|
The Netherlands
(State or other jurisdiction of incorporation or organization) |
| |
3711
(Primary Standard Industrial Classification Code Number) |
| |
N/A
(IRS Employer Identification Number) |
|
| | |
Underwriting
Discounts and Commissions(1) |
| |
Proceeds to
Sono Group N.V. |
| ||||||
Offering price to public
|
| | | $ | | | | | $ | | | ||
Underwriting discounts and commissions(1)
|
| | | $ | | | | | $ | | | ||
Proceeds to Sono Group N.V.
|
| | | $ | | | | | $ | | | |
|
BERENBERG
|
| | | |
|
CRAIG-HALLUM
|
| | | |
| | |
Page
|
| |||
| | | | ii | | | |
| | | | iii | | | |
| | | | iii | | | |
| | | | iv | | | |
| | | | iv | | | |
| | | | 1 | | | |
| | | | 14 | | | |
| | | | 16 | | | |
| | | | 21 | | | |
| | | | 65 | | | |
| | | | 69 | | | |
| | | | 71 | | | |
| | | | 73 | | | |
| | | | 75 | | | |
| | | | 78 | | |
| | |
For the year
ended December 31, |
| |
For the six months
ended June 30, |
| ||||||||||||||||||
|
2020
|
| |
2019(1)
|
| |
2021
|
| |
2020
|
| ||||||||||||||
|
(in € millions)
|
| |
(in € millions)
|
| ||||||||||||||||||||
Revenue
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Cost of sales
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gross profit
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Cost of research and development
|
| | | | (30.5) | | | | | | (4.9) | | | | | | (13.5) | | | | | | (6.4) | | |
Selling and distribution expenses
|
| | | | (9.1) | | | | | | (2.1) | | | | | | (1.6) | | | | | | (1.1) | | |
General and administrative expenses
|
| | | | (14.4) | | | | | | (2.4) | | | | | | (8.3) | | | | | | (1.5) | | |
Other operating income/expenses
|
| | | | (0.0) | | | | | | 0.2 | | | | | | 0.4 | | | | | | 0.1 | | |
Impairment losses on financial assets
|
| | | | (0.0) | | | | | | — | | | | | | (0) | | | | | | (0) | | |
Operating loss
|
| | | | (54.0) | | | | | | (9.3) | | | | | | (23.0) | | | | | | (8.9) | | |
Other interest and similar income
|
| | | | 0.0 | | | | | | — | | | | | | — | | | | | | 0 | | |
Interest and other expenses
|
| | | | (2.0) | | | | | | (0.7) | | | | | | (2.6) | | | | | | (0.9) | | |
Loss before tax
|
| | | | (56.0) | | | | | | (10.0) | | | | | | (25.6) | | | | | | (9.8) | | |
Tax on income
|
| | | | — | | | | | | — | | | | | | 0 | | | | | | 0 | | |
Deferred taxes on expense
|
| | | | — | | | | | | — | | | | | | (0) | | | | | | — | | |
Loss for the period
|
| | |
|
(56.0)
|
| | | |
|
(10.0)
|
| | | |
|
(25.7)
|
| | | |
|
(9.8)
|
| |
Other comprehensive loss
|
| | | | (0) | | | | | | — | | | | | | (0.1) | | | | | | — | | |
Total comprehensive loss for the period
|
| | | | (56.0) | | | | | | (10.0) | | | | | | (25.8) | | | | | | (9.8) | | |
Earnings (loss) per share in € | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic/diluted
|
| |
(1.66)/(1.66)
|
| |
(0.30)/(0.30)
|
| |
(0.79)/(0.79)
|
| |
(0.29)/(0.29)
|
| ||||||||||||
Weighted average number of shares for calculation of earnings per share
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Basic/diluted
|
| | | | 33,733,462 | | | | | | 33,251,883 | | | | | | 32,367,901 | | | | | | 33,588,000 | | |
| | |
For the year
ended December 31, |
| |
For the six months
ended June 30, |
| ||||||||||||||||||
|
2020
|
| |
2019(1)
|
| |
2021
|
| |
2020
|
| ||||||||||||||
|
(in € millions)
|
| |
(in € millions)
|
| ||||||||||||||||||||
Net cash flows from operating activities
|
| | | | (1.2) | | | | | | (8.8) | | | | | | (17.8) | | | | | | 11.9 | | |
Net cash flows from investing activities
|
| | | | (0) | | | | | | (1.1) | | | | | | (0.5) | | | | | | (0) | | |
Net cash flows from financing activities
|
| | | | 44.1 | | | | | | 8.8 | | | | | | 1.2 | | | | | | 3.1 | | |
Net (decrease) increase in cash and cash equivalents
|
| | | | 42.9 | | | | | | (1.1) | | | | | | (17.1) | | | | | | 15.0 | | |
Cash and cash equivalents at the beginning of the financial year
|
| | | | 0.4 | | | | | | 1.5 | | | | | | 43.3 | | | | | | 0.4 | | |
Cash and cash equivalents at end of year
|
| | | | 43.3 | | | | | | 0.4 | | | | | | 26.1 | | | | | | 15.4 | | |
| | |
As of
December 31, |
| |
As of
June 30, |
| ||||||||||||
|
2020
|
| |
2019(1)
|
| |
2021
|
| |||||||||||
|
(in € millions)
|
| |
(in € millions)
|
| ||||||||||||||
Total noncurrent assets
|
| | | | 4.1 | | | | | | 4.8 | | | | | | 4.1 | | |
Total current assets
|
| | | | 49.2 | | | | | | 0.9 | | | | | | 34.6 | | |
Total assets
|
| | | | 53.3 | | | | | | 5.7 | | | | | | 38.6 | | |
Total equity
|
| | | | (5.0) | | | | | | (18.6) | | | | | | (28.1) | | |
Total liabilities
|
| | | | 58.4 | | | | | | 24.3 | | | | | | 66.8 | | |
Total equity and liabilities
|
| | | | 53.3 | | | | | | 5.7 | | | | | | 38.6 | | |
| | |
As of June 30, 2021
|
| |||||||||
| | |
Actual
|
| |
Pro forma
|
| |
Pro forma as
adjusted(1) |
| |||
| | |
(in € millions)
|
| |||||||||
Cash and cash equivalents
|
| | | | 26.1 | | | | | | | | |
Long-term debt (including current portion)
|
| | | | 14.4 | | | | | ||||
Equity: | | | | | | | | | | | | | |
Subscribed capital
|
| | | | 6.5 | | | | | | | | |
Capital and other reserves
|
| | | | 74.2 | | | | | | | | |
Accumulated deficit
|
| | | | (108.8) | | | | | | | | |
Total equity
|
| | | | (28.1) | | | | | | | | |
Total capitalization
|
| | |
|
(13.7)
|
| | | | | | | |
| | |
No exercise
|
| |
Full exercise
|
| ||||||
| | |
(in €)
|
| |
(in $)
|
| |
(in €)
|
| |
(in $)
|
|
Assumed initial public offering price per common share
|
| | | | | | | | | | | | |
Historical net tangible book value as of June 30, 2021 per common share
|
| | | | | | | | | | | | |
Pro forma net tangible book value as of June 30, 2021 per common
share after giving effect to the full conversion of the mandatory convertible senior notes |
| | | | | | | | | | | | |
Increase in pro forma net tangible book value attributable to new investors purchasing common shares in this offering
|
| | | | | | | | | | | | |
Pro forma as adjusted net tangible book value as of June 30, 2021 per common share after giving effect to the full conversion of the mandatory convertible senior notes and the offering
|
| | | | | | | | | | | | |
Dilution to new investors per common share
|
| | | | | | | | | | | | |
| | |
For the year ended
December 31, |
| |
For the six month ended
June 30, |
| ||||||||||||||||||
| | |
2020
|
| |
2019(1)
|
| |
2021
|
| |
2020
|
| ||||||||||||
| | |
(in € millions)
|
| |
(in € millions)
|
| ||||||||||||||||||
Revenue
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Cost of sales
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gross profit
|
| | |
|
—
|
| | | | | — | | | | | | — | | | | | | — | | |
Cost of research and development
|
| | | | (30.5) | | | | | | (4.9) | | | | | | (13.5) | | | | | | (6.4) | | |
Selling and distribution expenses
|
| | | | (9.1) | | | | | | (2.1) | | | | | | (1.6) | | | | | | (1.1) | | |
General and administrative expenses
|
| | | | (14.4) | | | | | | (2.4) | | | | | | (8.3) | | | | | | (1.5) | | |
Other operating income/expenses
|
| | | | (0.0) | | | | | | 0.2 | | | | | | 0.4 | | | | | | 0.1 | | |
Impairment losses on financial assets
|
| | | | (0.0) | | | | | | — | | | | | | (0) | | | | | | (0) | | |
Operating loss
|
| | | | (54.0) | | | | | | (9.3) | | | | | | (23.0) | | | | | | (8.9) | | |
Other interest and similar income
|
| | | | 0.0 | | | | | | — | | | | | | — | | | | | | 0 | | |
Interest and other expenses
|
| | | | (2.0) | | | | | | (0.7) | | | | | | (2.6) | | | | | | (0.9) | | |
Loss before tax
|
| | | | (56.0) | | | | | | (10.0) | | | | | | (25.6) | | | | | | (9.8) | | |
Tax on income
|
| | | | — | | | | | | — | | | | | | 0 | | | | | | 0 | | |
Deferred taxes on expense
|
| | | | — | | | | | | — | | | | | | (0) | | | | | | — | | |
Loss for the period
|
| | | | (56.0) | | | | | | (10.0) | | | | | | (25.7) | | | | | | (9.8) | | |
Other comprehensive loss
|
| | | | (0) | | | | | | — | | | | | | (0.1) | | | | | | — | | |
Total comprehensive loss for the period
|
| | | | (56.0) | | | | | | (10.0) | | | | | | (25.8) | | | | | | (9.8) | | |
| | |
For the year ended
December 31, |
| |
For the six months
ended June 30 |
| ||||||||||||||||||
| | |
2020
|
| |
2019(1)
|
| |
2021
|
| |
2020
|
| ||||||||||||
| | |
(in € millions)
|
| |
(in € millions)
|
| ||||||||||||||||||
Net cash flows from operating activities
|
| | | | (1.2) | | | | | | (8.8) | | | | | | (17.8) | | | | | | 11.9 | | |
Net cash flows from investing activities
|
| | | | (0) | | | | | | (1.1) | | | | | | (0.5) | | | | | | (0) | | |
Net cash flows from financing activities
|
| | | | 44.1 | | | | | | 8.8 | | | | | | 1.2 | | | | | | 3.1 | | |
Net (decrease) increase in cash and cash equivalents
|
| | | | 42.9 | | | | | | (1.1) | | | | | | (17.1) | | | | | | 15.0 | | |
Cash and cash equivalents at the beginning of the financial year
|
| | | | 0.4 | | | | | | 1.5 | | | | | | 43.3 | | | | | | 0.4 | | |
Cash and cash equivalents at end of year
|
| | | | 43.3 | | | | | | 0.4 | | | | | | 26.1 | | | | | | 15.4 | | |
| | |
Carrying
amount |
| |
Less than
1 year |
| |
1 - 5 years
|
| |
More than
5 years |
| ||||||||||||
| | |
(in € millions)
|
| |||||||||||||||||||||
Trade and other payables
|
| | | | 6.9 | | | | | | 6.9 | | | | | | — | | | | | | — | | |
Loans and participation rights
|
| | | | 5.8 | | | | | | 2.1 | | | | | | 9.0 | | | | | | — | | |
Convertible notes
|
| | | | 8.5 | | | | | | — | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 3.3 | | | | | | 0.3 | | | | | | 1.3 | | | | | | 0.6 | | |
Total | | | | | 24.5 | | | | | | 9.3 | | | | | | 10.3 | | | | | | 0.6 | | |
Name
|
| |
Age
|
| |
Term Served
|
| |
Year in
which Term Expires |
| |
Position
|
| ||||||
Laurin Hahn
|
| | | | 27 | | | |
2020 - Present
|
| | | | 2025 | | | |
Co-Chief Executive Officer and Co-Founder
|
|
Jona Christians
|
| | | | 28 | | | |
2020 - Present
|
| | | | 2025 | | | |
Co-Chief Executive Officer and Co-Founder
|
|
Torsten Kiedel(1)
|
| | | | 43 | | | |
2021 - Present
|
| | | | 2025 | | | | Chief Financial Officer | |
Name
|
| |
Age
|
| |
Year in which Term Expires
|
| |||
Martina Buchhauser
|
| | | | 55 | | | |
2025
|
|
Sebastian Böttger
|
| | | | 47 | | | |
2025
|
|
Bob Jeffe
|
| | | | 71 | | | |
2025
|
|
Johannes Trischler
|
| | | | 34 | | | |
2025
|
|
Name
|
| |
Number of Shares
|
| |
Percentage of Shares
Outstanding |
| |
Voting Rights
|
| |||||||||
Laurin Hahn(1)
|
| | | | 12,500,000 | | | | | | 34.81% | | | | | | 46.75% | | |
Jona Christians(2)
|
| | | | 11,250,000 | | | | | | 31.42% | | | | | | 42.07% | | |
Torsten Kiedel(3)
|
| | | | — | | | | | | —% | | | | | | —% | | |
Name
|
| |
Number of
Options |
| |
Title
|
| |
Amount of
Securities (in €) |
| |
Exercise
Price (in €) |
| |
Purchase
Price (in €) |
| |
Expiration
Date |
| ||||||||||||||||||
Laurin Hahn
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Jona Christians
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Torsten Kiedel(1)
|
| | | | 132,350 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | |
Percentage
of total voting power before the offering as well as the conversion of the mandatory convertible senior notes |
| |
Shares beneficially owned after this
offering as well as the conversion of the mandatory convertible senior notes |
| ||||||||||||
| | |
Shares beneficially owned before this
offering as well as the conversion of the mandatory convertible senior notes |
| |
Assuming
underwriters’ option to purchase additional common shares from us is not exercised |
| |
Assuming
underwriters’ option to purchase additional common shares from us is exercised in full |
| |||||||||||||||||||||||||||||||||
| | |
Common Shares
|
| |
High Voting Shares
|
| ||||||||||||||||||||||||||||||||||||
Shareholder
|
| |
Number
|
| |
Percent
|
| |
Number(1)
|
| |
Percent(2)
|
| |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
| ||||||||||||||||||
5% Shareholders:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
| |
|
| |
|
| |
|
|
eVentures TNS GmbH
|
| | | | 2,210,000 | | | | | | 6.17% | | | | | | | | | | | | | | | | | | 2.05 | | | | | | | | | | | | | | |
Matthias Willenbacher
|
| | | | 2,014,000 | | | | | | 5.63% | | | | | | | | | | | | | | | | | | 1.87 | | | | | | | | | | | | | | |
Members of our supervisory board
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Members of our management board
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Laurin Hahn(3)
|
| | | | 10,921,053 | | | | | | 30.50% | | | | | | 1,578,947 | | | | | | 4.41 | | | | | | 46.75 | | | | | | | | | | | | | | |
Jona Christians(3)
|
| | | | 9,828,947 | | | | | | 27.45% | | | | | | 1,421,053 | | | | | | 3.97 | | | | | | 42.07 | | | | | | | | | | | | | | |
Torsten Kiedel(4)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | | | |
All members of our supervisory
board and management board, as a group ( persons) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | You should consult your own tax advisor regarding the United States federal, state and local tax consequences of owning and disposing of shares and common shares in your particular circumstances. | | |
Underwriters
|
| |
Number of
common shares |
|
Berenberg Capital Markets LLC
|
| |
|
|
Craig-Hallum Capital Group LLC
|
| | | |
Total | | | | |
| | |
Per Common
Share |
| |
Total
|
| ||||||||||||
|
Non Exercise
|
| |
Full Exercise
|
| ||||||||||||||
Public offering price
|
| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discounts and commissions to be paid by us
|
| | | | | | | | | | | | | | | | | | |
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | | | | $ | | | |
Expenses
|
| |
Amount
|
| |||
U.S. Securities and Exchange Commission registration fee
|
| | | $ | 9,270* | | |
FINRA filing fee
|
| | | | 14,850* | | |
Nasdaq listing fee
|
| | | | * | | |
Legal fees and expenses
|
| | | | * | | |
Accounting fees and expenses
|
| | | | * | | |
Corporate advisory fees and expenses
|
| | | | * | | |
Printing fee
|
| | | | 120,000* | | |
Other fees and expenses
|
| | | | * | | |
Total | | | | $ | * | | |
| | |
Page
|
| |||
Consolidated Interim Financial Statements as of June 30, 2021 and for the six months ended June 30, 2021 and 2020
|
| | | | | | |
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
Consolidated Financial Statements as of December 31, 2020 and 2019 and for the years then ended | | | | | | | |
| | | | F-15 | | | |
| | | | F-17 | | | |
| | | | F-18 | | | |
| | | | F-19 | | | |
| | | | F-20 | | | |
| | | | F-21 | | |
| | |
Note
|
| |
Six Months Ended
June 30, 2021 |
| |
Six Months Ended
June 30, 2020 |
| |||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| ||||||
Revenue
|
| | | | | | | | | | — | | | | | | — | | |
Cost of sales
|
| | | | | | | | | | — | | | | | | — | | |
Gross profit
|
| | | | | | | | | | — | | | | | | — | | |
Cost of research and development
|
| | | | 5.2 | | | | | | -13,475 | | | | | | -6,416 | | |
Selling and distribution expenses
|
| | | | | | | | | | -1,625 | | | | | | -1,063 | | |
General and administrative expenses
|
| | | | 5.3 | | | | | | -8,268 | | | | | | -1,530 | | |
Other operating income/expenses
|
| | | | | | | | | | 370 | | | | | | 86 | | |
Impairment losses on financial assets
|
| | | | | | | | | | -2 | | | | | | -1 | | |
Operating loss
|
| | | | | | | | | | -23,000 | | | | | | -8,924 | | |
Other interest and similar income
|
| | | | | | | | | | — | | | | | | 2 | | |
Interest and other expenses
|
| | | | | | | | | | -2,645 | | | | | | -907 | | |
Loss before tax
|
| | | | | | | | | | -25,645 | | | | | | -9,829 | | |
Taxes on income
|
| | | | | | | | | | +0 | | | | | | +0 | | |
Deferred taxes on expense
|
| | | | | | | | | | -41 | | | | | | — | | |
Loss for the period
|
| | | | | | | | | | -25,686 | | | | | | -9,829 | | |
Other comprehensive loss
|
| | | | | | | | | | -64 | | | | | | — | | |
Total comprehensive loss for the period
|
| | | | | | | | | | -25,750 | | | | | | -9,829 | | |
Earnings (loss) per share in EUR
|
| | | | 8.1 | | | | | | | | | | | | | | |
Basic/diluted
|
| | | | | | | | | | -0.79/-0.79 | | | | | | -0.29/-0.29 | | |
Weighted average number of shares for calculation of earnings per share
|
| | | | | | | | | | | | | | | | | | |
Basic/diluted
|
| | | | | | | | | | 32,367,901 | | | | | | 33,588,000 | | |
| | |
Note
|
| |
June 30,
2021 |
| |
Dec. 31,
2020 |
| |||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| ||||||
ASSETS | | | | | | | | | | | | | | | | | | | |
Noncurrent assets | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | | | | | | | 157 | | | | | | 16 | | |
Property, plant and equipment
|
| | | | 6.1 | | | | | | 526 | | | | | | 2,102 | | |
Right-of-use assets
|
| | | | | | | | | | 3,294 | | | | | | 1,937 | | |
Other financial assets
|
| | | | | | | | | | 91 | | | | | | 41 | | |
| | | | | | | | | | | 4,068 | | | | | | 4,096 | | |
Current assets | | | | | | | | | | | | | | | | | | | |
Other financial assets
|
| | | | 6.2 | | | | | | 5,241 | | | | | | 5,404 | | |
Other non-financial assets
|
| | | | 6.3 | | | | | | 3,185 | | | | | | 579 | | |
Cash and cash equivalents
|
| | | | | | | | | | 26,133 | | | | | | 43,264 | | |
| | | | | | | | | | | 34,559 | | | | | | 49,247 | | |
Total assets
|
| | | | | | | | | | 38,627 | | | | | | 53,343 | | |
EQUITY AND LIABILITIES | | | | | | | | | | | | | | | | | | | |
Equity
|
| | | | 6.4 | | | | | | | | | | | | | | |
Subscribed capital
|
| | | | | | | | | | 6,472 | | | | | | 6,468 | | |
Capital and other reserves
|
| | | | | | | | | | 74,208 | | | | | | 71,629 | | |
Accumulated deficit
|
| | | | | | | | | | -108,808 | | | | | | -83,123 | | |
| | | | | | | | | | | -28,128 | | | | | | -5,026 | | |
Non-current liabilities | | | | | | | | | | | | | | | | | | | |
Advance payments received from customers
|
| | | | 6.5 | | | | | | 40,693 | | | | | | 38,972 | | |
Financial liabilities
|
| | | | 6.6 | | | | | | 6,566 | | | | | | 5,335 | | |
| | | | | | | | | | | 47,259 | | | | | | 44,307 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | |
Financial liabilities
|
| | | | 6.6 | | | | | | 11,137 | | | | | | 9,388 | | |
Trade and other payables
|
| | | | | | | | | | 6,870 | | | | | | 2,874 | | |
Other liabilities
|
| | | | | | | | | | 1,454 | | | | | | 1,689 | | |
Provisions
|
| | | | | | | | | | 35 | | | | | | 111 | | |
| | | | | | | | | | | 19,496 | | | | | | 14,062 | | |
Total equity and liabilities
|
| | | | | | | | | | 38,627 | | | | | | 53,343 | | |
| | |
Number of
shares |
| |
Subscribed
capital |
| |
Capital
reserve |
| |
Other
reserves |
| |
Accumulated
deficit |
| |
Total
equity |
| ||||||||||||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||
Balance on January 1, 2020
|
| | | | 33,588 | | | | | | 34 | | | | | | 8,489 | | | | | | — | | | | | | -27,091 | | | | | | -18,568 | | |
Result for the period
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | -9,829 | | | | |
|
-9,829
|
| |
Balance on June 30, 2020
|
| | | | 33,588 | | | | | | 34 | | | | | | 8,489 | | | | | | — | | | | | | -36,920 | | | | | | -28,397 | | |
Balance on January 1, 2021
|
| | | | 35,803,197 | | | | | | 6,468 | | | | | | 39,490 | | | | | | 32,139 | | | | | | -83,123 | | | | | | -5,026 | | |
Capital increase*
|
| | | | 68,136 | | | | | | 4 | | | | | | 1,479 | | | | | | — | | | | | | — | | | | |
|
1,483
|
| |
Share-based compensation (IFRS 2)
|
| | | | — | | | | |
|
—
|
| | | | | — | | | | | | 1,165 | | | | |
|
—
|
| | | |
|
1,165
|
| |
Fair Value Measurement Convertible Bond (OCI)
|
| | | | — | | | | | | — | | | | | | — | | | | | | -106 | | | | | | — | | | | |
|
-106
|
| |
DTA (OCI)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 41 | | | | | | — | | | | |
|
41
|
| |
Result for the period
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | -25,686 | | | | |
|
-25,686
|
| |
Balance on June 30, 2021
|
| | | | 35,871,333 | | | | | | 6,472 | | | | | | 40,969 | | | | | | 33,239 | | | | | | -108,808 | | | | | | -28,128 | | |
| | |
Six Months Ended
June 30, 2021 |
| |
Six Months Ended
June 30, 2020 |
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Operating activities | | | | | | | | | | | | | |
Loss for the period
|
| | | | -25,686 | | | | | | -9,829 | | |
Depreciation of property, plant and equipment
|
| | | | 38 | | | | | | 33 | | |
Depreciation of right-of-use assets
|
| | | | 160 | | | | | | 156 | | |
Amortization of intangible assets
|
| | | | 8 | | | | | | 15 | | |
Expenses(+) for share-based payment transactions
|
| | | | 1,165 | | | | | | — | | |
Other non-cash expenses(+)/income(−)
|
| | | | 1,838 | | | | | | 10 | | |
Interest and other expenses
|
| | | | 2,645 | | | | | | 907 | | |
Movements in provisions
|
| | | | -76 | | | | | | 64 | | |
Decrease(+)/increase(−) in other assets
|
| | | | -2,493 | | | | | | -5,145 | | |
Increase(+)/decrease(−) in trade and other payables
|
| | | | 3,761 | | | | | | -761 | | |
Increase(+)/decrease(−) in advance payments received from customers
|
| | | | 915 | | | | | | 26,542 | | |
Interest paid
|
| | | | -67 | | | | | | -68 | | |
Net cash flows from operating activities
|
| | | | -17,792 | | | | | | 11,924 | | |
Investing activities | | | | | | | | | | | | | |
Purchase of intangible assets
|
| | | | -149 | | | | | | -32 | | |
Purchase of property, plant and equipment
|
| | | | -344 | | | | | | — | | |
Net cash flows from investing activities
|
| | | | -493 | | | | | | -32 | | |
Financing activities | | | | | | | | | | | | | |
Transaction costs on issue of shares
|
| | | | -17 | | | | | | — | | |
Proceeds from issues of shares
|
| | | | 1,500 | | | | | | — | | |
Proceeds from borrowings
|
| | | | — | | | | | | 3,243 | | |
Repayments of borrowings
|
| | | | -185 | | | | | | — | | |
Payment of principal portion of lease liabilities
|
| | | | -144 | | | | | | -141 | | |
Net cash flow from financing activities
|
| | | | 1,154 | | | | | | 3,102 | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | -17,131 | | | | | | 14,993 | | |
Cash and cash equivalents at the beginning of the financial year
|
| | | | 43,264 | | | | | | 407 | | |
Cash and cash equivalents at end of half-year
|
| | | | 26,133 | | | | | | 15,400 | | |
| | |
Six months
ended June 30, 2021 |
| |
Six months
ended June 30, 2020 |
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Personnel expenses
|
| | | | 3,115 | | | | | | 1,692 | | |
Development cost of prototypes
|
| | | | 8,787 | | | | | | 3,981 | | |
Professional services
|
| | | | 380 | | | | | | 128 | | |
Other development
|
| | | | 655 | | | | | | 464 | | |
Depreciation and amortization
|
| | | | 105 | | | | | | 85 | | |
Other
|
| | | | 433 | | | | | | 66 | | |
| | | | | 13,475 | | | | | | 6,416 | | |
| | |
Six months
ended June 30, 2021 |
| |
Six months
ended June 30, 2020 |
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Personnel expenses
|
| | | | 2,695 | | | | | | 821 | | |
thereof related to the CSOP (IFRS 2)
|
| | | | 1,165 | | | | | | — | | |
Professional services
|
| | | | 3,216 | | | | | | 500 | | |
Impairment
|
| | | | 1,882 | | | | | | — | | |
Other
|
| | | | 475 | | | | | | 209 | | |
| | | | | 8,268 | | | | | | 1,530 | | |
| | |
June 30, 2021
|
| |
Dec. 31, 2020
|
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Advance payments received from customers
|
| | | | 40,693 | | | | | | 38,972 | | |
| | | | | 40,693 | | | | | | 38,972 | | |
| | |
Balance as of
Jan. 1, 2021 |
| |
Additions
|
| |
Repayment
|
| |
Interest
effect |
| |
Balance as of
June 30, 2021 |
| |||||||||||||||
| | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||
Advance payments received from customers
|
| | | | 38,972 | | | | | | 1,403 | | | | | | -488 | | | | | | 806 | | | | | | 40,693 | | |
| | | | | 38,972 | | | | | | 1,403 | | | | | | -488 | | | | | | 806 | | | | | | 40,693 | | |
| | |
Balance as of
Jan. 1, 2020 |
| |
Additions
|
| |
Repayment
|
| |
Interest
effect |
| |
Balance as of
Dec. 31, 2020 |
| |||||||||||||||
| | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||
Advance payments received from customers
|
| | | | 11,164 | | | | | | 30,565 | | | | | | -4,116 | | | | | | 1,360 | | | | | | 38,972 | | |
| | | | | 11,164 | | | | | | 30,565 | | | | | | -4,116 | | | | | | 1,360 | | | | | | 38,972 | | |
| | |
June 30, 2021
|
| |
Dec. 31, 2020
|
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Other financial liabilities
|
| | | | 14,369 | | | | | | 12,765 | | |
Lease liabilities
|
| | | | 3,334 | | | | | | 1,958 | | |
| | | | | 17,703 | | | | | | 14,723 | | |
| | |
June 30, 2021
|
| |||||||||||||||||||||
kEUR
|
| |
carrying
amount |
| |
category
(IFRS 9) |
| |
fair value
|
| |
fair value
level |
| ||||||||||||
Noncurrent financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Deposits
|
| | | | 91 | | | | | | AC | | | | | | 90 | | | | | | 2 | | |
Current financial assets
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Paypal accounts including reserves
|
| | | | 4,980 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Debtor creditors
|
| | | | 19 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Receivables from crowdfunding and deposits
|
| | | | 226 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Other
|
| | | | 16 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Cash and cash equivalents
|
| | | | 26,133 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 3,671 | | | | | | FLAC | | | | | | 3,730 | | | | | | 3 | | |
Lease liabilities
|
| | | | 2,895 | | | | | | - | | | | | | - | | | | | | - | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,178 | | | | | | FLAC | | | | | | n/a* | | | | | | n/a | | |
Lease liabilities
|
| | | | 439 | | | | | | - | | | | | | - | | | | | | - | | |
Convertible notes
|
| | | | 8,520 | | | | | | FVTPL | | | | | | 8,520 | | | | | | 3 | | |
Trade and other payables
|
| | | | 6,870 | | | | | | FLAC | | | | | | n/a* | | | | | | n/a | | |
| | |
Dec. 31, 2020
|
| |||||||||||||||||||||
kEUR
|
| |
carrying
amount |
| |
category
(IFRS 9) |
| |
fair value
|
| |
fair value
level |
| ||||||||||||
Noncurrent financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Deposits
|
| | | | 41 | | | | | | AC | | | | | | 42 | | | | | | 2 | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Paypal accounts including reserves
|
| | | | 4,655 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Debtor creditors
|
| | | | 539 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Receivables from crowdfunding and deposits
|
| | | | 179 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Other
|
| | | | 31 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Cash and cash equivalents
|
| | | | 43,264 | | | | | | AC | | | | | | n/a* | | | | | | n/a | | |
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 3,665 | | | | | | FLAC | | | | | | 3,308 | | | | | | 3 | | |
Lease liabilities
|
| | | | 1,669 | | | | | | — | | | | | | — | | | | | | — | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,240 | | | | | | FLAC | | | | | | n/a* | | | | | | n/a | | |
Lease liabilities
|
| | | | 289 | | | | | | — | | | | | | — | | | | | | — | | |
Convertible notes
|
| | | | 6,859 | | | | | | FVTPL | | | | | | 6,859 | | | | | | 3 | | |
Trade and other payables
|
| | | | 2,874 | | | | | | FLAC | | | | | | n/a* | | | | | | n/a | | |
Description
|
| |
Fair value at
June 30, 2021 |
| |
Unobservable input
|
| |
Range of inputs
(most likely outcome) June 30, 2021 |
| |
Relationship of
unobservable inputs to fair value |
|
| | |
kEUR
|
| | | | | | | | | |
Mandatory convertible notes | | | 8,520 | | | Probability of an ‘exit event’ (IPO or SPAC) in the fourth quarter of 2021 | | |
50% – 100%
(90%) |
| | An increase of the probability to 100% (absolute) would increase FV by kEUR 907, A decrease of the probability to 50% (absolute) would decrease FV by kEUR – 3,630, | |
Description
|
| |
Fair value at
Dec. 31, 2020 |
| |
Unobservable input
|
| |
Range of inputs
(most likely outcome) Dec. 31, 2020 |
| |
Relationship of
unobservable inputs to fair value |
|
| | |
kEUR
|
| | | | | | | | | |
Mandatory convertible notes | | | 6,859 | | | Probability of an ‘exit event’ (IPO or SPAC) in the second quarter of 2021 | | |
50% – 100%
(75%) |
| | An increase of the probability to 100% (absolute) would increase FV by kEUR 2,170, A decrease of the probability to 50% (absolute) would decrease FV by kEUR – 2,170, | |
| | |
June 30, 2021
|
| |
Dec. 31, 2020
|
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Balance at beginning of period
|
| | | | 6,859 | | | | | | — | | |
New transactions
|
| | | | — | | | | | | 6,800 | | |
Amount presented in other comprehensive income
|
| | | | 106 | | | | | | 21 | | |
Amount presented in profit or loss (interest and other expenses)
|
| | | | 1,555 | | | | | | 38 | | |
Balance at end of period
|
| | | | 8,520 | | | | | | 6,859 | | |
| | |
Six months
ended June 30, 2021 |
| |
Six months
ended June 30, 2020 |
| ||||||
| | |
EUR
|
| |
EUR
|
| ||||||
From continuing operations attributable to the ordinary equity holders of the company
|
| | | | -0.79 | | | | | | -292.63 | | |
| | | | | -0.79 | | | | | | -292.63 | | |
| | |
Six months
ended June 30, 2021 |
| |
Six months
ended June 30, 2020 |
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Short-term employee benefits
|
| | | | 370 | | | | | | 242 | | |
Share-based payments
|
| | | | 1,165 | | | | | | — | | |
Total compensation
|
| | | | 1,535 | | | | | | 242 | | |
| | |
June 30, 2021
|
| |
Dec. 31, 2020
|
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Loans from key management personnel (subordinated crowdfunding loan II)
|
| | | | 2 | | | | | | 2 | | |
Loans from other related parties
|
| | | | 199 | | | | | | 199 | | |
| | | | | 201 | | | | | | 201 | | |
Advance payments received from key management personnel
|
| | | | 52 | | | | | | 52 | | |
Total | | | | | 253 | | | | | | 253 | | |
/s/ Alexander Fiedler
|
| |
/s/ Sylvia Eichler
|
|
Wirtschaftsprüfer | | | Wirtschaftsprüferin | |
(German Public Auditor) | | | (German Public Auditor) | |
| | |
Note
|
| |
2020
|
| |
2019
(as restated) |
| |||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| ||||||
Revenue
|
| | | | | | | | | | — | | | | | | — | | |
Cost of sales
|
| | | | | | | | | | — | | | | | | — | | |
Gross profit
|
| | | | | | | | | | — | | | | | | — | | |
Cost of research and development
|
| | | | 7.2 | | | | | | (30,469) | | | | | | (4,937) | | |
Selling and distribution expenses
|
| | | | 7.3 | | | | | | (9,100) | | | | | | (2,135) | | |
General and administrative expenses
|
| | | | 7.4 | | | | | | (14,404) | | | | | | (2,417) | | |
Other operating income/expenses
|
| | | | 7.5 | | | | | | (15) | | | | | | 220 | | |
Impairment losses on financial assets
|
| | | | 7.6 | | | | | | (6) | | | | | | — | | |
Operating loss
|
| | | | | | | | | | (53,994) | | | | | | (9,269) | | |
Other interest and similar income
|
| | | | 7.7 | | | | | | 2 | | | | | | — | | |
Interest and other expenses
|
| | | | 7.8 | | | | | | (2,040) | | | | | | (702) | | |
Loss before tax
|
| | | | | | | | | | (56,032) | | | | | | (9,971) | | |
Taxes on income
|
| | | | 7.9 | | | | | | 0 | | | | | | — | | |
Loss for the period
|
| | | | | | | | | | (56,032) | | | | | | (9,971) | | |
Other comprehensive loss
|
| | | | | | | | | | (21) | | | | | | — | | |
Total comprehensive loss for the period
|
| | | | | | | | | | (56,053) | | | | | | (9,971) | | |
Loss per share in EUR
|
| | | | 10.4 | | | | | | | | | | | | | | |
Basic/diluted
|
| | | | | | | |
(1.66)/(1.66)
|
| |
(0.30)/(0.30)
|
| ||||||
Weighted average number of shares for calculation of earnings per share
|
| | | | | | | | | | | | | | | | | | |
Basic/diluted
|
| | | | | | | | | | 33,733,462 | | | | | | 33,251,883 | | |
| | |
Note
|
| |
Dec. 31, 2020
|
| |
Dec. 31, 2019
(as restated) |
| |
Jan. 1, 2019
(as restated) |
| ||||||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | |
Noncurrent assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | 8.1 | | | | | | 16 | | | | | | 27 | | | | | | 38 | | |
Property, plant and equipment
|
| | | | 8.2 | | | | | | 2,102 | | | | | | 2,469 | | | | | | 1,458 | | |
Right-of-use assets
|
| | | | 8.3 | | | | | | 1,937 | | | | | | 2,235 | | | | | | — | | |
Other financial assets
|
| | | | 8.4 | | | | | | 41 | | | | | | 28 | | | | | | 11 | | |
| | | | | | | | | | | 4,096 | | | | | | 4,759 | | | | | | 1,507 | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets
|
| | | | 8.5 | | | | | | 5,404 | | | | | | 342 | | | | | | 82 | | |
Other non-financial assets
|
| | | | 8.6 | | | | | | 579 | | | | | | 193 | | | | | | 620 | | |
Cash and cash equivalents
|
| | | | 8.7 | | | | | | 43,264 | | | | | | 407 | | | | | | 1,515 | | |
| | | | | | | | | | | 49,247 | | | | | | 942 | | | | | | 2,217 | | |
Total assets
|
| | | | | | | | | | 53,343 | | | | | | 5,701 | | | | | | 3,724 | | |
EQUITY AND LIABILITIES | | | | | | | | | | | | | | | | | | | | | | | | | |
Equity
|
| | | | 8.8 | | | | | | | | | | | | | | | | | | | | |
Subscribed capital
|
| | | | | | | | | | 6,468 | | | | | | 34 | | | | | | 32 | | |
Capital and other reserves
|
| | | | | | | | | | 71,629 | | | | | | 8,489 | | | | | | 3,302 | | |
Accumulated deficit
|
| | | | | | | | | | (83,123) | | | | | | (27,091) | | | | | | (17,120) | | |
| | | | | | | | | | | (5,026) | | | | | | (18,568) | | | | | | (13,786) | | |
Noncurrent liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Advance payments received from customers
|
| | | | 8.9 | | | | | | 38,972 | | | | | | 11,164 | | | | | | 9,949 | | |
Financial liabilities
|
| | | | 8.10 | | | | | | 5,335 | | | | | | 6,182 | | | | | | 2,035 | | |
| | | | | | | | | | | 44,307 | | | | | | 17,346 | | | | | | 11,984 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities
|
| | | | 8.10 | | | | | | 9,388 | | | | | | 2,296 | | | | | | 32 | | |
Trade and other payables
|
| | | | 8.11 | | | | | | 2,874 | | | | | | 3,703 | | | | | | 5,097 | | |
Other liabilities
|
| | | | 8.12 | | | | | | 1,689 | | | | | | 288 | | | | | | 179 | | |
Provisions
|
| | | | 8.13 | | | | | | 111 | | | | | | 636 | | | | | | 218 | | |
| | | | | | | | | | | 14,062 | | | | | | 6,923 | | | | | | 5,526 | | |
Total equity and liabilities
|
| | | | | | | | | | 53,343 | | | | | | 5,701 | | | | | | 3,724 | | |
| | |
Number of
shares |
| |
Share
capital |
| |
Capital
reserve |
| |
Other
reserves |
| |
Accumulated
deficit (as restated) |
| |
Total
equity |
| ||||||||||||||||||
| | | | | | | | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||
German GAAP equity on January 1, 2019
|
| | | | 32,045 | | | | | | 32 | | | | | | 3,332 | | | | | | — | | | | | | (16,975) | | | | | | (13,611) | | |
IFRS 1 adjustments
|
| | | | — | | | | | | — | | | | | | (30) | | | | | | — | | | | | | (145) | | | | | | (175) | | |
IFRS equity on January 1, 2019
|
| | | | 32,045 | | | | | | 32 | | | | | | 3,302 | | | | | | — | | | | | | (17,120) | | | | | | (13,786) | | |
Result for the period
|
| | | | — | | | | | | | | | | | | — | | | | | | — | | | | | | (9,971) | | | | | | (9,971) | | |
Contributions to equity*
|
| | | | 1,543 | | | | | | 2 | | | | | | 5,187 | | | | | | — | | | | | | — | | | | | | 5,189 | | |
Balance on December 31, 2019
|
| | | | 33,588 | | | | | | 34 | | | | | | 8,489 | | | | | | — | | | | | | (27,091) | | | | | | (18,568) | | |
IFRS equity on January 1, 2020
|
| | | | 33,588 | | | | | | 34 | | | | | | 8,489 | | | | | | — | | | | | | (27,091) | | | | | | (18,568) | | |
Capital contribution of the GmbH shares into the N.V.
