Exhibit 1.1

 

Sono Group N.V.

 

[●] Common Shares

 

UNDERWRITING AGREEMENT

 

New York, New York
[●], 2021

 

Berenberg Capital Markets LLC 

As Representative of the several Underwriters listed in Schedule I hereto,

 

c/o Berenberg Capital Markets LLC
1251 Avenue of the Americas, 53rd Floor
New York, New York 10020

 

Ladies and Gentlemen:

 

Sono Group N.V is a public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands (the “Company”). The share capital of the Company in the amount of €[●] consists of [●] common shares with a nominal value of €0.06 per share and [●] high voting shares with nominal value of €1.50 per share (together, the “Shares”).The Company agrees with the several Underwriters named in Schedule I (the “Underwriters”) to this underwriting agreement (this “Agreement”), for whom you (the “Representative”) are acting as representative, to issue and sell, and the Underwriters severally agree to purchase, an aggregate of [●] common shares, nominal value €0.06 per share (the “Common Shares”) in the capital of the Company (said shares to be issued and sold by the Company being hereinafter called the “Initial Securities”).

 

The Company also proposes to grant the Underwriters an option to purchase an aggregate of up to [●] additional Common Shares (the “Option Securities”) on any Option Closing Date (as defined below). The Initial Securities and the Option Securities are hereinafter together referred to as the “Securities”.

 

The Company understands that the Underwriters propose to make a public offering of the Securities in the United States of America (the “Offering”) as soon as the Representative deems advisable after this Agreement has been executed and delivered.

 

As used in this Agreement,

 

the “Registration Statement” means the registration statement referred to in Section 1(a)(i) hereof, including the exhibits, schedules and financial statements and a prospectus relating to the Securities and the information, if any, deemed part of such registration statement pursuant to Rule 430A (“Rule 430A”) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), as amended at the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), and, in the event any post-effective amendment thereto or any registration statement and any amendments thereto filed pursuant to Rule 462(b) under the Securities Act (a “Rule 462(b) Registration Statement”) becomes effective prior to the Closing Date (as defined in Section 2 hereof), shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be;

 

the “Effective Date” means each date and time that the Registration Statement, any post-effective amendment or amendments thereto or any Rule 462(b) Registration Statement became or becomes effective;

 

 

the “Preliminary Prospectus” means any preliminary prospectus with respect to the offering of the Securities in the United States of America (the “United States”) included in the Registration Statement at the Effective Date that omits information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A;

 

the “Prospectus” means the prospectus with respect to the offering of the Securities in the United States that is first filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) (“Rule 424(b)”) under the Securities Act after the Execution Time;

 

and the “Disclosure Package” means (i) the Preliminary Prospectus, as generally distributed to investors and used to offer the Securities, (ii) any issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433” and, any such issuer free writing prospectus, an “Issuer Free Writing Prospectus”), identified in Schedule II hereto, and (iii) any other free writing prospectus, as defined in Rule 405 under the Securities Act (“Rule 405” and, any such free writing prospectus, a “Free Writing Prospectus”), that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and the information included on Schedule III hereto.

 

1.

Representations and Warranties.

 

(a)

Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this paragraph (a), as of the date hereof, the Effective Date, the Closing Date and, if applicable, each Option Closing Date.

 

(i)

Filing and Effectiveness of Registration Statement. The Company has prepared and filed with the Commission a Registration Statement (File No. 333-[●]) on Form F-1, including the related Preliminary Prospectus, for the registration of the offering and sale of the Securities under the Securities Act. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company may have filed one or more amendments thereto, including the related Preliminary Prospectus, each of which has previously been furnished to you. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information. The Company will file with the Commission a Prospectus relating to the Securities in accordance with Rule 424(b) after the Execution Time. As filed, such Prospectus shall contain all information required by the Securities Act and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.

 

(ii)

Compliance with Securities Act Requirements. (i) On the Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b), on the Closing Date and on each Option Closing Date (in each case as defined in Section 2 hereof), the Prospectus (and any supplements thereto) will, comply in all material respects with the applicable requirements of the Securities Act, as amended, and the rules and regulations promulgated thereunder; (ii) on the Effective Date and at the Execution Time, the Registration Statement did not and on the Closing Date and on each Option Closing Date (in each case as defined in Section 2 hereof), the Registration Statement will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (iii) on the date of any filing pursuant to Rule 424(b), on the Closing Date and on each Option Closing Date (in each case as defined in Section 2 hereof), the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6 hereof. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

 

 

(iii)

[Reserved]

 

(iv)

[Reserved]

 

(v)

[Reserved]

 

(vi)

Authorization and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of the Securities is not subject to the preemptive or other similar rights of any security holder of the Company, except as have been duly and validly waived. The Securities conform in all material respects to all statements relating thereto contained in the Registration Statement, the Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal liability by reason of being such a holder.

 

(vii)

Absence of Stamp Duties and Transfer Taxes. No stamp duty, stamp duty reserve, registration, issuance, transfer taxes or other similar documentary taxes, duties, fees or charges (“Transfer Taxes”) are payable or required to be paid by or on behalf of the Underwriters in Germany or the Netherlands or any political subdivision, authority or agency thereof or therein having power to tax in connection with (i) the execution, delivery and performance of this Agreement, (ii) the issuance and delivery of the Securities in the manner contemplated by this Agreement and the Prospectus, or (iii) the sale and delivery by the Underwriters of the Securities as contemplated herein and in the Prospectus.

 

(viii)

Dividends and Payments in Foreign Currency. Except as described in each of the Disclosure Package and the Prospectus, (i) all dividends and other distributions declared and payable on the Shares may under current Dutch law and regulations be paid to the Depositary and to the holders of Securities, as the case may be, in Euros and may be converted into foreign currency that may be transferred out of the Netherlands and (ii) all such payments made to holders thereof or therein who are non-residents of the Netherlands will not be subject to income, withholding or other taxes under laws and regulations of the Netherlands or any political subdivision or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in Germany or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental authorization in Germany or any political subdivision or taxing authority thereof or therein.

 

 

(ix)

Passive Foreign Investment Company. The Company does not expect to be a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended for its current taxable year or in the foreseeable future.

 

(x)

Disclosure Package. (i) The Disclosure Package, (ii) each electronic road show, when taken together as a whole with the Disclosure Package, and (iii) any individual Written Testing-the-Waters Communication (as defined in Section 1(a)(xiii) hereof), when taken together as a whole with the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 6 hereof.

 

(xi)

Ineligible Issuer. (i) At the time of filing the Registration Statement and any post-effective amendment thereto, (ii) at the earliest time after filing the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) and (iii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (iii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.

 

(xii)

Emerging Growth Company. From the time of initial confidential submission of the Registration Statement to the Commission through the Execution Time, the Company is and has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).

 

(xiii)

Testing-the-Waters Communication. The Company (i) has not alone engaged in any Testing-the-Waters Communication and (ii) has not authorized anyone other than the Underwriters to engage in Testing-the-Waters Communications. The Company reconfirms that the Underwriters have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405.

 

(xiv)

Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the Offering, did not and will not include any information that conflicts with the information contained in the Registration Statement. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 6 hereof.

 

(xv)

[Reserved]

 

 

(xvi)

Good Standing. Each of the Company and its subsidiaries has been duly formed or incorporated, as applicable, and is validly existing and is in good standing under the laws of the jurisdiction in which it is chartered or organized (to the extent applicable) with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).

 

(xvii)

Capitalization. The authorized, issued and outstanding share capital of the Company are as set forth in the Registration Statement, the Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the Disclosure Package and the Prospectus). There are no authorized or outstanding phantom equity, rights to receive shares, options, conversion rights, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for or that can be settled in, any share capital of the Company or any of its subsidiaries other than those described in the Registration Statement, the Disclosure Package and the Prospectus. The issued share capital of the Company and the Securities have been duly authorized and validly issued and are fully paid and non-assessable. None of the issued shares of the Company were issued in violation of the preemptive or other similar rights of any security holder of the Company. All outstanding shares in the capital of the Company, and, when the Securities have been delivered and paid for in accordance with this Agreement on the Closing Date or each Option Closing Date (in each case as defined in Section 2 hereof), will be, validly issued, fully paid, non-assessable, freely transferable and free of any third party rights and conform to the description of the Offered Securities contained in the Disclosure Package and the Prospectus; any preemptive rights of any existing shareholders in connection with the offer and sale of the Securities are validly excluded or waived and will be validly excluded or waived at the respective time of delivery.

 

(xviii)

Capital Stock of Subsidiaries. All the outstanding shares of capital stock of each subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), all outstanding shares of capital stock of the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, mortgages, pledges, claims, liens, encumbrances or equity.

 

(xix)

Finder’s Fee. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this Offering.

 

(xx)

Listing. The Securities have been approved for listing on the Nasdaq Global Market, subject to notice of issuance.

 

(xxi)

Material Contracts. There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the foregoing matters that will be contained in the Prospectus).

 

 

(xxii)

Due Authorization. This Agreement has been duly authorized, executed and delivered by the Company.

 

(xxiii)

No Material Adverse Change in Business. Except as disclosed in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), since June 30, 2021, (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole that is material and adverse to the Company and its subsidiaries, (ii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its subsidiaries.

 

(xxiv)

Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be an “Investment Company” as defined in the Investment Company Act of 1940, as amended.

 

(xxv)

Absence of Further Requirements. No consent, approval, authorization, filing with or order of any relevant court or governmental agency or body is required in connection with the transactions contemplated herein, except (i) such as have been obtained under the Securities Act, the Exchange Act, the listing rules of the Nasdaq Stock Market ("Nasdaq"), applicable rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and (ii) such as may be required under the “blue sky” or similar laws of any U.S. or foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Prospectus.

 

(xxvi)

Absence of Defaults and Conflicts Resulting from Transaction. Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the articles of association of the Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except in the case of clauses (ii) and (iii) hereof for any such breach, violation or imposition as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

(xxvii)

Registration Rights. Except as described in the Prospectus and Disclosure Package (exclusive of any amendment or supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement.

 

 

(xxviii)

Financial Statements. The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Disclosure Package, the Prospectus and the Registration Statement present fairly in all material aspects the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the periods indicated, comply as to form, in all material aspects with the applicable accounting requirements of the Securities Act and have been prepared in conformity with international financial reporting standards as issued by the International Accounting Standards Board (“IFRS”) and applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The supporting schedules, if any, present fairly in accordance with IFRS the information required to be stated therein in all material respects. The summary financial information included in the Disclosure Package, the Prospectus and Registration Statement fairly present, in all material respects, on the basis stated in the Disclosure Package, the Prospectus and the Registration Statement, the information included therein and have been compiled on a basis consistent with that of the audited financial statements included therein.

 

(xxix)

Litigation. No action, suit or proceeding (including any inquiries or investigations) by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the knowledge of the Company, threatened that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect.

 

(xxx)

Title to Property; Leases. Each of the Company and each of its subsidiaries owns or leases all such properties and assets as are necessary to the conduct of its operations as presently conducted except as would not reasonably be expected to have a Material Adverse Effect.

 

(xxxi)

Absence of Existing Defaults and Conflicts. Neither the Company nor any subsidiary is in violation or default of (i) any provision of its articles of association or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except in the case of clauses (ii) and (iii) for any such breach, violation or imposition as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

(xxxii)

Independent Public Accountants. PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft (“PwC”), who have audited the financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Registration Statement, the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder.

 

(xxxiii)

Absence of Tax Issues. The Company and its subsidiaries have filed all tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure to so file would not have a Material Adverse Effect or except as set forth in or contemplated in the Disclosure Package and the Prospectus) and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith, or as would not reasonably be expected to have a Material Adverse Effect, or except as set forth in or contemplated in the Disclosure Package and the Prospectus; and there is no tax deficiency which has been or might reasonably be expected to be asserted or threatened against the Company or any of its subsidiaries, except as would not reasonably be expected to have a Material Adverse Effect.

 

(xxxiv)

Absence of Labor Disputes. No labor problem or dispute with the current or former employees of the Company or any of its subsidiaries exists or is threatened in writing or to the Company's knowledge, imminent, and the Company is not aware of any existing or imminent labor disturbance by the current or former employees of any of its or its subsidiaries’ principal suppliers, manufacturers, contractors or customers, that would reasonably be expected to have a Material Adverse Effect, except as set forth in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).

 

(xxxv)

Insurance Coverage. The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company reasonably believes are adequate and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected have a Material Adverse Effect.

 

(xxxvi)

Subsidiary Dividends. No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company.

 

(xxxvii)

Possession of Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates, permits, approvals, consents and other authorizations (collectively, the “Permits”) issued by all applicable authorities necessary to conduct their respective businesses as presently conducted, except where the failure to possess such Permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.

 

(xxxviii)

Internal Controls. The Company and each subsidiary maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as set forth in the Registration Statement, Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), the Company and its subsidiaries’ internal control over financial reporting (as defined under Rule 13a-15(f) of the Exchange Act) are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.

 

 

(xxxix)

Absence of Accounting Issues. To the Company’s knowledge, the board of directors and, solely as of the Option Closing Date, the audit committee is not reviewing or investigating, and neither the Company’s independent auditors nor its internal auditors have recommended that the audit committee review or investigate, (i) adding to, deleting, changing the application of, or changing the Company’s disclosure with respect to any of the Company’s material accounting policies; or (ii) any matter which would reasonably be expected to result in a restatement of the Company’s financial statements and the schedules attached thereto for the annual or interim periods for which financial statements are included in the Registration Statement, the Disclosure Package and the Prospectus.

 

(xl)

Disclosure Controls and Procedures. The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) that have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities and such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.

 

(xli)

Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly (without giving effect to the activities of the Underwriters), any action designed to or that would constitute or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the Exchange Act.

 

(xlii)

Environmental Laws (Compliance). The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations and any order of any governmental agency or body or any court, domestic or foreign, relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or equivalent legislation.

 

(xliii)

Environmental Laws (Monitoring). In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review and to the best of its knowledge, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).

 

 

(xliv)

Absence of Compensation Issues. None of the following events has occurred, exists or is reasonably likely to occur that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or except as set forth in or contemplated in the Disclosure Package and the Prospectus: (i)  a failure by the Company or any of its subsidiaries to fulfill its obligations, if any, under the minimum funding standards of any applicable pension, labor, employee benefits or similar laws or regulations; (ii) an audit or investigation by any taxing authority, any labor authority, any pension regulator or any other governmental agency or regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries; (iii) any breach of any contractual obligation, or any violation of law, with respect to (x) any employee benefit plans, agreements or arrangements or (y) the employment or compensation of employees by the Company or any of its subsidiaries; (iv) any event or condition giving rise to a liability under any pension, labor employee benefits or similar laws or regulations; or (v) the filing of a claim by, for or in respect of one or more employees or former employees of the Company or any of its subsidiaries related to (x) any employee benefit plans, agreements or arrangements or (y) their employment or compensation.

