeCA-1, a pivotal Phase 3 clinical trial of eryaspase for second-line metastatic
pancreatic cancer. The TRYbeCA-1 trial is evaluating eryaspase in combination with standard chemotherapy, compared to standard chemotherapy
(gemcitabine/nab-paclitaxel or an irinotecan-based regimen) alone, in 512 patients. Patients who met the eligibility criteria have been randomized 1-to-1 to
receive eryaspase in combination with standard chemotherapy (gemcitabine/abraxane or irinotecan-based regimen) or chemotherapy alone until disease
progression. The primary endpoint is overall survival. The main secondary endpoints include progression-free survival, objective response rate, disease
control rate, quality of life and safety. Patient enrollment for the TRYbeCA-1 trial commenced in September 2018 in Europe and after receipt of IND
approval from the FDA, we have opened clinical sites in the United States. We have obtained clinical trial authorizations in the United States and from 11
European countries, and as of the date of this Annual Report, where the trial has been conducted in 90 clinical trial sites. We completed enrollment in
December 2020 with 512 randomized patients.
The interim analysis was triggered when two-thirds of the total number of events had occurred (i.e. two-thirds of the number of deaths required to make the
final analysis of the overall survival in the trial) have occurred. Those events have been reached in October 2020. We published the results from the interim
superiority analysis on February 8, 2021. This is the third review by the IDMC of the safety data of the patients enrolled and treated in the trial. The prior
reviews took place at 150, 199 and 320 patients, respectively. No safety issues were identified and the IDMC recommended that we continue the trial as
planned. We remain blinded to the primary and secondary endpoint efficacy data. The trial will continue toward a final analysis, expected in the fourth
quarter of 2021.
Ongoing – rESPECt trial
rESPECt (STUDY00002008) is a proof-of-concept investigator initiated Phase 1 clinical trial evaluating the safety of eryaspase in combination with
FOLFIRINOX for the treatment of first-line pancreatic cancer patients. The US Food and Drug Administration (FDA) reviewed IND/Investigational New
Drug application and cleared the study to proceed enrolling patients in December 2019. It is planned to enrol approximately 12 to 18 patients. The study is
open for enrollment.
Next Steps in Pancreatic Cancer
We will pursue our clinical development strategy in the treatment of pancreatic cancer as follows:
•
•
the completion of the TRYbeCA1 Phase 3 clinical trial in second-line advanced pancreatic cancer in Europe and the U.S. Final analysis results are
expected in the fourth quarter of 2021.
the continuation of the rESPECT Phase 1 clinical trial in first line pancreatic cancer, led and sponsored by the Georgetown Lombardi
Comprehensive Cancer Center in Washington, DC, USA. Determination of the maximum tolerated dose will be expected by end of year 2021.
Both the FDA and EMA have granted orphan drug designation for eryaspase or GRASPA for the treatment of pancreatic cancer. Orphan drug designation
provides manufacturers with research grants, tax credits and eligibility for marketing exclusivity of up to seven years in the United States and 10 years in
Europe.
We retain worldwide rights to commercialize eryaspase for the pancreatic cancer indication.
Ongoing and Planned Clinical Development in Triple Negative Breast Cancer and Other Solid Tumors
Following the results with eryaspase in the proposed treatment of second-line metastatic pancreatic cancer, we conducted a comprehensive evaluation to
determine other potential solid tumor indications and selected metastatic TNBC as the next indication to evaluate in order to expand the potential use of
eryaspase in solid tumors. TNBC is an aggressive and metabolically active form of breast cancer with high rates of symptomatic metastases. TNBC cells
lack expression of estrogen and progesterone receptors and do not overexpress HER2. Scientific literature estimates that approximately 10% to 20% of the
600,000 breast cancers that are diagnosed each year in the United States and Europe in aggregate are classified as TNBC. As commonly-utilized hormone
therapy and HER2 targeting agents are not treatment options for women with TNBC, there is significant unmet need for novel therapeutic approaches in
this subtype of breast cancer. At the end of 2018, we launched a Phase 2 proof-of-concept clinical trial in this indication in Europe, which we refer to as the
TRYbeCA-2 trial. The trial is now open for enrollment in three European countries and we announced enrollment of the first patient in June 2019. The
TRYbeCA-2 trial, is evaluating eryaspase in combination with gemcitabine and carboplatine chemotherapy, compared to chemotherapy alone in
approximately 64 patients, with previously untreated metastatic TNBC. We expect to report first results from the TRYbeCA-2 trial in the fourth quarter of
2021.
Planned Clinical Development in Other Solid Tumors
Preclinical work is ongoing to identify other relevant solid tumor indications, including a review of the use of the product candidate in combination with
chemotherapy and immunotherapy compounds.
Eryaspase for the Treatment of Acute Lymphoblastic Leukemia (ALL)
We were previously developing eryaspase, or GRASPA, for the treatment of children and adults with ALL in combination with chemotherapy. We started
the development of eryaspase in ALL in 2005 with a Phase 1 clinical trial in patients with relapsed and refractory ALL. The clinical trial was completed in
2009. We also completed a Phase 2 study in elderly patients with ALL in 2010. We have completed five clinical trials in ALL in Europe and in the United
States in which a total of 166 patients with ALL were enrolled, of which 132 patients were treated with eryaspase.
Different hard-to-treat sub-indications of ALL were targeted in these trials, relapsed and refractory patients, adults and elderly patients and patients who
were allergic to other asparaginases. We believe the results of our trials support our hypothesis that encapsulation could prolong asparaginase activity and
reduce its side-effects. We also observed eryaspase to have an improved clinical benefit as compared to native L-asparaginase in our completed clinical
trials, as described below.
In 2014, we completed a phase 2/3 clinical trial in 80 children and adults with relapsed ALL in which we evaluated the safety and efficacy of GRASPA
compared to free-form L-asparaginase derived from the bacteria E. coli, also known as native L-asparaginase. In this European trial, patients without a
history of allergies to native L-asparaginase treatments were randomized to receive standard
chemotherapy plus either GRASPA or native L-asparaginase. Patients with a known allergy to native L-asparaginase treatments were treated with standard
chemotherapy plus GRASPA. The trial achieved both of its primary endpoints:
•
•
Lower Incidence of Allergic Reactions. Among the non-allergic patients, none of the 26 patients treated with GRASPA experienced an allergic
reaction during the induction phase, compared to 13 patients out of 28, or 46%, of those treated with native L-asparaginase in the control group.
Superior Duration of L-Asparaginase Activity. Among the non-allergic patients, the patients treated with GRASPA maintained a mean duration
of L-asparaginase activity above 100 U per liter for 18.9 days, with at most two injections during the first month of treatment. This result
compared to a mean duration of activity of 8.5 days in the control group, who received up to eight injections of native L-asparaginase.
Eryaspase or GRASPA was also observed to have an improved clinical benefit as compared to native L-asparaginase based on its achievement of the
secondary efficacy endpoints:
• Higher Complete Remission Rate. At the end of the induction phase, the non-allergic patients in the GRASPA treatment arm, or 76%, had
achieved complete remission, or the disappearance of all signs of cancer in response to treatment, as compared to 46.4%, in the control arm.
Among the allergic patients, 60% achieved complete remission after treatment with GRASPA.
•
•
Improved Minimal Residual Disease Rate. Among the non-allergic patients, nine out of 26, or 35%, achieved low levels of residual leukemic
cells classified as minimal residual disease, or MRD, at the end of the induction phase, as compared to seven out of 28, or 25%, of those in the
control group. Among the allergic patients, six out of 26, or 23%, achieved MRD after treatment with GRASPA.
Improved Overall Survival Rates. 12-month overall survival rates among the non-allergic patients treated with GRASPA were 76.9%, compared
to 67.9%, for those in the control group. 12-month overall survival in the allergic group of patients was 50%. Based on three years of follow-up,
a nominal improvement of overall survival was observed (HR = 0.73).
Treatment with GRASPA was generally well tolerated. Drug-related adverse events generally consisted of allergic reactions, clotting problems, liver
toxicities and pancreas disorders. None of the 52 patients receiving GRASPA during the Phase 2/3 trial had an adverse event leading to discontinuation of
the trial, as compared to 13 out of the 28 patients, or 46%, in the control arm. A total of three patients out of the 52 patients treated with GRASPA during
the trial experienced serious adverse events determined to be drug-related.
Based on the positive efficacy and safety results from our Phase 2/3 pivotal trial, we submitted a Marketing Authorization Application, or MAA, to the
EMA for GRASPA for the treatment of relapsed or refractory ALL in September 2015. Following discussions with the EMA, we withdrew the MAA in
November 2016. We conducted activities designed to provide data regarding immunogenicity and pharmacodynamics of eryaspase, as well as
comparability of eryaspase produced with native versus recombinant L-asparaginase, and resubmitted an MAA in October 2017. In June 2018, based on
feedback from the EMA and FDA, it appeared that significant additional investment would be required in order to seek regulatory approval of eryaspase for
the treatment of ALL. In the context of the rapidly changing and increasingly competitive landscape with newly-approved treatment options for ALL, the
regulatory feedback and what we observed to be a limited market opportunity for eryaspase in ALL, we elected to cease further clinical development
efforts in ALL. Accordingly, we withdrew our MAA in the second half of 2018.
Despite our ceasing clinical development efforts in this indication, an investigator-sponsored trial, initiated in 2017 by the Nordic Society of Pediatric
Haematology and Oncology, or NOPHO, is still ongoing. The Phase 2 trial was expected to enroll approximately 30 patients at 22 sites across seven Nordic
and Baltic countries. The trial protocol was amended in 2019 to increase the number of patients to be recruited up to 50 patients. The main objectives of
this trial are to evaluate the pharmacokinetic and pharmacodynamic activity, safety and immunogenicity profile of eryaspase in combination with
NOPHO’s multi-agent chemotherapy protocol for ALL, administered as second-intention treatment for children or adult ALL patients, one year to 45 years
of age, who experience hypersensitivity reactions to PEG-asparaginase or silent inactivation. The enrollment has been completed in August 2020 (55
patients enrolled). Preliminary results have been presented in March 2020 during the annual NOPHO meeting and final positive results have been presented
at the American Society of Hematology (ASH) meeting on 6 December 2020.
4.B.6. Other ERYCAPS Development Programs
In addition to eryaspase, our product candidate based on L-asparaginase treatment, we believe that our ERYCAPS platform has broad potential application
and can be used to encapsulate within red blood cells a wide range of therapeutic agents for which long-circulating therapeutic activity or rapid and specific
targeting is desired.
Cancer Metabolism
In addition to our product pipeline centered on L-asparaginase treatment, we are using our proprietary patent-protected ERYCAPS platform to identify
additional enzymes that could induce tumor starvation. The TEDAC program intended to identify additional tumor starvation agents and to identify
companion diagnostic tests. In preclinical studies performed under the TEDAC program, we have identified two other amino acids, methionine and
arginine, and their respective enzymes, methionine-γ-lyase, or MGL, and arginine deiminase, or ADI, that we believe may be promising treatments when
encapsulated inside red blood cells.
In 2017, we presented preclinical data with our product candidate erymethionase, which consists of MGL in red blood cells, at the American Society of
Clinical Oncology Gastrointestinal Cancers Symposium and the American Association for Cancer Research conferences. We intend to continue to work on
the development of erymethionase as well as potential other therapeutic strategies based on methionine depletion, depending on financial resources and
business strategy. We are also evaluating eryminase, which consists of ADI encapsulated inside red blood cells, as a potential product candidate for further
clinical development. In 2017, we entered into a research collaboration with the Fox Chase Cancer Center to advance the preclinical development of
erymethionase for the treatment of homocystinuria and with Queen’s University of Canada to advance the preclinical development of eryminase for the
treatment of arginase-1-deficiency. In September 2017, we presented early preclinical data on both programs at the 13th International Congress of Inborn
Errors of Metabolism (ICIEM).
Enzyme Replacement
Outside of the oncology field, we also are studying the use of our ERYCAPS platform to promote long-acting enzyme activity
Enzyme replacement is a preclinical development program designed to use our proprietary ERYCAPS platform for enzyme-based therapies beyond
oncology. We encapsulate therapeutic enzymes inside donor-derived red blood cells using our proprietary ERYCAPS platform in order to create product
candidates to target certain metabolic diseases. We believe that the encapsulation of the therapeutic enzymes in the red blood cells may be able to reduce
the potential for allergic reactions and to allow the therapeutic substance to remain in the body longer as compared to non-encapsulated enzymes.
Immune modulation
We demonstrated the proof of concept to encapsulate tumor antigens or adjuvants within red blood cells as an innovative approach to cancer
immunotherapy.
Based on our preclinical research on immune modulation, we believe that encapsulated tumor antigens can be targeted to the spleen or to the liver, in order
to induce an immune response, resulting in sustained activation of the body’s immune system to fight cancers or to tolerance induction. In preclinical
studies with three different antigens loaded in red blood cells, we have observed promising proof-of-concept data in three different tumor models. In these
studies, we observed significantly increased antigen-specific CD8+ and CD4+ T-cell responses and delays in tumor growth when the encapsulated antigens
were injected in mice with tumors, as compared to the injection of the unloaded antigens alone. As part of our value creation strategy, in 2019, we have
granted to SQZ Biotechnologies an exclusive worldwide licence to develop antigen-specific immune modulating therapies employing RBC-based
approaches. Combining SQZ’s proprietary and versatile cell engineering platform, Cell Squeeze®, with our intellectual property related to RBC-based
therapeutics, rapid development of a broad pipeline of novel immunomodulatory products addressing multiple indications is envisaged.
4.B.7. Manufacturing and Supply
We currently operate two manufacturing facilities to manufacture our product candidates.
Our primary production facility for Europe is based in Lyon, France. This production facility complies with European cGMP. We have extended the
capacity of our Lyon facility in July 2019 to ensure supply in our ongoing and future clinical trials, as well as anticipated early commercial needs, if
eryaspase is approved for marketing. We believe our current leased space is sufficient to meet our current needs in Europe.
For our clinical trials in the United States, we started manufacturing GMP-compliant batches out of our manufacturing facility in Princeton, New Jersey in
the fourth quarter of 2019. This manufacturing facility was designed with the ability to scale production to supply eryaspase to meet our anticipated clinical
trial needs, including our supply requirements for U.S. patients in the TRYbeCA-1 trial, and for our anticipated initial commercial needs in the United
States if eryaspase is approved. In connection with the transition to our Princeton facility, we closed our small production facility in Philadelphia,
Pennsylvania in January 2020.
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We believe our production facilities will be sufficient to supply eryaspase for our ongoing Phase 2 and Phase 3 clinical trials and for our anticipated initial
commercial needs of eryaspase in Europe and the United States, in the event we receive appropriate marketing authorizations.
In Europe, we purchase packed red blood cells from the French Blood Agency (Ėtablissement Français du Sang) and the German Red Cross Blood Donor
Service. In the United States, we have supply agreements with the American Red Cross and the New York Blood Center.
In the case of eryaspase, we have the manufacturing and logistics in place to deliver eryaspase to patients in approximately 24 hours from the start of
production to delivery of the product candidate to the hospital. Once a prescription is written, we receive an order for eryaspase from the hospital. We then
source a pack of red blood cells, compatible with the patient’s blood type, from one of our partner blood banks. After identification of the key parameters of
the red blood cell unit, we encapsulate the L-asparaginase into the red blood cells using an automated process that takes three to four hours. Before release,
the product must meet a number of quality control specifications, including the number of red blood cells in the packed product, the level of L-asparaginase
activity, the amount of extracellular L-asparaginase in the blood and the integrity of the container holding the red blood cells. We then deliver the product to
the hospital using a third-party commercial overnight delivery service. We ship the product at a refrigerated temperature of between two and eight degrees
Celsius, or approximately 36 to 46 degrees Fahrenheit. At this temperature, the product has been shown to remain stable for five days. Once removed and
ready for administration, the product remains stable for six hours at room temperature.
In May 2011, we entered into a worldwide supply agreement, as subsequently amended on April 4, 2014 and July 25, 2016, which we refer to as the 2011
Medac Agreement, under which Medac has agreed to supply us with their new, recombinant free-form L-asparaginase, called Spectrila, for which Medac
obtained a European marketing approval in 2016. The 2011 Medac Agreement includes an exclusivity period, starting from the date of commercial
authorization of eryaspase/GRASPA for a duration of five years. The term of the 2011 Medac Agreement is until December 2028, provided, that Medac is
entitled, upon expiration of the five-year exclusivity period, to terminate the agreement, upon five years’ notice, in the event its supplier of the recombinant
formulation of L-asparaginase discontinues supplying to Medac. The July 2016 amendment nullified the clauses providing that we could have been forced
to refrain from any form of promotion of eryaspase/GRASPA if such product was produced from a new formulation of asparaginase registered and
marketed prior to eryaspase/GRASPA as a first-line treatment. We are exclusively using this new recombinant formulation of L-asparaginase in eryaspase
for new indications, including our ongoing clinical trials for pancreatic cancer, and no longer intend to use the native form of asparaginase for eryaspase.
4.B.8. Commercialization
As we move our product candidates through development toward regulatory approval in the United States and Europe, we will evaluate several options for
each product candidate’s commercialization strategy. These options include building our own internal sales force and distribution units or entering into
collaborations with third parties for the distribution and marketing of the approved products. We generally expect to retain commercial rights to our product
candidates, but we will also evaluate collaborative arrangements with third parties for the commercialization and distribution of our product candidates for
specified indications and in specified territories where appropriate. We previously entered into collaborations with Teva for the distribution of GRASPA as
a treatment of ALL in Israel, and with Orphan Europe, part of the Recordati Group, for the distribution of GRASPA as a treatment of ALL and AML in
Europe. As a consequence of our withdrawal of the MAA for ALL and our decision to focus on solid tumors, our agreement with Orphan Europe was
terminated in the first half of 2019 without financial consequences to us. The agreement with Teva is still in effect, but, at this time, there are no current
ongoing obligations under the agreement. With the exception of Israel, we have retained worldwide rights to commercialize eryaspase for the treatment of
all indications, including ALL, pancreatic cancer and TNBC. We have retained worldwide commercial rights for all of our other product candidates.
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4.B.9.
Intellectual Property
Our patent portfolio includes pending patent applications and issued patents in the United States and foreign countries. These patents and applications
include 15 patent families we own in our own name with more than 290 granted patents, summarized below:
TECHNOLOGY
RBC Encapsulation Platform
Eryaspase
Other Onco-metabolism
Rare Metabolic Disorders
Immunology
Small Molecule
NUMBER
OF PATENT
FAMILIES
EXPIRATION
YEARS FOR
EACH PATENT
FAMILY *
2
3
4
3
2
1
2024 - 2030
2033 - 2034
2027 - 2029
2032 - 2033
2028 - 2029
2026
2034 - 2035
2035 - 2036
2038
2028
2033 - 2034
2037 - 2038
2030
2027 - 2028
2028 - 2029
COUNTRIES IN WHICH PATENTS ARE ISSUED (OR
ALLOWED/ACCEPTED)
Japan, Europe, Australia, China, United States, South Korea, India, Canada,
Russia, Hong Kong, Mexico, GCC, Israel
Europe, United States, Australia, Singapore, Israel, Japan,
South Korea, China, India, United Arab Emirates, GCC, Russia Canada,
Hong Kong
Europe, Japan, China, Canada, South Korea, Australia, United States, Hong
Kong, Israel, Russia, GCC, Jordan
Europe, Israel
Australia, Singapore, France, China, Israel, South Korea, Europe, United
States, Japan, United Arab Emirates, Canada, Hong Kong
Europe, Israel, China, Australia, Singapore, South Korea, Canada, Hong
Kong
*
This expiration year does not take into account supplementary patent protection that could be obtained for some of our patents in the United States,
Europe, Japan and other countries. Expiration dates for U.S. patents not yet granted may be subject to patent term adjustment (PTA) and/or patent
term extension (PTE).
Of our 15 patent families, 13 patent families currently include at least one issued patent.
The term of a U.S. patent may be eligible for patent term restoration under the Hatch-Waxman Act to account for at least some of the time the drug or
method of manufacture is under development and regulatory review after the patent is granted. With regard to a drug or method of manufacture for which
FDA approval is the first permitted marketing of the active ingredient, the Hatch-Waxman Act allows for extension of the term of one U.S. patent. The
extended patent term cannot exceed the shorter of five years beyond the non-extended expiration of the patent or 14 years from the date of the FDA
approval of the drug or method of manufacture. Some foreign jurisdictions have analogous patent term extension provisions that allow for extension of the
term of a patent that covers a device approved by the applicable foreign regulatory agency. In the future, if and when our product candidates receive FDA
approval, we expect to apply for patent term extensions on the patents that we believe will provide the best exclusivity position if extended.
In addition to patent protection, we have trademark protection in many countries for our name, logo and several product candidates. None of our
trademarks are subject to a third-party license.
Patent License from Radboud University
In 2018, we entered into an exclusive license agreement with Radboud University (the Netherlands), or Radboud, under which Radboud has granted us an
exclusive license to a patent family, including a PCT application filed December 6, 2018, directed to synergistic combinations of amino acid depletion
agents, or AADA, and amino acid depletion agent sensitizers. We intend to use the patent rights licensed from Radboud to develop product candidates,
either alone or in collaboration with external partners, including product candidates that contain eryaspase as the AADA. Under the terms of the exclusive
license agreement, we may also sublicense the patent rights to external partners to generate sublicense revenue.
4.B.10. Competition
The biotechnology and pharmaceutical industries are highly competitive and subject to significant and rapid technological change as researchers learn more
about diseases and develop new technologies and treatments. Significant competitive factors in our industry include product efficacy and safety; quality
and breadth of an organization’s technology; skill of an organization’s employees and its ability to recruit and retain key employees; timing and scope of
regulatory approvals; government reimbursement rates for, and the average selling price of, products; the availability of raw materials and qualified
manufacturing capacity; manufacturing costs;
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intellectual property and patent rights and their protection; and sales and marketing capabilities. We cannot ensure you that any of our products that we
successfully develop will be clinically superior or scientifically preferable to products developed or introduced by our competitors.
Our competitors may also succeed in obtaining EMA, FDA or other regulatory approvals for their product candidates more rapidly than we are able to do,
which could place us at a significant competitive disadvantage or deny us marketing exclusivity rights.
Market acceptance of our product candidates will depend on a number of factors, including:
•
•
•
•
potential advantages over existing or alternative therapies or tests;
the actual or perceived safety of similar classes of products;
the effectiveness of our sales, marketing, and distribution capabilities; and
the scope of any approval provided by the FDA or foreign regulatory authorities.
Although we believe our product candidates possess attractive attributes, we cannot ensure that our product candidates will achieve regulatory or market
acceptance, or that we will be able to compete effectively in the biopharmaceutical drug markets. If our product candidates fail to gain regulatory approvals
and acceptance in their intended markets, we may not generate meaningful revenues or achieve profitability.
In general, eryaspase will be positioned as an add-on to standard chemotherapeutic regimens. In pancreatic adenocarcinoma, gemcitabine-based (e.g.
gemcitabine and nab paclitaxel, Celgene’s Abraxane) and fluoropyrimidine-based (e.g. FOLFIRINOX, comprised of fluorouracil, leucovorin, irinotecan
and oxaliplatin) chemotherapy regimens are standards of care for the first-line treatment of patients with metastatic disease. Our ongoing TRYbeCA-1 trial
in second-line metastatic pancreatic adenocarcinoma is evaluating the addition of eryaspase to both (i) gemcitabine and Celgene’s Abraxane in patients
whose disease has progressed on a prior fluoropyrimidine-based chemotherapy and (ii) an irinotecan-based regimen, including the approved liposomal
formulation of irinotecan, Ipsen/Servier’s Onivyde, in combination with flurouracil and leucovorin in patients whose disease has progressed on a prior
gemcitabine-based regimen. If approved, we anticipate that eryaspase will be used in combination with gemcitabine-based and irinotecan-based regimens.
Depending on the results of the TRYbeCA-1 trial, we believe eryaspase has the potential to be seen as competitive to or as a combination partner for many
of these agents. Eryaspase could potentially face competition from several investigational agents currently being evaluated in metastatic patients who have
progressed on previous first-line chemotherapy. These include, but are not limited to, Eleison Pharmaceuticals’ glufosfamide, SynCore Biotechnology’s
EndoTAG-1,Tyme Technologies’ SM-88, BioLineRx’s BL-8040, and NantKwest’s PD-L1.t-haNK combined with ImmunityBio’s N-803. Eryaspase could
also potentially compete with agents being evaluated in combination with standard chemotherapy regimens for the first-line treatment of metastatic disease.
These include, but are not limited to, Rafael Pharmaceuticals’ CPI-613, Apexigen’s APX005M and Astellas’ zolbetuximab.
In TNBC, we expect eryaspase to be used in combination with various chemotherapy agents that are used to treat metastatic triple negative disease,
including taxanes (paclitaxel, docetaxel and Celgene’s Abraxane), capecitabine, and Eisai’s Halaven. Eryaspase could potentially face competition from
small molecule poly-ADP ribose polymerase (PARP) inhibitors, including, but not limited to, AstraZeneca/Merck’s Lynparza and Pfizer’s Talzenna, which
received FDA approval for the treatment of germline BRCA mutant metastatic breast cancer in 2018; PD-1/PD-L1 antibodies, including, but not limited to,
Roche’s Tecentriq and Merck’s Keytruda which were approved by the FDA for metastatic TNBC in 2019 and 2020 respectively; Trop-2 directed antibody-
drug conjugates (ADCs), including, but not limited to, Gilead Science’s Trodelvy which was approved by the FDA for previously treated metastatic TNBC
in 2020; and other molecules in development, including, but not limited to, Roche’s ipatasertib, Astrazeneca’ capivasertib, Seattle Genetics’ ladiratuzumab
vedotin, and G1 Therapeutics’ trilaciclib.
Though there are several L-asparaginase based products approved for use in ALL, we do not believe that these products are being evaluated in the solid
tumor indications we are pursuing with eryaspase at this time.
Many of the companies against which we are competing, or against which we may compete in the future, have significantly greater financial resources and
expertise in research and development, manufacturing, preclinical testing, conducting clinical trials, obtaining regulatory approvals and marketing approved
drugs than we do. Mergers and acquisitions in the pharmaceutical and biotechnology industries may result in even more resources being concentrated
among a smaller number of our competitors. Smaller or early-stage companies may also prove to be significant competitors, particularly through
collaborative arrangements with large and established companies. These competitors also compete with us in recruiting and retaining qualified scientific
and management personnel and establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary
to, or necessary for, our programs.
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4.B.11. Government Regulation
Government authorities in the United States at the federal, state and local level and in other countries extensively regulate, among other things, the
research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, record-keeping, promotion, advertising, distribution,
post-approval monitoring and reporting, marketing and export and import of drug and biological products, or biologics, such as our product candidates.
Generally, before a new drug or biologic can be marketed, considerable data demonstrating its quality, safety and efficacy must be obtained, organized into
a format specific to each regulatory authority, submitted for review and approved by the regulatory authority.
U.S. Biological Product Development
In the United States, the FDA regulates biologics under the Federal Food, Drug, and Cosmetic Act, or FDCA, and the Public Health Service Act, or PHSA,
and their implementing regulations. Biologics are also subject to other federal, state and local statutes and regulations. The process of obtaining regulatory
approvals and the subsequent compliance with appropriate federal, state, local and foreign statutes and regulations require the expenditure of substantial
time and financial resources. Failure to comply with the applicable U.S. requirements at any time during the product development process, approval
process or after approval, may subject an applicant to administrative or judicial sanctions. These sanctions could include, among other actions, the FDA’s
refusal to approve pending applications, withdrawal of an approval, a clinical hold, untitled or warning letters, product recalls or withdrawals from the
market, product seizures, total or partial suspension of production or distribution injunctions, fines, refusals of government contracts, restitution,
disgorgement, reputational harm, and/or civil or criminal penalties. Any agency or judicial enforcement action could have a material adverse effect on us.
Our product candidates must be approved by the FDA through the Biologics License Application, or BLA, process before they may be legally marketed in
the United States. The process required by the FDA before a biologic may be marketed in the United States generally involves the following:
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completion of extensive nonclinical, sometimes referred to as preclinical laboratory tests, preclinical animal studies and formulation studies in
accordance with applicable regulations, including the FDA’s Good Laboratory Practice, or GLP, regulations;
submission to the FDA of an IND, which must become effective before human clinical trials may begin;
performance of adequate and well-controlled human clinical trials in accordance with applicable IND and other clinical trial-related regulations,
sometimes referred to as Good Clinical Practices, or GCPs, to establish the safety and efficacy of the proposed product candidate for its
proposed indication;
submission to the FDA of a BLA;
satisfactory completion of an FDA pre-approval inspection of the manufacturing facility or facilities where the product is produced to assess
compliance with the FDA’s cGMP requirements to assure that the facilities, methods and controls are adequate to preserve the product’s identity,
strength, quality, purity and potency;
potential FDA audit of the preclinical and clinical trial sites that generated the data in support of the BLA; and
FDA review and approval of the BLA prior to any commercial marketing or sale of the product in the United States.
The data required to support a BLA is generated in two distinct development stages: preclinical and clinical. The preclinical development stage generally
involves laboratory evaluations of drug chemistry, formulation and stability, as well as studies to evaluate toxicity in animals, which support subsequent
clinical testing. The conduct of the preclinical studies must comply with federal regulations, including GLPs. The sponsor must submit the results of the
preclinical studies, together with manufacturing information, analytical data, any available clinical data or literature and a proposed clinical protocol, to the
FDA as part of the IND. An IND is a request for authorization from the FDA to administer an investigational drug product to humans. The central focus of
an IND submission is on the general investigational plan and the protocol(s) for human trials. The IND automatically becomes effective 30 days after
receipt by the FDA, unless the FDA raises concerns or questions regarding the proposed clinical trials and places the IND on clinical hold within that 30-
day time period. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns before the clinical trial can begin. The FDA may also
impose clinical holds on a product candidate at any time before or during clinical trials due to safety concerns or non-compliance. Accordingly, we cannot
be sure that submission of an IND will result in the FDA allowing clinical trials to begin, or that, once begun, issues will not arise that could cause the trial
to be suspended or terminated.
The clinical stage of development involves the administration of the product candidate to healthy volunteers or patients under the supervision of qualified
investigators, generally physicians not employed by or under the trial sponsor’s control, in accordance with GCPs, which include the requirement that all
research subjects provide their informed consent for their participation in any clinical trial. Clinical trials are conducted under protocols detailing, among
other things, the objectives of the clinical trial, dosing procedures, subject selection and exclusion criteria, and the parameters to be used to monitor subject
safety and assess efficacy. Each protocol, and
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any subsequent amendments to the protocol, must be submitted to the FDA as part of the IND. Further, each clinical trial must be reviewed and approved
by an independent institutional review board, or IRB, at or servicing each institution at which the clinical trial will be conducted. An IRB is charged with
protecting the welfare and rights of trial participants and considers such items as whether the risks to individuals participating in the clinical trials are
minimized and are reasonable in relation to anticipated benefits. The IRB also approves the informed consent form that must be provided to each clinical
trial subject or his or her legal representative and must monitor the clinical trial until completed.
There are also requirements governing the reporting of ongoing clinical trials and completed clinical trial results to public registries. Sponsors of clinical
trials of FDA-regulated products, including biologics, are required to register and disclose certain clinical trial information, which is publicly available at
www.clinicaltrials.gov. Information related to the product, patient population, phase of investigation, study sites and investigators, and other aspects of the
clinical trial is then made public as part of the registration. Sponsors are also obligated to discuss the results of their clinical trials after completion.
Disclosure of the results of these trials can be delayed until the new product or new indication being studied has been approved.
Clinical trials are generally conducted in three sequential phases that may overlap, known as Phase 1, Phase 2 and Phase 3 clinical trials. Phase 1 clinical
trials generally involve a small number of healthy volunteers who are initially exposed to a single dose and then multiple doses of the product candidate.
The primary purpose of these clinical trials is to assess the metabolism, pharmacologic action, side effect tolerability and safety of the product candidate
and, if possible, to gain early evidence on effectiveness. Phase 2 clinical trials typically involve studies in disease-affected patients to determine the dose
required to produce the desired benefits. At the same time, safety and further pharmacokinetic and pharmacodynamic information is collected, as well as
identification of possible adverse effects and safety risks and preliminary evaluation of efficacy. Phase 3 clinical trials generally involve large numbers of
patients at multiple sites, in multiple countries, from several hundred to several thousand subjects, and are designed to provide the data necessary to
demonstrate the efficacy of the product for its intended use and its safety in use, and to establish the overall benefit/risk relationship of the product and
provide an adequate basis for product approval. Phase 3 clinical trials may include comparisons with placebo and/or other comparator treatments. The
duration of treatment is often extended to mimic the actual use of a product during marketing. Generally, two adequate and well-controlled Phase 3 clinical
trials are required by the FDA for approval of a BLA.
Post-approval trials, sometimes referred to as Phase 4 clinical trials, may be conducted after initial marketing approval. These trials are used to gain
additional experience from the treatment of patients in the intended therapeutic indication. In some instances, FDA may condition approval of a BLA on
the sponsor’s agreement to conduct additional clinical trials to further assess the biologic’s safety and effectiveness after BLA approval.
Progress reports detailing the results of the clinical trials must be submitted at least annually to the FDA and written IND safety reports must be submitted
to the FDA and the investigators for serious and unexpected suspected adverse events or any finding from tests in laboratory animals that suggests a
significant risk for human subjects. Phase 1, Phase 2 and Phase 3 clinical trials may not be completed successfully within any specified period, if at all. The
FDA, the IRB, or the sponsor may suspend or terminate a clinical trial at any time on various grounds, including a finding that the research subjects or
patients are being exposed to an unacceptable health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the
clinical trial is not being conducted in accordance with the IRB’s requirements or if the drug has been associated with unexpected serious harm to patients.
Additionally, some clinical trials are overseen by an independent group of qualified experts organized by the clinical trial sponsor, known as a data safety
monitoring board or committee. This group provides authorization for whether or not a trial may move forward at designated intervals based on access to
certain data from the trial. We may also suspend or terminate a clinical trial based on evolving business objectives and/or competitive climate. Concurrent
with clinical trials, companies usually complete additional animal studies and must also develop additional information about the chemistry and physical
characteristics of the product candidate as well as finalize a process for manufacturing the product in commercial quantities in accordance with cGMP
requirements. The manufacturing process must be capable of consistently producing quality batches of the product candidate and, among other things, must
develop methods for testing the identity, strength, quality and purity of the final product. Additionally, appropriate packaging must be selected and tested
and stability studies must be conducted to demonstrate that the product candidate does not undergo unacceptable deterioration over its shelf life.
BLA and FDA Review Process
Following trial completion, trial data is analyzed to assess safety and efficacy. The results of preclinical studies and clinical trials are then submitted to the
FDA as part of a BLA, along with proposed labeling for the product and information about the manufacturing process and facilities that will be used to
ensure product quality, results of analytical testing conducted on the chemistry of the product candidate, and other relevant information. The BLA is a
request for approval to market the biologic for one or more specified indications and must contain proof of safety, purity, potency and efficacy, which is
demonstrated by extensive preclinical and clinical testing. The application includes both negative or ambiguous results of preclinical and clinical trials, as
well as positive findings. Data may come from company-sponsored clinical trials intended to test the safety and efficacy of a use of a product, or from a
number of alternative sources, including studies initiated by investigators. To support marketing approval, the data submitted must be sufficient
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in quality and quantity to establish the safety and efficacy of the investigational product to the satisfaction of the FDA. FDA approval of a BLA must be
obtained before a biologic may be offered for sale in the United States.
Under the Prescription Drug User Fee Act, or PDUFA, as amended, each BLA must be accompanied by a significant user fee, which is adjusted on an
annual basis. PDUFA also imposes an annual product fee for human drugs and an annual establishment fee on facilities used to manufacture prescription
drugs. Fee waivers or reductions are available in certain circumstances, including a waiver of the application fee for the first application filed by a small
business.
Once a BLA has been accepted for filing, which occurs, if at all, 60 days after the BLA’s submission, the FDA’s goal is to review BLAs within 10 months
of the filing date for standard review or six months of the filing date for priority review, if the application is for a product intended for a serious or life-
threatening disease or condition and the product, if approved, would provide a significant improvement in safety or effectiveness. The review process is
often significantly extended by FDA requests for additional information or clarification.
After the BLA submission is accepted for filing, the FDA reviews the BLA to determine, among other things, whether the proposed product candidate is
safe and effective for its intended use, and whether the product candidate is being manufactured in accordance with cGMP to assure and preserve the
product candidate’s identity, strength, quality, purity and potency. The FDA may refer applications for novel drug product candidates or drug product
candidates which present difficult questions of safety or efficacy to an advisory committee, typically a panel that includes clinicians and other experts, for
review, evaluation and a recommendation as to whether the application should be approved and under what conditions. The FDA is not bound by the
recommendations of an advisory committee, but it considers such recommendations carefully when making decisions. The FDA will likely re-analyze the
clinical trial data, which could result in extensive discussions between the FDA and us during the review process.
The review and evaluation of a BLA by the FDA is extensive and time consuming and may take longer than originally planned to complete, and we may
not receive a timely approval, if at all.
Before approving a BLA, the FDA will conduct a pre-approval inspection of the manufacturing facilities for the new product to determine whether they
comply with cGMP. The FDA will not approve the product unless it determines that the manufacturing processes and facilities are in compliance with
cGMP requirements and adequate to assure consistent production of the product within required specifications. In addition, before approving a BLA, the
FDA may also audit data from clinical trials to ensure compliance with GCP requirements. After the FDA evaluates the application, manufacturing process
and manufacturing facilities, it may issue an approval letter or a Complete Response Letter. An approval letter authorizes commercial marketing of the
product with specific prescribing information for specific indications. A Complete Response Letter indicates that the review cycle of the application is
complete and the application is not ready for approval. A Complete Response Letter usually describes all of the specific deficiencies in the BLA identified
by the FDA. The Complete Response Letter may require additional clinical data and/or an additional pivotal Phase 3 clinical trial(s), and/or other
significant and time-consuming requirements related to clinical trials, preclinical studies or manufacturing. If a Complete Response Letter is issued, the
applicant may either resubmit the BLA, addressing all of the deficiencies identified in the letter, or withdraw the application. Even if such data and
information is submitted, the FDA may ultimately decide that the BLA does not satisfy the criteria for approval. Data obtained from clinical trials are not
always conclusive and the FDA may interpret data differently than we interpret the same data.
There is no assurance that the FDA will ultimately approve a product for marketing in the United States, and we may encounter significant difficulties or
costs during the review process. If a product receives marketing approval, the approval may be significantly limited to specific populations, severities of
allergies, and dosages or the indications for use may otherwise be limited, which could restrict the commercial value of the product. Further, the FDA may
require that certain contraindications, warnings or precautions be included in the product labeling or may condition the approval of the BLA on other
changes to the proposed labeling, development of adequate controls and specifications, or a commitment to conduct post-market testing or clinical trials
and surveillance to monitor the effects of approved products. For example, the FDA may require Phase 4 testing, which involves clinical trials designed to
further assess the product’s safety and effectiveness and may require testing and surveillance programs to monitor the safety of approved products that have
been commercialized. The FDA may also place other conditions on approvals including the requirement for a Risk Evaluation and Mitigation Strategy, or
REMS, to assure the safe use of the product. If the FDA concludes a REMS is needed, the sponsor of the BLA must submit a proposed REMS. The FDA
will not approve the NDA without an approved REMS, if required. A REMS could include medication guides, physician communication plans, or elements
to assure safe use, such as restricted distribution methods, patient registries and other risk minimization tools. Any of these limitations on approval or
marketing could restrict the commercial promotion, distribution, prescription or dispensing of products. Product approvals may be withdrawn for non-
compliance with regulatory standards or if problems occur following initial marketing.
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Other U.S. Regulatory Matters
Manufacturing, sales, promotion and other activities following product approval are also subject to regulation by numerous regulatory authorities in
addition to the FDA, including, in the United States, the Centers for Medicare & Medicaid Services, or CMS, other divisions of the Department of Health
and Human Services, or HHS, the Drug Enforcement Administration, the Consumer Product Safety Commission, the Federal Trade Commission, the
Occupational Safety & Health Administration, the Environmental Protection Agency and state and local governments. In the United States, sales,
marketing and scientific or educational programs must comply with state and federal fraud and abuse laws, data privacy and security laws, transparency
laws, and pricing and reimbursement requirements in connection with governmental payor programs, among others. The handling of any controlled
substances must comply with the U.S. Controlled Substances Act and Controlled Substances Import and Export Act. Products must meet applicable child-
resistant packaging requirements under the U.S. Poison Prevention Packaging Act. Manufacturing, sales, promotion and other activities are also potentially
subject to federal and state consumer protection and unfair competition laws. The distribution of pharmaceutical products is subject to additional
requirements and regulations, including extensive record-keeping, licensing, storage and security requirements intended to prevent the unauthorized sale of
pharmaceutical products.
The failure to comply with regulatory requirements subjects’ entities to possible legal or regulatory action. Depending on the circumstances, failure to meet
applicable regulatory requirements can result in criminal prosecution, fines or other penalties, injunctions, recall or seizure of products, total or partial
suspension of production, denial or withdrawal of product approvals, or refusal to allow an entity to enter into supply contracts, including government
contracts. In addition, even if an entity complies with FDA and other regulatory requirements, new information regarding the safety or efficacy of a product
could lead the FDA to modify or withdraw product approval. Prohibitions or restrictions on sales or withdrawal of future products marketed by us could
materially affect our business in an adverse way.
Changes in regulations, statutes or the interpretation of existing regulations could impact our business in the future by requiring, for example: (i) changes to
our manufacturing arrangements, and/or our commercial operations; (ii) additions or modifications to product labeling; (iii) the recall or discontinuation of
our products; or (iv) additional record-keeping and/or documentation requirements. If any such changes were to be imposed, they could adversely affect the
operation of our business.
U.S. Patent Term Restoration and Marketing Exclusivity
Depending upon the timing, duration and specifics of the FDA approval of our product candidates, some of our U.S. patents may be eligible for limited
patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984, commonly referred to as the Hatch-Waxman
Amendments. The Hatch-Waxman Amendments permit a patent restoration term of up to five years as compensation for patent term lost during product
development and the FDA regulatory review process. However, patent term restoration cannot extend the remaining term of a patent beyond a total of 14
years from the product’s approval date. The patent term restoration period is generally one-half the time between the effective date of an IND and the
submission date of a BLA plus the time between the submission date of a BLA and the approval of that application. Only one patent applicable to an
approved drug is eligible for the extension and the application for the extension must be submitted prior to the expiration of the patent. The U.S. Patent and
Trademark Office, in consultation with the FDA, reviews and approves the application for any patent term extension or restoration. In the future, we may
apply for restoration of patent term for our currently owned or licensed patents to add patent life beyond their current expiration dates, depending on the
expected length of the clinical trials and other factors involved in the filing of the relevant BLA.
An abbreviated approval pathway for biological products shown to be similar to, or interchangeable with, an FDA-licensed reference biological product
was created by the Biologics Price Competition and Innovation Act of 2009. Biosimilarity, which requires that the biological product is highly similar to
the reference product notwithstanding minor differences in clinically inactive components and that there be no clinically meaningful differences between
the product and the reference product in terms of safety, purity, and potency, can be shown through analytical studies, animal studies, and a clinical trial or
trials. Interchangeability requires that a biological product is biosimilar to the reference product and the product can be expected to produce the same
clinical results as the reference product and, for products administered multiple times, the product and the reference product may be switched after one has
been previously administered without increasing safety risks or risks of diminished efficacy relative to exclusive use of the reference biological product.
However, complexities associated with the larger, and often more complex, structure of biological products, as well as the process by which such products
are manufactured, pose significant hurdles to implementation that are still being worked out by the FDA.
A reference biological product is granted 12 years of exclusivity from the time of first licensure of the reference product. The first biological product
submitted under the abbreviated approval pathway that is determined to be interchangeable with the reference product has exclusivity against other
biologics submitting applications under the abbreviated approval pathway for the lesser of one year after the first commercial marketing, 18 months after
approval if there is no legal challenge, 18 months after the resolution in the applicant’s favor of a lawsuit challenging the biologic’s patents if an application
has been submitted, or 42 months after the application has been approved if a lawsuit is ongoing within the 42-month period.
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Pediatric exclusivity is another type of regulatory market exclusivity in the United States. Pediatric exclusivity, if granted, adds six months to existing
exclusivity periods and patent terms. This six-month exclusivity, which runs from the end of other exclusivity protection or patent term, may be granted
based on the voluntary completion of a pediatric trial in accordance with an FDA-issued “Written Request” for such a trial.
European Union Drug Development
In the European Union, our product candidates may also be subject to extensive regulatory requirements. Medicinal products can only be marketed if a
marketing authorization from the competent regulatory agencies has been obtained.
The various phases of preclinical and clinical research in the European Union are subject to significant regulatory controls. Clinical trials of medicinal
products in the European Union must be conducted in accordance with European Union and national regulations and the International Conference on
Harmonization, or ICH, guidelines on Good Clinical Practices, or GCP. Although the EU Clinical Trials Directive 2001/20/EC has sought to harmonize the
European Union clinical trials regulatory framework, setting out common rules for the control and authorization of clinical trials in the European Union, the
EU Member States have transposed and applied the provisions of the Directive differently. This has led to significant variations in the Member State
regimes. To improve the current system, Regulation (EU) No 536/2014 on clinical trials on medicinal products for human use, which repealed Directive
2001/20/EC, was adopted on April 16, 2014 and published in the European Official Journal on May 27, 2014. The Regulation aims at harmonizing and
streamlining the clinical trials authorization process, simplifying adverse event reporting procedures, improving the supervision of clinical trials, and
increasing their transparency. Although the Regulation entered into force on June 16, 2014, it has not yet become applicable, its enactment will occur six
months after the publication of a notice delivered by the European Commission on the European Union clinical trial portal and database, the EMA has
announced that the effective launch of the portal is expected in December 2021. Until then the Clinical Trials Directive 2001/20/EC will still apply. In
addition, the transitory provisions of the new Regulation offer the sponsors the possibility to choose between the requirements of the Directive and the
Regulation for one year from the entry into application of the Regulation.
Under the current regime, before a clinical trial can be initiated it must be approved in each of the EU Member States where the trial is to be conducted by
two distinct bodies: the National Competent Authority, or NCA, and one or more Ethics Committees, or ECs. Under the current regime all suspected
unexpected serious adverse reactions, or SUSARs, to the investigated drug that occur during the clinical trial have to be reported to the NCA and ECs of
the Member State where they occurred.
European Union Marketing Authorizations
In the European Economic Area, or EEA (which is comprised of the 27 Member States of the European Union plus Norway, Iceland and
Liechtenstein),medicinal products can only be commercialized after obtaining a Marketing Authorization, or MA. Marketing Authorizations may be
granted either centrally (Community MA) or nationally (National MA).
The Community MA is issued centrally by the European Commission through the Centralized Procedure, based on the opinion of the CHMP of the EMA
and is valid throughout the entire territory of the EEA.
Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2014 provides for the Centralized authorization procedure. The
centralized procedure results in a single marketing authorization, or MA, granted by the European Commission that is valid across the EEA. The
centralized procedure is compulsory for human drugs that are: (i) derived from biotechnology processes, such as genetic engineering, (ii) contain a new
active substance indicated for the treatment of certain diseases, such as HIV/AIDS, cancer, diabetes, neurodegenerative diseases, autoimmune and other
immune dysfunctions and viral diseases, (iii) officially designated orphan medicines and (iv) advanced-therapy medicines, or ATMPs, such as gene therapy,
somatic cell therapy or tissue-engineered medicines.
Under Article 3 of the Regulation (EC) No 726/2004, the Centralized procedure is optional for any medicinal product not appearing in the Annex if: (1) the
medicinal product contains a new active substance which, on the date of entry into force of this Regulation, was not authorized in the Community; or (2)
the applicant shows that the medicinal product constitutes a significant therapeutic, scientific or technical innovation or that the granting of authorization in
accordance with this Regulation is in the interests of patients or animal health at Community level.
National MAs are issued nationally by the competent authorities of the Member States of the EEA and only cover their respective territory. National MAs
are available for products not falling within the mandatory scope of the Centralized Procedure. National MAs may be applied for through the Mutual
Recognition Procedure or Decentralized Procedure in order that multiple competent authorities in different member states of the EEA may each issue a
national MA in their territory for the same product on the back of the same application. We do not foresee that any of our current product candidates will be
suitable for a National MA as they fall within the mandatory criteria for the Centralized Procedure. Therefore, our product candidates will be approved
through Community MAs.
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Under the above-described procedures, before granting the MA, the EMA or the competent authorities of the Member States of the EEA make an
assessment of the risk-benefit balance of the product on the basis of scientific criteria concerning its quality, safety and efficacy.
Market exclusivities
The European Union also provides opportunities for market exclusivity. For example, under Article 14(11) of the Regulation (EC) No 726/2004, without
prejudice to the law on the protection of industrial and commercial property, medicinal products for human use which have been authorized in accordance
with the provisions of this Regulation shall benefit from an eight-year period of data protection and an additional two-year period of marketing protection,
which may be extended further one year period, taking the total regulatory exclusivity period to a maximum of 11 years if, during the first eight years of
regulatory exclusivity, the MA holder obtains an authorization for one or more new therapeutic indications which, during the scientific evaluation prior to
their authorization, are held to bring a significant clinical benefit in comparison with existing therapies.
If granted, data exclusivity prevents regulatory authorities in the European Union from referencing the innovator’s data to assess a generic or biosimilar
application. During the additional two-year period of market exclusivity, a generic or biosimilar marketing authorization can be submitted, and the
innovator’s data may be referenced, but no generic or biosimilar product can be marketed until the expiration of the market exclusivity.
Pediatric clinical trials
Under European law, medicinal products for use in the pediatric population are eligible for rewards and incentives. Under Regulation No 1901/2006, when
the intention is to apply for an MA in accordance with Article 7(1) (a) or (d), Article 8 or Article 30, a Pediatric Investigation Plan, or PIP, must be drawn
up and submitted to the EMA with a request for agreement, unless a deferral or waiver applies (e.g., because the relevant disease or condition occurs only
in adults) (Article 7).
Pursuant to Regulation (EC) No. 1901/2006, all applications for MA for new medicines must include, in addition to the particulars and documents referred
to in Directive 2001/83/EC, the results of all studies performed and details of all information collected in compliance with a PIP, agreed between regulatory
authorities and the applicant, unless the medicine is exempt because of a deferral or waiver of the EMA. Before the EMA is able to begin its assessment of
a Community MA application, it will validate that the applicant has complied with the agreed PIP. The applicant and the EMA may, where such a step is
adequately justified, agree to modify a PIP to assist validation. Modifications are not always possible; may take longer to agree than the period of
validation permits; and may still require the applicant to withdraw its marketing authorization application and to conduct additional non-clinical and
clinical studies.
Products that are granted a MA on the basis of the pediatric clinical trials conducted in accordance with the PIP are eligible for a six-month extension of the
protection under a supplementary protection certificate (if any is in effect at the time of approval) (Regulation No 1901/2006) or, in the case of orphan
medicinal products, a two-year extension of the orphan market exclusivity (Regulation (EC) No 1901/2006, see above). This pediatric reward is subject to
specific conditions and is not automatically available when data in compliance with the PIP are developed and submitted.
We do not currently know whether our product candidates will need to be covered by a PIP.
Orphan designation
Under Article 8 of the Regulation (EC) No 141/2000, products receiving orphan designation in the European Union can receive ten years of market
exclusivity, during which time no similar medicinal product may be placed on the market for the same therapeutic indication. Under Article 37 of the
Regulation (EC) No 1901/2006, an orphan product can also obtain an additional two years of market exclusivity in the European Union for pediatric
studies (in this case for orphan medicinal product no extension to any supplementary protection certificate can be granted, see further detail below).
Under Article 3 of the Regulation (EC) No 141/2000, a medicinal product may be designated as orphan if: (1) (a) it is intended for the diagnosis,
prevention or treatment of a life-threatening or chronically debilitating condition affecting not more than five in ten thousand persons in the European
Union when the application is made, or (b) it is intended for the diagnosis, prevention or treatment of a life-threatening, seriously debilitating or serious and
chronic condition in the European Union and that without incentives it is unlikely that the marketing of the medicinal product in the European Union would
generate sufficient return to justify the necessary investment; and (2) that there exists no satisfactory method of diagnosis, prevention or treatment of the
condition in question that has been authorized in the European Union or, if such method exists, that the medicinal product will be of significant benefit to
those affected by that condition, as defined in Regulation (EC) 847/2000.
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Pursuant to Regulation (EC) No. 847/2000 of April 27, 2000 laying down the provisions for implementation of the criteria for designation of a medicinal
product as an orphan medicinal product and definitions of the concepts “similar medicinal product” and “clinical superiority”, an application for the
designation of a medicinal product as an orphan drug may be submitted at any stage of development of the medicinal product before filing of an MA
application.
Orphan medicinal products are eligible for financial incentives such as reduction of fees or fee waivers and scientific assistance for study proposals
(Articles 6 and 9). The application for orphan medicinal product designation must be submitted before the application for marketing authorization (Article
5). The applicant will receive a fee reduction for the marketing authorization application if the orphan medicinal product designation has been granted, but
not if the designation is still pending at the time the marketing authorization is submitted. Orphan medicinal product designation does not convey any
advantage in, or shorten the duration of, the regulatory review and approval process.
The 10-year market exclusivity may be reduced to six years if, at the end of the fifth year, it is established, in respect of the medicinal product concerned,
that the above-mentioned criteria for orphan medicinal product designation are no longer met, in other words, when it is shown on the basis of available
evidence that the product is sufficiently profitable not to justify maintenance of market exclusivity (Article 8).
Notwithstanding the foregoing, an MA may be granted, for the same therapeutic indication, to a similar medicinal product if:
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the holder of the MA for the original orphan medicinal product has given its consent to the second applicant;
the holder of the MA for the original orphan drug is unable to supply sufficient quantities of the medicinal product; or
the second applicant can establish in the application that the second medicinal product, although similar to the orphan medicinal product already
authorized, is safer, more effective or otherwise clinically superior.
Pharmacovigilance system
The holder of an MA must establish and maintain a pharmacovigilance system and appoint an individual qualified person for pharmacovigilance, or QPPV,
who is responsible for oversight of that system. Key obligations include expedited reporting of suspected serious adverse reactions and submission of
periodic safety update reports, or PSURs to the competent authority.
Also, the competent national authority can ask for interim PSURs outside the submission schedule.
All new MAAs must include a risk management plan, or RMP, describing the risk management system that the company will put in place and documenting
measures to prevent or minimize the risks associated with the product. The regulatory authorities may also impose specific obligations as a condition of the
MA. Such risk-minimization measures or post-authorization obligations may include additional safety monitoring, more frequent submission of PSURs, or
the conduct of additional clinical trials or post-authorization safety studies. RMPs and PSURs are routinely available to third parties requesting access,
subject to limited redactions.
Advertising
All advertising and promotional activities for the product must be consistent with the approved summary of product characteristics, and therefore all off-
label promotion is prohibited. Direct-to-consumer advertising of prescription medicines is also prohibited in the European Union. Although general
requirements for advertising and promotion of medicinal products are established under EU directives, the details are governed by regulations in each EU
Member State and can differ from one country to another.
If we fail to comply with applicable foreign regulatory requirements, we may be subject to, among other things, fines, suspension or withdrawal of
regulatory approvals, product recalls, seizure of products, operating restrictions and criminal prosecution.
Other European Regulatory Matters
French Regulatory Framework
France: Clinical trials
General framework: In the European Union, pending the entry into force of Regulation No. 536/2014, the regulation governing clinical trials is currently
based on European Directive No. 2001/20/EC of April 4, 2001 relative to the implementation of good clinical practices in the conduct of clinical trials on
medicinal products for human use. Each Member State of the European Union had to transpose this Directive into national law, which resulted in Member
States adapting it to their own regulatory framework.
In France, for example, Directive No. 2001/20/EC has been implemented by Law 2004-806 of August 9, 2004 regarding the public health policy and
Decree 2006-477 of April 26, 2006, modifying the section of the Public Health Code, or PHC, on biomedical
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research. The Act of August 9, 2004 was notably amended by Law No. 2012-300 of March 5, 2012, or the “Loi Jardé,” related to biomedical research
involving human subjects, and French Order No. 2016-800 of June 16, 2016 related to clinical trials of medicinal products for human use, which has
recently adapted French law to the new provisions of Regulation No. 536/2014 of the European Parliament and of the Council of April 16, 2014 related to
clinical trials of medicinal products for human use, which repealed Directive 2001/20/EC. The Jardé Act was inapplicable for a long time, and applicable
since November 18, 2016, date of its enforcement decree.
This decree specifies the modalities for carrying out research involving the human person. In particular, it specifies the definitions applicable to the various
categories of research falling within its scope, the operation of the committees for the protection of persons (CPP), the procedures for requesting an opinion
from the CPP and authorization from the ANSM, as well as the rules applicable to vigilance.
Applicable provisions: French Act No. 2012-300 of March 5, 2012, or the “Loi Jardé,” related to research involving the human person, and French Order
No. 2016-800 of 16 June 2016 related to research involving the human person have adapted French law to the new provisions of Regulation No. 536/2014.
Article L. 1121-4 and L. 1123-8 PHC currently in force (as amended by Law 2004-806, Law 2012-300 Order 2016-800), establishes a system of prior
authorization for interventional clinical trials only. This authorization is granted by the French Medicines Agency, or ANSM. The conduct of all clinical
trials (interventional or not) also requires a favorable opinion of the competent Ethics Committee (Comité de protection des personnes – CPP).
Ethics Committee assessment: Under Article L. 1123-7 of the PHC, the competent Ethics Committee—selected randomly by drawing lots under Article
L. 1123-6 of the PHC—shall notably assess whether the conditions in which the trial will be conducted are valid. This assessment should be based on
whether: adequate protection is offered to individuals, in particular to participants; adequate information is provided to the participants and appropriate
procedure is in place to obtain their informed consent; the project is relevant; the benefits/risks assessment is satisfactory; the objectives of the trial are
adequate to the means implemented; the qualification of the investigator(s) is satisfactory; the conditions and amount of patients’ remuneration is
compliant; and the method for recruiting participants is adequate.
ANSM authorization: The ANSM, after submission of the complete file containing not only information on the clinical protocol, but also specific product
data and its quality control, as well as results of preclinical studies, may inform the sponsor that it objects to the implementation of the research. The
sponsor can then modify the contents of its research project and submit this amended or supplemented request to the ANSM. If the sponsor does not alter
the content of its request, the request is considered rejected. Under Article R. 1123-38 of the PHC, the time limit for the examination of a request for
authorization cannot exceed 60 days from the receipt of the complete file. Under Article L. 1123-11 of the PHC, in the event of risk to public health or if
the ANSM considers that the conditions in which the research is implemented no longer correspond to the conditions indicated in the request for
authorization or does not comply with the provisions of the Public Health Code, it may at any time request changes to procedures for the realization of
research, and suspend or ban this research.
The decision of the ANSM of November 24, 2006 sets the rules for Good Clinical Practice, or GCPs, for clinical trials on medicines for human use as
referred to in Article L. 1121-3 of the PHC. GCPs aim to ensure both the reliability of data arising from clinical trials and the protection of the persons
participating in these clinical trials. GCPs apply to all clinical trials, including pharmacokinetics, bioavailability and bioequivalence studies in healthy
volunteers as well as Phase 2 to Phase 4 clinical trials.
Depending of the type of personal data processing carried out during clinical trials and the nature of such trials, it might be necessary to carry out
formalities by the French Data Protection Authority, or the CNIL. The sponsor of the trial might have to file with the CNIL a compliance undertaking with
one of CNIL's reference methodologies through a simplified notification procedure or file for a request of authorization. Patients then always shall have a
right to access and correct their personal data, and to object to their processing/withdraw their consent, require their deletion or a limitation of the
processing pursuant to the GDPR.
The main French legislative and regulatory texts relating to the conduct of clinical trials are as follows (which are mainly codified in the French Public
Health Code (Articles L. 1121-1 to L. 1126-12 and Articles R. 1121-1 to R. 1125-26)):
•
Regulation No. 536/2014, of the European Parliament and of the Council of April 16, 2014 related to clinical trials of medicinal products for
human use, which repealed Directive No. 2001/20/EC;
• Decree No. 2017/884 of May 9, 2017 modifying regulatory provisions related to research involving human subjects;
• Decree No. 2016-1538 of November 16, 2016 on the Unique Agreement for the implementation of commercial clinical trials involving human
beings in health care institutions;
• Decree No. 2016-1537 of November 16, 2016 related to research involving human beings;
• Order No. 2016-800 of June 16, 2016 related to research involving human beings;
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•
•
Loi Jardé, Law No. 2012-300 of March 5, 2012, related to biomedical research involving human subjects;
Law 2004-806 of August 9, 2004 related to the public health policy;
• Decision of December 29, 2015 establishing the rules of Good Manufacturing Practice;
•
•
Law 78-17 of January 6, 1978, as amended, on data protection and its implementing decrees;
Law 2002-303 of March 4, 2002 and its implementing decrees regarding patient’s rights and the quality of the healthcare system;
• Deliberation No. 2018-153 of May 3, 2018 approving a reference methodology relating to the processing of personal data implemented in the
context of research in the field of health with the consent of the person concerned (MR -001);
• Decision No. 2016-262 of July 21, 2016 concerning the standard methodology for the processing of personal data carried out within the context
of clinical trials (standard methodology MR-001);
• Deliberation No. 2015-256 of July 16, 2015 approving a reference methodology relating to the processing of personal data implemented in the
context of non-interventional performance studies on in vitro diagnostic medical devices (MR- 002);
• Decision No. 2016-263 of July 21, 2016 concerning the approval of a standard methodology for processing personal data in the context of
research in the field of health, which does not require the express consent of the person involved (methodology MR-003);
• Deliberation No 2018-154 of May 3, 2018 approving the reference methodology relating to the processing of personal data implemented in the
context of research in the field of health that does not require the collection of the consent of the person concerned (MR-003);
• Deliberation No 2018-155 of May 3, 2018 approving the reference methodology relating to the processing of personal data implemented in the
framework of research not involving the human person, studies and evaluations in the field of health (MR-004);
• Deliberation No. 2018-256 of June 7, 2018 approving a reference methodology relating to data processing requiring access by health institutions
and federations to PMSI data and centralized emergency passage summaries (ERs) and made available on the secure platform of the ATIH (MR-
005);
• Deliberation No. 2018-257 of June 7, 2018 approving a reference methodology relating to the processing of data requiring access on behalf of
persons producing or marketing products mentioned in II of Article L. 5311-1 of the public health code to centralized PMSI data and made
available by ATIH through a secure solution (MR-006);
•
•
Law 2011-2012 of December 29, 2011 strengthening the safety of medicines and health products;
Law 2000-230 of March 13, 2000, Decree 2001-272 of March 30, 2001 as amended, and Decree 2002-535 of April 18, 2002, relating to
electronic signatures;
• Decree No. 2016-1871 of December 28, 2016 concerning the processing of personal data on the new “National Health Data System” of France;
• Decision of November 24, 2006 establishing the rules for Good Clinical Practice;
•
•
Law of January 6, 1978 on Information Technology, Data Files and Civil Liberties as amended; and
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data.
Protection of Clinical Trial Subjects
Under French law (Article L. 1121-2 PHC), a clinical trial may be undertaken only if (i) it is based on the latest stage of scientific knowledge and on
sufficient preclinical testing, (ii) the foreseeable risk incurred by the subjects is outweighed by the benefit expected for these persons or the interest of the
research, (iii) it aims at expanding scientific knowledge and the means possible to improve the human condition and (iv) the research was designed to
reduce the pain, inconveniences, fear and other predictable inconvenience connected to the disease or to the research, by taking into account in particular
the degree of maturity of minors and the capacity of understanding of adults unable to express an informed consent. All these conditions must be fulfilled
in order to start a clinical trial.
A clinical trial (Article L. 1121-3 PHC) may be undertaken under the following technical conditions: (a) under the direction and the supervision of a
qualified physician and (b) under adapted material and technical conditions, compatible with the rigorous imperatives of science and the safety of the
clinical trial subjects.
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Two documents must be provided to clinical trial subjects before the conduct of the trial. First, the patient must receive a patient information sheet which
must contain in particular a description of the objective, the methodology and the time period of the research, as well as a description of the alternative
treatments, the number of subjects expected to take part in the study, the anticipated benefits, the constraints and the foreseeable risks resulting from the
administration of the products that are the object of the clinical trials but also the favorable opinion of the ethics committee and the authorization of the
ANSM, and information on processing of personal data. The information communicated must be summarized in a written document delivered to the patient
prior to any administration of products by the investigator or a physician (Article L. 1122-1 PHC).
Second, the patient must confirm his or her agreement to participate in the clinical study by signing an informed consent form (Article L. 1122-1-1 PHC).
For each study, patient information must include a right to refuse to participate and to withdraw consent at any time and by any means without further
consequences or prejudice. A clinical trial on a minor may be undertaken only if, in particular, the informed consent of the parents or legal representative
has been obtained. Furthermore, a clinical trial on adults under guardianship requires the informed consent of the adult’s legal representative.
Responsibility of the sponsor and insurance obligation of the sponsor
The sponsor shall indemnify the subject of the trial in case of damage arising as a consequence of the research, unless he proves that the damage does not
result from his fault or the fault of any other person intervening in the trial (Article L.1121-10 PHC). The sponsor must have an insurance covering its civil
liability and the liability of any person intervening in the research, for any damage arising from the trial for a minimum of 10 years as of the end of the trial
(Article L.1121-10 PHC).
Under French law, the State is responsible for compensating the damage resulting from a medical accident occurring during a clinical trial in the event of
no fault, i.e. in the event of a medical accident for which no fault is found. In this respect, a mechanism provides for compensation by the National Office
for Medical Accidents (Office national des accidents médicaux), as part of national solidarity.
France: Post-marketing requirements
Any pharmaceutical product distributed in France will be subject to pervasive and continuing regulation by the ANSM, including, among other things,
record-keeping requirements, reporting of adverse experiences with the product, providing updated safety and efficacy information, distribution
requirements, complying with promotion and advertising requirements. French law strictly regulates labeling, advertising, promotion and other types of
information on products that are placed on the market and imposes requirements and restrictions on drug manufacturers, such as those related to direct-to-
consumer advertising, the prohibition on promoting products for uses or in patient populations that are not described in the product’s approved labeling
(known as “off-label use”), industry-sponsored scientific and educational activities.
Failure to comply with the applicable regulatory requirements may result in restrictions on the marketing of a product or withdrawal of the product from the
market as well as possible administrative or criminal sanctions.
France: Declaration of Financial Interests
“Transparency” or “French Sunshine Act”: The French Public Health Code (PHC) contains certain provisions regarding transparency of fees and
rewards received by some healthcare professionals from industries, i.e. companies manufacturing or marketing health products, resulting from an Act No.
2011-2012 of December 29, 2011, amended by an Act No. 2016-41 of 26 January 2016, and corresponding implementing decrees. It results from these
provisions (Article L.1453-1 and D. 1453-1 and seq. PHC) that companies manufacturing or marketing healthcare products (medicinal products, medical
devices, etc.) in France shall publicly disclose (on a specific public website available at: https://www.entreprises-transparence.sante.gouv.fr) the advantages
and fees paid to healthcare professionals amounting to 10 euros or above, as well as the agreements concluded with the latter, along with detailed
information about each agreement (the precise subject matter of the agreement, the date of signature of the agreement, its end date, the total amount paid to
the healthcare professional, etc.).
“Anti-gift”: The French Public Health Code also contains “anti-gift” provisions setting out a general prohibition of payments and rewards from industries,
i.e. companies manufacturing or marketing health products, to healthcare professionals, with limited exceptions and strictly defines the conditions under
which such payments or rewards are lawful. The provisions resulting from an Act No. 2011-2012 were amended by an Order No. 2017-49 of January 19,
2017 ratified by the Law 2019-774 of July 24, 2019 which notably extended their application to a broader range of legal and physical persons - including
social media influencers, specified the scope of the operations excluded from the prohibition and those authorized under some conditions, and provided for
a new authorization process. The changes of the “anti-gift” rules were aimed to enter into force on a date provided by decree or, at the latest, on July 1,
2018. In the absence of implementing texts to date, the new provisions (Articles L. 1453-3 to L. 1453-12 PHC) entered into force on July 1, 2018. A decree
of August 7, 2020 sets out the amounts for which the benefit, depending on the benefit provided, is considered negligible and does not require any
declaratory action. A second decree of August 7, 2020 defines the amounts above
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which the agreement is subject to an authorization regime, with amounts less than or equal to these amounts requiring a simple declaration. The decree also
provide with the declaration schedule to the competent authority.
French Pharmaceutical Company Status
We have the regulated status of pharmaceutical establishment and operating company, which allows us to manufacture and market our product candidates.
Obtaining a pharmaceutical establishment license, either as a distributor or as a manufacturer requires the submission of an application dossier to the
ANSM. The application package will vary depending on the type of application (distribution license or manufacturing license). The ANSM grants such
license after verifying that the company has adequate premises, the necessary personnel and adequate procedures to carry out the proposed pharmaceutical
activities.
Reimbursement and Health Reform
Significant uncertainty exists as to the coverage and reimbursement status of any product candidates for which we obtain regulatory approval. In the case of
GRASPA, we have entered into distribution arrangements with Orphan Europe and Teva for marketing in Europe and Israel, respectively, and those third
parties will be responsible for obtaining coverage and reimbursement for GRASPA in those territories if it is approved. Our agreement with Orphan Europe
was terminated in the first half of 2019 without financial consequences to us. The agreement with Teva is still in effect, but, at this time, there are no
current ongoing obligations under the agreement. Sales of our products will depend, in part, on the extent to which our products, once approved, will be
covered and reimbursed by third-party payors, such as government health programs, commercial insurance and managed healthcare organizations. These
third-party payors are increasingly reducing reimbursement levels for medical products and services. The process for determining whether a third-party
payor will provide coverage for a drug product typically is separate from the process for setting the price of a drug product or for establishing the
reimbursement rate that a payor will pay for the drug product once coverage is approved. Third-party payors may limit coverage to specific drug products
on an approved list, also known as a formulary, which might not include all of the approved drugs for a particular indication.
To secure coverage and reimbursement for any product candidate that might be approved for sale, we may need to conduct expensive pharmacoeconomic
studies in order to demonstrate the medical necessity and cost-effectiveness of the product candidate, in addition to the costs required to obtain FDA or
other comparable regulatory approvals. Whether or not we conduct such studies, our product candidates may not be considered medically necessary or
cost-effective. A third-party payor’s decision to provide coverage for a drug product does not imply that an adequate reimbursement rate will be approved.
Further, one payor’s determination to provide coverage for a product does not assure that other payors will also provide coverage, and adequate
reimbursement, for the product. Third-party reimbursement may not be sufficient to enable us to maintain price levels high enough to realize an appropriate
return on our investment in product development.
The containment of healthcare costs has become a priority of federal and state governments, and the prices of drugs have been a focus in this effort. The
U.S. government, state legislatures and foreign governments have shown significant interest in implementing cost-containment programs, including price
controls, restrictions on reimbursement, utilization management and requirements for substitution of generic products. Adoption of price controls and cost-
containment measures, and adoption of more restrictive policies in jurisdictions with existing controls and measures, could further limit our net revenue and
results. Decreases in third-party reimbursement for our product candidates or a decision by a third-party payor to not cover our product candidates could
reduce physician usage of the product candidates and could have a material adverse effect on our sales, results of operations and financial condition.
For example, the ACA has already had, and is expected to continue to have, a significant impact on the health care industry. The ACA has expanded
coverage for the uninsured while at the same time containing overall healthcare costs. With regard to pharmaceutical products, among other things, the
ACA expanded and increased industry rebates for drugs covered under Medicaid programs and made changes to the coverage requirements under the
Medicare Part D program. Some of the provisions of the ACA have yet to be implemented, and there have been judicial and Congressional challenges to
certain aspects of the ACA, as well as recent efforts by the Trump administration to repeal or replace certain aspects of the ACA. Since January 2017,
President Trump signed several Executive Orders and other directives designed to delay the implementation of certain provisions of the ACA or otherwise
circumvent some of the requirements for health insurance mandated by the ACA. Concurrently, Congress considered legislation that would repeal or repeal
and replace all or part of the ACA. While Congress has not passed comprehensive repeal legislation, several bills affecting the implementation of certain
taxes under the ACA have been signed into law. The Tax Act included a provision which repealed, effective January 1, 2019, the tax-based shared
responsibility payment imposed by the ACA on certain individuals who fail to maintain qualifying health coverage for all or part of a year that is
commonly referred to as the “individual mandate.” The 2020 federal spending package permanently eliminated, effective January 1, 2020, the ACA-
mandated “Cadillac” tax on high-cost employer-sponsored health coverage and medical device tax and, effective January 1, 2021, also eliminates the health
insurer tax. Further, the BBA, among other things, amended the ACA, effective January 1, 2019, to increase from 50 percent to 70 percent the point-of-sale
discount that is owed by pharmaceutical manufacturers who participate in Medicare Part D and to close the coverage gap in most Medicare drug plans,
commonly referred to as the “donut hole.” On December 14, 2018, a Texas U.S. District Court Judge ruled that
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ACA is unconstitutional in its entirety because the “individual mandate” was repealed by Congress as part of the Tax Act. Additionally, on December 18,
2019, the U.S. Court of Appeals for the 5th Circuit upheld the District Court ruling that the individual mandate was unconstitutional and remanded the case
back to the District Court to determine whether the remaining provisions of the ACA are invalid as well. The U.S. Supreme Court is currently reviewing
this case, although it is uncertain when a decision will be made. Although the U.S. Supreme Court has yet ruled on the constitutionality of the ACA, on
January 28, 2021, President Biden issued an executive order to initiate a special enrollment period from February 15, 2021 through May 15, 2021 for
purposes of obtaining health insurance coverage through the ACA marketplace. The executive order also instructs certain governmental agencies to review
and reconsider their existing policies and rules that limit access to healthcare, including among others, reexamining Medicaid demonstration projects and
waiver programs that include work requirements, and policies that create unnecessary barriers to obtaining access to health insurance coverage through
Medicaid or the ACA. It is unclear how the Supreme Court ruling, other such litigation, and the healthcare reform measures of the Biden administration
will impact ACA.
In addition, other legislative changes have been proposed and adopted in the United States since the ACA was enacted. For example, on August 2, 2011,
the Budget Control Act of 2011 among other things, created measures for spending reductions by Congress. Specifically, the Joint Select Committee on
Deficit Reduction was created to recommend to Congress proposals in spending reductions. The Joint Select Committee on Deficit Reduction did not
achieve a targeted deficit reduction of at least $1.2 trillion for the years 2012 through 2021, thereby triggering the legislation’s automatic reduction to
several government programs. This includes aggregate reductions to Medicare payments to providers of up to 2% per fiscal year, started in April 2013 and
which, due to subsequent legislative amendments, including the BBA, will stay in effect through 2030 unless additional Congressional action is taken.
However, COVID-19 relief support legislation suspended the 2% Medicare sequester from May 1, 2020 through March 31, 2021. Additionally, on
January 2, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012, which, among other things, reduced Medicare payments to
several providers, including hospitals, imaging centers and cancer treatment centers, and increased the statute of limitations period for the government to
recover overpayments to providers from three to five years.
Recently, there has been heightened governmental scrutiny over the manner in which manufacturers set prices for their marketed products. Such scrutiny
has resulted in several recent U.S. Congressional inquiries and proposed and enacted federal and state legislation designed to, among other things, bring
more transparency to drug pricing, review the relationship between pricing and manufacturer patient programs, reduce the cost of drugs under Medicare
and reform government program reimbursement methodologies for drug products. At the federal level, the Trump administration’s budget proposal for
fiscal year 2021 includes a $135 billion allowance to support legislative proposals seeking to reduce drug prices, increase competition, lower out-of-pocket
drug costs for patients, and increase patient access to lower-cost generic and biosimilar drugs. Further, the Trump administration released a “Blueprint”, or
plan, to lower drug prices and reduce out of pocket costs of drugs that contained proposals to increase drug manufacturer competition, increase the
negotiating power of certain federal healthcare programs, incentivize manufacturers to lower the list price of their products, and reduce the out of pocket
costs of drug products paid by consumers.On July 24, 2020 and September 13, 2020, the Trump administration announced several executive orders related
to prescription drug pricing that seek to implement several of the administration’s proposals. As a result, the FDA released a final rule on September 24,
2020, effective November 30, 2020, providing guidance for states to build and submit importation plans for drugs from Canada. Further, on November 20,
2020, HHS finalized a regulation removing safe harbor protection for price reductions from pharmaceutical manufacturers to plan sponsors under Part D,
either directly or through pharmacy benefit managers, unless the price reduction is required by law. The implementation of the rule has been delayed by the
Biden administration from January 1, 2022 to January 1, 2023 in response to ongoing litigation. The rule also creates a new safe harbor for price reductions
reflected at the point-of-sale, as well as a safe harbor for certain fixed fee arrangements between pharmacy benefit managers and manufacturers , the
implementation of which have also been delayed pending review by the Biden administration until March 22, 2021. On November 20, 2020, CMS issued
an interim final rule implementing President Trump’s Most Favored Nation executive order, which would tie Medicare Part B payments for certain
physician-administered drugs to the lowest price paid in other economically advanced countries, effective January 1, 2021. On December 28, 2020, the
U.S. District Court in Northern California issued a nationwide preliminary injunction against implementation of the interim final rule. The likelihood of
implementation of any of the other Trump administration reform initiatives is uncertain as it is unclear whether the Biden administration will work to
reverse these measures or pursue similar policy initiatives. At the state level, legislatures have increasingly passed legislation and implemented regulations
designed to control pharmaceutical and biological product pricing, including price or patient reimbursement constraints, discounts, restrictions on certain
product access and marketing cost disclosure and transparency measures, and, in some cases, designed to encourage importation from other countries and
bulk purchasing.
We expect that additional federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state
governments will pay for healthcare products and services, and in turn could significantly reduce the projected value of certain development projects and
reduce our profitability. Further, it is possible that additional action is taken in response to the COVID-19 pandemic.
In addition, in some foreign countries, the proposed pricing for a drug must be approved before it may be lawfully marketed. The requirements governing
drug pricing vary widely from country to country. For example, the European Union provides options for its
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Member States to restrict the range of medicinal products for which their national health insurance systems provide reimbursement and to control the prices
of medicinal products for human use. A Member State may approve a specific price for the medicinal product or it may instead adopt a system of direct or
indirect controls on the profitability of the company placing the medicinal product on the market. For example, in France, effective market access will be
supported by agreements with hospitals and products may be reimbursed by the Social Security Fund. The price of medicines is negotiated with the
Economic Committee for Health Products, or CEPS. There can be no assurance that any country that has price controls or reimbursement limitations for
pharmaceutical products will allow favorable reimbursement and pricing arrangements for any of our product candidates. Historically, products launched in
the European Union do not follow price structures of the United States and generally prices tend to be significantly lower.
Other Healthcare Laws and Compliance Requirements
Our business operations in the United States and our arrangements with clinical investigators, healthcare providers, consultants, third party payors and
patients may expose us to broadly applicable federal and state fraud and abuse and other healthcare laws. These laws may impact, among other things, our
research, proposed sales, marketing and education programs of our product candidates that obtain marketing approval. The laws that may affect our ability
to operate include, among others:
•
•
the U.S. federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully soliciting,
receiving, offering or paying remuneration (including any kickback, bribe or rebate), directly or indirectly, in cash or in kind, to induce or
reward, or in return for, either the referral of an individual for, or the purchase, lease, order, or recommendation of, an item, good, facility or
service reimbursable under a federal healthcare program, such as the Medicare and Medicaid programs;
the U.S. federal civil and criminal false claims laws, including the civil False Claims Act, which can be enforced by individuals, on behalf of the
government through civil whistleblower or qui tam actions, and civil monetary penalty laws prohibits individuals and entities from, among other
things, knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid, or other third-party payors that are false
or fraudulent, or making a false statement or record material to payment of a false claim or avoiding, decreasing, or concealing an obligation to
pay money to the federal government, including for example, providing inaccurate billing or coding information to customers or promoting a
product off-label;
• HIPAA, which created additional federal, civil and criminal statutes that prohibit knowingly and willfully executing or attempting to execute a
scheme to defraud any healthcare benefit program, knowingly and willfully embezzling or stealing from a healthcare benefit program, willfully
obstructing a criminal investigation of a healthcare offense, and knowingly and willingly falsifying, concealing or covering up a material fact or
making materially false statements, fictitious, or fraudulent statements in connection with the delivery of or payment for healthcare benefits,
items, or services;
•
the federal Physician Payments Sunshine Act, enacted as part of the ACA, which requires applicable manufacturers of drugs, devices, biologics
and medical supplies for which payment is available under Medicare, Medicaid, or the Children’s Health Insurance Program, with specific
exceptions, to track and annually report to CMS payments and other transfers of value provided to physicians (defined to include doctors,
dentists, optometrists, podiatrists and chiropractors) and teaching hospitals and certain ownership and investment interests held by physicians or
their immediate family members. Beginning in 2022, applicable manufacturers also will be required to report such information regarding its
payments and other transfers of value to physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists
and certified nurse midwives during the previous year;
• HIPAA, as amended by HITECH, and their implementing regulations, which imposes certain requirements on covered entities, and their
business associates that perform functions or activities that involve individually identifiable health information on their behalf as well as their
covered subcontractors, relating to the privacy, security and transmission of individually identifiable health information; and
•
State and/or foreign equivalents of each of the above federal laws and regulations, such as: state anti-kickback and false claims laws which may
apply to items or services reimbursed by any third-party payor, including commercial insurers; state marketing and/or transparency laws
applicable to manufacturers that may be broader in scope than the federal requirements; state laws that require biopharmaceutical companies to
comply with the biopharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the
federal government; state laws that require drug manufacturers to report information related to payments and other transfers of value to
physicians and other healthcare providers, marketing expenditures, or drug pricing; state and local laws that require the registration of
pharmaceutical sales representatives; and state and/or foreign laws governing the privacy and security of health information in certain
circumstances, many of which differ from each other in significant ways and may not have the same effect as HIPAA, thus complicating
compliance efforts.
The ACA broadened the reach of the federal fraud and abuse laws by, among other things, amending the intent requirement of the U.S. federal Anti-
Kickback Statute and certain federal criminal healthcare fraud statutes. Pursuant to the statutory amendment, a person or
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entity no longer needs to have actual knowledge of those statutes or specific intent to violate them in order to have committed a violation. In addition, the
ACA provides that the government may assert that a claim including items or services resulting from a violation of the U.S. federal Anti-Kickback Statute
constitutes a false or fraudulent claim for purposes of the civil False Claims Act or the civil monetary penalties statute.
Efforts to ensure that our business arrangements with third parties will comply with applicable healthcare laws will involve substantial costs. It is possible
that governmental authorities will conclude that our business practices may not comply with current or future statutes, regulations or case law involving
applicable fraud and abuse or other healthcare laws. If our operations are found to be in violation of any of these laws or any other governmental
regulations that may apply to us, we may be subject to, for example, significant administrative, civil, and criminal penalties, damages, fines, disgorgement,
contractual damages, reputational harm, diminished profits and future earnings, imprisonment, exclusion from government funded healthcare programs,
such as Medicare and Medicaid, additional reporting requirements and oversight if we become subject to a corporate integrity agreement or similar
agreement to resolve allegations of non-compliance with these laws and the curtailment or restructuring of our operations. If the physicians or other
healthcare providers or entities with whom we expect to do business are found to be not in compliance with applicable laws, they may be subject to
significant administrative, civil, and criminal sanctions, including exclusions from government funded healthcare programs.
4.C.Organizational Structure.
The following diagram illustrates our corporate structure:
4.D.Property, Plants and Equipment.
Our principal executive offices are located at 60 Avenue Rockefeller, 69008 Lyon, France. We lease office and laboratory space, which together consist of
approximately 1,400 square meters, in Lyon, France. The lease for this facility expires in June 2024, and we have the ability to terminate the lease early in
June 2021. In July 2019, we entered into another lease in Lyon, France for additional offices and laboratory space, which together will consist of
approximately 3,000 square meters. The lease for this facility expires in June 2029, and we will have the ability to terminate the lease either in June 2025 or
June 2028. We believe our current leased space is sufficient to meet our current needs in Europe.
In February 2016, we opened our U.S. office in Cambridge, Massachusetts. We currently lease 6,289 square feet of office space in Cambridge,
Massachusetts under a lease that expires in June 2029. In 2018, we entered into a lease for 3,000 square meters of manufacturing and office space in
Princeton, New Jersey, under a lease that expires in June 2029. Our Princeton manufacturing facility in Princeton has been able to produce GMP-compliant
batches since the fourth quarter of 2019. Additionally, our Princeton manufacturing facility was designed with the ability to scale production to supply
eryaspase to meet our anticipated clinical trial needs, including for supply requirements for U.S. patients in the TRYbeCA-1 trial, and for our anticipated
initial commercial needs in the United States, if eryaspase receives approval. Following the opening of our Princeton manufacturing facility, we terminated
our agreement with the American Red Cross for the use of a manufacturing facility in Philadelphia, Pennsylvania in January 2020.
73
We believe our production facilities will be sufficient to supply eryaspase for our ongoing Phase 2 and Phase 3 clinical trials and to meet our anticipated
initial commercial needs for eryaspase in Europe and United States, if approved.
Item4.A.Unresolved Staff Comments.
Not applicable.
Item 5. Operating and Financial Review and Prospects.
You should read the following discussion of our operating and financial review and prospects in conjunction with our audited consolidated financial
statements and the related notes thereto included elsewhere in this Annual Report. In addition to historical information, the following discussion and
analysis contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results and the timing of events could differ materially
from those anticipated in the forward-looking statements. Factors that could cause or contribute to these differences include those discussed below and
elsewhere in this Annual Report, particularly in sections titled “Risk Factors” and “Special Note Regarding Forward-Looking Statements.”
Overview
We are a clinical-stage biopharmaceutical company developing innovative therapies for severe forms of cancer and orphan diseases. Leveraging our
proprietary ERYCAPS platform, which uses a novel technology to encapsulate therapeutic drug substances inside erythrocytes, or red blood cells, or RBC.
We are developing a pipeline of product candidates for patients with high unmet medical needs. Our lead product candidate eryaspase, which we also refer
to as GRASPA, targets the metabolism of cancer cells by depriving the cells of asparagine, an amino acid necessary for their survival and critical in
maintaining the cells’ rapid growth rate. We are currently developing eryaspase for the treatment of severe tumors, including pancreatic cancer, acute
lymphoblastic leukemia, or ALL, and triple negative breast cancer, or TNBC. We are also exploring the use of our ERYCAPS platform for developing
cancer immunotherapies and enzyme therapies.
Since our inception, we have devoted substantially all of our financial resources to research and development efforts, including conducting preclinical
studies and clinical trials of our product candidates, providing general and administrative support for our operations and protecting our intellectual property.
As of December 31, 2020, we had cash and cash equivalents amounted of €44.4 million ($54.4 million). Historically, we have financed our operations and
growth through private and public offerings of our equity securities, convertible notes, loans, public assistance programs in support of innovation, such as
the conditional advances and subsidies from Bpifrance, a French public investment bank and from research tax credits. In May 2013, we completed the
initial public offering of our ordinary shares on Euronext Paris, from which we raised €17.7 million in gross proceeds. In November 2017, we completed a
global offering for gross proceeds of $143.7 million, or €123.6 million. The global offering consisted of a U.S. initial public offering of 5,389,021 ADS,
each representing one ordinary share, and a concurrent private placement in Europe and other countries outside of the United States and Canada of 791,116
ordinary shares. Our net proceeds from the global offering were approximately €112.1 million ($130.4 million).
Since our inception in 2004, we have incurred significant operating losses. Our net loss was €38.2 million, €62.7 million and €73.3 million for the years
ended December 31, 2018, 2019 and 2020, respectively. We had a consolidated shareholders' equity of €26.5 million as of December 31, 2020, and we
expect to incur significant expenses and substantial operating losses over the next several years as we continue our research and development efforts and
advance our clinical development programs in Europe and the United States. Although it is difficult to predict future liquidity requirements, we believe that
our existing cash and cash equivalents as of the date of this Annual Report will be sufficient to fund our operations until the fourth quarter 2021. If we take
into account potential proceeds from the OCABSA Agreement, then we believe we could fund our operations until the first quarter 2022. Refer to "Item
3.D.1 Risks Related to our Financial Position and Capital Needs for further details.
Our net losses may fluctuate significantly from quarter to quarter and year to year, depending on the timing of our clinical trials, the receipt of milestone
payments, if any, and our expenditures on other research and development activities. We anticipate that our expenses will increase substantially in
connection with our ongoing activities, as we:
•
•
•
•
conduct our ongoing and planned clinical trials of eryaspase in Europe and in the United States;
seek regulatory approvals for any product candidates that successfully complete clinical trials;
scale-up our manufacturing capabilities to support the launch of additional clinical studies and the commercialization of our product candidates,
if approved;
establish a sales and marketing infrastructure for the commercialization of our product candidates, if approved;
• maintain, expand and protect our intellectual property portfolio;
74
•
•
•
•
continue the research and development of our other product candidates, including planned and future clinical trials;
seek to discover and develop additional product candidates;
seek to attract and retain new and existing skilled personnel; and
create additional infrastructure to support our operations as a public company listed in the United States.
Until such time that we can generate substantial revenue from product sales, we expect to finance these expenses and our operating activities through a
combination of equity offerings, debt financings, government or other third-party funding, marketing and distribution arrangements and other
collaborations, strategic alliances and licensing arrangements. However, we may be unable to raise additional funds or enter into other funding
arrangements when needed on favorable terms, or at all, which would have a negative impact on our financial condition and could force us to delay, limit,
reduce or terminate our development programs or commercialization efforts or grant rights to third parties to develop or market product candidates that we
would otherwise prefer to develop and market ourselves. Moreover, no assurance can be given at this time as to whether we will be able to achieve these
financing objectives. Our ability to successfully transition to profitability will be dependent upon achieving a level of revenues adequate to support our cost
structure. We cannot assure you that we will ever be profitable or generate positive cash flow from operating activities.
The consolidated financial statements as of and for the years ended December 31, 2018, 2019 and 2020 included in this Annual Report have been prepared
in accordance with IFRS as issued by the IASB with no difference with the statutory consolidated financial statements and were approved and authorized
for issuance by our board of directors on March 5, 2021. Due to the listing of our ordinary shares on Euronext Paris and in accordance with the European
Union’s regulation No. 1606/2002 of July 19, 2002 as amended, our consolidated financial statements have also been prepared in accordance with IFRS as
adopted by the European Union, or EU.
Financial Operations Overview
Operating Income
To date, we have not generated any revenue from the sale of products. Our ability to generate product revenue and to become profitable will depend upon
our ability to successfully develop and commercialize eryaspase and our other product candidates. Because of the numerous risks and uncertainties
associated with product development and regulatory approval, we are unable to predict the amount or timing of product revenue. Our operating income
consists of other income.
Research Tax Credit
The research tax credit (crédit d’impôt recherche), or CIR, is granted to companies by the French tax authorities in order to encourage them to conduct
technical and scientific research. Companies demonstrating that they have expenses that meet the required criteria, including research expenses located in
France or, since January 1, 2005, within the European Union or in another state that is a party to the agreement in the European Economic Area that has
concluded a tax treaty with France that contains an administrative assistance clause, receive a tax credit which can be used against the payment of the
corporate tax due the fiscal year in which the expenses were incurred and during the next three fiscal years, or, as applicable, can be reimbursed for the
excess portion. The expenses taken into account for the calculation of the CIR only involve research and development expenses.
The main characteristics of the CIR are the following:
•
•
•
the CIR results in a cash inflow from the tax authorities paid directly to us as we are not subject to corporate income tax;
a company’s corporate income tax liability does not limit the amount of the CIR;
the CIR is not included in the determination of the corporate income tax.
As a result, we have concluded that the CIR meets the definition of a government grant as defined in IAS 20 Accounting for Government Grants and
Disclosure of Government Assistance. As no research and development expenditure is capitalized before obtaining a marketing authorization, the CIR
related to a research program is entirely recognized in "other income" in our statement of income (loss).
75
Subsidies
We have received financial assistance from Bpifrance and other governmental organizations in connection with the development of our product candidates.
Bpifrance’s mission is to provide assistance and support to emerging French enterprises to facilitate the development and commercialization of innovative
technologies.
Funds are recognized in "other income" in our statement of income (loss) for the fiscal year in which the financed expenses were recorded.
Revenue from Licenses or Other Contracts
Since January 1, 2018, agreements are analyzed and recorded in accordance with IFRS 15 Revenue from contracts with customers, or IFRS 15.
Partnership with Orphan Europe for NOPHO clinical trial
Pursuant to the terms of our distribution agreement, Orphan Europe agreed to finance the NOPHO trial for a total amount of €600 thousand. We recognized
revenues related to this partnership under “other income” in our statement of income (loss).
License agreement with SQZ Biotechnologies
Pursuant to the terms of our license agreement with SQZ Biotechnologies, we granted to SQZ Biotechnologies an exclusive worldwide license to develop
antigen specific immune modulating therapies employing red blood cell-based approaches. In accordance with IFRS 15, this agreement grants to SQZ
Biotechnologies a right to use the underlying intellectual property. Consequently, the income is recognized when SQZ Biotechnologies can begin to use the
licensed intellectual property.
Operating Expenses
Our operating expenses consist primarily of research and development expenses and general and administrative expenses.
Research and development expenses
We engage in substantial research and development efforts to develop innovative pharmaceutical product candidates.
Research and development expenses consist primarily of:
•
•
•
•
services, subcontracting and consulting fees, that primarily include the cost of third-party contractors such as contract research organizations, or
CROs, who conduct our clinical trials;
personnel costs, including salaries, related benefits and share-based compensation, for our employees engaged in scientific research and
development functions;
purchases of raw materials, especially asparaginase, and transportation costs associated;
depreciation and amortization expenses.