|
| | | | (33,588) | | | | | | (34) | | | | | | 34 | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
0
|
| |
Share split
|
| | | | 30,588,000 | | | | | | 1,835 | | | | | | (1,835) | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
0
|
| |
Conversion high voting shares
|
| | | | 3,000,000 | | | | | | 4,500 | | | | | | (4,500) | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
0
|
| |
Capital increase**
|
| | | | 1,735,197 | | | | | | 104 | | | | | | 35,904 | | | | | | — | | | | |
|
—
|
| | | |
|
36,008
|
| |
Conversion of debt to equity
|
| | | | 480,000 | | | | | | 29 | | | | | | 1,398 | | | | | | — | | | | |
|
—
|
| | | |
|
1,427
|
| |
Share-based compensation (IFRS 2)
|
| | | | — | | | | | | — | | | | | | | | | | | | 32,160 | | | | |
|
—
|
| | | |
|
32,160
|
| |
Fair Value Measurement Convertible Bond (OCI)
|
| | | | — | | | | | | — | | | | | | — | | | | | | (21) | | | | |
|
—
|
| | | |
|
(21)
|
| |
Result for the period
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (56,032) | | | | |
|
(56,032)
|
| |
Balance on December 31, 2020
|
| | | | 35,803,197 | | | | | | 6,468 | | | | | | 39,490 | | | | | | 32,139 | | | | | | (83,123) | | | | | | (5,026) | | |
| | |
2020
|
| |
2019
(as restated) |
| ||||||
| | |
kEUR
|
| |
kEUR
|
| ||||||
Operating activities | | | | | | | | | | | | | |
Loss for the period
|
| | | | (56,032) | | | | | | (9,971) | | |
Depreciation of property, plant and equipment
|
| | | | 61 | | | | | | 50 | | |
Depreciation of right-of-use assets
|
| | | | 313 | | | | | | 163 | | |
Amortization of intangible assets
|
| | | | 11 | | | | | | 11 | | |
Expenses(+) for share-based payment transactions
|
| | | | 32,160 | | | | | | — | | |
Other non-cash expenses(+)
|
| | | | 346 | | | | | | — | | |
Other interest and similar income
|
| | | | (2) | | | | | | — | | |
Interest and other expenses
|
| | | | 2,040 | | | | | | 702 | | |
Movements in provisions
|
| | | | (526) | | | | | | 418 | | |
Decrease(+)/increase(−) in other assets
|
| | | | (5,766) | | | | | | 456 | | |
Increase(+)/decrease(−) in trade and other payables
|
| | | | 322 | | | | | | (1,284) | | |
Increase(+)/decrease(−) in advance payments received from customers
|
| | | | 26,448 | | | | | | 800 | | |
Interest paid
|
| | | | (561) | | | | | | (120) | | |
Net cash flows from operating activities
|
| | | | (1,186) | | | | | | (8,775) | | |
Investing activities | | | | | | | | | | | | | |
Purchase of property, plant and equipment
|
| | | | (42) | | | | | | (1,139) | | |
Net cash flows from investing activities
|
| | | | (42) | | | | | | (1,139) | | |
Financing activities | | | | | | | | | | | | | |
Transaction costs on issue of shares
|
| | | | (2,192) | | | | | | (109) | | |
Proceeds from issues of shares
|
| | | | 38,229 | | | | | | 5,297 | | |
Proceeds from borrowings
|
| | | | 10,657 | | | | | | 3,710 | | |
Repayments of borrowings
|
| | | | (2,327) | | | | | | — | | |
Payment of principal portion of lease liabilities
|
| | | | (282) | | | | | | (92) | | |
Net cash flow from financing activities
|
| | | | 44,085 | | | | | | 8,806 | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | 42,857 | | | | | | (1,108) | | |
Cash and cash equivalents at the beginning of the financial year
|
| | | | 407 | | | | | | 1,515 | | |
Cash and cash equivalents at end of year
|
| | | | 43,264 | | | | | | 407 | | |
| | |
As of and for the Year Ended
December 31, 2019 |
| |
As of January 1, 2019
|
| ||||||||||||||||||||||||||||||
|
As
Previously Reported |
| |
Adjustment
|
| |
As
Restated |
| |
As
Previously Reported |
| |
Adjustment
|
| |
As
Restated |
| ||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||||||||
Balance sheet data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Advance payments received from customers (non-current)
|
| | | | — | | | | | | 11,164 | | | | | | 11,164 | | | | | | — | | | | | | 9,949 | | | | | | 9,949 | | |
Financial liabilities (noncurrent)
|
| | | | 6,790 | | | | | | (608) | | | | | | 6,182 | | | | | | 2,035 | | | | | | — | | | | | | 2,035 | | |
Total non-current liabilities
|
| | | | 6,790 | | | | | | 10,556 | | | | | | 17,346 | | | | | | 2,035 | | | | | | 9,949 | | | | | | 11,984 | | |
Financial liabilities (current)
|
| | | | 12,069 | | | | | | (9,773) | | | | | | 2,296 | | | | | | 9,725 | | | | | | (9,693) | | | | | | 32 | | |
Other liabilities
|
| | | | 400 | | | | | | (112) | | | | | | 288 | | | | | | 179 | | | | | | — | | | | | | 179 | | |
Total current liabilities
|
| | | | 16,808 | | | | | | (9,885) | | | | | | 6,923 | | | | | | 15,219 | | | | | | (9,693) | | | | | | 5,526 | | |
Total equity and liabilities
|
| | | | 5,701 | | | | | | — | | | | | | 5,701 | | | | | | 3,724 | | | | | | — | | | | | | 3,724 | | |
Statement of income (loss) and statement of comprehensive income (loss) data:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other interest and similar income
|
| | | | 38 | | | | | | (38) | | | | | | — | | | | | | | | | | | | | | | | | | | | |
Interest and other expenses
|
| | | | (325) | | | | | | (377) | | | | | | (702) | | | | | | | | | | | | | | | | | | | | |
Loss before tax
|
| | | | (9,556) | | | | | | (415) | | | | | | (9,971) | | | | | | | | | | | | | | | | | | | | |
Loss for the period
|
| | | | (9,556) | | | | | | (415) | | | | | | (9,971) | | | | | | | | | | | | | | | | | | | | |
Total comprehensive loss for the period
|
| | | | (9,556) | | | | | | (415) | | | | | | (9,971) | | | | | | | | | | | | | | | | | | | | |
Earnings (loss) per share in EUR, basic and diluted
|
| | | | (0.29) | | | | | | (0.01) | | | | | | (0.30) | | | | | | | | | | | | | | | | | | | | |
Cash flow statement data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net cash flows from operating activities
|
| | | | (9,463) | | | | | | 688 | | | | | | (8,775) | | | | | | | | | | | | | | | | | | | | |
Net cash flows from financing activities
|
| | | | 9,494 | | | | | | (688) | | | | | | 8,806 | | | | | | | | | | | | | | | | | | | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | (1,108) | | | | | | — | | | | | | (1,108) | | | | | | | | | | | | | | | | | | | | |
| | |
Equipment / Hardware
|
| |
Advance payments to
technical equipment and machinery |
| ||||||
Useful life (years)
|
| | | | 3 - 13 | | | | | | — | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Personnel expenses
|
| | | | 39,291 | | | | | | 5,151 | | |
Depreciation and amortization
|
| | | | 384 | | | | | | 224 | | |
| | | | | 39,675 | | | | | | 5,375 | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Personnel expenses
|
| | | | 21,652 | | | | | | 2,243 | | |
thereof related to the CSOP (IFRS 2)
|
| | | | 17,723 | | | | | | — | | |
Development cost of prototypes
|
| | | | 7,338 | | | | | | 1,637 | | |
Professional services
|
| | | | 267 | | | | | | 284 | | |
Other development
|
| | | | 895 | | | | | | 464 | | |
Depreciation and amortization
|
| | | | 171 | | | | | | 78 | | |
Other
|
| | | | 145 | | | | | | 230 | | |
| | | | | 30,469 | | | | | | 4,937 | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Personnel expenses
|
| | | | 8,490 | | | | | | 1,582 | | |
thereof related to the CSOP (IFRS 2)
|
| | | | 6,949 | | | | | | — | | |
Professional services
|
| | | | 171 | | | | | | 103 | | |
Advertising
|
| | | | 84 | | | | | | 113 | | |
Other
|
| | | | 355 | | | | | | 336 | | |
| | | | | 9,100 | | | | | | 2,135 | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Personnel expenses
|
| | | | 9,148 | | | | | | 1,325 | | |
thereof related to the CSOP (IFRS 2)
|
| | | | 7,488 | | | | | | — | | |
Professional services
|
| | | | 4,830 | | | | | | 670 | | |
Expenses without sufficient supporting documentation
|
| | | | 21 | | | | | | 70 | | |
Other
|
| | | | 405 | | | | | | 352 | | |
| | | | | 14,404 | | | | | | 2,417 | | |
| | |
Dec. 31,
2020 |
| |
Dec. 31,
2019 |
| |
Jan. 1,
2019 |
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Deferred tax assets | | | | | | | | | | | | | | | | | | | |
due to tax loss carryforwards
|
| | | | — | | | | | | — | | | | | | — | | |
due to lease liabilities
|
| | | | 646 | | | | | | 735 | | | | | | — | | |
due to advance payments received from customers
|
| | | | 670 | | | | | | 221 | | | | | | 84 | | |
due to other financial assets
|
| | | | 1 | | | | | | — | | | | | | — | | |
due to cash & cash deposits
|
| | | | 1 | | | | | | — | | | | | | — | | |
due to prepaid expenses
|
| | | | 134 | | | | | | — | | | | | | — | | |
Deferred tax assets
|
| | | | 1,451 | | | | | | 956 | | | | | | 84 | | |
Deferred tax liabilities | | | | | | | | | | | | | | | | | | | |
due to leases
|
| | | | 639 | | | | | | 737 | | | | | | — | | |
due to property, plant and equipment
|
| | | | 10 | | | | | | 8 | | | | | | 18 | | |
due to current/noncurrent financial liabilities
|
| | | | 112 | | | | | | 12 | | | | | | 8 | | |
Deferred tax liabilities
|
| | | | 761 | | | | | | 757 | | | | | | 26 | | |
Non-recognition of deferred tax assets
|
| | | | (690) | | | | | | (199) | | | | | | (59) | | |
Recognition of deferred tax assets
|
| | | | 761 | | | | | | 757 | | | | | | 26 | | |
Deferred tax assets/liabilities, net
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Lease liabilities
|
| | | | 931 | | | | | | 464 | | | | | | — | | |
Advance payments received from customers
|
| | | | 966 | | | | | | 140 | | | | | | 175 | | |
Other financial assets
|
| | | | 2 | | | | | | — | | | | | | — | | |
Cash & cash deposits
|
| | | | 1 | | | | | | — | | | | | | — | | |
Prepaid expenses
|
| | | | 193 | | | | | | — | | | | | | — | | |
| | | | | 2,093 | | | | | | 604 | | | | | | 175 | | |
Potential tax benefit at a total tax rate of 32.98%
|
| | | | 690 | | | | | | 199 | | | | | | 58 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Unused tax losses for which no deferred tax asset has been recognized (corporate tax)
|
| | | | 51,316 | | | | | | 26,288 | | | | | | 16,694 | | |
Unused tax losses for which no deferred tax asset has been recognized (trade tax)
|
| | | | 51,083 | | | | | | 26,202 | | | | | | 16,689 | | |
Potential tax benefit at a total tax rate of 32.98%
|
| | | | 16,885 | | | | | | 8,656 | | | | | | 5,505 | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Income (loss) before tax for the period
|
| | | | (56,032) | | | | | | (9,971) | | |
Expected income tax (income (−)/expense (+) at a tax rate of 32.98%
|
| | | | (18,479) | | | | | | (3,288) | | |
Reconciliation: | | | | | | | | | | | | | |
Non-tax-deductible expenses
|
| | | | 9 | | | | | | (27) | | |
Non-tax-deductible expenses (CSOP)
|
| | | | 10,606 | | | | | | — | | |
Changes in unrecognized tax losses
|
| | | | 8,254 | | | | | | 3,164 | | |
Changes in deferred taxes on balance positions
|
| | | | 690 | | | | | | 199 | | |
Tax-deductible transaction costs
|
| | | | (723) | | | | | | (36) | | |
Other
|
| | | | (357) | | | | | | (66) | | |
Effective income tax income for the period
|
| | | | 0 | | | | | | 0 | | |
Historical cost
|
| |
Website
|
| |||
|
kEUR
|
| |||||
Balance as of Jan. 1, 2019
|
| | | | 43 | | |
Additions
|
| | | | — | | |
Balance as of Dec. 31, 2019
|
| | | | 43 | | |
Accumulated amortization | | | | | | | |
Balance as of Jan. 1, 2019
|
| | | | 5 | | |
Amortization
|
| | | | 11 | | |
Balance as of Dec. 31, 2019
|
| | | | 16 | | |
Carrying Amount as of Jan. 1, 2019
|
| | | | 38 | | |
Carrying Amount as of Dec. 31, 2019
|
| | | | 27 | | |
Historical cost
|
| |
Website
|
| |||
|
kEUR
|
| |||||
Balance as of Jan. 1, 2020
|
| | | | 43 | | |
Additions
|
| | | | — | | |
Balance as of Dec. 31, 2020
|
| | | | 43 | | |
Accumulated amortization | | | | | | | |
Balance as of Jan. 1, 2020
|
| | | | 16 | | |
Amortization
|
| | | | 11 | | |
Balance as of Dec. 31, 2020
|
| | | | 27 | | |
Carrying Amount as of Jan. 1, 2020
|
| | | | 27 | | |
Carrying Amount as of Dec. 31, 2020
|
| | | | 16 | | |
| | |
Equipment /
Hardware |
| |
Advance payments to
technical equipment and machinery |
| |
Total
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Acquisition or manufacturing costs Jan. 1, 2019
|
| | | | 161 | | | | | | 1,331 | | | | | | 1,492 | | |
Additions
|
| | | | 79 | | | | | | 983 | | | | | | 1,061 | | |
Acquisition or manufacturing costs Dec. 31, 2019
|
| | | | 239 | | | | | | 2,313 | | | | | | 2,553 | | |
Accumulated depreciation Jan. 1, 2019
|
| | | | 33 | | | | | | — | | | | | | 33 | | |
Depreciation
|
| | | | 50 | | | | | | — | | | | | | 50 | | |
Accumulated depreciation Dec. 31, 2019
|
| | | | 83 | | | | | | — | | | | | | 83 | | |
Carrying Amount Jan. 1, 2019
|
| | | | 127 | | | | | | 1,331 | | | | | | 1,458 | | |
Carrying Amount Dec. 31, 2019
|
| | | | 156 | | | | | | 2,313 | | | | | | 2,469 | | |
| | |
Equipment /
Hardware |
| |
Advance payments to
technical equipment and machinery |
| |
Total
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Acquisition or manufacturing costs Jan. 1, 2020
|
| | | | 239 | | | | | | 2,313 | | | | | | 2,552 | | |
Additions
|
| | | | 42 | | | | | | — | | | | | | 42 | | |
Deductions
|
| | | | — | | | | | | 348 | | | | | | 348 | | |
Acquisition or manufacturing costs Dec. 31, 2020
|
| | | | 281 | | | | | | 1,965 | | | | | | 2,246 | | |
Accumulated depreciation Jan. 1, 2020
|
| | | | 83 | | | | | | — | | | | | | 83 | | |
Depreciation
|
| | | | 61 | | | | | | — | | | | | | 61 | | |
Accumulated depreciation Dec. 31, 2020
|
| | | | 144 | | | | | | — | | | | | | 144 | | |
Carrying Amount Jan. 1, 2020
|
| | | | 156 | | | | | | 2,313 | | | | | | 2,469 | | |
Carrying Amount Dec. 31, 2020
|
| | | | 137 | | | | | | 1,965 | | | | | | 2,102 | | |
| | |
Buildings
|
| |
Cars
|
| |
Total
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Right-of-use assets on January 1, 2020
|
| | | | 2,211 | | | | | | 24 | | | | |
|
2,235
|
| |
Additions to right-of-use assets
|
| | | | — | | | | | | 15 | | | | |
|
15
|
| |
Depreciation of right-of-use assets
|
| | | | 305 | | | | | | 8 | | | | |
|
313
|
| |
Right-of-use assets on December 31, 2020
|
| | | | 1,906 | | | | | | 31 | | | | |
|
1,937
|
| |
Interest expense on lease liabilities
|
| | | | 35 | | | | | | 4 | | | | |
|
39
|
| |
Expense relating to short-term leases
|
| | | | — | | | | | | — | | | | |
|
—
|
| |
Total cash outflow for leases
|
| | | | 311 | | | | | | 12 | | | | |
|
323
|
| |
| | |
Buildings
|
| |
Cars
|
| |
Total
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Right-of-use assets on January 1, 2019
|
| | | | — | | | | | | — | | | | |
|
—
|
| |
Additions to right-of-use assets
|
| | | | 2,372 | | | | | | 25 | | | | |
|
2,397
|
| |
Depreciation of right-of-use assets
|
| | | | 161 | | | | | | 1 | | | | |
|
163
|
| |
Right-of-use assets on December 31, 2019
|
| | | | 2,211 | | | | | | 24 | | | | |
|
2,235
|
| |
Interest expense on lease liabilities
|
| | | | 22 | | | | | | 1 | | | | |
|
23
|
| |
Expense relating to short-term leases
|
| | | | 84 | | | | | | — | | | | |
|
84
|
| |
Total cash outflow for leases
|
| | | | 271 | | | | | | 5 | | | | |
|
276
|
| |
kEUR
|
| |
< 1 year
|
| |
1 to 5 years
|
| |
>5 years
|
| |||||||||
Buildings
|
| | | | 311 | | | | | | 1,302 | | | | | | 421 | | |
Cars
|
| | | | 12 | | | | | | 24 | | | | | | — | | |
Total December 31, 2020
|
| | | | 323 | | | | | | 1,326 | | | | | | 421 | | |
kEUR
|
| |
< 1 year
|
| |
1 to 5 years
|
| |
>5 years
|
| |||||||||
Buildings
|
| | | | 311 | | | | | | 1,279 | | | | | | 755 | | |
Cars
|
| | | | 8 | | | | | | 21 | | | | | | — | | |
Total December 31, 2019
|
| | | | 319 | | | | | | 1,300 | | | | | | 755 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
PayPal reserve
|
| | | | 4,655 | | | | | | — | | | | | | — | | |
Debtor creditors
|
| | | | 539 | | | | | | — | | | | | | — | | |
Receivables from crowdfunding and deposits
|
| | | | 179 | | | | | | 341 | | | | | | 80 | | |
Other
|
| | | | 24 | | | | | | 1 | | | | | | 2 | | |
Current trade receivables (affiliated companies)
|
| | | | 11 | | | | | | — | | | | | | — | | |
Allowances
|
| | | | (4) | | | | | | — | | | | | | — | | |
Total
|
| | | | 5,404 | | | | | | 342 | | | | | | 82 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Balances on demand
|
| | | | 43,266 | | | | | | 142 | | | | | | 1,154 | | |
PayPal accounts including reserves
|
| | | | — | | | | | | 244 | | | | | | 231 | | |
Money in transit
|
| | | | — | | | | | | 21 | | | | | | 130 | | |
Allowances
|
| | | | (2) | | | | | | — | | | | | | — | | |
Total
|
| | | | 43,264 | | | | | | 407 | | | | | | 1,515 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Advance payments received from customers
|
| | | | 38,972 | | | | | | 11,164 | | | | | | 9,949 | | |
| | | | | 38,972 | | | | | | 11,164 | | | | | | 9,949 | | |
| | |
Balance as of
Jan. 1, 2020 |
| |
Additions
|
| |
Repayment
|
| |
Compounding
effect |
| |
Balance as of
Dec. 31, 2020 |
| |||||||||||||||
|
KEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||
Advance payments received from
customers |
| | | | 11,164 | | | | | | 30,565 | | | | | | (4,116) | | | | | | 1,360 | | | | | | 38,972 | | |
| | | | | 11,164 | | | | | | 30,565 | | | | | | (4,116) | | | | | | 1,360 | | | | | | 38,972 | | |
| | |
Balance as of
Jan. 1, 2019 |
| |
Additions
|
| |
Repayment
|
| |
Compounding
effect |
| |
Balance as of
Dec. 31, 2019 |
| |||||||||||||||
|
KEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||
Advance payments received from
customers |
| | | | 9,949 | | | | | | 1,205 | | | | | | (406) | | | | | | 415 | | | | | | 11,164 | | |
| | | | | 9,949 | | | | | | 1,205 | | | | | | (406) | | | | | | 415 | | | | | | 11,164 | | |
Nominal amounts
|
| |
Loan 1
|
| |
Loan 2
|
| |
Loan 3*
|
| |
Subordinated
loans (crowdfunding) |
| |
Mandatory
convertible Notes |
| |
Participation
rights |
| |
Total
|
| |||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||||||||
Jan. 1, 2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,616 | | | | | | — | | | | | | 445 | | | | | | 2,061 | | |
Addition
|
| | | | — | | | | | | 285 | | | | | | 2,500 | | | | | | 313 | | | | | | — | | | | | | 938 | | | | | | 4,035 | | |
Accrued interest
|
| | | | — | | | | | | 10 | | | | | | 90 | | | | | | 38 | | | | | | — | | | | | | — | | | | | | 139 | | |
Repayment
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Dec. 31, 2019
|
| | | | — | | | | | | 295 | | | | | | 2,590 | | | | | | 1,967 | | | | | | — | | | | | | 1,383 | | | | | | 6,235 | | |
Addition
|
| | | | 1,225 | | | | | | — | | | | | | — | | | | | | 2,795 | | | | | | 6,800 | | | | | | — | | | | | | 10,820 | | |
Accrued interest
|
| | | | 46 | | | | | | 12 | | | | | | 277 | | | | | | 101 | | | | | | — | | | | | | — | | | | | | 435 | | |
Repayment
|
| | | | — | | | | | | (107) | | | | | | (1,219) | | | | | | (1,731) | | | | | | — | | | | | | — | | | | | | (3,058) | | |
Conversion to equity
|
| | | | — | | | | | | — | | | | | | (1,648) | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,648) | | |
Dec. 31, 2020
|
| | | | 1,271 | | | | | | 200 | | | | | | — | | | | | | 3,131 | | | | | | 6,800 | | | | | | 1,383 | | | | | | 12,784 | | |
Carrying amounts
|
| |
Loan 1
|
| |
Loan 2
|
| |
Loan 3*
|
| |
Subordinated
loans (crowdfunding) |
| |
Mandatory
convertible Notes |
| |
Participation
rights |
| |
Total
|
| |||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||||||||
Jan. 1, 2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,638 | | | | | | — | | | | | | 429 | | | | | | 2,067 | | |
Initial recognition
|
| | | | — | | | | | | 285 | | | | | | 2,500 | | | | | | 306 | | | | | | — | | | | | | 900 | | | | | | 3,991 | | |
Subsequent measurement
|
| | | | — | | | | | | 10 | | | | | | 83 | | | | | | 82 | | | | | | — | | | | | | 16 | | | | | | 192 | | |
Derecognition
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Dec. 31, 2019
|
| | | | — | | | | | | 295 | | | | | | 2,583 | | | | | | 2,026 | | | | | | — | | | | | | 1,346 | | | | | | 6,250 | | |
Initial recognition
|
| | | | 1,225 | | | | | | — | | | | | | — | | | | | | 2,714 | | | | | | 6,800 | | | | | | — | | | | | | 10,739 | | |
Subsequent measurement
|
| | | | 46 | | | | | | 12 | | | | | | 284 | | | | | | 53 | | | | | | 59 | | | | | | 28 | | | | | | 482 | | |
Derecognition
|
| | | | — | | | | | | (107) | | | | | | (1,219) | | | | | | (1,731) | | | | | | — | | | | | | — | | | | | | (3,058) | | |
Conversion to equity
|
| | | | — | | | | | | — | | | | | | (1,648) | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,648) | | |
Dec. 31, 2020
|
| | | | 1,271 | | | | | | 200 | | | | | | — | | | | | | 3,062 | | | | | | 6,859 | | | | | | 1,373 | | | | | | 12,766 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Loans and participation rights
|
| | | | 3,665 | | | | | | 4,235 | | | | | | 2,035 | | |
Lease liabilities
|
| | | | 1,669 | | | | | | 1,947 | | | | | | — | | |
| | | | | 5,335 | | | | | | 6,182 | | | | | | 2,035 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Current other financial liabilities | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,240 | | | | | | 2,015 | | | | | | 32 | | |
Convertible notes
|
| | | | 6,859 | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 289 | | | | | | 281 | | | | | | — | | |
| | | | | 9,388 | | | | | | 2,296 | | | | | | 32 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Trade payables
|
| | | | 2,642 | | | | | | 3,644 | | | | | | 5,080 | | |
Other payables
|
| | | | 232 | | | | | | 59 | | | | | | 17 | | |
| | | | | 2,874 | | | | | | 3,703 | | | | | | 5,097 | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Accruals and deferrals
|
| | | | 1,463 | | | | | | 100 | | | | | | — | | |
Current employee benefit liabilities (incl. social security)
|
| | | | — | | | | | | 113 | | | | | | 106 | | |
Employee tax liabilities (wage and church tax)
|
| | | | 146 | | | | | | 75 | | | | | | 74 | | |
Tax liabilities (VAT taxes and interest)
|
| | | | 80 | | | | | | — | | | | | | — | | |
| | | | | 1,689 | | | | | | 288 | | | | | | 179 | | |
| | |
Balance as of
Jan. 1, 2020 |
| |
Usage
|
| |
Reversals
|
| |
Additions
|
| |
Balance as of
Dec. 31, 2020 |
| |||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||
Personnel costs
|
| | | | 584 | | | | | | (584) | | | | | | — | | | | | | — | | | | | | — | | |
Financial statements
|
| | | | 52 | | | | | | (46) | | | | | | 0 | | | | | | 105 | | | | | | 111 | | |
| | | | | 636 | | | | | | (630) | | | | | | 0 | | | | | | 105 | | | | | | 111 | | |
| | |
Total
|
| |||
|
kEUR
|
| |||||
Opening loss allowance as at January 1, 2019
|
| | | | — | | |
Increase in the allowance recognized in profit or loss during the period
|
| | | | — | | |
Closing loss allowance as at December 31, 2019
|
| | | | — | | |
Opening loss allowance as at January 1, 2020
|
| | | | — | | |
Increase in the allowance recognized in profit or loss during the period
|
| | | | 6 | | |
Closing loss allowance as at December 31, 2020
|
| | | | 6 | | |
| | |
Credit risk
rating grade |
| |
Gross carrying
amount (12m ECL) |
| ||||||
|
| |
|
| |
kEUR
|
| ||||||
January 1, 2019
|
| | | | Risk class 1 | | | | | | 1,608 | | |
December 31, 2019
|
| | | | Risk class 1 | | | | | | 777 | | |
December 31, 2020
|
| | | | Risk class 1 | | | | | | 48,709 | | |
| | |
Carrying
amount |
| |
< 1 year
|
| |
1 to 5 years
|
| |
>5 years
|
| ||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||
Trade and other payables
|
| | | | 2,874 | | | | | | 2,874 | | | | | | — | | | | | | — | | |
Loans and participation rights
|
| | | | 5,905 | | | | | | 2,489 | | | | | | 4,260 | | | | | | — | | |
Convertible notes
|
| | | | 6,859 | | | | | | 9,286 | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 1,958 | | | | | | 323 | | | | | | 1,326 | | | | | | 421 | | |
Total December 31, 2020
|
| | | | 17,596 | | | | | | 14,972 | | | | | | 5,586 | | | | | | 421 | | |
| | |
Carrying
amount |
| |
< 1 year
|
| |
1 to 5 years
|
| |
>5 years
|
| ||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||
Trade and other payables
|
| | | | 3,703 | | | | | | 3,703 | | | | | | — | | | | | | — | | |
Loans and participation rights
|
| | | | 6,250 | | | | | | 2,217 | | | | | | 4,914 | | | | | | — | | |
Lease liabilities
|
| | | | 2,228 | | | | | | 319 | | | | | | 1,300 | | | | | | 755 | | |
Total December 31, 2019
|
| | | | 12,181 | | | | | | 6,239 | | | | | | 6,214 | | | | | | 755 | | |
| | |
Carrying
amount |
| |
< 1 year
|
| |
1 to 5 years
|
| |
>5 years
|
| ||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||
Trade and other payables
|
| | | | 5,097 | | | | | | 5,097 | | | | | | — | | | | | | — | | |
Loans and participation rights
|
| | | | 2,067 | | | | | | 146 | | | | | | 2,207 | | | | | | — | | |
Lease liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Total January 1, 2019
|
| | | | 7,164 | | | | | | 5,243 | | | | | | 2,207 | | | | | | — | | |
kEUR
|
| |
December 31, 2020
|
| ||||||||||||||||||
|
carrying
amount |
| |
category
(IFRS 9) |
| |
fair
value |
| |
fair value
level |
| |||||||||||
Noncurrent financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
Deposits
|
| | | | 41 | | | |
AC
|
| | | | 42 | | | | | | 2 | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
PayPal accounts including reserves
|
| | | | 4,655 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Debtor creditors
|
| | | | 539 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Receivables from crowdfunding and deposits
|
| | | | 179 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Other
|
| | | | 31 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Cash and cash equivalents
|
| | | | 43,264 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 3,665 | | | |
FLAC
|
| | | | 3,308 | | | | | | 3 | | |
Lease liabilities
|
| | | | 1,669 | | | |
—
|
| | | | — | | | | | | — | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,240 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
Lease liabilities
|
| | | | 289 | | | |
—
|
| | | | — | | | | | | — | | |
Convertible notes
|
| | | | 6,859 | | | |
FVTPL
|
| | | | 6,859 | | | | | | 3 | | |
Trade and other payables
|
| | | | 2,874 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
kEUR
|
| |
December 31, 2019
|
| ||||||||||||||||||
|
carrying
amount |
| |
category
(IFRS 9) |
| |
fair
value |
| |
fair value
level |
| |||||||||||
Noncurrent financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
Deposits
|
| | | | 28 | | | |
AC
|
| | | | 28 | | | | | | 2 | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
Receivables from crowdfunding and deposits
|
| | | | 341 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Other
|
| | | | 1 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Cash and cash equivalents
|
| | | | 407 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 4,235 | | | |
FLAC
|
| | | | 3,895 | | | | | | 3 | | |
Lease liabilities
|
| | | | 1,947 | | | |
—
|
| | | | — | | | | | | — | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,015 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
Lease liabilities
|
| | | | 281 | | | |
—
|
| | | | — | | | | | | — | | |
Trade and other payables
|
| | | | 3,703 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
kEUR
|
| |
January 1, 2019
|
| ||||||||||||||||||
|
carrying
amount |
| |
category
(IFRS 9) |
| |
fair
value |
| |
fair value
level |
| |||||||||||
Noncurrent financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
Deposits
|
| | | | 11 | | | |
AC
|
| | | | 11 | | | | | | 2 | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets | | | | | | | | | | | | | | | | | | | | | | |
Receivables from crowdfunding and deposits
|
| | | | 80 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Other
|
| | | | 2 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Cash and cash equivalents
|
| | | | 1,515 | | | |
AC
|
| | | | n/a* | | | | | | n/a | | |
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,035 | | | |
FLAC
|
| | | | 1,729 | | | | | | 3 | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 32 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
Trade and other payables
|
| | | | 5,097 | | | |
FLAC
|
| | | | n/a* | | | | | | n/a | | |
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Financial assets measured at amortized cost (AC)
|
| | | | 48,709 | | | | | | 777 | | | | | | 1,608 | | |
Financial liabilities measured at amortized cost (FLAC)
|
| | | | 8,779 | | | | | | 9,953 | | | | | | 7,164 | | |
Financial liabilities measured at fair value through profit or loss (FVTPL)
|
| | | | 6,859 | | | | | | — | | | | | | — | | |
| | |
Fair value at
|
| | | | |
Range of inputs
(most likely outcome) |
| |
Relationship of
unobservable inputs to fair value |
| ||||||
Description
|
| |
Dec. 31,
2020 |
| |
Dec. 31,
2019 |
| |
Jan. 1,
2019 |
| |
Unobservable
input |
| |
Dec. 31,
2020 |
| |||
| | |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| | | | ||||||
Mandatory convertible notes
|
| |
6,859
|
| |
—
|
| |
—
|
| |
Probability of an
‘exit event’ in the second quarter of 2021 |
| |
50% – 100% (75%)
|
| |
An increase of the probability to 100% would increase FV by kEUR 2,170.