 

(xlv)

Compliance with Sarbanes-Oxley Act and Exchange Rules. There is and has been no failure on the part of any of the Company and to the knowledge of the Company, any of the Company’s directors or members of senior management, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder (the “Sarbanes-Oxley Act”) that are in effect and with which the Company is required to comply as of the Effective Date, including Section 402 relating to loans.

 

(xlvi)

Compliance with Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a violation or a sanction for violation by such persons of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder; and the Company and its subsidiaries have instituted and maintain policies and procedures to ensure compliance therewith. No part of the proceeds of the Offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.

 

(xlvii)

Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any relevant governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

 

(xlviii)

Compliance with Sanctions Laws (I). Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, a member state of the European Union, sanctions administered or enforced by Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) or (iii) will, directly or indirectly, use the proceeds of this Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the Offering, whether as underwriter, advisor, investor or otherwise).

 

(xlix)

Compliance with Sanctions Laws (II). Neither the Company nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three years, nor does the Company or any of its subsidiaries have any plans to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country.

 

(l)

Significant Subsidiaries. The subsidiaries listed on Schedule IV attached hereto are the only significant subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X.

 

 

(li)

Intellectual Property. The Company and its subsidiaries own, possess, license or have other valid rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property necessary for the conduct of the Company’s business as now conducted or as proposed in the Disclosure Package and Prospectus to be conducted (collectively, the “Intellectual Property”). Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, (i) there are no rights of third parties to any Intellectual Property and the Intellectual Property is owned by the Company or any of its subsidiaries free and clear of all liens, security interests, or encumbrances; (ii) there is no material infringement, misappropriation or other violation by third parties of any Intellectual Property, and there is no pending or threatened action, suit, proceeding or claim by the Company or its subsidiaries against any third party for such infringement, misappropriation or other violation, and neither the Company nor its subsidiaries are aware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others against the Company or its subsidiaries challenging the Company’s or its subsidiaries’ rights in or to any Intellectual Property, and neither the Company nor its subsidiaries are aware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending or, to the Company’s knowledge, threatened material action, suit, proceeding or claim by others challenging the validity or scope of any Intellectual Property, including interferences, oppositions, reexaminations, or government proceedings, and neither the Company nor its subsidiaries are aware of any facts which would form a reasonable basis for any such material action, suit, proceeding or claim; (v) the patents, trademarks and copyrights included within the Intellectual Property are valid, enforceable and subsisting, and the patent, trademark, and copyright applications included within the Intellectual Property are subsisting and have not been abandoned; (vi) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company or its subsidiaries infringe, misappropriate or otherwise violate, or would, upon the commercialization of any product or service described in the Disclosure Package and the Prospectus infringe, misappropriate, or otherwise violate, any patent, trademark, copyright, trade secret or other proprietary rights of others, and neither the Company nor its subsidiaries are aware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (vii) the development, manufacture, sale, and any current or proposed use of any of the products, proposed products or processes of the Company and its subsidiaries referred to in the Disclosure Package and the Prospectus, in the current or proposed conduct of the business of the Company and its subsidiaries, have not, do not currently, and to the Company’s knowledge, will not upon commercialization, infringe, misappropriate or otherwise violate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (viii) all Intellectual Property owned by or licensed to the Company or its subsidiaries or under which the Company or its subsidiaries have rights has been duly and properly filed and maintained and there are no material defects in any of the patents or patent applications in the Intellectual Property; (ix) no Intellectual Property has been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part; (x) to the Company’s knowledge, there is no prior art that may render any issued patent held by the Company invalid; (xi) all prior art of which the Company or its subsidiaries are aware that is material to the validity of a U.S. patent or to the patentability of a pending U.S. patent application that the Company or its subsidiaries own, possess, license or have other rights to use has been disclosed to the U.S. Patent and Trademark Office in compliance with 37 CFR § 1.56 during the prosecution of such applicable patent or applicable patent application, and, in the case of all other patents and patent applications included in the Intellectual Property, all such prior art has been disclosed to the patent office of other jurisdictions where required; and (xii) to the Company’s knowledge, there is no reason for the scope of any issued claims under any patents included in the Intellectual Property, or for the scope of any claims that issue under any pending patent applications included in the Intellectual Property, to be materially less than the scope reflected in such patent or patent application, respectively, as of the date hereof. Each person who has created or developed any Intellectual Property as an employee of or contractor to the Company or its subsidiaries has done so pursuant to a binding and enforceable written agreement (or pursuant to similar obligations by operation of law) which includes provisions sufficient to ensure that the Company or its subsidiaries are the exclusive owner of such Intellectual Property. To the Company’s knowledge, no employee, consultant or independent contractor of the Company is in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, non-disclosure agreement or any restrictive covenant to or with a former employer or independent contractor where the basis of such violation relates to such employee’s employment or independent contractor’s engagement with the Company or its subsidiaries or actions undertaken while employed or engaged with the Company or its subsidiaries. The Company and its subsidiaries have taken and will take reasonable steps in accordance with standard industry practices to maintain and protect the confidentiality of the trade secrets and other confidential Intellectual Property used in connection with the businesses of the Company and its subsidiaries and, to the knowledge of the Company, such confidential Intellectual Property has not been compromised or disclosed to or accessed by any third party except pursuant to nondisclosure and confidentiality agreements.

 

(lii)

Fair Summaries. There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the foregoing matters contained in the Prospectus); and the statements contained in the Disclosure Package and the Prospectus under the captions “Business—Intellectual Property”, “Business—Legal Proceedings”, “Regulatory Environment”, and “Description of Share Capital and Articles of Association” in each case insofar as such statements summarize legal matters, agreements, documents, or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings, and the statements contained in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Taxation,” insofar as such statements purport to summarize certain federal income tax laws of the United States and certain tax laws of the Netherlands and Germany, constitute a fair summary of the principal U.S. federal income tax consequences, Dutch tax consequences and German tax consequences, respectively, of an investment in the Securities as per the date of the Registration Statement, the Disclosure Package and the Prospectus.

 

 

(liii)

Cybersecurity. (i) Except as may be included in the Registration Statement, the Disclosure Package and the Prospectus, (x) to the Company’s knowledge, there has been no material security breach or incident, unauthorized access or disclosure, or other material compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified in writing of, and have no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or incident, unauthorized access or disclosure or other material compromise to their IT Systems and Data; (ii) the Company and its subsidiaries have been and are presently in compliance with all applicable laws or statutes, all judgments, orders, rules and regulations of any relevant court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, and (iii) except as may be included in the Registration Statement, the Disclosure Package and the Prospectus, the Company and its subsidiaries have implemented commercially reasonable controls, policies, procedures, and technological safeguards and backup and disaster recovery technology to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data consistent with industry standards and practices, or as required by applicable regulatory standards, except as would not, in the case of clause (ii), individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(liv)

Statistical and Market-Related Data. (i) Any third-party statistical and market-related data included in the Registration Statement, the Disclosure Package or the Prospectus, including but not limited to [the market reports referred to in the Disclosure Package and the Prospectus under the heading [●]] are based on or derived from sources that the Company reasonably believes to be reliable and accurate, (ii) to the extent required, the Company has obtained the written consent to the use of such data from such sources, and (iii) the Company’s expectations or estimates included in the Registration Statement, the Disclosure Package or the Prospectus based on such third-party statistical and market-related data represent the Company’s good faith expectations or estimates.

 

(lv)

Lending Relationship. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt that is to the best knowledge of the Company owed to any affiliate of any Underwriter.

 

(lvi)

Personal Jurisdiction. The Company has validity and irrevocably submitted to the personal jurisdiction of any state or Federal court in the City of New York, New York, for any suit, action or proceeding arising out of or based upon this Agreement and has validly and irrevocably waived any objection to the venue of a proceeding in any such court.

 

 

(lvii)

Absence of Immunity from Jurisdiction. Neither the Company nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of (i) any jurisdiction in which they own or lease property or assets, (ii) the United States or the State of New York, or (iii) the Netherlands or any political subdivision thereof with respect to themselves or their property and assets.

 

(lviii)

Maintenance of Rating. At the date of this Agreement, neither the Company nor its subsidiaries have any debt securities or preferred shares that are rated by any “nationally recognized statistical rating agency” (as defined in Section 3(a)(62) of the Exchange Act)

 

(b)

Any certificate signed by any two officers of the Company and delivered to the Representative or counsel for the Underwriters in connection with the Offering shall be deemed a representation and warranty by the Company, as to matters covered thereby as of the date thereof, to each Underwriter.

 

2.

Purchase, Sale and Delivery of and Payment for the Securities.

 

(a)

Purchase and Sale of Initial Securities

 

(i)

Each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective number of Initial Securities set forth opposite such Underwriter’s name in Schedule I hereto at the price set forth in Schedule I hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section [7] hereof, subject, in each case, to such adjustments among the Underwriters as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional shares.

 

(b)

Purchase and Sale of Option Securities

 

(i)

Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to [●] Option Securities at the same purchase price per share as the Underwriters shall pay for the Initial Securities set forth in Schedule I hereto, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Prospectus upon written, electronic or telegraphic notice by the Representative to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the date of payment and delivery for such Option Securities. Any such time and date of delivery (an “Option Closing Date”) shall be determined by the Representative upon consultation with the Company, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Date. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule I opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional shares.

 

 

(c)

Delivery and Payment.

 

(i)

It is understood that the several Underwriters are to make an Offering of the Securities in the manner contemplated in the Registration Statement as soon as the Representative deems it advisable to do so. In connection with the Offering, the Securities will be offered in a public offering in the United States of America.

 

(ii)

Delivery of and payment of the purchase price for the Initial Securities shall be made [at the offices of Skadden, Arps, Slate, Meagher & Flom (UK) LLP, 40 Bank Street, E145DS, London, UK, or at such other place as shall be agreed upon by the Representative and the Company, at [●] (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time and date of payment and delivery being herein called “Closing Date”).

 

(iii)

In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of, such Option Securities shall be made at [the above-mentioned offices], or at such other place as shall be agreed upon by the Representative and the Company, on each Option Closing Date as specified in the notice from the Representative to the Company.

 

(iv)

Payment shall be made to the Company in same day funds by wire transfer to the account(s) designated by the Company against delivery to the Representative for their respective accounts of the several Underwriters of the Securities purchased by them. It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase.

 

(v)

Delivery of the Initial Securities and any Option Securities shall be made through the facilities of The Depository Trust Company.

 

3.

Agreements.

 

(a)

The Company agrees with the several Underwriters that:

 

(i)

Additional Filings. Prior to the termination of the Offering, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Preliminary Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Underwriters a copy for their review prior to filing and will not file any such proposed amendment or supplement without the prior consent of the Representative, which will not be unreasonably withheld, conditioned or delayed. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.

 

 

(ii)

Filing of Amendments; Response to Commission Requests. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.

 

(iii)

Duty to Amend or Supplement the Disclosure Package. If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.

 

(iv)

Duty to Amend or Supplement the Prospectus. If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (“Rule 172”)), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Prospectus, the Company promptly will (i) notify the Representative of any such event; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (i) of this Section 3, an amendment or supplement which will correct such statement or omission or effect such compliance; (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in the use of the Prospectus and (iv) supply any supplemented Prospectus to you in such quantities as you may reasonably request.

 

(v)

Availability of Earnings Statement. As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.

 

(vi)

Copies of Registration Statements and Prospectus. The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an underwriter or dealer may be required (including in circumstances where such requirement may be satisfied pursuant to Rule 172) by the Securities Act, as many copies of the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the Offering. The copies of the documentation furnished by the Company pursuant to this clause, except as otherwise stated in this clause, will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

 

 

(vii)

Qualification of Securities. The Company will arrange, if necessary, for the qualification of the Securities for sale under (or obtain exemptions from the application of) the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to (i) qualify to do business in any jurisdiction where it is not now so qualified or (ii) to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject, or (iii) subject itself to taxation in any jurisdiction in which it is not otherwise so subject.

 

(viii)

Lock-Up Period. The Company will not, without the prior written consent of the Representative, offer, sell, issue, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other Common Shares or any securities convertible into, or exercisable, or exchangeable for, Common Shares; or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), provided, however, that the Company may:

 

(i) effect the transactions contemplated hereby; (ii) effecting the conversion of the Company’s previously issued convertible senior notes into Common Shares concurrently with the consummation of the Offering, (iii) issue and sell Common Shares pursuant to any employee stock option plan, incentive plan, employee stock purchase plan, stock bonus plan, stock option ownership plan, dividend reinvestment plan or warrant program of the Company in effect at the Execution Time or adopted in connection with the offering contemplated by this Agreement and described in the Disclosure Package, and the Company may issue Common Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time; (iv) file one or more registration statements on Form S-8 relating to stock options or employee benefit plans of the Company described in the Disclosure Package and Prospectus; (v) offer, issue and sell Common Shares in connection with any merger, acquisition or strategic investment (including any joint venture, strategic alliance, partnership, the acquisition or license of the business, property, technology or other assets of another individual or entity, or the assumption of an employee benefit plan in connection with such a merger or acquisition); (vi) offer, issue and sell Common Shares, on an arm’s length basis to, to any unaffiliated collaborators, manufacturers, distributors, or any other similar parties pursuant to a collaboration, licensing agreement, strategic alliance, manufacturing, distribution or settlement agreement or similar transaction; or (vii) offer, issue and sell Common Shares, on an arm’s length basis to, to unaffiliated financial institutions or current lenders of the Company or one of its subsidiaries pursuant to a commercial agreement, equipment financing transaction, commercial property lease transaction or in lieu of repayment of outstanding indebtedness, provided, however, that the aggregate number of Common Shares that the Company may issue or agree to issue pursuant to clauses (v), (vi) and (vii) shall not exceed 5% of the number of Common Shares outstanding immediately after the issuance and sale of securities, and provided, further, that each recipient of such securities agrees to restrictions on the resale of securities that are consistent with the provisions set forth in the lock-up letter described in Section 6(r) hereof.

 

 

(ix)

Press Release. If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Letter for an officer or director of the Company and provides the Company with notice (substantially in the form of Exhibit B hereto) of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver.

 

(x)

Absence of Manipulation. The Company will not take, directly or indirectly, without giving effect to activities by the Underwriters, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(xi)

[Reserved]

 

(xii)

(Issuer) Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

 

(xiii)

Emerging Growth Company. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Securities within the meaning of the Securities Act and (b) completion of the Lock-Up Period referred to in Section (viii) hereof.