Since our inception, our research and development efforts have been related primarily to our completed and ongoing clinical trials of eryaspase for the
treatment of pancreatic cancer, ALL and AML. In June 2018, we ceased the development program for eryaspase in ALL and are focusing our development
efforts on eryaspase for the treatment of selected solid tumors. The resources that became available as a result of this strategic decision were allocated to
what we estimate is a significantly larger unmet medical need and market opportunity for the potential treatment of solid tumors, including pancreatic
cancer and TNBC. This decision did not have a significant impact on our consolidated financial statements.
Our direct research and development expenses consist principally of external costs, such as fees paid to consultants, laboratories and CROs in connection
with our clinical trials, and purchases of raw materials which we allocate to our specific research programs.
Research and development activities are central to our business model. Product candidates in later stages of clinical development generally have higher
development costs than those in earlier stages of clinical development, primarily due to the increased size and duration of later-stage clinical trials. We
expect that our research and development expenses will continue to increase in the foreseeable future as we initiate clinical trials for certain product
candidates and pursue later stages of clinical development of other product candidates, and will seek regulatory approvals for our product candidates, if
clinical trial are successfully completed.
We cannot determine with certainty the duration or costs of the current or future clinical trials of our product candidates or if, when, or to what extent we
will generate revenue from the commercialization and sale of any of our product candidates that obtain regulatory
76
approval. We may never succeed in achieving regulatory approval for any of our product candidates. The duration, costs and timing of clinical trials and
development of our product candidates will depend on a variety of factors, including:
•
•
•
•
•
the scope, rate of progress and expense of our ongoing, as well as any additional, non-clinical studies, clinical trials and other research and
development activities;
clinical trial and early-stage results;
the terms and timing of regulatory approvals;
the expense of filing, prosecuting, defending and enforcing patent claims and other intellectual property rights; and
the ability to market, commercialize and achieve market acceptance for eryaspase or any other product candidate that we may develop in the
future.
A change in the outcome of any of these variables with respect to the development of product candidates that we are developing could mean a significant
change in the costs and timing associated with the development of such product candidates. For example, if the FDA, the EMA or other regulatory
authority were to require us to conduct non-clinical and clinical studies beyond those which we currently anticipate will be required for the completion of
clinical development, or if we experience significant delays in enrollment in any clinical trials, we could be required to spend significant additional
financial resources and time on the completion of clinical development.
General and Administrative
General and administrative expenses consists primarily of :
•
•
services, subcontracting and consulting fees, mainly related to legal services, accounting and audit, IT, insurance costs and overhead costs;
personnel costs including share-based compensation for personnel other than employees engaged in scientific research and development
functions;
We anticipate that our general and administrative expenses will increase in the future as we grow our support functions for the expected increase in our
research and development activities and the potential commercialization of our product candidates.
Financial Income (Loss)
Financial income (loss) relates primarily to:
•
•
•
•
expenses and income on convertibles notes recognized in accordance with IFRS 9 (amortized cost and change in fair value of embedded
derivatives),
interest expenses incurred on financial liabilities and lease liabilities,
income received from cash and cash equivalents and
gains and losses on exchange rate variations on financial and investing operation.
Income tax
We do not recognize current tax expense. Deferred tax assets resulting from temporary differences or tax losses carried forward are limited to the deferred
tax liabilities with the same maturity, except where their allocation on future taxable income is probable.
Critical Accounting Policies and Estimates
Some of the accounting methods and policies used in preparing our financial statements under IFRS are based on complex and subjective assessments by
our management or on estimates based on past experience and assumptions deemed realistic and reasonable based on the circumstances concerned. The
actual value of our assets, liabilities and shareholders’ equity and of our losses could differ from the value derived from these estimates if conditions
changed and these changes had an impact on the assumptions adopted. We believe that the most significant management judgments and assumptions in the
preparation of our financial statements are described below. For further details, see Notes to our consolidated financial statements.
Measurement of Share-based payments
We account for share-based compensation in accordance with IFRS 2 Share-based payment, or IFRS 2. Determining the fair value of share-based awards at
the grant date requires judgment. Fair value is estimated using the Black & Scholes valuation model (for BSA, SO and BSPCE valuation) and Monte-Carlo
valuation model (for AGA valuation). The determination of the fair value of warrants
77
using an option-pricing model is affected by assumptions regarding a number of complex and subjective variables. These variables include the expected
term of the awards, expected volatility, risk-free interest rates and expected dividends. If any of the assumptions change significantly, share-based
compensation for future awards may differ materially compared with the awards granted previously.
Measurement of the convertible notes' agreement
Our convertible notes' agreement is measured in accordance with IFRS 9 Financial instruments, or IFRS 9. The determination of the accounting treatment
of this agreement requires judgment. We determined that this agreement includes: (i) a put and call option linked to the mutual commitment between us and
the investor qualified as derivative at the signing date of this agreement, (ii) a conversion option and warrants qualified as derivative at the issuance of a
tranche. Fair value is estimated using the Tsiveriotis Fernandes valuation model for the put and call option, the Monte-Carlo valuation model for the
conversion option and the Black & Scholes valuation model for warrants. The determination of the fair value of the different components using these
models is affected by assumptions regarding a number of complex and subjective variables. These variables include the expected term, expected volatility,
risk-free interest rates, expected dividends for the three valuation models and credit spread for the Tsiveriotis Fernandes valuation model. If any of the
assumptions change significantly, fair value of each components of this agreement could differ materially from their valuation.
Estimate of the hospital costs
The completion of the hospital costs related to clinical trials sponsored by the Company is measured based on two allocation keys : (i) site activation for
fixed establishment costs which are recognized in full when sites are activated and (ii) patient randomization for variable patient costs (including
chemotherapy costs) which are spread over the estimated time of treatment of the patient as planned in the clinical protocol. These allocation keys are
applied to the estimated expenses of the clinical trial. The excess of estimated costs incurred over invoices received is recorded in "Vendors - accruals".
5.A.Operating Results
5.A.1. Operating Income
We generated operating income of €4,447 thousand in 2018, €5,283 thousand in 2019 and €3,718 thousand in 2020. The components of our operating
income are set forth in the table below.
(in thousands of €)
Revenues
Other income
Research Tax Credit
Subsidies
Revenues from licenses or other contracts
Operating income
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
—
4,375
—
72
4,447
—
3,915
294
1,074
5,283
—
3,430
42
246
3,718
The CIR recognized for each of the years 2018 and 2019 ended were received in cash in 2019 and 2020, respectively. We expect to receive the CIR
recognized for the 2020 year in 2021.
Revenues from licenses or other contracts in 2019 are primarily associated with our license agreement with SQZ Biotechnologies.
Research and Development Expenses
Our research and development expenses amounted to €33,468 thousand in 2018, €52,193 thousand in 2019 (an increase of 56% compared to 2018) and
€57,580 thousand in 2020 (an increase of 10% compared to 2019).
Our research and development expenses are broken down in the table below.
78
(in thousands of €)
FOR THE YEAR ENDED DECEMBER 31,
% CHANGE
2018
2019
2020
2018/2019
2019/2020
ERYASPASE
ERYMETHIONASE
IMMUNOTHERAPIES
ENZYME THERAPIES
Direct research and development expenses
Consumables
Rental and maintenance
Services, subcontracting and consulting fees
(1)
Personnel expenses
Depreciation and amortization expense
Other
Indirect research and development expenses
Research and development expenses
(2)
12,883
2,472
389
256
16,000
938
793
4,532
10,914
233
58
17,468
33,468
22,740
2,027
275
7
25,049
2,917
1,292
4,413
14,967
3,508
47
27,144
52,193
28,469
41
2
0
28,512
3,695
1,275
4,179
15,629
4,232
58
29,068
57,580
77 %
(18 %)
(29 %)
(97 %)
57 %
211 %
63 %
(3 %)
37 %
1,406 %
(19 %)
55 %
56 %
25 %
(98 %)
(99 %)
(100 %)
14 %
27 %
(1 %)
(5 %)
4 %
21 %
23 %
7 %
10 %
(1)
(2)
Includes €1,158 thousand, €688 thousand and €531 thousand related to share-based compensation expense for 2018, 2019 and 2020, respectively.
€23,966 thousand, €44,398 thousand and €53,734 thousand of this amount are related to clinical trials for 2018, 2019 and 2020, respectively.
The increase in research and development expenses for periods presented is mainly due to:
• An increase in costs related to eryaspase of €9,857 thousand in 2019 and €5,729 thousand in 2020 because of the initiation of our TRYbeCA-1
trial, which began in September 2018.
• A decrease in costs related to erymethionase of €445 thousand in 2019 and €1,986 thousand in 2020 due to our decision to focus our financial
resources on other strategic priorities.
• An increase in personnel expenses of €4,053 thousand in 2019 and €662 thousand in 2020 , mainly related to an increase in headcount of our
research and development workforce, especially in technical operations, in connection with our ongoing clinical trials and particularly, the
launch of the TRYbeCA-1 trial in September 2018. The average number of full-time employees allocated to our research and development
workforce was 99 in 2018, 156 in 2019 and 166 in 2020.
• An increase in depreciation and amortization expenses of €3,275 thousand in 2019 and €724 thousand in 2020, mainly related to:
◦
◦
the recognition of an impairment of €1,036 thousand in 2019 on a production process recognized in intangible asset; and
the commissioning of our manufacturing facility in Princeton, New Jersey in the second half of 2019.
79
General and Administrative Expenses
Our general and administrative expenses amounted to €14,600 thousand in 2018, €17,164 thousand in 2019 (an increase of 18% compared to 2018) and
€14,970 thousand in 2020 (a decrease of 13% compared to 2019).
Our general and administrative expenses are broken down as follows:
(in thousands of €)
FOR THE YEAR ENDED DECEMBER 31,
% CHANGE
2018
2019
2020
2018/2019
2019/2020
Consumables
Rental and maintenance
Services, subcontracting, and consulting fees
Personnel expenses
(1)
Depreciation and amortization expense
Other
(2)
33
1,584
5,409
5,925
529
1,120
527
1,117
7,964
6,331
751
474
224
1,070
5,962
6,573
686
455
General and administrative expenses
14,600
17,164
14,970
1,497 %
(29 %)
47 %
7 %
42 %
(58 %)
18 %
(57 %)
(4 %)
(25 %)
4 %
(9 %)
(4 %)
(13 %)
(1)
(2)
Includes €849 thousand, €522 thousand and €532 thousand related to share-based compensation expense for 2018, 2019 and 2020, respectively.
Includes €442 thousand, €159 thousand and €116 thousand related to share-based compensation expense (warrants allocated to directors and to the
chairman of the board) for 2018, 2019 and 2020, respectively.
Our general and administrative expenses are mainly composed of:
•
•
Services, subcontracting and consulting fees amounting to €5,409 thousand in 2018, €7,964 thousand in 2019 and €5,962 thousand in 2020. The
significance of these expenses in 2019 compared to 2018 and 2020 was mainly due to the establishment of our Princeton, New Jersey
manufacturing facility; and
Personnel expenses amounting to €5,925 thousand in 2018, €6,331 thousand in 2019 and €6,573 thousand in 2020. The average number of full-
time employees allocated to our general and administrative workforce was 39 in 2018, 41 in 2019 and 41 in 2020.
5.A.2
Financial Income (Loss)
Our financial income (loss) amounted to €5,399 thousand in 2018, €1,414 thousand in 2019 and €(4,465) thousand in 2020. It is broken down as follows:
(in thousands of €)
Financial income
Financial expenses
Financial income (loss)
Our financial income related mainly to:
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
5,427
(28)
5,399
2,947
(1,533)
1,414
889
(5,354)
(4,465)
•
Foreign currency gains and losses of €3,993 thousand in 2018, €781 thousand in 2019 and €(3,028) thousand in 2020. The decrease is due to a
significant fall in the U.S. dollar against the euro over the periods presented;
• A gain on foreign exchange swaps of €1,254 thousand in 2018, €1,124 thousand in 2019 and €61 thousand in 2020; and
• A net expense of €1,032 thousand in 2020 due to the recognition of the convertible notes agreement signed with European High Growth
Opportunities Securitization Fund in accordance with IFRS 9 (no corresponding expense during the comparative periods).
80
5.B.Liquidity and Capital Resources
5.B.1.
Sources of liquidity
Equity
We have financed our operations since our inception through several rounds of public and private financings that could be summarized as follows:
Until 2012
2013
2014
2015
2016
2017
2017
2020-2021
2021
Successive funding rounds : issuance of ordinary and preference shares
Initial public offering on Euronext
Follow-on offering
Private placement
Private placement
Follow-on offering
Global offering : U.S. initial public offering and concurrent private placement in Europe
Conversion of convertible notes
Shares sold under the at-the-market (“ATM”) program
Gross proceeds (in
millions of euros)
17.7
17.7
30.0
25.4
9.9
70.5
123.6
15.0
6.6
316.4
In September 2020, we entered into a sales agreement with Cowen with respect to an ATM offering program pursuant to which we may issue and sell, from
time to time at our sole discretion, ordinary shares in the form of ADSs to eligible investors at market prices, with aggregate gross sales proceeds of up to
$30 million, subject to the regulatory limit of 20% dilution (this threshold is calculated based on the total number of shares listed on Euronext without
prospectus during the twelve months before the issuance).
In February 2021, we sold shares under this ATM offering program resulting in gross proceeds of $8.0 million, or €6.6 million, resulting in net proceeds of
$7.8 million or €6.4 million. As of the date of this Annual Report, $22.0 million remained available for future issuance until September 2023, subject to the
regulatory limit of 20% dilution.
Non-refundable grants and conditional advances
Since our inception, we have received non-refundable subsidies from Bpifrance in the amount of €2.4 million in connection with our preclinical research
programs.
We have also received €5.0 million in three conditional advances from Bpifrance. To date, TEDAC is the only ongoing program funded by conditional
advances. No repayment were made during the years presented.
The TEDAC research program, which is funded by non-refundable subsidies and conditional advances from Bpifrance, will be funded according to a
specified schedule set forth in the contract, subject to completion of milestones. As the program advances, we will provide Bpifrance with interim progress
reports and a final report when the funded project ends. Based on these reports, we are entitled to conditional advances and non-refundable subsidies, each
award being made to help fund a specific development milestone.
•
•
The total amount of the subsidies to be granted is €2,058 thousand, of which we have received an aggregate amount of €1,749 thousand through
December 31, 2020.
The total amount of conditional advances to be granted is €4,895 thousand, of which we have received an aggregate amount of €4,161 thousand
through December 31, 2020. We will be obligated to make repayments based on the achievement of specified sales levels. Second, we will also
have to pay royalties based on our sales.
81
Research Tax Credit
The Company benefits from the provisions in Articles 244 quater B and 49 septies F of the French Tax Code related to the Research Tax Credit. The
cumulative amount of research tax credit recognized for the years ended December 31, 2018, 2019 and 2020 was €11.7 million, of which €8.3 million are
received as of today. We expect to receive the remaining balance in 2021.
Loans
•
Convertible notes agreement ("OCABSA")
Refer to "Item 10.C. Material Contracts" for further information regarding our material contracts.
•
Bank loans
In 2017, we subscribed an unsecured bank loan with Société Générale subscribed for a total amount of €1.9 million with a 0.4% interest rate and 36
monthly repayment terms. This loan is fully repaid as of December 31, 2020.
In November 2020, we received two loans of €5.0 million each, in the form of State-Guaranteed Loan (Prêt Garanti par l’Etat, or PGE in France), with
Bpifrance and Société Générale in the context of the COVID-19 pandemic. The loans bear interest at fixed rates of 1.67% and 0.25% per annum
respectively, with an initial term of one year and a five -year deferral option and the French government will guarantee 90% of the amount due.
5.B.2. Cash Flows
The table below summarizes our sources and uses of cash for the years ended December 31, 2018, 2019 and 2020.
(in thousands of €)
Net cash flows used in operating activities
Net cash flows used in investing activities
Net cash flows from (used in) financing activities
Exchange rate effect on cash in foreign currency
Net increase (decrease) in cash and cash equivalents
Cash flows used in operating activities
(in thousands of €)
Operating cash flow before change in working capital
Change in working capital
Net cash flow used in operating activities
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
(47,857)
(6,450)
(818)
3,981
(51,144)
(43,310)
(19,838)
40
1,910
(61,198)
(51,720)
(1,475)
25,449
(981)
(28,727)
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
(38,864)
(8,993)
(47,857)
(57,040)
13,730
(43,310)
(62,522)
10,802
(51,720)
Our net cash flows used in operating activities were €47,857 thousand, €43,310 thousand and €51,720 thousand for the years ended December 31, 2018,
2019 and 2020, respectively. Our operating cash flows before change in working capital increased over the years presented due to the launch of TRYbeCA-
1 trial in September 2018. In 2018, the negative impact of the working capital was mainly due to significant advances payments made to suppliers as part
of the launch of our TRYbeCA-1 trial. In 2019 and 2020, the positive impact of the working capital was mainly linked to accrued hospital costs;
corresponding to the time delay between services rendered and the receipt of invoices.
82
Cash flows used in investing activities
We do not capitalize clinical research and development costs until we obtain marketing authorization for a product candidate.
(in thousands of €)
Acquisition of property, plant and equipment, net of disposal
Acquisition of intangible assets
Increase in non-current & current financial assets, net of decrease
Net cash flow used in investing activities
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
(5,635)
(3)
(812)
(6,450)
(20,117)
(16)
295
(19,838)
(1,056)
(2)
(417)
(1,475)
Our net cash flows used in investing activities were €6,450 thousand, €19,838 thousand and €1,475 thousand in the years ended December 31, 2018, 2019
and 2020, respectively.
The largest portion of our capital expenditures for the years presented related to the establishment of our manufacturing facility in Princeton, New Jersey,
United States (€3.3 million in 2018, €18.5 million in 2019 and €0.8 million in 2020). These costs were capitalized in the amount of €11.9 million in 2018
and €10.6 million in 2019. This facility began the production of GMP-compliant clinical batches in 2019.
We also used cash to increase our manufacturing capacity in Lyon using €1.2 million in 2018 and €0.7 million in 2019.
The increase in financial assets related mainly to deposits paid on commercial leases and advance payments to suppliers.
Cash flows from (used in) financing activities
(in thousands of €)
Capital increases, net of transaction costs
Proceeds from borrowings, net of repayment
Repayment of lease liability, net of allowance received
Interests received (paid)
Other
Net cash flow from (used in) financing activities
FOR THE YEAR ENDED DECEMBER 31,
2018
2019
2020
—
(818)
—
—
—
(818)
—
(738)
888
(195)
85
40
118
27,073
(1,428)
(326)
12
25,449
Our net cash flows from (used in) financing activities were €(818) thousand in 2018, €40 thousand in 2019 and €25,449 thousand in 2020.
In 2020, proceeds from borrowing were primarily the result of the issuance of five tranches of convertible notes, in a total amount of €15.0 million (refer to
section Item 10, section C. Material Contracts) and the collection of two loans in the form of State-Guaranteed Loan for €10.0 million.
Operating Capital Requirements
5.B.3.
We believe that our existing cash and cash equivalents at of the date of this Annual Report will be sufficient to fund our operations until the fourth quarter
2021. If we take into account potential proceeds from the OCABSA Agreement, then we believe we could fund our operations until the first quarter 2022.
We have based this estimate on assumptions that may prove to be wrong, and we could use our capital resources sooner than we currently expect. As a
result, we should continue, in the short to mid-term, to be financed through partnership agreements for the development and commercialization of our drug
candidates and through the issuance of new debt or equity instruments.
For more information as to the risks associated with our future funding needs, see the "Item 3.D.1 Risks Related to our Financial Position and Capital
Needs".
5.C.Research and Development
For a discussion of our research and development activities, see “Item 4.B—Business Overview” and “Item 5.A—Operating Results.”
5.D.Trend Information
For a discussion of trends, see “Item 5.A—Operating Results” and “Item 5.B—Liquidity and Capital Resources.”
83
5.E.Off-Balance Sheet Arrangements
During the periods presented, we did not and do not currently have any off-balance sheet arrangements as defined under Securities and Exchange
Commission rules, such as relationships with other entities or financial partnerships, which are often referred to as structured finance or special purpose
entities, established for the purpose of facilitating financing transactions that are not required to be reflected on our balance sheet.
5.F. Tabular Disclosure of Contractual Obligations
The following table discloses aggregate information about our material contractual obligations and the periods in which payments were due as of December
31, 2020. Future events could cause actual payments and timing of payments to differ from the contractual cash flows set forth below.
(in thousands of €)
Convertible notes
Conditional advances
Bank loans
Other financial liabilities
Lease liabilities
Trade and fixed assets payables
Total
Less than 1 year
1 to 3 years
3 to 5 years
More than 5
years
Total
2,400
—
98
—
1,607
4,792
8,897
—
—
3,945
35
2,949
—
6,929
—
—
3,984
—
2,202
—
6,186
—
4,421
2,071
—
4,046
—
10,538
2,400
4,421
10,098
35
10,804
4,792
32,550
The amounts of contractual obligations set forth in the table above are associated with contracts that are enforceable and legally binding and that specify all
significant terms, fixed or minimum services to be used, fixed, minimum or variable price provisions, and the approximate timing of the actions under the
contracts. The table does not include obligations under agreements that we can cancel without a significant penalty.
5.G. Safe Harbor.
This Annual Report contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act
and as defined in the Private Securities Litigation Reform Act of 1995. See “Special Note Regarding Forward-Looking Statements.”
84
Item6. Directors, Senior Management and Employees.
6.A.Directors and Senior Management.
The following table sets forth information concerning our executive officers and directors as of the date of this Annual Report.
NAME
Executive Officers
Gil Beyen
Eric Soyer
Jean-Sébastien Cleiftie
(1)
Iman El-Hariry, M.D., Ph.D.
(1)
Jérôme Bailly, Pharm.D.
Stewart Craig
(1)
Anne-Cécile Fumey
Brian Schwab
Françoise Horand
Non-Employee Directors
(3)
Jean-Paul Kress, M.D.
(2)(3)(4)
Sven Andréasson
Philippe Archinard, Ph.D.
(5)
Luc Dochez, Pharm.D.
(2)(3)(5)
Martine Ortin George, M.D.
(5)
Melanie Rolli, M.D.
(5)
Hilde Windels
(2)(6)
AGE
POSITION(S)
59
54
47
60
42
59
46
56
48
55
68
61
46
72
48
55
Chief Executive Officer and Director
Deputy General Manager, Chief Financial Officer and Chief Operating Officer
Chief Business Officer
Chief Medical Officer
Deputy General Manager, Operations Chief Quality Officer and Qualified Person
Chief Technical Officer
Human Resources Director
VP, Legal Affairs & General Counsel
MSc – Director of Research and Development Operations
Chairman of the Board
Director
Director
Director
Director
Director
Director
(1)
(2)
(3)
(4)
(5)
(6)
Employee of our wholly-owned U.S. subsidiary, ERYTECH Pharma, Inc.
Member of the audit committee.
Member of the remunerations and appointment committee.
As representative of Galenos SPRL, the legal entity that holds this board seat.
Member of the clinical strategy committee.
As representative of Hilde Windels BV, the legal entity that holds this board seat.
Executive Officers
Gil Beyen has served as our Chief Executive Officer since May 2013 and as a member of our board of directors since August 2013. Mr. Beyen served as
Chairman of our board of directors from August 2013 to June 2019. Prior to his appointment as Chief Executive Officer, he assisted our company in a
consulting role as of 2012 and also served as Chairman of our supervisory board from August 2012 until May 2013. Between 2000 and 2013, Mr. Beyen
was Chief Executive Officer and director of TiGenix, a company he co-founded. He previously served as the head of the Life Sciences division of Arthur
D. Little, an international management consulting firm, in Brussels. Mr. Beyen received an M.S. in Bioengineering from the University of Leuven
(Belgium) and an M.B.A. from the University of Chicago.
Eric Soyer has served as our Chief Financial Officer and Chief Operating Officer since September 2015 and as our Directeur Général Délégué, or Deputy
General Manager, since January 2019. Prior to his appointment as our Chief Financial Officer, he served for eight years as Chief Financial Officer of EDAP
TMS S.A., a French therapeutic ultrasound company. He also was Managing Director of the French affiliate of EDAP TMS from May 2012 to August
2015, and previously was EDAP TMS’s Executive Vice President of Finance, Human Resources and Administration from December 2006 to May 2012.
From 2005 to 2006, he served as Chief Financial Officer for Medica, a company operating nursing homes and post-care clinics throughout France and Italy.
From 1999 to 2005, he served in various positions of increasing responsibility for April Group, an insurance services company. He has international
experience as a controller and cost accountant for Michelin Group in France, the United States and Africa. Mr. Soyer graduated from
85
the ESC Clermont School of Management (France) and holds an M.B.A. from the University of Kansas and an Executive M.B.A. from the HEC Paris
School of Management (France).
Jean-Sébastien Cleiftie has served as our Chief Business Officer since October 2016. Prior to joining us, he served as Associate Vice-President, Global
Business Development & Licensing at Sanofi in Paris, France from October 2010 to August 2016. Prior to joining Sanofi, Mr. Cleiftie served as a principal
at Innoven Partners, a European venture capital firm focused on investments in the healthcare and information technology industries in Europe and the
United States, from February 2004 to October 2010. From 1997 to 1999, Mr. Cleiftie was a research scientist with Aventis (now Sanofi) in the fields of
immunotherapy and gene therapy for cancer. Mr. Cleiftie holds an M.S. in Biological & Medical Sciences and an M.S. in Immunology from the University
of Paris V, and received his M.B.A from Cornell University.
Iman El-Hariry, M.D., Ph.D. has served as our Chief Medical Officer and employee of our wholly-owned U.S. subsidiary, ERYTECH Pharma, Inc., since
June 2015. Prior to her appointment as Chief Medical Officer, she served as President of Azure Oncology Consulting from July 2014 to June 2015 and also
assisted us in a consulting role from November 2014 to June 2015. Dr. El-Hariry served as Vice President of Clinical Research at Synta Pharmaceuticals
from November 2010 to July 2014 and as Global Head of Oncology at Astellas Pharma, Inc. from June 2009 to July 2010. From 2001 to 2009, she served
as Director of Clinical Development, Oncology at Glaxo Smith Kline. Dr. El-Hariry is a licensed oncologist with an M.D. from Alexandria Medical School
(Egypt) and a Ph.D. in Cancer Research from Imperial College of Science and Medicine (United Kingdom).
Jérôme Bailly, Pharm.D. has served as our Qualified Person since December 2011, as our Director of Pharmaceutical Operations since 2007 until
November 2020 when he was appointed Chief Quality Officer and as a Vice President and Directeur Général Délégué, or Deputy General Manager, since
2017. Prior to 2007, he was the Director of QA/Production at Skyepharma and Laboratoire Aguettant. Dr. Bailly holds a Pharm.D. and a degree in
Chemical Engineering, specializing in Biopharmaceutical Engineering and Cellular Production from École Polytechnique de Montréal (Canada).
Dr. Stewart Craig, Ph.D has served as our Chief Technical Officer since November 2020. For the past 25 years, Dr. Craig has held executive level positions
designing, implementing and operating the CMC and GMP manufacturing infrastructure for various pioneering cell and gene therapy companies
worldwide, including as Chief Manufacturing Officer of Orchard Therapeutics from 2016 to 2019, SVP Technical Operations of Sangamo from 2014 to
2016, EVP Manufacturing & Regulatory at Stemcells Inc.from 2008 to 2014, Chief Technology Officer at PCT Cell Therapy Services from 2005 to 2008
and Chief Operating Officer at Xcyte Therapies from 1999 to 2005. Dr. Stewart also has extensive experience in the successful management of regulatory
affairs for cell and gene therapy submissions in the United States, Canada and Europe. Dr. Craig holds a B.Sc. in Biochemistry and a Ph.D. in Physical
Biochemistry from Newcastle University (U.K.).
Anne-Cécile Fumey was appointed as our Human Resources Director in February 2016. Prior to joining our company, Mrs. Fumey served within several
high-growth blue-chip companies. She was International HR Director with Clasquin Group and Senior HR Manager at National Bank of Canada in
Montréal. Anne-Cécile Fumey started her career with BD where she was responsible for Human Resources management at the European headquarters, then
within the Pharmaceutical Systems business unit, before being appointed Compensation and Benefits Manager France. Mrs. Fumey graduated from the
Grenoble Institute of Political Studies (IEP) and has a postgraduate degree (DESS) in Human Resources Management from the Grenoble Graduate School
of Management (IAE).
Brian Schwab joined our company in January 2020 as VP, Legal Affairs & General Counsel and has over 25 years of French and US in-house and law firm
experience. Prior to his appointment, he served as General Counsel to two Global Business Units at Solvay in Lyon from July 2012 to December 2019 and
as Chief Licensing Officer and General Counsel at Scynexis, in North Carolina from March 2003 to June 2012. He previously served as Deputy General
Counsel at Aventis CropScience from January 1999 to February 2003 and as Senior Legal Counsel at Rhone-Poulenc from May 1996 to December 1998.
Mr. Schwab also worked as an attorney for Freshfields Bruckhaus Deringer in Paris from July 1993 to May 1996 and for Cooley LLP in Palo Alto,
California from October 1989 to September 1992. Mr. Schwab received a B.A. from Cornell University, a law degree from the University of California –
Los Angeles and a LLM degree from the University of Maastricht in the Netherlands.
Françoise Horand joined our company in 2008. With 10 years’ experience in toxicology and preclinical drug regulations obtained at MDS Pharma
Services (now Charles River Laboratories), she was involved in putting together the R&D team when it started and launching the laboratory. She currently
heads up the teams in charge of research projects as well as the research laboratory. Mrs.Horand holds a Master’s degree in Biochemistry from the
University of Lyon, and is also a graduate of the Ecole Pratique des Hautes Etudes in immunology.
Non-Employee Directors
Jean-Paul Kress, M.D. has served as Chairman of our board of directors since June 2019. Dr. Kress has served as the Chief Executive Officer of
MorphoSys AG since September 2019. He previously served as President and Chief Executive Officer of Syntimmune Inc.
86
from January 2018 to November 2018. Prior to joining Syntimmune, Dr. Kress served as Executive Vice President, President of International and Head of
Global Therapeutic Operations at Biogen Inc from June 2017 to January 2018. From September 2015 to June 2017, Dr. Kress served as Senior Vice
President, Head of North America at Sanofi Genzyme. From July 2011 to September 2015, Dr. Kress served as President and Chief Executive Officer of
Sanofi Pasteur MSD, a European vaccine company. Prior to then, Dr. Kress worked at Gilead, Abbvie and Eli Lilly in senior commercial and business
development roles in the United States and in Europe. Dr. Kress holds an M.D. degree from Faculté Necker-Enfants Malades in Paris, and graduate and
post-graduate degrees in pharmacology and immunology from École Normale Supérieure in Paris.
Sven Andréasson (acting as legal representative of Galenos Sprl) has served as a member of our board of directors since 2013 and has served as
representative of Galenos SPRL, the legal entity that holds this board seat, since 2014. He also served as a member of our supervisory board from 2009 to
May 2013. Mr. Andréasson has served as Senior Vice President, Corporate Development for Novavax, Inc. (United States), a pharmaceutical company,
since June 2014. From 2012 to 2013, he served as Chief Executive Officer of Isconova AB (Uppsala, Sweden), a leading international vaccine adjuvant
company acquired by Novavax in 2013, currently operating as Novavax AB. Prior to his role at Novavax AB, he served as Chief Executive Officer of Beta-
Cell N.V. (Brussels, Belgium) from 2008 to 2012 and as Chief Executive Officer of Active Biotech AB (Lund, Sweden) from 1999 to 2008.
Mr. Andréasson spent a number of years in roles at Pharmacia Corporation (merged with Pfizer Inc.), including President of Pharmacia SA, France,
President of KabiPharmacia International and President of Pharmacia Arzneimittel GmbH. He has extensive experience in international biotechnology
companies and in the pharmaceutical industry. Mr. Andréasson received his B.S. in Business Administration and Economics from the Stockholm School of
Economics (Sweden).
Philippe Archinard, Ph.D. has served as a member of our board of directors since 2013 and was previously a member of our supervisory board from 2007
to May 2013. Dr. Archinard was appointed Executive Vice-President, Technological Innovation and Scientific Partnerships at Institut Mérieux since
January 1, 2021. Prior to his role at Institut Mérieux, he was appointed as General Manager and Chief Executive Officer and director of Transgene S.A. in
December 2004 and chairman of the board of directors in June 2010 until December 2020. Prior to joining Transgene, he served as chief executive officer
of Innogenetics N.V., from 2000 to December 2004. Dr. Archinard previously spent 15 years in various positions of increasing responsibility at bioMérieux,
a multinational biotechnology company, including serving as chief executive officer of its U.S. subsidiary. He has served as a member of bioMérieux’s
board of directors since 2005. Dr. Archinard is a chemical engineer, holds a Ph.D. in biochemistry from the University of Lyon (France), and completed
Harvard Business School’s Program for Management Development (PMD).
Luc Dochez, Pharm.D. has served as a member of our board of directors since 2015. Mr. Dochez is currently a venture partner at DROIA N.V., a position
he has held since October 2018. Prior to then, he served as Chief Executive Officer of Tusk Therapeutics Ltd., a private company focused on developing
novel immuno-oncology products, from March 2015 until its acquisition by Roche in September 2018. Mr. Dochez has over 15 years of experience in the
biotechnology industry. He served as the Chief Business Officer and Senior Vice President of Business Development of Prosensa Holding N.V., a
biotechnology company, from November 2008 until its acquisition by BioMarin Pharmaceutical Inc. in January 2015. Before joining Prosensa, he served as
Vice President of Business Development at TiGenix, Director Business Development at Methexis Genomics, and a consultant at Arthur D. Little.
Mr. Dochez is a board member of Pharvaris BV, a Dutch company focused on rare diseases, as well as Bioncotech Therapeutics SL, a Spanish oncology
company. He serves as an advisor to EverImmune S.A., a French microbiome company, and is an expert member of the Investment Committee of QBIC II,
a Belgian seed investment fund. Mr. Dochez holds a Pharm.D. degree and a postgraduate degree in business economics from the University of Leuven
(Belgium) and an M.B.A. degree from Vlerick Management School (Belgium).
Martine Ortin George, M.D. has served as a member of our board of directors since 2014. She has extensive experience in the United States in clinical
research, medical affairs and regulatory issues, acquired in small and large companies specialized in oncology. She currently serves as principal and senior
executive consultant-life sciences for Global Development Inc. Dr. George held the position of Vice President in charge of Global Medical Affairs for
Oncology at Pfizer Inc., New York from 2010 to 2015. Previously, Dr. George held the positions of Senior Vice President and Chief Medical Officer at
GPC Biotech, Princeton and Senior Vice President, Head of the Oncology Department at Johnson &Johnson, New Jersey. She is a qualified gynecologist
and oncologist, trained in France and in Montreal. Dr. George began her career as Chief of Service at the Institut Gustave Roussy (France), was a visiting
professor at the Memorial Sloan Kettering Cancer Center, New York, and then held positions of increasing responsibility at Lederle Laboratories (a
predecessor company to Pfizer Inc.), Sandoz (now a division of Novartis AG) and Rhône-Poulenc Rorer (today part of Sanofi).
Melanie Rolli, M.D. was appointed to our board of directors effective March 12, 2020. Dr. Rolli currently serves as the Chief Executive Officer of PIQUR
Therapeutics AG, a Basel, Switzerland-based clinical stage biotechnology company dedicated to drug development of targeted therapies in various
oncological and dermatological indications, a position she has held since May 2019. She joined PIQUR in 2017 as Chief Medical Officer and took on
additional responsibilities as Chief Operating Officer in 2018. Prior to joining PIQUR, she was at Novartis Pharmaceuticals AG from 2003 to 2017, where
she held positions of increasing responsibility across the drug development, safety, and medical affairs functions. Prior to joining Novartis, she worked as a
post-doctoral cancer research physician at SCRIPPS Research Institute for Molecular and Experimental Medicine in La Jolla, California, and as a clinical
researcher in Germany. Dr. Rolli graduated from the University of Heidelberg with a doctorate in medicine and pharmacology.
87
Hilde Windels (acting as legal representative of Hilde Windels BV) has served as a member of our board of directors since 2014 and has served as the
representative of Hilde Windels BV, the legal entity that holds this seat, since 2017. She has over 20 years of experience in corporate finance, capital
markets and strategic initiatives. She currently serves as Chief Executive Officer of Antelope Dx BV and Director of MDx Health NV and Celyad SA.
Prior to her role as Antelope Dx BV, she was executive chairman of the board of directors and co-Chief Executive Officer of Mycartis NV, a private
immune diagnostics company in Belgium and a spin-out of Biocartis Group NV. Ms. Windels initially joined Biocartis in August 2011 as its Chief
Financial Officer, a position she held until September 2015 when she was appointed co-Chief Executive Officer, a position she held until early 2017, when
she became interim Chief Executive Officer of Biocartis until September 2017. From early 2009 to mid-2011, she worked as an independent chief financial
officer for several private biotechnology companies. Ms. Windels served as Chief Financial Officer of Devgen from 1999 to 2008 and as a member of its
board of directors from 2001 to 2008. Ms. Windels also currently serves on the board of directors of Ablynx, MDx Health NV, Celyad NV and VIB in
Belgium. Ms. Windels holds a Masters in Economics from the University of Leuven (Belgium).
Family Relationships
There are no family relationships among any of our executive officers or directors.
6.B.Compensation.
The aggregate compensation paid and benefits in kind granted by us to our current executive officers and directors was €2.8 million for the year ended
December 31, 2020. The fair value of share-based compensation granted to our executive officers and director during the year ended December 31, 2020
amounted to €1.3 million. The total amount set aside or accrued to provide pension, retirement or similar benefits for our executive officers was €275
thousand for the year ended December 31, 2020 . We did not set aside any similar pension or retirement benefits for the benefit of our directors.
Director Compensation
At our combined general meetings of shareholders held on June 28, 2018, June 21, 2019 and June 26, 2020, shareholders set the total annual amount of the
remuneration to be distributed among non-employee directors at €280 thousand for 2018, €400 thousand for 2019 and €425 thousand for 2020. The
following table sets forth information regarding the compensation allocated to our non-employee directors for service on our board of directors during the
year ended December 31, 2020. Gil Beyen, our Chief Executive Officer, is a director but does not receive any additional compensation for his services as a
director.
NAME
Jean Paul Kress
Philippe Archinard
Luc Dochez
Galenos SPRL
Martine Ortin George
Hilde Windels BV
Melanie Rolli
FEES
WARRANTS
(1)
TOTAL
79,500 €
66,000 €
43,500 €
51,000 €
51,000 €
51,000 €
37,125 €
76,300 €
155,800
— €
— €
— €
— €
— €
— €
66,000
43,500
51,000
51,000
51,000
37,125
€
€
€
€
€
€
€
(1)
As required by SEC rules governing disclosures in this Annual Report, our equity grants (e.g., options, warrants or free shares) are required to be
disclosed at their fair value on the date of grant and do not have any intrinsic value to their recipients if the strike price of the warrants is higher than
the underlying share price.
Executive Committee Compensation
Our executive committee currently consists of (i) our Chief Executive Officer, (ii) our Chief Financial Officer, Chief Operating Officer and Deputy General
Manager, (iii) our Chief Business Officer, (iv) our Chief Medical Officer (v) our Vice President and Director of Pharmaceutical Operations and Qualified
Person, (vi) our Director of Research and Development Operations, (vii) our Human Resources Director, (viii) our VP, Legal Affairs & General Counsel
and (ix) our Chief Technical Officer. The executive committee discusses and consults with the board and advises the board on our day-to-day management.
The following table sets forth information regarding compensation allocated during the year ended December 31, 2020 to:
• Gil Beyen, our Chief Executive Officer;
•
Eric Soyer, our Chief Financial Officer, Chief Operating Officer and Deputy General Manager; and
88
•
Jérôme Bailly, our Vice President and Director of Pharmaceutical Operations and Qualified Person and Deputy General Manager.
NAME AND PRINCIPAL POSITION
SALARY
(2)
BONUS
EQUITY
AWARDS
ALL OTHER
COMPENSATION
TOTAL
Gil Beyen
Chief Executive Officer
Jérôme Bailly
Deputy General Manager, Director of
Pharmaceutical
Operations and Qualified Person
Eric Soyer
Deputy General Manager, Chief
Financial Officer and
Chief Operating Officer
All other executive committee members
€
€
€
€
409,442
(1 )
173,985 €
(3)(8)
174,258
43,350 €
(3)
266,531
77,350 €
1,094,725
278,938 €
€
€
€
€
365,703
(4)
82,218
(6)
164,418
(9)
621,320
€
€
€
€
7,923
(5)
11,292
(7)
€
€
957,053
311,118
19,952
(10)
€
528,251
25,295
€
2,020,278
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Of which $341,296 (€299,042) are allocated by our U.S. subsidiary, Erytech Pharma Inc., for Mr. Beyen’s position as President of Erytech Pharma Inc.
Reflects gross remuneration before taxes.
Reflects compensation received for achievement of strategic goals related to (i) the advancement of clinical trials with eryaspase, (ii) the advancement
of other development programs and (iii) building the organization and securing additional financing.
Reflects the valuation of 28,125 free shares and 105,000 stock options granted during the year ended December 31, 2020.
Reflects benefits in kind related to vehicle rentals.
Reflects the valuation of 23,438 free shares granted during the year ended December 31, 2020.
Reflects (i) €3,834 for benefits in kind related to vehicle rentals and (ii) €7,458 for retirement benefits.
Subject to approval of our shareholders at the next Annual General Meeting of Shareholders.
Reflects the valuation of 46,875 free shares granted during the year ended December 31, 2020.
Reflects (i) €5,797 for benefits in kind related to vehicle rentals and (ii) €14,155 for retirement benefits.
Executive Compensation Arrangements
For a discussion of our employment arrangements with our executive officers, see “Item 7.B.—Related Party Transactions—Arrangements with Our
Directors and Executive Officers.” Except the arrangements described in “Item 7.B.—Related Party Transactions—Agreements with Our Directors and
Executive Officers,” there are no arrangements or understanding between us and any of our other executive officers providing for benefits upon termination
of their employment, other than as required by applicable law.
Limitations on Liability and Indemnification Matters
Under French law, provisions of bylaws that limit the liability of directors are prohibited. However, French law allows sociétés anonymes to contract for
and maintain liability insurance against civil liabilities incurred by any of their directors and officers involved in a third-party action, provided that they
acted in good faith and within their capacities as directors or officers of the company. Criminal liability cannot be indemnified under French law, whether
directly by the company or through liability insurance.
We have obtained directors’ and officers’ liability insurance for our directors and officers, which includes coverage against liability under the Securities
Act. We have entered into agreements with our directors and executive officers to provide contractual indemnification. With certain exceptions and subject
to limitations on indemnification under French law, these agreements provide for indemnification for damages and expenses including, among other things,
attorneys’ fees, judgments and settlement amounts incurred by any of these individuals in any action or proceeding arising out of his or her actions in that
capacity.
These agreements may discourage shareholders from bringing a lawsuit against our directors and executive officers for breach of their fiduciary duty. These
provisions also may have the effect of reducing the likelihood of derivative litigation against directors and executive officers, even though such an action, if
successful, might otherwise benefit us and our shareholders. Furthermore, a shareholder’s investment in our equity securities may be adversely affected to
the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these insurance agreements.
89
Equity Incentives
We believe our ability to grant equity incentives is a valuable and necessary compensation tool that allows us to attract and retain the best available
personnel for positions of substantial responsibility, provides additional incentives to employees and promotes the success of our business. Due to French
corporate law and tax considerations, we have historically granted several different equity incentive instruments to our directors, executive officers,
employees and other service providers, including:
•
•
•
•
founder’s share warrants (otherwise known as bons de souscription de parts de créateurs d’entreprise, or BSPCE), which are granted to our
officers and employees;
share warrants (otherwise known as bons de souscription d’actions, or BSA), which have historically only been granted to non-employee
directors;
restricted, or free, shares (otherwise known as actions gratuites); and
stock options (otherwise known as options de souscription et/ou d’achat d’actions).
Our board of directors’ authority to grant these equity incentive instruments and the aggregate amount authorized to be granted under these instruments
must be approved by a two-thirds majority of the votes held by our shareholders present, represented or voting by authorized means, at the relevant
extraordinary shareholders’ meeting. Once approved by our shareholders, our board of directors can grant share warrants (BSA) for up to 18 months, and
restricted (free) shares and stock options for up to 38 months from the date of the applicable shareholders’ approval. The authority of our board of directors
to grant equity incentives may be extended or increased only by extraordinary shareholders’ meetings. As a result, we typically request that our
shareholders authorize new pools of equity incentive instruments at every annual shareholders’ meeting.
We have six share-based compensation plans for our executive officers, non-employee directors and employees: the 2014 Plan, the 2016 Plan, the 2017
Plan, the 2018 Plan, the 2019 Plan and the 2020 Plan, or the Plans. In general, founder’s share warrants and share warrants no longer continue to vest
following termination of the employment, office or service of the holder and all vested shares must be exercised within post-termination exercise periods
set forth in the grant documents. In the event of certain changes in our share capital structure, such as a consolidation or share split or dividend, French law
and applicable grant documentation provides for appropriate adjustments of the numbers of shares issuable and/or the exercise price of the outstanding
warrants.
As of December 31, 2020, employee warrants, non-employee warrants, employee stock options and free shares were outstanding allowing for the purchase
of an aggregate of 2,249,941 ordinary shares at a weighted average exercise price of €9.36 ($11.45) per ordinary share based on the exchange rate in effect
as of such date (this weighted average exercise price does not include 760,505 ordinary shares issuable upon the vesting of outstanding free shares that may
be issued for free with no exercise price being paid).
Founder’s Share Warrants (BSPCE)
Founder’s share warrants have traditionally been granted to certain of our employees who were French tax residents because the warrants carry favorable
tax and social security treatment for French tax residents. Similar to options, founder’s share warrants entitle a holder to exercise the warrant for the
underlying vested shares at an exercise price per share determined by our board of directors and at least equal to the fair market value of an ordinary share
on the date of grant. However, unlike options, the exercise price per share is fixed as of the date of implementation of the plans pursuant to which the
warrants may be granted, rather than as of the date of grant of the individual warrants.
90
We have issued two types of founder’s share warrants as follows:
Plan Title
Meeting date
Dates of allocation
Total number of BSPCEs authorized
Total number of BSPCEs granted
Start date for the exercise of the BSPCEs
BSPCE expiry date
BSPCE exercise price per share
Number of shares subscribed as of
December 31, 2020
Total number of BSPCEs granted but not exercised as
of December 31, 2020
Total number of shares available for subscription as of
December 31, 2020
Maximum number of new shares that can be issued
BSPCE 2014
April 2, 2013
January 22, 2014
June 23, 2015
May 6, 2016
19,500
(1)
18,410
(2)
For senior management, one-third was
vested in 2015 and two-thirds were
vested in 2016; for other employees,
immediately upon each grant except for
6,500 BSPCE2014 which could not be
exercised before July 1, 2017
January 22, 2024
€12.250
15,000
16,910
169,100
169,100
BSPCE 2012
May 21, 2012
May 31, 2012
July 18, 2013
July 17, 2014
33,787
33,787
(3)
From May to July 2012, 2013 and 2014
May 20, 2020
€7.362
184,190
—
—
—
(1)
(2)
(3)
2014
were originally allocated by the board of directors on January 22, 2014. On December 4, 2014, the board of directors approved the
22,500 BSPCE
conversion of 3,000 BSPCE
Excludes 1,000 BSPCE initially allocated to a former officer which were forfeited following his resignation in January 2016 and 90 BSPCE allocated
to a former employee which were forfeited.