A decrease of the probability to 50% would decrease FV by kEUR −2,170. |
|
| | |
Dec. 31, 2020
|
| |
Dec. 31, 2019
|
| |
Jan. 1, 2019
|
| |||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||
Balance at beginning of year
|
| | | | — | | | | | | — | | | | | | — | | |
New transactions
|
| | | | 6,800 | | | | | | — | | | | | | — | | |
Amount presented in other comprehensive income
|
| | | | 21 | | | | | | | | | | | | | | |
Amount presented in profit or loss (interest and other expenses)
|
| | | | 38 | | | | | | — | | | | | | — | | |
Balance at end of year
|
| | | | 6,859 | | | | | | — | | | | | | — | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Net loss for financial assets at amortized cost
|
| | | | 49 | | | | | | 1 | | |
Net loss for financial liabilities at amortized cost
|
| | | | 560 | | | | | | 287 | | |
Net loss for financial liabilities at fair value through profit or loss
|
| | | | 59 | | | | | | — | | |
| | |
Cash-settled
program |
| |
Equity-settled
program |
| ||||||
Staff members
|
| | | | 1 | | | | | | 85 | | |
Managers
|
| | | | — | | | | | | 3 | | |
| | | | | 1 | | | | | | 88 | | |
December 31, 2020
|
| |
Equity-settled
|
| |||
Number of options granted
|
| | | | 1,805,100 | | |
Weighted average fair value at grant date (EUR)
|
| | | | 19.26 | | |
Expense of the period (EUR)
|
| | | | 32,159,781.40 | | |
Increase in equity (EUR)
|
| | | | 32,159,781.40 | | |
2020
|
| |
Share options
|
| |||
January 1, 2020
|
| | | | 0 | | |
Granted
|
| | | | 1,805,100 | | |
Forfeited
|
| | | | 0 | | |
December 31, 2020
|
| | | | 1,805,100 | | |
Input factor
|
| | | | | | |
Weighted average share price (EUR)
|
| | | | 22.01 | | |
Exercise price (EUR)
|
| | | | 0.06 | | |
Expected volatility
|
| | | | 75% | | |
Option life (yrs.)
|
| | | | 1.29 | | |
Expected dividends (EUR)
|
| | | | 0.00 | | |
Risk-free interest rate
|
| | | | (0.73)% | | |
Lack of marketability discount
|
| | | | 14.39% | | |
| | |
2020
|
| |
2019
|
| ||||||
|
EUR
|
| |
EUR
|
| ||||||||
From continuing operations attributable to the ordinary equity holders of the company
|
| | | | (1.66) | | | | | | (0.30) | | |
| | | | | (1.66) | | | | | | (0.30) | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Short-term employee benefits
|
| | | | 558 | | | | | | 589 | | |
Share-based payments*
|
| | | | 5,829 | | | | | | — | | |
Total compensation
|
| | | | 6,387 | | | | | | 589 | | |
| | |
2020
|
| |
2019
|
| ||||||
|
kEUR
|
| |
kEUR
|
| ||||||||
Loans from key management personnel (subordinated crowdfunding loan II)
|
| | | | 2 | | | | | | — | | |
Loans from other related parties
|
| | | | 199 | | | | | | 191 | | |
| | | | | 201 | | | | | | 191 | | |
Advance payments received from key management personnel*
|
| | | | 52 | | | | | | — | | |
Total | | | | | 253 | | | | | | 191 | | |
| | |
Jan. 1, 2019
|
| |
Cash flows
|
| |
Non-cash changes
|
| |
Dec. 31, 2019
|
| ||||||||||||||||||||||||||||||
|
EIR method
|
| |
Additions
|
| |
Other
|
| |
Reclassif.
|
| ||||||||||||||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||||||||
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,035 | | | | | | 3,710 | | | | | | 192 | | | | | | — | | | | | | 281 | | | | | | (1,983) | | | | | | 4,235 | | |
Lease liabilities
|
| | | | — | | | | | | (92) | | | | | | — | | | | | | 2,320 | | | | | | — | | | | | | (281) | | | | | | 1,947 | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 32 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,983 | | | | | | 2,015 | | |
Lease liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 281 | | | | | | 281 | | |
| | | | | 2,067 | | | | | | 3,618 | | | | | | 192 | | | | | | 2,320 | | | | | | 281 | | | | | | — | | | | | | 8,478 | | |
| | |
Jan. 1, 2020
|
| |
Cash flows
|
| |
Non-cash changes
|
| |
Dec. 31, 2020
|
| ||||||||||||||||||||||||||||||
|
EIR method
|
| |
Additions
|
| |
Other
|
| |
Reclassif.
|
| ||||||||||||||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||||||||
Noncurrent financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 4,235 | | | | | | 8,330 | | | | | | 482 | | | | | | (650) | | | | | | (1,648) | | | | | | (7,084) | | | | | | 3,666 | | |
Lease liabilities
|
| | | | 1,947 | | | | | | — | | | | | | — | | | | | | 12 | | | | | | — | | | | | | (290) | | | | | | 1,669 | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and participation rights
|
| | | | 2,015 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 7,084 | | | | | | 9,099 | | |
Lease liabilities
|
| | | | 281 | | | | | | (282) | | | | | | — | | | | | | — | | | | | | — | | | | | | 290 | | | | | | 289 | | |
| | | | | 8,478 | | | | | | 8,049 | | | | | | 482 | | | | | | (638) | | | | | | (1,648) | | | | | | — | | | | | | 14,723 | | |
| | |
HGB
Jan. 1, 2019 |
| |
Adjustments
|
| |
IFRS
Jan. 1, 2019 |
| |||||||||||||||||||||||||||||||||||||||||||||
|
Equipment
|
| |
Leases
|
| |
Advance
payments |
| |
Loans and
participation rights |
| |
Capital
transaction |
| |
Reclassifications
|
| |
Total
|
| |||||||||||||||||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |||||||||||||||||||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Noncurrent assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | 38 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 38 | | |
Property, plant and equipment
|
| | | | 1,404 | | | | | | 54 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 54 | | | | | | 1,458 | | |
Right-of-use assets
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Other financial assets
|
| | | | 11 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 11 | | |
| | | | | 1,453 | | | | | | 54 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 54 | | | | | | 1,507 | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets
|
| | | | 82 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 82 | | |
Other non-financial assets
|
| | | | 620 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 620 | | |
Cash and cash equivalents
|
| | | | 1,515 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,515 | | |
| | | | | 2,217 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,217 | | |
Total assets
|
| | | | 3,670 | | | | | | 54 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 54 | | | | | | 3,724 | | |
EQUITY AND LIABILITIES
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Subscribed capital
|
| | | | 32 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 32 | | |
Capital reserve
|
| | | | 3,332 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (30) | | | | | | — | | | | | | (30) | | | | | | 3,302 | | |
Accumulated deficit
|
| | | | (16,974) | | | | | | 54 | | | | | | — | | | | | | (256) | | | | | | 26 | | | | | | 30 | | | | | | — | | | | | | (146) | | | | | | (17,120) | | |
| | | | | (13,610) | | | | | | 54 | | | | | | — | | | | | | (256) | | | | | | 26 | | | | | | — | | | | | | — | | | | | | (176) | | | | | | (13,786) | | |
Noncurrent liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Advance payments received from customers
|
| | | | 9,693 | | | | | | — | | | | | | — | | | | | | 256 | | | | | | — | | | | | | — | | | | | | — | | | | | | 256 | | | | | | 9,949 | | |
Financial liabilities
|
| | | | 2,093 | | | | | | — | | | | | | — | | | | | | — | | | | | | (26) | | | | | | — | | | | | | (32) | | | | | | (58) | | | | | | 2,035 | | |
| | | | | 11,786 | | | | | | — | | | | | | — | | | | | | 256 | | | | | | (26) | | | | | | — | | | | | | (32) | | | | | | 198 | | | | | | 11,984 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 32 | | | | | | 32 | | | | | | 32 | | |
Trade and other payables
|
| | | | 5,097 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 5,097 | | |
Other liabilities
|
| | | | 73 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 106 | | | | | | 106 | | | | | | 179 | | |
Provisions
|
| | | | 324 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (106) | | | | | | (106) | | | | | | 218 | | |
| | | | | 5,494 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 32 | | | | | | 32 | | | | | | 5,526 | | |
Total equity and liabilities
|
| | | | 3,670 | | | | | | 54 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 54 | | | | | | 3,724 | | |
| | |
HGB
Dec. 31, 2019 |
| |
Adjustments
|
| |
IFRS
Dec. 31, 2019 |
| |||||||||||||||||||||||||||||||||||||||||||||||||||
|
Opening
Balance Adj. |
| |
Equipment
|
| |
Leases
|
| |
Advance
payments |
| |
Loans and
participation rights |
| |
Capital
transaction |
| |
Reclassifications
|
| |
Total
|
| ||||||||||||||||||||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||||||||||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Noncurrent assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | 27 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 27 | | |
Property, plant and equipment
|
| | | | 2,446 | | | | | | 54 | | | | | | (3) | | | | | | (28) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 23 | | | | | | 2,469 | | |
Right-of-use assets
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,235 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,235 | | | | | | 2,235 | | |
Other financial assets
|
| | | | 28 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 28 | | |
| | | | | 2,501 | | | | | | 54 | | | | | | (3) | | | | | | 2,207 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,258 | | | | | | 4,759 | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other financial assets
|
| | | | 342 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 342 | | |
Other non-financial assets
|
| | | | 193 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 193 | | |
Cash and cash equivalents
|
| | | | 407 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 407 | | |
| | | | | 942 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 942 | | |
Total assets
|
| | | | 3,443 | | | | | | 54 | | | | | | (3) | | | | | | 2,207 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,258 | | | | | | 5,701 | | |
EQUITY AND LIABILITIES
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Subscribed capital
|
| | | | 34 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 34 | | |
Capital reserve
|
| | | | 8,628 | | | | | | (30) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (109) | | | | | | — | | | | | | (139) | | | | | | 8,489 | | |
Retained earnings
|
| | | | (26,651) | | | | | | (146) | | | | | | (3) | | | | | | (21) | | | | | | (415) | | | | | | 36 | | | | | | 109 | | | | | | — | | | | | | (440) | | | | | | (27,091) | | |
| | | | | (17,989) | | | | | | (176) | | | | | | (3) | | | | | | (21) | | | | | | (415) | | | | | | 36 | | | | | | — | | | | | | — | | | | | | (579) | | | | | | (18,568) | | |
Noncurrent liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Advance payments received from customers
|
| | | | 10,493 | | | | | | 256 | | | | | | — | | | | | | — | | | | | | 415 | | | | | | — | | | | | | — | | | | | | — | | | | | | 671 | | | | | | 11,164 | | |
Financial liabilities
|
| | | | 6,312 | | | | | | (16) | | | | | | — | | | | | | 1,947 | | | | | | — | | | | | | (35) | | | | | | — | | | | | | (2,026) | | | | | | (130) | | | | | | 6,182 | | |
| | | | | 16,805 | | | | | | 240 | | | | | | — | | | | | | 1,947 | | | | | | 415 | | | | | | (35) | | | | | | — | | | | | | (2,026) | | | | | | 541 | | | | | | 17,346 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial liabilities
|
| | | | — | | | | | | (10) | | | | | | — | | | | | | 281 | | | | | | — | | | | | | (1) | | | | | | — | | | | | | 2,026 | | | | | | 2,296 | | | | | | 2,296 | | |
Trade and other payables
|
| | | | 3,703 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,703 | | |
Other liabilities
|
| | | | 127 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 161 | | | | | | 161 | | | | | | 288 | | |
Provisions
|
| | | | 797 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (161) | | | | | | (161) | | | | | | 636 | | |
| | | | | 4,627 | | | | | | (10) | | | | | | — | | | | | | 281 | | | | | | — | | | | | | (1) | | | | | | — | | | | | | 2,026 | | | | | | 2,296 | | | | | | 6,923 | | |
Total equity and liabilities
|
| | | | 3,443 | | | | | | 54 | | | | | | (3) | | | | | | 2,207 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,258 | | | | | | 5,701 | | |
| | |
HGB
2019 |
| |
Adjustments
|
| |
IFRS
2019 |
| |||||||||||||||||||||||||||||||||||||||
|
Equipment
|
| |
Leases
|
| |
Advance
payments |
| |
Loans and
participation rights |
| |
Capital
transaction |
| |
Total
|
| ||||||||||||||||||||||||||||||||
|
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| |
kEUR
|
| ||||||||||||||||||||||||||
Revenue
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Cost of sale
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gross result
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Cost of research and development
|
| | | | (4,944) | | | | | | (1) | | | | | | 0 | | | | | | — | | | | | | — | | | | | | 8 | | | | | | 7 | | | | | | (4,937) | | |
Selling and distribution costs
|
| | | | (2,135) | | | | | | (1) | | | | | | 1 | | | | | | — | | | | | | — | | | | | | — | | | | | | 0 | | | | | | (2,135) | | |
General and administrative expenses
|
| | | | (2,555) | | | | | | (1) | | | | | | — | | | | | | — | | | | | | 37 | | | | | | 102 | | | | | | 138 | | | | | | (2,417) | | |
Other operating income/expenses
|
| | | | 220 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 220 | | |
Operating Loss
|
| | | | (9,414) | | | | | | (3) | | | | | | 1 | | | | | | — | | | | | | 37 | | | | | | 110 | | | | | | 145 | | | | | | (9,269) | | |
Interest and other expenses
|
| | | | (263) | | | | | | — | | | | | | (24) | | | | | | (415) | | | | | | — | | | | | | — | | | | | | (439) | | | | | | (702) | | |
Loss before tax
|
| | | | (9,677) | | | | | | (3) | | | | | | (23) | | | | | | (415) | | | | | | 37 | | | | | | 110 | | | | | | (294) | | | | | | (9,971) | | |
Taxes on income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Loss for the period
|
| | | | (9,677) | | | | | | (3) | | | | | | (23) | | | | | | (415) | | | | | | 37 | | | | | | 110 | | | | | | (294) | | | | | | (9,971) | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Total comprehensive loss for the
period |
| | | | (9,677) | | | | | | (3) | | | | | | (23) | | | | | | (415) | | | | | | 37 | | | | | | 110 | | | | | | (294) | | | | | | (9,971) | | |
| | | |
BERENBERG
|
| | | |
| | | | | ||||
| | | |
CRAIG-HALLUM
|
| |
|
Exhibit
Number |
| |
Description of Exhibit
|
|
|
1.1
|
| | Form of Underwriting Agreement* | |
|
3.1
|
| | Form of Post-IPO Articles of Association of Sono Group N.V. (translated into English) | |
|
3.2
|
| | Form of internal rules of the Management Board of Sono Group N.V.* | |
|
3.3
|
| | Form of internal rules of the Supervisory Board of Sono Group N.V. * | |
|
3.4
|
| | Form of Deed of Issue | |
|
4.1
|
| | Form of Registration Rights Agreement* | |
|
4.2
|
| | | |
|
5.1
|
| | Opinion of NautaDutilh N.V., Dutch counsel of Sono Motors, as to the validity of the common shares* | |
|
8.1
|
| | Opinion of NautaDutilh N.V., Dutch counsel of Sono Motors, as to Dutch tax matters | |
|
8.2
|
| | Opinion of Sullivan & Cromwell LLP as to U.S. tax matters* | |
|
8.3
|
| | Opinion of Ebner Stolz Mönning Bachem Wirtschaftsprüfer Steuerberater Rechtsanwälte Partnerschaft mbB as to German tax matters* | |
|
10.1
|
| | | |
|
10.2
|
| | | |
|
10.3
|
| | Form of Indemnification Agreement between Sono Group N.V. and members of the management board | |
|
10.4
|
| | Form of Indemnification Agreement between Sono Group N.V. and members of the supervisory board | |
|
14.1
|
| | Code of Ethics of Sono Motors* | |
|
21.1
|
| | | |
|
23.1
|
| | Consent of PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft | |
|
23.2
|
| | Consent of NautaDutilh N.V. (included in Exhibit 8.1) | |
|
23.3
|
| | Consent of Sullivan & Cromwell LLP* (included in Exhibit 8.2) | |
|
23.4
|
| | Consent of Ebner Stolz Mönning Bachem Wirtschaftsprüfer Steuerberater Rechtsanwälte Partnerschaft mbB* (included in Exhibit 8.3) | |
|
24.1
|
| | Powers of Attorney (included on signature page to the registration statement) | |
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ Laurin Hahn
Laurin Hahn
|
| | Chief Executive Officer and Member of the Management Board | | |
October 22, 2021
|
|
|
/s/ Jona Christians
Jona Christians
|
| | Chief Executive Officer and Member of the Management Board | | |
October 22, 2021
|
|
|
/s/ Torsten Kiedel
Torsten Kiedel
|
| | Chief Financial Officer, Controller/Principal Accounting Officer | | |
October 22, 2021
|
|
Exhibit 3.1
1
POST-IPO ARTICLES OF ASSOCIATION
DEFINITIONS AND INTERPRETATION
Article | 1 |
1.1 | In these articles of association the following definitions shall apply: |
Article | An article of these articles of association. |
CEO | A chief executive officer of the Company. |
Chairperson | The chairperson of the Supervisory Board. |
Class Meeting | The meeting formed by the Persons with Meeting Rights with respect to shares of a certain class. |
Company | The company to which these articles of association pertain. |
DCC | The Dutch Civil Code. |
General Meeting | The Company's general meeting. |
Group Company | An entity or partnership which is organisationally connected with the Company in an economic unit within the meaning of Section 2:24b DCC. |
Indemnified Officer | A current or former Managing Director or Supervisory Director or such other current or former officer or employee of the Company or its Group Companies as designated by the Management Board. |
Majority Shareholders | Laurin Sinan Paul Hahn, born in Munich, Germany, on the eighteenth day of May nineteen hundred and ninety-four, and Jona Johannes Christians, born in Munich, Germany, on the first day of June nineteen hundred and ninety-three. |
Management Board | The Company's management board. |
Management Board Rules | The internal rules applicable to the Management Board, as drawn up by the Management Board. |
Managing Director | A member of the Management Board. |
Meeting Rights | With respect to the Company, the rights attributed by law to the holders of depository receipts issued for shares with a company's cooperation, including the right to attend and address a General Meeting. |
Person with Meeting Rights |
A shareholder, a usufructuary or pledgee with voting rights or a holder of depository receipts for shares issued with the Company's cooperation. |
2
1.2 | Unless the context requires otherwise, references to "shares" or "shareholders" without further specification are to shares in the Company's capital, irrespective of their class, or to the holders thereof, respectively. |
1.3 | References to statutory provisions are to those provisions as they are in force from time to time. |
1.4 | Terms that are defined in the singular have a corresponding meaning in the plural. |
1.5 | Words denoting a gender include each other gender. |
1.6 | Except as otherwise required by law, the terms "written" and "in writing" include the use of electronic means of communication. |
NAME AND SEAT
Article | 2 |
2.1 | The Company's name is Sono Group N.V. |
2.2 | The Company has its corporate seat in Amsterdam. |
OBJECTS
Article | 3 |
The Company's objects are:
a. | the design, development, manufacturing and production of electric vehicles, including solar integration technology, as well as products related to mobility, especially e-mobility; |
b. | the design, development, manufacturing, production, integration into and licensing of solar panels for mobility applications and consumer products; |
c. | the design, development, licensing and operation of software based mobility services; |
d. | to develop electronic applications; |
e. | to incorporate, to participate in, to finance, to hold any other interest in and to conduct the management or supervision of other entities, companies, partnerships and businesses; |
f. | to acquire, to manage, to invest, to exploit, to encumber and to dispose of assets and liabilities; |
g. | to furnish guarantees, to provide security, to warrant performance in any other way and to assume liability, whether jointly and severally or otherwise, in respect of obligations of Group Companies or other parties; and |
h. | to do anything which, in the widest sense, is connected with or may be conducive to the objects described above. |
3
Environment
Article | 4 |
4.1 | The planet, humankind and society are important stakeholders of the Company and the highest principle pursued by the Company as part of its objects is the protection of the environment, nature and humankind. This principle shall form the foundation of the actions of the Company and the decisions of the Management Board and the Supervisory Board. On the basis of that premise: |
a. | the Management Board shall monitor for and, to the extent possible and practicable, is expected to favour environmentally friendly alternatives for existing operations of the Company and its Subsidiaries, in particular if those alternatives are more efficient in terms of resource consumption; |
b. | additional costs or other increased expenditures shall not constitute a decisive factor when deciding whether or not to pursue an environmentally superior alternative for existing operations of the Company and its Subsidiaries; |
c. | products designed, developed, manufactured or produced by the Company and its Subsidiaries should be durable, recyclable and sustainable; and |
d. | the Management Board and the Supervisory Board may let the interests of the planet, humankind and society outweigh the interests of other stakeholders of the Company, provided that the interests of the latter stakeholders are not unnecessarily or disproportionately harmed. |
4.2 | A Managing Director or Supervisory Director who repeatedly and consistently violates the principles of this Article 4 shall be considered to have breached his statutory duty to act in the best interests of the Company and its business. |
4.3 | A resolution to amend the text or purport of this Article 4 shall require a unanimous vote in a General Meeting where the entire issued share capital is represented. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
4
SHARES - AUTHORISED SHARE CAPITAL AND DEPOSITORY RECEIPTS
Article | 5 |
5.1 | The Company's authorised share capital amounts to twenty-five million two hundred thousand euro (EUR 25,200,000). |
5.2 | The authorised share capital is divided into: |
a. | three hundred twenty million (320,000,000) ordinary shares, each having a nominal value of six eurocents (EUR 0.06); and |
b. | four million (4,000,000) high voting shares, each having a nominal value of one euro and fifty eurocents (EUR 1.50). |
5.3 | Upon the conversion of one or more high voting shares into ordinary shares in accordance with Article 7, the authorised share capital set out in Article 5.2 shall decrease with the number of high voting shares so converted and shall increase with the number of ordinary shares into which such high voting shares are converted. |
5.4 | The Management Board may resolve that one or more shares are divided into such number of fractional shares as may be determined by the Management Board. Unless specified differently, the provisions of these articles of association concerning shares and shareholders apply mutatis mutandis to fractional shares and the holders thereof, respectively. |
5.5 | The Company may cooperate with the issue of depository receipts for shares in its capital. |
SHARES - FORM AND SHARE REGISTER
Article | 6 |
6.1 | All shares are in registered form, provided that the Management Board may resolve that one or more ordinary shares are in bearer form. The Company may issue share certificates for shares in registered form as may be approved by the Management Board. Ordinary shares in bearer form shall be issued in the form of a global share certificate approved by the Management Board which is delivered into custody with the central securities depository or an affiliated intermediary within the meaning of Section 1 of the Dutch Giro Transfer Securities Act. Each Managing Director is authorised to sign any such share certificate or global share certificate on behalf of the Company. |
6.2 | The Management Board is not obliged to grant a request by a shareholder to convert one or more of its registered shares into bearer shares or vice versa. If the Management Board decides to grant such a request, the costs of such conversion shall be charged to the relevant shareholder. |
6.3 | Registered shares shall be numbered consecutively per class of shares, starting from 1. |
6.4 | The Management Board shall keep a register setting out the names and addresses of all holders of registered shares and all holders of a usufruct or pledge in respect of those shares. The register shall also set out any other particulars that must be included in the register pursuant to applicable law. Part of the register may be kept outside the Netherlands to comply with applicable local law or pursuant to stock exchange rules. |
5
6.5 | Shareholders, usufructuaries and pledgees shall provide the Management Board with the necessary particulars in a timely fashion. Any consequences of not, or incorrectly, notifying such particulars shall be borne by the party concerned. |
6.6 | All notifications may be sent to shareholders, usufructuaries and pledgees at their respective addresses as set out in the register. |
6.7 | The former holder of a lost global share certificate issued for bearer shares may request the Company to provide him with a duplicate of the lost global share certificate. The Company shall only issue such duplicate: |
a. | if the requesting party can demonstrate, to the satisfaction of the Management Board, that that party is indeed entitled to receive such duplicate; and |
b. | if a period of four weeks has elapsed since the request was published on the Company's website, without the Company having received any opposition to that request within that period. |
6.8 | If the Company receives a timely opposition as referred to in Article 6.7 paragraph b., the Company shall only provide the duplicate to the requesting party after it has been provided with a copy of a binding opinion or court order to provide that duplicate, without the need for the Company to examine the authority of the relevant arbitrators or court, respectively, or the validity of that binding opinion or order, respectively. |
6.9 | After a duplicate of a global share certificate issued for bearer shares has been issued by the Company, that duplicate shall replace the original global share certificate and no further rights may be derived from the global share certificate thus replaced. |
SHARES - CONVERSION OF HIGH VOTING SHARES
Article | 7 |
7.1 | Each high voting share can be converted into twenty five (25) ordinary shares subject to the provisions of this Article 7. Ordinary shares cannot be converted into high voting shares. |
7.2 | Each holder of one or more high voting shares may request the conversion of all or part of such high voting shares into ordinary shares in the ratio set out in Article 7.1 by means of a written request addressed to the Management Board. Such a request must be signed by the relevant shareholder (or an authorised representative of such shareholder) and must include: |
a. | a specification of the number of high voting shares to which the request pertains; |
b. | representations by the shareholder concerned that: |
i. | the high voting shares to which the request pertains are not encumbered with any usufruct, pledge or other encumbrance; |
ii. | no depository receipts or other derivative financial instruments have been issued for the high voting shares to which the request pertain; and |
iii. | the shareholder concerned has full power to dispose over its assets and is authorised to perform the acts described in Article 7.3; |
6
c. | an irrevocable undertaking in favour of the Company by the shareholder concerned: |
i. | to take no action (and not to omit taking any action) which would render the representations referred to in paragraph b. above inaccurate or incomplete upon the performance of the acts described in Article 7.3; and |
ii. | to indemnify the Company and hold the Company harmless against any financial losses or damages incurred by the Company and any expense reasonably paid or incurred by the Company in connection with any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative or other nature, formal or informal, in which the Company becomes involved as a result of the conversion so requested, in each case to the extent permitted by applicable law and except to the extent that a competent court or arbitral tribunal has established, without having (or no longer having) the possibility for appeal, that such financial losses, damages, expenses, suit, claim, action or legal proceedings were incurred, arose or were initiated as a result of actions or omissions by the Company which are considered to constitute malice, gross negligence or intentional recklessness attributable to the Company; and |
d. | an irrevocable and unconditional power of attorney granted by the relevant shareholder to the Company, with full power of substitution and governed by Dutch law, to perform the acts described in Article 7.3 on behalf of such shareholder. |
7.3 | Upon receipt of a request referred to in Article 7.2: |
a. | the Management Board shall resolve to convert the number of high voting shares specified in the request into ordinary shares in the ratio set out in Article 7.1, effective immediately; and |
b. | promptly following the conversion referred to in paragraph a. above, the shareholder who made such request shall transfer twenty-four out of every twenty-five ordinary shares into which its high voting shares were converted pursuant to the resolution referred to in paragraph a. above to the Company for no consideration and the Company shall accept such ordinary shares. |
7.4 | Neither the Management Board nor the Company is required to effect a conversion of high voting shares: |
a. | if the request referred to in Article 7.2 does not comply with the specifications and requirements set out in Article 7.2 or if the Management Board reasonably believes that the information included in such request is incorrect or incomplete; or |
b. | to the extent that the Company would not be permitted under mandatory Dutch law to acquire the relevant number of ordinary shares as described in Article 7.3 paragraph b. in connection with such conversion. |
7
SHARES - ISSUE
Article | 8 |
8.1 | The Company can only issue shares pursuant to a resolution of the General Meeting or of another body authorised by the General Meeting for this purpose for a specified period not exceeding five years. When granting such authorisation, the number of shares that may be issued must be specified. The authorisation may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorisation, the authorisation cannot be revoked. For as long as and to the extent that another body has been authorised to resolve to issue shares, the General Meeting shall not have this authority. |
8.2 | In order for a resolution of the General Meeting on an issuance or an authorisation as referred to in Article 8.1 to be valid, a prior or simultaneous approval shall be required from each Class Meeting of shares whose rights are prejudiced by the issuance. |
8.3 | The preceding provisions of this Article 8 apply mutatis mutandis to the granting of rights to subscribe for shares, but do not apply in respect of issuing shares to a party exercising a previously acquired right to subscribe for shares. |
8.4 | The Company may not subscribe for shares in its own capital. |
SHARES - PRE-EMPTION RIGHTS
Article | 9 |
9.1 | Upon an issue of ordinary shares or high voting shares, each shareholder shall have a pre-emption right in proportion to the aggregate nominal value of his ordinary shares and/or high voting shares. |
9.2 | In deviation of Article 9.1, shareholders do not have pre-emption rights in respect of: |
a. | shares issued against non-cash contribution; or |
b. | shares issued to employees of the Company or of a Group Company. |
9.3 | The Company shall announce an issue with pre-emption rights and the period during which those rights can be exercised in the State Gazette and in a daily newspaper with national distribution, unless all shares are in registered form and the announcement is sent in writing to all shareholders at the addresses submitted by them. |
9.4 | Pre-emption rights may be exercised for a period of at least two weeks after the date of announcement in the State Gazette or after the announcement was sent to the shareholders. |
9.5 | Pre-emption rights may be limited or excluded by a resolution of the General Meeting or of the body authorised as referred to in Article 8.1, if that body was authorised by the General Meeting for this purpose for a specified period not exceeding five years. The authorisation may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorisation, the authorisation cannot be revoked. For as long as and to the extent that another body has been authorised to resolve to limit or exclude pre-emption rights, the General Meeting shall not have this authority. |
9.6 | A resolution of the General Meeting to limit or exclude pre-emption rights, or to grant an authorisation as referred to in Article 9.5, shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting. |
9.7 | The preceding provisions of this Article 9 apply mutatis mutandis to the granting of rights to subscribe for shares, but do not apply in respect of issuing shares to a party exercising a previously acquired right to subscribe for shares. |
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SHARES - PAYMENT
Article | 10 |
10.1 | Without prejudice to Section 2:80(2) DCC, the nominal value of a share and, if the share is subscribed for at a higher price, the difference between these amounts must be paid up upon subscription for that share. |
10.2 | Shares must be paid up in cash, except to the extent that payment by means of a contribution in another form has been agreed. |
10.3 | Payment in a currency other than the euro can only be made with the Company's consent. Where such a payment is made, the payment obligation is satisfied for the amount in euro for which the paid amount can be freely exchanged. The date of the payment determines the exchange rate. |
SHARES - FINANCIAL ASSISTANCE
Article | 11 |
11.1 | The Company may not provide security, give a price guarantee, warrant performance in any other way or commit itself jointly and severally or otherwise with or for others with a view to the subscription for or acquisition of shares or depository receipts for shares in its capital by others. This prohibition applies equally to Subsidiaries. |
11.2 | The Company and its Subsidiaries may not provide loans with a view to the subscription for or acquisition of shares or depository receipts for shares in the Company's capital by others, unless the Management Board resolves to do so and Section 2:98c DCC is observed. |
11.3 | The preceding provisions of this Article 11 do not apply if shares or depository receipts for shares are subscribed for or acquired by or for employees of the Company or of a Group Company. |
SHARES - ACQUISITION OF OWN SHARES
Article | 12 |
12.1 | The acquisition by the Company of shares in its own capital which have not been fully paid up shall be null and void. |
12.2 | The Company may only acquire fully paid up shares in its own capital for no consideration or if and to the extent that the General Meeting has authorised the Management Board for this purpose and all other relevant statutory requirements of Section 2:98 DCC are observed. |
12.3 | An authorisation as referred to in Article 12.2 remains valid for no longer than eighteen months. When granting such authorisation, the General Meeting shall determine the number of shares that may be acquired, how they may be acquired and within which range the acquisition price must be. An authorisation shall not be required for the Company to acquire ordinary shares in its own capital in order to transfer them to employees of the Company or of a Group Company pursuant to an arrangement applicable to them, provided that these ordinary shares are included on the price list of a stock exchange. |
12.4 | Without prejudice to Articles 12.1 through 12.3, the Company may acquire shares in its own capital for cash consideration or for consideration satisfied in the form of assets. In the case of a consideration being satisfied in the form of assets, the value thereof, as determined by the Management Board, must be within the range stipulated by the General Meeting as referred to in Article 12.3. |
12.5 | The previous provisions of this Article 12 do not apply to shares acquired by the Company under universal title of succession. |
12.6 | In this Article 12, references to shares include depository receipts for shares. |
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SHARES - REDUCTION OF ISSUED SHARE CAPITAL
Article | 13 |
13.1 | The General Meeting can resolve to reduce the Company's issued share capital by cancelling shares or by reducing the nominal value of shares by virtue of an amendment to these articles of association. The resolution must designate the shares to which the resolution relates and it must provide for the implementation of the resolution. |
13.2 | A resolution to cancel shares can only relate to: |
a. | shares held by the Company itself or in respect of which the Company holds the depository receipts; and |
b. | all high voting shares, with repayment of the amounts paid up in respect thereof. |
13.3 | A resolution to reduce the Company's issued share capital, shall require a prior or simultaneous approval from each Class Meeting of shares whose rights are prejudiced. However, if such a resolution relates to high voting shares, such resolution shall always require the prior or simultaneous approval of the Class Meeting concerned. |
13.4 | A resolution of the General Meeting to reduce the Company's issued share capital shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting. The previous sentence applies mutatis mutandis to a resolution as referred to in Article 13.3. |
SHARES - ISSUE AND TRANSFER REQUIREMENTS
Article | 14 |
14.1 | Subject to Sections 2:86c, 10:138, 10:140 and 10:141 DCC, the issue or transfer of a share or the creation of a limited right in respect of a share shall require a deed to that effect executed before a civil law notary practising in the Netherlands and to which the parties involved are parties. |
14.2 | The acknowledgement shall be set out in the deed or shall be made in such other manner as prescribed by law. |
14.3 | For as long as any ordinary shares are admitted to trading on the New York Stock Exchange, the NASDAQ Stock Market or on any other regulated stock exchange operating in the United States of America, the laws of the State of New York shall apply to the property law aspects of the ordinary shares reflected in the register administered by the relevant transfer agent, without prejudice to the applicable provisions of Chapters 4 and 5 of Title 10 of Book 10 DCC. |
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SHARES - USUFRUCT AND PLEDGE
Article | 15 |
15.1 | Shares can be encumbered with a usufruct or pledge. The creation of a pledge on high voting shares shall require the prior approval of the Management Board. |
15.2 | The voting rights attached to a share which is subject to a usufruct or pledge vest in the shareholder concerned. |
15.3 | In deviation of Article 15.2: |
a. | the holder of a usufruct or pledge on ordinary shares shall have the voting rights attached thereto if this was provided when the usufruct or pledge was created; and |
b. | the holder of a usufruct or pledge on high voting shares shall have the voting rights attached thereto if this was provided when the usufruct or pledge was created and this was approved by the Management Board. |
15.4 | Usufructuaries and pledgees without voting rights shall not have Meeting Rights. |
SHARES - TRANSFER RESTRICTIONS
Article | 16 |
16.1 | A transfer of high voting shares shall require the prior approval of the Management Board. A high voting shareholder wishing to transfer high voting shares must first request the Management Board to grant such approval. A transfer of ordinary shares is not subject to transfer restrictions under these articles of association. |
16.2 | A transfer of high voting shares to which the request for approval relates must take place within three months after the approval of the Management Board has been granted or is deemed to have been granted pursuant to Article 16.3. |
16.3 | The approval of the Management Board shall be deemed to have been granted: |
a. | if no resolution granting or denying the approval has been passed by the Management Board within three months after the Company has received the request for approval; or |
b. | if the Management Board, when denying the approval, does not notify the requesting high voting shareholder of the identity of one or more interested parties willing to purchase the relevant high voting shares. |
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16.4 | If the Management Board denies the approval and notifies the requesting high voting shareholder of the identity of one or more interested parties, the requesting high voting shareholder shall notify the Management Board within two weeks after having received such notice whether: |
a. | he withdraws his request for approval, in which case the requesting high voting shareholder cannot transfer the relevant high voting shares; or |
b. | he accepts the interested party(ies), in which case the requesting high voting shareholder shall promptly enter into negotiations with the interested party(ies) regarding the price to be paid for the relevant high voting shares. |
If the requesting high voting shareholder does not notify the Management Board of his choice in a timely fashion, he shall be deemed to have withdrawn his request for approval, in which case he cannot transfer the relevant high voting shares.