 

(xiv)

Written Testing-the-Waters Communication. If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.

 

(xv)

Use of Proceeds. The Company will use the net proceeds received in connection with this Offering in the manner described in the “Use of Proceeds” section of the Registration Statement, the Disclosure Package and the Prospectus and the Company does not intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.

 

 

(xvi)

Annual Report to Shareholders. During the period of three years hereafter, the Company will furnish to the Representative and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to the Representative from time to time such other information concerning the Company as the Representative may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system, it is not required to furnish such reports or statements to the Underwriters.

 

(xvii)

Reporting Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the applicable regulations thereunder. Additionally, the Company shall report the use of proceeds from the issuance of the Common Shares as may be required under Rule 463 under the Securities Act.

 

(xviii)

Costs and Expenses. The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Preliminary Prospectus, the Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the Offering; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any Transfer Taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (vi) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, provided that such counsel fees and expenses shall not exceed $5,000); (viii) any filings required to be made with FINRA including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings (provided that such counsel fees and expenses shall not exceed $25,000); (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (x) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (xi) all other costs and expenses incident to the performance by the Company of their obligations under this Agreement.

 

(xix)

Stamp and Other Taxes. The Company will indemnify and hold harmless the Underwriters against any Transfer Taxes including any interest and penalties payable by the Underwriters, on or in connection with (i) the creation, issue and sale of the Securities, and (ii) the execution and delivery of this Agreement, and the performance of the obligations under it. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, levies, imposts, duties, fees, assessments or other governmental charges whatsoever, and all interest, penalties, or similar liabilities with respect thereto (each of the above, as well as together, “Taxes”) unless the Company is compelled by law to deduct or withhold such Taxes. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.

 

 

(xx)

Maintenance of Listing. The Company will use its reasonable best efforts to maintain the listing for the Securities on Nasdaq for 24 months from the Closing Date.

 

4.

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Initial Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained in this Agreement as of the Execution Time, the Closing Date and each Option Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations under this Agreement and to the following additional conditions:

 

(a)

Registration Compliance; No Stop Order. The Registration Statement has become effective and, on the Closing Date, no order suspending the effectiveness of the Registration Statement (including, for avoidance of doubt, any Rule 462(b) Registration Statement) has been issued, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued, and no proceeding for any of those purposes or pursuant to Section 8A under the Securities Act have been instituted or are pending before or, to the knowledge of the Company, threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(c) hereof. The Company has complied with each request (if any) from the Commission for additional information.

 

(b)

No Material Adverse Change. Since the date of this Agreement, no event or condition of a type described in Section 1(a)(xxiii) hereof shall have occurred or shall exist, which event or condition is not described or contemplated in the Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date or each Option Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Disclosure Package and the Prospectus.

 

(c)

Company Officer’s Certificate. The Representative shall have received, on and as of the Closing Date and, if applicable, each Option Closing Date, as the case may be, a certificate of the chief financial officer of the Company and one additional member of the management board or another senior executive officer of the Company who is reasonably satisfactory to the Representative, in each case in their capacity as officers of the Company and not in their individual capacity (i) confirming that such officers have carefully reviewed the Registration Statement, the Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations set forth in Section 1(a) hereof are true and correct on and as of the Closing Date or each applicable Option Closing Date with the same effect as if made on the Closing Date or each applicable Option Closing Date, (ii) confirming that the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or each applicable Option Closing Date, as the case may be, (ii) confirming that at the Closing Date or each applicable Option Closing Date, there have not been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, any Material Adverse Effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business and (iii) no stop order suspending the effectiveness of the Registration Statement (including, for avoidance of doubt, any Rule 462(b) Registration Statement), or any post-effective amendment thereto or any notice objective to their use, has been issued and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or, to the knowledge of the Company, threatened by the Commission.

 

 

(d)

[Reserved].

 

(e)

[Reserved].

 

(f)

Comfort Letters. On the date of this Agreement and on the Closing Date or each applicable Option Closing Date, as the case may be, (i) PWC shall have furnished to the Representative, at the request of the Company, letters, dated the respective date of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered by PWC on the Closing Date or each applicable Option Closing Date, as the case may be, shall use a “cut-off” date no more than [●] business days prior to such Closing Date or such Option Closing Date, as the case may be.

 

(g)

Opinion and 10b-5 Statement of Counsel for the Company. The Representative shall have received on and as of the Closing Date or the applicable Option Closing Date, as the case may be, (i) a U.S. opinion and 10b-5 letter, addressed to the Underwriters, of Sullivan & Cromwell LLP, counsel for the Company (ii) a Dutch opinion, addressed to the Underwriters, of NautaDutilh N.V., Dutch counsel for the Company with respect to such matters as the Representative may reasonably request, (iii) a German opinion, addressed to the Underwriters, of [●], (iv) an opinion with respect to intellectual property by [●], addressed to the Underwriters, and (v) an opinion with respect to trademarks by [·], addressed to the Underwriters in form and substance reasonably satisfactory to the Representative, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.

 

(h)

[Reserved].

 

(i)

[Reserved].

 

(j)

Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall have received on and as of the Closing Date or each applicable Option Closing Date, as the case may be, (i) a U.S. opinion and 10b-5 letter, addressed to the Underwriters, of Skadden, Arps, Slate, Meagher & Flom (UK) LLP counsel for the Underwriters with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.

 

(k)

[Reserved].

 

(l)

Exchange Listing. The Securities to be delivered on the Closing Date or each applicable Option Closing Date, as the case may be, shall have been duly listed on [●], subject to official notice of issuance.

 

(m)

Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders identified in Schedule V hereto relating to sales and certain other dispositions of Common Shares or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date or each applicable Option Closing Date, as the case may be.

  

 

(n)

[Reserved].

 

(o)

[Reserved].

 

(p)

[Reserved].

 

(q)

Additional Information upon Representative’s Request. The Company will furnish the Representative with such information, opinions, certificates, letters and documents as the Representative reasonably requests. The Representative may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Execution Time, the Closing Date, each Option Closing Date or otherwise.

 

If any of the conditions specified in this Section 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

 

5.

[Reserved].

 

6.

Indemnification and Contribution.

 

(a)

Indemnification of Underwriters by the Company and Sono Motors GmbH. Each of the Company and Sono Motors GmbH agrees, jointly and severally, to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment or supplement thereof, or in the Preliminary Prospectus, or in the Prospectus, any Issuer Free Writing Prospectus or in any Written Testing-the-Waters Communication or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and Sono Motors GmbH will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in paragraph (d) below. This indemnity agreement will be in addition to any liability which the Company may otherwise have.

 

(b)

[Reserved].

 

 

(c)

[Reserved].

 

(d)

Indemnification of the Company by the Underwriters. Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act to the same extent as the foregoing indemnity to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in [●], each under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus, constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.

 

(e)

Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (d) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (d) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable and documented fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

 

(f)

Contribution. In the event that the indemnity provided in paragraph (a) or (d) of this Section 6 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the Offering. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the Offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (f), in no event shall any Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the Offering exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this paragraph (f), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (f).

 

7.

Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters under this Agreement and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such non-defaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any non-defaulting Underwriter or the Company, other than as contemplated by Sections 3(xviii), 5 and 6. In the event of a default by any Underwriter as set forth in this Section 7, the Closing Date shall be postponed for such period, not exceeding five business days, as the Representative shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default under this Agreement.

 

8.

Termination [/ Downsizing].

 

(a)

[Reserved].

 

 

(b)

Termination s. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) trading in the Company’s Common Shares shall have been suspended by the Commission or the Nasdaq Global Market or trading in securities generally on the New York Stock Exchange or the Nasdaq Global Market shall have been suspended or limited or minimum prices shall have been established on either of such exchanges, (iii) a banking moratorium shall have been declared by U.S. Federal, New York State or Dutch authorities, (iv) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services or (v) there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak or escalation of hostilities, declaration by the United States, any member state of the European Union of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any amendment or supplement thereto).

 

9.

Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers or directors and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents, affiliates or controlling persons (as applicable) referred to in Section 6 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 1, 3(a)(xviii), 5, 6, 7, 11 and 18 hereof shall survive the termination or cancellation of this Agreement.

 

10.

Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to Berenberg Capital Markets LLC, 1251 Avenue of the Americas, 53rd Floor, New York, New York 10020, Attention: Equity Capital Markets, Email: ecm-bcm@berenberg-us.com, Tel: +1 (646) 949-9166, Fax: +1 (646) 949-9283, will be mailed, delivered or telefaxed to Sono Group N.V., Waldmeisterstraße 76, 80935 Munich, Germany, Attention: Johannes Trischler and Benedict Schneider, E-Mail: IPO@sonomotors.com.

 

11.

Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons (as applicable) referred to in Section 6 hereof, and no other person will have any right or obligation hereunder.

 

12.

Representation of Underwriters. The Representative will act for the several Underwriters in connection with this transaction, and any action under this Agreement taken by the Representative will be binding upon all the Underwriters.

 

13.

Jurisdiction. The Company and Sono Motors GmbH agrees that any suit, action or proceeding against the Company or Sono Motors GmbH brought by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and Sono Motors GmbH have appointed Puglisi & Associates, with offices at 850 Library Avenue, Suite 204, Newark, Delaware 19711, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company and Sono Motors GmbH hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company and Sono Motors GmbH agree to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company or Sono Motors GmbH. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, in any court of competent jurisdiction in Germany.

 

 

14.

No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company, (c) the Company’s engagement of the Underwriters in connection with the Offering and the process leading up to the Offering is as independent contractors and not in any other capacity and (d) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to any entity or natural person. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the Offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.

 

15.

Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof, except any engagement letter between any Underwriter and the Company and/or Sono Motors GmbH.

 

16.

Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

 

17.

Currency. Each reference in this Agreement to U.S. Dollars (the “Relevant Currency”) is of the essence. To the fullest extent permitted by law, the obligations of the Company in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Relevant Currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day on which such party receives such payment. If the amount in the Relevant Currency that may be so purchased for any reason falls short of the amount originally due, the Company making such payment will pay such additional amounts, in the Relevant Currency, as may be necessary to compensate for the shortfall. Any obligation of the Company not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.

 

18.

Recognition of the U.S. Special Resolution Regimes.

 

(a)

Transfer. In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime (as defined below) if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

 

(b)

Default Rights. In the event that any Underwriter that is a Covered Entity (as defined below) or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights (as defined below) could be exercised under the U.S. Special Resolution Regime (as defined below) if this Agreement were governed by the laws of the United States or a state of the United States.

 

(c)

Definitions. As used in this Section 18 only, the meaning of the following terms is as follows: “Affiliate” has the meaning given in section 2(k) of the Bank Holding Company Act (12 U.S.C. 1841(k)) and section 225.2(a) of the Board’s Regulation Y (12 CFR 225.2(a)). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b) or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” means any: (i) Right of a party, whether contractual or otherwise (including, without limitation, rights incorporated by reference to any other contract, agreement, or document, and rights afforded by statute, civil code, regulation, and common law), to liquidate, terminate, cancel, rescind, or accelerate such agreement or transactions thereunder, set off or net amounts owing in respect thereto (except rights related to same-day payment netting), exercise remedies in respect of collateral or other credit support or property related thereto (including the purchase and sale of property), demand payment or delivery thereunder or in respect thereof (other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure), suspend, delay, or defer payment or performance thereunder, or modify the obligations of a party thereunder, or any similar rights; and (ii) Right or contractual provision that alters the amount of collateral or margin that must be provided with respect to an exposure thereunder, including by altering any initial amount, threshold amount, variation margin, minimum transfer amount, the margin value of collateral, or any similar amount, that entitles a party to demand the return of any collateral or margin transferred by it to the other party or a custodian or that modifies a transferee’s right to reuse collateral or margin (if such right previously existed), or any similar rights, in each case, other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure. “U.S. Special Resolution Regime” means the Federal Deposit Insurance Act (12 U.S.C. 1811—1835a) and regulations promulgated thereunder and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5381—5394) and regulations promulgated thereunder.

 

19.

Waiver of Immunity. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement

 

20.

WAIVER OF JURY TRIAL. THE COMPANY HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

21.

Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

 

22.

Headings. The section and paragraph headings used herein are for convenience only and shall not affect the construction hereof.

 

 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters in accordance with its terms.

 

		Very truly yours,
		Sono Group N.V.
		By:
			Name:
			Title:
		Sono Motors GmbH
		By:
			Name:
			Title:

 

[Signature Page to Underwriting Agreement]

 

 

This Agreement is hereby confirmed and accepted as of the date first above written.

 

Berenberg Capital Markets LLC

 

For itself and the other several
Underwriters named in Schedule I to
this Agreement.

 

By: Berenberg Capital Markets LLC

 

By:
	Name:
	Title:
By:
	Name:
	Title:

 

[Signature Page to Underwriting Agreement]

 

 

SCHEDULE I

 

The initial public offering price per share for the Securities shall be $[●].

 

Underwriters		Number of Initial Securities
Berenberg Capital Markets LLC		[·]
Craig-Hallum Capital Group LLC		[·]
Total

 

 

SCHEDULE II

 

Free Writing Prospectuses included in the Disclosure Package

 

[None]

 

 

SCHEDULE III

 

Pricing Terms

 

1.

The Announcement of the Offering.

 

2.

The Company is selling [●] Common Shares.

 

3.

The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] Common Shares.

 

4.

The initial public offering price per share for the Securities shall be $[●].

 

5.

The Underwriting Discounts and Commissions are: $[●] per share.

 

 

SCHEDULE IV

 

Significant Subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X

 

Sono Motors GmbH

 

 

SCHEDULE V

 

 

Persons for which the Company is required to furnish Lock-up Letters

 

[●]

 

 

EXHIBIT A

 

Sono Group N.V.
Public Offering of Common Shares

 

[Date]

 

Berenberg Capital Markets LLC 

As Representative of the several Underwriters

 

c/o Berenberg Capital Markets LLC
1251 Avenue of the Americas, 53rd Floor
New York, New York 10020

 

Ladies and Gentlemen:

 

This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Sono Group N.V., a public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands (the “Company”), and you as representative of a group of Underwriters (the “Underwriters”) named therein, relating to an underwritten public offering of common shares with a nominal value of [●] each (“Shares”) of the Company (the “Offering”).