On June 26, 2020, the board of directors acknowledged the lapse of 15,368 BSPCE 2012 following their expiration.
into 3,000 BSA .
2014
2014
Our shareholders, or pursuant to delegations granted by our shareholders, our board of directors, determines the recipients of the warrants, the dates of
grant, the number and exercise price of the founder’s share warrants to be granted, the number of shares issuable upon exercise and certain other terms and
conditions of the founder’s share warrants, including the period of their exercisability and their vesting schedule. However, notwithstanding any
shareholder authorization, under applicable law, we are no longer eligible to issue any further founders’ share warrants (BSPCE).
Share Warrants (BSA)
Share warrants have historically only been granted to our non-employee directors. Similar to options, share warrants entitle a holder to exercise the warrant
for the underlying vested shares at an exercise price per share determined by our board of directors and at least equal to the fair market value of an ordinary
share on the date of grant. However, unlike options, the exercise price per share is fixed as of the date of implementation of the plans pursuant to which the
warrants may be granted, rather than as of the date of grant of the individual warrants.
91
BSA 2012
May 21, 2012
May 31, 2012
August 3, 2012
July 18, 2013
July 17, 2014
April 29, 2015
August 31, 2015
11,263
10,760
As of December 31, 2020, we have issued six types of share warrants as follows:
Plan title
Meeting date
Dates of allocation
BSA 2020
BSA 2019
BSA 2018
BSA 2017
BSA 2016
June 26, 2020
June 21, 2019
June 28, 2018
June 27, 2017
June 24, 2016
BSA 2014
April 2, 2013
July 28, 2020
October 9, 2019
April 12, 2019
June 27, 2017
January 7, 2018
October 3, 2016
January 8, 2017
December 4, 2014
June 23, 2015
100,000
200,000
15,000
75,000
50,000
25,998
100,000
95,500
60,000
60,000
3,000(1)
3,000
Total number of BSAs
authorized
Total number of BSAs
granted
Start date for the exercise of
the BSAs
BSA expiry date
BSA exercise price per share
Number of shares subscribed
as of December 31, 2020
Total number of BSAs
granted but not exercised as
of December 31, 2020
Total number of shares
available for subscription as
of December 31, 2020
Maximum number of new
shares that can be issued
BSA Expired (caducity)
(4)
(5)
(6)
0
July 28, 2022
15,000 BSA2020
have been declared
lapsed on 4 November
2020 by the Board of
Directors
€6.97
0
0
0
0
October 9, 2021 One third as from 12
April 2020, one third
as from 12 April 2021
and one third as from
12 April 2022
October 9, 2022 25,998 BSA2018 have
been declared lapsed
on October 9, 2019 by
the Board of Directors
€3.71
0
75,000
0
75,000
€6.82
0
0
0
0
15,000
0
25,998
All BSA2016 are
exercisable since 8
January 2020
One-third vested in
2015 and two-thirds
vested in 2016 for
senior management
From May to July 2012,
2013, 2014 and 2015
(2)
January 22, 2024
May 20, 2020
(3)
0
€12.25
1,000
2,900
81,250
45,000
70,000
45,000
29,000
81,250
14,250
45,000
15,000
29,000
0
€7.36
67,420
0
0
0
4,018
(1)
(2)
(3)
(4)
(5)
(6)
Reflects conversion of 3,000 BSPCE2014 into 3,000 BSA2014 pursuant to a decision of the board of directors on December 4, 2014.
October 3, 2021 for the 45,000 BSA granted on October 3, 2016. January 8, 2022 for the 15,000 BSA granted on January 8, 2017.
€18.52 for the 45,000 BSA granted on October 3, 2016. €13.60 for the 15,000 BSA granted on January 8, 2017.
All 55,000 BSA granted on June 27, 2017, are exercisable since June 27, 2020 and for the 45,000 BSA granted on January 7, 2018, one third can be
exercised as from January 7, 2019, one third can be exercised as from January 7, 2020 and the remainder can be exercised a from January 7, 2021.
June 27, 2022 for the 55,000 BSA granted on June 27, 2017, January 7, 2023 for the 40,500 BSA granted on January 7, 2018.
€26.47 for the 55,000 BSA granted on June 27, 2017. €18.00 for the 40,500 BSA granted on January 7, 2018.
Our shareholders, or pursuant to delegations granted by our shareholders, our board of directors, determines the recipients of the warrants, the dates of
grant, the number and exercise price of the share warrants to be granted, the number of shares issuable upon exercise and certain other terms and conditions
of the share warrants, including the period of their exercisability and their vesting schedule.
92
Free Shares (AGA)
Under our Free Share Plans, we have granted free shares to certain of our employees and officers.
Free shares may be granted to any individual employed by us or by any affiliated company. Free shares may also be granted to our Chairman, to our Chief
Executive Officer and to our Deputy General Managers. However, no free share may be granted to a beneficiary holding more than 10% of our share
capital or to a beneficiary who would hold more than 10% of our share capital as a result of such grant. The maximum number of shares that may be
granted or issued is 250,000 under the 2016 Free Share Plan, 300,000 under the 2017 Free Share Plan, 150,000 under the 2018 Free Share Plan, 400,000
under the 2019 Free Share Plan and the 2020 Free Share Plan. In addition, under French law, the maximum number of shares that may be granted shall not
exceed 10% of the share capital as at the date of grant of the free shares (30% if the allocation benefits all employees).
Our board of directors has the authority to administer 2016 Free Share Plan, 2017 Free Share Plan, 2018 Free Share Plan, 2019 Free Share Plan and 2020
Free Share Plan, or the Free Share Plans. Subject to the terms of the Free Share Plans, our board of directors determines the recipients, the dates of grant,
the number of free shares to be granted and the terms and conditions of the free shares, including the length of their vesting period (starting on the grant
date, during which the beneficiary holds a right to acquire shares for free but has not yet acquired any shares) and holding period (starting when the shares
are issued and definitively acquired but may not be transferred by the recipient) within the limits determined by the shareholders. Our shareholders have
determined that the vesting period should be set by the board of directors and should not be less than one year from the date of grant and that the optimal
holding period should be set by the board of directors. From the beginning of the vesting period, the cumulated vesting and holding period should not be
less than two years.
The board of directors has the authority to modify awards outstanding under our Free Share Plans, subject to the consent of the beneficiary for any
modification adverse to such beneficiary. For example, the board has the authority to release a beneficiary from the continued service condition during the
vesting period after the termination of the employment.
The free shares granted under our Free Share Plans will be definitively acquired at the end of the vesting period as set by our board of directors subject to
continued service during the vesting period, except if the board releases a given beneficiary from this condition upon termination of his or her employment
contract, or pursuant to the achievement of the performance conditions set out in the Free Share Plans.
The vesting of the free shares granted under the 2016 Free Share Plan, 2017 Free Share Plan and 2018 Free Share Plan is divided in three equal shares
(33.33%), respectively following the first, second and third year following the date of grant. The vesting of the free shares granted under the 2019 Free
Share Plan and the 2020 Free Share Plan is in five tranches: the first (32%) one year following the date of grant, the second (32%) two years following the
date of grant, the third (32%) three years following the date of grant, the fourth (2%) four years following the date of grant and the fifth (2%) five years
following the date of grant.
At the end of the vesting period, the beneficiary will be the owner of the shares. However, the shares may not be sold, transferred or pledged during the
holding period. In the event of disability before the end of the vesting period, the free shares shall be definitively acquired by the beneficiary on the date of
disability. In the event the beneficiary dies during the vesting period, the free shares shall be definitively acquired at the date of the request of allocation
made by his or her beneficiaries in the framework of the inheritance provided that such request is made within six months from the date of death.
93
As of December 31, 2020, the following free shares have been granted:
Date of grant
October 3, 2016
October 3, 2016
January 8, 2017
June 27, 2017
October 3, 2017
January 7, 2018
June 27, 2017
June 27, 2017
January 7, 2018
January 7, 2018
January 6, 2019
April 12, 2019
April 12, 2019
October 9, 2019
October 9, 2019
February 25, 2020
July 28, 2020
July 28, 2020
Denomination of the
free shares
Competent body that
granted the AGA
Beneficiaries
Number of AGA
granted
Number of shares that
can be subscribed as of
December 31, 2020
AGA2016-03102016
Board of Directors
AGA 2016 (under the 2016 Free Share Plan)
Executive Officers
AGA2016-03102016
Chief Executive Officer
Employees
AGA2016-08012017
Board of Directors
Executive Officers
AGA2016-27062017
Chief Executive Officer
AGA2016-03102017
Chief Executive Officer
Employees
Employees
AGA2016-07012018
AGA2017-27062017
Board of Directors
Board of Directors
Executive Officers
AGA 2017 (under the 2017 Free Share Plan)
Executive Officers
AGA2017-27062017
Chief Executive Officer
Employees
AGA2017-07012018
Board of Directors
Executive Officers
AGA2017-07012018
AGA2018-06012019
Chief Executive Officer
Chief Executive Officer
Employees
AGA 2018 (under the 2018 Free Share Plan)
Employees
AGA2018-12042019
Chief Executive Officer
Executive Officers
AGA2018-12042019
Chief Executive Officer
Employees
59,001
52,260
15,000
8,652
16,650
40,500
45,000
29,475
27,000
86,940
36,150
36,000
58,200
AGA2019-09102019
Board of Directors
AGA 2019 (under the 2019 Free Share Plan)
Executive Officers
149,999
AGA2019-09102019
Board of Directors
AGA2019-25022020
Chief Executive Officer
Employees
Employees
150,942
50,037
AGA2020-28072020
Board of Directors
AGA 2020 (under the 2020 Free Share Plan)
Executive Officers
98,438
AGA2020-28072020
Board of Directors
Employees
151,574
—
—
—
—
—
40,500
(1)
—
—
13,500
(2)
52,110
(2)
(3)
30,750
26,000
(4)
50,500
117,926
(5)
130,889
50,037
(6)
98,438
149,855
(7)
Some free shares have lapsed following the departure of certain employees.
(1) On January 7, 2021, the Chief Executive Officer acknowledged that 40,500 free shares have lapsed following the non-achievement of the performance criteria.
(2) On January 7, 2021, the Chief Executive Officer acknowledged that 65,610 free shares have lapsed following the non-achievement of the performance criteria.
(3) On January 6, 2021, the Chief Executive Officer acknowledged the final acquisition of 1,699 free shares following the partial achievement of the performance criteria.
(4) On February 25, 2021, the Chief Executive Officer acknowledged that 500 free shares have lapsed following the departure of certain employees.
(5) On February 25, 2021, the Chief Executive Officer acknowledged that 749 free shares have lapsed following the departure of certain employees.
(6) On February 25, 2021, the Chief Executive Officer acknowledged the final acquisition of 4,256 free shares following the partial achievement of the performance criteria.
(7) On February 25, 2021, the Chief Executive Officer acknowledged that 625 free shares have lapsed following the departure of certain employees.
Stock Options (SO)
Stock options issued pursuant to our Stock Option Plans provide the holder with the right to purchase a specified number of ordinary shares from us at a
fixed exercise price payable at the time the stock option is exercised, as determined by our board of directors. Our Stock Option Plans generally provide
that the exercise price for any stock option will be no less than 95% of the average of the closing sales prices per ordinary share during the 20 market
trading days prior to the day of the board of directors’ decision to grant the options. The maximum number of ordinary shares subject to stock options
issued is 250,000 ordinary shares under the 2016 Stock Option Plan, 300,000 under the 2017 Stock Option Plan, 300,000 under the 2018 Stock Option
Plan, 700,000 under the 2019 Stock Option Plan and 500,000 under the 2020 Stock Option Plan. Incentive stock options and non-statutory stock options
may be granted under our Stock Option Plan.
Stock options may be granted to any individual employed by us or by any affiliated company. Stock options may also be granted to our Chairman, our
General Manager and to our Deputy General Managers. In addition, incentive stock options may not be granted to owners of shares possessing 10% or
more of the share capital of the company.
Our board of directors has the authority to administer and interpret the 2016 Stock Option Plan, 2017 Stock Option Plan, 2018 Stock Option Plan, 2019
Stock Option Plan and 2020 Stock Option Plan, or the Stock Option Plans. Subject to the terms and conditions of our Stock Option Plans, our board of
directors determines the recipients, dates of grant, exercise price, number of stock options to be granted and the terms and conditions of the stock options,
including the length of their vesting schedules. Our board of directors is not required to grant stock options with vesting and exercise terms that are the
same for every participant. The term of each stock option
94
granted under our Stock Option Plan will generally be 10 years from the date of grant. Further, stock options will generally terminate on the earlier of when
the beneficiary ceases to be an employee of our company or upon certain transactions involving our company.
The board of directors has the authority to modify awards outstanding under our Stock Option Plans, subject to the written consent of the beneficiary for
any modification adverse to such beneficiary. For example, the board of directors has the authority to extend a post-termination exercise period.
Stock options granted under our Stock Option Plans generally may not be sold, transferred or pledged in any manner other than by will or by the laws of
descent or distribution. In the event of disability, unless otherwise resolved by our board of directors, the beneficiary’s right to exercise the vested portion
of his or her stock option generally terminates six months after the last day of such beneficiary’s service, but in any event no later than the expiration of the
maximum term of the applicable stock options. In the event the beneficiary dies during the vesting period, then, unless otherwise resolved by our board of
directors, the beneficiary’s estate or any recipient by inheritance or bequest may exercise any portion of the stock option vested at the time of the
beneficiary’s death within the six months following the date of death, but in any event no later than the expiration of the maximum term of the applicable
stock options.
As of December 31, 2020, the following options have been granted:
Date of grant
Denomination of the
SOP
Competent body that
granted the SOP
Beneficiaries
Number of SOP
granted
Exercise
Price
October 3, 2016
October 3, 2016
January 8, 2017
June 27, 2017
October 3, 2017
June 27, 2017
June 27, 2017
January 7, 2018
January 7, 2018
SOP 2016 (under the 2016 Stock Option Plan)
SOP2016-03102016
Board of Directors
SOP2016-03102016
Chief Executive Officer
SOP2016-08012017
Chief Executive Officer
SOP2016-27062017
Chief Executive Officer
SOP2016-03102017
Chief Executive Officer
Employees
Employees
Employees
Employees
Employees
SOP 2017 (under the 2017 Stock Option Plan)
SOP2017-27062017
Board of Directors
SOP2017-27062017
Chief Executive Officer
SOP2017-07012018
Board of Directors
SOP2017-07012018
Chief Executive Officer
Employees
Employees
Employees
Employees
SOP 2018 (under the 2018 Stock Option Plan)
September 7, 2018
SOP2018-07092018
Board of Directors
SOP2018-06012019
Chief Executive Officer
Employees
Employees
January 6, 2019
April 12, 2019
April 12, 2019
July 31, 2019
October 9, 2019
October 9, 2019
SOP2018-12042019
Chief Executive Officer
Executive Officer (Gil Beyen)
SOP2018-12042019
Chief Executive Officer
Employees
SOP 2019 (under the 2019 Stock Option Plan)
SOP2019-31072019
SOP2019-09102019
SOP2019-09102019
Board of Directors
Board of Directors
Board of Directors
Executive Officer (J.P Kress)
Executive Officers (Gil Beyen)
Employees
Employees
February 25, 2020
SOP2019-25022020
Chief Executive Officer
July 28, 2020
July 28, 2020
SOP2020-28072020
Board of Directors
SOP2020-28072020
Board of Directors
November 13, 2020
SOP2020-13112020
Chief Executive Officer
Executive Officers (Gil Beyen &
J.P Kress)
Employees
Employees
SOP 2020 (under the 2020 Stock Option Plan)
21,999
22,500
3,000
18,000
30,000
12,000
10,200
40,500
56,703
24,000
38,025
18,200
58,705
59,123
105,000
242,250
41,950
135,000
239,000
75,000
€18.52
€18.52
€15.65
€26.47
€23.59
€26.47
€26.47
€18.00
€18.00
€9.26
€6.38
€7.20
€7.20
€5.78
€4.25
€4.25
€5.87
€6.88
€6.88
€6.14
Number of shares
that can be
subscribed as of
December 31, 2020
21,999
9,000
—
18,000
9,000
12,000
3,600
40,500
31,389
—
21,450
(1)
18,200
50,125
59,123
105,000
(2)
201,500
40,950
(3)
135,000
(4)
238,250
75,000
(1) On January 6, 2021 and February 25, 2021, the Chief Executive Officer acknowledged respectively that 975 and 1,950 stock options have lapsed following the departure of employees
(2) On January 6, 2021 and February 25, 2021, the Chief Executive Officer acknowledged respectively that 1,750 and 5,000 stock options have lapsed following the departure of employees.
(3) On February 25, 2021, the Chief Executive Officer acknowledged that 1,000 stock options have lapsed following the departure of employees.
(4) On January 6, 2021 and February 25, 2021, the Chief Executive Officer acknowledged respectively that 1,750 and 5,250 stock options have lapsed following the departure of employees.
Some stock options have lapsed following the departure of certain employees.
95
6.C.Board Practices.
Prior to May 2013, our company had a two-tier corporate governance system: an executive board was responsible for managing the company and a
supervisory board oversaw and advised the executive board. We have now established a board of directors. Our board of directors currently consists of
eight members, less than a majority of whom are citizens or residents of the United States. As permitted by French law, two of our directors, Galenos SPRL
and Hilde Windels BV, are legal entities. Each of these entities has designated an individual, Sven Andréasson and Hilde Windels, respectively, to represent
it and to act on its behalf at meetings of our board of directors. These representatives have the same responsibilities to us and to our shareholders as he or
she would have if he or she had been elected to our board of directors in his or her individual capacity.
Under French law and our bylaws, our board of directors must be comprised of between three and 18 members, without prejudice to the derogation
established by law in the event of merger. Since January 1, 2017, the number of directors of each gender may not be less than 40%. Following the
resignation of Allene Diaz effective September 30, 2019, the Board sought a replacement. On March 12, 2020, Dr. Melanie Rolli was appointed to the
board. The General Shareholders’ Meeting decided on June 26, 2020 to ratify the appointment of Mrs. Melanie Rolli as Director for a three-year term. To
date, our board is composed of five men and three women. Any appointment made in violation of this limit that is not remedied within six months of this
appointment will be null and void. Within these limits, the number of directors is determined by our shareholders. Directors are appointed, reappointed to
their position, or removed by the company’s ordinary general meeting, and in particular, any appointment which remedies a violation of the 40% limit must
be ratified by our shareholders at the next ordinary general meeting. Their term of office, in accordance with our bylaws, is three years. Directors chosen or
appointed to fill a vacancy must be elected by our board of directors for the remaining duration of the current term of the vacant director. The appointment
must then be ratified at the next shareholders’ general meeting. In the event the board of directors would be comprised of less than three directors as a result
of a vacancy, the remaining directors shall immediately convene a shareholders’ general meeting to elect one or several new directors so there are at least
three directors serving on the board of directors, in accordance with French law.
The following table sets forth the names of our directors, the years of their initial appointment as directors of the board and the expiration dates of their
current term.
Jean-Paul Kress
Gil Beyen
Galenos SPRL represented by Sven Andréasson
(2)
Philippe Archinard
Luc Dochez
Martine Ortin George
Hilde Windels BV represented by Hilde Windels
(3)
Melanie Rolli
CURRENT
POSITION
Chairman
Director
Director
Director
Director
Director
Director
Director
YEAR OF
INITIAL
APPOINTMENT
TERM
EXPIRATION
YEAR
(1)
2019
2013
2014
2013
2015
2014
2017
2020
2022
2022
2022
2022
2022
2023
2023
2023
(1)
(2)
(3)
At the end of the ordinary general meeting convened to approve the accounts for the previous financial year during the year in which their term office
expires.
Galenos SPRL has designated an individual, Sven Andréasson, to represent it and to act on its behalf at meetings of our board of directors. Mr.
Andréasson previously served as a member of our board from 2013 to 2014. Galenos SPRL is a company controlled by Mr. Andréasson.
Hilde Windels BV was appointed as a director by our shareholders at our combined general meeting in June 2017. Hilde Windels BV has designated
an individual, Hilde Windels, to represent it and to act on its behalf at meetings of our board of directors. She served as a member of the board of
directors in her individual capacity from 2014 to 2017. Hilde Windels BV is a company controlled by Ms. Windels.
Director Independence
As a foreign private issuer, under the listing requirements and rules of the Nasdaq Global Select Market, we are not required to have independent directors
on our board of directors, except to the extent that our audit committee is required to consist of independent directors. Nevertheless, our board of directors
has undertaken a review of the independence of the directors and considered whether any director has a material relationship with us that could
compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. Based upon information requested from, and
provided by, each director concerning such director’s
96
background, employment and affiliations, including family relationships, our board of directors determined that all of our directors, except for Mr. Beyen,
qualify as “independent directors” as defined under applicable rules of the Nasdaq Global Select Market and the independence requirements contemplated
by Rule 10A-3 under the Exchange Act. In making these determinations, our board of directors considered the current and prior relationships that each non-
employee director has with our company and all other facts and circumstances that our board of directors deemed relevant in determining their
independence, including the beneficial ownership of our securities by each non-employee director and his or her affiliated entities (if any).
Role of the Board in Risk Oversight
Our board of directors is primarily responsible for the oversight of our risk management activities and has delegated to the audit committee the
responsibility to assist our board in this task. The audit committee also monitors our system of disclosure controls and procedures and internal control over
financial reporting and reviews contingent financial liabilities. The audit committee, among other things, examines our balance sheet commitments and
risks and the relevance of risk monitoring procedures. While our board oversees our risk management, our management is responsible for day-to-day risk
management processes. Our board of directors expects our management to consider risk and risk management in each business decision, to proactively
develop and monitor risk management strategies and processes for day-to-day activities and to effectively implement risk management strategies adopted
by the board of directors. We believe this division of responsibilities is the most effective approach for addressing the risks we face.
Corporate Governance Practices
As a French société anonyme, we are subject to various corporate governance requirements under French law. In addition, as a foreign private issuer listed
on the Nasdaq Global Select Market, we are subject to Nasdaq corporate governance listing standards. However, the corporate governance standards
provide that foreign private issuers are permitted to follow home country corporate governance practices in lieu of Nasdaq rules, with certain exceptions.
We currently rely on these exemptions for foreign private issuers and follow French corporate governance practices in lieu of the Nasdaq corporate
governance rules, which would otherwise require that (1) a majority of our board of directors consist of independent directors; (2) we establish a
nominating and corporate governance committee; and (3) our remuneration committee be composed entirely of independent directors.
As a foreign private issuer, we are required to comply with Rule 10A-3 of the Exchange Act, relating to audit committee composition and responsibilities.
Rule 10A-3 provides that the audit committee must have direct responsibility for the nomination, compensation and choice of our auditors, as well as
control over the performance of their duties, management of complaints made, and selection of consultants. However, if the laws of a foreign private
issuer’s home country require that any such matter be approved by the board of directors or the shareholders, the audit committee’s responsibilities or
powers with respect to such matter may instead be advisory. Under French law, the audit committee may only have an advisory role and appointment of our
statutory auditors, in particular, must be decided by the shareholders at our annual meeting.
In addition, Nasdaq rules require that a listed company specify that the quorum for any meeting of the holders of common stock be at least 33 1/3% of the
outstanding shares of the company’s voting stock. Consistent with French law, our bylaws provide that a quorum requires the presence of shareholders
having at least (1) 20% of the shares entitled to vote in the case of an ordinary shareholders’ general meeting or at an extraordinary shareholders’ general
meeting where shareholders are voting on a capital increase by capitalization of reserves, profits or share premium, or (2) 25% of the shares entitled to vote
in the case of any other extraordinary shareholders’ general meeting. If a quorum is not present, the meeting is adjourned. There is no quorum requirement
when an ordinary general meeting is reconvened, but the reconvened meeting may consider only questions which were on the agenda of the adjourned
meeting. When an extraordinary general meeting is reconvened, the quorum required is 20% of the shares entitled to vote, except where the reconvened
meeting is considering capital increases through capitalization of reserves, profits or share premium. For these matters, no quorum is required at the
reconvened meeting. If a quorum is not present at a reconvened meeting requiring a quorum, then the meeting may be adjourned for a maximum of two
months.
Furthermore, we follow French corporate governance practices in lieu of the Nasdaq corporate governance rules that require shareholder approval prior to
specified issuances of securities. More specifically, Nasdaq Marketplace Rule 5635 requires a U.S. domestic listed company to obtain shareholder
approval: (1) prior to the issuance of securities when the issuance or potential issuance will result in a change of control of the issuer; (2) prior to the
issuance of securities in connection with a transaction other than a public offering involving the sale, issuance or potential issuance by the issuer alone, or
together with sales by its officers, directors or substantial shareholders, of common stock (or securities convertible into or exercisable for common stock)
equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for less than the greater of book or market
value; and (3) prior to the issuance of securities when an equity compensation arrangement is made or materially amended, including prior to the issuance
of common stock to the issuer’s officers, director, employees or consultants for less than the greater of book or market value. While French law requires a
French company to obtain prior shareholder approval to issue shares, its shareholders may pre-authorize the company’s board of directors to issue shares
such that shareholder approval is not required at the time of issuance.
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Board Committees
The board of directors has established an audit committee and a remuneration and appointments committee, which operate pursuant to rules of procedure
adopted by our board of directors. The board of directors has also established a clinical strategy committee, which is responsible for analyzing and
reviewing our clinical and regulatory strategy. Subject to available exemptions, the composition and functioning of all of our committees (other than the
clinical strategy committee) will comply with all applicable requirements of the French Commercial Code, the Exchange Act, the Nasdaq Global Select
Market and SEC rules and regulations.
In accordance with French law, committees of our board of directors will only have an advisory role and can only make recommendations to our board of
directors. As a result, decisions will be made by our board of directors taking into account non-binding recommendations of the relevant board committee.
Audit Committee. Our audit committee assists our board of directors in its oversight of our corporate accounting and financial reporting and submits the
selection of our statutory auditors, their remuneration and independence for approval. Mr. Andréasson, Dr. Archinard and Ms. Windels currently serve on
our audit committee. Ms. Windels is the chairperson of our audit committee. Our board has determined that each of Mr. Andréasson, Dr. Archinard and
Ms. Windels is independent within the meaning of the applicable listing rules and the independence requirements contemplated by Rule 10A-3 under the
Exchange Act. Our board of directors has further determined that Ms. Windels is an “audit committee financial expert” as defined by SEC rules and
regulations and that each of the members qualifies as financially sophisticated under the applicable exchange listing rules. The principal responsibility of
our audit committee is to monitor the existence and efficacy of the company’s financial audit and risk control procedures on an ongoing basis.
Our board of directors has specifically assigned the following duties to the audit committee:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
examining the corporate and consolidated annual and interim financial statements;
validating the relevance of the company’s accounting methods and choices;
verifying the relevance of financial information published by the company;
ensuring the implementation of internal control procedures;
verifying the correct operation of internal controls with the assistance of internal quality audits;
examining the schedule of work for internal and external audits;
examining any subject likely to have a significant financial and accounting impact;
examining the state of significant disputes;
examining off-balance sheet commitments and risks;
examining the relevance of risk monitoring procedures;
establishing and overseeing procedures for the treatment of complaints or submissions identifying concerns regarding accounting, internal
accounting controls, or auditing matters;
examining any regulated agreements as well as monitoring any agreements relating to current operations and entered into under normal
conditions;
directing the selection of statutory auditors, their remuneration, and ensuring their independence;
ensuring proper performance of the statutory auditors’ mission; and
establishing the rules for the use of statutory auditors for work other than auditing of the accounts and verifying the correct execution thereof.
Remuneration and Appointments Committee. Mr. Andréasson, Dr. Archinard and Dr. Kress currently serve on our remuneration and appointments
committee. Dr. Archinard is the chairperson of our remuneration and appointments committee.
Our board of directors has specifically assigned the following duties to the remuneration and appointments committee:
•
•
formulating recommendations and proposals concerning (i) the various elements of the remuneration, pension and health insurance plans for
executive officers and directors, (ii) the procedures for establishing the terms and conditions for setting the variable portion of their remunerations,
and (iii) a general policy for awarding share warrants and founder’s warrants;
examining the amount of the annual remuneration of the directors and the system for distributing such amount amongst the directors, taking into
account their dedication and the tasks performed within the board of directors;
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•
•
•
•
•
•
advising and assisting the board of directors as necessary in the selection of senior executives and the establishment of their remuneration;
assessing any increases in capital reserved for employees;
assisting the board of directors in the selection and recruitment of new directors;
ensuring the implementation of structures and procedures to allow the application of good governance practices within the company;
preventing conflicts of interest within the board of directors; and
implementing the procedure for evaluating the board of directors.
Clinical Strategy Committee. Dr. George, Mr. Dochez, Dr. Archinard and Dr. Rolli currently serve on our clinical strategy committee. Dr. George is the
chairperson of our clinical strategy committee. Our clinical strategy committee is responsible for analyzing and reviewing our clinical and regulatory
strategy. It meets, at least once a year, and makes recommendations to the board of directors regarding our clinical and regulatory development strategy.
Our board of directors has specifically assigned the following duties to the clinical strategy committee:
•
•
analyzing and reviewing our clinical development focus; and
analyzing and reviewing our regulatory approval strategies.
6.D.Employees.
As of December 31, 2020, we had 206 employees. We consider our labor relations to be positive. At each date shown, we had the following headcount,
broken out by department and geography:
Function:
Research and preclinical development
Clinical, medical and regulatory affairs
Pharmaceutical operations
Manufacturing and supply
Management and administration
Business development and licensing
Total
Geography:
France
United States
Total
6.E.Share Ownership.
At December 31,
2018
2019
2020
35
33
20
41
37
6
172
146
26
172
31
34
26
82
38
6
217
158
59
217
24
37
29
76
35
5
206
145
61
206
For information regarding the share ownership of our directors and executive officers, see “Item 6.B—Compensation” and “Item 7.A—Major
Shareholders.”
Item 7. Major Shareholders and Related Party Transactions
7.A. Major Shareholders
The following table and accompanying footnotes set forth, as of December 31, 2020, information regarding beneficial ownership of our ordinary shares by:
•
•
each person, or group of affiliated persons, known by us to beneficially own more than 5% of our ordinary shares;
each of our executive officers;
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•
•
each of our directors; and
all of our executive officers and directors as a group.
Beneficial ownership is determined according to the rules of the SEC and generally means that a person has beneficial ownership of a security if he, she or
it possesses sole or shared voting or investment power of that security, including free shares that vest within 60 days of December 31, 2020 and options and
warrants that are currently exercisable or exercisable within 60 days of December 31, 2020. Shares subject to free shares that vest within 60 days of
December 31, 2020 and shares subject to warrants currently exercisable or exercisable within 60 days of December 31, 2020 are deemed to be outstanding
for computing the percentage ownership of the person holding these free shares and warrants and the percentage ownership of any group of which the
holder is a member, but are not deemed outstanding for computing the percentage of any other person.
Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons named in the table below have sole
voting and investment power with respect to all shares shown that they beneficially own, subject to community property laws where applicable. The
information does not necessarily indicate beneficial ownership for any other purpose, including for purposes of Sections 13(d) and 13(g) of the Exchange
Act.
Our calculation of the percentage of beneficial ownership is based on 20,057,562 of our ordinary shares (including ordinary shares in the form of ADSs)
outstanding as of December 31, 2020. Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o ERYTECH Pharma
S.A., 60 Avenue Rockefeller, 69008 Lyon, France.
NAME OF BENEFICIAL OWNER
5% Shareholders:
BVF Partners LP
(1)
RA Capital Management LLC
(2)
Auriga Ventures III FCPR
(3)
Directors and Executive Officers:
(4)
Gil Beyen
Eric Soyer
(5)
Jean-Sébastien Cleiftie
(6)
Iman El-Hariry
(8)
Jérôme Bailly
(7)
Stewart Craig
Anne-Cécile Fumey
(9)
Brian Schwab
Françoise Horand
(10)
Jean-Paul Kress
Galenos SPRL
(11)
Philippe Archinard
(12)
Luc Dochez
(13)
Martine Ortin George
(14)
Hilde Windels BV
(14)
Melanie Rolli
All directors and executive officers as a group (16 persons)
(15)
NUMBER OF
ORDINARY
SHARES
BENEFICIALLY
OWNED
PERCENTAGE
OF ORDINARY
SHARES
BENEFICIALLY
OWNED
4,468,058
2,000,000
1,147,522
62,468
22,310
21,304
83,249
25,821
0
469
0
3,885
0
25,251
35,550
25,250
25,251
25,251
0
356,059
22.28 %
9.97 %
5.72 %
0.31 %
0.11 %
0.11 %
0.42 %
0.13 %
— %
— %
— %
0.02 %
— %
0.13 %
0.18 %
0.13 %
0.13 %
0.13 %
— %
1.78 %
* Represents beneficial ownership of less than 1%.
(1)
The address of BVF Partners LP. is One Sansome Street, 30 Floor, San Francisco, California 94104. Mark Lampert is the General Partner of BVF
Partners LP and may be deemed to be beneficial owner of securities of the company directly held by BVF Partners LP., and may be deemed to have the
power to vote or direct the vote of and the power to dispose or direct the disposition of such securities. Mark Lampert disclaims beneficial ownership
of the securities held directly by BVF Partners LP., except to the extent of his pecuniary interest.
th
100
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
The address of RA Capital Management LLC is 20 Park Plaza, Suite 1200, Boston, Massachusetts 02116. Mr. Peter Kolchinsky is the Managing
Director and may be deemed to be beneficial owner of securities of the company directly held by RA Capital Management LLC, and may be deemed
to have the power to vote or direct the vote of and the power to dispose or direct the disposition of such securities. Mr. Peter Kolchinsky disclaims
beneficial ownership of the securities held directly by RA Capital Management LLC, except to the extent of his pecuniary interest.
Jacques Chatain, Bernard Daugeras and Patrick Bamas are managers of Auriga Ventures III FCPR, or Auriga, and exercise voting and investment
power with respect to shares held by Auriga. The managers disclaim beneficial ownership of all shares held by Auriga. The address of Auriga is c/o
Auriga Partners, 18 avenue Matignon 75008 Paris, France.
Consists of 2,468 ordinary shares and 60,000 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 2,310 ordinary shares and 20,000 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 1,054 ordinary shares and 20,250 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 83,249 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31, 2020.
Consists of 1,821 ordinary shares and 24,000 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 469 ordinary shares.
Consists of 385 ordinary shares and 3,500 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of one ordinary share and 25,250 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 10,300 ordinary shares and 25,250 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 25,250 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31, 2020
Consists of one ordinary share and 25,250 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
Consists of 18,810 ordinary shares and 337,249 ordinary shares issuable upon exercise of warrants that are exercisable within 60 days of December 31,
2020.
None of our principal shareholders have voting rights different than our other shareholders.
As of 8 March 2021, we estimate that approximately 40% of our outstanding ordinary shares (including ordinary shares in the form of ADSs) were held in
the United States by approximately 20 holders of record including Bank of New York Mellon, the nominee of the Depositary Trust Company, which held
approximately 8.40% of our outstanding ordinary shares as of said date. The actual number of holders is greater than these numbers of record holders and
includes beneficial owners whose ordinary shares or ADSs are held in street name by brokers and other nominees. This number of holders of record also
does not include holders whose shares may be held in trust by other entities.
7.B.Related Party Transactions.
We have engaged in the following transactions with our directors, executive officers and holders of more than five percent (5%) of our outstanding voting
securities and their affiliates, which we refer to as our related parties.
Agreements with Our Directors and Executive Officers
Severance Pay
On May 24, 2013, the board of directors approved terms for severance pay to be awarded under certain conditions to our then-executive officers, which
included Gil Beyen, our Chief Executive Officer. The agreement provides that, in the event of expiration of the executive’s term of office (except where
renewal is rejected by the executive) or in the event of revocation (unless the executive has been revoked for gross negligence or willful misconduct as that
term is defined by the labor chamber of the French Supreme Court), the executive is entitled to severance equal to 12 times the average of monthly
remuneration (bonuses included) received during the 12 months preceding the revocation decision or the expiration of the executive’s term of office. The
payment of the compensation shall be subject to the performance of the following conditions: (i) respect of our company’s budget and expenditures
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and (ii) at least one of the following conditions: (a) an agreement of collaboration or a current license, and (b) one product in an active phase of clinical
development by the company. No related expense has been recorded to date.
Executive Employment Agreement with Gil Beyen
Effective April 1, 2019, we and our U.S. subsidiary, ERYTECH Pharma, Inc., entered into an executive employment agreement with Mr. Beyen, or the
Executive Employment Agreement, that provides for the terms of his employment and compensation as President of ERYTECH
Pharma, Inc., including an annual base salary and variable compensation in an amount up to 50% of his base salary, based upon achievement of specified
performance objectives. The Executive Employment Agreement also provides for severance pay in specified situations. In the event of Mr. Beyen’s
termination without “cause,” he will be entitled to an amount equal to 12 times the average of monthly remuneration (bonuses included) received during the
12 months preceding his termination, subject to certain specified performance conditions. Mr. Beyen will also be entitled to these severance benefits (with
no duplication) if Mr. Beyen is terminated without “cause” or resigns for “good reason” within 12 months following a change of control of our company.
Any severance payments paid to Mr. Beyen under the Executive Employment Agreement are conditioned on Mr. Beyen executing a release. Pursuant to an
Employee Confidential Information and Invention Assignment Agreement attached to his Executive Employment Agreement, upon voluntary termination
or termination for ”cause,” for a period of 12 months, Mr. Beyen cannot seek employment in any business in which we are engaged or plans to be engaged,
or service that we provide or have plans to provide.
Employment Agreements with Eric Soyer and Jean-Sebastien Cleiftie
In September 2015 and October 2016, respectively, we entered into employment agreements with Messrs. Soyer, and Cleiftie. Each employment agreement
provides for an annual base salary and variable compensation in amounts up to 35% of the executive’s current base salaries, based upon achievement of
specified performance objectives. These employment agreements also provide for severance pay in specified situations. In the event of the executive’s
termination in the absence of gross negligence or willful misconduct, the executive will be entitled to an amount equal to six months’ base salary, plus an
additional three months’ base salary for each full year such executive has worked for us, up to a maximum of 12 months’ base salary in total, including any
additional indemnity as provided for by French law. In connection with a change of control of our company, if the executive is terminated in the absence of
gross negligence or willful misconduct or resigns pursuant to suffering a diminution of the executive’s job duties, or in the event of a mutually agreed
termination (rupture conventionnelle) under French law, such executive will be entitled to an amount equal to 12 times the average of monthly
remuneration, including bonuses, received during the 12 months preceding the termination. If a change of control of our company occurs within 24 months
of the granting of bonus shares, such executive will be entitled to an amount intended to compensate for the potential loss of compensation in the event of
cancellation of bonus shares granted or for the potential loss of favorable tax treatment in the event of the sale of such shares, in the context of this change
of control. These agreements also provide for a 12-month non-compete clause (18 months in the case of Mr. Soyer), whereby the executive is entitled to an
amount equal to 33% of his average monthly remuneration over the last three months (12 months in the case of Mr. Soyer).
Employment Agreements with Françoise Horand, Anne-Cécile Fumey and Brian Schwab
In October 2008, February 2016 and January 2020, respectively, we entered into employment agreements with Mrs. Horand, Mrs. Fumey and Mr. Schwab.
Each employment agreement provides for an annual base salary and variable compensation in amounts ranging from 20% to 25% of the current base
salaries, based upon achievement of specified performance objectives. These employment agreements do not provide any additional termination indemnity
other than the one provided for by French law. Mrs. Horand and Mr. Schwab’s agreements provide for a 18-month non-compete clause, whereby Mrs.
Horand and Mr. Schwab are entitled to an amount equal to 33% of their average monthly remuneration over the last three months.
Employment Agreement with Iman El-Hariry
In June 2015, our U.S. subsidiary, ERYTECH Pharma, Inc., entered into an employment agreement with Dr. El-Hariry that provides for an annual base
salary and variable compensation in an amount up to 35% of her base salary, based upon achievement of specified performance objectives. This variable
amount was increased from 35% to 40% of her base salary in January 2019. The agreement also provides for severance pay in specified situations. In the
event of Dr. El-Hariry’s termination without cause (as defined in Dr. El-Hariry’s employment agreement), she will be entitled to an amount equal to six
months’ base salary, plus an additional three months’ base salary for each full year she has worked for us, up to a maximum of 12 months’ base salary in
total. If Dr. El-Hariry resigns as a result of (i) a diminution of her job duties, (ii) a change in reporting or (iii) a relocation, she will be entitled to an amount
up to 12 months’ base salary compensation depending upon the length of her employment with us. In connection with a change of control, if Dr. El-Hariry
is terminated within 12 months (a) by us, (b) by mutual agreement or (c) by her decision to resign after receiving an
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offer that is not at least equivalent to her position prior to the change in control, she will be entitled to a lump sum payment equal to one year’s salary plus
bonus (under the condition that she would not be eligible for the other severance benefits described above). Upon termination for any reason, our company
may request Dr. El-Hariry to execute a non-competition agreement for a period of 12 months, whereby Dr. El-Hariry will be entitled to severance pay.
Employment Agreement with Stewart Craig
In November 2020, our U.S. subsidiary, ERYTECH Pharma, Inc., entered into an employment agreement with Dr. Craig that provides for an annual base
salary and variable compensation in an amount up to 35% of his base salary, based upon achievement of specified performance objectives. The agreement
also provides for severance pay in specified situations. In the event of Dr. Craig’s termination without cause (as defined in Dr.Craig’s employment
agreement), he will be entitled to an amount equal to six months’ base salary during the first 24 months of employment, plus an additional three months’
base salary for each full year he has worked for us, up to a maximum of 12 months’ base salary in total. In connection with a change of control, if Dr. Craig
is terminated within 12 months (a) by us, (b) by mutual agreement or (c) by his decision to resign after receiving an offer that is not at least equivalent to
his position prior to the change in control, he will be entitled to a lump sum payment equal to one year’s salary plus bonus (under the condition that he
would not be eligible for the other severance benefits described above).Upon termination for any reason, our company may request Dr. Craig to execute a
non-competition agreement for a period of 12 months, whereby Dr. Craig will be entitled to severance pay.
Employment Agreement with Jérôme Bailly
In January 2007, we entered into an employment agreement with Dr. Bailly, which was amended as of January 2018. He is entitled to an annual base salary
set at €170,000, and variable compensation, in an amount up to 25% of his base salary, upon achievement of specified performance objectives. This
variable amount was increased from 25% to 30% of his base salary in January 2019. If a change of control of our company occurs within 24 months of the
granting of bonus shares, Dr. Bailly will be entitled to an amount intended to compensate for the potential loss of compensation in the event of cancellation
of bonus shares granted or for the potential loss of favorable tax treatment in the event of the sale of such shares.
His employment agreements also provide for severance pay in specified situations. In the event of the termination in the absence of gross negligence or
willful misconduct, Mr. Bailly will be entitled to an amount equal to six months’ base salary, plus an additional three months’ base salary for each full year
such executive has worked for us, up to a maximum of 12 months’ base salary in total, including any additional indemnity as provided for by French law.
In connection with a change of control of our company, if Mr. Bailly is terminated in the absence of gross negligence or willful misconduct or resigns
pursuant to suffering a diminution of the executive’s job duties, or in the event of a mutually agreed termination (rupture conventionnelle) under French
law, Mr. Bailly will be entitled to an amount equal to 12 times the average of monthly remuneration, including bonuses, received during the 12 months
preceding the termination. The payment of the compensations shall be subject to the performance of the following conditions: (i) respect of our company’s
budget and expenditures and (ii) at least one of the following conditions: (a) an agreement of collaboration or a current license, and (b) one product in an
active phase of clinical development by the company.
If a change of control of our company occurs within 24 months of the granting of bonus shares, such executive will be entitled to an amount intended to
compensate for the potential loss of compensation in the event of cancellation of bonus shares granted or for the potential loss of favorable tax treatment in
the event of the sale of such shares, in the context of this change of control.
His employment agreement also provides for a 18-month non-compete clause, whereby Mr. Bailly is entitled to an amount equal to 33% of his average
monthly remuneration over the last three months.
Other Arrangements
We have entered into other compensatory arrangements with our executive officers, which have been ratified by our board of directors. The primary
arrangements are summarized in the table below.
NAME
Gil Beyen
Jérôme Bailly
TAX
ASSISTANCE
X
TRAINING
X
Director and Executive Officer Compensation
See “Item 6.B—Compensation” for information regarding compensation of directors and executive officers.
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Equity Awards
See “Item. 7A—Major Shareholders” for information regarding equity awards to our executive officers.
Bonus Plans
All our executive officers are entitled to a bonus ranging between 25% and 50% based on yearly objectives determined by our board of directors upon
recommendation of our remuneration and appointments committee.
Indemnification Agreements
We have entered into indemnification agreements with each of our directors and some of our executive officers. See “Item. 6B—Limitations on Liability
and Indemnification Matters.”
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Related-Party Transactions Policy
We comply with French law regarding approval of transactions with related parties. We have adopted a related person transaction policy that sets forth our
procedures for the identification, review, consideration and approval or ratification of related person transactions. The policy became effective in November
2017 upon the closing of our global offering and was subsequently amended in March 2020 to meet the new French law requirements arising from Law no.
2019-486 of May 22, 2019 (Pacte law) as described below.
For purposes of our policy only, a related person transaction is defined as (i) any transaction, arrangement or relationship (or any series of similar
transactions, arrangements or relationships) in which we and any related person are, were or will be participants in and the amount involved exceeds
$120,000, or (ii) any agreement or similar transaction under French law which falls within the scope of Article L. 225-38 of the French Commercial Code.
A related person is any executive officer, director or beneficial owner of more than 5% of any class of our voting securities, including any of their
immediate family members and any entity owned or controlled by such persons. Article L. 225-38 of the French Commercial Code covers any agreement
or similar transaction entered into directly or indirectly between (i) the company and a corporate officer, a director, a shareholder holding more than 10% of
the company’s voting rights or, if such shareholder is a corporate entity, its controlling shareholder within the meaning of Article L. 233-3 of the French
Commercial Code or between (ii) the company and another firm if a corporate officer or director of the company is the owner, a fully liable shareholder, a
corporate officer, a director or a member of that other firm’s supervisory board or, more generally, a person in any way involved in its management.