16.5 | If an agreement is reached in the negotiations referred to in Article 16.4 paragraph b. within two weeks after the end of the period referred to in Article 16.4, the relevant high voting shares shall be transferred for the agreed price within three months after such agreement having been reached. If no agreement is reached in these negotiations in a timely fashion: |
a. | the requesting high voting shareholder shall promptly notify the Management Board thereof; and |
b. | the price to be paid for the relevant high voting shares shall be equal to the value thereof, as determined by one or more independent experts to be appointed by the requesting high voting shareholder and the interested party(ies) by mutual agreement. |
16.6 | If no agreement is reached on the appointment of the independent expert(s) as referred to in Article 16.5 paragraph b. within two weeks after the end of the period referred to in Article 16.5: |
a. | the requesting high voting shareholder shall promptly notify the Management Board thereof; and |
b. | the requesting high voting shareholder shall promptly request the president of the district court in whose district the Company has its corporate seat to appoint three independent experts to determine the value of the relevant high voting shares. |
16.7 | If and when the value of the relevant high voting shares has been determined by the independent expert(s), irrespective of whether he/they was/were appointed by mutual agreement or by the president of the relevant district court, the requesting high voting shareholder shall promptly notify the Management Board of the value so determined. The Management Board shall then promptly inform the interested party(ies) of such value, following which the/each interested party may withdraw from the sale procedure by giving notice thereof to the Management Board within two weeks. |
16.8 | If any interested party withdraws from the sale procedure in accordance with Article 16.7, the Management Board: |
a. | shall promptly inform the requesting high voting shareholder and the other interested party(ies), if any, thereof; and |
b. | shall give the opportunity to the/each other interested party, if any, to declare to the Management Board and the requesting high voting shareholder, within two weeks, his willingness to acquire the high voting shares having become available as a result of the withdrawal, for the price determined by the independent expert(s) (with the Management Board being entitled to determine the allocation of such high voting shares among any such willing interested party(ies) at its absolute discretion). |
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16.9 | If it becomes apparent to the Management Board that all relevant high voting shares can be transferred to one or more interested parties for the price determined by the independent expert(s), the Management Board shall promptly notify the requesting high voting shareholder and such interested party(ies) thereof. Within three months after sending such notice the relevant high voting shares shall be transferred. |
16.10 | If it becomes apparent to the Management Board that not all relevant high voting shares can be transferred to one or more interested parties for the price determined by the independent expert(s): |
a. | the Management Board shall promptly notify the requesting high voting shareholder thereof; and |
b. | the requesting high voting shareholder shall be free to transfer all relevant high voting shares, provided that the transfer takes place within three months after having received the notice referred to in paragraph a. |
16.11 | The Company may only be an interested party under this Article 16 with the consent of the requesting high voting shareholder. |
16.12 | All notices given pursuant to this Article 16 shall be provided in writing. |
16.13 | The preceding provisions of this Article 16 do not apply: |
a. | to the extent that a high voting shareholder is under a statutory obligation to transfer high voting shares to a previous holder thereof; |
b. | if it concerns a transfer in connection with an enforcement of a pledge pursuant to Section 3:248 DCC in conjunction with Section 3:250 or 3:251 DCC; or |
c. | if it concerns a transfer to the Company, except in the case that the Company acts as an interested party pursuant to Article 16.11. |
16.14 | This Article 16 applies mutatis mutandis in case of a transfer of rights to subscribe for high voting shares. |
MANAGEMENT BOARD - COMPOSITION
Article | 17 |
17.1 | The Company has a Management Board consisting of one or more Managing Directors. The Management Board shall be composed of individuals. |
17.2 | The Supervisory Board shall determine the number of Managing Directors. |
17.3 | The Supervisory Board shall elect one or more Managing Directors to be CEO. The Supervisory Board may dismiss each CEO, provided that the Managing Director so dismissed shall subsequently continue his term of office as a Managing Director without having the title of CEO. |
17.4 | If a Managing Director is absent or incapacitated, he may be replaced temporarily by a person whom the Management Board has designated for that purpose and, until then, the other Managing Director(s) shall be charged with the management of the Company. If all Managing Directors are absent or incapacitated, the management of the Company shall be attributed to the Supervisory Board. The person(s) charged with the management of the Company in this manner, may designate one or more persons to be charged with the management of the Company instead of, or together with, such person(s). |
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17.5 | A Managing Director shall be considered to be unable to act within the meaning of Article 17.4: |
a. | during the existence of a vacancy on the Management Board, including as a result of: |
i. | his death; |
ii. | his dismissal by the General Meeting, other than at the proposal of the Supervisory Board; or |
iii. | his voluntary resignation before his term of office has expired; |
iv. | not being reappointed by the General Meeting, notwithstanding a (binding) nomination to that effect by the Supervisory Board, |
provided that the Supervisory Board may always decide to decrease the number of Managing Directors such that a vacancy no longer exists; or
b. | during his suspension; |
c. | in a period during which the Company has not been able to contact him (including as a result of illness), provided that such period lasted longer than five consecutive days (or such other period as determined by the Supervisory Board on the basis of the facts and circumstances at hand); or |
d. | in connection with and during the deliberations and decision-making of the Management Board on matters in relation to which he has declared to have, or in relation to which the Supervisory Board has established that he has, a conflict of interests as described in Article 20.6. |
MANAGEMENT BOARD - APPOINTMENT, SUSPENSION AND DISMISSAL
Article | 18 |
18.1 | The General Meeting shall appoint the Managing Directors and may at any time suspend or dismiss any Managing Director. In addition, the Supervisory Board may at any time suspend a Managing Director. A suspension by the Supervisory Board can at any time be lifted by the General Meeting. |
18.2 | The General Meeting can only appoint Managing Directors upon a nomination by the Supervisory Board. The General Meeting may at any time resolve to render such nomination to be non-binding by a majority of at least two thirds of the votes cast representing more than half of the issued share capital. If a nomination is rendered non-binding, a new nomination shall be made by the Supervisory Board. If the nomination comprises one candidate for a vacancy, a resolution concerning the nomination shall result in the appointment of the candidate, unless the nomination is rendered non-binding. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
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18.3 | At a General Meeting, a resolution to appoint a Managing Director can only be passed in respect of candidates whose names are stated for that purpose in the agenda of that General Meeting or the explanatory notes thereto. |
18.4 | A resolution of the General Meeting to suspend or dismiss a Managing Director shall require a majority of at least two thirds of the votes cast representing more than half of the issued share capital, unless the resolution is passed at the proposal of the Supervisory Board. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
18.5 | If a Managing Director is suspended and the General Meeting does not resolve to dismiss him within three months from the date of such suspension, the suspension shall lapse. |
MANAGEMENT BOARD - DUTIES AND ORGANISATION
Article | 19 |
19.1 | The Management Board is charged with the management of the Company, subject to the restrictions contained in these articles of association. This includes in any event setting the Company's policy and strategy. In performing their duties, Managing Directors shall be guided by the interests of the Company and of the business connected with it, with due observance of Article 4. |
19.2 | The Management Board shall draw up Management Board Rules concerning its organisation, decision-making and other internal matters, with due observance of these articles of association. In performing their duties, the Managing Directors shall act in compliance with the Management Board Rules. |
19.3 | The Management Board may perform the legal acts referred to in Section 2:94(1) DCC without the prior approval of the General Meeting. |
MANAGEMENT BOARD - DECISION-MAKING
Article | 20 |
20.1 | Without prejudice to Article 20.5, each Managing Director may cast one vote in the decision-making of the Management Board. |
20.2 | A Managing Director can be represented by another Managing Director holding a written proxy for the purpose of the deliberations and the decision-making of the Management Board. |
20.3 | Resolutions of the Management Board shall be passed, irrespective of whether this occurs at a meeting or otherwise, by Simple Majority unless the Management Board Rules provide differently. |
20.4 | Invalid votes, blank votes and abstentions shall not be counted as votes cast. Managing Directors who casted an invalid or blank vote or who abstained from voting shall be taken into account when determining the number of Managing Directors who are present or represented at a meeting of the Management Board. |
20.5 | Where there is a tie in any vote of the Management Board, the CEOs, collectively, shall have a casting vote, provided that there are at least three Managing Directors in office. Otherwise, or if the CEOs in case of a tied vote do not reach a joint decision on how to exercise their casting vote, the relevant resolution shall not have been passed. |
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20.6 | A Managing Director shall not participate in the deliberations and decision-making of the Management Board on a matter in relation to which he has a direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it. If, as a result thereof, no resolution can be passed by the Management Board, the resolution shall be passed by the Supervisory Board. |
20.7 | Meetings of the Management Board can be held through audio-communication facilities, unless a Managing Director objects thereto. |
20.8 | Resolutions of the Management Board may, instead of at a meeting, be passed in writing, provided that all Managing Directors are familiar with the resolution to be passed and none of them objects to this decision-making process. Articles 20.1 through 20.6 apply mutatis mutandis. |
20.9 | The approval of the Supervisory Board is required for resolutions of the Management Board concerning the following matters: |
a. | the making of a proposal to the General Meeting concerning: |
i. | the issue of shares or the granting of rights to subscribe for shares; |
ii. | the limitation or exclusion of pre-emption rights; |
iii. | the designation or granting of an authorisation as referred to in Articles 8.1, 9.5 and 12.2, respectively, or the disapplication or revocation of any such designation or authorisation; |
iv. | the reduction of the Company's issued share capital; |
v. | the making of a distribution from the Company's profits or reserves; |
vi. | the determination that all or part of a distribution, instead of being made in cash, shall be made in the form of shares in the Company's capital or in the form of assets; |
vii. | the amendment of these articles of association; |
viii. | the entering into of a merger or demerger; |
ix. | the instruction of the Management Board to apply for the Company's bankruptcy; and |
x. | the Company's dissolution; |
b. | the issue of shares or the granting of rights to subscribe for shares, except in the operation of the Company's equity incentive plans; |
c. | the limitation or exclusion of pre-emption rights; |
d. | the acquisition of shares by the Company in its own capital, including the determination of the value of a non-cash consideration for such an acquisition as referred to in Article 12.4; |
e. | the granting of an approval for the creation of a pledge as referred to in Article 15.1; |
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f. | the granting of an approval for a transfer as referred to in Article 16.1; |
g. | the drawing up or amendment of the Management Board Rules; |
h. | the performance of the legal acts described in Article 19.3 and 20.10; |
i. | the charging of amounts to be paid up on shares against the Company's reserves as described in Article 38.3; |
j. | the making of an interim distribution; and |
k. | such other resolutions of the Management Board as the Supervisory Board shall have specified in a resolution to that effect and notified to the Management Board. |
20.10 | The approval of the General Meeting is required for resolutions of the Management Board concerning a material change to the identity or the character of the Company or the business, including in any event: |
a. | transferring the business or materially all of the business to a third party; |
b. | entering into or terminating a long-lasting alliance of the Company or of a Subsidiary either with another entity or company, or as a fully liable partner of a limited partnership or general partnership, if this alliance or termination is of significant importance for the Company; and |
c. | acquiring or disposing of an interest in the capital of a company by the Company or by a Subsidiary with a value of at least one third of the value of the assets, according to the balance sheet with explanatory notes or, if the Company prepares a consolidated balance sheet, according to the consolidated balance sheet with explanatory notes in the Company's most recently adopted annual accounts. |
20.11 | The absence of the approval of the Supervisory Board or the General Meeting of a resolution as referred to in Articles 20.9 or 20.10, respectively, shall result in the relevant resolution being null and void pursuant to Section 2:14(1) DCC but shall not affect the powers of representation of the Management Board or of the Managing Directors. |
MANAGEMENT BOARD - COMPENSATION
Article 21
21.1 | The General Meeting shall determine the Company's policy concerning the compensation of the Management Board with due observance of the relevant statutory requirements. |
21.2 | The compensation of Managing Directors shall be determined by the Supervisory Board with due observance of the policy referred to in Article 21.1. |
21.3 | The Supervisory Board shall submit proposals concerning compensation arrangements for the Management Board in the form of shares or rights to subscribe for shares to the General Meeting for approval. This proposal must at least include the number of shares or rights to subscribe for shares that may be awarded to the Management Board and which criteria apply for such awards or changes thereto. The absence of the approval of the General Meeting shall not affect the powers of representation. |
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MANAGEMENT BOARD - REPRESENTATION
Article 22
22.1 | The Management Board is entitled to represent the Company. |
22.2 | The power to represent the Company also vests in any two Managing Directors acting jointly. |
22.3 | The Company may also be represented by the holder of a power of attorney to that effect. If the Company grants a power of attorney to an individual, the Management Board may grant an appropriate title to such person. |
SUPERVISORY BOARD - COMPOSITION
Article 23
23.1 | The Company has a Supervisory Board consisting of one or more Supervisory Directors. The Supervisory Board shall be composed of individuals. |
23.2 | The Supervisory Board shall determine the number of Supervisory Directors, which shall be no less than the number of Supervisory Directors as are necessary in order to allow the Majority Shareholders to exercise their respective nomination rights under Article 24.2. |
23.3 | The Supervisory Board shall elect a Supervisory Director to be the Chairperson. The Supervisory Board may dismiss the Chairperson, provided that the Supervisory Director so dismissed shall subsequently continue his term of office as a Supervisory Director without having the title of Chairperson. |
23.4 | Where a Supervisory Director is no longer in office or is unable to act, he may be replaced temporarily by a person whom the Supervisory Board has designated for that purpose and, until then, the other Supervisory Director(s) shall be charged with the supervision of the Company. Where all Supervisory Directors are no longer in office or are unable to act, the supervision of the Company shall be attributed to the former Supervisory Director who most recently ceased to hold office as the Chairperson, provided that he is willing and able to accept that position, who may designate one or more other persons to be charged with the supervision of the Company (instead of, or together with, such former Supervisory Director). The person(s) charged with the supervision of the Company pursuant to the previous sentence shall cease to hold that position when the General Meeting has appointed one or more persons as Supervisory Director(s). Article 17.5 applies mutatis mutandis. |
SUPERVISORY BOARD - APPOINTMENT, SUSPENSION AND DISMISSAL
Article | 24 |
24.1 | The General Meeting shall appoint the Supervisory Directors and may at any time suspend or dismiss any Supervisory Director. |
24.2 | The General Meeting can only appoint a Supervisory Director upon a nomination by the Majority Shareholders or the Supervisory Board as follows: |
a. | each Majority Shareholder shall have the right to make a binding nomination for one (1) Supervisory Director for as long as such Majority Shareholder holds at least five percent (5%) of the voting rights that are attached to all shares in the Company's issued share capital; and |
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b. | the Supervisory Board shall make a binding nomination for all other Supervisory Directors. |
The General Meeting may at any time resolve to render any such nomination to be non-binding by a majority of at least two thirds of the votes cast representing more than half of the issued share capital. If a nomination is rendered non-binding, a new nomination shall be made by the relevant Majority Shareholder or the Supervisory Board, as applicable. A second meeting as referred to in Section 2:120(3) DCC cannot be convened.
24.3 | Upon the making of a nomination for the appointment of a Supervisory Director, the following information shall be provided with respect to the candidate: |
a. | his age and profession; |
b. | the aggregate nominal value of the shares held by him in the Company's capital; |
c. | his present and past positions, to the extent that these are relevant for the performance of the tasks of a Supervisory Director; |
d. | the names of any entities of which he is already a supervisory director or a non-executive director; if these include entities that form part of the same group, a specification of the group's name shall suffice. |
The nomination must be supported by reasons. In the case of a reappointment, the manner in which the candidate has fulfilled his duties as a Supervisory Director shall be taken into account.
24.4 | At a General Meeting, a resolution to appoint a Supervisory Director can only be passed in respect of candidates whose names are stated for that purpose in the agenda of that General Meeting or the explanatory notes thereto. |
24.5 | A resolution of the General Meeting to suspend or dismiss a Supervisory Director shall require a majority of at least two thirds of the votes cast representing more than half of the issued share capital, unless the resolution is passed at the proposal of the Supervisory Board. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
24.6 | If a Supervisory Director is suspended and the General Meeting does not resolve to dismiss him within three months from the date of such suspension, the suspension shall lapse. |
SUPERVISORY BOARD - DUTIES AND ORGANISATION
Article | 25 |
25.1 | The Supervisory Board is charged with the supervision of the policy of the Management Board and the general course of affairs of the Company and of the business connected with it. The Supervisory Board shall provide the Management Board with advice. In performing their duties, Supervisory Directors shall be guided by the interests of the Company and of the business connected with it, with due observance of Article 4. |
25.2 | The Management Board shall provide the Supervisory Board with the information necessary for the performance of its tasks in a timely fashion. At least once a year, the Management Board shall inform the Supervisory Board in writing of the main features of the strategic policy, the general and financial risks and the administration and control system of the Company. |
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25.3 | The Supervisory Board shall draw up Supervisory Board Rules concerning its organisation, decision-making and other internal matters, with due observance of these articles of association. In performing their duties, the Supervisory Directors shall act in compliance with the Supervisory Board Rules. |
25.4 | The Supervisory Board shall establish the committees which the Company is required to have and otherwise such committees as are deemed to be appropriate by the Supervisory Board. The Supervisory Board shall draw up (and/or include in the Supervisory Board Rules) rules concerning the organisation, decision-making and other internal matters of its committees. |
SUPERVISORY BOARD - DECISION-MAKING
Article 26
26.1 | Without prejudice to Article 26.5, each Supervisory Director may cast one vote in the decision-making of the Supervisory Board. |
26.2 | A Supervisory Director can be represented by another Supervisory Director holding a written proxy for the purpose of the deliberations and the decision-making of the Supervisory Board. |
26.3 | Resolutions of the Supervisory Board shall be passed, irrespective of whether this occurs at a meeting or otherwise, by Simple Majority unless the Supervisory Board Rules provide differently. |
26.4 | Invalid votes, blank votes and abstentions shall not be counted as votes cast. Supervisory Directors who casted an invalid or blank vote or who abstained from voting shall be taken into account when determining the number of Supervisory Directors who are present or represented at a meeting of the Supervisory Board. |
26.5 | Where there is a tie in any vote of the Supervisory Board, the Chairperson shall have a casting vote, provided that there are at least three Supervisory Directors in office. Otherwise, the relevant resolution shall not have been passed. |
26.6 | A Supervisory Director shall not participate in the deliberations and decision-making of the Supervisory Board on a matter in relation to which he has a direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it. If, as a result thereof, no resolution can be passed by the Supervisory Board, the resolution may nevertheless be passed by the Supervisory Board as if none of the Supervisory Directors has a conflict of interests as described in the previous sentence. |
26.7 | Meetings of the Supervisory Board can be held through audio-communication facilities, unless a Supervisory Director objects thereto. |
26.8 | Resolutions of the Supervisory Board may, instead of at a meeting, be passed in writing, provided that all Supervisory Directors are familiar with the resolution to be passed and none of them objects to this decision-making process. Articles 26.1 through 26.6 apply mutatis mutandis. |
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SUPERVISORY BOARD - COMPENSATION
Article 27
The General Meeting may grant a compensation to the Supervisory Directors.
INDEMNITY
Article | 28 |
28.1 | The Company shall indemnify and hold harmless each of its Indemnified Officers against: |
a. | any financial losses or damages incurred by such Indemnified Officer; and |
b. | any expense reasonably paid or incurred by such Indemnified Officer in connection with any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative or other nature, formal or informal, in which he becomes involved, |
to the extent this relates to his current or former position with the Company and/or a Group Company and in each case to the extent permitted by applicable law.
28.2 | No indemnification shall be given to an Indemnified Officer: |
a. | if a competent court or arbitral tribunal has established, without having (or no longer having) the possibility for appeal, that the acts or omissions of such Indemnified Officer that led to the financial losses, damages, expenses, suit, claim, action or legal proceedings as described in Article 28.1 are of an unlawful nature (including acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to such Indemnified Officer); |
b. | to the extent that his financial losses, damages and expenses are covered under insurance and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so); |
c. | in relation to proceedings brought by such Indemnified Officer against the Company, except for proceedings brought to enforce indemnification to which he is entitled pursuant to these articles of association, pursuant to an agreement between such Indemnified Officer and the Company which has been approved by the Management Board or pursuant to insurance taken out by the Company for the benefit of such Indemnified Officer; or |
d. | for any financial losses, damages or expenses incurred in connection with a settlement of any proceedings effected without the Company's prior consent. |
28.3 | The Management Board may stipulate additional terms, conditions and restrictions in relation to the indemnification referred to in Article 28.1. |
GENERAL MEETING - CONVENING AND HOLDING MEETINGS
Article 29
29.1 | Annually, at least one General Meeting shall be held. This annual General Meeting shall be held within six months after the end of the Company's financial year. |
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29.2 | A General Meeting shall also be held: |
a. | within three months after the Management Board has considered it to be likely that the Company's equity has decreased to an amount equal to or lower than half of its paid up and called up capital, in order to discuss the measures to be taken if so required; and |
b. | whenever the Management Board or the Supervisory Board so decides. |
29.3 | General Meetings must be held in the place where the Company has its corporate seat or in Arnhem, Assen, The Hague, Haarlem, 's-Hertogenbosch, Groningen, Leeuwarden, Lelystad, Maastricht, Middelburg, Rotterdam, Schiphol (Haarlemmermeer), Utrecht or Zwolle. |
29.4 | If the Management Board and the Supervisory Board have failed to ensure that a General Meeting as referred to in Articles 29.1 or 29.2 paragraph a. is held, each Person with Meeting Rights may be authorised by the court in preliminary relief proceedings to do so. |
29.5 | One or more Persons with Meeting Rights who collectively represent at least the part of the Company's issued share capital prescribed by law for this purpose may request the Management Board and the Supervisory Board in writing to convene a General Meeting, setting out in detail the matters to be discussed. If neither the Management Board nor the Supervisory Board (each in that case being equally authorised for this purpose) has taken the steps necessary to ensure that the General Meeting could be held within the relevant statutory period after the request, the requesting Person(s) with Meeting Rights may be authorised, at his/their request, by the court in preliminary relief proceedings to convene a General Meeting. |
29.6 | Any matter of which the discussion has been requested in writing by one or more Persons with Meeting Rights who, individually or collectively, represent at least the part of the Company's issued share capital prescribed by law for this purpose shall be included in the convening notice or announced in the same manner, if the Company has received the substantiated request or a proposal for a resolution no later than on the sixtieth day prior to that of the General Meeting. |
29.7 | Persons with Meeting Rights who wish to exercise their rights as described in Articles 29.5 and 29.6 must first consult the Management Board. In that respect, the Management Board shall have, and Persons with Meeting Rights must observe, the right to invoke any cooling-off period and response period provided under applicable law and/or the Dutch Corporate Governance Code. |
29.8 | A General Meeting must be convened with due observance of the relevant statutory minimum convening period. |
22
29.9 | All Persons with Meeting Rights must be convened for the General Meeting in accordance with applicable law. The holders of registered shares may be convened for the General Meeting by means of convening letters sent to the addresses of those shareholders in accordance with Article 6.6. The previous sentence does not prejudice the possibility of sending a convening notice by electronic means in accordance with Section 2:113(4) DCC. |
23
GENERAL MEETING - PROCEDURAL RULES
Article 30
30.1 | The General Meeting shall be chaired by one of the following individuals, taking into account the following order of priority: |
a. | by the Chairperson, if there is a Chairperson who is present at the General Meeting; |
b. | by another Supervisory Director who is chosen by the Supervisory Directors present at the General Meeting from their midst; |
c. | by one of the CEOs who is chosen by the CEOs present at the General Meeting from their midst; |
d. | by another Managing Director who is chosen by the Managing Directors present at the General Meeting from their midst; or |
e. | by another person appointed by the General Meeting. |
The person who should chair the General Meeting pursuant to paragraphs a. through e. may appoint another person to chair the General Meeting instead of him.