 

In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned agrees that it will not, without the prior written consent of Berenberg Capital Markets LLC, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission (the "Commission") in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission promulgated thereunder with respect to, any Shares or any securities convertible into, or exercisable or exchangeable for Shares, or publicly announce an intention to effect any such transaction, for a period from the date hereof until 180² days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than:

 

(i)            Shares disposed of as a bona fide gift or gifts where each recipient of a gift of shares of Shares agrees in writing to be bound by the same restrictions in place for the undersigned pursuant to this letter for the duration that such restrictions remain in effect at the time of transfer;

 

(ii)            the surrender or forfeiture by the undersigned of Shares to the Company, or the disposition of Shares by the undersigned, in each case, solely to satisfy tax obligations or other obligations as a result of testate succession or intestate distribution;

 

(iii)           transfers of Shares or any security convertible into or exercisable for Shares to an “immediate family member” (for purposes of this letter agreement, “immediate family member” shall mean any relationship by blood, marriage, civil union or adoption, and shall include former spouses and partners, not more remote than first cousin) or a trust for the benefit of the undersigned or an immediate family member or to any corporation, partnership, limited liability company or other entity that is a direct or indirect affiliate of the undersigned and/or one or more immediate family members of the undersigned in a transaction not involving a disposition for value or as part of a divorce decree, legal divorce or separation or separation agreement, provided that (1) each recipient of such Shares or other securities agrees in writing to be bound by the same restrictions in place for the undersigned pursuant to this letter for the duration that such restrictions remain in effect at the time of transfer and (2) no filing under the Exchange Act is required or made by or on behalf of the undersigned or such transferee or the Company prior to the expiration of the Lock-Up Period with regard to any such Shares or other securities;

 

² 90 days for pre-IPO investors who have undertaken a pre-IPO lock-up.

 

 

(iv)            transfers of Shares or any security convertible into or exercisable for Shares upon death by will or intestate succession;

 

(v)             the establishment of one or more contracts, instructions or plans (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act provided that no sales (or other transactions restricted by the second paragraph of this letter) of the undersigned’s Shares shall be made pursuant to such a Plan prior to the expiration of the Lock-up Period and no public announcement or filing under the Exchange Act is required or made by or on behalf of the undersigned or the Company regarding the establishment of such plan (other than a filing on Form 13F or a filing on Schedule 13D or Schedule 13G (or 13D-A or 13G-A) that is required by law to be made after the expiration of the Lock-up Period); and

 

(vi)            any Shares acquired by the undersigned in the open market or in the Offering (other than any issuer-directed Shares purchased in the Offering by an officer or director of the Company), provided that no filing or public announcement related to the acquired Shares under the Exchange Act is required or made prior to the expiration of the Lock-Up Period.

 

If the undersigned is an officer or director of the Company, (i) the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed shares of Shares the undersigned may purchase in the Offering, if applicable, (ii) the Representative agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Shares, the Representative will notify the Company of the impending release or waiver, and (iii) the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in the Offering. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

Notwithstanding anything to the contrary contained herein, this letter agreement will automatically terminate and the undersigned will be released from all of his, her or its obligations hereunder upon the earliest to occur, if any, of (i) the date that the Company, on the one hand, or you, on the other hand, advises in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii) the date, prior to the execution of the Underwriting Agreement, that the Company withdraws the Registration Statement, (iii) the date that the Underwriting Agreement is terminated (other than the provisions thereof which survive termination) prior to payment for and delivery of the Shares to be sold thereunder, or (iv) December 31, 2021, in the event that the Underwriting Agreement has not been executed by such date (provided that the Company may by written notice to the undersigned prior to December 31, 2021 extend such date for a period of up to an additional three months).

 

[Signature Page Follows]

 

 

If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.

 

	Yours very truly,
	By:
		Name:
		Title:

 

[Signature Page to Lock-Up Agreement]

 

 

EXHIBIT B

 

FORM OF WAIVER OF LOCK-UP

 

[insert letterhead of relevant Representative]

 

Sono Group N.V.
Public Offering of Common Shares

 

[Date]

 

[name and address of officer or director requesting waiver]

 

Dear Mr./Ms. [insert name]:

 

This letter is being delivered to you in connection with the offering by Sono Group N.V. (the “Company”) of [●] common shares, nominal value €0.06 (the “Shares”) in the capital of the Company (the “Offering”) and the lock-up letter dated [•] (the “Lock-up Letter”), executed by you in connection with such Offering, and your request for a [waiver] [release] dated [•], with respect to [•] Shares.

 

Each of Berenberg Capital Markets LLC hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares, effective [•]; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].

 

Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.

 

 

	Yours very truly,
	Berenberg Capital Markets LLC
	By:
		Name:
		Title:

 

cc: [•]

 

 

EXHIBIT C

 

FORM OF PRESS RELEASE

 

Sono Group N.V.
[insert date]

 

Sono Group N.V. (the “Company”) announced today that Berenberg Capital Markets LLC, the lead book-running manager in the Company’s recent public sale of [[●] common shares, nominal value €0.06 (the “Shares”) in the capital of the Company, is [waiving] [releasing] a lock-up restriction with respect to [•]Shares held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on [•], and the shares may be sold on or after such date.

 

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 

 

Exhibit 3.2

 

1

 

MANAGEMENT BOARD RULES

 

SONO GROUP N.V.

 

INTRODUCTION

 

Article

1

 

1.1

These rules govern the organisation, decision-making and other internal matters of the Management Board. In performing their duties, the Managing Directors shall comply with these rules.

 

1.2

These rules shall be posted on the Website.

 

DEFINITIONS AND INTERPRETATION

 

Article

2

 

2.1

In these rules the following definitions shall apply:

 

Article	An article of these rules.
Articles of Association	The Company's articles of association.
Board Meeting	A meeting of the Management Board.
CEO	A chief executive officer of the Company.
CFO	The Company's chief financial officer.
Company	Sono Group N.V.
Conflict of Interests	A direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it.
Diversity Policy	The Company's diversity policy.
Family Member	A Managing Director's spouse, registered partner or other life companion, foster child or any relative or in-law up to the second degree.
General Meeting	The Company's general meeting.
Management Board	The Company's management board.
Managing Director	A member of the Management Board.
Simple Majority	More than half of the votes cast.
Supervisory Board	The Company's supervisory board.
Website	The Company's website.

 

 

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.

 

COMPOSITION

 

Article

3

 

3.1

The Management Board consists of up to five Managing Directors.

 

3.2

The composition of the Management Board shall be determined taking into consideration the provisions of the Diversity Policy.

 

3.3

The Managing Directors shall be appointed, suspended and dismissed in accordance with the Articles of Association and applicable law.

 

3.4

A person may be appointed as Managing Director for a term of up to four years, without limitation on the number of consecutive terms which a Managing Director may serve.

 

3.5

The Supervisory Board shall elect one or more Managing Directors to be CEO. The Supervisory Board may dismiss the 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.

 

3.6

The Management Board may elect a Managing Director to be the CFO. The Management Board may dismiss the CFO, provided that the Managing Director so dismissed shall subsequently continue his term of office as a Managing Director without having the title of CFO.

 

3.7

A Managing Director shall retire in the event of inadequate performance, structural incompatibility of interests, and in other instances where early retirement of the Managing Director is considered necessary by the Supervisory Board.

 

3.8

The acceptance by a Managing Director of a position as supervisory director or non-executive director with another company or entity shall be subject to the approval of the Supervisory Board. A Managing Director shall notify the Supervisory Board in advance of any other position he wishes to pursue.

 

 

DUTIES AND ORGANISATION

 

Article

4

 

4.1

The Management Board is charged with the management of the Company, subject to the restrictions contained in the Articles of Association. In performing their duties, Managing Directors shall be guided by the interests of the Company and of the business connected with it.

 

4.2

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.

 

4.3

All Managing Directors shall follow an induction programme geared to their role, covering general financial, social and legal affairs, financial reporting by the Company, specific aspects that are unique to the Company and its business, the Company's corporate culture, the Company's relationship with employees and the responsibilities of a Managing Director under applicable law.

 

4.4

The Management Board shall ensure that internal procedures are established and maintained which safeguard that relevant information is or becomes known to the Management Board and the Supervisory Board in a timely fashion.

 

4.5

At least annually, the Management Board shall evaluate its own functioning and the functioning of the individual Managing Directors, shall discuss the conclusions of such evaluations, and shall identify aspects where the Managing Directors require further training or education. Each Managing Director may require that all Managing Directors be able to express their views confidentially during such evaluation.

 

DECISION-MAKING

 

Article

5

 

5.1

The Management Board shall meet as often as any Managing Director deems necessary or appropriate.

 

5.2

A Board Meeting may be convened by, or at the request of, any Managing Director by means of a written notice sent to all Managing Directors. Notice of a Board Meeting shall include the date, time, place and agenda for that Board Meeting. Board Meetings can be held through audio-communication facilities.

 

5.3

All Managing Directors shall be given reasonable notice of at least five days for all Board Meetings, unless a shorter notice is required to avoid a delay which could reasonably be expected to have an adverse effect on the Company and/or the business connected with it.

 

5.4

If a Board Meeting has not been duly convened, resolutions may nevertheless be passed at that Board Meeting if all Managing Directors not present or represented at that Board Meeting have waived compliance with the convening formalities in writing.

 

 

5.5

All Board Meetings shall be chaired by the CEO or, in his absence, by another Managing Director designated by the Managing Directors present at the relevant Board Meeting. The chairperson of the Board Meeting shall appoint a secretary to prepare the minutes of the proceedings at such Board Meeting. The secretary does not necessarily need to be a Managing Director.

 

5.6

Minutes of the proceedings at a Board Meeting shall be sufficient evidence thereof and of the observance (or waiver) of all necessary formalities, provided that such minutes are certified by a Managing Director.

 

5.7

Without prejudice to Article 5.10, each Managing Director may cast one vote in the decision-making of the Management Board. Invalid votes, blank votes and abstentions shall not be counted as votes cast.

 

5.8

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.

 

5.9

Resolutions of the Management Board shall be passed, irrespective of whether this occurs at a Board Meeting or otherwise, by Simple Majority, unless these rules provide differently.

 

5.10

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.

 

5.11

Resolutions of the Management Board may, instead of at a Board 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 5.7 through 5.10 apply mutatis mutandis.

 

5.12

The Management Board may require that officers and external advisers of the Company attend Board Meetings.

 

5.13

The Management Board requires the approval of the Supervisory Board on the Supervisory Board reserved matters as described in Annex A.

 

CONFLICT OF INTERESTS

 

Article

6

 

6.1

A Managing Director shall promptly report any actual or potential Conflict of Interests in a transaction that is of material significance to the Company and/or such Managing Director to the chairperson of the Supervisory Board and to the other Managing Directors, providing all relevant information relating to such transaction, including the involvement of any Family Member.

 

6.2

The determination whether a Managing Director has a Conflict of Interests shall primarily be the responsibility of that Managing Director. However, in case of debate, that determination shall be made by the Supervisory Board without the Managing Director concerned being present.

 

 

6.3

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 Conflict of Interests. If, as a result thereof, no resolution can be passed by the Management Board, the resolution shall be passed by the Supervisory Board.

 

6.4

Transactions in respect of which a Managing Director has a Conflict of Interests shall be agreed on arms' length terms. Any such transactions where the Conflict of Interests is of material significance to the Company and/or to the Managing Director concerned shall be subject to the approval of the Supervisory Board.

 

6.5

In order to avoid potential Conflicts of Interests, or the appearance thereof, Managing Directors shall not:

 

a.

enter into competition with the Company;

 

b.

demand or accept substantial gifts from the Company for themselves or for their respective Family Members;

 

c.

provide unjustified advantages to third parties to the detriment of the Company;

 

d.

take advantage of business opportunities to which the Company would be entitled for themselves or for their respective Family Members.

 

6.6

The Company shall not grant its Managing Directors or their respective Family Members any personal loans, guarantees or similar financial arrangements.

 

OWNERSHIP OF AND TRADING IN FINANCIAL INSTRUMENTS

 

Article

7

 

The Managing Directors shall be subject to the Company's insider trading policy. In addition, each Managing Director shall practice great reticence:

 

a.

when trading in shares or other financial instruments issued by another listed company, if this could reasonably create the appearance of such Managing Director violating applicable insider trading and/or market manipulation prohibitions; and

 

b.

when trading in shares or other financial instruments issued by another listed company which is a direct competitor of the Company.

 

AMENDMENTS AND DEVIATIONS

 

Article

8

 

Pursuant to a resolution to that effect, the Management Board may, with the approval of the Supervisory Board, amend or supplement these rules and allow temporary deviations from these rules, subject to ongoing compliance with applicable law and stock exchange requirements.

 

 

GOVERNING LAW AND JURISDICTION

 

Article

9

 

These rules shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with these rules shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.

 

 

Annex A - Matters requiring Supervisory Board approval

 

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, of the Articles of Association, or 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 of the Articles of Association;

e.

the granting of an approval for the creation of a pledge as referred to in article 15.1 of the Articles of Association;

f.

the granting of an approval for a transfer as referred to in article 16.1 of the Articles of Association;

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 of the Articles of Association;

i.

the charging of amounts to be paid up on shares against the Company's reserves as described in article 38.3 of the Articles of Association;

j.

the making of an interim distribution; and

k.

entering into a transaction in respect of which a Managing Director or a Supervisory Director has a Conflict of Interests which is of material significance to the Company and/or to the Managing Director or Supervisory Director concerned;

 

 

l.

the entering into a transaction with a shareholder holding ten percent or more of the Company's issued share capital which is of material significance to the Company and/or to the shareholder concerned;

m.

the acceptance by a Managing Director of a position as supervisory director or non-executive director with another company or entity;

n.

the adoption of the Company's internal audit plan;

o.

the appointment or dismissal of the head of the Company's internal audit function (if and when established) or the Company's company secretary (if and when appointed); and

p.

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.

 

 

 

Exhibit 3.3

 

1

 

SUPERVISORY BOARD RULES

 

SONO GROUP N.V.

   

INTRODUCTION

 

Article

1

 

1.1

These rules govern the organisation, decision-making and other internal matters of the Supervisory Board. In performing their duties, the Supervisory Directors shall comply with these rules.

 

1.2

These rules shall be posted on the Website.

   

DEFINITIONS AND INTERPRETATION

 

Article

2

 

2.1

In these rules the following definitions shall apply:

 

Article	An article of these rules.
Articles of Association	The Company's articles of association.
Audit Committee	The Company's audit committee.
CEO	A chief executive officer of the Company.
Chairperson	The chairperson of the Supervisory Board.
Committee	The Audit Committee, the Compensation Committee, the Nomination and Corporate Governance Committee and such other committee as the Supervisory Board may establish from time to time.
Committee Charter	The charter of the relevant Committee.
Company	Sono Group N.V.
Company Secretary	The Company's company secretary.
Compensation Committee	The Company's compensation committee.
Conflict of Interests	A direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it.
Diversity Policy	The Company's diversity policy.
External Auditor	The auditor or audit firm within the meaning of Section 2:393 of the Dutch Civil Code, engaged to audit the Company's annual accounts and annual report, or the Company's independent outside audit firm for purposes of U.S. laws and regulations (including applicable NASDAQ and/or SEC requirements), as the context may require.