Under the policy, if a transaction has been identified as a related person transaction, including any transaction that was not a related person transaction
when originally consummated or any transaction that was not initially identified as a related person transaction prior to consummation, our management
must present information regarding the related person transaction to our board of directors for review, consideration and approval or ratification. The
presentation must include a description of, among other things, the material facts, the interests, direct and indirect, of the related persons, the benefits to us
of the transaction and whether the transaction is on terms that are comparable to the terms available to or from, as the case may be, an unrelated third party
or to or from employees generally. Under the policy, we will collect information that we deem reasonably necessary from each director, executive officer
and, to the extent feasible, significant shareholder to enable us to identify any existing or potential related-person transactions and to effectuate the terms of
the policy. Our General Counsel will conduct an assessment of our related person transactions, notably to determine whether such transactions relate to
current operations and entered into under normal conditions (portant sur des opérations courantes et conclues à des conditions normales), which will be
monitored at least annually by our audit committee.
In addition, under our Code of Business Conduct and Ethics, our employees and directors have an affirmative responsibility to disclose any transaction or
relationship that reasonably could be expected to give rise to a conflict of interest.
In considering related person transactions, our board of directors will take into account the relevant available facts and circumstances including, but not
limited to:
•
•
the risks, costs and benefits to us;
the impact on a director’s independence in the event that the related person is a director, immediate family member of a director or an entity with
which a director is affiliated;
104
•
•
the availability of other sources for comparable services or products; and
the terms available to or from, as the case may be, unrelated third parties or to or from employees generally.
The policy requires that, in determining whether to approve, ratify or reject a related person transaction, our board of directors must consider, in light of
known circumstances, whether the transaction is in, or is not inconsistent with, our best interests and those of our shareholders, as our board of directors
determines in the good faith exercise of its discretion.
7.C.Interests of Experts and Counsel.
Not applicable.
Item 8. Financial Information
8.A.Consolidated Statements and Other Financial Information.
Consolidated Financial Statements
Our consolidated financial statements are included as part of this Annual Report, starting at page F-1.
Dividend Distribution Policy
We have never declared or paid any cash dividends on our ordinary shares. We do not anticipate paying cash dividends on our equity securities in the
foreseeable future and intend to retain all available funds and any future earnings for use in the operation and expansion of our business, given our state of
development.
Subject to the requirements of French law and our bylaws, dividends may only be distributed from our distributable profits, plus any amounts held in our
available reserves which are reserves other than legal and statutory and revaluation surplus. See “Item 10. B—Memorandum and Articles of Association”
for further details on the limitations on our ability to declare and pay dividends. Dividend distributions, if any in the future, will be made in euros and
converted into U.S. dollars with respect to the ADSs, as provided in the amended and restated deposit agreement.
Legal Proceedings
From time to time we may become involved in legal proceedings or be subject to claims arising in the ordinary course of our business. We are not presently
a party to any legal proceedings that, if determined adversely to us, would individually or taken together have a material adverse effect on our business,
results of operations, financial condition or cash flows. Regardless of the outcome, litigation can have an adverse impact on us because of defense and
settlement costs, diversion of management resources and other factors.
8.B.Significant Changes.
Not applicable.
Item 9. The Offer and Listing.
9.A.Offer and Listing Details.
Our ADSs have been listed on the Nasdaq Global Select Market under the symbol “ERYP” since November 10, 2017. Our ordinary shares have been
trading on Euronext Paris under the symbol “ERYP” since May 7, 2013.
9.B.Plan of Distribution.
Not applicable.
9.C.Markets.
Our ADSs have been listed on Nasdaq under the symbol “ERYP” since November 10, 2017. Our ordinary shares have been listed on Euronext Paris under
the symbol “ERYP” since May 7, 2013.
9.D.Selling Shareholders.
Not applicable.
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9.E.Dilution.
Not applicable.
9.F. Expenses of the Issue.
Not applicable.
Item 10.Additional Information.
10.A.
Share Capital.
Not applicable.
10.B. Memorandum and Articles of Association.
Corporate Purpose (Article 3 of the Bylaws)
The Company’s corporate purpose in France and abroad includes the research, manufacturing, importation, distribution and marketing of investigational
drugs, devices and medical equipment, and the provision of advisory services associated with these activities. The Company is authorized to engage in all
financial, commercial, industrial, civil, property or security-related transactions that directly or indirectly relate to accomplishing the purposes stated above.
The Company may act directly or indirectly and do all these operations in all countries, for or on behalf of third parties, either alone or with partnership
with third parties, association, group or creation of new companies, contribution, sponsorship, subscription, purchase of shares or rights, mergers, alliances,
undeclared partnership or taking or giving in lease or in management of all property and rights or otherwise.
Directors (Articles 17-22 of the Bylaws)
Duties of the Board. Except for powers given to the Company’s shareholders by law and within the limit of the corporate purpose, the Company’s board of
directors is responsible for all matters relating to the successful operations of the Company, including but not limited to, social and environmental issues
associated with the Company’s activities, and, through its resolutions, governs matters involving the company.
Appointment and Term. The Company’s board of directors must be composed of at least three members, but may not exceed 18 members, subject to the
dispensation established by law in the event of merger. In appointing and electing directors, the Company seeks a balanced representation of women and
men. The term of a director is 3 years, and directors may be re-elected at the Company’s annual ordinary share meetings; however, a director over the age
of 75 may not be appointed if such appointment would result in the number of directors over the age of 75 constituting more than one-third of the board.
The number of directors who are also the Company’s employees cannot exceed one-third of the board. Directors may be natural persons or legal entities
except for the chairman of the board who must be a natural person. Legal entities appointed to the board must designate a permanent representative. If a
director dies or resigns between annual meetings, the board may appoint a temporary director to fill the vacancy, subject to ratification at the next ordinary
general meeting, or, if such vacancy results in a number of directors below three, the board must call an ordinary general meeting to fill the vacancy. If a
director is absent at more than four consecutive meetings or placed with guardians, he or she will be deemed to have automatically resigned.
Organization. The board must elect a chairman from among the board members. The chairman must be a natural person, age 75 or younger, and may be
removed by the board at any time. The board may also elect a natural person as vice president to preside in the chairman’s absence and may designate up to
two non-voting board observers.
Deliberations. At least half of the number of directors in office must be present to constitute a quorum. Decisions are made by a majority of the directors
present or represented and, if there is a tie, the vote of the chairman will carry the decision. Meetings may be held as often as required; however, the
chairman is required to call a meeting with a determined agenda upon the request of at least one-third of the directors if the board has not met for more than
two months. French law and the Company’s charter and bylaws allow directors to attend meetings in person or, to the extent permitted by applicable law
and with specified exceptions in the Company’s bylaws, by videoconference or other telecommunications arrangements. The board of directors can also
make decisions by way of written consultation under the conditions provided by law.
Directors’ Voting Powers on Proposal, Arrangement or Contract in which any Director is Materially Interested. Under French law, any agreement
entered into, directly or through an intermediary, between the Company and any director that is not entered into in the ordinary course of the Company’s
business and upon standard market terms is subject to the prior authorization of the board of directors. The interested director cannot vote on such decision.
The same provision applies to agreements between the Company and
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another company, except where such company is the Company’s wholly owned subsidiary, if one of the Company’s directors is the owner or a general
partner, manager, director, general manager or member of the executive or supervisory board of the other company, as well as to agreements in which one
of the Company’s directors has an indirect interest.
Directors’ Compensation. Director compensation for attendance at board meetings is determined at the annual ordinary general meeting. The general
meeting may allocate an annual fixed sum and the board of directors allocates this sum among its members as it sees fit. In addition, the board of directors
may allocate exceptional compensation (rémunération exceptionnelle) for missions or mandates entrusted to its members, for example as member or chair
of one or more board committees, this remuneration is subject to the provisions regarding related-parties agreements. At the Company’s combined general
meetings of shareholders held on June 28, 2018, June 21, 2019 and June 26, 2020, shareholders set the total annual attendance fees to be distributed among
non-employee directors at €280 thousand for 2018, €400 thousand for 2019 and €425 thousand for 2020.
Board of Directors’ Borrowing Powers. There are currently no limits imposed on the amounts of loans or borrowings that the board of directors may
approve.
Directors’ Share Ownership Requirements. The Company’s directors are not required to own any of the Company’s shares.
Shareholder rights
Rights, Preferences and Restrictions Attaching to Ordinary Shares (Articles 9, 16, 30, 33 and 34 of the Bylaws)
Dividends. The Company may only distribute dividends out of the Company’s distributable profits, plus any amounts held in the Company’s reserves that
the shareholders decide to make available for distribution, other than those reserves that are specifically required by law.
“Distributable Profits” consist of the Company’s statutory net profit in each fiscal year, calculated in accordance with accounting standards applicable in
France, as increased or reduced by any profit or loss carried forward from prior years, less any contributions to the reserve accounts pursuant to French law.
Legal Reserve. Pursuant to French law, the Company must allocate 5% of the Company’s statutory net profit for each year to the Company’s legal reserve
fund before dividends may be paid with respect to that year. Funds must be allocated until the amount in the legal reserve is equal to 10% of the aggregate
par value of the issued and outstanding share capital.
Approval of Dividends. Pursuant to French law, the Company’s board of directors may propose a dividend for approval by the shareholders at the annual
ordinary general meeting.
Upon recommendation of the Company’s board of directors, the Company’s shareholders may decide to allocate all or part of any distributable profits to
special or general reserves, to carry them forward to the next fiscal year as retained earnings or to allocate them to the shareholders as dividends. However,
dividends may not be distributed when the Company’s net assets are or would become as a result of such distribution lower than the amount of the share
capital plus the amount of the legal reserves which, under French law, may not be distributed to shareholders. The amount of the Company’s share capital
plus the amount of the Company’s legal reserves which may not be distributed was equal to €1,795,611.50 at June 26, 2020.
The Company’s board of directors may distribute interim dividends after the end of the fiscal year but before the approval of the financial statements for the
relevant fiscal year when the interim balance sheet, established during such year and certified by an auditor, reflects that the Company has earned
distributable profits since the close of the last financial year, after recognizing the necessary depreciation and provisions and after deducting prior losses, if
any, and the sums to be allocated to reserves, as required by law or the bylaws, and including any retained earnings. The amount of such interim dividends
may not exceed the amount of the profit so defined.
Distribution of Dividends. Dividends are distributed to shareholders pro rata according to their respective holdings of shares. In the case of interim
dividends, distributions are made to shareholders on the date set by the Company’s board of directors during the meeting in which the distribution of
interim dividends is approved. The actual dividend payment date is decided by the shareholders at an ordinary general shareholders’ meeting or by the
Company’s board of directors in the absence of such a decision by the shareholders. Shareholders that own shares on the actual payment date are entitled to
the dividend.
Shareholders may be granted an option to receive dividends in cash or in shares, in accordance with legal conditions. The conditions for payment of
dividends in cash shall be set at the shareholders’ meeting or, failing this, by the board of directors.
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Timing of Payment. Pursuant to French law, dividends must be paid within a maximum of nine months after the close of the relevant fiscal year, unless
extended by court order. Dividends not claimed within five years after the payment date shall be deemed to expire and revert to the French state.
Voting Rights. Each share shall entitle its holder to vote and be represented in the shareholders’ meetings in accordance with the provisions of French law
and of the Company’s bylaws. Ownership of one share implies, ipso jure, adherence to the Company’s bylaws and the decisions of the shareholders’
meeting.
In general, each shareholder is entitled to one vote per share at any general shareholders’ meeting. Pursuant to the Company’s bylaws, however, a double
voting right is attached to each registered share which is held in the name of the same shareholder for at least two years. Under French law, ordinary bearer
shares are not eligible for double voting rights. Purchasers of ADSs or of ordinary shares deposited with the depositary to receive ADSs, will be unlikely to
meet the requirements to have double voting rights.
Under French law, treasury shares or shares held by entities controlled by the Company are not entitled to voting rights and do not count for quorum
purposes.
Rights to Share in the Company’s Profit. Each share entitles its holder to a portion of the corporate profits and assets proportional to the amount of share
capital represented thereby.
Rights to Share in the Surplus in the Event of Liquidation. If the Company is liquidated, any assets remaining after payment of the debts, liquidation
expenses and all of the remaining obligations will first be used to repay in full the par value of the Company’s shares. Any surplus will be distributed pro
rata among shareholders in proportion to the number of shares respectively held by them, taking into account, where applicable, of the rights attached to
shares of different classes.
Repurchase and Redemption of Shares. Under French law, the Company may acquire its own shares. Such acquisition may be challenged on the ground of
market abuse regulations. However, Regulation (EU) No. 596/2014 of April 16, 2014 provides for safe harbor exemptions when the acquisition is made for
one of the following purposes:
• to decrease the Company’s share capital, provided that such a decision is not driven by losses and that a purchase offer is made to all shareholders
on a pro rata basis, with the approval of the shareholders at an extraordinary general meeting; in this case, the shares repurchased must be
cancelled within one month from the expiry of the purchase offer;
• to meet obligations arising from debt securities that are exchangeable into equity instruments;
• to provide shares for distribution to employees or managers under a profit-sharing, free share or share option plan; in this case the shares
repurchased must be distributed within 12 months from their repurchase failing which they must be cancelled; or
• the Company benefit from a simple exemption when the acquisition is made under a liquidity contract complying with the general regulations of,
and market practices accepted by the French Financial Markets Authority (AMF).
All other purposes, and especially share buy-backs made for external growth operations in pursuance of Article L. 20-10-62 of the French Commercial
Code, while not forbidden, must be pursued in strict compliance of market manipulation and insider dealing rules.
Under the Market Abuse Regulation 596/2014 of August 16, 2014 (MAR) and in accordance with the General Regulations of the AMF, a corporation shall
report to the competent authority of the trading value on which the shares have been admitted to trading or are traded, no later than by the end of the
seventh daily market session following the date of the execution of the transaction, all the transactions relating to the buy-back program, in a detailed form
and in an aggregated form.
No such repurchase of shares may result in the Company holding, directly or through a person acting on the Company’s behalf, more than 10% of the
Company’s issued share capital. Shares repurchased by the Company continue to be deemed “issued” under French law but are not entitled to dividends or
voting rights so long as the Company holds them directly or indirectly, and the Company may not exercise the preemptive rights attached to them.
Sinking Fund Provisions. The Company’s bylaws do not provide for any sinking fund provisions.
Liability to Further Capital Calls. Shareholders are liable for corporate liabilities only up to the par value of the shares they hold; they are not liable to
further capital calls.
Requirements for Holdings Exceeding Certain Percentages. None, except as described below under the sections of this exhibit titled “Declaration of
Crossing of Ownership Thresholds (Article 9 of the Bylaws)” and “Form, Holding and Transfer of Shares (Articles 13 and 15 of the Bylaws)—Ownership
of Shares by Non-French Persons.”
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Actions Necessary to Modify Shareholders’ Rights
Shareholders’ rights may be modified as allowed by French law. Only the extraordinary shareholders’ meeting is authorized to amend any and all
provisions of the Company’s bylaws. It may not, however, increase shareholder commitments without the prior approval of each shareholder.
Special Voting Rights of Warrant Holders
Under French law, the holders of warrants of the same class (i.e., warrants that were issued at the same time and with the same rights), including founder’s
warrants, are entitled to vote as a separate class at a general meeting of that class of warrant holders under certain circumstances, principally in connection
with any proposed modification of the terms and conditions of the class of warrants or any proposed issuance of preferred shares or any modification of the
rights of any outstanding class or series of preferred shares.
Rules for Admission to and Calling Annual Shareholders’ Meetings and Extraordinary Shareholders’ Meetings (Section IV of the Bylaws)
Access to, Participation in and Voting Rights at Shareholders’ Meetings. Shareholders’ meetings are composed of all shareholders, regardless of the
number of shares they hold. Each shareholder has the right to attend the meetings and participate in the discussions (1) personally; (2) by granting proxy to
any individual or legal entity of his choosing; (3) by sending a proxy to the Company without indication of the mandate; (4) by voting by correspondence;
or (5) at the option of the board of directors at the time the meeting is called, by videoconference or another means of telecommunication, including
internet, in accordance with applicable laws that allow identification. The board of directors organizes, in accordance with legal and regulatory
requirements, the participation and vote of these shareholders at the meeting, assuring, in particular, the effectiveness of the means of identification.
Participation in shareholders’ general meetings, in any form whatsoever, is subject to registration or registration of shares under the conditions and time
limits provided for applicable laws.
The final date for returning voting ballots by correspondence is set by the board of directors and disclosed in the notice of meeting published in the French
Journal of Mandatory Statutory Notices, or BALO (Bulletin des Annonces Légales Obligatoires). This date cannot be earlier than three days prior to the
meeting unless otherwise provided in the bylaws. The Company’s bylaws provide that the board of directors has the option to accept the voting ballots by
correspondence beyond the limit set by applicable laws.
A shareholder who has voted by correspondence will no longer be able to participate directly in the meeting or to be represented. In the case of returning
the proxy form and the voting by correspondence form, the proxy form is taken into account, subject to the votes cast in the voting by correspondence
form.
A shareholder may be represented at meetings by any individual or legal entity by means of a proxy form which the Company sends to such shareholder
either at the shareholder’s request or at the Company’s initiative. A shareholder’s request for a proxy form must be received at the registered office at least
five days before the date of the meeting. The proxy is only valid for a single meeting or for successive meetings convened with the same agenda. It can also
be granted for two meetings, one ordinary, and the other extraordinary, held on the same day or within a period of fifteen days.
A shareholder may vote by correspondence by means of a voting form, which the Company sends to such shareholder either at the shareholder’s request or
at the Company’s initiative, or which the Company includes in an appendix to a proxy voting form under the conditions provided for by current laws and
requirements. A shareholder’s request for a voting form must be received at the registered office at least six days before the date of the meeting. The voting
form is also available on the Company’s website at least 21 days before the date of the meeting. The voting form must be recorded by the Company three
days prior to the shareholders’ meeting, in order to be taken into consideration. The voting by correspondence form addressed by a shareholder is only valid
for a single meeting or for successive meetings convened with the same agenda.
To better understand the voting rights of the ADSs, ADS holders should carefully read the section in this exhibit titled “II. American Depositary Shares—
Voting Rights.” .
Notice of Annual Shareholders’ Meetings. Shareholders’ meetings are convened by the Company’s board of directors, or, failing that, by the statutory
auditors, or by a court appointed agent or liquidator in certain circumstances. Meetings are held at the Company’s registered offices or at any other location
indicated in the meeting announcement (avis de réunion). A meeting announcement is published in the BALO at least 35 days prior to a meeting, as well as
on the Company’s website at least 21 days prior to the meeting. In addition to the particulars relative to the Company, it indicates, notably, the meeting’s
agenda and the draft resolutions that will be presented. The requests for recording of issues or draft resolutions on the agenda must be addressed to the
Company under the conditions provided for in the current legislation.
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Subject to special legal provisions, the convening notice (avis de convocation) is sent out at least 15 days prior to the date of the meeting, by means of a
notice inserted both in a legal announcement bulletin of the registered office department and in the BALO. Further, the holders of registered shares for at
least a month at the time of the latest of the insertions of the convening notice shall be summoned individually, by regular letter (or by registered letter if
they request it and include an advance of expenses) sent to their last known address. This notice may also be transmitted by electronic means of
telecommunication, in lieu of any such mailing, to any shareholder requesting it beforehand by registered letter with acknowledgment of receipt in
accordance with legal and regulatory requirements, specifying his e-mail address. The latter may at any time expressly request by registered letter to the
Company with acknowledgment of receipt that the aforementioned means of telecommunication should be replaced in the future by a mailing.
The convening notice must also indicate the conditions under which the shareholders may vote by correspondence and the places and conditions in which
they can obtain voting forms by mail.
The convening notice may be addressed, where appropriate, with a proxy form and a voting by correspondence form, under the conditions specified in the
Company’s bylaws, or with a voting by correspondence form alone, under the conditions specified in the Company’s bylaws. When the shareholders’
meeting cannot deliberate due to the lack of the required quorum, the second meeting must be called at least ten days in advance in the same manner as
used for the first notice.
Agenda and Conduct of Annual Shareholders’ Meetings. The agenda of the shareholders’ meeting shall appear in the convening notice of the meeting
and is set by the author of the notice. The shareholders’ meeting may only deliberate on the items on the agenda except for the removal of directors and the
appointment of their successors which may be put to vote by any shareholder during any shareholders’ meeting. Pursuant to French law and the Company’s
current share capital, one or more shareholders representing 5% of the Company’s share capital may request the inclusion of items or proposed resolutions
on the agenda. Such request must be received at the latest on the 25th day preceding the date of the shareholders’ meeting, and in any event no later than
the 20th day following the date of the shareholders’ meeting announcement.
Shareholders’ meetings shall be chaired by the Chairman of the board of directors or, in his or her absence, by a Deputy Chairman or by a director elected
for this purpose. Failing that, the meeting itself shall elect a Chairman. Vote counting shall be performed by the two members of the meeting who are
present and accept such duties, who represent, either on their own behalf or as proxies, the greatest number of votes.
Ordinary Shareholders’ Meeting. Ordinary shareholders’ meetings are those meetings called to make any and all decisions that do not amend the
Company’s bylaws. An ordinary meeting shall be convened at least once a year within six months of the end of each fiscal year in order to approve the
annual and consolidated accounts for the relevant fiscal year or, in case of postponement, within the period established by court order. Upon first notice, the
meeting may validly deliberate only if the shareholders present or represented by proxy or voting by mail represent at least one-fifth of the shares entitled
to vote. Upon second notice, no quorum is required. Decisions are made by a majority of the votes cast by the shareholders present, or represented by
proxy, or voting by mail. Abstentions will have the same effect of a “no” vote. In addition, pursuant to a recent AMF recommendation, French listed
companies may be required to conduct a consultation of the ordinary shareholders meeting prior to the disposal of the majority of their assets, under certain
circumstances. ,
Extraordinary Shareholders’ Meeting. The Company’s bylaws may only be amended by approval at an extraordinary shareholders’ meeting. The
Company’s bylaws may not, however, be amended to increase shareholder commitments without the approval of each shareholder. Subject to the legal
provisions governing share capital increases from reserves, profits or share premiums, the resolutions of the extraordinary meeting shall be valid only if the
shareholders present, represented by proxy or voting by mail represent at least one-fourth of all shares entitled to vote upon first notice, or one-fifth upon
second notice. If the latter quorum is not reached, the second meeting may be postponed to a date no later than two months after the date for which it was
initially called. Decisions are made by a two-thirds majority of the votes cast by the shareholders present, represented by proxy, or voting by mail.
Abstentions will have the same effect of a “no” vote.
Limitations
Ownership of ADSs or Shares by Non-French Residents
Neither the French Commercial Code nor the Company’s bylaws presently impose any restrictions on the right of non-French residents or non-French
shareholders to own and vote shares. However, non-French residents must file a declaration for statistical purposes with the Bank of France (Banque de
France) within twenty working days following the date of certain direct foreign investments in the Company, including any purchase of the Company’s
ADSs. In particular such filings are required in connection with investments exceeding €15,000,000 that lead to the acquisition of at least 10% of the share
capital or voting rights or cross such 10% threshold. Violation of this filing requirement may be sanctioned by five years’ imprisonment and a fine up to
twice the amount of the relevant investment. This amount may be increased fivefold if the violation is made by a legal entity. Moreover, certain foreign
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investments in companies incorporated under French laws are subject to the prior authorization from the French Minister of the Economy, where all or part
of the target’s business and activity relate to a strategic sector, such as energy, transportation, public health and telecommunications. etc., pursuant to Law
n°2019-486 (and as from April 1, 2020 pursuant to the decree n°2019-1590). The French government has adapted this foreign investment control procedure
in France within the context of the ongoing COVID-19 pandemic in two ways: (i) the inclusion, by a Ministerial order (arrêté) of April 27, 2020, of
biotechnologies in the list of critical technologies and (ii) the addition, by a Decree (décret) of July 22, 2020 as amended by Decree n°2020-1729 of
December 28, 2020, of the threshold of 10% of voting rights of a company subject to French law whose securities are listed on a stock exchange as
triggering the control procedure. The Decree of July 22, 2020, as amended by the Decree of December 28, 2020, currently provides that this new 10%
threshold will be effective until December 31, 2020 and a fast-track review procedure for foreign investments exceeding this threshold.
Foreign Exchange Controls
Under current French foreign exchange control regulations there are no limitations on the amount of cash payments that the Company may remit to
residents of foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments or transfers of funds made
by a French resident to a non-resident such as dividend payments be handled by an accredited intermediary. All registered banks and substantially all credit
institutions in France are accredited intermediaries.
Availability of Preferential Subscription Rights
The Company’s shareholders will have the preferential subscription rights described under “Ordinary Shares—Changes in Share Capital—Preferential
Subscription Right.” Under French law, shareholders have preferential rights to subscribe for cash issues of new shares or other securities giving rights to
acquire additional shares on a pro rata basis. Holders of the Company’s securities in the United States (which may be represented by ADSs) will not be able
to exercise preferential subscription rights for their securities unless a registration statement under the Securities Act is effective with respect to such rights
or an exemption from the registration requirements imposed by the Securities Act is available. The Company may, from time to time, issue new shares or
other securities giving rights to acquire additional shares (such as warrants) at a time when no registration statement is in effect and no Securities Act
exemption is available. If so, holders of the Company’s securities in the United States will be unable to exercise any preferential subscription rights and
their interests will be diluted. The Company is under no obligation to file any registration statement in connection with any issuance of new shares or other
securities. The Company intends to evaluate at the time of any rights offering the costs and potential liabilities associated with registering the rights, as well
as the indirect benefits to the Company of enabling the exercise by holders of shares in the United States and ADS holders of the subscription rights, and
any other factors the Company considers appropriate at the time, and then to make a decision as to whether to register the rights. The Company cannot
guarantee that it will file a registration statement.
For holders of the Company’s ordinary shares represented by ADSs, the depositary may make these rights or other distributions available to ADS holders.
If the depositary does not make the rights available to ADS holders and determines that it is impractical to sell the rights, it may allow these rights to lapse.
In that case, ADS holders will receive no value for them. The section herein titled “II. American Depositary Shares—Dividends and Other Distributions”
explains in detail the depositary’s responsibility in connection with a rights offering. See also “Risk Factors—The right as a holder of ADSs to participate
in any future preferential subscription rights or to elect to receive dividends in shares may be limited, which may cause dilution to the holders of our ADSs”
in the Company’s Annual Report on Form 20-F to which this description is filed as an exhibit.
Provisions Having the Effect of Delaying, Deferring or Preventing a Change in Control of the Company
Provisions contained in the Company’s bylaws and French corporate law could make it more difficult for a third-party to acquire the Company, even if
doing so might be beneficial to the Company’s shareholders. These provisions include the following:
• under French law, the owner of 90% of the share capital or voting rights of a public company listed on a regulated market in a Member State of the
European Union or in a state party to the EEA Agreement, including from the main French Stock Exchange, has the right to force out minority
shareholders following a tender offer made to all shareholders;
• under French law, a non-resident of France as well as any French entity controlled by non-residents of France may have to file a declaration for
statistical purposes with the Bank of France (Banque de France) within 20 working days following the date of certain direct foreign investments in
the Company, including any purchase of the Company’s ADSs. In particular, such filings are required in connection with investments exceeding
€15,000,000 that lead to the acquisition of at least 10% of the Company’s share capital or voting rights or cross such 10% threshold. See
“Limitations Affecting Shareholders of a French Company;”
•
under French law, certain investments in a French company relating to certain strategic industries, including biotechnologies, by individuals or
entities not residents in a Member State of the European Union are subject to prior authorization of the
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Ministry of Economy pursuant to Law n°2019-486 (and as from April 1, 2929 pursuant to the decree n°2019-1580 of December 31, 2019, as
amended by decree (arrêté) of April 27, 2020). See “Limitations Affecting Shareholders of a French Company;”
• a merger (i.e., in a French law context, a share for share exchange following which the Company’s company would be dissolved into the acquiring
entity and the Company’s shareholders would become shareholders of the acquiring entity) of the Company’s company into a company
incorporated in the European Union would require the approval of the Company’s board of directors as well as a two-thirds majority of the votes
cast by the shareholders present, represented by proxy or voting by mail at the relevant meeting;
• a merger of the Company’s company into a company incorporated outside of the European Union would require 100% of the Company’s
shareholders to approve it;
•
under French law, a cash merger is treated as a share purchase and would require the consent of each participating shareholder;
• the Company’s shareholders have granted and may grant in the future the Company’s board of directors broad authorizations to increase the
Company’s share capital or to issue additional ordinary shares or other securities, such as warrants, to the Company’s shareholders, the public or
qualified investors, including as a possible defense following the launching of a tender offer for the Company’s shares;
• the Company’s shareholders have preferential subscription rights on a pro rata basis on the issuance by the Company of any additional securities for
cash or a set-off of cash debts, which rights may only be waived by the extraordinary general meeting (by a two-thirds majority vote) of the
Company’s shareholders or on an individual basis by each shareholder;
• the Company’s board of directors has the right to appoint directors to fill a vacancy created by the resignation or death of a director for the remaining
duration of such directors' term of office and subject to the approval by the shareholders of such appointment at the next shareholders’ meeting,
which prevents shareholders from having the sole right to fill vacancies on the Company’s board of directors ;
• the Company’s board of directors can be convened by its chairman or its managing director, if any, or, when no board meeting has been held for more
than two consecutive months, by directors representing at least one third of the total number of directors;
• the Company’s board of directors meetings can only be regularly held if at least half of the directors attend either physically or by way of
videoconference or teleconference enabling the directors’ identification and ensuring their effective participation in the board’s decisions;
• the Company’s shares are nominative or bearer, if the legislation so permits, according to the shareholder’s choice;
• approval of at least a majority of the votes cast by shareholders present, represented by a proxy, or voting by mail at the relevant ordinary
shareholders’ general meeting is required to remove directors with or without cause;
• advance notice is required for nominations to the board of directors or for proposing matters to be acted upon at a shareholders’ meeting, except that
a vote to remove and replace a director can be proposed at any shareholders’ meeting without notice;
• the Company’s bylaws can be changed in accordance with applicable laws;
• the crossing of certain thresholds has to be disclosed and can impose certain obligations; see the section of this exhibit titled “Declaration of Crossing
of Ownership Thresholds (Article 9 of the Bylaws);”
• transfers of shares shall comply with applicable insider trading rules and regulations, and in particular with the Market Abuse Directive and
Regulation dated April 16, 2014; and
• pursuant to French law, the sections of the bylaws relating to the number of directors and election and removal of a director from office may only be
modified by a resolution adopted by two-thirds of the votes of the Company’s shareholders present, represented by a proxy or voting by mail at the
meeting.
Disclosure of shareholdings
Declaration of Crossing of Ownership Thresholds (Article 9 of the Bylaws)
Any individual or legal entity referred to in Articles L. 233-7, L. 233-9 and L. 223-10 of the French Commercial Code coming to directly or indirectly own,
or cease to own, alone or in concert, a number of shares representing a fraction of the Company’s capital or voting rights greater or equal to 5%, 10%, 15%,
20%, 25%, 30%, 33.33%, 50%, 66.66%, 90% and 95% shall inform the Company as well as the French Financial Market Authority (AMF) of the total
number of shares and voting rights and of securities giving access to
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the capital or voting rights that it owns immediately or over time within a period of four trading days from the crossing of the said holding thresholds.
This obligation applies when crossing each of the above-mentioned thresholds in a downward direction.
In the event of failure to declare shares or voting rights exceeding the fraction that should have been declared, such shares shall be deprived of voting rights
at General Meetings of Shareholders for any meeting that would be held until the expiry of a period of two years from the date of regularization of the
notification in accordance with Article L. 233-14 of the French Commercial Code.
In addition, any shareholder, alone or acting in concert, crossing the 10%, 15%, 20% or 25% threshold shall file a declaration with the AMF pursuant to
which it shall expose its intention over the following 6 months, including notably whether it intends to continue acquiring shares of the Company, it intends
to acquire control over the Company, its intended strategy for the Company.
Further, and subject to certain exemptions, any shareholder crossing, alone or acting in concert, the 30% threshold shall file a mandatory public tender offer
with the AMF. Also, any shareholder holding directly or indirectly a number between 30% and 50% of the capital or voting rights and who, in less than 12
consecutive months, increases his/her/its holding of capital or voting rights by at least 1% company’s capital or voting rights, shall file a mandatory public
tender offer.
Differences in Corporate Law
The Company is a société anonyme, or S.A., incorporated under the laws of France. The laws applicable to French sociétés anonymes differ from laws
applicable to U.S. corporations and their shareholders. Set forth below is a summary of certain differences between the provisions of the French
Commercial Code applicable to the Company and the Delaware General Corporation Law relating to shareholders’ rights and protections. This summary
is not intended to be a complete discussion of the respective rights and it is qualified in its entirety by reference to Delaware law and French law. .
FRANCE
DELAWARE
Number of Directors
Director Qualifications
Removal of Directors
Under French law, a société anonyme must have at least three
and may have up to 18 directors. The number of directors is
fixed by or in the manner provided in the bylaws. Since
January 1, 2017, the number of directors of each gender may
not be less than 40%. Any appointment made in violation of
this limit that is not remedied will be null and void.
Under French law, a corporation may prescribe qualifications
for directors under its bylaws. In addition, under French law,
members of a board of directors of a corporation may be legal
entities (with the exception of the chairman of the board), and
such legal entities may designate an individual to represent
them and to act on their behalf at meetings of the board of
directors as well as the deliberations taken by the board
member irregularly appointed.
Under French law, directors may be removed from office,
with or without cause, at any shareholders’ meeting without
notice or justification, by a simple majority vote.
Under Delaware law, a corporation must have at
least one director and the number of directors
shall be fixed by or in the manner provided in
the bylaws.
Under Delaware law, a corporation may
prescribe qualifications for directors under its
certificate of incorporation or bylaws.
Under Delaware law, unless otherwise provided
in the certificate of incorporation, directors may
be removed from office, with or without cause,
by a majority stockholder vote, though in the
case of a corporation whose board is classified,
stockholders may effect such removal only for
cause.
Vacancies on the Board of Directors
Under French law, vacancies on the board of directors
resulting from death or a resignation, provided that at least
three directors remain in office, may be filled by a majority of
the remaining directors pending ratification by the
shareholders by the next shareholders’ meeting.
Under Delaware law, vacancies on a
corporation’s board of directors, including those
caused by an increase in the number of
directors, may be filled by a majority of the
remaining directors.
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Annual General Meeting
General Meeting
FRANCE
DELAWARE
Under French law, the annual general meeting of shareholders
shall be held at such place, on such date and at such time as
decided each year by the board of directors and notified to the
shareholders in the convening notice of the annual meeting,
within six months after the close of the relevant fiscal year
unless such period is extended by court order.
Under Delaware law, the annual meeting of
stockholders shall be held at such place, on such
date and at such time as may be designated from
time to time by the board of directors or as
provided in the certificate of incorporation or by
the bylaws.
Under French law, general meetings of the shareholders may
be called by the board of directors or, failing that, by the
statutory auditors, or by a court appointed agent (mandataire
ad hoc) or liquidator in certain circumstances, or by the
majority shareholder in capital or voting rights following a
public tender offer or exchange offer or the transfer of a
controlling block on the date decided by the board of directors
or the relevant person
Under Delaware law, special meetings of the
stockholders may be called by the board of
directors or by such person or persons as may
be authorized by the certificate of incorporation
or by the bylaws.
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Notice of General Meetings
FRANCE
DELAWARE
Under Delaware law, unless otherwise provided
in the certificate of incorporation or bylaws,
written notice of any meeting of the
stockholders must be given to each stockholder
entitled to vote at the meeting not less than 10
nor more than 60 days before the date of the
meeting and shall specify the place, date, hour,
and purpose or purposes of the meeting.
A meeting announcement is published in the French Journal
of Mandatory Statutory Notices (BALO) at least 35 days prior
to a meeting and made available on the website of the
company at least 21
day prior to the meeting. Subject to limited exceptions
provided by French law, additional convening notice is sent
out at least 15 days prior to the date of the meeting, by means
of a notice inserted both in a legal announcement bulletin of
the registered office department and in the French Journal of
Mandatory Statutory Notices (BALO). Further, shareholders
holding registered shares for at least a month at the time latest
insertions of the notices shall be summoned individually, by
regular letter (or by registered letter if they request it and
include an advance of expenses) sent to their last known
address. This notice to registered shareholders may also be
transmitted by electronic means of telecommunication, in lieu
of any such mailing, to any shareholder requesting it
beforehand by registered letter with acknowledgment of
receipt in accordance with legal and regulatory requirements,
specifying his e-mail address. When
the shareholders’
meeting cannot deliberate due to lack of required quorum, the
second meeting must be called at least ten calendar days in
advance in the same manner as used for the first notice.
The convening notice shall specify the name of the company,
its legal form, share capital, registered office address,
registration number with the French Registry of Commerce
and Companies, the place, date, hour and agenda of the
its nature (ordinary and/or extraordinary
meeting and
meeting). The convening notice must also indicate the
conditions under which the shareholders may vote by
correspondence and the places
and conditions in which they can obtain voting forms by mail
and, as the case may be, the email address to which they may
send written questions.
meeting). The convening notice must also indicate the
conditions under which the shareholders may vote by
correspondence and the places and conditions in which they
can obtain voting forms by mail and conditions in which they
can obtain voting forms by mail.
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FRANCE
DELAWARE
law, at any meeting of
Under Delaware
stockholders, a stockholder may designate
another person to act for such stockholder by
proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the
proxy provides for a longer period.
Under Delaware law, a corporation’s certificate
of incorporation (1) may permit stockholders to
act by written consent if such action is signed
by all stockholders, (2) may permit stockholders
to act by written consent signed by stockholders
having the minimum number of votes that
would be necessary to take such action at a
meeting or (3) may prohibit actions by written
consent.
Under Delaware law, unless otherwise provided
in a corporation’s certificate of incorporation, a
stockholder does not, by operation of law,
to
possess preemptive rights
additional issuances of the corporation’s stock.
to subscribe
Proxy
Each shareholder has the right to attend the meetings and
participate in the discussions (i) personally, or (ii) by granting
proxy to his/her spouse, his/her partner with whom he/she has
entered into a civil union or to another shareholder or to any
individual or legal entity of his choosing; or (iii) by sending a
proxy to the company without indication of the mandate (in
this case, such proxy shall be cast in favor of the resolutions
supported by the board of directors), or (iv) by voting by
correspondence, or (v) by videoconference or another means
of telecommunication in accordance with applicable laws that
allow identification. The proxy is only valid for a single
meeting or for successive meetings convened with the same
agenda. It can also be granted for two meetings, one ordinary,
and the other extraordinary, held on the same day or within a
period of fifteen days.
Shareholder Action by Written Consent Under French law, shareholders’ action by written consent is
not permitted in a société anonyme.
Preemptive Rights
Under French law, in case of issuance of additional shares or
other securities for cash or set-off against cash debts, the
existing shareholders have preferential
subscription rights to these securities on a pro rata basis
unless such rights are waived by a two-thirds majority of the
votes cast by the shareholders present at the extraordinary
general meeting deciding or authorizing the capital increase,
voting in person or represented by proxy or voting by mail. In
case such rights have not been waived by the extraordinary
general meeting, each shareholder may individually either
exercise, assign or not exercise its preferential subscription
rights. Preferential subscription rights may only be exercised
during the subscription period. In accordance with French law,
the exercise period shall not be less than five trading days.
Preferential subscription rights are transferable during a
period equivalent to the subscription period but starting two
business days prior to the opening of the subscription period
and ending two business days prior to the closing of the
subscription period.
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Sources of Dividends
Repurchase of Shares
FRANCE
DELAWARE
Under Delaware law, dividends may be paid by
a Delaware corporation either out of (1) surplus
or (2) in case there is no surplus, out of its net
profits for the fiscal year in which the dividend
is declared and/or the preceding fiscal year,
except when the capital is diminished by
depreciation in the value of its property, or by
losses, or otherwise, to an amount less than the
aggregate amount of capital represented by
stock having a
issued and outstanding
preference on the distribution of assets.
Under French law, dividends may only be paid by a
French société anonyme out of
“distributable profits,” plus any distributable reserves and
“distributable premium” that the shareholders decide to make
available for distribution, other than those reserves that are
specifically required by law.
“Distributable profits” consist of the unconsolidated net
profits of the relevant corporation for each fiscal year, as
increased or reduced by any profit or loss carried forward
from prior years.
“Distributable premium” refers to the contribution paid by the
stockholders in addition to the par value of their shares for
their subscription that the stockholders decide to make
available for distribution.
Except in case of a share capital reduction, no distribution can
be made to the stockholders when the net equity is, or would
become, lower than the amount of the share capital plus the
reserves which cannot be distributed in accordance with the
law or the bylaws.
Under Delaware law, a corporation may
generally redeem or repurchase shares of its
stock unless the capital of the corporation is
impaired or such redemption or repurchase
would impair the capital of the corporation.
to decrease its share capital with the approval of the
to meet obligations arising from debt securities, that are
Under French law, a corporation may acquire its own shares.
Such acquisition may be challenged on the ground of market
abuse regulations. However, the Market Abuse Regulation
596/2014 of April 16, 2014 (MAR) provides for safe harbor
exemptions when the acquisition is made for the following
purposes:
•
shareholders at the extraordinary general meeting;
•
exchangeable into equity instruments; or
•
with a view to distributing the relevant shares to
employees or managers under a profit-sharing, free share or
share option plan.
All other purposes, and especially share buy-backs for
external growth operations by virtue of Article L. 20-10-62 of
the French Commercial Code, while not forbidden, must be
pursued in
strict compliance of market manipulation and insider dealing
rules.
Under the Market Abuse Regulation 596/2014 of April 16,
2014 (MAR) and in accordance with the General Regulations
of the French Financial Markets Authority, a corporation shall
report to the competent authority of the trading venue on
which the shares have been admitted to trading or are traded,
no later than by the end of the seventh daily market session
following the date of the execution of the transaction, all the
transactions relating to the buy-back program, in a detailed
form and in an aggregated form.
No such repurchase of ordinary shares may result in the
company holding, directly or through a person acting on its
behalf, more than 10% of its issues share capital.
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FRANCE
DELAWARE
Liability of Directors and Officers
Under French law, the bylaws may not include any provisions
limiting the liability of directors. Civil liability of the directors
may be sought for (1) an infringement of laws and regulations
applicable to the company, (2) breach of the bylaws and (3)
management failure.
any breach of the director’s duty of loyalty
Under Delaware law, a corporation’s certificate
of incorporation may include a provision
eliminating or limiting the personal liability of a
director to the corporation and its stockholders
for damages arising from a breach of fiduciary
duty as a director. However, no provision can
limit the liability of a director for:
•
to the corporation or its stockholders;
acts or omissions not in good faith or that
•
involve intentional misconduct or a knowing
violation of law;
•
intentional or negligent payment of unlawful
dividends or stock purchases or redemptions; or
redemptions; or any transaction from which the
director derives an improper personal benefit
Voting Rights
Shareholder Vote on Certain
Transactions
French law provides that, unless otherwise provided in the
bylaws, each shareholder is entitled to one vote for each share
of capital stock held by such shareholder. As from April 2016,
double voting rights are automatically granted to the shares
being registered since more than two years, unless the bylaws
are modified in order to provide otherwise.
Generally, under French law, completion of a merger,
dissolution, sale, lease or exchange of all or substantially all
of a corporation’s assets requires:
the approval of the board of directors; and
•
•
approval by a two-thirds majority of the votes cast by the
shareholders present, represented by proxy or voting by mail
at the relevant meeting or, in the case of a merger with a non-
EU company, approval of all shareholders of the corporation
(by exception, the extraordinary general meeting of the
acquiring company may delegate to the board authority to
decide a merger-absorption or to determine the terms and
conditions of the merger plan).
Delaware law provides that, unless otherwise
provided in the certificate of incorporation, each
stockholder is entitled to one vote for each share
of capital stock held by such stockholder.
Generally, under Delaware law, unless the
certificate of incorporation provides for the vote
of a larger portion of the stock, completion of a
merger, consolidation, sale, lease or exchange of
all or substantially all of a corporation’s assets
or dissolution requires:
the approval of the board of directors; and
•
•
approval by the vote of the holders of a
majority of the outstanding stock or, if the
certificate of incorporation provides for more or
less than one vote per share, a majority of the
votes of the outstanding stock of a corporation
entitled to vote on the matter.
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FRANCE
DELAWARE
Dissent or Dissenters’ Appraisal Rights
French law does not provide for any such right but provides
that a merger is subject to shareholders’ approval by a two-
thirds majority vote as stated above.
Under Delaware law, a holder of shares of any
class or series has the right, in specified
circumstances, to dissent from a merger or
consolidation by demanding payment in cash
for the stockholder’s shares equal to the fair
value of those shares, as determined by the
Delaware Chancery Court in an action timely
brought by the corporation or a dissenting
stockholder. Delaware law grants these
appraisal rights only in the case of mergers or
consolidations and not in the case of a sale or
transfer of assets or a purchase of assets for
stock. Further, no appraisal rights are available
for shares of any class or series that is listed on
a national securities exchange or held of record
by more than 2,000 stockholders, unless the
agreement of merger or consolidation requires
the holders to accept for their shares anything
other than:
•
•
are either listed on a national securities
exchange or held of record by more than 2,000
stockholders;
•
cash in lieu of fractional shares of the stock
described in the two preceding bullet points; or
•
In addition, appraisal rights are not available to
holders of shares of the surviving corporation in
specified mergers that do not require the vote of
the stockholders of the surviving corporation.
shares of stock of the surviving corporation;
shares of stock of another corporation that
any combination of the above.
Standard of Conduct for Directors
French law does not contain specific provisions setting forth
the standard of conduct of a director. However, directors have
a duty to act without self-interest, on a well-informed basis
and they cannot make any decision against a corporation’s
corporate interest (intérêt social). In addition, directors shall
take into account social and environmental issues arising out
of the company’s activity.
Delaware law does not contain specific
provisions setting forth the standard of conduct
of a director. The scope of the fiduciary duties
of directors is generally determined by the
courts of the State of Delaware. In general,
directors have a duty to act without self-interest,
on a well-informed basis and in a manner they
reasonably believe to be in the best interest of
the stockholders.
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FRANCE
DELAWARE
Shareholder Suits
Amendment of Bylaws
French law provides that a shareholder, or a group of
shareholders, may initiate a legal action to seek
indemnification from the directors of a corporation in the
corporation’s interest if it fails to bring such legal action itself.
If so, any damages awarded by the court are paid to the
corporation and any legal fees relating to such action may be
borne by the relevant shareholder or the group of
shareholders.
The plaintiff must remain a shareholder through the duration
of the legal action.
There is no other case where shareholders may initiate a
derivative action to enforce a right of a corporation.
A shareholder may alternatively or cumulatively bring
individual legal action against the directors, provided he has
suffered distinct damages from those suffered by the
corporation. In this case, any damages awarded by the court
are paid to the relevant shareholder.
Under French law, only the extraordinary shareholders’
meeting is authorized to adopt or amend the bylaws.
However, the board of directors is authorized to (i) modify the
bylaws as a result of a decision to move the company’s
registered office and (ii) to bring to the bylaws any
modification rendered necessary by an amendment to an
applicable law or regulation if the board of directors has been
prior authorized by the extraordinary shareholders meeting for
this purpose, and subject, in both cases, to ratification by the
next extraordinary shareholders’ meeting.