30.2 | The chairperson of the General Meeting shall appoint another person present at the General Meeting to act as secretary and to minute the proceedings at the General Meeting. The minutes of a General Meeting shall be adopted by the chairperson of that General Meeting or by the Management Board. Where an official report of the proceedings is drawn up by a civil law notary, no minutes need to be prepared. Every Managing Director and Supervisory Director may instruct a civil law notary to draw up such an official report at the Company's expense. |
30.3 | The chairperson of the General Meeting shall decide on the admittance to the General Meeting of persons other than: |
a. | the persons who have Meeting Rights at that General Meeting, or their proxyholders; and |
b. | those who have a statutory right to attend that General Meeting on other grounds. |
30.4 | The holder of a written proxy from a Person with Meeting Rights who is entitled to attend a General Meeting shall only be admitted to that General Meeting if the proxy is determined to be acceptable by the chairperson of that General Meeting. |
30.5 | The Company may direct that any person, before being admitted to a General Meeting, identify himself by means of a valid passport or driver's license and/or should be submitted to such security arrangements as the Company may consider to be appropriate under the given circumstances. Persons who do not comply with these requirements may be refused entry to the General Meeting. |
30.6 | The chairperson of the General Meeting has the right to eject any person from the General Meeting if the chairperson considers such person to disrupt the orderly proceedings at the General Meeting. |
24
30.7 | The General Meeting may be conducted in a language other than the Dutch language, if so determined by the chairperson of the General Meeting. |
30.8 | The chairperson of the General Meeting may limit the amount of time that persons present at the General Meeting are allowed to take in addressing the General Meeting and the number of questions they are allowed to raise, with a view to safeguarding the orderly proceedings at the General Meeting. The chairperson of the General Meeting may also adjourn the meeting if he considers that this shall safeguard the orderly proceedings at the General Meeting. |
GENERAL MEETING - EXERCISE OF MEETING AND VOTING RIGHTS
Article | 31 |
31.1 | Each Person with Meeting Rights has the right to attend, address and, if applicable, vote at General Meetings, whether in person or represented by the holder of a written proxy. Holders of fractional shares together constituting the nominal value of a share of the relevant class shall exercise these rights collectively, whether through one of them or through the holder of a written proxy. |
31.2 | The Management Board may decide that each Person with Meeting Rights is entitled, whether in person or represented by the holder of a written proxy, to participate in, address and, if applicable, vote at the General Meeting by electronic means of communication. For the purpose of applying the preceding sentence it must be possible, by electronic means of communication, for the Person with Meeting Rights to be identified, to observe in real time the proceedings at the General Meeting and, if applicable, to vote. The Management Board may impose conditions on the use of the electronic means of communication, provided that these conditions are reasonable and necessary for the identification of the Person with Meeting Rights and the reliability and security of the communication. Such conditions must be announced in the convening notice. |
31.3 | The Management Board can also decide that votes cast through electronic means of communication or by means of a letter prior to the General Meeting are considered to be votes that are cast during the General Meeting. These votes shall not be cast prior to the Record Date. |
31.4 | For the purpose of Articles 31.1 through 31.3, those who have voting rights and/or Meeting Rights on the Record Date and are recorded as such in a register designated by the Management Board shall be considered to have those rights, irrespective of whoever is entitled to the shares or depository receipts at the time of the General Meeting. Unless Dutch law requires otherwise, the Management Board is authorised to determine at its discretion, when convening a General Meeting, (i) whether the previous sentence applies and (ii) that the Record Date is applied with respect to shares of a specific class only. |
31.5 | Each Person with Meeting Rights must notify the Company in writing of his identity and his intention to attend the General Meeting. This notice must be received by the Company ultimately on the seventh day prior to the General Meeting, unless indicated otherwise when such General Meeting is convened. Persons with Meeting Rights that have not complied with this requirement may be refused entry to the General Meeting. When a General Meeting is convened the Management Board may stipulate not to apply the previous provisions of this Article 31.5 in respect of the exercise of Meeting Rights and/or voting rights attached to high voting shares at such General Meeting. |
25
GENERAL MEETING - DECISION-MAKING
Article 32
32.1 | Each ordinary share, except for a high voting share, shall give the right to cast one vote at the General Meeting. Each high voting share shall give the right to cast twenty-five votes at the General Meeting. Fractional shares of a certain class, if any, collectively constituting the nominal value of a share of that class shall be considered to be equivalent to such share. |
32.2 | No vote can be cast at a General Meeting in respect of a share belonging to the Company or a Subsidiary or in respect of a share for which any of them holds the depository receipts. Usufructuaries and pledgees of shares belonging to the Company or its Subsidiaries are not, however, precluded from exercising their voting rights if the usufruct or pledge was created before the relevant share belonged to the Company or a Subsidiary. Neither the Company nor a Subsidiary can vote shares in respect of which it holds a usufruct or a pledge. |
32.3 | Unless a greater majority is required by law or by these articles of association, all resolutions of the General Meeting shall be passed by Simple Majority. If applicable law requires a greater majority for resolutions of the General Meeting and allows the articles of association to provide for a lower majority, those resolutions shall be passed with the lowest possible majority, except if these articles of association explicitly provide otherwise. |
32.4 | Invalid votes, blank votes and abstentions shall not be counted as votes cast. Shares in respect of which an invalid or blank vote has been cast and shares in respect of which an abstention has been made shall be taken into account when determining the part of the issued share capital that is represented at a General Meeting. |
32.5 | Where there is a tie in any vote of the General Meeting, the relevant resolution shall not have been passed. |
32.6 | The chairperson of the General Meeting shall decide on the method of voting and the voting procedure at the General Meeting. |
32.7 | The determination during the General Meeting made by the chairperson of that General Meeting with regard to the results of a vote shall be decisive. If the accuracy of the chairperson's determination is contested immediately after it has been made, a new vote shall take place if the majority of the General Meeting so requires or, where the original vote did not take place by response to a roll call or in writing, if any party with voting rights who is present so requires. The legal consequences of the original vote shall lapse as a result of the new vote. |
32.8 | The Management Board shall keep a record of the resolutions passed. The record shall be available at the Company's office for inspection by Persons with Meeting Rights. Each of them shall, upon request, be provided with a copy of or extract from the record, at no more than the cost price. |
26
32.9 | Shareholders may pass resolutions outside a meeting, unless the Company has issued bearer shares or cooperated with the issuance of depository receipts for shares in its capital. Such resolutions can only be passed by a unanimous vote of all shareholders with voting rights. The votes shall be cast in writing and may be cast through electronic means. |
32.10 | The Managing Directors and Supervisory Directors shall, in that capacity, have an advisory vote at the General Meetings. |
GENERAL MEETING - SPECIAL RESOLUTIONS
Article 33
33.1 | The following resolutions can only be passed by the General Meeting at the proposal of the Management Board: |
a. | the issue of shares or the granting of rights to subscribe for shares; |
b. | the limitation or exclusion of pre-emption rights; |
c. | the designation or granting of an authorisation as referred to in Articles 8.1, 9.5 and 12.2, respectively, or the disapplication or revocation of any such designation or authorisation; |
d. | the reduction of the Company's issued share capital; |
e. | the making of a distribution on the ordinary shares or on the high voting shares from the Company's profits or reserves; |
f. | the making of a distribution in the form of shares in the Company's capital or in the form of assets, instead of in cash; |
g. | the amendment of these articles of association; |
h. | the entering into of a merger or demerger; |
i. | the instruction of the Management Board to apply for the Company's bankruptcy; and |
j. | the Company's dissolution. |
33.2 | A matter which has been included in the convening notice or announced in the same manner by or at the request of one or more Persons with Meeting Rights pursuant to Articles 29.5 and/or 29.6 shall not be considered to have been proposed by the Management Board for purposes of Article 33.1, unless the Management Board has expressly indicated that it supports the discussion of such matter in the agenda of the General Meeting concerned or in the explanatory notes thereto. |
27
CLASS MEETINGS
Article 34
34.1 | A Class Meeting shall be held whenever a resolution of that Class Meeting is required by Dutch law or under these articles of association and otherwise whenever the Management Board or the Supervisory Board so decides. |
34.2 | Without prejudice to Article 34.1, for Class Meetings of ordinary shares, the provisions concerning the convening of, drawing up of the agenda for, holding of and decision-making by the General Meeting apply mutatis mutandis. |
34.3 | For Class Meetings of high voting shares, the following shall apply: |
a. | Articles 29.3, 29.9, 30.3, 32.1, 32.2 through 32.10 apply mutatis mutandis; |
b. | a Class Meeting must be convened no later than on the eighth day prior to that of the meeting; |
c. | a Class Meeting shall appoint its own chairperson; and |
d. | where the rules laid down by these articles of association in relation to the convening, location of or drawing up of the agenda for a Class Meeting have not been complied with, legally valid resolutions may still be passed by that Class Meeting by a unanimous vote at a meeting at which all shares of the relevant class are represented. |
REPORTING - FINANCIAL YEAR, ANNUAL ACCOUNTS AND MANAGEMENT REPORT
Article | 35 |
35.1 | The Company's financial year shall coincide with the calendar year. |
35.2 | Annually, within the relevant statutory period, the Management Board shall prepare the annual accounts and the management report and deposit them at the Company's office for inspection by the shareholders. |
35.3 | The annual accounts shall be signed by the Managing Directors and the Supervisory Directors. If any of their signatures is missing, this shall be mentioned, stating the reasons. |
35.4 | The Company shall ensure that the annual accounts, the management report and the particulars to be added pursuant to Section 2:392(1) DCC shall be available at its offices as from the convening of the General Meeting at which they are to be discussed. The Persons with Meeting Rights are entitled to inspect such documents at that location and to obtain a copy at no cost. |
35.5 | The annual accounts shall be adopted by the General Meeting. |
28
REPORTING - AUDIT
Article 36
36.1 | The General Meeting shall instruct an external auditor as referred to in Section 2:393 DCC to audit the annual accounts. Where the General Meeting fails to do so, the Supervisory Board shall be authorised to do so. |
36.2 | The instruction may be revoked by the General Meeting and by the body that has granted the instruction. The instruction can only be revoked for well-founded reasons; a difference of opinion regarding the reporting or auditing methods shall not constitute such a reason. |
DISTRIBUTIONS - GENERAL
Article | 37 |
37.1 | A distribution can only be made to the extent that the Company's equity exceeds the amount of the paid up and called up part of its capital plus the reserves which must be maintained by law. |
37.2 | The Management Board may resolve to make interim distributions, provided that it appears from interim accounts to be prepared in accordance with Section 2:105(4) DCC that the requirement referred to in Article 37.1 has been met . |
37.3 | Distributions shall be made in proportion to the aggregate number of shares held, with the ordinary shares and the high voting shares being considered to be shares of the same class. |
37.4 | The parties entitled to a distribution shall be the relevant shareholders, usufructuaries and pledgees, as the case may be, at a date to be determined by the Management Board for that purpose. This date shall not be earlier than the date on which the distribution was announced. |
37.5 | The General Meeting may resolve, subject to Article 33, that all or part of a distribution, instead of being made in cash, shall be made in the form of shares in the Company's capital or in the form of the Company's assets. |
37.6 | A distribution shall be payable on such date and, if it concerns a distribution in cash, in such currency or currencies as determined by the Management Board. If it concerns a distribution in the form of the Company's assets, the Management Board shall determine the value attributed to such distribution for purposes of recording the distribution in the Company's accounts with due observance of applicable law (including the applicable accounting principles). |
37.7 | A claim for payment of a distribution shall lapse after five years have expired after the distribution became payable. |
37.8 | For the purpose of calculating the amount or allocation of any distribution, shares held by the Company in its own capital shall not be taken into account. No distribution shall be made to the Company in respect of shares held by it in its own capital. |
29
DISTRIBUTIONS - RESERVES
Article | 38 |
38.1 | All reserves maintained by the Company shall be attached exclusively to the ordinary shares and the high voting shares, with those classes of shares being considered to be shares of the same class in respect of distributions from the reserves and entitlements to such distributions. |
38.2 | Subject to Article 33, the General Meeting is authorised to resolve to make a distribution from the Company's reserves. |
38.3 | The Management Board may resolve to charge amounts to be paid up on shares against the Company's reserves, irrespective of whether those shares are issued to existing shareholders. |
DISTRIBUTIONS - PROFITS
Article | 39 |
39.1 | Subject to Article 37.1, the profits shown in the Company's annual accounts in respect of a financial year shall be appropriated as follows, and in the following order of priority: |
a. | the Management Board shall determine which part of the profits shall be added to the Company's reserves; and |
b. | subject to Article 33, the remaining profits shall be at the disposal of the General Meeting for distribution on the ordinary shares and the high voting shares. |
39.2 | Subject to Article 37.1, a distribution of profits shall be made after the adoption of the annual accounts that show that such distribution is allowed. |
DISSOLUTION AND LIQUIDATION
Article | 40 |
40.1 | In the event of the Company being dissolved, the liquidation shall be effected by the Management Board under the supervision of the Supervisory Board, unless the General Meeting decides otherwise. |
40.2 | To the extent possible, these articles of association shall remain in effect during the liquidation. |
40.3 | To the extent that any assets remain after payment of all of the Company's debts, those assets shall be distributed as follows, and in the following order of priority: |
a. | any remaining assets shall be distributed to the holders of ordinary shares and the high voting shares (with Article 37.3 applying to such distribution mutatis mutandis). |
40.4 | After the Company has ceased to exist, its books, records and other information carriers shall be kept for the period prescribed by law by the person designated for that purpose in the resolution of the General Meeting to dissolve the Company. Where the General Meeting has not designated such a person, the liquidators shall do so. |
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FEDERAL FORUM PROVISION
Article 41
Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for any complaint asserting a cause of action arising under the United States Securities Act of 1933, as amended, or the United States Securities Exchange Act of 1934, as amended, to the fullest extent permitted by applicable law, shall be the United States federal district courts.
TRANSITIONAL PROVISIONS
Article | 42 |
42.1 | Upon the Company's issued share capital increasing to an amount of at least twenty-five million euro (EUR 25,000,000): |
a. | the Company's authorised share capital described in Article 5.1 shall immediately and automatically increase to an amount of one hundred two million euro (EUR 102,000,000); and |
b. | the composition of the authorised share capital described in Article 5.2 shall immediately and automatically be adjusted, such that the authorised share capital shall be divided into: |
i. | one billion five hundred million (1,500,000,000) ordinary shares, each having a nominal value of six eurocents (EUR 0.06); and |
ii. | eight million (8,000,000) high voting shares, each having a nominal value of one euro and fifty eurocents (EUR 1.50). |
This Article 41.1 shall lapse and shall no longer form part of these articles of association at the moment immediately after the increase of the Company's issued share capital as described in the first sentence of this Article 41.1 shall have become effective.
42.2 | The provisions of Article 24 and Article 25 as well as the other provisions of these articles of association regarding the Supervisory Board, the Supervisory Directors and their respective rights, powers and duties shall only come into effect if and from the time that a resolution of the Management Board to establish a Supervisory Board has been passed (and, until that time, any such provision shall be disregarded); the Management Board shall pass such resolution ultimately with effect from the date of pricing of an initial public offering of the ordinary shares in the Company's capital and the admission to trading of those ordinary shares on a recognised stock exchange. Until that time, all rights, powers and duties vested in the Supervisory Board under these articles of association shall, to the extent allowed under applicable law, be vested in the Management Board. This Article 41.2 shall lapse and shall no longer form part of these articles of association immediately upon a resolution of the Management Board as described in the first sentence of this Article 41.2 becoming effective. |
42.3 | This entire Article 41 shall lapse and shall no longer form part of these articles of association once Articles 41.1, 41.2 and 41.3 have lapsed in accordance with their terms. |
Exhibit 3.4
1
DEED OF ISSUE
SONO GROUP N.V.
THIS DEED IS ENTERED INTO ON [DATE] BY
Sono Group N.V., a public company with limited liability, having its corporate seat in Amsterdam (address: Waldmeisterstrasse 76, 80935 Munich, Germany, trade register number: 80683568) (the "Company").
NOW HEREBY AGREES AS FOLLOWS
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
1.1.1 | In this Deed the following definitions shall apply: |
Deed |
This deed of issue.
|
|
DTC |
Cede & Co., a partnership under the laws of the State of New York, United States of America, as nominee for The Depository Trust Company, a corporation under the laws of the State of New York, United States of America.
|
|
Issue Price |
The issue price per Offer Share of USD [issue price].
|
|
Offer Shares |
[number] Ordinary Shares.
|
|
Offering |
The initial public offering of Ordinary Shares and the admission to listing and trading of the Ordinary Shares on the Nasdaq Stock Market.
|
|
Ordinary Shares |
Ordinary shares in the Company's capital, having a nominal value of EUR 0.06 each.
|
|
Resolutions |
The written resolutions of the Company's general meeting and the Company's pricing committee, each dated [date].
|
|
Transfer Agent |
American Stock Transfer & Trust Company, LLC, a limited liability company under the laws of the State of New York, United States of America, in its capacity of the Company's transfer agent.
|
2
Underwriters |
The underwriters in the Offering, listed in [Schedule 1] to the Underwriting Agreement.
|
|
Underwriting Agreement |
The underwriting agreement dated [date] between the Company and (representatives of) the Underwriters.
|
1.2 | Interpretation |
1.2.1 | Terms that are defined in the singular have a corresponding meaning in the plural and vice versa. |
1.2.2 | Although this Deed has been drafted in the English language, this Deed pertains to Dutch legal concepts. Any consequence of the use of English words and expressions in this Deed under any law other than Dutch law shall be disregarded. |
1.2.3 | The titles and headings in this Deed are for construction purposes as well as for reference. No party may derive any rights from such titles and headings. |
2 | ISSUANCE |
2.1 | Issuance of Offer Shares |
2.1.1 | In giving effect to the Resolutions and the Company's obligations under the Underwriting Agreement, the Company issues the Offer Shares to DTC, for further credit to, or as directed by, the several Underwriters in accordance with the terms of the Underwriting Agreement. |
2.1.2 | Upon the Offer Shares being credited to the several Underwriters in the book-entry systems of DTC, DTC shall be considered to have accepted the Offer Shares. |
2.2 | Payment |
2.2.1 | The aggregate Issue Price for the Offer Shares has been satisfied in accordance with the terms of the Underwriting Agreement and the Company grants a discharge for the payment thereof. |
2.2.2 | The Company approves payment of the Issue Price in a currency other than euro. |
2.2.3 | To the extent that the aggregate Issue Price for the Offer Shares exceeds the aggregate nominal value of the Offer Shares, such excess shall be considered to be share premium and shall be added to the Company's share premium reserve attached to the Ordinary Shares. |
3
2.3 | Registration |
2.3.1 | Promptly following the execution of this Deed, the Company shall (i) register the present issuance of the Offer Shares in its register within the meaning of Section 2:85 of the Dutch Civil Code and (ii) cause the Transfer Agent to register the Offer Shares in the register maintained by the Transfer Agent in respect of the Ordinary Shares. |
3 | MISCELLANEOUS PROVISIONS |
3.1 | No rescission or nullification |
3.1.1 | To the extent permitted by law, the Company waives its rights to rescind or nullify or to demand the rescission, nullification or amendment of this Deed, in whole or in part, on any grounds whatsoever. |
3.2 | Governing law |
3.2.1 | Without prejudice to the relevant provisions of Chapters 4 and 5 of Title 10 of Book 10 of the Dutch Civil Code, this Deed shall be governed by and construed in accordance with the laws of the Netherlands. |
3.3 | Jurisdiction |
3.3.1 | Any dispute in connection with this Deed shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands. |
(signature page follows)
4
Signature page to the deed of issue
Sono Group N.V. | ||
Name: | L.S.P. Hahn | |
Title: | CEO | |
Sono Group N.V. | ||
Name: | J.J. Christians | |
Title: | CEO | |
Exhibit 4.2
NOT FOR DISTRIBUTION IN OR INTO THE U.S., CANADA,
AUSTRALIA, JAPAN OR ANY
OTHER JURISDICTION IN WHICH OFFERS OR SALES WOULD BE PROHIBITED BY
APPLICABLE LAW.
Terms and Conditions of the Convertible Notes
(the "Terms and Conditions") |
§ 1 Definitions |
In these Terms and Conditions the following terms will have the following meanings: |
"Acquisition" means any of the following events or series of related events (other than an investment in the Issuer or the Guarantor of up to EUR 60 million against issuance of shares by the Issuer or the Guarantor, respectively): |
(i) | the legal and/or beneficial ownership of more than 50% of the properties or assets (as determined on a consolidated basis) owned, directly or indirectly, by the Issuer or the Guarantor being acquired by one or more other persons; |
(ii) | the adoption of a plan the consummation of which would result in the liquidation or dissolution of the Issuer or the Guarantor; |
(iii) | the transfer, directly or indirectly, to any person or group of the legal and/or beneficial ownership of more than 50% of (A) the share capital in the Issuer or the Guarantor or (B) the aggregate voting power of the fully diluted equity interests in the Issuer or the Guarantor (in each case not including the shares of the acquiring or merged entity that would be issued on conversion of the Notes as a result of an Acquisition); |
(iv) | any merger, spin-off, split-off or other similar transaction in which the Issuer or the Guarantor is the surviving person as a result of which the shareholders of the Issuer or the Guarantor, respectively, immediately prior to such transaction beneficially own less than 50% of (A) the share capital in the surviving person in such merger, spin-off, split-off or similar transaction or (B) the aggregate voting power of the fully diluted equity interests in the surviving person in such merger, spin-off, split-off or similar transaction (in each case not including the shares of the acquiring or merged entity that would be issued on conversion of the Notes as a result of an Acquisition); or |
(v) | any merger, spin-off, split-off or other similar transaction to which the Issuer or the Guarantor is a party as a result of which all of the shares of the Issuer or the Guarantor, respectively, are converted into or exchanged for cash or securities of any other issuer. |
"Acquisition Redemption Price" means (i) in case of a pre-money valuation of the equity value of the Guarantor at the time of the Acquisition of less than €500 million (as determined in the agreement underlying such Acquisition or, if no such determination has been made in the agreement underlying such Acquisition, as determined by an Independent Expert), the Applicable Redemption Price on the date of the closing of such Acquisition and (ii) otherwise the result of the division of (A) the Applicable Redemption Price on the date of the closing of such Acquisition and (B) 0.75. |
"Agents" has the meaning set out in § 14(a). |
"Alternative Clearing System" has the meaning set out in § 8(b)(ii)(D). |
"Applicable Redemption Price" or "ARP" per Note means on any date (the “ARP Date”) the amount (rounded to the nearest full Cent with € 0.005 being rounded upwards) determined by the Calculation Agent: |
|
where: |
d1 = the number of days from and including the Interest Commencement Date to but excluding such ARP Date; |
d2 = the number of days from and including 10 June 2022 to but excluding such ARP Date, provided that d2 shall be zero in case of any date ARP Date falling on or prior to 10 June 2022. |
1
"Business Day" means each day (other than a Saturday or Sunday) on which (i)(x) the Trans-European Automated Real-time Gross-settlement Express Transfer System (TARGET2) and (y) the Clearing System settle payments, and (ii) commercial banks and foreign exchange markets in Frankfurt am Main (Germany), Munich (Germany), Amsterdam (the Netherlands) and New York (United States) are open for ordinary business. |
"Calculation Agent" has the meaning set out in § 14(a). |
"Cash Alternative Amount" has the meaning set out in § 9(d). |
"Clearing System" means Clearstream Banking AG, Frankfurt am Main ("Clearstream Frankfurt") and any successor in such capacity. |
"Conversion Amount" per Note on any day means the result (rounded to the nearest full cent with €0.005 being rounded upwards) of the division of (i) the Applicable Redemption Price on that day by (ii) the difference between (A) 1 (one) and (B) the IPO Discount, as determined by the Calculation Agent. |
"Conversion Ratio" means the result (without rounding and including fractions of Settlement Shares) from the division of (A) the Conversion Amount on the the Business Day immediately following the IPO Pricing Date by (B) the IPO Offer Price, as determined by the Calculation Agent. |
"Conversion Agent" has the meaning set out in § 14(a). |
"Custodian" means any bank or other financial institution with which a Noteholder maintains a securities account in respect of any Notes and having an account maintained with the Clearing System and includes Clearstream Frankfurt. |
"Event of Default" has the meaning set out in § 13(a). |
"Financial Year" means the financial year as set out in the articles of association of the Issuer. |
"Global Note" has the meaning set out in § 2(b). |
"Guarantee" has the meaning set out in § 3(b). |
"Guarantor" means Sono Motors GmbH. |
"IFRS" means International Financial Reporting Standards as issued by the IASB or as adopted by the EU, as in effect from time to time. |
2
"Independent Expert" means a bank of international standing or an independent financial adviser with relevant expertise appointed by the Issuer at its own expense, which does not otherwise have any relationship with and is independent from the Issuer, the Guarantor and their affiliates. |
"Interest Commencement Date" means 10 December 2020. |
"IPO" means a bona fide underwritten public offering of Shares in which such Shares are listed on the New York Stock Exchange, NASDAQ or any other internationally recognised stock exchange, as determined by the Issuer. |
"IPO Closing Date" means the date of the closing of an IPO. |
"IPO Discount" means (i) in case of a Qualifying IPO, 25% and (ii) in case of a Non-Qualifying IPO, 30%. |
"IPO Notice" has the meaning set out in § 8(a)(ii). |
"IPO Offer Price" means the price per Share to be paid by investors in the IPO (prior to underwriting commissions, discounts and other expenses) on the IPO Closing Date for the Shares purchased by them in the IPO (translated if necessary into EUR at the Relevant FX Rate on the Business Day immediately preceding the IPO Pricing Date), as determined by the Calculation Agent. |
"IPO Pricing Date" means the date on which the IPO Offer Price is determined through the execution of the underwriting agreement (or a pricing agreement) between the Issuer and the underwriters (or their representatives) in the IPO, as determined by the Issuer. |
"Issue Date" means 9 December 2020. |
"Issuer" means Sono Group N.V., a public limited liability company (naamloze vennootschap) existing under the laws of the Netherlands. |
"Material Adverse Effect" means a material adverse effect on (i) the business, assets (including intangible assets), liabilities, property, financial condition or results of operations of the Issuer or the Guarantor and its Subsidiaries taken as a whole, (ii) the ability of the Issuer to duly perform its obligations under the Notes or the ability of the Guarantor to duly perform its obligations under the Guarantee or (iii) the rights and remedies available to the Noteholders under the Notes or the Guarantee. |
"Maturity Date" means 10 December 2023. |
"No Conversion Election Right" has the meaning set out in § 8(a)(ii). |
"Non-Qualifying IPO" means an IPO that is not a Qualifying IPO. |
"Non-Qualifying IPO Election Deadline Date" has the meaning set out in § 8(a)(ii). |
"Note" and "Notes" has the meaning set out in § 2(a). |
"Noteholder" means the holder of a co-ownership interest or similar right in the Global Note. |
"Noteholders' Representative" has the meaning set out in § 17(e). |
"Number of Undeliverable Settlement Shares" has the meaning set out in § 9(d). |
"Paying Agent" and "Paying Agents" has the meaning set out in § 14(a). |
"Principal Amount" has the meaning set out in § 2(a). |
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"Principal Paying Agent" has the meaning set out in § 14(a). |
"Qualifying IPO" means an IPO resulting in gross proceeds (translated if necessary into USD at the Relevant FX Rate on the Business Day immediately preceding the IPO Pricing Date) to the Issuer of at least $100,000,000.00 (prior to underwriting commissions, discounts and other expenses), as determined by the Calculation Agent. |
"Qualifying IPO Conversion" has the meaning set out in § 8(b). |
"Qualifying Majority" has the meaning set out in § 17(b). |
"Relevant FX Rate" means on any day, and, in respect of the conversion of any currency into another currency the spot mid-rate of exchange at 1:00 p.m. Frankfurt time on that day for such pair of currencies as appearing on or derived from Bloomberg page BFIX (or any successor page thereto) (or if such page is no longer available, such other page on Bloomberg or other recognised information system as is considered to be appropriate by the Calculation Agent), or, if no such rate is available on such day, the rate determined as aforesaid in respect of the immediately preceding day in respect of which such rate is can be so determined. |
"SchVG" has the meaning set out in § 17(a). |
"SEC" has the meaning set out in § 8(a)(i). |
"Settlement Disruption Event" has the meaning set out in § 9(c). |
"Settlement Shares" means the Shares described in § 9(a). |
"Share" means any ordinary share in the Issuer. |
"SPAC Redemption Price" means on any day the result of the division of (A) the Applicable Redemption Price on that day and (B) 0.75. |
"SPAC Share Number" means the result (rounded down to the nearest full share) from the division of (A) the SPAC Redemption Price on the date of the closing of a SPAC Transaction by (B) the value, on a fully diluted per-share basis, of the relevant acquiring or merged entity immediately following the SPAC Transaction as determined in the agreement underlying such SPAC Transaction or, if no such determination has been made in the agreement underlying such Acquisition, as determined by an Independent Expert (with such value, if it is calculated in a currency other than Euro, to be converted into a Euro amount at the Relevant FX Rate on the date of entering into a binding agreement on the SPAC Transaction). |
"SPAC Transaction" means a business combination of the Issuer or the Guarantor with a special purpose acquisition company that is listed at the time of announcement of such business combination on the New York Stock Exchange, NASDAQ or any other internationally recognised stock exchange. |
"Subsidiary" means any corporation, any partnership, or any other enterprise which the Guarantor consolidates under IFRS or is required to consolidate under IFRS. |
"Terms and Conditions" means these terms and conditions of the Notes. |
"United States" means the United States of America (including the States thereof and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands). |
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§ 2 Form and Denomination |
(a) The issue by the Issuer of mandatory convertible Notes in the aggregate principal amount of |
€6,800,000 |
(in words: Euro six million eight hundred thousand) |
on the Issue Date is divided into Notes in bearer form with a principal amount of €100,000 (the "Principal Amount") each, which rank pari passu among themselves (the "Notes" and each a "Note"). |
(b) The Notes are represented by a global note certificate (the "Global Note") without interest coupons. The Global Note will be signed by or on behalf of the Issuer. |
Definitive note certificates and interest coupons will not be issued. The Noteholders will have no right to require the issue of definitive notes or interest coupons. |
The Global Note will be deposited with Clearstream Frankfurt and will be held by Clearstream Frankfurt until the Issuer has satisfied and discharged all its obligations under the Notes. |
(c) The Noteholders hold proportional co-ownership interests or rights in the Global Note, which are transferable in accordance with applicable law and the rules and regulations of the Clearing System. |
(d) Pursuant to the book-entry registration agreement between the Issuer and Clearstream Frankfurt, the Issuer has appointed Clearstream Frankfurt as its book-entry registrar in respect of the Notes and agreed to maintain a register showing the aggregate number of the Notes represented by the Global Note under the name of Clearstream Frankfurt, and Clearstream Frankfurt has agreed, as agent of the Issuer, to maintain records of the Notes credited to the accounts of the accountholders of Clearstream Frankfurt for the benefit of the holders of the ownership interests in the Notes represented by the Global Note, and the Issuer and Clearstream Frankfurt have agreed, for the benefit of the holders of co-ownership interests in the Global Note, that the actual number of Notes from time to time will be evidenced by the records of Clearstream Frankfurt. |
§ 3 Status of the Notes; Guarantee |
(a) | The Notes constitute unsubordinated and unsecured obligations of the Issuer ranking pari passu among themselves and, in the event of the dissolution, liquidation or insolvency of the Issuer or any proceeding to avoid insolvency of the Issuer, at least pari passu with all other present and future unsubordinated and unsecured obligations of the Issuer, save for such obligations which may be preferred by applicable law. |
(b) | The Guarantor has given an irrevocable guarantee for the due payment of principal of, and interest on, and any other amounts expressed to be payable under, the Notes (including certain undertakings) pursuant to a guarantee dated the Interest Commencement Date (the "Guarantee"). The Guarantee constitutes a contract for the benefit of each Noteholder as third party beneficiary in accordance with § 328(1) BGB, giving rise to the right of each Noteholder to require performance of the obligations undertaken under the Guarantee directly from the Guarantor and to enforce such obligations directly against the Guarantor. |
Payments under the Guarantee will become due only in accordance with the terms of the Guarantee. The obligations of the Guarantor under this Guarantee will be limited in accordance with the terms of the Guarantee. |
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The obligations of the Guarantor under the Guarantee constitute unsubordinated and unsecured obligations of the Guarantor ranking pari passu among themselves and, in the event of the dissolution, liquidation or insolvency of the Guarantor or any proceeding to avoid insolvency of the Guarantor, at least pari passu with all other present and future unsubordinated and unsecured obligations of the Guarantor, save for such obligations which may be preferred by applicable law. | |
§ 4 | Interest |
(a) | There will not be any periodic payments of interest on the Notes. |
(b) | If the Issuer fails to redeem the Notes then interest will accrue on the Principal Amount from (and including) the due date to (but excluding) the actual date of redemption of the Notes at a rate of 7 per cent. per annum during any period until (but excluding) 10 June 2022 and 10 per cent. per annum during any period from (and including) 10 June 2022 and shall be payable in cash. |
(c) | Where interest is to be calculated in respect of any period of time of less than one year, it will be calculated on the basis of the actual number of days elapsed, divided by 365 (those days not falling in a leap year) or 366 (those days falling in a leap year), as the case may be. |
(d) | No interest shall be payable on the Notes in case of a conversion of the Notes pursuant to § 8 through § 11. |
§ 5 | Maturity, Redemption and Purchase |
(a) | To the extent the Notes have not previously been redeemed, converted, or repurchased and cancelled they will be redeemed in cash on the Maturity Date at the Applicable Redemption Price on that date (per Note). |
(b) | The Guarantor, the Issuer and any of their affiliates may at any time purchase Notes, in the open market or otherwise (without being obliged to give a notice thereof in accordance with § 15 to the Noteholders). |
Any Notes purchased by the Guarantor, the Issuer or any of their affiliates may be cancelled or held and resold. |
§ 6 | Payments |
(a) | All payments on the Notes will be made in Euro to the Principal Paying Agent for transfer to the Clearing System or to its order for credit to the accounts of the relevant account holders of the Clearing System outside the United States. Payments on the Notes made to the Clearing System or to its order will discharge the liability of the Issuer under the Notes to the extent of the sums so paid. |
(b) | If the due date for payment of any amount in respect of the Notes is not a Business Day, then the Noteholders will not be entitled to payment until the next day which is a Business Day. In such case the Noteholders will not be entitled to further interest or to any other compensation on account of such delay. |
§ 7 | Taxes |
All payments in respect of the Notes and the Guarantee will be made after withholding and/or deduction of taxes or other duties, if such withholding and/or deduction is required by law.