 

 

Family Member	A Supervisory Director's spouse, registered partner or other life companion, foster child or any relative or in-law up to the second degree.
General Meeting	The Company's general meeting.
Management Board	The Company's management board.
Managing Director	A member of the Management Board.
NASDAQ	The NASDAQ Stock Market.
Nomination and Corporate Governance Committee	The Company's nomination and corporate governance committee.
Profile	The Company's profile for the size, composition and independence of the Supervisory Board.
SEC	The U.S. Securities and Exchange Commission.
Simple Majority	More than half of the votes cast.
Supervisory Board	The Company's supervisory board.
Supervisory Board Meeting	A meeting of the Supervisory Board.
Supervisory Director	A member of the Supervisory Board.
Vice-Chairperson	The vice-chairperson of the Supervisory Board.
Website	The Company's website.

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.

   

COMPOSITION

 

Article

3

 

3.1

The size, composition and independence of the Supervisory Board shall be determined taking into consideration the provisions of the Diversity Policy and the Profile.

 

 

3.2

The Supervisory Directors shall be appointed, suspended and dismissed in accordance with the Articles of Association and applicable law.

 

3.3

A person may be appointed as Supervisory Director for a maximum of two consecutive terms of up to four years each and, subsequently, for a maximum of two consecutive terms of up to two years each.

 

3.4

The Supervisory Board shall elect a Supervisory Director to be the Chairperson and another Supervisory Director to be the Vice-Chairperson. The Supervisory Board may dismiss the Chairperson or the Vice-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 or Vice-Chairperson, as the case may be.

 

3.5

A Supervisory Director shall retire in the event of inadequate performance, structural incompatibility of interests, and in other instances where early retirement of the Supervisory Director is considered necessary by the Supervisory Board.

 

3.6

The Supervisory Board shall ensure that:

 

a.

the Company has a sound plan in place for the succession of Managing Directors and Supervisory Directors which is aimed at retaining the appropriate balance in the requisite expertise, experience and diversity on the Management Board and the Supervisory Board; and

 

b.

a retirement schedule is prepared in order to avoid, as much as possible and practicable, Supervisory Directors retiring simultaneously.

 

3.7

A Supervisory Director shall notify the Supervisory Board in advance of any other position he wishes to pursue.

   

DUTIES AND ORGANISATION

 

Article

4

 

4.1

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.

 

4.2

Without prejudice to any other provision of these rules or the Articles of Association, resolutions of the Management Board concerning matters described in Annex A shall be subject to the approval of the Supervisory Board.

 

4.3

The Supervisory Board may obtain information from officers and external advisers of the Company in order to perform their duties, and the Company shall facilitate this.

 

4.4

All Supervisory Directors shall follow an induction programme geared to their role, covering general financial, social and legal affairs, financial reporting by the Company, specific aspects that are unique to the Company and its business, the Company's corporate culture, the Company's relationship with employees and the responsibilities of a Supervisory Director under applicable law.

 

 

4.5

At least annually, the Supervisory Board shall evaluate - outside the presence of the Managing Directors - its own functioning, the functioning of the Management Board, the functioning of the Committees and the functioning of the individual Managing Directors and Supervisory Directors, shall discuss the conclusions of such evaluations, and shall identify aspects where the Supervisory Directors require further training or education. Each Supervisory Director may require that all Supervisory Directors be able to express their views confidentially during such evaluation. When performing the annual evaluation, the Supervisory Directors shall at least consider:

 

a.

the mutual interaction among the Management Board and the Supervisory Board;

 

b.

the mutual interaction among the Supervisory Board;

 

c.

lessons learned from recent events;

 

d.

how the values as established in article 4 of the Articles of Association have been pursued; and

 

e.

the desired profile, composition, competency and expertise of the Supervisory Board.

   

CHAIRPERSON, VICE-CHAIRPERSON AND COMPANY SECRETARY

 

Article

5

 

5.1

The Chairperson, in regular consultation with the CEOs, shall ensure that:

 

a.

the Supervisory Board has proper contact with the Management Board, the Company's employee representatives (if any) and the General Meeting;

 

b.

the Supervisory Board elects a Vice-Chairperson;

 

c.

there is sufficient time for deliberation and decision-making by the Supervisory Board;

 

d.

the Supervisory Directors receive all information that is necessary for the proper performance of their duties in a timely fashion;

 

e.

the Supervisory Board and the Committees function properly;

 

f.

the functioning of individual Managing Directors and Supervisory Directors is reviewed at least annually;

 

g.

the Supervisory Directors and Managing Directors follow their induction programme, as well as their education or training programme (if and when relevant);

 

 

h.

the Management Board performs activities in respect of corporate culture, in particular with regard to the values as established in article 4 of the Articles of Association;

 

i.

the Supervisory Board is responsive to signs of misconduct or irregularities from the Company's business and ensures that any material misconduct and irregularities, or suspicions thereof, are reported to the Supervisory Board without delay;

 

j.

the General Meeting proceeds in an orderly and efficient manner;

 

k.

effective communication with the Company's shareholders is assured; and

 

l.

the Supervisory Board shall be involved closely, and at an early stage, in any acquisition, merger or takeover process involving the Company.

 

5.2

If the Chairperson is absent or incapacitated, he may be replaced temporarily by the Vice-Chairperson.

 

5.3

The Chairperson shall act on behalf of the Supervisory Board as the primary contact for Managing Directors, Supervisory Directors and shareholders regarding the functioning of Managing Directors and Supervisory Directors, except for the Chairperson himself/herself. The Vice-Chairperson shall fulfil such role regarding the functioning of the Chairperson.

 

5.4

The Supervisory Board may be supported by the Company Secretary. The Company Secretary may be appointed and dismissed by the Management Board, subject to the prior approval of the Supervisory Board.

   

DECISION-MAKING

 

Article

6

 

6.1

The Supervisory Board shall meet as often as any Supervisory Director deems necessary or appropriate.

 

6.2

Supervisory Directors are expected to attend Supervisory Board Meetings and the meetings of the Committees of which they are members. If a Supervisory Director is frequently absent at such meetings, he shall be held accountable by the Supervisory Board.

 

6.3

A Supervisory Board Meeting may be convened by, or at the request of, any Supervisory Director by means of a written notice sent to all Supervisory Directors. Notice of a Supervisory Board Meeting shall include the date, time, place and agenda for that Supervisory Board Meeting. Supervisory Board Meetings can be held through audio- and video-communication facilities.

 

6.4

All Supervisory Directors shall be given reasonable notice of at least five days for all Supervisory Board Meetings, unless a shorter notice is required to avoid a delay which could reasonably be expected to have an adverse effect on the Company and/or the business connected with it.

 

 

6.5

If a Supervisory Board Meeting has not been duly convened, resolutions may nevertheless be passed at that Supervisory Board Meeting if all Supervisory Directors not present or represented at that Supervisory Board Meeting have waived compliance with the convening formalities in writing.

 

6.6

All Supervisory Board Meetings shall be chaired by the Chairperson or, in his/her absence, by the Vice-Chairperson or, in his/her absence, by another Supervisory Director designated by the Supervisory Directors present at the relevant Supervisory Board Meeting. The chairperson of the Supervisory Board Meeting shall appoint a secretary to prepare the minutes of the proceedings at such Supervisory Board Meeting. The secretary does not necessarily need to be a Supervisory Director.

 

6.7

Minutes of the proceedings at a Supervisory Board Meeting shall be sufficient evidence thereof and of the observance (or waiver) of all necessary formalities, provided that such minutes are certified by any two Supervisory Directors.

 

6.8

Without prejudice to Article 6.11, each Supervisory Director may cast one vote in the decision-making of the Supervisory Board. Invalid votes, blank votes and abstentions shall not be counted as votes cast.

 

6.9

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.

 

6.10

Resolutions of the Supervisory Board shall be passed, irrespective of whether this occurs at a Supervisory Board Meeting or otherwise, by Simple Majority, unless these rules provide differently.

 

6.11

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.

 

6.12

Resolutions of the Supervisory Board may, instead of at a Supervisory Board 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 6.8 through 6.11 apply mutatis mutandis.

 

6.13

The Supervisory Board may require that officers and external advisers of the Company attend Supervisory Board Meetings. In particular, the Supervisory Board shall request the External Auditor to attend the Supervisory Board Meeting where the External Auditor's audit report regarding the Company's financial statements is discussed.

   

CONFLICT OF INTERESTS

 

Article

7

 

7.1

A Supervisory Director shall promptly report any actual or potential Conflict of Interests in a transaction that is of material significance to the Company and/or such Supervisory Director to the other Supervisory Directors, providing all relevant information relating to such transaction, including the involvement of any Family Member.

 

 

7.2

The determination whether a Supervisory Director has a Conflict of Interests shall primarily be the responsibility of that Supervisory Director. However, in case of debate, that determination shall be made by the Supervisory Board without the Supervisory Director concerned being present.

 

7.3

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 Conflict of Interests. 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.

 

7.4

Transactions in respect of which a Supervisory Director has a Conflict of Interests shall be agreed on arms' length terms. Any such transactions where the Conflict of Interests is of material significance to the Company and/or to the Supervisory Director concerned shall be subject to the approval of the Supervisory Board.

 

7.5

In order to avoid potential Conflicts of Interests, or the appearance thereof, Supervisory Directors shall not:

 

a.

enter into competition with the Company;

 

b.

demand or accept substantial gifts from the Company for themselves or for their respective Family Members;

 

c.

provide unjustified advantages to third parties to the detriment of the Company;

 

d.

take advantage of business opportunities to which the Company would be entitled for themselves or for their respective Family Members.

 

7.6

The Supervisory Board shall deal with any actual or potential Conflict of Interests in a transaction that is of material significance to the Company and/or a Managing Director in accordance with the provisions included in the rules governing the organisation, decision-making and other internal matters of the Management Board.

 

7.7

The Company shall not grant its Supervisory Directors or their respective Family Members any personal loans, guarantees or similar financial arrangements.

   

OWNERSHIP OF AND TRADING IN FINANCIAL INSTRUMENTS

 

Article

8

 

8.1

The Supervisory Directors shall be subject to the Company's insider trading policy. In addition, each Supervisory Director shall practice great reticence:

 

a.

when trading in shares or other financial instruments issued by another listed company, if this could reasonably create the appearance of such Supervisory Director violating applicable insider trading and/or market manipulation prohibitions; and

  

b.

when trading in shares or other financial instruments issued by another listed company which is a direct competitor of the Company.

  

8.2

Any ordinary shares in the Company's capital held by a Supervisory Director are expected to be long-term investments.

   

 

COMMITTEES

 

Article

9

 

9.1

Each Committee shall be subject to this Article 9 and its respective Committee Charter.

 

9.2

Unless the relevant Committee Charter provides differently, Article 6 applies mutatis mutandis to the decision-making of each Committee, provided that references to the Chairperson should be interpreted as being references to the chairperson of the relevant Committee.

 

9.3

The Supervisory Board shall regularly review and discuss the reports received from the respective Committees.

   

AMENDMENTS AND DEVIATIONS

 

Article

10

 

Pursuant to a resolution to that effect, the Supervisory Board may amend or supplement these rules and allow temporary deviations from these rules, subject to ongoing compliance with applicable law and stock exchange requirements.

   

GOVERNING LAW AND JURISDICTION

 

Article

11

 

These rules shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with these rules shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.

 

  

Annex A - Matters requiring Supervisory Board approval

   

Resolutions of the Management Board concerning the following matters shall be subject to the approval of the Supervisory Board:

   

a.

the making of proposals to the General Meeting which are subject to the Supervisory Board's approval pursuant to the Articles of Association;

 

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 of the Articles of Association;

 

e.

the granting of an approval for the creation of a pledge as referred to in article 15.1 of the Articles of Association;

 

f.

the granting of an approval for a transfer as referred to in article 16.1 of the Articles of Association;

 

g.

the drawing up or amendment of the internal rules of the Management Board;

 

h.

the performance of legal acts as referred to in Section 2:94(1) of the Dutch Civil Code;

 

i.

a material change to the identity or the character of the Company or the business, including in any event:

 

i.

transferring the business or materially all of the business to a third party;

 

ii.

entering into or terminating a long-lasting alliance of the Company or of a subsidiary of the Company 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

 

iii.

acquiring or disposing of an interest in the capital of a company by the Company or by a subsidiary of the Company 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;

 

j.

the charging of amounts to be paid up on shares in the Company's capital against the Company's reserves as described in article 38.3 of the Articles of Association;

 

k.

the making of an interim distribution;

 

l.

entering into a transaction in respect of which a Managing Director or a Supervisory Director has a Conflict of Interests which is of material significance to the Company and/or to the Managing Director or Supervisory Director concerned;

 

 

m.

entering into a transaction with a shareholder holding ten percent or more of the Company's issued share capital which is of material significance to the Company and/or to the shareholder concerned;

 

n.

the acceptance by a Managing Director of a position as supervisory director or non-executive director with another company or entity;

 

o.

the adoption of the Company's internal audit plan;

 

p.

the appointment or dismissal of the head of the Company's internal audit function (if and when established) or the Company Secretary (if and when appointed); and

 

q.

such other matters as the Supervisory Board shall have specified in a resolution to that effect and notified to the Management Board.

 

 

 

Exhibit 4.1

 

FORM OF REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of ____, 2021, by and among Sono Group N.V., a Dutch public limited liability company (“Company”), Sono Motors GmbH, a German private limited liability company (“Guarantor”) and each of the parties listed as Investors on the Schedule attached hereto (each, an “Investor” and collectively, the “Investors”).