Under Delaware law, a stockholder may initiate
a derivative action to enforce a right of a
corporation if the corporation fails to enforce
the right itself. The complaint must:
•
state that the plaintiff was a stockholder at
the time of the transaction of which the plaintiff
complains or that the plaintiff’s shares thereafter
devolved on the plaintiff by operation of law;
and
•
the plaintiff to obtain the action the plaintiff
desires from the directors and the reasons for
the plaintiff’s failure to obtain the action; or
•
Additionally, the plaintiff must remain a
stockholder through the duration of the
derivative suit. The action will not be dismissed
or compromised without the approval of the
Delaware Court of Chancery.
allege with particularity the efforts made by
state the reasons for not making the effort.
Under Delaware law, the stockholders entitled
to vote have the power to adopt, amend or
repeal the bylaws of the corporation. A
corporation may also confer, in its certificate of
incorporation, that power upon the board of
directors.
Changes in Share Capital
Increases in Share Capital (Article 10 of the Bylaws). Pursuant to French law, the Company’s share capital may be increased only with shareholders’
approval at an extraordinary general shareholders’ meeting following the recommendation of the Company’s board of directors. The shareholders may
delegate to the Company’s board of directors either the authority (délégation de compétence) or the power (délégation de pouvoir) to carry out any increase
in share capital.
Increases in the Company’s share capital may be effected by:
• issuing additional shares;
• increasing the par value of existing shares;
• creating a new class of equity securities; and
• exercising the rights attached to securities giving access to the share capital.
Increases in share capital by issuing additional securities may be effected through one or a combination of the following:
• in consideration for cash;
• in consideration for assets contributed in kind;
• through an exchange offer;
• by conversion of previously issued debt instruments;
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• by capitalization of profits, reserves or share premium; and
• subject to certain conditions, by way of offset against debt incurred by the Company.
Decisions to increase the share capital through the capitalization of reserves, profits and/or share premium require shareholders’ approval at an
extraordinary general shareholders’ meeting, acting under the quorum and majority requirements applicable to ordinary shareholders’ meetings. Increases
effected by an increase in the par value of shares require unanimous approval of the shareholders, unless effected by capitalization of reserves, profits or
share premium. All other capital increases require shareholders’ approval at an extraordinary general shareholders’ meeting acting under the regular
quorum and majority requirements for such meetings.
Reduction in Share Capital. Pursuant to French law, any reduction in the Company’s share capital requires shareholders’ approval at an extraordinary
general shareholders’ meeting following the recommendation of the Company’s board of directors. The share capital may be reduced either by decreasing
the par value of the outstanding shares or by reducing the number of outstanding shares. The number of outstanding shares may be reduced by the
repurchase and cancellation of shares. Holders of each class of shares must be treated equally unless each affected shareholder agrees otherwise.
Preferential Subscription Right. According to French law, if the Company issues additional securities for cash, current shareholders will have preferential
subscription rights to these securities on a pro rata basis. Preferential subscription rights entitle the individual or entity that holds them to subscribe pro
rata based on the number of shares held by them to the issuance of any securities increasing, or that may result in an increase of, the Company’s share
capital by means of a cash payment or a set-off of cash debts. The preferential subscription rights are transferable during the subscription period relating to
a particular offering.
Pursuant to recent legislation that went into effect on October 1, 2016, the preferential subscription rights will be transferable during a period starting two
days prior to the opening of the subscription period and ending two days prior to the closing of the subscription period.
The preferential subscription rights with respect to any particular offering may be waived at an extraordinary general meeting by a two-thirds vote of the
Company’s shareholders or individually by each shareholder. The Company’s board of directors and its independent auditors are required by French law to
present reports to the shareholders’ meeting that specifically address any proposal to waive the preferential subscription rights.
In the future, to the extent permitted under French law, the Company may seek shareholder approval to waive preferential subscription rights at an
extraordinary general shareholders’ meeting in order to authorize the board of directors to issue additional shares and/or other securities convertible or
exchangeable into shares.
Listing
Our ADSs are listed on the Nasdaq Global Select Market under the symbol “ERYP.” Our ordinary shares are listed on Euronext Paris under the symbol
“ERYP.”
Transfer Agent and Registrar
The transfer agent and registrar for our ADSs is The Bank of New York Mellon. Our share register for our ordinary shares is maintained by Société
Générale. The share register reflects only record owners of our ordinary shares. Holders of our ADSs are not treated as our shareholders and their names
are therefore not entered in our share register. The depositary, the custodian or their nominees are the holder of the shares underlying our ADSs. Holders of
our ADSs have a right to receive the ordinary shares underlying their ADSs. For discussion on our ADSs and ADS holder rights, see “Description of
American Depositary Shares” in this prospectus.
LIMITATIONS AFFECTING SHAREHOLDERS OF A FRENCH COMPANY
Ownership of ADSs or Shares by Non-French Residents
Neither the French Commercial Code nor our bylaws presently impose any restrictions on the right of non-French residents or non-French shareholders to
own and vote shares. However, non-French residents must file a declaration for statistical purposes with the Bank of France (Banque de France) within
twenty working days following the date of certain direct foreign investments in us, including any purchase of our ADSs. In particular such filings are
required in connection with investments exceeding €15,000,000 that lead to the acquisition of at least 10% of the share capital or voting rights or cross such
10% threshold. Violation of this filing requirement may be sanctioned by five years’ imprisonment and a fine up to twice the amount of the relevant
investment. This amount may be increased fivefold if the violation is made by a legal entity. Moreover, certain foreign investments in companies
incorporated under French laws are subject to the prior authorization from the French Minister of the Economy, where all or part of the target’s business
and activity relate to a strategic sector, such as energy, transportation, public health, telecommunications, etc.,
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Foreign Exchange Controls
Under current French foreign exchange control regulations there are no limitations on the amount of cash payments that we may remit to residents of
foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments or transfers of funds made by a
French resident to a non-resident such as dividend payments be handled by an accredited intermediary. All registered banks and substantially all credit
institutions in France are accredited intermediaries.
Availability of Preferential Subscription Rights
Our shareholders will have the preferential subscription rights described under “Description of Share Capital—Key Provisions of Our Bylaws and French
Law Affecting Our Ordinary Shares—Changes in Share Capital—Preferential Subscription Right.” Under French law, shareholders have preferential rights
to subscribe for cash issues of new shares or other securities giving rights to acquire additional shares on a pro rata basis. Holders of our securities in the
United States (which may be represented by ADSs) will not be able to exercise preferential subscription rights for their securities unless a registration
statement under the Securities Act is effective with respect to such rights or an exemption from the registration requirements imposed by the Securities Act
is available. We may, from time to time, issue new shares or other securities giving rights to acquire additional shares (such as warrants) at a time when no
registration statement is in effect and no Securities Act exemption is available. If so, holders of our securities in the United States will be unable to exercise
any preferential subscription rights and their interests will be diluted. We are under no obligation to file any registration statement in connection with any
issuance of new shares or other securities. We intend to evaluate at the time of any rights offering the costs and potential liabilities associated with
registering the rights, as well as the indirect benefits to us of enabling the exercise by holders of shares in the United States and ADS holders of the
subscription rights, and any other factors we consider appropriate at the time, and then to make a decision as to whether to register the rights. We cannot
assure you that we will file a registration statement.
For holders of our ordinary shares represented by ADSs, the depositary may make these rights or other distributions available to ADS holders. If the
depositary does not make the rights available to ADS holders and determines that it is impractical to sell the rights, it may allow these rights to lapse. In
that case, ADS holders will receive no value for them. The section of this prospectus titled “Description of American Depositary Shares—Dividends and
Other Distributions” explains in detail the depositary’s responsibility in connection with a rights offering. See also “Risk Factors—The right as a holder of
ADSs to participate in any future preferential subscription rights or to elect to receive dividends in shares may be limited, which may cause dilution to the
holders of our ADSs”.
10.C. Material Contracts.
The section below provides a summary of material contracts, for the two years immediately preceding this Annual Report.
License and Collaboration Agreement with SQZ Biotechnologies
In June 2019, we entered into a license agreement, or the 2019 license agreement, with SQZ Biotechnologies Company, or SQZ, pursuant to which we
granted SQZ a worldwide, exclusive license under certain of our intellectual property, rights related to encapsulation technology to research, develop,
manufacture, commercialize and otherwise exploit products that modulate an immune response that contain red blood cells and one or more antigens,
excluding red blood cell containing products that have a primary mechanism of action that is other than eliciting an antigen-specific immune response or
whose primary purpose is to elicit immune tolerance to certain enzymes that modulate specified metabolites. SQZ is solely responsible for future
development and commercialization of licensed products and is required to use commercially reasonable efforts to develop and commercialize at least one
licensed product throughout the world.
In consideration for entering into the 2019 license agreement, SQZ made an initial upfront payment of $1.0 million. Additionally, we are also entitled to
receive $6.0 million in the aggregate for certain specified development and regulatory milestones, $50.0 million in the aggregate for certain specified
commercial milestones, a tiered percentage royalty on annual net sales ranging in the low-single digits, subject to certain specified reductions, and a tiered
percentage royalty on certain sublicensing revenue received by SQZ ranging from low-single digit to low-second decile. Royalties are payable by SQZ on a
licensed product-by-licensed product, indication-by-indication, and country-by-country basis until the expiration of the last valid claim covering the
licensed product in such country.
During the term of the 2019 license agreement we, alone and with third parties, are prohibited from researching, developing, manufacturing,
commercializing or otherwise exploiting products whose primary purpose is to elicit immune tolerance to a therapeutic enzyme, wherein the red blood cells
contain a portion or derivative of the therapeutic enzyme that is sufficient to elicit immune tolerance.
The 2019 license agreement expires on the date of expiration of all royalty obligations. Either party may terminate the 2019 license agreement earlier upon
an uncured material breach of the agreement by the other party or the insolvency of the other party. We may terminate the 2019 license agreement in the
event that SQZ initiates an action challenging the validity or enforceability of the licensed
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patents. Additionally, SQZ may terminate the 2019 license agreement for any or no reason on country-by-country basis or in its entirety upon specified
written notice.
OCABSA Agreement with Alpha Blue Ocean
We entered into an agreement on June 24, 2020 (the "OCABSA Agreement") allowing the issuance for the benefit of the Luxembourg-based fund
European High Growth Opportunities Securitization Fund, represented by its asset manager European High Growth Opportunities Manco SA., of 1,200
notes warrants (bons d'émission) (the "Notes Warrants" or "BEOCABSA") giving right to convertible notes into new and/or existing shares (the "Notes")
with warrants attached (the "Warrants" and together with the Notes, the "OCABSA"), enabling a potential fund raising of up to EUR 60 million, subject
to the regulatory limit of 20% dilution.
The main characteristics of the securities are described in the table below:
Issuance date :
Characteristics of the issuance
Condition of exercise:
Number of exercised BEOCABSA
June 24, 2020, by decision of the Chief Executive Officer
BEOCABSA
1,200 BEOCABSA issued for free for the benefit of European High Growth Opportunities Securitization
Fund (the "Investor"), pursuant to the 25th resolution of the extraordinary general shareholder's meeting
held on June 21, 2019
by tranches until June 25, 2022, upon request of the Company, it being specified that the Investor shall
have the right to request the issuance of two tranches at any moment.
Any request for a drawdown by the Company will be subject to the satisfaction of certain conditions
precedent, including (i) the fact that the Company's closing price on Euronext Paris has been 150% higher
than the nominal value of the Company's shares for more than 60 Trading Days prior to the request, or (ii)
the fact that the Company has a number of shares that may be issued corresponding to at least 175% of the
number of shares issuable upon conversion of the outstanding Notes and of the Notes to be issued upon the
drawdown request.
Each exercise of a Note Warrant will give rise to the issuance of 60 Notes with 33,670 Warrants attached
(or of 30 Notes with 16,835 Warrants attached in the event where the Company's capitalization is less than
EUR 50 million for 20 consecutive trading days).
360, by tranches of 6, respectively on July 6, 2020, August 24, 2020, November 17, 2020, December 7,
2020, December 22, 2020 and March 2, 2021 (including 2 tranches issued upon request of the Investor) i.e.
a total amount of EUR 18 million, resulting in the issuance of 360 Notes with 202 020 Warrants attached.
Number of outstanding BEOCABSA
840
Nominal value :
Issuance conditions:
Interest:
Subscription price:
Maturity:
EUR 3,000,000 by tranches (EUR 50,000 by Note)
Notes
upon exercise of the Notes Warrants in one or more tranches of 60 Notes (or 30 Notes in the event where
the Company's capitalization is less than EUR 50 million for 20 consecutive trading days), corresponding
to a total nominal value of EUR 3 million (or EUR 1.5 million in case of issuance of a tranche of 30 Notes)
No interest
98% of their nominal value, i.e. EUR 2,940,000 by tranche (EUR 49,000 by Notes)
12 months from their issuance
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Conversion into new shares
at the request of the holder, at any time from their issue until their maturity date, at the conversion ratio for
a Note determined by the formula below:
N = Vn / P, where:
"N" is the number of Shares issue upon conversion of the Notes to be granted to the Note holders,
"Vn" is the nominal value of a Note, i.e. EUR 50,000, of which the conversion is requested,
"P" is the conversion price (the "Conversion Price") of a Note, i.e. the higher of (i) 95% of the volume-
weighted average trading price of the Company's shares on Euronext Paris during the 3 consecutive trading
days expiring on the Trading Day immediately preceding the conversion date,(ii)the nominal value of the
share and (iii)the minimum issuance price of a share as provided in the Resolution(or any resolution that
may succeed it), i.e., to date 80% of the volume-weighted average (in the central order book and excluding
off-market block trades) of the Company's share price on Euronext Paris during the 3trading sessions prior
to the pricing of the issue price, it being specified that the theoretical value of the Warrants will be taken
into account and that the Shareholder's Meeting has set at 10 million the maximum number of shares that
may be issued.
Warrants
Number of Warrants to be issued :
Condition of exercise:
Exercise price:
10 % of the nominal value of the issued Notes (i.e. 33,670 by tranche of 60 Notes and 16,835 by tranche of
30 Notes), detached from the OCABSA as from their issuance.
exercise by the holder for a period of 5 years from the date of issue, each warrant giving the right to
subscribe to one new share.
8,91 €, representing a 20% premium of the lowest volume-weighted average price over the reference
period preceding the issuance of the first tranche.
The use of the OCABSA Agreement as of the date of the Annual Report is described in the table below:
Operation
Date
Number of
convertible
notes
Number of shares
issued upon
conversion of
convertible
Notes
Operation
Date
Number of
warrants
Number of
shares issued
upon
conversion of
warrants
Total number of
shares
issued
07/06/2020
Issuance
Conversion
Number of
convertible notes oustanding
Number of shares issued (1)
08/24/2020
Issuance
Conversion
Number of
convertible notes oustanding
Number of shares issued (1)
11/17/2020
Issuance
Conversion
Number of
convertible notes oustanding
60
60
0
60
60
0
Tranche 1
Issuance
07/06/2020
33 670
511 020
Number of warrants outstanding
33 670
511 020 Number of shares issued
Tranche 2
Issuance
08/24/2020
33 670
614 853
Number of warrants outstanding
33 670
614 853 Number of shares issued
Tranche 3 (Resulting from Investor Call No. 1 dated 12 November 2020
60
60
0
475 442
Issuance
11/17/2020
33 670
Number of warrants outstanding
33 670
124
0
0
511 020
614 853
0
0
0
0
475 442
408 163
421 447
42 492
2 473 417
840
Number of
convertible
notes
Number of shares
issued upon
conversion of
convertible
Notes
Operation
Date
Number of
warrants
Number of
shares issued
upon
conversion of
warrants
Total number of
shares
issued
Operation
Date
Number of shares issued (1)
12/07/2020
Issuance
Conversion
Number of
convertible notes oustanding
Number of shares issued (1)
12/22/2020
Issuance
Conversion
Number of
convertible notes oustanding
Number of shares issued (1)
475 442 Number of shares issued
Tranche 4 (Resulting from Investor Call No. 2 dated 4 December 2020)
60
60
0
60
60
0
Issuance
12/07/2020
33 670
408 163
Number of warrants outstanding
33 670
408 163 Number of shares issued
Tranche 5
Issuance
12/22/2020
33 670
421 447
Number of warrants outstanding
33 670
421 447 Number of shares issued
Tranche 6
03/02/2021
Issuance
Conversion
Number of
convertible notes oustanding
Number of shares issued (1)
Number of shares issued upon conversion of convertible Notes and exercise of warrants
Number of note warrants outstanding
60
6
54
Issuance
42 492
42 492 Number of shares issued
03/02/2021
Number of warrants outstanding
33 670
33 670
(1) i.e an average parity of 1 Convertible Note for 8,517 new shares for tranche 1, 10,248 new shares for tranche 2, 7,924 new shares for tranche 3, 6,803
new shares for tranche 4, and 7,024 new shares for tranche 5.
As of the date of the Annual Report, we issued six tranches of €3.0 million (on July 6, 2020, August 24, 2020, November 17, 2020, December 7, 2020,
December 22, 2020 and March 2, 2021), for a total amount of €18.0 million, for which 306 Notes were converted and no Warrants were exercised, as
described in the table above.
Accordingly, we may decide to issue additional tranches up to a maximum of €42.0 million until June 2022, subject to the limit of 20% dilution,
representing €30.0 million as of the date of this Annual Report based on a share price of €6.63 (closing share price on the day before the date of this Annual
Report). It is specified that this maximum amount is not guaranteed and depends on a number of factors and conditions beyond our control.
We publish
content/uploads/2021_03_05_ERY_Suivi_des_actions_OCABSA.pdf).
the monitoring
and update
relating
table
to
the OCABSA Agreement on our website
(https://erytech.com/wp-
For additional information on our material contracts, please see “Item 4. Information on the Company,” “Item 6. Directors, Senior Management and
Employees,” and “Item 7.B. Related Party Transactions” of this Annual Report on 20-F.
10.D.
Exchange Controls.
Under current French foreign exchange control regulations there are no limitations on the amount of cash payments that we may remit to residents of
foreign countries. Laws and regulations concerning foreign exchange controls do, however, require that all payments or transfers of funds made by a
French resident to a non-resident such as dividend payments be handled by an accredited intermediary. All registered banks and substantially all credit
institutions in France are accredited intermediaries.
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10.E.
Taxation.
The following describes material U.S. federal income tax and French tax considerations relating to the acquisition, ownership and disposition of ADSs by a
U.S. holder (as defined below). This summary does not address all U.S. federal income tax and French tax matters that may be relevant to a particular U.S.
holder. This summary does not address tax considerations applicable to a holder of ADSs that may be subject to special tax rules including, without
limitation, the following:
•
•
•
•
•
•
•
•
•
•
•
•
banks, financial institutions or insurance companies;
brokers, dealers or traders in securities, currencies, commodities, or notional principal contracts;
tax-exempt entities or organizations, including an “individual retirement account” or “Roth IRA” as defined in Section 408 or 408A of the Code
(as defined below), respectively;
real estate investment trusts, regulated investment companies or grantor trusts;
persons that hold the ADSs as part of a “hedging,” “integrated,” “wash sale” or “conversion” transaction or as a position in a “straddle” for U.S.
federal income tax purposes;
S corporations;
certain former citizens or long-term residents of the United States;
persons that received ADSs as compensation for the performance of services;
persons acquiring ADSs in connection with a trade or business conducted outside of the United States, including a permanent establishment in
France;
persons subject to Section 451(b) of the Code;
holders that own directly, indirectly, or through attribution 10% or more of the voting power or value of our ADSs and shares or, in the case of the
discussion of French tax consequences, 5% or more of the voting stock or our share capital; and
holders that have a “functional currency” other than the U.S. dollar.
For the purposes of this description, a “U.S. holder” is a beneficial owner of ADSs that is (or is treated as), for U.S. federal income tax purposes:
•
•
•
•
an individual who is a citizen or resident of the United States;
a domestic corporation;
an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
a trust, if a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the
authority to control all of the substantial decisions of such trust, or if such trust has a valid election in effect under applicable U.S. Treasury
Regulations to be treated as a U.S. person.
If a partnership (or any other entity treated as a partnership for U.S. federal income tax purposes) holds ADSs, the U.S. federal income tax consequences
relating to an investment in the ADSs will depend in part upon the status of the partner and the activities of the partnership. Such a partner or partnership
should consult its tax advisor regarding the U.S. federal income tax considerations of acquiring, owning and disposing of the ADSs in its particular
circumstances.
The discussion in this section is based in part upon the representations of the depositary and the assumption that each obligation in the amended and
restated deposit agreement and any related agreement will be performed in accordance with its terms.
Persons considering an investment in the ADSs should consult their own tax advisors as to the particular tax consequences applicable to them
relating to the acquisition, ownership and disposition of the ADSs, including the applicability of U.S. federal, state and local tax laws, French tax
laws and other non-U.S. tax laws.
Material French Tax Considerations
The following describes the material French income tax consequences to U.S. holders of purchasing, owning and disposing of our ADSs and, unless
otherwise noted, this discussion is the opinion of Gide Loyrette Nouel A.A.R.P.I, our French tax counsel, insofar as it relates to matters of French tax law
and legal conclusions with respect to those matters.
This discussion does not purport to be a complete analysis or listing of all potential tax effects of the acquisition, ownership or disposition of our ADSs to
any particular investor, and does not discuss tax considerations that arise from rules of general application
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or that are generally assumed to be known by investors. All of the following is subject to change. Such changes could apply retroactively and could affect
the consequences described below.
The description of the French income tax and wealth tax consequences set forth below is based on the Convention Between the Government of the United
States of America and the Government of the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income and Capital of August 31, 1994, or the Treaty, which came into force on December 30, 1995 (as amended by any subsequent protocols,
including the protocol of January 13, 2009), and the tax guidelines issued by the French tax authorities in force as of the date of this Annual Report.
This discussion applies only to investors that are entitled to Treaty benefits under the “Limitation on Benefits” provision contained in the Treaty.
France has recently introduced a comprehensive set of new tax rules applicable to French assets that are held by or in foreign trusts. These rules provide
inter alia for the inclusion of trust assets in the settlor’s net assets for the purpose of applying the French real estate wealth tax, for the application of French
gift and death duties to French assets held in trust, for a specific tax on capital on the French assets of foreign trusts not already subject to the French real
estate wealth tax and for a number of French tax reporting and disclosure obligations. The following discussion does not address the French tax
consequences applicable to securities (including ADSs) held in trusts. If ADSs are held in trust, the grantor, trustee and beneficiary are urged to consult
their own tax advisor regarding the specific tax consequences of acquiring, owning and disposing of securities (including ADSs).
U.S. holders are urged to consult their own tax advisors regarding the tax consequences of the purchase, ownership and disposition of securities in light of
their particular circumstances, especially with regard to the “Limitations on Benefits” provision.
Estate and Gift Taxes and Transfer Taxes
In general, a transfer of securities by gift or by reason of death of a U.S. holder that would otherwise be subject to French gift or inheritance tax,
respectively, will not be subject to such French tax by reason of the Convention between the Government of the United States of America and the
Government of the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Estates,
Inheritances and Gifts, dated November 24, 1978 (as amended by the protocol of December 8, 2004), unless (i) the donor or the transferor is domiciled in
France at the time of making the gift or at the time of his or her death, or (ii) the securities were used in, or held for use in, the conduct of a business
through a permanent establishment or a fixed base in France.
Pursuant to Article 235 ter ZD of the Code général des impôts (French Tax Code, or FTC), purchases of shares or ADSs of a French company listed on a
regulated market of the European Union or on a foreign regulated market formally acknowledged by the French Financial Market Authority (AMF) are
subject to a 0.3% French tax on financial transactions provided that the issuer’s market capitalization exceeds 1 billion euros as of December 1 of the year
preceding the taxation year pursuant to Regulations BOI-ANNEX-000467-23/12/2020 issued on December 23, 2020. The Nasdaq Global Select Market is
not currently acknowledged by the French AMF but this may change in the future. A list of French relevant companies whose market capitalization exceeds
1 billion euros as of December 1 of the year preceding the taxation year is published annually and at least once a year, by the French State. As at
December 1, 2020, our market capitalization did not exceed 1 billion euros.
Following the global offering, purchases of our securities may be subject to such tax provided that its market capitalization exceeds 1 billion euros and that
the Nasdaq Global Select Market is acknowledged by the French AMF.
In the case where Article 235 ter ZD of the FTC is not applicable, transfers of shares issued by a French company, which is listed on a regulated or
organized market within the meaning of the French Financial and Monetary Code, are subject to uncapped registration duties at the rate of 0.1% if the
transfer is evidenced by a written statement (“acte”) executed either in France or outside France. Although there is no case law or official guidelines
published by the French tax authorities on this point, transfers of ADSs should remain outside of the scope of the aforementioned 0.1% registration duties.
Tax on Sale or Other Disposition
As a matter of principle, under French tax law, a U.S. holder should not be subject to any French tax on any capital gain from the sale, exchange,
repurchase or redemption by us of ordinary shares or ADSs, provided such U.S. holder is not a French tax resident for French tax purposes and has not held
more than 25% of our dividend rights, known as “droits aux benefices sociaux,” at any time during the preceding five years, either directly or indirectly,
and, as relates to individuals, alone or with relatives (as an exception, a U.S holder resident, established or incorporated in a non-cooperative State or
territory as defined in Article 238-0 A of the FTC should be subject to a 75% withholding tax in France on any such capital gain, regardless of the fraction
of the dividend rights it holds). The list of non-cooperative State or territories is published by decree and is in principal updated annually. This list was last
updated on
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January 6, 2020, and currently includes, in addition to Panama, which was already included in the former version of this list, American Samoa, Anguilla,
the Bahamas, the British Virgin Islands, Fiji, Guam, Oman, Samoa, Seychelles, Trinidad and Tobago, the United States Virgin Islands and Vanuatu. States
referred to in Article 238-0 A 2 bis 2° of the FTC, and thus outside of the scope of Article 125 A III of the FTC, are currently American Samoa, Fiji, Guam,
Oman, Samoa, Trinidad and Tobago and the United States Virgin Islands.
Under application of the Treaty, a U.S. holder who is a U.S. resident for purposes of the Treaty and entitled to Treaty benefit will not be subject to French
tax on any such capital gain unless the ordinary shares or the ADSs form part of the business property of a permanent establishment or fixed base that the
U.S. holder has in France. U.S. holders who own ordinary shares or ADSs through U.S. partnerships that are not resident for Treaty purposes are advised to
consult their own tax advisors regarding their French tax treatment and their eligibility for Treaty benefits in light of their own particular circumstances. A
U.S. holder that is not a U.S. resident for Treaty purposes or is not entitled to Treaty benefit (and in both cases is not resident, established or incorporated in
a non-cooperative State or territory as defined in Article 238-0 A of the FTC) and has held more than 25% of our dividend rights, known as “droits aux
benefices sociaux,” at any time during the preceding five years, either directly or indirectly, and, as relates to individuals, alone or with relatives will be
subject to a levy in France at the rate of 12.8% if such U.S. holder is an individual or 28% for corporate bodies or other legal entities (as from January 1,
2021, to be reduced to 25% as from 2022). Special rules apply to U.S. holders who are residents of more than one country.
Taxation of Dividends
Dividends paid by a French corporation to non-residents of France are generally subject to French withholding tax at a rate of 12.8% when the recipient is
an individual and 26,5% otherwise (the 26,5% rate for legal entities will be reduced to 25% as from 2022). Dividends paid by a French corporation in a
non-cooperative State or territory, as defined in Article 238-0 A of the FTC, will generally be subject to French withholding tax at a rate of 75%. However,
eligible U.S. holders, other than individuals subject to the French withholding tax at a rate of 12.8%, entitled to Treaty benefits under the ‘‘Limitation on
Benefits’’ provision contained in the Treaty who are U.S. residents, as defined pursuant to the provisions of the Treaty, will not be subject to this 26,5% or
75% withholding tax rate, but may be subject to the withholding tax at a reduced rate (as described below).
Under the Treaty, the rate of French withholding tax on dividends paid to an eligible U.S. holder who is a U.S. resident as defined pursuant to the
provisions of the Treaty and whose ownership of the ordinary shares or ADSs is not effectively connected with a permanent establishment or fixed base
that such U.S. holder has in France, may be reduced to 15%, or to 5% if such U.S. holder is a corporation and owns directly or indirectly at least 10% of the
share capital of the issuer; such U.S. holder may claim a refund from the French tax authorities of the amount withheld in excess of the Treaty rates of 15%
or 5%, if any.
For U.S. holders that are not individuals but are U.S. residents, as defined pursuant to the provisions of the Treaty, the requirements for eligibility for Treaty
benefits, including the reduced 5% or 15% withholding tax rates contained in the ‘‘Limitation on Benefits’’ provision of the Treaty, are complex, and
certain technical changes were made to these requirements by the protocol of January 13, 2009. U.S. holders are advised to consult their own tax advisors
regarding their eligibility for Treaty benefits in light of their own particular circumstances. Dividends paid to an eligible U.S. holder may immediately be
subject to the reduced rates of 5% or 15% provided that:
◦
◦
such holder establishes before the date of payment that it is a U.S. resident under the Treaty by completing and providing the depositary with a
treaty form (Form 5000) in accordance with the French guidelines (BOI-INT-DG-20-20-20-20-12/09/2012); or
the depositary or other financial institution managing the securities account in the U.S. of such holder provides the French paying agent with a
document listing certain information about the U.S. holder and its ordinary shares or ADSs and a certificate whereby the financial institution
managing the U.S. holder’s securities account in the United States takes full responsibility for the accuracy of the information provided in the
document.
Otherwise, dividends paid to a U.S. holder, other than individuals subject to the French withholding tax at a rate of 12.8%, will be subject to French
withholding tax at the rate of 26,5%, or 75% if paid in a non-cooperative State or territory (as defined in Article 238-0 A of the FTC), and then reduced at a
later date to 5% or 15%, provided that such holder duly completes and provides the French tax authorities with the treaty forms Form 5000 and Form 5001
before December 31 of the second calendar year following the year during which the dividend is paid.
Certain qualifying pension funds and certain other tax-exempt entities are subject to the same general filing requirements as other U.S. holders except that
they may have to supply additional documentation evidencing their entitlement to these benefits.
Form 5000 and Form 5001, together with instructions, will be provided by the depositary to all U.S. holders registered with the depositary. The depositary
will arrange for the filing with the French tax authorities of all such forms properly completed and executed
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by U.S. holders of ordinary shares or ADSs and returned to the depositary in sufficient time so that they may be filed with the French tax authorities before
the distribution in order to immediately obtain a reduced withholding tax rate. Otherwise, the depositary must withhold tax at the full rate of 26,5% or 75%
as applicable. In that case, the U.S. holders may claim a refund from the French tax authorities of the excess withholding tax.
Since the withholding tax rate applicable under French domestic law to U.S. holders who are individuals does not exceed the cap provided in the Treaty
(i.e. 15%), the 12.8% rate shall apply, without any reduction provided under the Treaty.
Besides, please note that pursuant to Article 235 quater of the FTC and under certain conditions (in particular reporting obligations), a corporate U.S.
Holder which is in a tax loss position for the fiscal year during which the dividend is received may be entitled to a deferral regime, and obtain a
withholding tax refund. The tax deferral ends in respect of the first financial year during which this U.S. Holder is in a profit making position, as well as in
the cases set out in Article 235 quater of the FTC.
Real Estate Wealth Tax
On January 1, 2018, the French wealth tax was replaced with a real estate wealth tax (impôt sur la fortune immobilière, or IFI). Individuals holding directly
or indirectly through one or more legal entities real estate assets or rights with a value exceeding €1,300,000 may fall within the scope of the IFI. A general
exclusion applies to real estate assets owned by companies carrying out a commercial or industrial activity when the taxpayer (together with the members
of his/her household) holds directly or indirectly less than 10% of the share capital or voting rights of the company. ADSs owned by a U.S. holder should
not fall within the scope of the IFI provided that such U.S. holder does not own (together with the members of his/her household) directly or indirectly a
shareholding exceeding 10% of the financial rights and voting rights of our share capital. U.S. holders holding directly or indirectly a shareholding
exceeding 10% of the financial rights and voting rights of our share capital should seek additional advice.
Material U.S. Federal Income Tax Considerations
This section discusses the material U.S. federal income tax considerations relating to the acquisition, ownership and disposition of ADSs by a U.S. holder
and holds the ADSs as a capital asset. This description does not address the U.S. federal estate, gift, or alternative minimum tax considerations, or any U.S.
state, local, or non-U.S. tax considerations of the acquisition, ownership and disposition of the ADSs.
This description is based on the U.S. Internal Revenue Code of 1986, as amended, or the Code, existing, proposed and temporary U.S. Treasury
Regulations promulgated thereunder and administrative and judicial interpretations thereof, in each case as in effect and available on the date hereof. All
the foregoing is subject to change, which change could apply retroactively, and to differing interpretations, all of which could affect the tax considerations
described below. There can be no assurances that the U.S. Internal Revenue Service, or the IRS, will not take a position different from what is described
below concerning the tax consequences of the acquisition, ownership and disposition of the ADSs or that such a position would not be sustained by a court.
Holders should consult their own tax advisers concerning the U.S. federal, state, local and non-U.S. tax consequences of acquiring, owning and disposing
of the ADSs in their particular circumstances.
In general, and taking into account the earlier assumptions, for U.S. federal income and French tax purposes, a U.S. holder holding ADRs evidencing ADSs
will be treated as the owner of the shares presented by the ADRs. Exchanges of shares for ADRs, and ADRs for shares, generally will not be subject to
U.S. federal income or to French tax.
Passive Foreign Investment Company Considerations. Based on the composition of our gross income, assets, activities and market capitalization in 2020,
the nature of our business and due to fluctuations in our stock price, we believe that we may have been characterized as a PFIC for our taxable year ended
December 31, 2020. However, because our PFIC status is subject to a number of uncertainties and it is very early in the year, neither we nor our tax
advisors can provide any assurances with respect to our PFIC status for the prior, current, or any future taxable year. Moreover, because the calculation of
the value of our assets may be based in part on the value of our ADSs, the value of which may fluctuate considerably, our PFIC status may change from
year to year and is difficult to predict. A separate determination must be made after the close of each taxable year as to whether we are a PFIC for that year.
As a result, our PFIC status may change from year to year and we have not yet made any determination as to our expected PFIC status for the current year.
Our status as a PFIC will depend on the composition of our income (including whether we receive certain non-refundable grants or subsidies and whether
such amounts and reimbursements of certain refundable research tax credits will constitute gross income for purposes of the PFIC income test) and the
composition and value of our assets, which may be determined in large part by reference to the market value of the ADSs and our ordinary shares, which
may be volatile, from time to time. Our status may also depend, in part, on how quickly we utilize the cash proceeds from our global offerings in our
business. Our U.S. counsel expresses no opinion regarding our conclusions or our expectations regarding our PFIC status.
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If we are classified as a PFIC, a U.S. holder will be subject to special rules discussed below. If we are classified as a PFIC in any year with respect to which
a U.S. holder owns the ADSs, we will continue to be treated as a PFIC with respect to the ADSs and such U.S. holder in all succeeding years during which
the U.S. holder owns the ADSs, regardless of whether we continue to meet the PFIC tests described below.
We will be classified as a PFIC for U.S. federal income tax purposes in any taxable year in which, after applying certain look-through rules with respect to
the income and assets of our subsidiaries, either: (i) at least 75% of the gross income is “passive income” or (ii) at least 50% of the average quarterly value
of our total gross assets (which would generally be measured by fair market value of our assets, and for which purpose the total value of our assets may be
determined in part by the market value of the ADSs and our ordinary shares, which are subject to change) is attributable to assets that produce “passive
income” or are held for the production of “passive income.”
Passive income for this purpose generally includes dividends, allocations of income with respect to any partnership interest, interest, royalties, rents, gains
from commodities and securities transactions, the excess of gains over losses from the disposition of assets which produce passive income, and includes
amounts derived by reason of the temporary investment of funds raised in offerings of the ADSs. If a non-U.S. corporation owns directly or indirectly at
least 25% by value of the stock of another corporation or the partnership interests in a partnership, the non-U.S. corporation is treated for purposes of the
PFIC tests as owning its proportionate share of the assets of the other corporation or partnership and as receiving directly its proportionate share of the
other corporation’s or partnership’s income.
The market value of our assets may be determined in large part by reference to the market price of the ADSs and our ordinary shares, which is likely to
fluctuate. In addition, the composition of our income and assets will be affected by how, and how quickly, we use the cash proceeds from our global
offerings in our business. Whether we are a PFIC for any taxable year will depend on our assets and income (including whether we receive certain non-
refundable grants or subsidies and whether such amounts and reimbursements of certain refundable research tax credits will constitute gross income for
purposes of the PFIC income test) in each year, and because this is a factual determination made annually after the end of each taxable year, there can be no
assurance that we will not be considered a PFIC in any taxable year.
If we are a PFIC, and you are a U.S. holder that does not make one of the elections described below, a special tax regime will apply to both (a) any “excess
distribution” by us to you (generally, your ratable portion of distributions in any year which are greater than 125% of the average annual distribution
received by you in the shorter of the three preceding years or your holding period for the ADSs) and (b) any gain realized on the sale or other disposition of
the ADSs. Under this regime, any excess distribution and realized gain will be treated as ordinary income and will be subject to tax as if (i) the excess
distribution or gain had been realized ratably over your holding period, (ii) the amount deemed realized in each year had been subject to tax in each year of
that holding period at the highest marginal rate for such year (other than income allocated to the current period or any taxable period before we became a
PFIC, which would be subject to tax at the U.S. holder’s regular ordinary income rate for the current year and would not be subject to the interest charge
discussed below), and (iii) the interest charge generally applicable to underpayments of tax had been imposed on the taxes deemed to have been payable in
those years. In addition, dividend distributions made to you will not qualify for the lower rates of taxation applicable to qualified dividends discussed above
under “Distributions.”
Certain elections may alleviate some of the adverse consequences of PFIC status and would result in an alternative treatment of the ADSs. If a U.S. holder
makes a mark-to-market election, the U.S. holder generally will recognize as ordinary income any excess of the fair market value of the ADSs at the end of
each taxable year over their adjusted tax basis, and will recognize an ordinary loss in respect of any excess of the adjusted tax basis of the ADSs over their
fair market value at the end of the taxable year (but only to the extent of the net amount of income previously included as a result of the mark-to-market
election). If a U.S. holder makes the election, the U.S. holder’s tax basis in the ADSs will be adjusted to reflect these income or loss amounts. Any gain
recognized on the sale or other disposition of ADSs in a year when we are a PFIC will be treated as ordinary income and any loss will be treated as an
ordinary loss (but only to the extent of the net amount of income previously included as a result of the mark-to-market election). The mark-to-market
election is available only if we are a PFIC and the ADSs are “regularly traded” on a “qualified exchange.” The ADSs will be treated as “regularly traded”
in any calendar year in which more than a de minimis quantity of the ADSs are traded on a qualified exchange on at least 15 days during each calendar
quarter (subject to the rule that trades that have as one of their principal purposes the meeting of the trading requirement as disregarded). The Nasdaq
Global Select Market is a qualified exchange for this purpose and, consequently, if the ADSs are regularly traded, the mark-to-market election will be
available to a U.S. holder.
If we are a PFIC, we expect to provide investors, upon request, a “PFIC Annual Information Statement” with the information required to allow investors to
make a “qualified electing fund election” or “QEF Election” for United States federal income tax purposes. U.S. holders should consult their tax advisors to
determine whether any of these elections would be available and if so, what the consequences of the alternative treatments would be in their particular
circumstances.
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If a U.S. holder makes a QEF Election with respect to a PFIC, in lieu of the tax consequences described below, the U.S. holder will be subject to current
taxation on its pro rata share of the PFIC’s ordinary earnings and net capital gain for each taxable year that the entity is classified as a PFIC. If a U.S. holder
makes a QEF Election with respect to us, any distributions paid by us out of our earnings and profits that were previously included in the U.S. holder’s
income under the QEF Election will not be taxable to the holder. A U.S. holder will increase its tax basis in its ADSs by an amount equal to any income
included under the QEF Election and will decrease its tax basis by any amount distributed on the ADSs that is not included in the holder’s income. In
addition, a U.S. holder will recognize capital gain or loss on the disposition of ADSs in an amount equal to the difference between the amount realized and
the holder’s adjusted tax basis in the ADSs. U.S. holders should note that if they make QEF Elections with respect to us and lower-tier PFICs, they may be
required to pay U.S. federal income tax with respect to their ADSs for any taxable year significantly in excess of any cash distributions (which are expected
to be zero) received on the ADSs for such taxable year. U.S. holders should consult their tax advisors regarding making QEF Elections in their particular
circumstances. If a U.S. holder does not make and maintain a QEF election for the U.S. holder’s entire holding period for our ADSs by making the election
for the first year in which the U.S. holder owns our ADSs pursuant to this offering, the U.S. holder will be subject to the adverse PFIC rules discussed
above unless the U.S. holder can properly make a “purging election” with respect to our ADSs in connection with the U.S. Shareholder’s QEF Election. A
purging election may require the U.S. holder to recognize taxable gain on the U.S. holder’s ADSs. No purging election is necessary for a U.S. holder that
timely makes a QEF election for the first year in which the U.S. holder acquired our ADSs.
If we are determined to be a PFIC, the general tax treatment for U.S. holders described in this section will apply to indirect distributions and gains deemed
to be realized by U.S. Holders in respect of any of our subsidiaries that also may be determined to be PFICs.
If a U.S. holder owns ADSs during any taxable year in which we are a PFIC, the U.S. holder generally will be required to file an IRS Form 8621
(Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund) with respect to the company, generally with
the U.S. holder’s federal income tax return for that year. If our company is a PFIC for a given taxable year, then you should consult your tax advisor
concerning your annual filing requirements.
The U.S. federal income tax rules relating to PFICs are complex. Prospective U.S. investors are urged to consult their own tax advisers with
respect to the acquisition, ownership and disposition of the ADSs, the consequences to them of an investment in a PFIC, any elections available
with respect to the ADSs and the IRS information reporting obligations with respect to the acquisition, ownership and disposition of the ADSs.
U.S. Federal Income Tax Consequences If We Are Not a PFIC. The description of the U.S. federal income tax consequences of the receipt of
distributions and the sale or other taxable exchange of our ADSs, described in the following two sections “—Distributions” and “—Sale, Exchange or
Other Taxable Disposition of the ADSs,” apply only if we are not a PFIC in the relevant year and our stock is not subject to the rules described above under
“—Passive Foreign Investment Company Considerations” because we were a PFIC with respect to a U.S. holder and its ADSs in a prior year.
Distributions. We do not expect to make any distribution in respect of our ADSs. If we are not treated as a PFIC under the rules described above under “—
Passive Foreign Investment Company Considerations” and made any distribution in respect of our ADSs, the gross amount of the distribution (including
any amounts of foreign tax withheld in respect of such distribution) actually or constructively received by a U.S. holder with respect to ADSs will be
taxable to the U.S. holder as a dividend to the extent of the U.S. holder’s pro rata share of our current or accumulated earnings and profits as determined
under U.S. federal income tax principles. Distributions in excess of earnings and profits will be non-taxable to the U.S. holder to the extent of, and will be
applied against and reduce, the U.S. holder’s adjusted tax basis in the ADSs. Distributions in excess of earnings and profits and such adjusted tax basis will
generally be taxable to the U.S. holder as either long-term or short-term capital gain depending upon whether the U.S. holder's holding period exceeds one
year as of the time such distribution is received. However, since we do not calculate our earnings and profits under U.S. federal income tax principles, it is
expected that any distribution will be reported as a dividend, even if that distribution would otherwise be treated as a non-taxable return of capital or as
capital gain under the rules described above. Non-corporate U.S. holders may qualify for the preferential rates of taxation with respect to dividends on
ADSs applicable to long-term capital gains (i.e., gains from the sale of capital assets held for more than one year) applicable to qualified dividend income
(as discussed below) if we are a “qualified foreign corporation” and certain other requirements (discussed below) are met. A non-U.S. corporation (other
than a corporation that is classified as a PFIC for the taxable year in which the dividend is paid or the preceding taxable year) generally will be considered
to be a qualified foreign corporation (a) if it is eligible for the benefits of a comprehensive tax treaty with the United States which the Secretary of Treasury
of the United States determines is satisfactory for purposes of this provision and which includes an exchange of information provision, or (b) with respect
to any dividend it pays on ADSs which are readily tradable on an established securities market in the United States. Our ADSs are currently listed on the
Nasdaq Global Select Market, which is an established securities market in the United States, and we expect the ADSs to be readily tradable on the Nasdaq
Global Select Market. However, there can be no assurance that the ADSs will be considered readily tradable on an established securities market in the
United States in later years. The Company, which is incorporated under the laws of France, believes that it qualifies as a resident of France for purposes of,
and is eligible for the benefits of, the Convention between the Government of the
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that
United States of America and the Government of the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with
Respect to Taxes on Income and Capital, signed on August 31, 1994, as amended and currently in force, or the U.S.-France Tax Treaty, although there can
be no assurance in this regard. Further, the IRS has determined that the U.S.-France Tax Treaty is satisfactory for purposes of the qualified dividend rules
and
the discussion under “—Passive Foreign Investment
Company Considerations,” above, such dividends will generally be “qualified dividend income” in the hands of individual U.S. holders, provided that a
holding period requirement (more than 60 days of ownership, without protection from the risk of loss, during the 121-day period beginning 60 days before
the ex-dividend date) and certain other requirements are met. The dividends will not be eligible for the dividends-received deduction generally allowed to
corporate U.S. holders.
includes an exchange-of-information program. Therefore, subject
to
it
A U.S. holder generally may claim the amount of any French withholding tax as either a deduction from gross income or a credit against its U.S. federal
income tax liability, subject to generally applicable limitations. Generally, the credit is determined separately for different categories of income and cannot
exceed the proportionate share of a U.S. holder’s U.S. federal income tax liability that such U.S. holder’s taxable income from foreign sources bears to such
U.S. holder’s worldwide taxable income. For foreign tax credit limitation purposes, dividend distributions with respect to our ADSs generally will be
treated as passive category income from foreign sources. The amount of a distribution with respect to the ADSs that is treated as a “dividend” may be lower
for U.S. federal income tax purposes than it is for French income tax purposes, potentially resulting in a reduced foreign tax credit for the U.S. holder. Each
U.S. holder should consult its own tax advisors regarding the foreign tax credit rules.
In general, the amount of a distribution paid to a U.S. holder in a foreign currency will be the dollar value of the foreign currency calculated by reference to
the spot exchange rate on the day the Depositary receives the distribution, regardless of whether the foreign currency is converted into U.S. dollars at that
time. Any foreign currency gain or loss a U.S. holder realizes on a subsequent conversion of foreign currency into U.S. dollars will be U.S. source ordinary
income or loss. If dividends received in a foreign currency are converted into U.S. dollars on the day they are received, a U.S. holder should not be required
to recognize foreign currency gain or loss in respect of the dividend.