Neither the Issuer nor the Guarantor will be obliged to pay any additional amounts as a result of such withholding or deduction.
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§ 8 | IPO |
All Notes shall be subject to conversion upon an IPO as described in this § 8, except that in the case of a Non-Qualifying IPO, Noteholders may exercise the No Conversion Election Right. |
(a) | IPO Notice |
(i) | The Issuer shall inform the Noteholders of an anticipated IPO in accordance with § 15 no later than on the day of the public announcement of the anticipated IPO, which in the case of an IPO registered under the U.S. Securities and Exchange Commission (the "SEC") shall mean the day of public filing of the registration statement for the IPO with the SEC. | |
(ii) | No later than on the day of the publication of a prospectus including a price range for the IPO or other indication as to the prospective pricing of the IPO, the Issuer shall give notice to the Noteholders of the anticipated IPO in accordance with § 15 (the "IPO Notice"). The IPO Notice shall include an indication as to whether or not the Issuer expects such IPO to be a Qualifying IPO or a Non-Qualifying IPO, and (whether the Issuer states in the IPO Notice that it expects the IPO to be a Qualifying IPO or a Non-Qualifying IPO) the date by which the Noteholder must elect not to convert its Notes in case the IPO is a Non-Qualifying IPO (the "Non-Qualifying IPO Election Deadline Date"), which date shall be no earlier than ten Business Days after the date of the IPO Notice (the "No Conversion Election Right"). | |
(iii) |
The No Conversion Election Right can only be exercised by means of a declaration in text form in the English language delivered to the Principal Paying Agent in accordance with the rules and procedures of the Clearing System and must be received by the Principal Paying Agent by 4:00 p.m. (Frankfurt time) on the Non-Qualifying IPO Election Deadline Date at the latest.
If a Noteholder duly and timely exercises its No Conversion Election Right and the IPO is a Non-Qualifying IPO, all Notes held by such Noteholder shall be repaid on the Business Day following the IPO Closing Date at the Applicable Redemption Price on that day (per Note).
For the avoidance of doubt, if a Noteholder duly and timely exercises its No Conversion Election Right and the IPO is a Qualifying IPO, the No Conversion Election Right shall not apply and each Note held by such Noteholder shall be subject to mandatory conversion pursuant and subject to § 8(b).
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(iv) | The Issuer shall inform the Noteholders in accordance with § 15 no later than on the IPO Pricing Date whether an IPO is a Qualifying IPO or a Non-Qualifying IPO. |
(b) | IPO Conversion |
If the IPO Closing Date of a Qualifying IPO falls on a day prior to the Maturity Date, the Issuer will procure the mandatory conversion of each Note into Settlement Shares and deliver Settlement Shares in accordance with this § 8(b) ("Qualifying IPO Conversion"). |
(i) | Delivery of Settlement Shares upon Qualifying IPO Conversion |
(A) | The Issuer will deliver on the IPO Closing Date such number of Settlement Shares per Note as is equal to the Conversion Ratio (rounded down to the nearest full Settlement Share). § 9 will apply to the Settlement Shares to be delivered. |
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(B) | Any remaining fraction of a Settlement Share rounded down pursuant to paragraph (A) above will not be delivered but will be compensated in cash on the IPO Closing Date in an amount per Note equal to the product (rounded to the nearest full Cent with € 0.005 being rounded upwards) of the relevant fraction and the IPO Offer Price, as determined by the Calculation Agent. |
(ii) | Qualifying IPO Conversion Procedures |
(A) |
The delivery of Settlement Shares at the Qualifying IPO Conversion is made in lieu of the repayment of the Notes and will off-set each Noteholder's claim against the Issuer under the relevant Note or Notes against the Issuer's claim against such Noteholder for the payment for the Settlement Shares in the same amount, resulting in a reciprocal discharge for (x) the Issuer in respect of its obligations under the relevant Note or Notes and (y) each Noteholder in respect of its obligations to pay for the relevant Settlement Shares. Accordingly, as from the IPO Closing Date of a Qualifying IPO a Noteholder will not have any rights in relation to the Notes; the Noteholder has only the right against the Issuer for the delivery of the Settlement Shares in accordance with this § 8(b) and the compensation for a fractional Settlement Share in accordance with § 8(b)(i)(B).
The Qualifying IPO Conversion will not apply to Notes held by the Issuer, the Guarantor or any Subsidiary. All Notes, if any, held by the Issuer, the Guarantor or any Subsidiary will be cancelled on the IPO Closing Date. |
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(B) | For purposes of the Qualifying IPO Conversion, the Notes are collected by Clearstream Frankfurt via the Noteholders' respective Custodians in accordance with the rules and procedures of the Clearing System. Upon acquisition of the Notes by a Noteholder and their book-entry transfer to a securities account of such Noteholder, the respective Noteholder's Custodian and Clearstream Frankfurt are authorised by such Noteholder to this effect (if a general authorisation is not already applicable), so that the collection by Clearstream Frankfurt will, in any case, be permitted without any need to give any separate prior notice to the Noteholder. In each case of a collection of the Notes by Clearstream Frankfurt, each Noteholder authorises the Conversion Agent to effect the Qualifying IPO Conversion. Until the collection of the Notes that are not excluded from Qualifying IPO Conversion pursuant to § 8(b)(ii)(A) has been effected by Clearstream Frankfurt, no claim for issue and/or delivery of Settlement Shares pursuant to § 9 will exist and the settlement date shall then be the first Business Day after the collection of such Notes has been effected. | ||
(C) | The authorisations of the Custodians, Clearstream Frankfurt and the Conversion Agent given in accordance with § 8(b)(ii) are unconditional, irrevocable and binding upon each Noteholder. The Conversion Agent will execute the Qualifying IPO Conversion with respect to all Notes that are not excluded from Qualifying IPO Conversion pursuant to § 8(b)(ii)(A) with effect on the IPO Closing Date. |
(D) | On the IPO Closing Date, the Issuer will deliver the Settlement Shares to the Conversion Agent for on-delivery to the Clearing System or another clearing system in which the Settlement Shares are settled following an IPO (an "Alternative Clearing System") or to its order for credit to the accounts of the relevant account holders of the Clearing System (or Alternative Clearing System). The Issuer will be discharged by the delivery to, or to the order of, the Clearing System (or Alternative Clearing System) to the extent of the number of Settlement Shares so delivered. Until the relevant Settlement Shares have been delivered, the respective Noteholders have no claims in relation to or arising from such Settlement Shares. |
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(E) | The Issuer will pay all transfer taxes (Verkehrssteuern) and similar duties, if any, which may be imposed in connection with the mandatory conversion or the delivery of the Settlement Shares by the Conversion Agent. |
(c) | Non-Qualifying IPO Conversion |
If the IPO Closing Date of a Non-Qualifying IPO falls on a day prior to the Maturity Date, the Issuer will procure the mandatory conversion into Settlement Shares of all Notes held by Noteholders that have not duly and timely exercised their No Conversion Election Right in accordance with §8(a)(iii) and deliver Settlement Shares on the IPO Closing Date. § 8(b)(i) and (ii) shall apply to this mandatory conversion mutatis mutandis. |
§ 9 | Delivery of Settlement Shares |
(a) | The Shares to be delivered upon execution of the conversion of the Notes in connection with an IPO (the "Settlement Shares") will carry rights to full dividends. Any Settlement Shares shall be delivered in accordance with these Terms and Conditions as newly issued Shares, as part of a capital increase of the Issuer, without further future corporate approvals of the Issuer being required. |
(b) | The Settlement Shares shall be delivered through the Conversion Agent. |
(c) | If up to and including the IPO Closing Date, a Settlement Disruption Event occurs and delivery of any Settlement Shares cannot be effected on the relevant settlement date, then the Issuer is required to deliver the relevant Settlement Shares on the first succeeding Business Day on which delivery of the Settlement Shares can take place through the Clearing System or Alternative Clearing System or in any other commercially reasonable manner. |
"Settlement Disruption Event" means an event beyond the control of the Issuer as a result of which any book-entry transfer of such Settlement Shares cannot be settled. |
(d) | If and to the extent on the IPO Closing Date the Issuer is legally or practically unable to issue and/or deliver Settlement Shares to one or more Noteholders (for a reason other than a Settlement Disruption Event), the Issuer will pay to such Noteholders per Note the Cash Alternative Amount in lieu of the delivery of the Number of Undeliverable Settlement Shares. |
"Cash Alternative Amount" means the product (rounded to the nearest full Cent with €0.005 being rounded upwards) of (x) the IPO Offer Price and (y) the Number of Undeliverable Settlement Shares, all as determined by the Calculation Agent. | |
"Number of Undeliverable Settlement Shares" means the Conversion Ratio (including fractions of shares) minus such number of full Settlement Shares (if any) that the Issuer is able to issue and/or deliver in respect of a Note. |
§ 10 | SPAC Transaction |
(a) | In case of a SPAC Transaction, the Issuer will give notice in accordance with § 15 of the SPAC Transaction and its expected closing date without undue delay after a binding agreement thereon has been entered into. |
(b) | In case of such SPAC Transaction without cash consideration for the shares in the Issuer or the Guarantor, each Noteholder shall be entitled to the SPAC Share Number (per Note) of such type of shares which constitute the consideration for the SPAC Transaction against transfer or redemption of the Note on the date of the closing of the SPAC Transaction. |
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(c) | (A) If and to the extent the Issuer or the Guarantor is legally or practically unable to deliver, or cause the delivery of, such number and type of shares as is required in accordance with § 10(b) on the date of the closing of the SPAC Transaction or (B) in case of such SPAC Transaction with only a cash consideration for the shares in the Issuer or the Guarantor, the Issuer shall pay the SPAC Redemption Price on the date of the closing of the SPAC Transaction for each Note (or part of such Note) for which the consideration for the SPAC Transaction could not be delivered. Such payment shall be made no later than on the twentieth Business Day following closing of the SPAC Transaction. |
(d) | In case of a SPAC Transaction with a combined cash/share consideration for the shares in the Issuer or the Guarantor, the redemption of the Notes shall be effected in cash and shares in the same proportion as the applicable split into cash and shares in the SPAC Transaction, provided that the share consideration in the SPAC Transaction accounts for at least 10 per cent of the aggregate consideration by value. The relevant SPAC Share Number (per Note) for the share portion shall be calculated using the methodology set forth in § 10(b). The SPAC Redemption Price (per Note) for the cash portion shall be calculated using the methodology set forth in § 10(c). If the share portion of the consideration would be less than 10 per cent of the aggregate consideration the Notes will be redeemed in cash only at the SPAC Redemption Price per Note and no shares shall be delivered. |
§ 11 | Acquisition (other than SPAC Transaction) |
(a) | In case of an Acquisition other than a SPAC Transaction, the Issuer will give notice in accordance with § 15 of the Acquisition and its expected closing date without undue delay after a binding agreement thereon has been entered into. |
(b) | In case of such Acquisition other than a SPAC Transaction, the Notes shall be redeemed at the Acquisition Redemption Price (per Note). Such redemption shall be made no later than the twentieth Business Day following closing of the Acquisition. |
§ 12 | Covenants and Information Rights |
(a) | The Issuer shall notify the Noteholders promptly in accordance with § 15 of the following matters: |
(i) | the occurrence of any Event of Default; | |
(ii) | the filing or commencement of any action, suit or proceeding by or before any arbitrator or governmental authority against or affecting the Issuer or the Guarantor or any Subsidiary that would reasonably be expected to result in a Material Adverse Effect; and | |
(iii) | any other development that results in, or would reasonably expected to result in, a Material Adverse Effect. |
(b) | The Issuer shall provide the Noteholders with its audited consolidated annual financial statements within 6 months after the end of the Financial Year, starting with the audited annual financial statements for the Financial Year 2020, either by publication of its financial statements on its webpage or such other means as notified by the Issuer in accordance with § 15. |
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(c) | Unless the Noteholders agree otherwise, the Issuer shall not, and shall not permit any of its Subsidiaries to: |
(i) | declare or pay any dividend or any distribution (except for a single payment to a shareholder of the Issuer of up to EUR 70,000); | |
(ii) | repurchase, redeem or otherwise acquire for value shares of the Issuer; and | |
(iii) | make any principal payment on, or redeem, repurchase or otherwise acquire or retire for value, in each case prior to any scheduled repayment or maturity, any subordinated debt or shareholder loans to the extent such payments exceed a total of EUR 3,900,000. |
§ 13 | Termination Rights of the Noteholders |
(a) | Each Noteholder will be entitled to declare all of its Notes due and demand immediate redemption of such Notes at the Applicable Redemption Price (per Note) on the date of the termination notice as provided hereinafter, if any of the following events (each an "Event of Default") occurs: |
(i) | the Issuer fails to pay any amount in respect of the Notes or the Guarantor fails to pay any amount in respect of the Guarantee within fifteen (15) days from the relevant due date; | |
(ii) | (x) the Issuer, for any reason whatsoever, fails to duly perform any other material obligation (including the covenants set forth in § 12) under the Notes or (y) the Guarantor, for any reason whatsoever, fails to duly perform any other material obligation under the Guarantee (including the covenants set forth in § 4 of the Guarantee) and such failure continues for more than fifteen (15) days after the Principal Paying Agent has received notice thereof from a Noteholder (in each case other than as a result of deliberate acts or omissions of a Noteholder); or | |
(iii) | any present or future financial indebtedness of the Issuer or the Guarantor (other than under the Notes or the Guarantee) for or in respect of monies borrowed or raised which in the aggregate amounts to at least €5 million (or its equivalent) is effectively declared to be or otherwise becomes due and payable prior to its stated maturity as a result of any default; or | |
(iv) | the Issuer or the Guarantor announces its inability to meet its financial obligations or ceases its payments; or | |
(v) | a court opens insolvency proceedings against the Issuer or the Guarantor, or a third party applies for insolvency proceedings against the Issuer or the Guarantor and such proceedings are not discharged or stayed within 60 days, or the Issuer or the Guarantor applies for or institutes such proceedings or offers or makes an arrangement for the benefit of its creditors generally; or | |
(vi) | the Issuer or the Guarantor ceases its business operations or sells the majority of its assets, or | |
(vii) | circumstances have occurred which render the performance (x) by the Issuer of its obligations under these Terms and Conditions or (y) by the Guarantor of its obligations under the Guarantee illegal, unenforceable or impossible (other than as a result of deliberate acts or omissions of a Noteholder). | |
The right to declare Notes due will terminate if the situation giving rise to it has been cured before such right is exercised. |
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§ 15 | Notices |
(a) | The Issuer shall notify the Noteholders via email to the extent the email addresses are known to the Issuer. |
(b) | In addition, the Issuer will deliver all notices concerning the Notes to the Clearing System for communication by the Clearing System to the Noteholders. Any such notice shall be deemed to have been executed on the third day after the day on which so delivered by the Issuer. |
(c) | A notice effected in accordance with § 15(a) and (b) above will be deemed to be effected on the day on which the first such communication is, or is deemed to be, effective. |
§ 16 | Presentation Period, Prescription |
The period for presentation of the Notes pursuant to § 801(1) sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch) will be ten years. The period of limitation for claims under the Notes presented during the period for presentation will be two years calculated from the expiration of the relevant presentation period. | |
§ 17 | Amendments to the Terms and Conditions, by resolution of the Noteholders; Joint Representative |
(a) | Subject to the other provisions of this § 17, the Issuer may agree with the Noteholders on amendments to the Terms and Conditions or on other matters by virtue of a majority resolution of the Noteholders pursuant to § 5 et seqq. of the German Act on Issues of Debt Securities (Gesetz über Schuldverschreibungen aus Gesamtemissionen – "SchVG"), as amended from time to time. In particular, the Noteholders may consent to amendments which materially change the substance of the Terms and Conditions, including such measures as provided for under § 5 paragraph 3 of the SchVG by resolutions passed by such majority of the votes of the Noteholders as stated under § 17(b) below. A duly passed majority resolution shall be binding equally upon all Noteholders. |
(b) | Except as provided by the following sentence and provided that the quorum requirements are being met, the Noteholders may pass resolutions by simple majority of the voting rights participating in the vote. Resolutions which materially change the substance of the Terms and Conditions, in particular in the cases of § 5 paragraph 3 numbers 1 through 9 of the SchVG, or relating to material other matters may only be passed by a majority of at least 75 per cent. of the voting rights participating in the vote (a "Qualifying Majority"). |
(c) | The Noteholders can pass resolutions in a meeting (Gläubigerversammlung) in accordance with § 5 et seqq. of the SchVG or by means of a vote without a meeting (Abstimmung ohne Versammlung) in accordance with § 18 and § 5 et seqq. of the SchVG. |
(i) | Attendance at the meeting and exercise of voting rights is subject to the Noteholders' registration. The registration must be received at the address stated in the convening notice no later than the third day preceding the meeting. As part of the registration, Noteholders must provide evidence of their eligibility to participate in the vote by means of a special confirmation of the Custodian in accordance with § 18(d)(i)(A) and (B) hereof in text form and by submission of a blocking instruction by the Custodian stating that the relevant Notes are not transferable from and including the day such registration has been sent until and including the stated end of the meeting. |
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(ii) | Together with casting their vote, Noteholders must provide evidence of their eligibility to participate in the vote without a meeting by means of a special confirmation of the Custodian in accordance with § 18(d)(i)(A) and (B) hereof in text form and by submission of a blocking instruction by the Custodian stating that the relevant Notes are not transferable from and including the day such vote has been cast until and including the day the voting period ends. |
(d) | If it is ascertained that no quorum exists for the meeting pursuant to § 17(c)(i) or the vote without a meeting pursuant to § 17(c)(ii), in case of a meeting the chairman (Vorsitzender) may convene a second meeting in accordance with § 15 paragraph 3 sentence 2 of the SchVG or in case of a vote without a meeting the scrutineer (Abstimmungsleiter) may convene a second meeting within the meaning of § 15 paragraph 3 sentence 3 of the SchVG. Attendance at the second meeting and exercise of voting rights is subject to the Noteholders' registration. The provisions set out in § 17(c)(i) shall apply mutatis mutandis to Noteholders' registration for a second meeting. |
(e) | The Noteholders may by majority resolution provide for the appointment or dismissal of a Noteholders' representative (the "Noteholders' Representative"), the duties and responsibilities and the powers of such Noteholders' Representative, the transfer of the rights of the Noteholders to the Noteholders' Representative and a limitation of liability of the Noteholders' Representative. Appointment of a Noteholders' Representative may only be passed by a Qualifying Majority if such Noteholders' Representative is to be authorised to consent, in accordance with § 17(b) hereof, to a material change in the substance of the Terms and Conditions or other material matters. |
(f) | Any notices concerning this § 17 shall be made exclusively pursuant to the provisions of the SchVG. |
(g) | Each Note carries the right to cast one vote in any meeting of Noteholders or in any vote without a meeting. |
§ 18 | Final Clauses |
(a) | The form and content of the Notes and the rights of the Noteholders and the obligations of the Issuer will in all respects be governed by the laws of the Federal Republic of Germany, apart from the issue of the Settlement Shares which shall be governed by the laws of the Netherlands. |
(b) | Place of performance is Frankfurt am Main, Federal Republic of Germany. |
(c) | To the extent legally permitted, the courts of Frankfurt am Main, Federal Republic of Germany will have jurisdiction for any action or other legal proceedings arising out of or in connection with the Notes. This is subject to any exclusive court of venue for specific legal proceedings in connection with the SchVG. |
(d) | Any Noteholder may in any proceedings against the Issuer or to which the Noteholder and the Issuer are parties protect and enforce in its own name its rights arising under its Notes on the basis of: |
(i) | a certificate issued by its Custodian |
(A) | stating the full name and address of the Noteholder; | ||
(B) | specifying an aggregate principal amount of Notes credited on the date of such statement to such Noteholder's securities account maintained with its Custodian; and |
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(C) | confirming that its Custodian has given a notice to the Clearing System and the Principal Paying Agent containing the information specified in (A) and (B) and bearing acknowledgements of the Clearing System and the relevant account holder in the Clearing System; as well as |
(ii) | a copy of the Global Note, certified as being a true copy by a duly authorised officer of the Clearing System or the Principal Paying Agent. |
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Exhibit 8.1
ATTORNEYS • CIVIL LAW NOTARIES • TAX ADVISERS | |
P.O. Box 7113 | |
1007 JC Amsterdam | |
Beethovenstraat 400 | Amsterdam, 22 October 2021. |
1082 PR Amsterdam | |
T +31 20 71 71 000 | To the Company |
F +31 20 71 71 111 |
Ladies and Gentlemen: | |
We have acted as tax counsel as to Dutch law to the Company in connection with the Offering. This opinion letter is rendered to you in order to be filed with the SEC as an exhibit to the Registration Statement. | |
Capitalised terms used in this opinion letter have the meanings set forth in Exhibit A to this opinion letter. The section headings used in this opinion letter are for convenience of reference only and are not to affect its construction or to be taken into consideration in its interpretation. | |
This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in any document reviewed by us. | |
In rendering the opinion expressed in this opinion letter, we have reviewed and relied upon a draft of the Registration Statement. We have not investigated or verified any factual matter disclosed to us in the course of our review. | |
This opinion letter sets out our opinion on certain matters of the tax laws with general applicability of the Netherlands, and, insofar as they are directly applicable in the Netherlands, of the European Union, as at today's date and as presently interpreted under published authoritative case law of the Dutch courts, the General Court and the Court of Justice of the European Union. We do not express any opinion on Dutch or European law, other than the tax opinion below. . No undertaking is assumed on our part to revise, update or amend this opinion letter in connection with or to notify or inform you of, any developments and/or changes of Dutch law subsequent to today's date. We do not purport to opine on the consequences of amendments to the Registration Statement subsequent to the date of this opinion letter. | |
Amsterdam | The opinion expressed in this opinion letter is to be construed and interpreted in accordance with Dutch tax law. The competent courts at Amsterdam, the Netherlands, have exclusive jurisdiction to settle any issues of interpretation or liability arising out of or in connection with this opinion letter. Any legal relationship arising out of or in connection with this opinion letter (whether contractual or non-contractual), including the above submission to jurisdiction, is governed by Dutch law and shall be subject to the general terms and conditions of NautaDutilh. Any liability arising out of or in connection with this opinion letter shall be limited to the amount which is paid out under NautaDutilh's insurance policy in the matter concerned. No person other than NautaDutilh may be held liable in connection with this opinion letter. |
Brussels | |
London | |
Luxemburg
New York
Rotterdam |
This communication is confidential and may be subject to professional privilege. All legal relationships are subject to NautaDutilh N.V.'s general terms and conditions (see https://www.nautadutilh.com/terms), which apply mutatis mutandis to our relationship with third parties relying on statements of NautaDutilh N.V., include a limitation of liability clause, have been filed with the Rotterdam District Court and will be provided free of charge upon request. NautaDutilh N.V.; corporate seat Rotterdam; trade register no. 24338323. |
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In this opinion letter and in the Dutch Tax Summary, legal and tax concepts are expressed in English terms. The Dutch legal and tax concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Dutch legal and tax concepts described by the English terms. | |
For the purposes of this opinion letter, we have assumed that: |
a. | the Registration Statement has been or will be declared effective by the SEC in the form reviewed by us; and |
b. | The place of effective management of the Company is in Germany, and not in the Netherlands, and the Company will therefore be a tax resident of Germany under German national tax law. |
Based upon and subject to the foregoing and subject to any matters, documents or events not disclosed to us, we express the following opinion: | |
Dutch Tax Summary | |
The Dutch Tax Summary constitutes our opinion and we hereby confirm that with respect to matters of Dutch tax law referred to therein, it is accurate and set forth in full.. | |
We consent to the filing of this opinion letter as an exhibit to the Registration Statement and also consent to the reference to NautaDutilh in the Registration Statement under the caption "Legal Matters". In giving this consent we do not admit or imply that we are a person whose consent is required under Section 7 of the United States Securities Act of 1933, as amended, or any rules and regulations promulgated thereunder. |
Sincerely yours, | ||
/s/ NautaDutilh N.V. | ||
NautaDutilh N.V. |
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EXHIBIT A | ||
LIST OF DEFINITIONS | ||
"Commercial Register" | The Dutch Commercial Register (handelsregister). | |
"Company" | Sono Group N.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), registered with the Commercial Register under number 80683568. | |
"Dutch Tax Summary" | The statements contained in the Registration Statement under the caption "Material Dutch Tax Considerations". | |
"NautaDutilh" | NautaDutilh N.V. | |
"the Netherlands" | The European territory of the Kingdom of the Netherlands and "Dutch" is in or from the Netherlands. | |
"Offering" | The offering of Ordinary Shares as contemplated by the Registration Statement. | |
"Ordinary Shares" | Ordinary shares in the Company's capital, with a nominal value of EUR 0.06 each. | |
"Registration Statement" | The Company's registration statement on Form F-1 filed or to be filed with the SEC in connection with the Offering in the form reviewed by us. | |
"SEC" | The United States Securities and Exchange Commission. |
Exhibit 10.1
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LONG-TERM INCENTIVE PLAN
SONO GROUP N.V.
INTRODUCTION
Article | 1 |
1.1 | This document sets out the Company's long-term incentive plan for (current or former) employees, officers and other service providers who qualify as Eligible Participants. |
1.2 | The main purposes of this Plan are: |
a. | to attract, retain and motivate Participants with the qualities, skills and experience needed to support and promote the growth and sustainable success of the Company and its business; and |
b. | to incentivise Participants to perform at the highest level and to further the best interests of the Company, its business and its stakeholders. |
DEFINITIONS AND INTERPRETATION
Article | 2 |
2.1 | In this Plan the following definitions shall apply: |
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Cause |
With respect to a Participant, "cause" as defined in such Participant's employment, service or consulting agreement with the Company or a Subsidiary, or if not so defined (and unless determined otherwise in the applicable Award Agreement or by the Committee):
a. such Participant's indictment for any crime which (i) constitutes a felony, (ii) has, or could reasonably be expected to have, an adverse impact on the performance of such Participant's services to the Company and/or any Subsidiary or (iii) has, or could reasonably be expected to have, an adverse impact on the business and/or reputation of the Company and/or any Subsidiary;
b. such Participant having been the subject of any order, judicial or administrative, obtained or issued by any governmental or regulatory body for any securities laws violation involving fraud, market manipulation, insider trading and/or unlawful dissemination of non-public price-sensitive information;
c. such Participant's wilful violation of the Company's code of business conduct and ethics, insider trading policy or other internal policies and regulations established by the Company and/or any Subsidiary, in each case to the extent applicable to the Participant concerned;
d. gross negligence or wilful misconduct in the performance of such Participant's duties for the Company and/or any Subsidiary or wilful or repeated failure or refusal to perform such duties;
e. material breach by such Participant of any employment, service, consulting or other agreement entered into between such Participant on the one hand and the Company and/or any Subsidiary on the other;
f. conduct by such Participant which should be considered as an urgent cause within the meaning of Section 7:678 DCC, irrespective of whether that provision applies to such Participant's relationship with the Company and/or any Subsidiary; and
g. such other acts or omissions to act by such Participant as reasonably determined by the Committee,
provided that the occurrence of an event described in paragraphs c. through e. above shall only constitute Cause if and when such event has not been cured or remedied by the relevant Participant within thirty days after the Company has provided written notice to such Participant.
|
3
Change of Control |
The occurrence of any one or more of the following events:
a. the direct or indirect change in ownership or control of the Company effected through one transaction, or a series of related transactions within a twelve-month period, as a result of which any Person or group of Persons acting in concert, directly or indirectly acquires (i) beneficial ownership of more than half of the Company's issued share capital and/or (ii) the ability to cast more than half of the voting rights in the General Meeting;
b. at any time during a period of twelve consecutive months, individuals who at the beginning of such period constituted the Management Board and/or the Supervisory Board, as applicable, cease to constitute a majority of members of the Management Board and/or the Supervisory Board, as applicable, provided that any new Managing Director or Supervisory Director who was nominated for appointment by the Supervisory Board by a vote of at least a majority of the Supervisory Directors who either were Supervisory Directors at the beginning of such twelve-month period or whose nomination for appointment was so approved, shall be considered as though such individual were a Managing Director or Supervisory Director, as applicable, at the beginning of such twelve-month period;
c. the consummation of a merger, demerger or business combination of the Company or any Subsidiary with another Person, unless such transaction results in the shares in the Company's capital outstanding immediately prior to the consummation of such transaction continuing to represent (either by remaining outstanding or by being converted into, or exchanged for, voting securities of the surviving or acquiring Person or a parent thereof) at least half of the voting rights in the General Meeting or in the shareholders' meeting of such surviving or acquiring Person or parent outstanding immediately after the consummation of such transaction;
d. the consummation of any sale, lease, exchange or other transfer to any Person or group of Persons acting in concert, not being Subsidiaries, in one transaction or a series of related transactions within a twelve-month period, of all or substantially all of the business of the Company and its Subsidiaries; or
e. subject to Article 10, such other event which the Committee determines to constitute a change of control in respect of the Company.
|
|
Committee |
Any of the following bodies, as applicable:
a. the Management Board, to the extent the administration or operation of this Plan relates to the grant of Awards to Eligible Participants who are not Managing Directors or Supervisory Directors, as well as any other matter relating to such Awards;
b. the Supervisory Board, to the extent the administration or operation of this Plan relates to the grant of Awards to Eligible Participants who are members of the compensation committee established by the Supervisory Board, as well as any other matter relating to such Awards; or
c. the compensation committee established by the Supervisory Board for all other matters relating to the administration or operation of the Plan.