 

WHEREAS, the Company is in the process of preparing the serial production of a solar and battery powered e-mobility vehicle. In order to finance completion of the development and start of production, the Company intends to raise additional equity in an IPO (as defined below). In order to allow for the implementation of its business plan until the date of the envisaged IPO, the Company secured liquidity in several financing transactions, amongst others, the issuance of Notes (as defined below);

 

WHEREAS, in December 2020, the Company issued senior unsecured notes in the aggregate principal amount of €6.8 million divided into notes with a principal amount of €100,000 (the “Principal Amount”) each (the “Notes” and each a “Note”) guaranteed by the Guarantor and convertible upon certain events into new ordinary shares in the capital of the Company (the “Settlement Shares”) in accordance with the terms and conditions of the Notes;

 

WHEREAS, a potential conversion of the Notes shall require a private deed of issue of the Settlement Shares to be executed on or about the closing date of the an initial public offering of the Company (the “IPO”);

 

WHEREAS, the Company sold under several subscription agreements between the Company, the Guarantor and the relevant Investor (the “Subscription Agreements”) 68 Notes in a principal amount of €100,000 per Note, i.e. with an aggregate principal amount of €6.8 million, to the Investors at a price equal to 100 per cent. of the Principal Amount; and

 

WHEREAS, pursuant to the Subscription Agreements, the Investors may demand registration of the Settlement Shares and the parties hereof seek to restate the corresponding rights and obligations thereof.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.             DEFINITIONS. The following capitalized terms used herein have the following meanings:

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

 

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

 

 

“Material Adverse Effect” means a material adverse change, or any development reasonably likely to involve a material adverse change, in the condition, financial, operational, legal or otherwise, or in the business affairs or prospects of the Guarantor or its subsidiaries, whether or not arising in the ordinary course of business, or any development reasonably likely to result in an adverse effect on the Guarantor’s ability to perform its obligations under this Agreement.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

2.             REGISTRATION RIGHTS.

 

(1)

Demand Registration.

 

(a)

If the Company receives, upon the expiration of six months after the effective date of an IPO conducted on a U.S. stock exchange and where a class of the Company’s equity securities are registered with the Securities and Exchange Commission (“SEC”) (“US IPO”), a written request demand for registration under the Securities Act from one or more Investors holding Settlement Shares (the “Registrable Securities”) representing at least 10 per cent. of the Settlement Shares then outstanding, then the Company shall, within 10 days after the receipt thereof, give a written notice of such request to all Investors and shall, if Investors holding at least 25 per cent of the Registrable Securities elect to participate in such registration, subject to the limitations of Section 2(1)(b), use its best efforts to effect as soon as reasonably and commercially practicable, the registration under the Securities Act of all Registrable Securities which the Investors request to be registered within 20 days after notice is provided by the Company. Registrations under this Section 2(1) shall be on such appropriate registration form of the SEC or other governmental entity as shall be selected by the Company and shall permit the disposition of such Registrable Securities in accordance with the intended method or methods of disposition specified in the request for such registration.

 

(b)

If the Investors initiating the registration request under this Section 2(1) (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2(1) and the Company shall include such information in the written notice referred to in Section 2(1)(a). The underwriter will be selected by the majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Investor to include its Registrable Securities in such registration shall be conditioned upon such Investor’s participation in such underwriting and the inclusion of such Investor’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Investor) to the extent provided herein. All Investors proposing to distribute their Registrable Securities through such underwriting shall (together with the Company as provided in Section 2(4)(e) hereto) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(1), if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Company shall so advise all Investors of the Registrable Securities which would otherwise be underwritten pursuant hereto, and the amount of Registrable Securities that may be included in the underwriting shall be allocated among all Investors thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities held by each Investor; provided, however, that in each case the amount of Registrable Securities to be included in such underwriting shall not be reduced unless all securities other than Registrable Securities are first entirely excluded from the underwriting; and provided, further, that if the reduction reduces the total amount of Registrable Securities included in such underwriting to less than 40 per cent. of the Registrable Securities initially requested for registration by the Initiating Holders, such offering shall not be counted as a registration for the purpose of subsection (d)(i) below.

 

 

(c)

Notwithstanding the foregoing, if the Company furnishes to the Initiating Holders a certificate signed by the two or more members of the management board stating that in the good faith judgment of the management board, it would be materially detrimental to the Company and its shareholders for such registration statement to either be filed, become effective or remain effective because such action would involve Company prematurely disclosing information which the Company has a bona fide business purpose for preserving as confidential and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking such action until the earlier of (x) the date that is sixty (60) days after the request of the Initiating Holders is given, (y) the filing of a Form 6-K or publication or a press release including material information that the Company has a bona fide business purpose for preserving as confidential and not disclosing prematurely and (z) the cessation of consideration of a transaction that would materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving the Company which was the reason for the Company exercising this right; provided, however, that the Company may not utilize this right more than once in any twelve month period.

 

(d)

In addition to and without prejudice to Section 2(4) hereto, the Company shall not be obligated to effect, or take any action to effect, any registration pursuant to this Section 2(1):

 

(i)

after the Company has effected six registrations pursuant to this Section 2(1) and such registrations (x) have been declared or ordered effective, or (y) have been closed or withdrawn at the request of the Initiating Holders (other than as a result of a Material Adverse Effect);

 

(ii)

during the period commencing on the date 45 days prior to the date of filing (as estimated by the Company in good faith) of, and ending on the date 120 days after the effective date of, a registration subject to Section 2(2) hereto (other than a registration relating solely to the sale of securities to participants in a Company share plan, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities or an SEC Rule 145 transaction); provided that the Company uses its reasonable best efforts to cause such registration statement under Section 2(2) hereto to become effective; or

 

(iii)

if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form F-3 or Form S-3 (or any successor form that provides for short-form registration), as the case may be and the Company is complying with Section 2(3).

 

 

(2)

Company Registration. If (but without any obligation to do so) the Company proposes to register (including, for this purpose, a registration effected by the Company for shareholders other than the Investors) any of its securities under the Securities Act (or such applicable securities laws, as the case may be), in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company share plan, an offering or sale of securities pursuant to a registration statement on Form F-4 or Form S-4 (or any successor form), as the case may be, a registration of securities in a transaction under Rule 145 promulgated under the Securities Act, or in any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), the Company shall, at such time and promptly (or as soon as is reasonably and legally practicable) give each Investor that holds Registrable Securities a written notice of such registration. Upon the written request of any Investor who confirms to the Company that its rights under Section 2 have not lapsed pursuant to Section 2(11) given within 10 days after mailing of such notice by the Company, the Company shall, subject to the provisions of Section 2(7) hereto, cause to be registered under the Securities Act the Registrable Securities that each such Investor has requested to be registered. For the avoidance of doubt, registration pursuant to this Section 2(2) shall not be deemed to be a demand registration as described in Section 2(1) above. There shall be no limit on the number of times the Investors may request registration of Registrable Securities under this Section 2(2).

 

(3)

Form F-3 or S-3 Registration. In case the Company receives from Investors that hold at least 10 per cent. of the Registrable Securities then outstanding, a written request or requests that the Company effect a registration on Form F-3 or Form S-3, as the case may be, and any related qualification or compliance with respect to all or a part of the Registrable Securities held by such Investors, as the case may be, the Company shall:

 

(a)

promptly give a written notice of the proposed registration, and any related qualification or compliance, to all other Investors; and

 

(b)

if Investors holding at least 25 per cent of the Registrable Securities elect to participate in such registration, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Investors’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Investors joining in such request as are specified in a written request given within 5 days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 2(3):

 

 

(i)

if Form F-3 or Form S-3, as the case may be, is not available for such offering by the Investor(s);

 

(ii)

if the Investor(s), together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate offering price to the public (before any underwriters’ discounts or commissions) of less than US$5,000,000; or

 

(iii)

if the Company furnishes to the Investor(s) a certificate signed by the two or more members of the management board of the Company stating that, in the good faith judgment of the management board, it would be materially detrimental to the Company and its shareholders for such registration on Form F-3 or Form S-3 (as the case may be) to be effected at such times for such registration statement to either be filed, become effective or remain effective because such action would involve Company prematurely disclosing information which the Company has a bona fide business purpose for preserving as confidential, the Company shall have the right to defer the filing of the registration statement on Form F-3 or Form S-3 (as the case may be) until the earlier of (x) the date that is sixty (60) days after receipt of the request of the Investors under this Section 2(3), (y) the filing of a Form 6-K or publication of a press release including material information that the Company has a bona fide business purpose for preserving as confidential and not disclosing prematurely and (z) the cessation of consideration of a transaction that would materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving the Company which was the reason for the Company exercising this right; provided, however, that the Company shall not utilize this right more than once in any twelve month period.

 

(c)

Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Investors. Registrations effected pursuant to this Section 2(3) shall not be counted as demands for registration or registrations effected pursuant to Sections 2(1) or 2(2) hereto.

 

(4)

Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

 

(a)

prepare and file with the SEC (or such other governmental authorities, as the case may be) a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective, and, upon the request of the Investors that hold of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to 150 days;

 

(b)

prepare and file with the SEC (or such other governmental authorities, as the case may be) such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act (or such other applicable securities laws, as the case may be) with respect to the disposition of all securities covered by such registration statement for up to 150 days;

 

 

(c)

furnish to the Investors such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act (or such other applicable securities laws, as the case may be), and such other documents as they may reasonably request in order to facilitate the disposition of the Registrable Securities held by them;

 

(d)

use its reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as may be reasonably requested by the Investors;

 

(e)

in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering including participation by the Company's management in a customary management and documentary due diligence process and the procurement by the Company of customary comfort letters, legal opinions and negative assurance letters from the Company's auditor and counsel; and each Investor participating in such underwriting shall also enter into and perform its obligations under such agreement;

 

(f)

notify each Investor covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act (or such other applicable securities laws, as the case may be) of the occurrence of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances then existing, not misleading; such obligation shall continue until the earlier of (i) the sale of all Registrable Securities registered pursuant to the registration statement of which such prospectus forms a part, or (ii) withdrawal of such registration statement;

 

(g)

use its commercially reasonable efforts to cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange on which similar securities issued by the Company are then listed; and

 

(h)

provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case no later than the effective date of such registration.

 

 

(5)

Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Investor that such Investor shall upon request of the Company (i) if reasonably necessary to comply with legal obligations or the provision of confidential information by the Company enter into a customary confidentiality agreement with the Company and (ii) furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of such Investor’s Registrable Securities. The Company shall have no obligation with respect to any registration requested pursuant to Sections 2(1) and 2(3) hereto if, as a result of the application of the preceding sentence, the number of shares or the anticipated aggregate offering price of the Registrable Securities to be included in the registration fails to reach or exceed the number of shares or the anticipated aggregate offering price originally required to trigger the Company’s obligation to initiate such registration as specified in Sections 2(1)(a) or 2(3)(b)(ii) hereto, whichever is applicable.

 

(6)

Expenses of Registration.

 

(a)

Expenses of Demand Registration. All expenses (other than underwriting discounts and commissions and such underwriting expenses to be borne by the underwriters and stock transfer taxes or similar duties) incurred in connection with registrations, filings or qualifications pursuant to Section 2(1) hereto for each Investor (which right may be assigned as provided in Section 2(9) hereto), including all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of counsel for the selling Investors shall be borne by the Company.

 

(b)

Expenses of Company Registration. All expenses (other than underwriting discounts and commissions and such underwriting expenses to be borne by the underwriters) incurred in connection with registrations, filings or qualifications of Registrable Securities pursuant to Section 2(2) for each Investor (which right may be assigned as provided in Section 2(9) hereto), including all registration, filing, and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of counsel for the selling Investors shall be borne by the Company.

 

(c)

Expenses of Registration on Form F-3 or Form S-3. All expenses (other than underwriting discounts and commissions and such underwriting expenses to be borne by the underwriters) incurred in connection with registrations requested pursuant to Section 2(3) for each Investor (which right may be assigned as provided in Section 2(9) hereto), including all registration, filing, qualification, printers’ and legal and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of counsel for the selling Investors shall be borne by the Company.

 

 

(7)

Underwriting Requirements. If a registration statement for which the Company gives a notice pursuant to Section 2(2) is for an underwritten offering, then the Company shall so advise the Investors as part of such written notice. In such event, the right of any Investor to include its Registrable Securities in a registration pursuant to Section 2(2) shall be conditioned upon such Investor’s participation in such underwriting and the inclusion of such Investor’s Registrable Securities in the underwriting to the extent provided herein. All Investors proposing to distribute their Registrable Securities through such underwriting shall (together with the Company and the other holders of securities of the Company whose securities are to be included in such registration and underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriter(s) determine(s) in good faith that marketing factors require a limitation on the number of shares to be underwritten, then the managing underwriter(s) may exclude shares (including Registrable Securities) from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated (i) first, to the Company, (ii) second, to each of the Investors requesting inclusion of their Registrable Securities in such registration statement on a pro rata basis based upon the total number of Registrable Securities then held by each such Investor; provided, however, that no exclusion of such Investors’ Registrable Securities shall be made unless all other shareholders’ securities are first excluded; and provided, further, that in any underwriting that is not in connection with the Company’s IPO, the amount of Registrable Securities included in the offering shall not be reduced below 20 per cent. of the Registrable Securities requested to be included in such offering, and (iii) third, to the other shareholders. If any Investors disapproves of the terms of any such underwriting, such Investor may elect to withdraw therefrom by written notice to the Company and the underwriter(s) at least 30 days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Investor that is a venture capital fund, partnership or corporation, the affiliated venture capital funds, partners, retired partners and stockholders of such Investor, or the estates and family members of any such partners, stockholders and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Investor,” and any pro rata reduction with respect to such “Investor” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Investor,” as defined in this sentence.

  

(8)

Indemnification. In the event any Registrable Securities are included in a registration statement under this Section 2:

 

(a)

To the extent permitted by applicable laws, the Company will indemnify and hold harmless each Investor, any “underwriter” (as defined in the Securities Act) for such Investor and each person, if any, who controls such Investor or underwriter within the meaning of the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions, proceedings or settlements in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (each, a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained in such registration statement or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; and the Company will pay to each such Investor, underwriter or Controlling person, as incurred, any legal or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 2(8)(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable to any Investor, underwriter or controlling person for any such loss, claim, damage, liability, or action to the extent that it arises out of or results from a Violation which occurs solely as a result of any written information furnished expressly for use in connection with such registration by such Investor, underwriter or controlling person.

  

 

(b)

To the extent permitted by applicable laws, each selling Investor will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter, any other Investor selling securities in such registration statement and any controlling person of any such underwriter or other Investor, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or results from any Violation by such Investor, in each case to the extent (and only to the extent) that such Violation occurs solely as a result of any written information furnished by such Investor expressly for use in connection with such registration; and each such Investor will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this Section 2(8)(b), in connection with investigating, defending or settling any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 2(8)(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Investor (which consent shall not be unreasonably withheld); provided, further, that in no event shall any indemnity under this Section 2(8)(b) exceed the net proceeds from the offering actually received by such Investor.

 

(c)

Promptly after receipt by an indemnified party under this Section 2(8) of a notice of the commencement of any action (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 2(8), deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one (1) separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver a written notice to the indemnifying party within a reasonable time after the commencement of any such action, if actually and materially prejudicial to its ability to defend such action, shall relieve such indemnifying party from any liability to the indemnified party under this Section 2(8), but the omission to deliver a written notice to the indemnifying party will not relieve the indemnifying party from any liability that it may have to any indemnified party otherwise than under this Section 2(8). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.