Sale, Exchange or Other Taxable Disposition of the ADSs. A U.S. holder will generally recognize gain or loss for U.S. federal income tax purposes upon
the sale, exchange or other taxable disposition of ADSs in an amount equal to the difference between the U.S. dollar value of the amount realized from
such sale or exchange and the U.S. holder’s tax basis in those ADSs, determined in U.S. dollars. Subject to the discussion under “—Passive Foreign
Investment Company Considerations” above, this gain or loss will generally be a capital gain or loss. The adjusted tax basis in the ADSs generally will be
equal to the cost of such ADSs. Capital gain from the sale, exchange or other taxable disposition of ADSs of a non-corporate U.S. holder is generally
eligible for a preferential rate of taxation applicable to capital gains, if the non-corporate U.S. holder’s holding period determined at the time of such sale,
exchange or other taxable disposition for such ADSs exceeds one year (i.e., such gain is long-term taxable gain). The deductibility of capital losses for U.S.
federal income tax purposes is subject to limitations. Any such gain or loss that a U.S. holder recognizes generally will be treated as U.S. source gain or
loss for foreign tax credit limitation purposes.
For a cash basis taxpayer, units of foreign currency paid or received are translated into U.S. dollars at the spot rate on the settlement date of the purchase or
sale. In that case, no foreign currency exchange gain or loss will result from currency fluctuations between the trade date and the settlement date of such a
purchase or sale. An accrual basis taxpayer, however, may elect the same treatment required of cash basis taxpayers with respect to purchases and sales of
the ADSs that are traded on an established securities market, provided the election is applied consistently from year to year. Such election may not be
changed without the consent of the IRS. For an accrual basis taxpayer who does not make such election, units of foreign currency paid or received are
translated into U.S. dollars at the spot rate on the trade date of the purchase or sale. Such an accrual basis taxpayer may recognize exchange gain or loss
based on currency fluctuations between the trade date and the settlement date. Any foreign currency gain or loss a U.S. Holder realizes will be U.S. source
ordinary income or loss.
Medicare Tax. Certain U.S. holders that are individuals, estates or trusts are subject to a 3.8% tax on all or a portion of their “net investment income,”
which may include all or a portion of their dividend income and net gains from the disposition of ADSs. Each U.S. holder that is an individual, estate or
trust is urged to consult its tax advisors regarding the applicability of the Medicare tax to its income and gains in respect of its investment in the ADSs.
Backup Withholding and Information Reporting. U.S. holders generally will be subject to information reporting requirements with respect to dividends
on ADSs and on the proceeds from the sale, exchange or disposition of ADSs that are paid within the United States or through U.S.-related financial
intermediaries, unless the U.S. holder is an “exempt recipient.” In addition, U.S. holders may be subject to backup withholding on such payments, unless
the U.S. holder provides a taxpayer identification number and a duly executed IRS Form W-9 or otherwise establishes an exemption. Backup withholding
is not an additional tax, and the amount of any backup withholding will be allowed as a credit against a U.S. holder’s U.S. federal income tax liability and
may entitle such holder to a refund, provided that the required information is timely furnished to the IRS.
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Foreign Asset Reporting. Certain individual U.S. holders are required to report information relating to an interest in the ADSs, subject to certain
exceptions (including an exception for shares held in accounts maintained by U.S. financial institutions) by filing IRS Form 8938 (Statement of Specified
Foreign Financial Assets) with their federal income tax return. U.S. holders are urged to consult their tax advisors regarding their information reporting
obligations, if any, with respect to their ownership and disposition of the ADSs.
THE DISCUSSION ABOVE IS A SUMMARY OF THE MATERIAL FRENCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES OF AN
INVESTMENT IN OUR ADSs OR ORDINARY SHARES AND IS BASED UPON LAWS AND RELEVANT INTERPRETATIONS THEREOF
IN EFFECT AS OF THE DATE OF THIS ANNUAL REPORT ON FORM 20-F, ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY
WITH RETROACTIVE EFFECT. EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT ITS OWN TAX ADVISOR ABOUT THE
TAX CONSEQUENCES TO IT OF AN INVESTMENT IN ADSs OR ORDINARY SHARES IN LIGHT OF THE INVESTOR’S OWN
CIRCUMSTANCES.
10.F. Dividends and Paying Agents.
Not applicable.
10.G.
Statement by Experts.
Not applicable.
10.H. Documents on Display.
We are subject to the information reporting requirements of the Exchange Act applicable to foreign private issuers and under those requirements will file
reports with the SEC. Those reports may be inspected without charge at the locations described below. As a foreign private issuer, we are exempt from the
rules under the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt
from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the
Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as United States companies whose securities are
registered under the Exchange Act. Nevertheless, we will file with the SEC an Annual Report on Form 20-F containing financial statements that have been
examined and reported on, with and opinion expressed by an independent registered public accounting firm.
We maintain a corporate website at www.erytech.com. We intend to post our Annual Reports on Form 20-F on our website promptly following it being filed
with the SEC. Information contained on, or that can be accessed through, our website does not constitute a part of this Annual Report. We have included
our website address in this Annual Report solely as an inactive textual reference.
The Securities and Exchange Commission maintains a website (www.sec.gov) that contains reports, proxy and information statements and other
information regarding registrants, such as us, that file electronically with the SEC.
With respect to references made in this Annual Report to any contract or other document of our company, such references are not necessarily complete and
you should refer to the exhibits attached or incorporated by reference to this Annual Report for copies of the actual contract or document.
10.I.
Subsidiary Information.
Not required.
133
Item 11.Quantitative and Qualitative Disclosures About Market Risk.
Liquidity Risk
As of December 31, 2020, our cash and cash equivalents were €44.4 million ($54.4 million) and were primarily cash and term deposits that are convertible
into cash in approximately 30 days notice without penalty. We believe that our cash and cash equivalents as of December 31, 2020 with (i) the sale of
shares under the ATM program in February 2021 for a gross amount of €6.6 million, (ii) the tranche of convertible notes issued in March 2021 for a gross
amount of €3.0 million and (iii) the possibility of further use of the OCABSA agreement enable to cover our cash requirements until the first quarter 2022.
We may need to seek additional funds sooner than planned, through public or private equity or debt financings, government or other third-party funding,
marketing and distribution arrangements and other collaborations, strategic alliances and licensing arrangements or a combination of these approaches.
However, no assurance can be given at this time as to whether we will be able to achieve these financing objectives.
Foreign Currency Exchange Risk
We use the euro as our functional currency for our financial communications. However, a significant portion of our expenses, financial assets and liabilities
are denominated in U.S dollars and are exposed to changes in foreign currency exchange rates. We also entered into a license agreement with SQZ
Biotechnologies in 2019 and any potential revenues pursuant to this agreement will be made in U.S. dollars.
We do not currently engage in hedging transactions or the use of forward contracts but may in the future in order to minimize the impact of uncertainty in
future exchange rates on cash flows. A deterioration of the U.S dollar of the Euro could impact our financial statements as follows:
(in thousands)
Financial assets
of which cash and cash equivalents
Financial liabilities
As of December 31, 2020
EUR
USD
+ 1 %
Sensitivity
+ 5 %
17,630
17,285
10,152
14,368
14,086
8,273
(142)
(139)
(82)
(684)
(671)
(394)
+ 10 %
(1,306)
(1,281)
(752)
As we advance our clinical development in the United States and potentially commercialize our product candidates in that market, we expect to face greater
exposure to exchange rate risk and would then consider using exchange rate derivative or hedging techniques at that time. We expect to continue to enter
into transactions based in foreign currencies that could be impacted by changes in exchange rates.
Equity risk
The Company's exposure to equity risk is limited to its own shares and linked to the OCABSA agreement. The total amount that could be issued under this
agreement is subject to the regulatory limit of 20% dilution. As the share price of the Company has an impact on the number of shares issued upon the
conversion of the convertible notes, the possibility to raise up to €42.0 million will depend on the share price of the company. Based on the closing market
price the day before the approval date of the Consolidated Financial Statements (€7.10), the Company could raise approximately €33.0 million. A change
in the the share price used could change the amount that could be raised as follows:
(in millions of euros)
Amount that could be raised
Interest Rate Risk
- 20%
Sensitivity
€7.10
+20%
24.0
33.0
33.0
We believe we have very low exposure to interest rate risk. Such exposure primarily involves our money market funds and time deposit accounts. Changes
in interest rates have a direct impact on the rate of return on these investments and the cash flows generated.
The outstanding bank loans bear interest at a fixed rate, and therefore we are not subject to interest rate risk with respect to this loan.
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Credit Risk
We believe that the credit risk related to our cash and cash equivalents is not significant in light of the quality of the financial institutions at which such
funds are held.
Item 12.Description of Securities Other than Equity Securities.
12.A. Debt Securities.
Not applicable.
12.B. Warrants and Rights.
Not applicable.
12.C. Other Securities.
Not applicable.
12.D. American Depositary Shares.
The Bank of New York Mellon acts as the depositary for the American Depositary Shares. The Bank of New York Mellon’s depositary offices are located
at 240 Greenwich Street, New York, New York 10286. American Depositary Shares are frequently referred to as ADSs and represent ownership interests in
securities that are on deposit with the depositary. ADSs may be evidenced by certificates that are commonly known as American Depositary Receipts, or
ADRs. The depositary typically appoints a custodian to safekeep the securities on deposit. In this case, the custodian is Société Générale.
An owner of ADSs may hold its ADSs either (1) directly (a) by having an ADR, which is a certificate evidencing a specific number of ADSs, registered in
such owner’s name, or (b) by having uncertificated ADSs registered in the owner’s name in the Direct Registration System, or DRS, or (2) indirectly by
holding a security entitlement in ADSs through the owner’s broker or other financial institution that is a direct or indirect participant in the Depository
Trust Company, or DTC. If an owner of ADSs decides to hold its ADSs directly, such owner is a registered ADS holder, also referred to as an ADS holder.
This description assumes all owners are an ADS holder. If an owner of ADSs decides to hold the ADSs indirectly, such owner must rely on the procedures
of its broker or other financial institution to assert the rights of ADS holders described in this section. Such indirect holder should consult with its broker or
financial institution to find out what those procedures are.
DRS is a system administered by DTC pursuant to which the depositary may register the ownership of uncertificated ADSs, which ownership is confirmed
by periodic statements sent by the depositary to the registered holders of uncertificated ADSs.
An ADS holder will not be treated as one of the Company’s shareholders and such ADS holder will not have shareholder rights. French law governs
shareholder rights. The depositary will be the holder of the ordinary shares underlying each owner’s ADSs. A holder of ADSs will have ADS holder rights.
An amended and restated deposit agreement among the Company, the depositary and all persons directly and indirectly holding ADSs sets out ADS holder
rights as well as the rights and obligations of the depositary. New York law governs the amended and restated deposit agreement and the ADRs. In the
event of any discrepancy between the ADRs and the amended and restated deposit agreement, the amended and restated deposit agreement governs. The
following is a summary of the material provisions of the amended and restated deposit agreement. More complete information is contained in the amended
and restated deposit agreement and the form of ADR. Members of the public may obtain copies of those documents from the SEC’s website at
www.sec.gov. A copy of the amended and restated deposit agreement is also filed as an exhibit to the Company’s Annual Report on Form 20-F to which
this description is also an exhibit.
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Fees and Expenses
Pursuant to the terms of the amended and restated deposit agreement, the holders of our ADSs will be required to pay the following fees
Persons depositing or withdrawing ordinary shares or ADSs
must pay:
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
Issue of ADSs, including issues resulting from a distribution of ordinary
For:
•
shares or rights
Cancellation of ADSs for the purpose of withdrawal, including if the
•
amended and restated deposit agreement terminates
$0.05 (or less) per ADS
•
Any cash distribution to an ADS holder
A fee equivalent to the fee that would be payable if securities distributed to
an ADS holder had been ordinary shares and the shares had been deposited
for issue of ADSs
Distribution of securities distributed to holders of deposited securities
•
which are distributed by the depositary to an ADS holder
$0.05 (or less) per ADS per calendar year
•
Depositary services
Registration or transfer fees
Expenses of the depositary
Transfer and registration of ordinary shares on the Company’s
•
share register to or from the name of the depositary or its agent when an
ADS holder deposits or withdraws shares
Cable (including SWIFT) and facsimile transmissions as expressly
•
provided in the amended and restated deposit agreement
•
Converting foreign currency to U.S. dollars
Taxes and other governmental charges the depositary or the custodian have
to pay on any ADS or share underlying an ADS, for example, share transfer
taxes, stamp duty or withholding taxes
•
As necessary
Any charges payable by the depositary, custodian or their agents in
connection with the servicing of deposited securities
•
As necessary
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing ordinary shares or surrendering ADSs for the purpose
of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the
amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by
deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The
depositary may collect any of its fees by deduction from any cash distribution payable to ADS holders that are obligated to pay those fees. The depositary
may generally refuse to provide for-fee services until its fees for those services are paid.
From time to time, the depositary may make payments to the Company to reimburse or share revenue from the fees collected from ADS holders, or waive
fees and expenses for services provided, generally relating to costs and expenses arising out of establishment and maintenance of the ADS program. In
performing its duties under the amended and restated deposit agreement, the depositary may use brokers, dealers, foreign currency or other service
providers that are affiliates of the depositary and that may earn or share fees, spreads or commissions.
The depositary may convert foreign currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent,
advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own
account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the
amended and restated deposit agreement and the rate that the depositary or its affiliate receives when buying or selling foreign currency for its own
account. The depositary makes no representation that the exchange rate used or obtained in any currency conversion under the amended and restated
deposit agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the
most favorable to
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holders of ADSs, subject to the depositary’s obligations under the amended and restated deposit agreement. The methodology used to determine exchange
rates used in currency conversions is available upon request.
Payment of Taxes
ADS holders will be responsible for any taxes or other governmental charges payable on their ADSs or on the deposited securities represented by any of
such holder’s ADSs. The depositary may refuse to register any transfer of a holder’s ADSs or allow them to withdraw the deposited securities represented
by such holder’s ADSs until such taxes or other charges are paid. It may apply payments owed to ADS holders or sell deposited securities represented by
such holder’s ADSs to pay any taxes owed and such holder will remain liable for any deficiency. If the depositary sells deposited securities, it will, if
appropriate, reduce the number of ADSs registered in the ADS holder’s name to reflect the sale and pay to such holder any net proceeds, or send such
holder any property, remaining after it has paid the taxes. An ADS holder’s obligation to pay taxes and indemnify the Company and the depository against
any tax claims will survive the transfer or surrender of such holder’s ADSs, the withdrawal of the deposited ordinary shares as well as the termination of
the amended and restated deposit agreement.
PART II.
Item 13. Defaults, Dividend Arrearages and Delinquencies.
Not applicable.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds.
Not applicable.
Item 15.Controls and Procedures.
Disclosure Controls and Procedures
Our management, with the participation of our chief executive officer (principal executive officer) and our chief financial officer and chief operating officer
(principal financial officer), has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13(a) - 15(e) and
15(d) - 15(e) under the Securities Exchange Act of 1934, as amended), as of December 31, 2020. Based on such evaluation, our principal executive officer
and principal financial officer have concluded that our disclosure controls and procedures were not effective at the reasonable assurance level as of
December 31, 2020 as a result of the material weaknesses described below. We are undertaking the remedial steps to address the material weaknesses in our
disclosure controls and procedures as set forth below under “Management’s Plan for Remediation of Current Material Weaknesses.”
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-
15(f) under the Exchange Act) and for the assessment of the effectiveness of our internal control over financial reporting. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or
procedures may deteriorate.
Under the supervision and with the participation of our chief executive officer (principal executive officer) and chief financial officer and chief operating
officer (principal financial officer), management conducted an assessment of our internal control over financial reporting based upon the framework in
Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). A material
weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a
material misstatement of our financial statements will not be prevented or detected on a timely basis.
In connection with the preparation of our financial results for the year ended December 31, 2018, our management concluded that, as of December 31,
2018, our internal control over financial reporting was not effective as a result of two material weaknesses in our internal control over financial reporting
related to: (i) the monitoring of research and development projects, as controls designed to track actual costs incurred against invoices received were not
operating at a sufficient level of precision due to insufficient personnel with an appropriate level of knowledge and training in internal control over complex
processes; and (ii) the lack of sufficiently developed and documented internal controls for our U.S. subsidiary. We believe that the two material weaknesses
concerning (i) the
137
monitoring of research and development projects and (ii) the lack of sufficiently developed and documented internal controls for our U.S. subsidiary were
not fully remediated as of December 31, 2020.
In connection with our assessment as of December 31, 2020, our management concluded that the following two material weaknesses have not been
remediated as of December 31, 2020.
Monitoring of Research and Development Projects.
As of December 31, 2018, we identified a material weakness related to the monitoring of research and development projects, as controls designed to track
actual costs incurred compared to invoices received were not operating at a sufficient level of precision due to insufficient personnel with an appropriate
level of knowledge and training in internal control over complex processes.
To remediate this material weakness, we took number of actions to improve internal control over financial reporting related to our U.S subsidiary during
years ended December 31, 2019 and December 31, 2020, including the following:
• We hired a vendor coordinator to reinforce the team dedicated to the monitoring of research and development projects for which process level
controls have not been considered as effective in 2019 ; and
• We strengthened the controls over our research and development financial information to detect and correct errors in 2019 and some of which
were still in the process of being implemented in 2020.
We believe the remediation plan described above improved the reliability of financial information related to research and development as the precision of
controls relating to the tracking of actual costs compared to invoiced amounts was improved.
Nevertheless, our management identified that the finalization of the implementation and the rolling out of the controls over our research and development
financial information to detect and correct errors was necessary to fully remediate this material weakness.
Internal Control of U.S. Subsidiary.
As of December 31, 2018, we identified a material weakness related to the lack of sufficiently developed and documented internal controls for our U.S.
subsidiary, ERYTECH Pharma Inc.
To remediate this material weakness, we took number of actions to improve internal control over financial reporting related to our U.S subsidiary during
years ended December 31, 2019 and December 31, 2020, including the following:
•
•
analyzing the existing segregation of duties environment implemented in our U.S. subsidiary, identifying potential organizational conflicts due to
the size of the team and when possible define mitigating controls;
on-going design and implementation of effective controls over certain information technology (“IT”) systems relevant to the preparation of the
consolidated financial statements, with a specific focus on users’ access controls.
However, we failed to fully remediate this material weakness since we have not yet designed, implemented and maintained effective controls over certain
information technology systems supporting our U.S operations that are relevant to the preparation of the consolidated financial statements. Specifically, we
did not restrict user and privileged access to certain financial applications, data and programs to the appropriate personnel.
As a result of the two material weaknesses described above, management concluded our internal control over financial reporting was not effective as of
December 31, 2020 at the reasonable assurance level.
Management’s Plan for Remediation of Current Material Weaknesses
With the oversight of senior management and our audit committee, we continue to evaluate our internal control over financial reporting and are taking
several remediation actions to address the two material weaknesses that were not remediated as of December 31, 2020:
Monitoring of Research and Development Projects
Going forward, we plan to finalize of the implementation and the rolling out of the controls over our research and development financial information to
detect and correct errors.
Lack of Effective Control Over IT System Supporting Financial U.S Activities
138
Going forward, we plan to:
•
•
reinforce of our U.S. finance team by the recruitment of a new staff accountant to ensure a proper segregation of duties at an operational level
keep implementing effective controls over certain information technology (“IT”) systems relevant to the preparation of the consolidated financial
statements.
Notwithstanding the material weaknesses, our management has concluded that the financial statements included elsewhere in this Annual Report present
fairly, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with IFRS.
Our independent registered public accounting firm has not assessed the effectiveness of our internal control over financial reporting, which may increase
the risk that weaknesses or deficiencies in our internal control over financial reporting go undetected.
Attestation Report of the Registered Public Accounting Firm
This Annual Report does not include an attestation report of our registered public accounting firm due to a transition period established by rules of the
Securities and Exchange Commission for emerging growth companies.
Changes in Internal Control over Financial Reporting
Other than the remediation activities described above, there were no changes in our internal control over financial reporting during the year ended
December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 16. Reserved.
Not applicable.
Item 16A.
Audit Committees Financial Expert.
Our board of directors has determined that Ms. Windels is an audit committee financial expert as defined by SEC rules and regulations and each of the
members of our board of directors has the requisite financial sophistication under the applicable rules and regulations of the Nasdaq Stock Market.
Ms. Windels is independent as such term is defined in Rule 10A-3 under the Exchange Act and under the listing standards of the Nasdaq Stock Market.
Item 16B.
Code of Business Conduct and Ethics.
We have adopted a Code of Business Conduct and Ethics, or the Code of Ethics, that is applicable to all of our employees, executive officers and directors.
A copy of the Code of Ethics is available on our website at www.erytech.com. The audit committee of our board of directors is responsible for overseeing
the Code of Ethics and must approve any waivers of the Code of Ethics for employees, executive officers and directors. We expect that any amendments to
the Code of Ethics, or any waivers of its requirements, will be disclosed on our website.
139
Item 16C.
Principal Accountant Fees and Services.
KPMG S.A., or KPMG, has served as our independent registered public accounting firm for the years ended December 31, 2019 and 2020. Our accountants
billed the following fees to us for professional services in each of those fiscal years, all of which were approved by our audit committee:
(in thousands of €)
Audit Fees
Audit-Related Fees
All Other Fees
Total
Year Ended December 31,
2019
2020
322
74
—
396
363
165
—
528
“Audit Fees” are the aggregate fees billed for the audit of our annual financial statements. This category also includes services that KPMG provides, such
as consents and assistance with and review of documents filed with the SEC.
“Audit-Related Fees” are the aggregate fees billed for assurance and related services that are reasonably related to the performance of the audit and are not
reported under Audit Fees.
“All Other Fees” are additional amounts billed for products and services provided by KPMG.
There were no “Tax Fees” billed or paid during 2019 or 2020.
Audit and Non-Audit Services Pre-Approval Policy
The audit committee has responsibility for appointing, setting compensation of and overseeing the work of the independent registered public accounting
firm. In recognition of this responsibility, the audit committee has adopted a policy governing the pre-approval of all audit and permitted non-audit services
performed by our independent registered public accounting firm to ensure that the provision of such services does not impair the independent registered
public accounting firm’s independence from us and our management. Unless a type of service to be provided by our independent registered public
accounting firm has received general pre-approval from the audit committee, it requires specific pre-approval by the audit committee. The payment for any
proposed services in excess of pre-approved cost levels requires specific pre-approval by the audit committee.
Pursuant to its pre-approval policy, the audit committee may delegate its authority to pre-approve services to the chairperson of the audit committee. The
decisions of the chairperson to grant pre-approvals must be presented to the full audit committee at its next scheduled meeting. The audit committee may
not delegate its responsibilities to pre-approve services to the management.
The audit committee has considered the non-audit services provided by KPMG as described above and believes that they are compatible with maintaining
KPMG’s independence as our independent registered public accounting firm.
Item 16D.
Exemptions from the Listing Standards for Audit Committees.
Not applicable.
Item 16E.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers.
Not applicable.
Item 16F.
Change in Registrant’s Certifying Accountant.
Not applicable.
Item 16G.
Corporate Governance.
As a French société anonyme, we are subject to various corporate governance requirements under French law. In addition, as a foreign private issuer listed
on the Nasdaq Global Select Market, we are subject to Nasdaq corporate governance listing standards. However, the corporate governance standards
provide that foreign private issuers are permitted to follow home country corporate governance practices in lieu of Nasdaq rules, with certain exceptions.
We currently rely on these exemptions for foreign private issuers and follow
140
French corporate governance practices in lieu of the Nasdaq corporate governance rules, which would otherwise require that (1) a majority of our board of
directors consist of independent directors; (2) we establish a nominating and corporate governance committee; and (3) our remuneration committee be
composed entirely of independent directors.
The following are the significant ways in which our corporate governance practices differ from those required for U.S. companies listed on Nasdaq:
As a foreign private issuer, we are required to comply with Rule 10A-3 of the Exchange Act, relating to audit committee composition and responsibilities.
Rule 10A-3 provides that the audit committee must have direct responsibility for the nomination, compensation and choice of our auditors, as well as
control over the performance of their duties, management of complaints made, and selection of consultants. However, if the laws of a foreign private
issuer’s home country require that any such matter be approved by the board of directors or the shareholders, the audit committee’s responsibilities or
powers with respect to such matter may instead be advisory. Under French law, the audit committee may only have an advisory role and appointment of our
statutory auditors, in particular, must be decided by the shareholders at our annual meeting.
In addition, Nasdaq rules require that a listed company specify that the quorum for any meeting of the holders of common stock be at least 33 / % of the
outstanding shares of the company’s voting stock. Consistent with French law, our bylaws provide that a quorum requires the presence of shareholders
having at least (1) 20% of the shares entitled to vote in the case of an ordinary shareholders’ general meeting or at an extraordinary shareholders’ general
meeting where shareholders are voting on a capital increase by capitalization of reserves, profits or share premium, or (2) 25% of the shares entitled to vote
in the case of any other extraordinary shareholders’ general meeting. If a quorum is not present, the meeting is adjourned. There is no quorum requirement
when an ordinary general meeting is reconvened, but the reconvened meeting may consider only questions which were on the agenda of the adjourned
meeting. When an extraordinary general meeting is reconvened, the quorum required is 20% of the shares entitled to vote, except where the reconvened
meeting is considering capital increases through capitalization of reserves, profits or share premium. For these matters, no quorum is required at the
reconvened meeting. If a quorum is not present at a reconvened meeting requiring a quorum, then the meeting may be adjourned for a maximum of two
months.
3
1
Item 16H.
Mine Safety Disclosure.
Not applicable.
PART III.
Item 17. Financial Statements.
See the financial statements beginning on page F-1 of this Annual Report.
Item 18. Financial Statements.
Not applicable.
Item 19. Exhibits.
The exhibits listed below are filed as exhibits to this Annual Report.
Exhibit
1.1
2.1
2.2
2.3*
2.4
Description
Bylaws (statuts) of the registrant (English translation)
Amended and Restated Deposit Agreement
Form of American Depositary Receipt (included in Exhibit 2.1)
Description of Securities
Sales Agreement, dated September 21, 2020, by and between the
Registrant and Cowen and Company, LLC
141
Incorporated by Reference
Schedule/
Form
File
Number
Exhibit
File
Date
F-3
F-3
F-3
333-248953
333-248953
4.2
4.2
September 21, 2020
September 21, 2020
333-248953
1.2
September 21, 2020
4.1
4.2
4.3
4.4
4.7#
4.8#
4.9#
4.10
4.11#
4.12†
4.13†
4.14†
4.15†
4.16†
4.17†
4.18†
4.19†
4.20†
4.21†
4.22†
4.23†
4.24†
Exhibit
Description
Lease Agreement by and between the registrant and PFO2 SCPI
(represented by PERIAL Asset Management SASU), dated June 9,
2015 (English translation)
Addendum #1 to the Lease Agreement by and between the registrant
and PF02 SCPI (represented by PERIAL Asset Management SASU),
dated December 30, 2016 (English translation)
Incorporated by Reference
Schedule/
Form
File
Number
Exhibit
File
Date
F-1
333-220867
10.1
October 6, 2017
F-1
333-220867
10.2
October 6, 2017
Lease Agreement by and between the registrant and EUROGAL, dated
December 6, 2017 (English Translation)
20-F
001-38281
Lease by and between the registrant and 104 Campus Drive LLC, dated
April 27, 2018
20-F
001-38281
4.3
4.4
April 24, 2018
March 29, 2019
Exclusive Distribution Agreement by and between the registrant and
Abic Marketing Limited, dated as of March 28, 2011
Exclusive Supply Agreement for L-asparaginase by and between the
registrant and medac GmbH, dated as of December 12, 2008 and
Addendum #1 to the Exclusive Supply Agreement for L-Asparaginase,
dated August 19, 2009
Exclusive Supply Agreement for recombinant L-asparaginase by and
between the registrant and medac GmbH, dated as of May 3, 2011 and
Addendum #1 to the Exclusive Supply Agreement for recombinant L-
asparaginase, dated April 4, 2014
Addendum #2 to the Exclusive Supply Agreement for L-asparaginase
by and between the registrant and medac GmbH, dated July 25, 2016
Addendum #2 to the Exclusive Supply Agreement for recombinant L-
asparaginase by and between the registrant and medac GmbH, dated
July 25, 2016
Form of indemnification agreement between the registrant and each of
its executive officers and directors
Summary of BSA Plans
Summary of BSPCE Plans
2016 Share Option Plan (English translation)
2016 Free Share Plan (English translation)
2017 Share Option Plan (English translation)
2017 Free Share Plan (English translation)
2018 Share Option Plan (English translation)
2018 Free Share Plan (English translation)
2018 BSA Subscription Plan (English translation)
2019 Share Option Plan (English translation)
2019 Free Share Plan (English translation)
2019 BSA Subscription Plan (English translation)
F-1
F-1
333-220867
10.5
October 6, 2017
333-220867
10.6
October 6, 2017
F-1
333-220867
10.7
October 6, 2017
F-1
F-1
F-1
F-1
F-1
F-1
F-1
S-8
S-8
S-8
S-8
S-8
20-F
20-F
S-8
333-220867
10.8
October 6, 2017
333-220867
10.9
October 6, 2017
333-220867
10.11
October 6, 2017
333-220867
333-220867
333-220867
333-220867
333-222673
333-222673
333-232670
333-232670
333-232670
001-38281
001-38281
333-239429
10.12
10.13
10.14
10.15
99.5
99.6
99.2
99.3
99.4
4.22
4.23
99.4
October 6, 2017
October 6, 2017
October 6, 2017
October 6, 2017
January 24, 2018
January 24, 2018
July 16, 2019
July 16, 2019
July 16, 2019
March 18, 2020
March 18, 2020
June 25, 2020
142
Exhibit
4.25^
4.26†
4.27†*
4.28†*
4.29†*
4.30†*
8.1
12.1*
12.2*
13.1**
Incorporated by Reference
Schedule/
Form
20-F
File
Number
001-38281
Exhibit
4.24
File
Date
March 18, 2020
20-F
001-38281
4.25
March 18, 2020
Description
License and Collaboration Agreement by and between the registrant
and SQZ Biotechnologies Company, dated June 24, 2019
Executive Employment Agreement by and between the registrant and
Gil Beyen, dated as of April 1, 2019
2020 Share Option Plan
2020 Free Share Plan (English translation)
2020 BSA Subscription Plan
Agreement for the issuance of and subscription to warrants giving
access to notes convertible into new and/or existing shares with share
subscription warrants attached
List of subsidiaries of the registrant
F-1
333-220867
21.1
October 6, 2017
Certification by the Principal Executive Officer pursuant to Securities
Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
Certification by the Principal Financial Officer pursuant to Securities
Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
Certification by the Principal Executive Officer and Principal Financial
Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
15.1*
Consent of KPMG S.A.
101.INS*
XBRL Instance Document
101.SCH*
XBRL Taxonomy Extension Schema Document
101.CAL*
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*
XBRL Taxonomy Extension Label Linkbase Document
101.PRE*
XBRL Taxonomy Extension Presentation Linkbase Document
* Filed herewith.
** Furnished herewith.
† Indicates a management contract or any compensatory plan, contract or arrangement.
# Confidential treatment has been granted from the Securities and Exchange Commission as to certain portions of this document.
^ Portions of this document (indicated by "[***]") have been omitted because they are not material and would likely cause competitive harm to
ERYTECH Pharma S.A. if disclosed.
143
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to
sign this annual report on its behalf.
SIGNATURES
ERYTECH Pharma S.A.
By:
Name:
Title:
/s/ Gil Beyen
Gil Beyen
Chief Executive Officer
Date: March 8, 2021
144
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Consolidated Financial Statements as of and for the Years Ended December 31, 2018, 2019 and 2020
Report of KPMG S.A., Independent Registered Public Accounting Firm
Consolidated Statements of Income (Loss) for the Years Ended December 31, 2018, 2019 and 2020
Consolidated Statements of Comprehensive Income (Loss) for the Years Ended December 31, 2018, 2019 and 2020
Consolidated Statements of Financial Position as of December 31, 2018, 2019 and 2020
Consolidated Statements of Cash Flows for the Years Ended December 31, 2018, 2019 and 2020
Consolidated Statements of Changes in Shareholders’ Equity for the Years Ended December 31, 2018, 2019 and 2020
Notes to the Consolidated Financial Statements
Page
F-2
F-3
F-3
F-4
F-5
F-6
F-7
F-1
Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors,
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial position of Erytech Pharma S.A. and subsidiary (the Company) as of December 31,
2020, 2019 and 2018, the related consolidated statements of income (loss), comprehensive income (loss), changes in shareholders’ equity, and cash flows
for each of the years in the three‑year period ended December 31, 2020, and the related notes (collectively, the consolidated financial statements). In our
opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020, 2019
and 2018, and the results of its operations and its cash flows for each of the years in the three‑year period ended December 31, 2020, in conformity with
International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”).
Change in Accounting Principle
As discussed in Notes 4.2 and 4.10 to the consolidated financial statements, the Company has changed its method of accounting for leases on January 1,
2019, due to the adoption of IFRS 16 “Leases”.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board
(United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not
required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain
an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal
control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or
fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and
disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by
management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis
for our opinion.
We have served as the Company’s auditor since 2004.
Lyon, 8 March 2021
KPMG Audit
A division of KPMG S.A.
Stéphane Devin
Partner
F-2
CONSOLIDATED STATEMENT OF INCOME (LOSS)
(Amounts in thousands of euros,
except loss per share)
Revenues
Other income
Operating income
Research and development
General and administrative
Operating expenses
Operating loss
Financial income
Financial expenses
Financial income (loss)
Income tax
Net loss
Basic / Diluted loss per share (€/share)
Notes
12/31/2018
12/31/2019
12/31/2020
3.1
3.2.1
3.2.2
3.5
3.5
3.6
3.7
—
4,447
4,447
(33,468)
(14,600)
(48,068)
(43,621)
5,427
(28)
5,399
(2)
(38,224)
(2.13)
—
5,283
5,283
(52,193)
(17,164)
(69,357)
(64,074)
2,947
(1,533)
1,414
1
(62,659)
(3.49)
—
3,718
3,718
(57,580)
(14,970)
(72,550)
(68,832)
889
(5,354)
(4,465)
(3)
(73,300)
(3.99)
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME (LOSS)
(Amounts in thousands of euros)
Net loss
Elements that may be reclassified subsequently to income (loss)
Currency translation adjustment
Elements that may not be reclassified subsequently to income (loss)
Remeasurement of defined benefit liabilities
Tax effect
Other comprehensive income (loss)
Comprehensive income (loss)
12/31/2018
12/31/2019
12/31/2020
(38,224)
(62,659)
(73,300)
15
(60)
2
(43)
(38,267)
1,237
(38)
0
1,199
(61,460)
400
(19)
—
381
(72,919)
F-3
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
(Amounts in thousands of euros)
ASSETS
Non-current assets
Intangible assets
Property, plant and equipment
Right of use
Other non-current financial assets
Total non-current assets
Current assets
Other current financial assets
Inventories
Trade and other receivables
Other current assets
Cash and cash equivalents
Total current assets
TOTAL ASSETS
(Amounts in thousands of euros)
LIABILITIES AND SHAREHOLDERS' EQUITY
Shareholders’ equity
Share capital
Premiums related to share capital
Reserves
Translation reserve
Net loss for the period
Total shareholders’ equity
Non-current liabilities
Provisions - non-current portion
Financial liabilities – non-current portion
Derivative liabilities - non current portion
Lease liabilities - non-current portion
Deferred tax
Total Non-current liabilities
Current liabilities
Provisions - current portion
Financial liabilities – current portion
Derivative liabilities - current portion
Lease liabilities - current portion
Trade and other payables
Other current liabilities
Total current liabilities
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY
Notes
December 31, 2018 December 31, 2019 December 31, 2020
As of
4.1.1
4.1.2
4.2
4.3
4.3
4.4
4.5
4.5
4.6
1,613
15,274
—
1,046
17,933
—
1,396
30
14,111
134,371
149,908
167,841
603
25,632
10,009
718
36,962
41
358
36
7,975
73,173
81,583
118,545
589
20,862
8,228
1,091
30,770
59
—
4
5,123
44,446
49,632
80,402
Notes
December 31, 2018 December 31, 2019 December 31, 2020
As of
1,794
281,744
(99,524)
(188)
(38,224)
145,602
347
1,243
—
—
—
1,590
—
776
—
—
16,656
3,217
20,649
167,841
1,794
281,688
(136,607)
1,344
(62,659)
85,560
506
1,321
—
11,278
—
13,105
71
99
—
1,425
13,775
4,510
19,880
118,545
2,006
120,705
(24,616)
1,744
(73,300)
26,539
652
14,379
288
9,197
—
24,516
—
2,265
129
1,607
20,910
4,436
29,347
80,402
4.7
4.8
4.9
4.9.1
4.10
4.8
4.9
4.9.1
4.10
4.11
4.11
F-4
CONSOLIDATED STATEMENT OF CASH FLOWS
(Amounts in thousands of euros)
Cash flows from operating activities
Net loss
Reconciliation of net loss and the cash used for operating activities
Gain or loss on exchange
Amortization and depreciation
Provision
Change in fair value of derivative liabilities
Expenses related to share-based payments
Gain or loss on disposal
Interest expense (income)
Income tax expense (income)
Operating cash flow before change in working capital
(Increase) decrease in inventories
(Increase) decrease in trade and other receivables
(Increase) decrease in other current assets
Increase (decrease) in trade and other payables
Increase (decrease) in other current liabilities
Change in working capital
Net cash flow used in operating activities
Cash flows from investing activities
Acquisition of property, plant and equipment
Acquisition of intangible assets
Increase in non-current & current financial assets
Disposal of property, plant and equipment
Decrease in non-current & current financial assets
Net cash flow used in investing activities
Cash flows from financing activities
Capital increases, net of transaction costs
Subscription of warrants
Proceeds from borrowings, net of transaction costs
Repayment of borrowings
Allowance received from a lessor
Repayment of lease liability (IFRS 16)
Interests received (paid)
Other change in financial liabilities
Net cash flow from (used in) financing activities
Exchange rate effect on cash in foreign currency
Increase (Decrease) in cash and cash equivalents
Net cash and cash equivalents at the beginning of the period
Net cash and cash equivalents at the closing of the period
Cash paid for interest
Cash paid for income tax
Notes
12/31/2018
12/31/2019
12/31/2020
(38,224)
(62,659)
(73,300)
(3,965)
797
73
—
2,449
—
4
2
(38,864)
(1,219)
47
(8,321)
(8)
508
(8,993)
(47,857)
(5,635)
(3)
(812)
—
—
(673)
4,216
192
—
1,359
42
484
(1)
3,028
4,991
57
(652)
1,179
22
2,150
3
(57,040)
(62,522)
1,038
(7)
6,150
5,993
556
13,730
(43,310)
(20,117)
(16)
(119)
—
414
358
33
2,829
6,913
669
10,802
(51,720)
(1,139)
(2)
(421)
83
4
(6,450)
(19,838)
(1,475)
—
—
—
(818)
—
—
—
—
(818)
3,981
(51,144)
185,515
134,371
14
—
—
47
—
(738)
1,866
(978)
(195)
38
40
1,910
(61,198)
134,371
73,173
195
—
118
12
27,134
(62)
188
(1,615)
(326)
—
25,449
(981)
(28,727)
73,173
44,446
326
—
3.4
3.4
3.3
4.1.2
3.6
4.4
4.5
4.5
4.11
4.11
4.1.1
4.3
4.7
4.9
4.9
4.1
4.1
4.9
4.6
4.6
F-5
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS’ EQUITY
(Amount in thousands of euros, except
number of shares)
Share capital
Premiums
related to the
share capital
Reserves
Translation
reserve
Net income
(loss)
Total
shareholders’
equity
1,794
281,744
(68,385)
(203)
Total comprehensive income (loss)
—
Allocation of prior period loss
At December 31, 2017
Net loss for the period
Other comprehensive income
Total comprehensive income (loss)
Allocation of prior period loss
Issue of ordinary shares
Share-based payment
At December 31, 2018
Net loss for the period
Other comprehensive income
Issue of ordinary shares
Issue of warrants
Share-based payment
Reclassification
At December 31, 2019
Net loss for the period
Other comprehensive income
Total comprehensive income (loss)
Allocation of prior period loss (2)
Allocation of reserves on premiums (2)
Issue of ordinary shares (1)
Issue of warrants
Share-based payment
At December 31, 2020
—
0
—
0
1,794
281,744
—
59
(115)
(58)
(58)
(33,530)
2,449
(99,524)
(38)
(38)
(38,224)
1,359
(180)
1,794
281,688
(136,607)
—
212
—
(54,208)
(119,282)
12,507
2,006
120,705
(19)
(19)
(8,451)
119,282
1,179
(24,616)
15
15
(188)
1,237
1,237
295
1,344
400
400
(33,530)
(38,224)
(38,224)
33,530
(38,224)
(62,659)
(62,659)
38,224
(62,659)
(73,300)
(73,300)
62,659
1,744
(73,300)
181,420
(38,224)
(43)
(38,267)
—
0
2,449
145,602
(62,659)
1,199
(61,460)
—
—
59
1,359
—
85,560
(73,300)
381
(72,919)
—
—
12,719
0
1,179
26,539
(1) Includes €12,600 thousand linked to the conversion of convertible notes (refer to note 4.9.1).
(2) In accordance with the decision of the shareholders meeting dated June 26, 2020.
F-6
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The notes are an integral part of the accompanying Consolidated Financial Statements. The Consolidated Financial Statements were approved and
authorized for issuance by the Board of Directors on March 5, 2021.
1. DESCRIPTION OF THE BUSINESS
ERYTECH Pharma S.A. (“ERYTECH,” and together with its subsidiary the “Company”) is incorporated in Lyon, France, and was founded in 2004 to
develop and market innovative red blood cell-based therapeutics for cancer and orphan diseases. The Company’s most advanced product candidates are
being developed for the treatment of pancreatic cancer.
The Company completed its initial public offering on Euronext Paris in May 2013, raising €17.7 million, and on the Nasdaq Global Select Market in
November 2017, raising €124.0 million ($144.0 million on a gross basis before deducting offering expenses).
The Company has incurred losses and negative cash flows from operating activities since its inception and had shareholders’ equity of €26,539 thousand as
of December 31, 2020 as a result of several financing rounds, including an initial public offering. The Company anticipates incurring additional losses until
such time, if ever, that it can generate significant revenue from its product candidates in development. The COVID-19 pandemic and the measures decided
by the governments of the countries in which the Company operates have resulted in a delay of 3 to 4 months in patient enrollment in the TRYbeCA-1 trial
and thus in the interim analysis. The end of recruitment and interim analysis occurred in December 2020 and February 2021, respectively.
Substantial additional financing will be needed by the Company to fund its operations and to commercially develop its product candidates. The situation on
the financial markets and the delay in the TRYbeCA-1 trial due to the COVID-19 pandemic may impair the ability of the Company to raise capital when
needed or on attractive terms.
The Company’s future operations are highly dependent on a combination of factors, including: (i) the success of its research and development;
(ii) regulatory approval and market acceptance of the Company’s proposed future products; (iii) the timely and successful completion of additional
financing; and (iv) the development of competitive therapies by other biotechnology and pharmaceutical companies. As a result, the Company is and
should continue, in the short to mid-term, to be financed through partnership agreements for the development and commercialization of its drug candidates
and through the issuance of new debt or equity instruments.
The accompanying consolidated financial statements and related notes (the “Consolidated Financial Statements”) present the operations of ERYTECH
Pharma S.A. and its subsidiary, ERYTECH Pharma, Inc.
Registered office of ERYTECH Pharma S.A.: 60 avenue Rockefeller, 69008, Lyon, France.
Major events of 2020
Business
February 2020:
•
•
The Company received from Bpifrance a reimbursable advance of €2,979 thousand and a subsidy of €294 thousand (recorded in 2019) under the
milestone n°6 of the TEDAC project.
The Company entered into a strategic partnership with the German Red Cross Blood Donor Service Baden-Württemberg-Hessen (GRCBDS) for
the supply of donor red blood cells to manufacture its product candidates, including eryaspase, in Europe and to complement the existing alliance
with the French Blood Bank (EFS).
March 2020:
•
•
The TRYbeCA-1 trial has continued to progress despite the challenges caused by the impact of the COVID-19 global pandemic, and patient
enrollment has continued notwithstanding the increasing difficulties experienced by hospitals to organize the proper treatment and follow-up.
The independent data monitoring committee (IDMC) of the TRYbeCA-1 trial reviewed the safety data of the first 320 patients enrolled and
treated. In line with the two earlier safety reviews of the trial, no safety issues were identified, and the IDMC recommended the Company to
continue the trial as planned.
F-7
April 2020:
•
The U.S. Food and Drug Administration (FDA) has granted the Company Fast Track Designation for the development of eryaspase as a second-
line treatment of patients with metastatic pancreatic cancer.
May 2020:
•
The Company announced it will be part of EVIDENCE, a public-private consortium supported by the European Union in the framework of the EU
Horizon 2020 program. The EVIDENCE consortium, consisting of leading experts in the field of red blood cell research, will explore how red
blood cells are influenced by their extra-cellular environment.
June 2020:
•
•
The Company announced that the ongoing Phase 2 clinical trial, sponsored by the Nordic Society of Paediatric Haematology and Oncology
(NOPHO) of eryaspase in second-line acute lymphoblastic leukemia (ALL) patients has reached its target enrollment of 50 patients. Preliminary
findings of the trial suggest that eryaspase achieved the target level and duration of asparaginase activity in these patients. Moreover, the addition
of eryaspase to the combination chemotherapy was associated with an acceptable tolerability profile, enabling the majority of these patients to
receive their fully intended courses of asparaginase. Recent data have confirmed that discontinuation of asparaginase therapy in ALL patients has
been associated with inferior disease free survival.
The Company signed a financing agreement with Luxembourg-based European High Growth Opportunities Securitization Fund, represented by its
asset manager European High Growth Opportunities Manco SA (entities related to Alpha Blue Ocean), in the form of convertible notes with share
subscription warrants attached (“OCABSA”), allowing a potential financing arrangement of up to a maximum of €60 million, subject to the
regulatory limit of 20% dilution.
July/August 2020:
• As part of the convertible notes’ agreement signed in June 2020, the Company issued two tranches of €3 million each (60 OCABSA) on July 6,
2020 and on August 24, 2020, respectively.
September 2020:
•
The Company established a financing facility with the implementation of an at-the-market program on Nasdaq with Cowen allowing the Company
to issue and sell ordinary shares in the form of American Depositary Shares ("ADSs"), to eligible investors at market prices, with aggregate gross
sales proceeds of up to $30 million (subject to a regulatory limit of 20% dilution), from time to time, pursuant to the terms of a sales agreement.
November 2020:
•
The Company received two loans of €5.0 million each, in the form of State-Guaranteed Loan (Prêt Garanti par l’Etat, or PGE, in France) with
Bpifrance and Société Générale in the context of the COVID-19 pandemic.
November/December 2020:
• As part of the convertible notes’ agreement signed in June 2020, the Company issued three tranches of €3.0 million each (60 OCABSA) on
November 17, 2020, December 7, 2020 and December 22 , respectively.