|
|
Company | Sono Group N.V. | |
Consultant | Any Person, other than a Managing Director, Supervisory Director, or Employee, who is an adviser or consultant engaged by the Company and/or a Subsidiary to render bona fide services to the Company and/or a Subsidiary. | |
DCC | The Dutch Civil Code. | |
Eligible Participant | Any Managing Director, Supervisory Director, Employee or Consultant. |
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2.2 | References to statutory provisions are to those provisions as they are in force from time to time. |
2.3 | Terms that are defined in the singular have a corresponding meaning in the plural. |
2.4 | Words denoting a gender include each other gender. |
2.5 | Except as otherwise required by law, the terms "written" and "in writing" include the use of electronic means of communication. |
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ADMINISTRATION
Article | 3 |
3.1 | This Plan shall be administered by the Committee. The Committee's powers and authorities under this Plan include the authority to perform the following matters, in each case consistent with and subject to the terms of this Plan: |
a. | designating Persons to whom Awards are granted; |
b. | deciding to grant Awards; |
c. | determining the form(s) and type(s) of Awards being granted and setting the terms and conditions applicable to such Awards, including: |
i. | the number of Plan Shares underlying Awards; |
ii. | the time(s) when Awards may be exercised or settled in whole or in part; |
iii. | whether, to which extent, and under which circumstances Awards may be exercised or settled in cash or assets (including other Awards), or a combination thereof, in lieu of Plan Shares and vice versa; |
iv. | whether, to which extent and under which circumstances Awards may be cancelled or suspended; |
v. | whether, to which extent and under which circumstances a Participant may designate another Person owned or controlled by him as recipient or beneficiary of his Awards; |
vi. | whether and to which extent Awards are subject to Performance Criteria and/or restrictive covenants (including non-competition, non-solicitation, confidentiality and/or Share ownership requirements); |
vii. | the method(s) by which Awards may be exercised, settled or cancelled; |
viii. | whether, to which extent and under which circumstances, the exercise, settlement or cancellation of Awards may be deferred or suspended; |
d. | amending or waiving the terms applicable to outstanding Awards (including Performance Criteria), subject to the restrictions imposed by Article 9 and provided that no such amendment shall take effect without the consent of the affected Participant(s), if such amendment would materially and adversely affect the rights of the Participant(s) under such Awards, except to the extent that any such amendment is made to cause this Plan or the Awards concerned to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations; |
e. | making any determination under, and interpreting the terms of, this Plan, any rules or regulations issued pursuant to this Plan and any Award Agreement; |
f. | correcting any defect, supplying any omission or reconciling any inconsistency in the Plan or any Award Agreement; |
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g. | settling any dispute between the Company and any Participant (including any beneficiary of his Awards) regarding the administration and operation of this Plan, any rules or regulations issued pursuant to this Plan, and any Award Agreement entered into with such Participant; and |
h. | making any other determination or taking any other action which the Committee considers to be necessary, useful or desirable in connection with the administration or operation of this Plan. |
3.2 | The Committee may issue further rules and regulations for the administration and operation of this Plan, consistent with and subject to the terms of this Plan. |
3.3 | All decisions of the Committee shall be final, conclusive and binding upon the Company and the Participants (including beneficiaries of Awards). |
AWARDS
Article | 4 |
4.1 | Awards can only be granted to: |
a. | Eligible Participants; and |
b. | any other Person who has been extended an offer of employment or other service, as a result of which the Committee reasonably expects such Person to become an Eligible Participant within twelve months after the Grant Date, provided that Awards granted to any such Person shall be treated as Awards held by a Bad Leaver if and when he has not become an Eligible Participant within such twelve-month period. |
4.2 | No Award is intended to confer any rights on the relevant Participant except as set forth in the applicable Award Agreement. In particular, no Award should be construed as giving any Participant the right to remain employed by or to continue to provide services for the Company or any Subsidiary. |
4.3 | Awards shall be granted for no consideration or for such minimal cash consideration as may be required by applicable law. |
4.4 | Awards may be granted alone or in addition or in tandem with any other Award and/or any award under any other plan of the Company or any Subsidiary. Awards granted in addition or in tandem with any other Award and/or any award under any other plan of the Company or any Subsidiary may be granted simultaneously or at different times. |
4.5 | Each Award shall be evidenced by an Award Agreement entered into between the Company and the Participant concerned. Until an Award Agreement has been entered into between the Company and the relevant Participant, no rights can be derived from the Awards concerned by such Participant. |
4.6 | Plan Shares, including Awards in the form of Shares of Restricted Stock, shall be delivered in such form(s) as may be determined by the Committee and shall be subject to such stop transfer orders and other restrictions as the Committee may deem required or advisable. Furthermore, the Committee may determine that certificates for such Shares shall bear an appropriate legend referring to the terms, conditions and restrictions applicable thereto. |
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4.7 | The terms and conditions applicable to Awards, including the time(s) when Awards vest in whole or in part and any applicable Performance Criteria, shall be set by the Committee and may vary between Awards and between Participants, as the Committee deems appropriate. The Committee may also determine whether and under which circumstances Awards shall be settled automatically upon vesting, without being exercised by the Participant. |
4.8 | The term of an Award shall be determined by the Committee, but shall not exceed ten years from the applicable Grant Date. Unless determined otherwise by the Committee, if the exercise of an Award is prohibited by applicable law or the Company's insider trading policy on the last business day of the term of such Award, such term shall be extended for a period of one month following the end of such prohibition. |
4.9 | Unless determined otherwise by the Committee, Awards cannot be transferred, pledged or otherwise encumbered, except by testament or hereditary law as a result of death of the Participant concerned. |
4.10 | If, as a result of changes in applicable law, accounting principles or tax rules and regulations, or due to a variation of the composition of the Company's issued share capital (including a share split, reverse share split, redenomination of the nominal value, or as a result of a dividend or other distribution, reorganisation, acquisition, merger, demerger, business combination or other transaction involving the Company or a Subsidiary), an adjustment to this Plan, any Award Agreement and/or outstanding Awards is necessary to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Plan, the Committee may adjust equitably any or all of: |
a. | the number of Plan Shares available under this Plan; |
b. | the number of Plan Shares underlying outstanding Awards; and/or |
c. | the Exercise Price or other terms applicable to outstanding Awards. |
4.11 | Any rights, payments and benefits under any Award shall be subject to repayment and/or recoupment by the Company in accordance with applicable law, stock exchange rules and such policies and procedures as the Company may adopt from time to time. |
4.12 | The Company may withhold from any outstanding Award, any payment, issuance or transfer to be made under such Award, or any other compensation or amount owed by the Company to the Participant holding such Award, an amount (in cash, in assets, in the form of Shares or other Awards, or a combination thereof) equal to the withholding taxes and other costs due, or to be withheld, by the Company or any Subsidiary in respect of the grant, exercise or settlement of such Award. |
TYPES OF AWARDS
Article | 5 |
5.1 | The Committee may grant Awards in the form of Options, SARs, Shares of Restricted Stock, RSUs, Other Awards or a combination of the foregoing. |
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5.2 | Upon the exercise or settlement of vested Options, the Company shall be obliged to deliver to the Participant concerned (or the beneficiary of such Options, as applicable), the Plan Shares underlying such Options (unless otherwise set forth in the Award Agreement). |
5.3 | Upon the exercise or settlement of vested SARs, the Company shall be obliged to pay to the Participant concerned (or the beneficiary of such SARs, as applicable) an amount equal to the number of Plan Shares underlying such SARs multiplied by the excess, if any, of the FMV of one Share on the applicable Exercise Date over the applicable Exercise Price. The Company may satisfy such payment obligation in cash, in assets, in the form of Shares valued at FMV, or a combination thereof, at the discretion of the Committee. |
5.4 | The exercise by a Participant of his rights attached to Shares of Restricted Stock shall be subject to such restrictions as the Committee may impose, including with respect to voting rights and the right to receive dividends or other distributions made by the Company. Upon the vesting of Shares of Restricted Stock, any such restrictions and conditions shall lapse with respect to those Shares. If an Award in the form of Shares of Restricted Stock is cancelled or otherwise terminated, the Participant shall be obliged to transfer all of his unvested Shares of Restricted Stock to the Company promptly and for no consideration. |
5.5 | Upon the exercise or settlement of vested RSUs, the Company shall be obliged to pay to the Participant concerned (or the beneficiary of such RSUs, as applicable) an amount equal to the number of Plan Shares underlying such RSUs multiplied by the FMV of one Share on the applicable Exercise Date. The Company may satisfy such payment obligation in cash, in assets, in the form of Shares valued at FMV, or a combination thereof, at the discretion of the Committee (unless otherwise set forth in the Award Agreement). |
5.6 | The Committee may determine that a Participant holding one or more RSUs is entitled to receive dividends and other distributions made by the Company on the Shares, as if such Participant held the Plan Shares underlying such RSUs. The Committee may impose restrictions with respect to such entitlement. |
PERFORMANCE CRITERIA
Article | 6 |
6.1 | The Committee may condition the right of a Participant to exercise one or more of his Awards, and the timing thereof, upon the achievement or satisfaction of such Performance Criteria as may be determined by the Committee, within periods specified by the Committee. |
6.2 | If an Award is subject to Performance Criteria which must be achieved or satisfied within a period specified by the Committee for that purpose, such Award can only be exercised or settled at or after the end of that period. |
6.3 | Performance Criteria may be measured on an absolute or relative basis and may be established on a Company-wide basis or with respect to one or more business units, divisions, Subsidiaries and/or business segments. Relative performance may be measured against a group of peer companies determined by the Committee, financial market indices and/or other objective and quantifiable indices. Performance Criteria may relate to performance by the Company and/or by the Participant concerned. |
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6.4 | If the Committee determines that a change in the business, operations, group structure or capital structure of the Company, or other events or circumstances, render certain Performance Criteria applicable to outstanding Awards unsuitable or inappropriate, the Committee may amend or waive such Performance Criteria, in whole or in part, as the Committee deems appropriate. |
PLAN SHARES AVAILABLE FOR AWARDS
Article | 7 |
7.1 | Subject to Articles 4.10 and 7.2, the Plan Shares underlying Awards which are not Replacement Awards, irrespective of whether such Awards have been exercised or settled, may not represent more than 10% of the Company's issued share capital from time to time. |
7.2 | Plan Shares underlying Awards, except for Replacement Awards, which expire, which are cancelled or otherwise terminated, or which are exercised or settled in cash or assets in lieu of Plan Shares, shall again be available under this Plan and shall not be counted towards the limit imposed by Article 7.1. |
VESTING, EXERCISE AND SETTLEMENT
Article | 8 |
8.1 | Each Award Agreement shall contain the vesting schedule and, where relevant, delivery schedule (which may include deferred delivery later than the vesting dates) for the relevant Awards. |
8.2 | Only vested Awards may be exercised or settled in accordance with their terms. An Award can only be exercised (to the extent it is not settled automatically) by or on behalf of the Participant holding such Award. |
8.3 | An Award can only be exercised through the use of an electronic system or platform to be designated by the Committee (if and when such system or platform has been set up by the Company), or otherwise by delivering written notice to the Company in a form approved by the Committee. |
8.4 | Subject to Article 9.1, the Committee shall determine the Exercise Price, provided that the Exercise Price for an Award which can be exercised or settled in the form of Plan Shares shall not be less than the aggregate nominal value of such Plan Shares. |
8.5 | Upon the exercise of an Award, the applicable Exercise Price must immediately be paid in cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Committee, subject to applicable law, may allow such Exercise Price to be satisfied on a cashless or net settlement basis, applying any of the following methods (or a combination thereof): |
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a. | by means of an immediate sale by or on behalf of the relevant Participant of part of the Plan Shares underlying the Award being exercised, with sale proceeds equal to the Exercise Price being remitted to the Company and any remaining net sale proceeds (less applicable costs, if any) being paid to such Participant; |
b. | by means of the relevant Participant forfeiting his entitlement to receive part of the Plan Shares underlying the Award being exercised at FMV on the Exercise Date and charging the aggregate nominal value of the remaining Plan Shares underlying such Award against the Company's reserves; |
c. | by means of the relevant Participant surrendering his entitlement to receive part of the Plan Shares underlying the Award being exercised at FMV on the Exercise Date, against the Company becoming due an equivalent amount to such Participant and setting off that obligation against the Company's receivable with respect to payment of the applicable Exercise Price; or |
d. | by means of the relevant Participant surrendering and transferring Shares to the Company (which may include Plan Shares underlying the Award being exercised) at FMV on the Exercise Date. |
8.6 | The Company may withhold from any Award granted or any payment due or transfer made under any Award (or under the Plan generally) or from any compensation or other amount owing to a Participant the amount (in cash, Shares, other Awards, other property, net settlement or any combination thereof) of applicable wage or withholding taxes due in respect of an Award, its exercise or settlement or any payment or transfer under such Award (or under the Plan generally) and to take such other action, including providing for elective payment of such amounts in cash or Shares by the Participant, as may be necessary in the option of the Company to satisfy all obligations for the payment of such taxes. In addition, the Company may cause the sale by or on behalf of the relevant Participant of part of the Plan Shares underlying any Award being exercised or settled, with sale proceeds equal to the applicable wage or withholding taxes being remitted to the Company and any remaining net sale proceeds (less applicable costs, if any) being paid to such Participant. |
8.7 | When an Award is exercised or settled in the form of Plan Shares, the Company shall, at the discretion of the Committee, subject to applicable law and the Company's insider trading policy: |
a. | issue new Plan Shares to the relevant Participant; or |
b. | transfer existing Plan Shares held by the Company to the relevant Participant, |
provided, in each case, that Plan Shares may be delivered in the form of book-entry securities representing those Plan Shares (or beneficial ownership of those Plan Shares entitling the holder to exercise or direct the exercise of voting rights attached thereto) credited to the securities account designated by the relevant Participant. Furthermore, Plan Shares may be delivered as described in the previous sentence to a Person designated by the relevant Participant, with the prior approval of the Committee, as beneficiary of his Award.
8.8 | If an Award is exercised or settled in the form of Plan Shares and such Award does not relate to a whole number of Plan Shares, the number of Plan Shares underlying such Award shall be rounded down to the nearest integer. |
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PRICING RESTRICTIONS FOR OPTIONS AND SARS
Article | 9 |
9.1 | Except for Replacement Awards, the Exercise Price for an Option or SAR shall not be less than the higher of: |
a. | the FMV of a Plan Share on the applicable Grant Date and, in case of a SAR being granted in connection with an Option, on the Grant Date of such Option; or |
b. | the nominal value of a Plan Share. |
9.2 | Except as provided in Article 4.10, the Committee may not, without prior approval of the General Meeting, seek to effect any re-pricing of any outstanding "underwater" Option or SAR by: |
a. | amending or modifying the terms of such Award to lower the Exercise Price; |
b. | cancelling such Award and granting in exchange either (i) replacement Options or SARs having a lower Exercise Price, or (ii) Restricted Stock, RSUs or Other Awards; or |
c. | cancelling or repurchasing such Award for cash, assets or other securities. |
9.3 | Options and SARs will be considered to be "underwater" within the meaning of Article 9.2 at any time when the FMV of the Plan Shares underlying such Awards is less than the applicable Exercise Price. |
U.S. PARTICIPANTS
Article | 10 |
10.1 | With respect to any Award subject to Section 409A IRC and Section 457A IRC, this Plan and the applicable Award Agreement are intended to comply with the requirements of Section 409A IRC and Section 457A IRC, the provisions of this Plan and such Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A IRC and Section 457A IRC, and this Plan shall be operated accordingly. If any provision of this Plan or any term or condition of any Award subject to Section 409A IRC and Section 457A IRC would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. |
10.2 | Notwithstanding any provision of this Plan to the contrary or any Award Agreement, a termination of employment shall not deemed to have occurred for purposes of any provision of an Award that is subject to Section 409A IRC providing for payment upon or following a termination of a Participant's employment unless such termination is also a "separation from service" and, for purposes of any such provision of such Award, references to a "termination", "termination of employment" or like terms shall mean "separation from service". |
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10.3 | No Awards will be eligible for the payment of dividends or dividend equivalents, to the extent such Option or SAR is subject to Section 409A IRC and Section 457A IRC. |
10.4 | If all or part of any payments made, or other benefits conferred, under any Award subject to Section 409A IRC constitutes deferred compensation for purposes of Section 409A IRC as a result of a "separation from service" of the relevant Participant (other than due to his death) within the meaning of Section 409A IRC while such Participant is a "specified employee" under Section 409A IRC, then such payment or benefit shall not be made or conferred until six months and one business day have elapsed after the date of such "separation from service", except as permitted under Section 409A IRC. |
10.5 | If an Award subject to Section 409A IRC includes a "series of installment payments" within the meaning of Section 1.409A-2(b)(2)(iii) of the United States Treasury Regulations, the right of the relevant Participant to such series of instalment payments shall be treated as a right to a series of separate payments and not as a right to a single payment, and if such an Award includes "dividend equivalents" within the meaning of Section 1.409A-3(e) of the United States Treasury Regulations, the right of the relevant Participant to such dividend equivalents shall be treated separately from the right to other amounts or other benefits under such Award. |
10.6 | For any Award subject to Section 409A IRC or Section 457A IRC that provides for accelerated distribution on a Change of Control of amounts that constitute "deferred compensation" as defined in Section 409A IRC and Section 457A IRC, if the event that constitutes such Change of Control does not also constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company's assets (in either case, as defined in Section 409A IRC), such amount shall not be distributed on such Change of Control but instead shall vest as of the date of such Change of Control and shall be paid on the scheduled payment date specified in the applicable Award Agreement, except to the extent that earlier distribution would not result in the relevant Participant incurring any additional tax, penalty, interest or other expense under Section 409A IRC and Section 457A IRC. |
10.7 | Notwithstanding the foregoing in this Article 10, the tax treatment of the benefits provided under this Plan or any Award Agreement is not warranted or guaranteed, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by a U.S. Participant on account of non-compliance with Section 409A IRC and Section 457A IRC. |
10.8 | Notwithstanding any provision of this Plan to the contrary or any Award Agreement, in the event the Committee determines that any Award may be subject to Section 409A IRC or Section 457A IRC, the Committee may adopt such amendments to this Plan and the applicable Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Committee determined are necessary or appropriate to: |
a. | exempt the Award from Section 409A IRC or Section 457A IRC and/or preserve the intended tax treatment of the benefits provided with respect to the Award; or |
b. | comply with the requirements of Section 409A IRC or Section 457A IRC and thereby avoid the application of any adverse tax consequences under such Sections. |
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LEAVER
Article | 11 |
11.1 | If a Participant becomes a Good Leaver, unless otherwise determined by the Committee or set forth in an Award Agreement: |
a. | all vested Awards that have not yet been exercised or settled must be exercised or settled in accordance with their terms within a period specified by the Committee and, if such Awards are not exercised or (through no fault of the Participant concerned) not settled within such period, they shall be cancelled automatically without compensation for the loss of such Awards; and |
b. | all unvested Awards of such Participant shall be cancelled automatically without compensation for the loss of such Awards, unless the Committee decides otherwise. |
11.2 | If a Participant becomes a Bad Leaver, all vested Awards of such Participant which have not been exercised or settled, as well as all unvested Awards of such Participant, shall be cancelled automatically without compensation for the loss of such Awards. |
CHANGE OF CONTROL
Article | 12 |
12.1 | If long-term incentive awards are granted in assumption of, or in substitution or exchange for, outstanding Awards in connection with a Change of Control and the Committee has determined that such awards are sufficiently equivalent to the outstanding Awards concerned, then such outstanding Awards shall be cancelled and terminated upon the replacement awards being granted to the Participants concerned. |
12.2 | If, in connection with a Change of Control, outstanding Awards are not replaced by long-term incentive awards as described in Article 12.1, or are replaced by long-term incentive awards which the Committee does not consider to be sufficiently equivalent to such outstanding Awards, then such Awards shall immediately vest and, where relevant, settle in full, unless the Committee decides otherwise. |
12.3 | For purposes of this Article 12, awards shall not be considered to be "sufficiently equivalent" to outstanding Awards, if the underlying securities are not widely held and publicly traded on a regulated national stock exchange. |
LOCK-UP
Article | 13 |
13.1 | In connection with any registration of the Company's securities under United States securities laws, to the extent requested by the Company or the underwriters managing any offering of the Company's securities, and except as otherwise approved by the Committee or pursuant to any exceptions approved by such underwriters, Shares acquired by a Participant pursuant to the issuance, vesting, exercise or settlement of any Award may not be sold, transferred, or otherwise disposed of prior to such period following the effective date of such registration as designated by such underwriters, not to exceed 180 days following such registration. |
15
13.2 | The Company may impose stop-transfer instructions with respect to the Shares subject to the restriction stipulated by Article 13.1 until the end of the lock-up period referred to in that provision. |
DATA PROTECTION
Article | 14 |
14.1 | The Company may process personal data relating to the Participants in connection with the administration and operation of this Plan. The personal data of the Participants which may be processed in this respect may include a copy of an identification document, contact details and bank and securities account numbers. Each Participant's personal data shall be stored by the Company for such time period as is necessary to administer such Participant's participation in the Plan or as otherwise permitted under applicable law. |
14.2 | Each Participant's personal data shall be handled by the Company in a proper and careful manner in accordance with applicable law, including the General Data Protection Regulation (GDPR) and the rules and regulations promulgated pursuant thereto. Participants have the right to lodge complaints with an applicable supervisory authority regarding the Company's processing of personal data pursuant to this Plan. |
14.3 | The Company shall implement technical and organisational measures designed to protect personal data processed pursuant to Article 14.1. Personnel or third parties that have access to such personal data shall be bound by confidentiality obligations. |
14.4 | The Company shall abide by any statutory rights the Participants may have regarding their respective personal data processed pursuant to Article 14.1, which includes the right to access, rectification, erasure, restriction of processing, objection to processing and portability of such personal data. |
14.5 | In connection with the administration and operation of this Plan, the Company may transfer personal data processed pursuant to Article 14.1 to one or more third parties, provided that there is a legitimate interest in doing so. Where such third parties are located outside the European Economic Area in countries that are not considered to provide for an adequate level of data protection, the Company shall ensure that sufficient data protection safeguards are put in place, failing which explicit consent for such transfer shall be obtained from the Participant(s) concerned. |
14.6 | The Company may establish one or more privacy policies providing further information on data protection and applying to the processing of personal data of the Participants by the Company in connection with the administration and operation of this Plan. |
16
AMENDMENTS
Article | 15 |
15.1 | Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Agreement, the Supervisory Board may amend, supplement, suspend or terminate this Plan (or any portion thereof) pursuant to a resolution to that effect, provided that no such amendment, supplement, suspension or termination shall take effect without: |
a. | approval of the General Meeting, if such approval is required by applicable law or stock exchange rules; and/or |
b. | the consent of the affected Participant(s), if such action would materially and adversely affect the rights of such Participant(s) under any outstanding Award, except to the extent that any such amendment, supplement or termination is made to cause this Plan to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations. |
15.2 | Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan and/or any Award Agreement in such manner as may be necessary or desirable to enable the Plan and/or such Award Agreement to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local laws, rules and regulations to recognise differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimise the Company's obligation with respect to tax equalisation for Participants on assignments outside their home country. |
GOVERNING LAW AND JURISDICTION
Article | 16 |
This Plan shall be governed by and shall be construed in accordance with the laws of the Netherlands. Subject to Article 3.1 paragraph g., any dispute arising in connection with these rules shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
17
Annex A - Template Award Agreement
AWARD AGREEMENT
THIS AGREEMENT IS MADE ON [DATE] BETWEEN
1. | Sono Group N.V., a public company with limited liability, having its corporate seat in Amsterdam (address: Waldmeisterstrasse 76, 80935 Munich, Germany, trade register number: 80683568) (the "Company"); and |
2. | [details Participant] (the "Participant"). |
NOW HEREBY AGREE AS FOLLOWS
1.1 | Capitalised terms used herein have the meanings ascribed thereto in the Company's long-term incentive plan (the "Plan"). |
1.2 | In the event of a conflict among the provisions of the Plan, this agreement and/or any descriptive materials concerning the Award governed by this agreement provided to the Participant, the provisions of the Plan will prevail. |
1.3 | The Participant has been granted an Award on the terms and subject to the conditions set out in the Plan and below: |
Form of Award | : | [number] [Options] [SARs] [Shares of Restricted Stock] [RSUs] [Other Awards] | |
Grant Date | : | [date] | |
[Exercise Price] | : | [[FMV] [other price] per [Option] [SAR] [Share of Restricted Stock] [RSU] [Other Award]] | |
Automatic settlement | : | [Yes, on each vesting date] [No, exercised at the option of the Participant] | |
Expiration Date | : | [date] | |
Performance-based | : | [Yes, as specified below] [No] | |
Vesting schedule | : | Starting on [the Grant Date] [date], [percentage]% of the Award vests each anniversary of [the Grant Date] [such date][, subject to the applicable Performance Criteria specified below] | |
Delivery schedule | : | [Not applicable] [Within [one week] following each vesting date] | |
Good Leaver | : | In case of the Participant becoming a Good Leaver, all vested Awards that have not yet been exercised or settled must be exercised or settled in accordance with their terms within [period] after the Participant became a Good Leaver. |
18
1.4 | [The following Performance Criteria relating to the Company's performance apply with respect to this Award (determined on a consolidated basis):] |
Criteria | Measure |
Vesting percentage of time-vested [Options] [SARs] [Restricted Stock] [RSUs] [Other Awards]
|
|||||
0% | 20% | 40% | 60% | 80% | 100% | ||
Adjusted EBITDA | Increase over financial year compared to prior financial year, determined as at the end of the financial year on the basis of the Company's [audited] [annual][last quarter] financial statements (in [basis points]) | ||||||
VWAP | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
EPS | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
Adjusted FCF | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
ROIC | Percentage for the financial year | ||||||
RoE | Percentage for the financial year | ||||||
Relative TSR | Percentage for the financial year | ||||||
[Other metrics or targets] |
19
1.5 | [The following Performance Criteria relating to the Participant's performance apply with respect to this Award:] |
1.6 | The Participant grants an irrevocable power of attorney to the Company, with full right of substitution, to perform on the Participant's behalf all acts necessary for or conducive to the administration and operation of the Plan, including the following matters (in each case consistent with and subject to the terms of this Plan): |
a. | delivery of Plan Shares underlying Awards upon the exercise or settlement of such Awards in accordance with their terms; |
b. | effecting a cashless exercise of Awards; and |
c. | effecting a cancellation, termination and/or transfer to the Company of Awards in case the Participant would become a Bad Leaver. |
1.7 | The power of attorney granted above also extends to the performance of acts of disposition (beschikkingshandelingen). The Company may act as counterparty of the Participant when acting under such power of attorney. |
20
1.8 | This agreement shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with this agreement shall be resolved in accordance with the dispute resolution provisions of the Plan. |
Sono Group N.V. | |
Name : | |
Title : | |
[Participant] |
Exhibit 10.2
Sono Group N.V.
Conversion Stock Option Program 2020
December 12, 2020
- Terms and Conditions -
Table of Contents
Page 2/9
Recitals
(A) | In October 2017, Sono Motors GmbH (the “SM GmbH”) implemented a virtual employee stock option program (the “VESOP 2017”) to grant virtual shares to certain employees. The beneficiaries under the VESOP 2017 (the "Beneficiaries" and each a "Beneficiary") have a cash payment claim against SM GmbH of in aggregate up to 10% of the net proceeds in the event of a sale and transfer of more than 95% of the shares in SM GmbH or a sale and transfer of all of the material assets of SM GmbH (each such event, an “Exit”) (the “Cash Payment Claim”). The share in the Cash Payment Claim of each individual beneficiary under the VESOP 2017 is generally determined by the number of days such Beneficiary is in employment with SM GmbH at the time of the Exit (subject to certain exceptions on an individual basis in case of parental leave, sick leave etc.). |
(B) | On 25 November 2020, all shares in SM GmbH were contributed to Sono Group N.V. (at that time: Sono Motors Finance B.V.) (the “Company” and together with SM GmbH and any other subsidiary of the Company or SM GmbH, the “Group”) in exchange for shares in the Company's capital. In connection with this reorganisation, the Company established a long-term investment plan (the “LTIP”). |
(C) | The Company is pursuing an underwritten initial public offering of its ordinary shares (“Shares” and each a “Share”), which the Company expects to complete in 2021 (the “IPO”). In order to align, in light of the IPO, the interests of the Beneficiaries with the interests of the Group, the Company intends to allow the Beneficiaries to participate in a new stock option program under the LTIP (the “Conversion Stock Option Program”) upon termination by SM GmbH of such Beneficiaries' Cash Payment Claims under the VESOP 2017. The Conversion Stock Option Program will facilitate a monetisation of the Beneficiaries' Cash Payment Claim following an IPO. Each eligible Beneficiary shall be granted fully vested options for Shares representing a value which corresponds to the Cash Payment Claim of such Beneficiary (the “Conversion Stock Options”, and each individually a “Conversion Stock Option”) in exchange for the cancellation and termination of his or her Cash Payment Claim. |
(D) | These terms and conditions (the “Rules”) and the LTIP together establish the rules of the Conversion Stock Option Program. These Rules, the LTIP and the applicable Grant Agreements (as defined below) together establish the terms and conditions of the Conversion Stock Options. |
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§
1
Effectiveness and Eligibility
(1) | These Rules and the Conversion Stock Option Program (including the grant of the Conversion Stock Options thereunder) shall become effective upon the closing of an IPO or a business combination of the Company with a special purpose acquisition company that is listed at the time of announcement of such business combination on an internationally recognized stock exchange, in each case resulting in gross proceeds of at least $ 100,000,000.00 for the Company (such date, the “Closing Date”). |
(2) | Only those former Beneficiaries who are employees of the Company or SM GmbH as of the Pricing Date (as defined below) are eligible to receive Conversion Stock Options (each such employee, a “Participant”). The “Pricing Date” shall be the date on which the price per Share to be paid by investors in the IPO (prior to underwriting commissions, discounts and other expenses) (the “Offer Price”) on the Closing Date for the Shares purchased by them in the IPO is determined through the execution of the underwriting agreement (or a pricing agreement) between the Company and the underwriters (or their representatives) in the IPO. |
§
2
Program Volume and Grant of Stock Options
(1) | The Conversion Stock Options are granted to each Participant subject to the occurrence of the Closing Date and the execution by such Participant of a grant agreement (a “Grant Agreement”). The number of Conversion Stock Options granted to a Participant under a Grant Agreement has been set taking into account the Cash Payment Claim of such Participant in a hypothetical Exit. |
(2) | The Closing Date shall be the Grant Date, as defined in the LTIP, with respect to the Conversion Stock Options. |
(3) | Each Conversion Stock Option entitles the Participant holding such Conversion Stock Option to acquire one (1) Share against payment of the Exercise Price (§ 3) subject to the satisfaction of the Exercise Conditions (as defined below). |
§
3
Exercise Price
The exercise price of each Conversion Stock Option (the “Exercise Price”) shall be EUR 0.06. In the event of a share split by the Company, the Exercise Price shall be divided by the ratio of share split. In the event of a reverse share split, the Exercise Price shall be multiplied by the ratio of share split. In the event of a capital increase from own resources (including by issuing shares in the Company where the payment obligation is charged against the Company’s profits or reserves), the Exercise Price shall be adjusted accordingly, provided, however, that under no circumstance shall the Exercise Price be less than the nominal value per share to be issued upon exercise of the Conversion Stock Option.
Page 4/9
§
4
Exercise Conditions
Conversion Stock Options must be exercised in accordance with the LTIP. In addition, any exercise of Conversion Stock Options by a Participant requires satisfaction of all of the following conditions (the “Exercise Conditions”):
(a) the execution by that Participant of the applicable Grant Agreement;
(b) the applicable Waiting Period (§ 5 (1)) has expired;
(c) the exercise has not been temporarily suspended in accordance with § 9; and
(d) the Expiry Date (§ 6 (1)) for the Conversion Stock Options to be exercised has not passed.
§
5
Exercise
The waiting period after which the Conversion Stock Options may first be exercised is one (1) year commencing on the Closing Date (the “Waiting Period”).
Any exercise of Conversion Stock Options must be conducted in compliance with all applicable Insider Trading Rules (as defined in § 9 (1) below) and only during a Trading Window as defined by the Company's Insider Trading Policy (a "Trading Window").
§
6
Expiry Date of the Stock Options
(1) | All unexercised Conversion Stock Options will expire without compensation after a period of four (4) years following the Closing Date (the “Expiry Date”), subject to paragraph (2) below. |
(2) | If the Expiry Date falls outside a Trading Window, or during a Trading Window on a date which is less than five (5) Trading Days (as defined below) from the end of that Trading Window, then the Expiry Date for such Conversion Stock Options shall be the date on which the next Trading Window ends. “Trading Day” means a day other than a Saturday or Sunday or public holiday on which the primary stock exchange where the Shares are listed is open for trading. |
§
7
Limitation of Liability
(1) | The Company (nor any of its managing directors, supervisory directors, officers, employees, agents or advisors) does not: |
(a) | assume any responsibility or liability for the development of the value or market price of the Shares; |
(b) | warrant, assure or guarantee any increase in value of the Shares, in particular it is neither warranted, assured or guaranteed that a Participant will be able to sell his or her Shares with a profit in the future nor that no loss will be incurred; or |
(c) | warrant, assure or guarantee a profit of the Participant from the Conversion Stock Option Program. |
Page 5/9
(2) | Each Participant declares with his or her participation in the Conversion Stock Option Program that the participation is voluntary. Each Participant is aware of the fact that he or she alone bears the risk of a decrease in or total loss of value of his or her investments. Each Participant accepts the offer to participate in the Stock Option Program at his or her own risk and assumes any liability relating thereto. |
(3) | Each Participant is responsible for obtaining legal, tax and any other necessary advice in connection with his or her participation in the Conversion Stock Option Program and for evaluating the tax effects connected with the Conversion Stock Option Program. Each Participant accepts and declares that he or she has not been advised by or on behalf of the Company or its managing directors, supervisory directors, officers, employees, agents or advisors with respect to his or her participation in the Conversion Stock Option Program (in particular, regarding legal and tax issues of such participation). |
§
8
Taxes, Social Security and Costs
(1) | All taxes (including payroll taxes), social security contributions, further duties and costs accrued by the Participant in connection with his or her participation in the Conversion Stock Option Program, including the cancellation and termination of his or her Cash Payment Claim, shall be borne by that Participant. Each Participant is obliged to pay taxes relating to the respective Conversion Stock Options granted/exercised under the Conversion Stock Option Program, or relating to a transfer of such options by the Participant to a third party (to the extent allowed under the LTIP), to the competent tax authorities. Each Participant shall fully indemnify the Company in respect of all such liabilities and obligations against tax authorities. |
(2) | The employer of the Participant is entitled, if required by statutory law, to withhold payroll tax or any other taxes or duties or social security contributions to be paid by (or on behalf and account of) the Participant. This applies even after termination of the employment of the Participant with the Company. The Company is entitled to demand the full co-operation of the Participant even after his or her termination of employment with respect to the withholding of taxes, social security contributions, other duties and costs in connection with the Conversion Stock Option Program. Each Participant undertakes to fully co-operate with the Company. |
(3) | Withholdings mentioned above do not release the Participant from his or her responsibility and obligation to pay all taxes, social contributions, further duties and costs being due and accruing in connection with his or her participation in the Conversion Stock Option Program or the grant, exercise or transfer of any Conversion Stock Options. |
Page 6/9
§
9
Insider Trading, Black-Out Periods, Securities Law Requirements
(1) | Any exercise of, or any other transaction in, the Conversion Stock Options (each a “Transaction”) must be conducted in compliance with (i) all applicable insider trading laws and regulations, and (ii) all provisions of any insider trading rules established by a Group company, including the Company's Insider Trading Policy ((i) and (ii) together the “Insider Trading Rules”). Each Participant is personally responsible for informing himself about, and acting in full compliance with, all applicable Insider Trading Rules. Any individual non-compliance with applicable Insider Trading Rules may lead to the imposition of civil and criminal penalties (as the case may be). |
(2) | The obligation of the Company to issue any securities and to settle any awards under the Conversion Stock Option Program shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any grant to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any securities unless such securities have been properly registered pursuant to the U.S. Securities Act or unless the Company is satisfied that such securities may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the U.S. Securities Act any of the securities to be offered or sold under the Conversion Stock Option Program. The Company may restrict the transfer of securities issued pursuant to the Conversion Stock Option Program in such a manner as it deems advisable to ensure the availability, or facilitate compliance with, of any exemption from the registration requirements the U.S. Securities Act or any other applicable laws. |
(3) | The Company or the Third Party Service Provider (as defined below in § 11 (1)), as the case may be, may cancel a grant under the Conversion Stock Option Program or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of securities from the public markets, the Company’s issuance of securities to the Participant, the Participant’s acquisition of securities from the Company and/or the Participant’s sale of securities to the public markets, illegal, impracticable or inadvisable. If the Company or the Third Party Service Provider, as the case may be, determines to cancel all or any portion of a grant in accordance with the foregoing, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate fair market value of the securities subject to such grant or portion thereof cancelled (determined by the Company as of the applicable exercise date, or the date that the securities would have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or base amount or any amount payable as a condition of delivery of securities. Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such grant or portion thereof. |
(4) | Notwithstanding any provision of the Conversion Stock Option Program to the contrary, in no event shall a Participant be permitted to exercise a Conversion Stock Option in a manner that the Company or the Third Party Service Provider, as the case may be, determines would violate the United States Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and regulations of the U.S. Securities Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or traded. |
Page 7/9
§
10
Form Requirements, Notices
(1) | Any exercise notice to be delivered to the Company in connection with the Conversion Stock Option Program shall be addressed by mail to Sono Group N.V., and sent by email (attached as pdf-copy) to legal@sonomotors.com. |
The Company shall communicate changes in the e-mail address set forth in the previous sentence as soon as possible to the Participants. In the absence of such communication, the address stated above shall remain in place.