 

 

(d)

If the indemnification provided for in this Section 2(8) is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations; provided, however, that in no event shall any contribution by an Investor under this Section 2(8)(d) exceed the net proceeds from the offering actually received by such Investor. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.

 

(e)

The obligations of the Company and Investors under this Section 2(8) shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 2.

 

(9)

Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned (but only with all related obligations) by an Investor with the consent of the Company (not to be unreasonably withheld). For the purposes of determining the amount of Registrable Securities held by a transferee or assignee, the holdings of transferees and assignees of a business entity who are Affiliates, retired Affiliates of such entity (including spouses and ancestors, lineal descendants and siblings of such Affiliates or Affiliates who acquire Registrable Securities by gift, will or intestate succession) shall be aggregated together and with the business entity; provided that all assignees and transferees who would not qualify individually for assignment of registration rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices or taking any action under this Section 2. “Affiliate” means an affiliate within the meaning of § 15 of the German Stock Corporation Act (Aktiengesetz).

 

 

(10)

Reports under the Exchange Act. With a view to making available to the Investors the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit an Investor to sell securities of the Company to the public pursuant to a registration on Form F-3 or Form S-3, as the case may be, or without registration, the Company agrees to:

 

(a)

make and keep public information available, as those terms are understood and defined in Rule 144, at all times after the effective date of the first registration statement filed by the Company for the offering of its securities to the general public so long as the Company remains subject to the periodic reporting requirements under Sections 13 or 15(d) of the Exchange Act;

 

(b)

file with the SEC (or such governing authorities, as applicable) in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, or other applicable securities regulations; and

 

(c)

furnish to any Investor, so long as accurate and so long as the Investor owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety days after the effective date of the first registration statement filed by the Company), the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form F-3 or Form S-3 (or any successor form that provides for short-form registration) (at any time after it so qualifies), as the case may be, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Investor of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form.

 

(11)

Termination of Registration Rights. No Investor shall be entitled to exercise any right provided for in this Section 2 after the earlier of (i) three (3) years following the consummation of an IPO by the Company, and (ii) such time as Rule 144 is available for the sale of all (and not less than all) of such Investor’s Settlement Shares (with all transfer restrictions and restrictive legends removed upon such sale) to the public during a ninety day period without registration.

 

3.                   MISCELLANEOUS.

 

(1)

Assignment. No Third-Party Beneficiaries. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto, other than as expressly set forth in Section 2.

 

 

(2)

Amendments and Modifications. Upon the written agreement of the Company, the Guarantor and the Investors holding at least a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that any amendment hereto or waiver hereof that adversely affects one Investor, solely in his, her or its capacity as a holder of Notes or Registrable Securities, in a manner that is materially different from the other Investors (solely in their capacities as holders of Notes or Registrable Securities) shall require the consent of the Investor so affected. No course of dealing between any Investor, the Company or the Guarantor and any other party hereto or any failure or delay on the part of an Investor, the Company or the Guarantor in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of such Investor, the Company or the Guarantor. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

  

(3)

Priority. Upon signing of this Agreement, the terms of this Agreement shall replace the provisions of the Subscription Agreement insofar as this Agreement provides differently, however, any other rights and claims under the Subscription Agreement remain unaffected.

 

(4)

Notices. All notices, demands, requests, consents, approvals or other communications (collectively, “Notices”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by facsimile or email, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given (i) on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile; provided that if such service or transmission is not on a Business Day or is after normal business hours, then such notice shall be deemed given on the next Business Day or (ii) one Business Day after being deposited with a reputable courier service with an order for next-day delivery, to the parties as follows:

 

If to the Company or the Guarantor:

 

Waldmeisterstrasse 76
Munich, 80935
Germany
Attn: ###
Email: ###

 

If to an Investor:

 

To the address set forth under such Investor’s signature to this Agreement.

 

(5)

Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.

 

(6)

Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.

 

 

(7)

Entire Agreement. Subject to Section 3(3), this Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.

 

(8)

Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.

 

	COMPANY:
	By:
	Name:
	Its:
	GUARANTOR:
	By:
	Name:
	Its:
	INVESTORS:
	By:
	Name:
	Its:

 

 

SCHEDULE

 

Investors

 

[to be inserted]

 

 

 

Exhibit 5.1

 

ATTORNEYS • CIVIL LAW NOTARIES • TAX ADVISERS
P.O. Box 7113 1007 JC Amsterdam Beethovenstraat 400 1082 PR Amsterdam T +31 20 71 71 000 F +31 20 71 71 111		Amsterdam, 8 November 2021.   To the Company

 

Ladies and Gentlemen:

 

We have acted as legal 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 the Reviewed Documents.

 

In rendering the opinions expressed in this opinion letter, we have reviewed and relied upon drafts of the Reviewed Documents and pdf copies or drafts, as the case may be, of the Corporate Documents and we have assumed that the Reviewed Documents shall be entered into for bona fide commercial reasons. 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 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 competition law, data protection law, tax law, securitization law or regulatory law. 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 Reviewed Documents or the Corporate Documents subsequent to the date of this opinion letter.

 

The opinions expressed in this opinion letter are to be construed and interpreted in accordance with Dutch 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.

 

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.

 

 

 

In this opinion letter, legal concepts are expressed in English terms. The Dutch legal 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 concepts described by the English terms.

 

For the purposes of this opinion letter, we have assumed that:

 

a.

drafts of documents reviewed by us will be signed in the form of those drafts, each copy of a document conforms to the original, each original is authentic, and each signature is the genuine signature of the individual purported to have placed that signature;

 

b.

if any signature under any document is an electronic signature (as opposed to a handwritten ("wet ink") signature) only, it is either a qualified electronic signature within the meaning of the eIDAS Regulation, or the method used for signing is otherwise sufficiently reliable;

 

c.

the Registration Statement has been declared effective by the SEC in the form reviewed by us;

 

d.

(i) no internal regulations (reglementen) have been adopted by any corporate body of the Company which would affect the validity of the resolutions recorded in the Resolutions and (ii) the Current Articles are the Articles of Association currently in force and the Revised Articles are the Articles of Association as they will be in force at each Relevant Moment;

 

e.

the resolutions recorded in the Resolutions are adopted and in full force and effect, any power of attorney granted for purposes of adopting any Resolutions was in full force and effect at the time of adoption of such Resolutions and authorized the attorney(s)-in-fact under such power of attorney to exercise voting rights with respect to such Resolutions, the factual statements made and the confirmations given in the Resolutions and each Deed of Issue are complete and correct at each Relevant Moment and the Resolutions correctly reflect the resolutions recorded therein;

 

 

f.

each Deed of Issue has been validly signed and executed on behalf of the Company;

 

g.

the Offering, to the extent made in the Netherlands, has been, is and will be made in conformity with the Prospectus Regulation and the rules promulgated thereunder;

 

h.

the Option (i) has been validly granted as a right to subscribe for Ordinary Shares (recht tot het nemen van aandelen), (ii) shall be in full force and effect upon being exercised and (iii) shall have been validly exercised in accordance with the terms of the Underwriting Agreement; and

 

i.

at each Relevant Moment, each of the assumptions made in this opinion letter will be correct in all aspects by reference to the facts and circumstances then existing.

 

Based upon and subject to the foregoing and subject to the qualifications set forth in this opinion letter and to any matters, documents or events not disclosed to us, we express the following opinions:

 

Corporate Status

 

1.

The Company has been duly incorporated as a besloten vennootschap met beperkte aansprakelijkheid and exists validly as a naamloze vennootschap.

 

Offer Shares and Option Shares

 

2.

Subject to receipt by the Company of payment in full for the Offer Shares and the Option Shares as provided for in the Reviewed Documents, and when issued and accepted in accordance with the Resolutions and the Reviewed Documents, the Offer Shares and the Option Shares shall be validly issued, fully paid and non-assessable.

 

The opinions expressed above are subject to the following qualifications:

 

A.

Opinion 1 must not be read to imply that the Company cannot be dissolved (ontbonden). A company such as the Company may be dissolved, inter alia by the competent court at the request of the company's board of directors, any interested party (belanghebbende) or the public prosecution office in certain circumstances, such as when there are certain defects in the incorporation of the company. Any such dissolution will not have retro-active effect.

 

 

B.

Pursuant to Section 2:7 DCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings (curator) if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation (wist of zonder eigen onderzoek moest weten). The Dutch Supreme Court (Hoge Raad der Nederlanden) has ruled that in determining whether the objects of a legal entity are transgressed, not only the description of the objects in that legal entity's articles of association (statuten) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity were served by the transaction. Based on the objects clause contained in the Current Articles and in the Revised Articles, we have no reason to believe that, by entering into the Reviewed Documents, the Company would transgress the description of the objects contained in its Articles of Association. However, we cannot assess whether there are other relevant circumstances that must be taken into account, in particular whether the interests of the Company are served by entering into the Reviewed Documents since this is a matter of fact.

 

C.

Pursuant to Section 2:98c DCC, a naamloze vennootschap may grant loans (leningen verstrekken) only in accordance with the restrictions set out in Section 2:98c DCC, and may not provide security (zekerheid stellen), give a price guarantee (koersgarantie geven) or otherwise bind itself, whether jointly and severally or otherwise with or for third parties (zich op andere wijze sterk maken of zich hoofdelijk of anderszins naast of voor anderen verbinden) with a view to (met het oog op) the subscription or acquisition by third parties of shares in its share capital or depository receipts. This prohibition also applies to its subsidiaries (dochtervennootschappen). It is generally assumed that a transaction entered into in violation of Section 2:98c DCC is null and void (nietig). Based on the content of the Reviewed Documents, we have no reason to believe that the Company or its subsidiaries will violate Section 2:98c DCC in connection with the issue of the Offer Shares or the Option Shares. However, we cannot confirm this definitively, since the determination of whether a company (or a subsidiary) has provided security, has given a price guarantee or has otherwise bound itself, with a view to the subscription or acquisition by third parties of shares in its share capital or depository receipts, as described above, is a matter of fact.

 

D.

The opinions expressed in this opinion letter may be limited or affected by:

 

a.

rules relating to Insolvency Proceedings or similar proceedings under a foreign law and other rules affecting creditors' rights generally;

 

 

b.

the provisions of fraudulent preference and fraudulent conveyance (Actio Pauliana) and similar rights available in other jurisdictions to insolvency practitioners and insolvency office holders in bankruptcy proceedings or creditors;

 

c.

claims based on tort (onrechtmatige daad);

 

d.

sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Sanctions Act 1977 (Sanctiewet 1977) or other legislation;

 

e.

the Anti-Boycott Regulation, Anti Money Laundering Laws and related legislation;

 

f.

any intervention, recovery or resolution measure by any regulatory or other authority or governmental body in relation to financial enterprises or their affiliated entities; and

 

g.

the rules of force majeure (niet toerekenbare tekortkoming), reasonableness and fairness (redelijkheid en billijkheid), suspension (opschorting), dissolution (ontbinding), unforeseen circumstances (onvoorziene omstandigheden) and vitiated consent (i.e., duress (bedreiging), fraud (bedrog), abuse of circumstances (misbruik van omstandigheden) and error (dwaling)) or a difference of intention (wil) and declaration (verklaring).

 

E.

The term "non-assessable" has no equivalent in the Dutch language and for purposes of this opinion letter such term should be interpreted to mean that a holder of an Ordinary Share shall not by reason of merely being such a holder be subject to assessment or calls by the Company or its creditors for further payment on such Ordinary Share.

 

F.

This opinion letter does not purport to express any opinion or view on the operational rules and procedures of any clearing or settlement system or agency.

 

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.

 

 

EXHIBIT A

 

LIST OF DEFINITIONS

 

"Anti Money Laundering Laws"	The European Anti-Money Laundering Directives, as implemented in the Netherlands in the Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme) and the Dutch Criminal Code (Wetboek van Strafrecht).
"Anti-Boycott Regulation"	The Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.
"Articles of Association"	The Company's articles of association (statuten) as they read from time to time.
"Bankruptcy Code"	The Dutch Bankrupcty Code (Faillissementswet).
"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.
"Corporate Documents"	The Deed of Incorporation, the Deed of Conversion and the Current Articles.
"Current Articles"	The Articles of Association as they read immediately after the execution of the Deed of Conversion.
"DCC"	The Dutch Civil Code (Burgerlijk Wetboek).
"Deed and Amendment"	The draft deed of amendment to the Articles of Association prepared by us with reference number 82044245 M 33132151.

 

 

"Deed of Conversion"	the deed of conversion and amendment to the articles of association (akte van omzetting en statutenwijziging) of the Company dated 27 November 2020
"Deed of Incorporation"	The deed of incorporation (akte van oprichting) of the Company, dated 23 October 2020.
"Deed of Issue"	The draft deed of issue of the Offer Shares or Option Shares, as the case may be, prepared by us with references 82044245 M 30382403 and 82044245 M 30382402, respectively.
"eIDAS Regulation"	Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
"General Meeting"	The Company's general meeting (algemene vergadering).
"Insolvency Proceedings"	Any insolvency proceedings within the meaning of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings listed in Annex A thereto and any statutory proceedings for the restructuring of debts (akkoordprocedure) pursuant to the Bankruptcy Code.
"Management Board"	The Company's management board (bestuur).
"NautaDutilh"	NautaDutilh N.V.
"the Netherlands"	The European territory of the Kingdom of the Netherlands.
"Offer Shares"	10,000,000 Ordinary Shares.
"Offering"	The offering of the Offer Shares and, if any, the Option Shares as contemplated by the Registration Statement.

 

 

"Option"	The option to acquire Option Shares to be granted to the Underwriters pursuant to the Underwriting Agreement and the Resolutions.
"Option Shares"	Up to 1,500,000 Ordinary Shares or such lesser number of Ordinary Shares in respect of which the Option is exercised.
"Ordinary Shares"	Ordinary shares in the Company's capital, with a nominal value of EUR 0.06 each.
"Prospectus Regulation"	Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
"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.
"Relevant Moment"	Each time when Offer Shares or Option Shares are issued pursuant to the execution of a Deed of Issue.
"Resolutions"	Each of the following:   a.     the written resolutions of the Management Board, dated September 17, 2021 and the draft written resolutions of the Management Board prepared by us with reference 82044245 M 30382418, once duly completed and signed;   b.     the draft written resolutions of the Supervisory Board, prepared by us with reference 82044245 M 30382427, once duly completed and signed;   c.     the minutes, convening notice, agenda and explanatory notes of the General Meeting, held on November 3, 2021; and   d.     the draft written resolution of the Pricing Committee, prepared by us with reference 82044245 M 33206542, once duly completed and signed.