December 2020:
•
The Company announced positive results from eryaspase Phase 2 Trial in Acute Lymphoblastic Leukemia ("ALL"). The study confirms the
potential of eryaspase as an attractive treatment option for ALL patients with hypersensitivity to PEG-asparaginase. The Phase 2 NOR-
GRASPALL-2016 trial evaluated the safety and pharmacological profile of eryaspase in ALL patients who had previously experienced
hypersensitivity reactions to pegylated asparaginase therapy. The trial was conducted by the Nordic Society of Pediatric Hematology and
Oncology (NOPHO). Primary objectives of the trial were asparaginase enzyme activity and safety. Both endpoints were met.
•
The Company announced the completion of enrollment in the TRYbeCA-1 Phase 3 trial in second-line pancreatic cancer.
F-8
Management
March 2020:
• Appointment of Melanie Rolli, M.D., as member of the Company’s Board of Directors.
October 2020:
• Appointment of Stewart Craig as Chief Technical Officer
Major events of 2019
Business
May 2019:
• Acceptance by the U.S. Food and Drug Administration (FDA) of the Company’s Investigational New Drug (IND) application for eryaspase,
consisting of the enzyme L-asparaginase encapsulated inside donor derived red blood cells. The acceptance of the IND will enable ERYTECH to
initiate enrollment at U.S. clinical trial sites for its ongoing pivotal Phase 3 TRYbeCA-1trial evaluating eryaspase in second-line pancreatic cancer.
June 2019:
• Opening of a new U.S.-based GMP manufacturing facility in Princeton, New Jersey, United States. The facility will support production capacity
needs for eryaspase, the Company’s lead product candidate, for patients in the United States.
•
•
The Company signed an agreement with SQZ Biotechnologies (SQZ), a cell therapy company developing novel treatments in multiple therapeutic
areas, to collaborate on the advancement of novel red blood cell-based therapeutics for immune modulation. The Company is eligible to receive up
to $57 million in combined upfront and potential development, regulatory and commercial milestone payments for the first product successfully
developed by SQZ under this agreement. The Company will also be eligible to receive sales royalties.
Enrollment of first patient in the Phase 2 clinical trial, named TRYbeCA-2, evaluating the Company’s lead product candidate, eryaspase, for the
treatment of first line triple negative breast cancer (TNBC).
November 2019:
•
•
The Company achieved two important milestones for the TRYbeCA-1 Phase 3 clinical trial of eryaspase in second line metastatic pancreatic
cancer. TRYbeCA-1 was opened for patient enrollment in the United States and the first site was activated. The manufacturing of eryaspase for the
patients to be treated in the United States will take place at the Company’s newly established manufacturing facility in Princeton, New Jersey.
Publication of the full results from the Phase 2b trial evaluating eryaspase in metastatic pancreatic in the European Journal of Cancer.
Management
January 2019:
•
Eric Soyer was appointed as Deputy General Manager of the Company.
June 2019:
• Dr. Jean-Paul Kress was appointed as Chairman of the Board of Directors by the Board of Directors following his appointment as board member
at the Company’s Annual General Meeting of Shareholders held on June 21, 2019. Dr. Kress has over 25 years’ experience as a senior executive
officer in international biotechnology and pharmaceutical groups. He was Chairman and Chief Executive Officer of Syntimmune (Cambridge,
MA, US) until the end of 2018, when the company was acquired by Alexion Pharmaceuticals.
F-9
Major events of 2018
June 2018:
•
•
The Company announced that it will focus its development efforts for the product candidate eryaspase on the potential treatment of selected solid
tumor indications. The Company also announced its plans to cease the development program for eryaspase in ALL, including the withdrawal of its
previously submitted European MAA for eryaspase for the treatment of relapsed and refractory ALL.
The Company signed a lease agreement in order to establish a manufacturing facility in the United States (Princeton, New Jersey).
2. ACCOUNTING RULES AND METHODS
2.1. Basis of preparation
The Consolidated Financial Statements have been prepared in accordance with the underlying assumptions of going concern as the Company’s loss-making
situation is explained by the innovative nature of the products developed, therefore involving a multi-year research and development phase.
The Company has historically financed its growth by strengthening its equity in the form of capital increases and issuance of convertible notes.
At the approval date of the financial statements, the Board of Directors believes that the Company will be able to fund its operations until the first quarter
2022, considering:
•
•
•
•
Cash and cash equivalents held by the Company amounted to €44.4 million as of December 31, 2020. They are composed of cash and term
deposits readily available without penalty;
Shares sold under the at-the-market (“ATM”) program in February 2021, for gross proceeds of approximately €6.6 million ;
The issuance of a tranche of convertibles notes of €3.0 million in March 2021, as part of the financing agreement signed with Luxembourg-based
European High Growth Opportunities Securitization Fund
The possibility of further use of this financing agreement allowing a potential fundraising up to a maximum of €42.0 million until June 2022,
subject to the regulatory limit of 20% dilution, representing approximately €33.0 million based on the closing market price the day before the
approval date of the Consolidated Financial Statements (€7.10).
Considering the above factors and assumptions, the Company believes that it is able to fund its operations during the 12 months after the closing date.
From this date, the Company will have to find additional funding. Various financing sources are considered among the issuance of new debt or equity
instruments and partnership agreements.
The Consolidated Financial Statements have been prepared in accordance with the historical cost principle with the exception of certain categories of assets
and liabilities measured at fair value in accordance with IFRS.
All amounts are expressed in thousands of euros, unless stated otherwise.
2.2 Statement of compliance
The Consolidated Financial Statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the
International Accounting Standard Board (“IASB”) and were approved and authorized for issuance by the Board of Directors of the Company on March 5,
2021. They will be subject to the approval of the General Meeting on June 25, 2021.
Due to the listing of ordinary shares of the Company on Euronext Paris and in accordance with the European Union’s regulation No. 1606/2002 of July 19,
2002, the Consolidated Financial Statements of the Company are also prepared in accordance with IFRS, as adopted by the European Union (EU).
As of December 31, 2020, all IFRS that the IASB had published and that are mandatory are the same as those endorsed by the EU and mandatory in the
EU. As a result, the Consolidated Financial Statements comply with International Financial Reporting Standards as published by the IASB and as adopted
by the EU.
F-10
IFRS include International Financial Reporting Standards (“IFRS”), International Accounting Standards (“IAS”), as well as the interpretations issued by
the Standing Interpretations Committee (“SIC”), and the International Financial Reporting Interpretations Committee (“IFRS IC”). The main accounting
methods used to prepare the Consolidated Financial Statements are described in the corresponding notes. These methods were used for all periods
presented.
The Company adopted the following standards, amendments and interpretations that are applicable as at January 1, 2020:
• Amendments to References to the conceptual framework in IFRS standards ;
• Amendments to IAS 1 and IAS 8: Definition of "material";
• Amendments to IFRS 3: Definition of a business;
• Amendments to IFRS 9, IAS 39 and IFRS 7: Interest rate benchmark reform (phase 1).
These new texts did not have any significant impact on the Company’s results or financial position.
The standards and interpretations that are optionally applicable to the Company as of December 31, 2020 were not applied in advance.
Recently issued accounting pronouncements that may be relevant to the Company’s operations are as follows:
• Amendment to IFRS 16 : Covid 19-Related rent concessions;
• Amendments to IAS 1 : Classification of liabilities as current or non-current;
• Amendments to IAS 16 : Property, Plant and Equipment - Proceeds before intended use .
• Amendments to IAS 37 : Onerous contracts - cost of fulfilling a contract
• Annual Improvements 2018-2020.
2.3 Basis of consolidation
In accordance with IFRS 10 Consolidated Financial Statements (“IFRS 10”), an entity is consolidated when it is controlled by the Company. The
Company controls an entity when it is exposed or has rights to variable returns from its involvement with the entity and has the ability to affect those
returns through its power over the entity. All intercompany balances, transactions and dividends are eliminated in full. The Company has one subsidiary for
which no non-controlling interest is recognized.
ERYTECH Pharma, Inc.
There was no change in the consolidation scope over the years presented.
2.4. Foreign currencies
Date of
Incorporation
April 2014
Percent of
Ownership Interest
Accounting Method
100%
Consolidated
Functional Currency and Translation of Financial Statements into Presentation Currency
The Consolidated Financial Statements are presented in euros, which is also the functional currency of the parent company, ERYTECH Pharma S.A. (the
“Parent Company”). The statement of financial position of the consolidated entity having a functional currency different from the euro are translated into
euros at the closing exchange rate (spot exchange rate at the statement of financial position date) and the statement of income (loss), statement of
comprehensive income (loss) and statement of cash flow of such consolidated entity are translated at the average exchange rate for the period, except if
exchanges rates fluctuate significantly. The resulting translation adjustment is included in other comprehensive income (loss) as a cumulative translation
adjustment.
Exchange rate (USD per EUR)
Weighted average rate
Closing rate
12/31/2018
12/31/2019
12/31/2020
1.1815
1.1450
1.1196
1.1234
1.1413
1.2271
F-11
Conversion of Foreign Currency Transactions
Foreign currency transactions are converted to functional currency (euros) at the exchange rate applicable on the transaction date. At the closing date,
foreign currency monetary assets and liabilities are converted at the exchange rate prevailing on that date. The resulting exchange gains or losses are
recorded in the consolidated statement of income (loss) in “Financial income (loss)”.
The loan in U.S. dollars from the Parent Company to ERYTECH Pharma, Inc. was considered as part of the net investment in a foreign operation until the
end of the third quarter of 2019, when the loan was partly converted into capital and partly restructured as a medium term loan. As a result of this financial
restructuring, the loan is no longer qualified as an investment in a foreign operation. Exchange rate differences are recognized in the consolidated statement
of income (loss) since October 1, 2019.
2.5 Use of estimates and judgments
Preparation of the consolidated financial statements in accordance with the rules prescribed by the IFRS requires the use of estimates and the formulation
of assumptions having an impact on the financial statements. These estimates can be revised where the circumstances on which they are based change. The
actual results may therefore differ from the estimates initially formulated. The use of estimates and judgment relate primarily to the measurement of:
•
•
•
the share-based payments in accordance with IFRS 2 (see note 3.3.3);
the fair value of the convertible notes' agreement and its classification in accordance with IFRS 9 and IAS 32 (see note 4.9.1);
the hospital costs accrual (see note 4.11).
2.6 Presentation of the statement of income (loss)
The Company presents its statement of income (loss) by function. As of today, the main activity of the Company is the research and development.
Consequently, only “research and development expenses” and “general administrative expenses” functions are considered to be representative. The detail
of the expenses by nature is disclosed in note 3.2.
2.7 Presentation of the statement of cash flows
The consolidated statements of cash flows are prepared using the indirect method and separately present the cash flows associated with operating,
investing, and financing activities.
2.8 Segment reporting
In accordance with IFRS 8 Operating Segments ("IFRS 8") , reporting by operating segment is derived from the internal organization of the Company’s
activities; it reflects management’s viewpoint and is established based on internal reporting used by the chief operating decision maker (the Chief Executive
Officer) to allocate resources and to assess performance.
Information per business segment
The Company operates in a single operating segment: the conducting of research and development of innovative red blood cell-based therapeutics for
cancer and orphan diseases in order to market them in the future.
Information per geographical segment
Revenues from external customers (amounts in thousands of euros)
12/31/2018
12/31/2019
12/31/2020
France
United States
Total
72
—
72
105
969
1,074
61
185
246
F-12
Non current assets (amounts in thousands of euros)
12/31/2018
12/31/2019
12/31/2020
France
United States
Total
2.9 Events after the close of the reporting period
4,912
11,975
16,887
9,616
26,629
36,245
8,414
21,265
29,679
The consolidated statement of financial position and the consolidated statement of income (loss) of the Company are adjusted to reflect the subsequent
events that alter the amounts related to the situations that exist as of the closing date.
January 2021:
•
The Company announced the first patient enrolled in a Phase 1 investigator sponsored trial (IST), named rESPECT, of eryaspase for the first-line
treatment of pancreatic cancer. The rESPECT Phase 1 IST will be conducted by Dr Marcus Noel (Associate Professor of Medicine at Georgetown
University, Washington DC, USA). The trial will enroll patients who have received no prior chemotherapy for the treatment of locally advanced or
metastatic pancreatic cancer.
February 2021:
•
The Company sold 744,186 shares under the at-the-market (“ATM”) program, for gross proceeds of approximately €6.6 million ($8.0 million).
March 2021:
• As part of the convertible notes’ agreement signed in June 2020, the Company issued a tranche of €3.0 million (60 OCABSA) on March 2, 2021.
F-13
3. NOTES RELATED TO THE CONSOLIDATED STATEMENT OF INCOME (LOSS)
3.1 Operating income
Accounting policies
Research tax credit
The research tax credit (Crédit d’Impôt Recherche or “CIR”) (the “Research Tax Credit”) is granted to companies by the French tax authorities in order to
encourage them to conduct technical and scientific research. Companies that prove that they have expenditures that meet the required criteria (research
expenditures located in France or, since January 1, 2005, within the European Union or in another State that is a party to the Agreement on the European
Economic Area that has concluded a tax treaty with France that contains an administrative assistance clause) receive a tax credit that (a) can be used for the
payment of the corporate tax due for the fiscal year in which the expenditures were made and the next three fiscal years, or, (b) as applicable, can be
reimbursed in cash. The expenses taken into account for the calculation of the Research Tax Credit involve only research expenses.
The Company benefits from the Research Tax Credit since its inception.
The CIR is presented under operating income as it meets the definition of government grant as defined in IAS 20 Accounting for Government Grants and
Disclosure of Government Assistance (“IAS 20”).
Subsidies
Subsidies received that are not repayable by the Company are recognized as operating income where there exists reasonable assurance that the Company
will comply with the conditions attached to the subsidies and the subsidies will be received.
Subsidies that are upfront payments are presented as deferred revenue and recognized ratably through income over the duration of the research program to
which the subsidy relates.
A public subsidy that is to be received either as compensation for expenses or for losses already incurred, or for immediate financial support of the
Company without associated future costs, is recognized as operating income when there exists reasonable assurance that the subsidies will be received.
Revenues from licenses or other contracts
For each of its partnership agreements, the Company determines if it acts as a principal or as an agent in accordance with IFRS 15 Revenue from contracts
with customers (“IFRS 15").
Partnership with Orphan Europe NOPHO clinical trial
Within the context of this agreement, Orphan Europe agreed to finance the NOPHO study for a total amount of €600 thousand. This revenue is recognized
in “other income” in the statement of income (loss).
License agreement with SQZ Biotechnologies (“SQZ”)
Under the terms of the agreement, the Company has granted to SQZ Biotechnologies an exclusive worldwide license to develop antigen specific immune
modulating therapies employing red blood cell-based approaches. In accordance with IFRS 15, this agreement grants to SQZ Biotechnologies a right to use
the underlying intellectual property ("static license"). Consequently, the income linked to the upfront payment ($1.0 million) was recognized in June 2019
when SQZ Biotechnologies could begin to use the licensed intellectual property.
The Company does not generate any revenue from the sale of its products considering its stage of development.
(amounts in thousands of euros)
Research Tax Credit
Subsidies
Revenues from licenses or other contracts
Total
12/31/2018
12/31/2019
12/31/2020
4,375
—
72
4,447
3,915
294
1,074
5,283
3,430
42
246
3,718
F-14
Revenues from licenses or other contracts
Revenues from licenses or other contracts in 2019 are mainly linked to the license agreement signed with SQZ Biotechnologies (see note 7).
3.2 Operating expenses by nature
3.2.1
Research and development expenses
For the year ended December 31, 2018 (amounts in thousands of euros)
R&D
Clinical studies
Total
Consumables
Rental and maintenance
Services, subcontracting and fees
Personnel expenses
Depreciation and amortization
Other
Total
1,061
279
5,043
3,013
68
38
9,502
728
526
14,589
7,901
192
30
23,966
1,789
805
19,632
10,914
260
68
33,468
For the year ended December 31, 2019 (amounts in thousands of euros)
R&D
Clinical studies
Total
Consumables
Rental and maintenance
Services, subcontracting and fees
Personnel expenses
Depreciation and amortization
Other
Total
668
171
3,543
3,056
307
50
7,795
6,340
1,125
21,753
11,911
3,229
40
44,398
7,008
1,296
25,296
14,967
3,536
90
52,193
For the year ended December 31, 2020 (amounts in thousands of euros)
R&D
Clinical studies
Total
Consumables
Rental and maintenance
Services, subcontracting and fees
Personnel expenses
Depreciation, amortization & provision
Other
Total
54
117
1,099
2,268
283
25
3,846
6,732
1,162
28,487
13,361
3,951
41
53,734
6,786
1,279
29,586
15,629
4,234
66
57,580
The increase in research and development expenses for periods presented is mainly due to:
•
•
The increase in external services mainly linked to the ongoing clinical trials of eryaspase for the treatment of solid tumors, particularly with the
commencement of the Phase 3 clinical trial for the treatment of pancreatic cancer in September 2018;
The increase in depreciation, amortization & provision between 2018 and 2019 related mainly to :
◦
◦
the recognition of an impairment in 2019 on a production process recognized in intangible asset (see note 4.1.1),
the commissioning of the Princeton, New Jersey manufacturing facility in the second half of 2019;
•
The increase in research and development personnel expenses (see note 3.3).
F-15
3.2.2. General and administrative expenses
General and administrative expenses (amounts in thousands of euros)
12/31/2018
12/31/2019
12/31/2020
Consumables
Rental and maintenance
Services, subcontracting and fees
Personnel expenses
Depreciation and amortization
Other
Total
33
1,584
5,409
5,925
529
1,120
527
1,117
7,964
6,331
751
474
224
1,070
5,962
6,573
686
455
14,600
17,164
14,970
The significance of services, subcontracting and fees in 2019 is mainly due to costs incurred as part of the establishment of the Princeton manufacturing
facility.
3.3 Personnel expenses
3.3.1.
Research and development expenses
For the year ended December 31, 2018 (amounts in thousands of euros)
R&D
Clinical studies
Total
Wages and salaries
Share-based payments (employees and executive management)
Social security expenses
Total personnel expenses
1,887
334
792
3,013
5,393
824
1,684
7,901
7,281
1,158
2,475
10,914
For the year ended December 31, 2019 (amounts in thousands of euros)
R&D
Clinical studies
Total
Wages and salaries
Share-based payments (employees and executive management)
Social security expenses
Total personnel expenses
2,029
223
804
3,056
8,893
465
2,553
11,911
10,922
688
3,357
14,967
For the year ended December 31, 2020 (amounts in thousands of euros)
R&D
Clinical studies
Total
Wages and salaries
Share-based payments (employees and executive management)
Social security expenses
Total personnel expenses
1,579
24
665
2,268
9,886
507
2,968
13,361
11,465
531
3,633
15,629
The increase in personnel expenses is mainly due to an increase in research and development employee headcount. The weighted average full-time
employees (FTE) was 99 in 2018, 156 in 2019 and 166 in 2020.
3.3.2. General and administrative expenses
General and administrative expenses (amounts in thousands of euros)
12/31/2018
12/31/2019
12/31/2020
Wages and salaries
Share-based payments (employees and executive management)
Social security expenses
Total personnel expenses
3,721
849
1,355
5,925
4,376
522
1,433
6,331
4,393
532
1,648
6,573
The weighted average full-time employees (FTE) was 39 in 2018, 41 in 2019 and 41 in 2020.
F-16
3.3.3.
Share-based payments (IFRS 2)
Accounting policies
The Company has applied IFRS 2 Share-based payment (“IFRS 2”) to all equity instruments e.g. free shares (“AGA”), stock options (“SO”), share
subscription warrants (“BSA”) and founder subscription warrants (“BSPCE”) granted since inception to its employees, members of the Board of
Directors or other individuals. Pursuant to IFRS 2, the cost of the remuneration granted with equity instruments is recognized as an expense in exchange
for an increase in the shareholders’ equity for the vesting period during which the rights to be enjoyed from the equity instruments are acquired. As such,
changes in value subsequent to the grant date have no effect on this initial measurement.
Fair value is estimated using the Black & Scholes valuation model (for BSA, SO and BSPCE valuation) and Monte-Carlo valuation model (for AGA
valuation). These models allow the Company to take into account the characteristics of the plan (exercise price, vesting period), the market data at the
grant date (volatility, expected dividends, repo margin), possible performance conditions attached to warrants and recipient behavior assumptions.
The Company has no legal or constructive obligation to repurchase or settle any of these equity instruments in cash.
Founder subscription warrants (“BSPCE”) plan
Types of securities
Maturity
BSPCE2012
BSPCE2014
May 20, 2020
January 22, 2024
to which he subscribed
In the event of a beneficiary departure from the Company for any reason whatsoever, this beneficiary shall retain the BSPCE
prior to his departure. However, in the event of a beneficiary departure from the Company, for any reason whatsoever, prior to subscription of the
BSPCE2014 to which the beneficiary has a right, the BSPCE2014 will be forfeited. In this situation, the BSPCE2014 not subscribed may be re-allocated to
other beneficiaries within the same category and/or replacing the person who left the Company.
2014
Share subscription warrants (“BSA”) plan
Types of securities
BSA2012
BSA2014
BSA2016
BSA2017
BSA2019
Vesting period
NA
NA
Maturity
May-2020
January-2024
Tranche 1 : 1 year
Tranche 2 : 2 years
Tranche 1 : 1 year
Tranche 2 : 2 years
Tranche 3 : 3 years
Depending of the grant
date
October-2021
January-2022
Depending of the grant
date
June-2022
January-2023
2 years
October-2022
F-17
The main assumptions used to determine the fair value of the plans granted in 2018, 2019 and 2020 are:
Number of warrants
Exercise price
Price of the underlying share
Expected dividends
Volatility (1)
Expected term
Fair value of the plan (in thousands of euros) (2)
Grant in January 2018
Grant in October 2019
40,500 BSA2017
75,000 BSA2019
€
€
€
€
18.00
18.00
0.00 %
43.94 %
T1 : 5.5 years
T2 : 6 years
T3 : 6.5 years
300
3.71
3.78
0.00 %
33.41 %
2.5 years
59
(1) based on the historical volatility observed on the ERYP index on Euronext
(2) BSA were granted at fair value in October 2019. Therefore, no expense was recognized under IFRS 2.
Stock options (“SO”) plan
Types of securities
SO2016
SO2017
SO2018
SO2019
SO2020
Vesting period (identical for all
plans)
Maturity
Depending of the
grant date
October-2026
January-2027
June-2027
October-2027
Depending of the
grant date
June-2027
January-2028
Tranche 1: 2 years
Tranche 2: 3 years
Depending of the
grant date
September-2028
January-2029
April-2029
The main assumptions used to determine the fair value of the plans granted in 2018, 2019 and 2020 are:
Depending of the
grant date
July-2029
October-2029
Depending of the
grant date
February-2030
July-2030
Number of options
Exercise price
Price of the underlying share
Expected dividends
Volatility (1)
Expected term
Fair value of the plan (in thousands of euros)
Number of options
Exercise price
Price of the underlying share
Expected dividends
Volatility (1)
Expected term
€
€
€
€
Grant in
January 2018
Grant in September
2018
Grant in
January 2019
97,203 SO2017
24,000 SO2018
38,025 SO2018
€
€
18.00
18.00
0.00 %
43.94 %
9.26
8.75
€
€
0.00 %
41.59 %
T1 : 6 years
T2 : 6.5 years
6.38
6.38
0.00 %
41.88 %
731
80
97
Grant in
April 2019
Grant in
July 2019
Grant in
October 2019
76,905 SO2018
59,123 SO2019
347,250 SO2019
7.20
7.20
€
€
0.00 %
41.65 %
5.78
5.81
€
€
0.00 %
41.00 %
T1 : 6 years
T2 : 6.5 years
4.25
3.78
0.00 %
40.69 %
Fair value of the plan (in thousands of euros)
217
131
447
F-18
Number of options
Exercise price
Price of the underlying share
Expected dividends
Volatility (1)
Expected term
Grant in February
2020
Grant in
July 2020
Grant in November
2020
41,950 SO2019
374,000 SO2020
75,000 SO2020
€
€
5.87
5.51
€
€
0.00 %
41.35 %
6.88
6.56
€
€
0.00 %
43.41 %
T1: 6 years
T2 : 6.5 years
6.14
6.37
0.00 %
44.32 %
Fair value of the plan (in thousands of euros)
84
951
199
(1) based on the historical volatility observed on the ERYP index on Euronext
Free shares (“AGA”) plan
Types of securities
Vesting period
AGA2017
AGA2018
AGA2019
AGA2020
Tranche 1:1 year
Tranche 2: 2 years
Tranche 3: 3 years
Tranche 1: 1 year
Tranche 2: 2 years
Tranche 3: 3 years
Tranche 4 : 4 years
Tranche 5 : 5 years
The main assumptions used to determine the fair value of the plans granted in 2018, 2019 and 2020 are:
Number of shares
Price of the underlying share
Expected dividends
Volatility
Repo margin
Maturity
Performance criteria
ERYP
Performance multiple ("PM")
Fair value of the plan (in thousands of euros)
Number of shares
Price of the underlying share
Expected dividends
Volatility
Repo margin
Maturity
Performance criteria
ERYP
Performance multiple ("PM")
Fair value of the plan (in thousands of euros)
Grant in January 2018
Grant in January 2019
Grant in April 2019
40,500 AGA2016
113,940 AGA2017
36,150 AGA2018
94,200 AGA2018
€
€
18.00
€
6.38
€
0.00 %
42.17 %
5.00 %
3 years
(2)
20.12
2
1,145
€
0.00 %
38.22 %
5.00 %
3 years
(2)
6.54
2
102
€
7.20
0.00 %
36.32 %
5.00 %
3 years
(2)
7.52
2
269
Grant in October 2019
Grant in February 2020
Grant in July 2020
300,941 AGA2019
50,037 AGA2019
250,012 AGA2020
€
€
3.78
€
5.51
€
0.00 %
38.76 %
5.00 %
5 years
(2)
4.25
3
434
€
0.00 %
38.55 %
5.00 %
5 years
(2)
5.87
2.17
133
€
6.56
0.00 %
42.23 %
5.00 %
5 years
(2)
6.88
2
877
(1) based on the historical volatility observed on the ERYP index on Euronext
F-19
(2) performance criteria: progression of the quoted market share price between the grant date and the tranche acquisition date
•
Tri: (ERYPi - ERYP) / (ERYP x (PM – 1)) with ERYPi:
◦
average price of the 40-quoted market share price days before the acquisition date for grants until April 2019 ;
◦ maximum between the share price at the acquisition date and the average price of the 20-quoted market share price days before the grant
date discounted by 5% for grants from October 2019.
If TRi <=0% no shares granted are acquired
If Tri>100% all the shares granted are acquired
If 0%20%: 95% x (3bis) + [(8) - 15%]x (3bis)
11
Nominal value of the Share
Provided that (10)>(11), number of Shares to be issued:
(2) / (10) (rounded down to the nearest whole number)
Provided that (11)>(10), number of Shares to be issued:
(2) / (11) (rounded down to the nearest whole number)
12
EUR [0.10]
[·]
It is reminded that pursuant to the Agreement, the present notification shall be deemed received and confirmed by the Issuer twenty-four (24) hours after
sending.
Sincerely,
[Name of the Note holder]
24
CHARACTERISTICS OF THE WARRANTS
Schedule 6
1. Form
The Warrants shall be in registered form. Evidence of the rights of any Warrant holder shall be given by an inscription in its name in an account
kept by the Issuer in accordance with applicable laws and regulations.
2. Enjoyment
Subject to the terms and conditions of this Agreement, the Warrants are issued with full rights of enjoyment as from the date of their detachment
from the Notes to which they are attached (i.e. as from the date of the subscription of the relevant Notes).
3. Assignment, transfer and absence of admission to trading of the Warrants
3.1 The Warrants may be assigned or transferred without the prior consent of the Issuer, only to Affiliates of the Investor, subject to the prior
information of the Issuer and being provided that such Affiliate undertakes irrevocably, prior to this transfer, to retrocede the Warrants in question
and/or the Shares issued pursuant to the exercise of such Warrants to the Investor when this Affiliate ceases to be an Affiliate of the Investor.
3.2 To be effective vis-à-vis the Issuer and third parties, any transfer of Warrants shall be registered in the securities accounts and the transferor of any
Warrants shall be deemed to be the holder of such Warrants until the name of the transferee is entered into the securities accounts in respect
thereof.
3.3 Any transferee that becomes a Warrant holder, by whatever means and for whatever reason, shall have the benefit of, and be subject to, all of the
rights and obligations arising under this Agreement, provided that such permitted transferee shall represent that it falls within the category of
investors described in the EGM Resolution and to which the Note Warrants issuance has been reserved to (i.e. that the Investor is a natural or legal
person, including company, trust or investment fund, organized under French or foreign law, that regularly invest in the pharmaceutical,
biotechnological or medical technology sector).
3.4 The Warrants will not be admitted to trading on any financial market.
4. Term
The Warrants shall become automatically null and void sixty (60) months after their issuance date.
5. Exercise
5.1 Exercise of the Warrants into Shares of the Issuer; Exercise Period
Each Warrant holder shall have the right at its option, and effective at any time prior to the Warrant's term (the "Warrant Exercise Period"), to
exercise all or any of the Warrants into newly issued Shares in bearer form.
Each Warrant holder is allowed to make multiple exercises of Warrants.
5.2 Exercise Date; Exercise Notice
Each Warrant holder may exercise all or part of its Warrants on any Trading Day of its choice by delivering to the Issuer an exercise notice to the Issuer
(the "Warrant Exercise Notice") using the form attached in Schedule 7. The exercise date of the Warrants shall be the date of delivery of the Warrant
Exercise Notice (the "Warrant Exercise Date") during the Warrant Exercise Period.
The Issuer, after updating the securities account where the Warrants are registered, shall in turn send a notice to the Agent for the issuance of new
Shares to the relevant Warrant holder.
5.3 Exercise Ratio - Exercise Price
Each Warrant will give right to one (1) Share (the "Warrant Exercise Ratio") subject to any adjustment made in accordance with Paragraph 7 of this
Schedule 6.
The new Shares resulting from the exercise of the Warrants shall be issued upon payment in cash by the relevant Warrant holder of the Warrant
Exercise Price.
Such exercise shall not require the payment of any additional fee or charge by the relevant Warrant holder.
25
The Issuer shall promptly deliver freely tradable Shares to the relevant Warrant holder upon each exercise of Warrant(s). The issuance of the Shares
and their admission to trading on Euronext Paris shall occur no later than two (2) Trading Days after the Warrant Exercise Date. The reception of the
Warrant Exercise Price shall occur no later than 3pm Paris time two (2) trading days after the Warrant Exercise Date.
Subject to the right of the Issuer to use an existing additional delegation to the Board of Directors granted by another shareholders' general meeting of
the Issuer than the EGM in order to continue the financing program (in which case the Parties shall agree in good faith to amend the Agreement and
the Warrants to the extent necessary), if the Issuer does not have sufficient shareholders' authorizations available to issue new Shares to a Warrant
holder upon exercise of a Warrant, the exercised Warrant shall be acquired by the Issuer, on the Trading Day following the relevant Warrant Exercise
Date, for a price equal to (i) the Warrant Exercise Ratio multiplied by (ii) the difference between (a) the closing price of the Share on the day prior to
the Warrant Exercise Date and (b) the Warrant Exercise Price, as the case may be, divided by the Warrant Exercise Ratio. Such acquired Warrants shall
be cancelled by the Issuer.
Any payment to a Warrant holder made by the Issuer in accordance with Paragraph 5.3 of this Schedule 6 shall be made by the Issuer to the relevant
Warrant holder in cash, by wire transfer to a bank account notified by the relevant Warrant holder to the Issuer, in immediately available, freely
transferable funds in Euros.
5.4 Rights attached to the Shares
The new Shares issued upon exercise of Warrant(s) shall be subject to all provisions of the By- Laws and to decisions of the general meetings of the
shareholders of the Issuer. The new Shares shall be admitted to trading on Euronext Paris as from their issuance, will carry immediate and current
dividend rights ("jouissance courante") and will be fully assimilated to and fungible with the existing Shares.
6. Representation of the Warrant holders
6.1 As long as the Warrants are held by a single holder, such holder shall exercise under its own name all rights and powers granted by the French
Commercial Code to the "Masse" within the meaning of Article L. 228-103 of the French Commercial Code.
6.2 As soon as the Warrants having the same characteristics and being fungible are held by more than one holder, the holders shall appoint a
representative of the "Masse" in accordance with Articles L. 228-47 and L. 228-103 of the French Commercial Code.
For the avoidance of doubt, if certain of the Warrants no longer have the same characteristics, there will be several "Masses".
6.3 Where applicable, the rights of Warrant holders will be exercised in accordance with Article L. 228-103 paragraph 1 of the French Commercial
Code.
7. Protection of the Warrant holders
7.1 Upon completion of any of the following transactions:
1.
2.
3.
4.
5.
6.
7.
8.
9.
issue of securities carrying a preferential subscription right to shareholders,
increase in share capital by capitalisation of reserves, profits or share premia, and by distribution of free shares, or stock split or
reverse stock split,
in the event that a nominal value is assigned to the Shares, an increase in share capital of the Issuer, without issuing Shares, by
capitalisation of reserves, profits or share premia by increasing the nominal value of the Shares,
distribution of reserves in cash or in kind or a share premium,
allotment of bonus financial instruments other than Shares,
merger by acquisition (fusion par absorption), merger (fusion par création d'une nouvelle société), spin-off, division (scission) of the
Issuer,
buy-back of own Shares at a price that is higher than the Share price,
amortisation in share capital of the Issuer,
modification of the Issuer's allocation of its profits,
which the Issuer may carry out after the detachment date of the Warrants, the rights of the Warrants holders will be protected by adjusting the
Warrant Exercise Ratio and the Warrant Exercise Price in accordance with the following provisions.
In the event of an adjustment carried out in accordance with conditions 1 to 9 below, the new Warrant Exercise Ratio or Warrant Exercise Price
will be determined to one decimal place and rounded down to the nearest 10th (0.15 being
26
rounded up to the next highest 10th). Any subsequent adjustments will be carried out on the basis of such newly calculated and rounded Warrant
Exercise Ratio. However, the Warrants can only result in the delivery of a whole number of Shares.
1.
In the event of a financial transaction, conferring a preferential subscription right to existing shareholders, the new Warrant Exercise Ratio will be
determined by multiplying the Warrant Exercise Ratio in effect prior to the relevant transaction by the following formula:
share value ex-subscription right plus the value of the subscription right
share value ex-subscription right
For the purposes of calculating this formula, the values of the share ex-subscription right and of the subscription right will be determined on the
basis of the average of the opening prices of the Shares on Euronext Paris (as reported by Bloomberg) falling in the subscription period during
which the Shares and the subscription rights are listed simultaneously.
2.
In the event of an increase in share capital of the Issuer by capitalisation of reserves, profits or share premia and by distribution of free shares, or
in the event of a stock split or a reverse stock split the new Warrant Exercise Ratio will be determined by multiplying the Warrant Exercise Ratio
in effect prior to the relevant transaction by the following formula:
Number of shares after the transaction
Number of shares existing before the transaction
3.
4.
5.
•
In the event of an increase in share capital of the Issuer without Shares being issued by means of a capitalisation of reserves, profits or share
premia performed by increasing the nominal value of the Shares, the nominal value of the Shares which may be delivered to the Warrants holders
upon exercise of their Warrants will be increased accordingly.
In the event of the distribution by the Issuer of reserves in cash or in kind or a share premium, the new Warrant Exercise Ratio will be determined
by multiplying the Warrant Exercise Ratio in effect prior to the relevant transaction by the following formula:
1
1 -
Amount of the distribution per share
Value of the share before distribution
For the purposes of calculating this formula, the value of the Shares before distribution will be determined on the basis of the weighted average of
the prices on Euronext Paris over the last three (3) Trading Days before the distribution.
In the event of an allotment of bonus financial instruments other than Shares of the Issuer, the new Warrant Exercise Ratio will be determined as
follows:
If the right to receive financial instruments is listed on Euronext Paris, the new Warrant Exercise Ratio will be determined by multiplying the
Warrant Exercise Ratio in effect prior to the relevant transaction by the following formula:
1 +
Price of the right to receive financial instruments
Share price ex-right
For the purposes of calculating this formula, the prices of the Shares ex-right and of the rights to receive financial instruments will be determined
on the basis of the weighted average of the prices on Euronext Paris over the first three (3) Trading Days as from the detachment of the financial
instruments.
If the right to receive financial instruments is not listed on Euronext Paris, the new Warrant Exercise Ratio will be determined by multiplying the
Warrant Exercise Ratio in effect prior to the relevant transaction by the following formula:
•
1 +
Value of the financial instruments allocated to each shares
Share price ex-right
For the purposes of calculating this formula, the price of the Shares ex-right and the value of the financial instruments will be determined on the
basis of the weighted average of the prices on Euronext Paris over the first three (3) Trading Days as from the detachment of the financial
instruments.
27
If the financial instruments allocated are not listed on Euronext Paris, their value shall be evaluated in an independent expert's certificate. This
certificate shall be produced by an expert of international repute appointed by the Issuer, whose opinion shall not be subject to appeal.
6.
In the event of merger by acquisition (fusion par absorption) of the Issuer by another company or of merger of the Issuer with one or more other
companies to create a new company (fusion par création d'une nouvelle société), or in the event of a division (scission) or spin-off of the Issuer,
the Warrants may be exercised into shares of the acquiring or new company or the companies resulting from any division or spin-off
The new Warrant Exercise Ratio shall be determined by adjusting the Warrant Exercise Ratio in effect before such event by the exchange ratio of
the Issuer's Shares against the shares of the acquiring or new company or companies resulting from any division or spin-off. These companies shall
be substituted to the Issuer in order to apply the above adjustment, the purpose being to maintain, where applicable, the rights of the Warrants
holders in the event of financial or securities transactions, and, generally to ensure that the rights of the Warrants holders are guaranteed under the
legal, regulatory and contractual conditions.
7.
In the event that the Issuer makes an offer to the shareholders to buy-back its own Shares at a price that is higher than the Share price, the new
Warrant Exercise Ratio will be determined by multiplying the Warrant Exercise Ratio in effect by the following formula calculated to the nearest
100th of a Share:
Share value + pc% x (buy-back price - share value)
Share value
For the purposes of calculating this formula:
"Share value" means the volume-weighted average of the prices of the Shares listed on Euronext Paris during the three last trading days
preceding the buyback (or the ability of buyback).
"Pc%" means the percentage of the share capital of the Issuer that has been bought back.
"Buy-back price" means the effective price of the Shares bought-back (which is by definition higher than the Share value).
8.
In the event of an amortisation in share capital of the Issuer, the new Warrant Exercise Ratio will be determined by multiplying the Warrant
Exercise Ratio in effect prior to the relevant transaction by the following formula:
1
1 -
Amount of amortisation per share
Value of the share before amortisation
For the purposes of calculating this formula, the value of the Share before the amortisation will be determined on the basis of the volume-weighted
average of the prices of the Share on Euronext Paris over the last three (3) Trading Days immediately prior to the date of the amortisation.
9.
In the event of the modification by the Issuer of the allocation of its profits as a result of the issue of preference shares, the new Warrant Exercise
Ratio will be determined by multiplying the Warrant Exercise Ratio in effect prior to the preference share issue date by the following formula:
1
1 -
Reduction of the profit right per share
Value of the share before modification
For the purposes of calculating this formula, the Share price before the modification of the allocation of profits will be determined on the basis of
the volume-weighted average of the prices of the Share on Euronext Paris over the last three (3) Trading Days immediately prior to the date of the
modification.
7.2 Any Warrants holder exercising its rights may subscribe to a number of Shares, which is calculated by multiplying the Warrant Exercise Ratio
in effect at such time by the number of the Warrants exercised. If the Shares are listed and if the number of Shares calculated in this manner is
not a whole number, a Warrant holder shall receive:
•
either the nearest whole number of Shares immediately less than its entitlement and will receive a payment equal to the value of such
additional fraction of a Share calculated on the basis of the closing Share price listed on Euronext Paris on the Warrant Exercise Date;
28
•
or the nearest whole number of shares immediately more than its entitlement and will provide a payment equal to the value of such
additional fraction of a Share calculated on the basis of the closing Share price listed on Euronext Paris on the Warrant Exercise Date.
Notwithstanding the above, the Issuer shall not be permitted, without the prior authorisation of the Warrants holder(s), to change its legal form or
corporate purpose.
29
FORM OF WARRANT EXERCISE NOTICE
Schedule 7
VIA EMAIL
Erytech Pharma SA
Attention to: Gil Beyen, Eric Soyer and Brian Schwab
E-mail addresses: gil.beyen@erytech.com, eric.soyer@erytech.com and brian.schwab@erytech.com
Phone number: +33 04 78 74 44 38
Copy to:
CM-CIC Banque Transatlantique
Attention to: Antoine Debourdon, Mireille Lucas and Thibault De Coussemaker
E-mail addresses:
antoine.debourbon@banquetransatlantique.com
mireille.lucas@banquetransatlantique.com
thibault.decoussemaker@banquetransatlantique.com
Please find below the Warrant Exercise Notice pursuant to the agreement for the issuance of and subscription to warrants giving access to notes
convertible into new and/or existing shares of the Issuer with share subscription warrants attached dated June 24, 2020 (the "Agreement").
All terms written with a capital initial letter shall have the definition ascribed to them in the Agreement.
1
2
3
4
Number of Warrants exercised
Number of Shares to which the Warrants exercised give acces
Warrant Exercise Price
Global subscription price of the Shares: (3)x(1)
[-] Warrants
[-] Shares
EUR [-]
EUR [-]
The global subscription price of the Shares shall be wired on the Issuer's bank account opened with
Société Générale, whose details are as follows:
IBAN: FR76 3000 3022 8100 0203 5389 678
BIC: SOGEFRPP
It is reminded that pursuant to the Agreement, the present notification shall be deemed received and confirmed by the Issuer twenty-four (24) hours after
sending.
Sincerely,
[Name of the Warrant holder]
30
INVESTOR CALL NOTICE FOR THE ISSUANCE OF A TRANCHE OF NOTES
Schedule 8
VIA EMAIL
To:
Erytech Pharma SA
Attention to: Gil Beyen, Eric Soyer and Brian Schwab
E-mail addresses: gil.beyen@erytech.com, eric.soyer@erytech.com and brian.schwab@erytech.com
Phone number: +33 04 78 74 44 38
Dear Sir,
We refer to the agreement for the issuance of and subscription to warrants giving access to notes convertible into new and/or existing shares of the Issuer
with share subscription warrants attached dated June 24, 2020 (the "Agreement").
All terms written with a capital initial letter shall have the definition ascribed to them in the Agreement.
We hereby exercise our Investor Call, for the issuance of a Tranche of Notes upon exercise of Note Warrants, amounting to a principal amount of [three
million/one million five hundred thousand Euros (EUR 3,000,000/1,500,000)]. Please send a Request in this respect, in accordance with the terms of
Clause 3.2 of the Agreement.
On [-], in [-].
Sincerely,
European High Growth Opportunities Securitization Fund,
Represented by European High Growth Opportunities Manco SA
31
Schedule 9
REQUEST FOR THE ISSUANCE OF A TRANCHE OF NOTES
THROUGH THE EXERCISE OF NOTE WARRANTS
VIA EMAIL
To:
European High Growth Opportunities Securitization Fund
Address: c/o European High Growth Opportunities Manco SA, 18, rue Robert Stümper, 2557
Luxembourg
Attention to: Pierre Vannineuse
E-mail address: p.vannineuse@abo.co
Copy to: Hugo Pingray and Amaury Mamou-Mani
E-mail addresses: h.pingray@abo.co and a.mamou-mani@abo.co
Dear Sirs,
We refer to the agreement for the issuance of and subscription to warrants giving access to notes convertible into new and/or existing shares of the Issuer
with share subscription warrants attached dated June 24, 2020 (the "Agreement").
All terms written with a capital initial letter shall have the definition ascribed to them in the Agreement.
The conditions set out in Clause 3.4 of the Agreement being satisfied (or waived by the Investor), we hereby submit a Request, in accordance with
Clause 3.1 of the Agreement, for the issuance of a Tranche of Notes amounting to a principal amount of three million Euros (EUR 3,000,000) through
the exercise of sixty (60) Note Warrants.
We also inform you that the Fair Market Value of the Warrants (as computed by the Issuer per standard Black & Scholes valuation model as of the date of
this Request) is equal to EUR [·].
On [-], in [-].
Sincerely,
Erytech Pharma SA
Mr. Gil Beyen
in his capacity as Chief Executive Officer (Directeur Général)
32
Exhibit 12.1
CERTIFICATION BY THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECURITIES EXCHANGE ACT RULES 13a-
14(a) and 15d - 14(a) AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Gil Beyen, certify that:
1. I have reviewed this annual report on Form 20-F of ERYTECH Pharma S.A. (the “Company”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for
the Company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the
annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
5. The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting.
Date: March 8, 2021
/s/ Gil Beyen
Name: Gil Beyen
Title:
Chief Executive Officer
(Principal Executive Officer)
1
Exhibit 12.2
CERTIFICATION BY THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECURITIES EXCHANGE ACT RULES 13a - 14(a)
AND 15(d)-14(a) as ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Eric Soyer, certify that:
1. I have reviewed this annual report on Form 20-F of ERYTECH Pharma S.A. (the “Company”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for
the Company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the
annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
5. The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting.
Date: March 8, 2021
/s/ Eric Soyer
Name:
Eric Soyer
Title:
Chief Financial Officer, Chief Operating Officer and
Deputy General Manager (Principal Financial
Officer)
1
Exhibit 13.1
CERTIFICATION BY THE PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S.C
SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of
Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Gil Beyen, Chief Executive Officer of ERYTECH Pharma S.A. (the “Company”), and
Eric Soyer, Chief Financial Officer, Chief Operating Officer and Deputy General Manager of the Company, each hereby certifies that, to the best of his
knowledge:
(1) The Company’s Annual Report on Form 20-F for the year ended December 31, 2020, to which this Certification is attached as Exhibit 13.1 (the
“Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 8, 2021
/s/ Gil Beyen
Name: Gil Beyen
Title:
Chief Executive Officer
(Principal Executive Officer)
/s/ Eric Soyer
Name: Eric Soyer
Title:
Chief Financial Officer, Chief Operating Officer and Deputy General
Manager
(Principal Financial Officer)
1
Exhibit 15.1
Consent of independent Registered Public Accounting Firm
The Board of Directors,
We consent to the incorporation by reference in the registration statements nos. 333-239429, 333-232670 and 333-222673 on Form S-8 and no. 333-248953
on Form F-3 of Erytech Pharma S.A. of our report dated March 8, 2021, with respect to the consolidated statements of financial position of Erytech Pharma
S.A. and its subsidiary as of December 31, 2020, 2019 and 2018, and the related consolidated statements of income (loss), comprehensive income (loss),
changes in shareholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes (collectively,
the “consolidated financial statements”), which report appears in the Annual Report on Form 20-F of Erytech Pharma S.A. for the year ended December
31, 2020.
Our report dated March 8, 2021, refers to the change in Erytech Pharma S.A.’s method of accounting for leases on January 1, 2019, due to the adoption of
IFRS 16 "Leases".
Lyon, March 8, 2021
KPMG Audit
A division of KPMG S.A.
Stéphane Devin
Partner
1