(2) | Any notice to be given to a Participant in connection with the Conversion Stock Option Program may be served by being handed to him or her personally or by being sent to him or her at his or her home address or by e-mail to the e-mail address on record with the Company or SM GmbH. The Participant shall communicate changes in his or her home address or e-mail address as soon as possible to the Company. |
§
11
Data Protection
(1) | The collection, storage, usage, transfer and processing of personal information provided by the Participant to the Company or a third party employed or contracted by the Company or an affiliated company is required to administer or assist with the administration or implementation of the Conversion Stock Option Program (the “Third Party Service Provider”), solely for all purposes relating to the implementation, operation and administration of the Conversion Stock Option Program. These include, but are not limited to: |
(a) | administering and maintaining Participants’ records; |
(b) | providing information about the Participant to a Third Party Service Provider; and |
(c) | transferring information about the Participant to a Company’s or a Third Party Service Provider’s premises in a country or territory that may not provide the same statutory protection for the information as the Participant’s home country to the extent such transfer is required to implement, operate or administer the Conversion Stock Option Program. |
(2) | The Participant is entitled to a copy of the personal information held about him or her and information about the purpose of the collection, storage, usage, transfer and processing of the personal information. The Participant has the right to have the personal information corrected in case of any inaccurateness. Any rights of the Participant pursuant to the General Data Protection Regulation (Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016) remain unaffected. |
Page 8/9
§
12
Governing Law and Jurisdiction
(1) | The Conversion Stock Option Program, any Conversion Stock Options granted thereunder and these Rules shall be exclusively governed by, and be construed in accordance with, the laws of the Netherlands, without regard to principles of conflicts of laws. |
(2) | Any dispute, controversy or claim arising from or in connection with the Conversion Stock Option Program, any Conversion Stock Options granted thereunder or these Rules or their validity shall be settled in accordance with the jurisdiction clause contained in the LTIP. |
§
13
Final Provisions
(1) | All provisions in these Rules shall be subject to the terms and conditions of the LTIP. In case of an inconsistency between these Rules and the LTIP, the LTIP shall prevail. |
(2) | In these Rules, the headings are inserted for convenience only and shall not affect the interpretation of these Rules; where a German term has been inserted in quotation marks and/or italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant English term in these Rules. The terms “including” and “in particular” shall always mean “including, without limitation” and “in particular, without limitation”, respectively. Any reference made in these Rules to any clauses without further indication of a law, an agreement or another document shall mean clauses of these Rules. |
(3) | In the event that one or more provisions of these Rules shall, or shall be deemed to, be invalid or unenforceable, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby. In such case, the Company and the Participant agree to recognize and give effect to such valid and enforceable provision or provisions, which correspond as closely as possible with the commercial intent of the Parties. The same shall apply in the event that these Rules contain any unintended gaps. |
Munich, December 12, 2020
Sono Group N.V.
Page 9/9
Exhibit 10.3
1
INDEMNIFICATION AGREEMENT
between
[name]
as the Officer
and
Sono Group N.V.
as the Company
2 |
TABLE OF CONTENTS
1 | DEFINITIONS AND INTERPRETATION | 3 |
1.1 | Definitions | 3 |
1.2 | Interpretation | 5 |
2 | INDEMNIFICATION AND INSURANCE | 6 |
2.1 | Entitlement to indemnification | 6 |
2.2 | Advancements | 6 |
2.3 | Limitations | 6 |
2.4 | Determination of entitlement to indemnification and advancements | 7 |
2.5 | Proceedings | 8 |
2.6 | D&O Insurance | 8 |
3 | MISCELLANEOUS PROVISIONS | 8 |
3.1 | Confidentiality and disclosure | 8 |
3.2 | Notices | 9 |
3.3 | Entire agreement | 9 |
3.4 | No implied waiver | 10 |
3.5 | Amendment | 10 |
3.6 | Invalidity | 10 |
3.7 | No rescission or nullification | 10 |
3.8 | No transfer, assignment or encumbrance | 10 |
3.9 | Term and termination | 10 |
4 | GOVERNING LAW AND JURISDICTION | 11 |
4.1 | Governing law | 11 |
4.2 | Jurisdiction | 11 |
3 |
INDEMNIFICATION AGREEMENT
THIS AGREEMENT IS MADE ON [DATE] BETWEEN
1. | Mr[s]. [name], born in [place] on [date] (the "Officer"). |
2. | Sono Group N.V., a public company with limited liability, having its corporate seat in Amsterdam (address: Waldmeisterstrasse 76, 80935 Munich, Germany, trade register number: 80683568) (the "Company"). |
WHEREAS
A. | The Officer has been appointed as Managing Director. |
B. | The Parties now wish to enter into this Agreement in order to lay down the terms applicable to the indemnification arrangements between the Officer and the Company. |
NOW HEREBY AGREE AS FOLLOWS
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
1.1.1 | In this Agreement the following definitions shall apply: |
Agreement | This indemnification agreement. | ||
Article | An article of this Agreement. | ||
Confidential Information | Information relating to the Company, its Subsidiaries and/or their respective businesses, directors, officers and employees, received by the Officer at any time (including prior to the date of this Agreement and after the termination of this Agreement), by any means (including through discussions with any director, officer, employee or advisor of the Company or any of its Subsidiaries), except for information: | ||
a. | which is in the public domain, other than as a result of a breach by the Officer (or by any party to whom information is disclosed by the Officer as permitted under this Agreement) of the obligations imposed by this Agreement or any other legal, contractual or fiduciary duty of confidentiality; or |
4 |
b. | of which the Officer is able to demonstrate that it has lawfully become available to the Officer on a non-confidential basis from a source which was not prohibited from disclosing such information under any legal, contractual or fiduciary duty of confidentiality. | ||
D&O Insurance | Directors and officers liability insurance. | ||
DCC | The Dutch Civil Code. | ||
Disinterested Director | Any Supervisory Director who is not, and has not been, involved in a Proceeding in respect of which the Officer's entitlement to indemnification and/or advancements should be determined pursuant to Article 2.4.1 under a. | ||
Independent Counsel | An attorney or a firm of attorneys which: | ||
a. | is experienced in matters of corporate law in the appropriate jurisdiction(s); | ||
b. | during a period of one year prior to being requested to determine the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b., has not represented any party involved in a Proceeding in a manner which is material to either Party; and | ||
c. | under the applicable standards of professional conduct then prevailing, would not have a conflict of interests in representing either Party in determining the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b. | ||
Management Board | The Company's management board. | ||
Managing Director | A member of the Management Board. |
5 |
Party | A party to this Agreement. | ||
Proceeding | Any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative, investigative or other nature, formal or informal, in which the Officer is, or becomes, involved. | ||
Stock Exchange | Any of the following (including, for the avoidance of doubt, the Nasdaq Stock Market): | ||
a. | a regulated market or multilateral trading facility as defined in Section 1:1 of the Dutch Financial Supervision Act; or | ||
b. | a system comparable with a regulated market or multilateral trading facility as referred to under a. above, operating in a state which is not a Member State of the European Union or the European Economic Area. | ||
Subsidiary | A subsidiary of the Company within the meaning of Section 2:24a DCC. | ||
Supervisory Board | The Company's supervisory board. | ||
Supervisory Director | A member of the Supervisory Board. |
1.2 | Interpretation |
1.2.1 | References to statutory provisions are to those provisions as they are in force from time to time. |
1.2.2 | Terms that are defined in the singular have a corresponding meaning in the plural. |
1.2.3 | No provision of this Agreement shall be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision. |
1.2.4 | Although this Agreement has been drafted in the English language, this Agreement pertains to Dutch legal concepts. Any consequence of the use of English words and expressions in this Agreement under any law other than Dutch law shall be disregarded. |
1.2.5 | The word "including" is used to indicate that the matters listed are not a complete enumeration of all matters covered. |
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1.2.6 | The titles and headings in this Agreement are for construction purposes as well as for reference. No Party may derive any rights from such titles and headings. |
2 | INDEMNIFICATION AND INSURANCE |
2.1 | Entitlement to indemnification |
2.1.1 | The Company shall indemnify the Officer and hold the Officer harmless against: |
a. | any financial losses or damages incurred by the Officer; and |
b. | any expense reasonably paid or incurred by the Officer in connection with any Proceeding, |
in each case to the extent this relates to the Officer's current (or former) position as Managing Director and to the extent permitted by applicable law.
2.1.2 | The right to indemnification conferred in Article 2.1.1 shall continue as to the Officer who has ceased to hold office as Managing Director and shall inure to the benefit of the Officer's heirs, executors and administrators, subject always to Article 3.9. |
2.2 | Advancements |
2.2.1 | The Company shall promptly advance all reasonable and necessary expenses incurred by the Officer in connection with any Proceeding to the extent that the Company reasonably believes that the Officer is entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1 in connection with such Proceeding, subject to the Officer submitting an itemised advance request to the Company. |
2.2.2 | To the extent that the Company has provided advancements pursuant to Article 2.2.1 in connection with a Proceeding in respect of which the Officer is not entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1, such advancements shall promptly be reimbursed by the Officer. |
2.3 | Limitations |
2.3.1 | No indemnification shall be given to the Officer: |
a. | if a competent court or arbitral tribunal has established that the acts or omissions of the Officer that led to the financial losses, damages, expenses or Proceeding are of an unlawful nature (including acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to the Officer) and the Officer does not have, or no longer has, the possibility to appeal such decision; |
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b. | to the extent that the Officer's financial losses, damages and expenses are covered under insurance (including any applicable D&O Insurance) and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so); |
c. | in relation to proceedings brought by the Officer against the Company, except for proceedings brought to enforce indemnification to which the Officer is entitled pursuant to this Agreement, the Company's articles of association or any D&O Insurance taken out by the Company for the benefit of the Officer; or |
d. | for any financial losses, damages or expenses incurred in connection with a settlement of any Proceeding effected without the Company's prior consent. |
2.4 | Determination of entitlement to indemnification and advancements |
2.4.1 | If the Officer wishes to claim indemnification and/or advancements pursuant to Articles 2.1 and 2.2, the Officer shall submit a request to that effect to the Company. Upon receipt of such request, the Officer's entitlement to indemnification and/or advancements pursuant to Articles 2.1 and 2.2 shall be determined by any of the following (at the election of the Company): |
a. | so long as there are Disinterested Directors, either by majority vote of all Disinterested Directors or by majority vote of a committee composed exclusively of Disinterested Directors, provided that such committee is established by majority vote of all Disinterested Directors; or |
b. | Independent Counsel in a written opinion delivered to each Party. |
2.4.2 | If the Company decides to request Independent Counsel to make the determination referred to in Article 2.4.1, the Company shall notify the Officer of the identity of the Independent Counsel selected by it. The Officer may, within one week, notify the Company of its objection to the Independent Counsel selected by the Company, but only on the grounds that the relevant attorney or firm of attorneys does not meet the criteria of the definition of "Independent Counsel". In case of such objection being timely made and deemed well-founded by the Company, the Company shall select a different Independent Counsel and the previous two sentences apply mutatis mutandis in respect of such selection. The Company shall pay all fees and other expenses associated with the retention and services of Independent Counsel to make the determination referred to in Article 2.4.1. |
2.4.3 | The Company shall exert all reasonable efforts to cause any determination required under Article 2.4.1 to be made as promptly as practicable after the Officer has submitted its initial request for indemnification and/or advancements pursuant to Articles 2.1 and 2.2 and the Officer shall fully cooperate with the person(s) making such determination. |
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2.5 | Proceedings |
2.5.1 | The Officer shall promptly notify the Company upon receipt of any complaint, demand letter, writ of summons or other indication that a Proceeding is being threatened or is forthcoming. |
2.5.2 | The Officer shall allow the Company to participate in any Proceeding and to assume the defence thereof in such manner as the Company deems appropriate, with counsel selected by the Company and reasonably satisfactory to the Officer, provided that: |
a. | the Company must conduct any such defence in good faith and in a diligent manner; and |
b. | the Company shall not, without the Officer's prior consent, allow or condone any judgment or award against the Officer nor enter into any settlement or compromise pursuant to which non-monetary obligations or penalties (including incarceration) would be imposed on the Officer and/or monetary obligations would be imposed on the Officer which would not be indemnified in full pursuant to Articles 2.1.1 and 2.3.1. |
2.6 | D&O Insurance |
2.6.1 | The Company shall take out and maintain adequate D&O Insurance for the benefit of the Officer for as long as the Officer serves as Managing Director, subject to the acceptance of the Officer under the conditions by the insurer concerned. |
2.6.2 | The premiums payable for D&O Insurance covering the Officer as an insured shall be borne by the Company. |
3 | MISCELLANEOUS PROVISIONS |
3.1 | Confidentiality and disclosure |
3.1.1 | Subject to Articles 3.1.2 through 3.1.5, the Officer shall treat and safeguard as private and confidential all Confidential Information at all times and shall keep any copies thereof secure in such way so as to prevent unauthorised access by any third party. |
3.1.2 | The Officer shall not disclose any Confidential Information, unless: |
a. | this is required under applicable law, Stock Exchange requirements and/or by any competent authority; or |
b. | it concerns a disclosure to the Officer's professional advisors, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose. |
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3.1.3 | Any disclosure of Confidential Information by the Officer under Article 3.1.2 shall be delayed until the Company has been consulted about the timing and content of such disclosure, to the extent that such a delay would be legally permissible. |
3.1.4 | The Officer shall, at the Company's first request and in any event upon the termination of this Agreement, promptly return or destroy all Confidential Information which the Officer has at [his/her] disposal, except to the extent that the Officer is required by applicable law to retain such Confidential Information. |
3.1.5 | All Confidential Information shall remain the exclusive property of the Company and/or its Subsidiaries, as the case may be. No right or licence is granted pursuant to this Agreement in relation to any Confidential Information. |
3.2 | Notices |
3.2.1 | All notices given under this Agreement shall be given or made by electronic means of communication or in writing and, in the latter case, shall be sent by courier service or by registered mail (with a copy of such notice or request being sent in advance by electronic means of communication). |
3.2.2 | All notices given under this Agreement to a Party which are sent by courier or by registered mail shall be sent: |
a. | if to the Officer, to the address as on file with the Company at that time; and |
b. | if to the Company, to address as registered with the Dutch trade registry at that time, for the attention of the Management Board. |
3.2.3 | All notices given under this Agreement to a Party by electronic means of communication shall be sent: |
a. | if to the Officer, to: [e-mail address] |
b. | if to the Company, to: legal@sonomotors.com |
3.3 | Entire agreement |
3.3.1 | This Agreement replaces and supersedes any existing indemnification agreement between the Parties, including any indemnification arrangements agreed between the Parties as part of a service, employment or other agreement. |
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3.4 | No implied waiver |
3.4.1 | Nothing shall be construed as a waiver under this Agreement unless a document to that effect has been signed by the Parties or a notice to that effect has been given. |
3.4.2 | The failure of a Party to exercise or enforce any right under this Agreement shall not constitute a waiver of the right to exercise or enforce such right in the future. |
3.5 | Amendment |
3.5.1 | No amendment to this Agreement shall have any force or effect unless it is in writing and signed by both Parties. |
3.6 | Invalidity |
3.6.1 | In the event that a provision of this Agreement is null and void or unenforceable (either in whole or in part): |
a. | the remainder of this Agreement shall continue to be effective to the extent that, given the substance and purpose of this Agreement, such remainder is not inextricably related to the null and void or unenforceable provision; and |
b. | the Parties shall make every effort to reach agreement on a new provision which differs as little as possible from the null and void or unenforceable provision, taking into account the substance and purpose of this Agreement. |
3.7 | No rescission or nullification |
3.7.1 | To the extent permitted by law, the Parties waive their rights to rescind or nullify or to demand the rescission, nullification or amendment of this Agreement, in whole or in part, on any grounds whatsoever. |
3.8 | No transfer, assignment or encumbrance |
3.8.1 | No Party may transfer, assign or encumber its contractual relationship, any of its rights or any of its obligations under this Agreement. |
3.9 | Term and termination |
3.9.1 | Subject to Article 3.9.3, this Agreement shall remain in full force for the duration of the Officer's term of office as Managing Director and shall terminate, without prior notice being required, at the moment when the Officer ceases to be a Managing Director. |
3.9.2 | For purposes of Article 3.9.1, the Officer's term of office shall not be considered to have expired or interrupted if the Officer is reappointed as Managing Director for consecutive terms. |
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3.9.3 | In case of a termination of this Agreement, the Officer's right to indemnification under Article 2 shall terminate at (and, exclusively for that purpose, the relevant provisions of this Agreement shall survive until) the later of the following moments: |
a. | the expiration of the statute of limitations applicable to any claim that could be asserted against the Officer with respect to which the Officer would be entitled to indemnification under this Agreement; |
b. | ten years after the date that the Officer has ceased to serve as a Managing Director; or |
c. | if, at the later of the dates referred to in paragraphs a. and b. above, there would be an actual or pending Proceeding in respect of which the Officer would be entitled to indemnification under this Agreement or there is an actual or pending Proceeding in connection with this Agreement, one year after the competent court or arbitral tribunal has finally adjudicated such Proceeding, without possibility for appeal. |
4 | GOVERNING LAW AND JURISDICTION |
4.1 | Governing law |
4.1.1 | This Agreement shall be governed by and construed in accordance with the laws of the Netherlands. |
4.2 | Jurisdiction |
4.2.1 | The Parties agree that any dispute in connection with this Agreement or any agreement resulting therefrom shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands. |
(signature page follows)
12 |
Signature page to the indemnification agreement
[name Officer] |
Sono Group N.V. | ||
Name: | L.S.P. Hahn | |
Title: | CEO | |
Sono Group N.V. | ||
Name: | J.J. Christians | |
Title: | CEO |
Exhibit 10.4
1
INDEMNIFICATION AGREEMENT
between
[name]
as the Officer
and
Sono Group N.V.
as the Company
2
TABLE OF CONTENTS
1 | DEFINITIONS AND INTERPRETATION | 3 |
1.1 | Definitions | 3 |
1.2 | Interpretation | 5 |
2 | INDEMNIFICATION AND INSURANCE | 6 |
2.1 | Entitlement to indemnification | 6 |
2.2 | Advancements | 6 |
2.3 | Limitations | 6 |
2.4 | Determination of entitlement to indemnification and advancements | 7 |
2.5 | Proceedings | 8 |
2.6 | D&O Insurance | 8 |
3 | MISCELLANEOUS PROVISIONS | 8 |
3.1 | Confidentiality and disclosure | 8 |
3.2 | Notices | 9 |
3.3 | Entire agreement | 9 |
3.4 | No implied waiver | 9 |
3.5 | Amendment | 10 |
3.6 | Invalidity | 10 |
3.7 | No rescission or nullification | 10 |
3.8 | No transfer, assignment or encumbrance | 10 |
3.9 | Term and termination | 10 |
4 | GOVERNING LAW AND JURISDICTION | 11 |
4.1 | Governing law | 11 |
4.2 | Jurisdiction | 11 |
3
INDEMNIFICATION AGREEMENT
THIS AGREEMENT IS MADE ON [DATE] BETWEEN
1. | Mr[s]. [name], born in [place] on [date] (the "Officer"). |
2. | Sono Group N.V., a public company with limited liability, having its corporate seat in Amsterdam (address: Waldmeisterstrasse 76, 80935 Munich, Germany, trade register number: 80683568) (the "Company"). |
WHEREAS
A. | The Officer has been appointed as Supervisory Director. |
B. | The Parties now wish to enter into this Agreement in order to lay down the terms applicable to the indemnification arrangements between the Officer and the Company. |
NOW HEREBY AGREE AS FOLLOWS
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
1.1.1 | In this Agreement the following definitions shall apply: |
Agreement | This indemnification agreement. | ||
Article | An article of this Agreement. | ||
Confidential Information | Information relating to the Company, its Subsidiaries and/or their respective businesses, directors, officers and employees, received by the Officer at any time (including prior to the date of this Agreement and after the termination of this Agreement), by any means (including through discussions with any director, officer, employee or advisor of the Company or any of its Subsidiaries), except for information: | ||
a. | which is in the public domain, other than as a result of a breach by the Officer (or by any party to whom information is disclosed by the Officer as permitted under this Agreement) of the obligations imposed by this Agreement or any other legal, contractual or fiduciary duty of confidentiality; or |
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b. | of which the Officer is able to demonstrate that it has lawfully become available to the Officer on a non-confidential basis from a source which was not prohibited from disclosing such information under any legal, contractual or fiduciary duty of confidentiality. | ||
D&O Insurance | Directors and officers liability insurance. | ||
DCC | The Dutch Civil Code. | ||
Disinterested Director | Any Supervisory Director who is not, and has not been, involved in a Proceeding in respect of which the Officer's entitlement to indemnification and/or advancements should be determined pursuant to Article 2.4.1 under a. | ||
Independent Counsel | An attorney or a firm of attorneys which: | ||
a. | is experienced in matters of corporate law in the appropriate jurisdiction(s); | ||
b. | during a period of one year prior to being requested to determine the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b., has not represented any party involved in a Proceeding in a manner which is material to either Party; and | ||
c. | under the applicable standards of professional conduct then prevailing, would not have a conflict of interests in representing either Party in determining the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b. | ||
Party | A party to this Agreement. |
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Proceeding | Any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative, investigative or other nature, formal or informal, in which the Officer is, or becomes, involved. | ||
Stock Exchange | Any of the following (including, for the avoidance of doubt, the Nasdaq Stock Market): | ||
a. | a regulated market or multilateral trading facility as defined in Section 1:1 of the Dutch Financial Supervision Act; or | ||
b. | a system comparable with a regulated market or multilateral trading facility as referred to under a. above, operating in a state which is not a Member State of the European Union or the European Economic Area. | ||
Subsidiary | A subsidiary of the Company within the meaning of Section 2:24a DCC. | ||
Supervisory Board | The Company's supervisory board. | ||
Supervisory Director | A member of the Supervisory Board. |
1.2 | Interpretation |
1.2.1 | References to statutory provisions are to those provisions as they are in force from time to time. |
1.2.2 | Terms that are defined in the singular have a corresponding meaning in the plural. |
1.2.3 | No provision of this Agreement shall be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision. |
1.2.4 | Although this Agreement has been drafted in the English language, this Agreement pertains to Dutch legal concepts. Any consequence of the use of English words and expressions in this Agreement under any law other than Dutch law shall be disregarded. |
1.2.5 | The word "including" is used to indicate that the matters listed are not a complete enumeration of all matters covered. |
1.2.6 | The titles and headings in this Agreement are for construction purposes as well as for reference. No Party may derive any rights from such titles and headings. |
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2 | INDEMNIFICATION AND INSURANCE |
2.1 | Entitlement to indemnification |
2.1.1 | The Company shall indemnify the Officer and hold the Officer harmless against: |
a. | any financial losses or damages incurred by the Officer; and |
b. | any expense reasonably paid or incurred by the Officer in connection with any Proceeding, |
in each case to the extent this relates to the Officer's current (or former) position as Supervisory Director and to the extent permitted by applicable law.
2.1.2 | The right to indemnification conferred in Article 2.1.1 shall continue as to the Officer who has ceased to hold office as Supervisory Director and shall inure to the benefit of the Officer's heirs, executors and administrators, subject always to Article 3.9. |
2.2 | Advancements |
2.2.1 | The Company shall promptly advance all reasonable and necessary expenses incurred by the Officer in connection with any Proceeding to the extent that the Company reasonably believes that the Officer is entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1 in connection with such Proceeding, subject to the Officer submitting an itemised advance request to the Company. |
2.2.2 | To the extent that the Company has provided advancements pursuant to Article 2.2.1 in connection with a Proceeding in respect of which the Officer is not entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1, such advancements shall promptly be reimbursed by the Officer. |
2.3 | Limitations |
2.3.1 | No indemnification shall be given to the Officer: |
a. | if a competent court or arbitral tribunal has established that the acts or omissions of the Officer that led to the financial losses, damages, expenses or Proceeding are of an unlawful nature (including acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to the Officer) and the Officer does not have, or no longer has, the possibility to appeal such decision; |
b. | to the extent that the Officer's financial losses, damages and expenses are covered under insurance (including any applicable D&O Insurance) and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so); |
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c. | in relation to proceedings brought by the Officer against the Company, except for proceedings brought to enforce indemnification to which the Officer is entitled pursuant to this Agreement, the Company's articles of association or any D&O Insurance taken out by the Company for the benefit of the Officer; or |
d. | for any financial losses, damages or expenses incurred in connection with a settlement of any Proceeding effected without the Company's prior consent. |
2.4 | Determination of entitlement to indemnification and advancements |
2.4.1 | If the Officer wishes to claim indemnification and/or advancements pursuant to Articles 2.1 and 2.2, the Officer shall submit a request to that effect to the Company. Upon receipt of such request, the Officer's entitlement to indemnification and/or advancements pursuant to Articles 2.1 and 2.2 shall be determined by any of the following (at the election of the Company): |
a. | so long as there are Disinterested Directors, either by majority vote of all Disinterested Directors or by majority vote of a committee composed exclusively of Disinterested Directors, provided that such committee is established by majority vote of all Disinterested Directors; or |
b. | Independent Counsel in a written opinion delivered to each Party. |
2.4.2 | If the Company decides to request Independent Counsel to make the determination referred to in Article 2.4.1, the Company shall notify the Officer of the identity of the Independent Counsel selected by it. The Officer may, within one week, notify the Company of its objection to the Independent Counsel selected by the Company, but only on the grounds that the relevant attorney or firm of attorneys does not meet the criteria of the definition of "Independent Counsel". In case of such objection being timely made and deemed well-founded by the Company, the Company shall select a different Independent Counsel and the previous two sentences apply mutatis mutandis in respect of such selection. The Company shall pay all fees and other expenses associated with the retention and services of Independent Counsel to make the determination referred to in Article 2.4.1. |
2.4.3 | The Company shall exert all reasonable efforts to cause any determination required under Article 2.4.1 to be made as promptly as practicable after the Officer has submitted its initial request for indemnification and/or advancements pursuant to Articles 2.1 and 2.2 and the Officer shall fully cooperate with the person(s) making such determination. |
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2.5 | Proceedings |
2.5.1 | The Officer shall promptly notify the Company upon receipt of any complaint, demand letter, writ of summons or other indication that a Proceeding is being threatened or is forthcoming. |
2.5.2 | The Officer shall allow the Company to participate in any Proceeding and to assume the defence thereof in such manner as the Company deems appropriate, with counsel selected by the Company and reasonably satisfactory to the Officer, provided that: |
a. | the Company must conduct any such defence in good faith and in a diligent manner; and |
b. | the Company shall not, without the Officer's prior consent, allow or condone any judgment or award against the Officer nor enter into any settlement or compromise pursuant to which non-monetary obligations or penalties (including incarceration) would be imposed on the Officer and/or monetary obligations would be imposed on the Officer which would not be indemnified in full pursuant to Articles 2.1.1 and 2.3.1. |
2.6 | D&O Insurance |
2.6.1 | The Company shall take out and maintain adequate D&O Insurance for the benefit of the Officer for as long as the Officer serves as Supervisory Director, subject to the acceptance of the Officer under the conditions by the insurer concerned. |
2.6.2 | The premiums payable for D&O Insurance covering the Officer as an insured shall be borne by the Company. |
3 | MISCELLANEOUS PROVISIONS |
3.1 | Confidentiality and disclosure |
3.1.1 | Subject to Articles 3.1.2 through 3.1.5, the Officer shall treat and safeguard as private and confidential all Confidential Information at all times and shall keep any copies thereof secure in such way so as to prevent unauthorised access by any third party. |
3.1.2 | The Officer shall not disclose any Confidential Information, unless: |
a. | this is required under applicable law, Stock Exchange requirements and/or by any competent authority; or |
b. | it concerns a disclosure to the Officer's professional advisors, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose. |
3.1.3 | Any disclosure of Confidential Information by the Officer under Article 3.1.2 shall be delayed until the Company has been consulted about the timing and content of such disclosure, to the extent that such a delay would be legally permissible. |
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3.1.4 | The Officer shall, at the Company's first request and in any event upon the termination of this Agreement, promptly return or destroy all Confidential Information which the Officer has at [his/her] disposal, except to the extent that the Officer is required by applicable law to retain such Confidential Information. |
3.1.5 | All Confidential Information shall remain the exclusive property of the Company and/or its Subsidiaries, as the case may be. No right or licence is granted pursuant to this Agreement in relation to any Confidential Information. |
3.2 | Notices |
3.2.1 | All notices given under this Agreement shall be given or made by electronic means of communication or in writing and, in the latter case, shall be sent by courier service or by registered mail (with a copy of such notice or request being sent in advance by electronic means of communication). |
3.2.2 | All notices given under this Agreement to a Party which are sent by courier or by registered mail shall be sent: |
a. | if to the Officer, to the address as on file with the Company at that time; and |
b. | if to the Company, to address as registered with the Dutch trade registry at that time, for the attention of the Supervisory Board. |
3.2.3 | All notices given under this Agreement to a Party by electronic means of communication shall be sent: |
a. | if to the Officer, to: [e-mail address] |
b. | if to the Company, to: legal@sonomotors.com |
3.3 | Entire agreement |
3.3.1 | This Agreement replaces and supersedes any existing indemnification agreement between the Parties, including any indemnification arrangements agreed between the Parties as part of a service, employment or other agreement. |
3.4 | No implied waiver |
3.4.1 | Nothing shall be construed as a waiver under this Agreement unless a document to that effect has been signed by the Parties or a notice to that effect has been given. |
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3.4.2 | The failure of a Party to exercise or enforce any right under this Agreement shall not constitute a waiver of the right to exercise or enforce such right in the future. |
3.5 | Amendment |
3.5.1 | No amendment to this Agreement shall have any force or effect unless it is in writing and signed by both Parties. |
3.6 | Invalidity |
3.6.1 | In the event that a provision of this Agreement is null and void or unenforceable (either in whole or in part): |
a. | the remainder of this Agreement shall continue to be effective to the extent that, given the substance and purpose of this Agreement, such remainder is not inextricably related to the null and void or unenforceable provision; and |
b. | the Parties shall make every effort to reach agreement on a new provision which differs as little as possible from the null and void or unenforceable provision, taking into account the substance and purpose of this Agreement. |
3.7 | No rescission or nullification |
3.7.1 | To the extent permitted by law, the Parties waive their rights to rescind or nullify or to demand the rescission, nullification or amendment of this Agreement, in whole or in part, on any grounds whatsoever. |
3.8 | No transfer, assignment or encumbrance |
3.8.1 | No Party may transfer, assign or encumber its contractual relationship, any of its rights or any of its obligations under this Agreement. |
3.9 | Term and termination |
3.9.1 | Subject to Article 3.9.3, this Agreement shall remain in full force for the duration of the Officer's term of office as Supervisory Director and shall terminate, without prior notice being required, at the moment when the Officer ceases to be a Supervisory Director. |
3.9.2 | For purposes of Article 3.9.1, the Officer's term of office shall not be considered to have expired or interrupted if the Officer is reappointed as Supervisory Director for consecutive terms. |
3.9.3 | In case of a termination of this Agreement, the Officer's right to indemnification under Article 2 shall terminate at (and, exclusively for that purpose, the relevant provisions of this Agreement shall survive until) the later of the following moments: |
a. | the expiration of the statute of limitations applicable to any claim that could be asserted against the Officer with respect to which the Officer would be entitled to indemnification under this Agreement; |
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b. | ten years after the date that the Officer has ceased to serve as a Supervisory Director; or |
c. | if, at the later of the dates referred to in paragraphs a. and b. above, there would be an actual or pending Proceeding in respect of which the Officer would be entitled to indemnification under this Agreement or there is an actual or pending Proceeding in connection with this Agreement, one year after the competent court or arbitral tribunal has finally adjudicated such Proceeding, without possibility for appeal. |
4 | GOVERNING LAW AND JURISDICTION |
4.1 | Governing law |
4.1.1 | This Agreement shall be governed by and construed in accordance with the laws of the Netherlands. |
4.2 | Jurisdiction |
4.2.1 | The Parties agree that any dispute in connection with this Agreement or any agreement resulting therefrom shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands. |
(signature page follows)
12
Signature page to the indemnification agreement
[name Officer] | |
Sono Group N.V. | |
Name: L.S.P. Hahn | |
Title: CEO | |
Sono Group N.V. | |
Name: J.J. Christians | |
Title: CEO |
Exhibit 21.1
List of Significant Subsidiaries
Entity name | Jurisdiction of organization |
Sono Motors GmbH | Germany |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form F-1 of Sono Group N.V. of our report dated March 19, 2021 relating to the financial statements of Sono Group N.V., which appears in this Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
Munich, Germany
October 22, 2021
PricewaterhouseCoopers GmbH
Wirtschaftsprüfungsgesellschaft
/s/ Alexander Fiedler | /s/ Sylvia Eichler | |
Alexander Fiedler | Sylvia Eichler | |
Wirtschaftsprüfer | Wirtschaftsprüferin | |
(German Public Auditor) | (German Public Auditor) |