 

 

"Reviewed Documents"	Each Deed of Issue and the Underwriting Agreement.
"Revised Articles"	The Articles of Association as they will read immediately after the execution of the Deed of Amendment.
"SEC"	The United States Securities and Exchange Commission.
"Supervisory Board"	The Company's supervisory board (raad van commissarissen).
"Underwriters"	The Underwriters, as defined in the Underwriting Agreement.
"Underwriting Agreement"	The draft underwriting agreement to be entered into between the Company and the Underwriters in connection with the Offering, in the form reviewed by NautaDutilh.

 

 

Exhibit 8.2

 

[Letterhead of Sullivan & Cromwell LLP]

 

November 8, 2021

 

Sono Group N.V.,
            Waldmeisterstraße 76,
                         80935 Munich, Germany.

 

Ladies and Gentlemen:

 

We have acted as your tax counsel in connection with the registration statement on Form F-1 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) on the date hereof.

 

We hereby confirm to you that, insofar as it relates to matters of United States federal income tax law, the discussion under the caption “U.S. Federal Income Tax Considerations” in the prospectus included in the Registration Statement, subject to the qualifications, exceptions, assumptions and limitations contained herein and therein, is our opinion.

 

We hereby consent to the filing of this opinion with the SEC as Exhibit 8 to the Registration Statement. In giving this consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC thereunder.

 

	Very truly yours,
	/s/ Sullivan & Cromwell LLP
	Sullivan & Cromwell LLP

 

 

Exhibit 8.3

 

[Letterhead of Ebner Stolz Mönning Bachem Wirtschaftsprüfer Steuerberater Rechtsanwälte Partnerschaft mbB]

 

November 8, 2021

 

Sono Group N.V.,
           Waldmeisterstraße 76,
                        80935 Munich, Germany.

 

Ladies and Gentlemen:

 

We have acted as your German tax advisor in connection with the registration statement on Form F-1 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) on the date hereof.

 

This opinion is limited to German tax law in effect on the date of this opinion. This opinion (including all terms used in it) is to be construed in accordance with German tax law.

 

For the purpose of this opinion, we have examined the Registration Statement which we determined to be the only document relevant to rendering this opinion, while relying upon the accuracy of the factual statements therein.

 

For the purpose of this opinion, we have made the following assumptions:

 

	•	The Registration Statement has been or will be filed with the SEC in the form referred to in this opinion.

	•	The effective place of management of the Issuer is located in Munich, Germany.

•

The factual statements in the Registration Statement are true and correct in all respects.

 

We hereby confirm to you that, insofar as it relates to matters of German tax law, the discussion under the caption “Material German Tax Considerations” in the prospectus included in the Registration Statement, subject to the qualifications, exceptions, assumptions and limitations contained herein and therein, is our opinion.

 

-2-

 

We hereby consent to the filing of this opinion with the SEC as Exhibit 8 to the Registration Statement. In giving this consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC thereunder.

 

	Very truly yours,
	/s/ Ebner Stolz Mönning Bachem Wirtschaftsprüfer Steuerberater Rechtsanwälte Partnerschaft mbB
	Ebner Stolz Mönning Bachem Wirtschaftsprüfer Steuerberater Rechtsanwälte Partnerschaft mbB

 

 

 

 

Exhibit 14.1

 

1

 

CODE OF BUSINESS CONDUCT AND ETHICS

 

SONO GROUP N.V.

 

INTRODUCTION

 

Article

1

 

1.1

This document sets out the Company's code of business conduct and ethics, consisting of the principal business, ethical, moral and legal standards which the Company Group and all Employees and Officers are expected to observe.

 

1.2

According to the Company's articles of association, 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. These core values are pursued throughout the Company Group.

 

1.3

This policy shall be posted on the Website.

 

DEFINITIONS AND INTERPRETATION

 

Article

2

 

2.1

In this policy the following definitions shall apply:

 

Alleged Irregularity	An irregularity of a general, operational or financial nature which is detected, or is suspected on reasonable grounds, within the Company's organisation, including the imminent or actual:   a.       performance of criminal acts, such as fraud, bribery or corruption;   b.       violation of applicable laws and regulations;   c.       violation of ethical or professional standards, including the standards set out in this policy;   d.       endangerment of public health and human rights, safety or the environment;   e.       suppression, destruction, withholding or manipulation of information on the irregularity concerned.
Article	An article of this policy.
CEO	A chief executive officer of the Company.

 

 

Chairperson	The chairperson of the Supervisory Board.
Company	Sono Group N.V.
Company Group	The Company and its Subsidiaries collectively or, where the context so requires, any of them individually.
Compliance Officer	The Company's compliance officer.
Employee	An employee of the Company Group.
Government Official	Any individual who:   a.          recently held, holds or can reasonably be expected to soon hold a legislative, political or judicial position of any kind, in each case regardless of rank; or   b.          is an employee or officer of an organisation or entity which is controlled, directly or indirectly, by a government or any constituency of a government.
Management Board	The Company's management board.
Managing Director	A member of the Management Board.
Officer	A Managing Director, a Supervisory Director, a (managing) director or supervisory director of any Subsidiary, or any other officer of the Company Group who is not an Employee.
Subsidiary	A subsidiary of the Company within the meaning of Section 2:24a of the Dutch Civil Code.
Supervisory Board	The Company's supervisory board.
Supervisory Director	A member of the Supervisory Board.
Website	The Company's website.
Whistleblower	A person reporting an Alleged Irregularity as described in Article 17.

 

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 any other gender.

 

2.5

Except as otherwise required by law, the terms "written" and "in writing" include the use of electronic means of communication.

 

 

GENERAL PRINCIPLES

 

Article

3

 

3.1

The Company Group is committed to conduct its business in accordance with the highest business, ethical, moral and legal standards, in good faith, with due care and in the best interests of the Company Group, its businesses and its stakeholders.

 

3.2

This policy is not intended to be exhaustive and cannot address every possible situation that may arise, but the Company Group and each Employee and Officer is expected to act at all times to uphold the letter and spirit of this policy, with honesty, integrity and fairness.

 

3.3

The Company Group shall comply with the laws and regulations of all applicable jurisdictions. Each Employee and Officer is expected to familiarise himself with these laws and regulations, to the extent relevant and appropriate in relation to the performance of his activities for the Company Group.

 

3.4

Compliance with this policy is not only the responsibility of the Company Group, but also of each Employee and Officer, and each of them is expected to actively support the values and principles set out herein.

 

3.5

It is the responsibility of all Employees and Officers to regularly review and refresh their knowledge and understanding of this policy. Employees and Officers may be asked to sign a written acknowledgement of their understanding of, and agreement to abide by, this policy.

 

3.6

Failure to observe this policy may not only result in legal difficulties for the Company Group, but could also give rise to legal and/or disciplinary action against the Employee or Officer concerned, including dismissal. Depending on the nature of the non-compliance, failure to observe this policy may be reported to the appropriate authorities.

 

3.7

If an Employee or Officer has any questions concerning the application or interpretation of this policy, he should seek the advice of his direct supervisor, who may consult with the Company's Compliance Officer when appropriate.

 

FAIR DEALING, DISCRIMINATION AND HARASSMENT

 

Article

4

 

4.1

Employees and Officers are expected to deal fairly and respectfully with the Company Group's customers, suppliers, other business partners, competitors, and with each other.

 

4.2

The Company Group is committed to the principles of non-discrimination, respect for human rights and individual freedoms. Harassment, which includes unwanted sexual advances, subtle or overt pressure for sexual favours, badgering, innuendos and offensive propositions, are not tolerated.

 

 

4.3

Employees and Officers:

 

a.

shall maintain a work environment where personal dignity of the individual is respected;

 

b.

shall not discriminate or harass on the basis of age, disability, family status, race, gender, culture, appearance, national origin, ethnic origin, social origin, religious belief, sexual preference or on the basis of any other personal characteristics;

 

c.

shall not engage in coercion or intimidation in the workplace; and

 

d.

shall not knowingly work with companies or organisations that use forced or child labour or violate general human rights and shall also be mindful of the social context in which it operates and not take advantage of social conditions, such as poverty, to achieve unfair competitive advantage.

 

WORKPLACE HEALTH AND SAFETY

 

Article

5

 

5.1

The Company Group is committed to protect and promote the health, safety and security of its Employees and Officers.

 

5.2

Without prejudice to any requirements under applicable laws and regulations, Employees and Officers shall endeavour to participate in health and safety training activities to the extent relevant and appropriate in relation to the performance of their activities for the Company Group.

 

5.3

If an Employee or Officer becomes aware of a health or safety incident, or reasonably suspects a health and safety risk, he shall report this promptly to his direct supervisor, who shall consult with the appropriate level of management.

 

5.4

It is forbidden to illegally possess or consume drugs while working on Company Group premises or otherwise conducting Company Group business. Employees and Officers may not be impaired by drugs or alcohol at work.

 

ENVIRONMENT

 

Article

6

 

6.1

It's one of the highest principles of the Company Group to protect the environment by preventing and minimising, to the extent somehow possible and practicable, the environmental impact of its activities and products through appropriate design, manufacturing, distribution and disposal practices. The Company Group is committed to avoid and mitigate negative environmental impact, every decision should consider the assessment of environmental impacts.

 

6.2

The Company Group also expects all Employees and Officers to take individual responsibility in protecting the environment while performing their activities for the Company Group.

 

 

6.3

If an Employee or Officer becomes aware of, or reasonably suspects, any violation of environmental law, or the taking of any action that is aimed at concealing such a violation, he shall promptly report the matter to his direct supervisor, who shall consult with the appropriate level of management and/or, if required, the Company's legal department. If such direct supervisor is the culprit (or alleged culprit) of the violation or concealment concerned, the Employee or Officer may report the matter directly to the appropriate level of management.

 

COMPETITION AND ANTITRUST MATTERS

 

Article

7

 

7.1

Many jurisdictions have competition and antitrust laws and regulations which are designed to ensure that competition is fair and honest. Such laws and regulations typically prohibit agreements and actions among competitors that affect competitive conditions of trade and other practices that restrict fair and honest competition.

 

7.2

To support fair and honest competition, Employees and Officers:

 

a.

shall not knowingly enter into an agreement or tacit understanding with competitors of the Company Group which would illegally restrict fair and honest competition;

 

b.

shall practice great reticence when discussing competitive issues relating to the Company Group's businesses (including the Company Group's strategies and the identity of its customers, suppliers and other business partners), except to the extent that such information is publicly available other than through improper disclosure;

 

c.

shall limit communications, when participating in joint ventures and industry associations involving competitors, to communications required for conducting business;

 

d.

shall not knowingly use market power or market information in a way that may restrict fair and honest competition; and

 

e.

shall not engage in unfair or deceptive acts or practices.

  

BRIBERY AND MONEY LAUNDERING

 

Article

8

 

8.1

Employees and Officers shall not participate in any form of illegal bribery or money laundering.

 

8.2

Employees and Officers are expected not to offer, promise, give or accept any item with economic value (including financial and non-financial advantages, promotional premiums and discounts, gifts, travel, meals, entertainment, favours or services) to or from any individual outside the Company Group, including in particular any Government Official or any family member of a Government Official, with the intention of illegally influencing such individual such that the Employee or Officer concerned may obtain or retain a personal opportunity or advantage or a business opportunity or advantage for the Company Group. Employees and Officers should also be aware of, and abide by, the provisions of the Company's anti-corruption policy.

 

 

RECORD KEEPING

 

Article

9

 

9.1

Employees and Officers shall ensure that all books, records and data carriers of the Company Group are retained, presented and disposed of in accordance with applicable laws and regulations. Employees and Officers shall never falsify, alter, destroy or conceal any such books, records or data carriers in order to impair the integrity or availability thereof in an illegal manner.

 

9.2

Financial transactions carried out by the Company Group shall be recorded properly, accurately and fairly, in the correct accounts and within the relevant accounting period, all with due observance of applicable laws, regulations and accounting policies.

 

CONFIDENTIAL INFORMATION

 

Article

10

 

10.1

Confidential information relating to the Company Group shall not be used for personal gain or for purposes other than performing activities for the Company Group as an Employee or Officer.

 

10.2

To protect confidential information relating to the Company Group, Employees and Officers:

 

a.

shall not discuss confidential information in places where it is likely to be overheard by someone outside the Company Group;

 

b.

shall strictly limit conversations involving confidential information to business settings;

 

c.

shall not disclose or use confidential information for personal gain;

 

d.

shall not leave papers or other data carriers containing confidential information in public places or in places where such information might be read or discovered by someone outside the Company Group; and

 

e.

shall exert their best efforts to avoid inadvertent disclosure of confidential information.

 

10.3

Employees and Officers shall promptly inform the Company's legal department upon becoming aware that confidential information relating to the Company Group has been wrongly obtained by someone outside the Company Group, or if such information has been misplaced, mishandled or improperly disclosed.

 

 

10.4

For purposes of this Article 10, "confidential information" includes non-public information that, if improperly disclosed, could be useful to competitors of and/or harmful to the Company Group, its business partners, suppliers, clients or other stakeholders, or that is material to a reasonable investor's decision to buy or sell the Company's securities or securities of its business partners. For example, non-public information relating to the Company Group which includes or describes earnings, forecasts, business plans and strategies, significant restructurings, potential acquisitions, licensing agreement terms, formulas, pricing, patient data, client or sales information, research, new product development, undisclosed marketing and promotional activity, intellectual property development, significant management changes, auditor reports, and events regarding the Company's securities would generally all qualify as "confidential information".

  

COMPANY GROUP PROPERTY AND RESOURCES

 

Article

11

 

11.1

Employees and Officers shall take appropriate measures to ensure the efficient and legitimate use of property and resources of the Company Group.

 

11.2

Employees and Officers shall promptly report to their direct supervisor any misuse of Company Group property or resources.

 

11.3

Without proper authorisation from their direct supervisor, Employees and Officers shall not:

 

a.

obtain, use or divert property or resources of the Company Group for personal gain; or

 

b.

materially alter, remove or destroy property or resources of the Company Group or use services provided by the Company Group, except in the ordinary course of performing activities for the Company Group.

 

11.4

Company Group property also includes intangible assets such as intellectual property. Company Group intellectual property may also include Employee and Officer work product. Employees and Officers should promptly disclose any invention related to the Company Group's business, so that it may receive the same protection as other intellectual property of the Company Group.

 

COMPUTER, E-MAIL AND INTERNET USAGE

 

Article

12

 

12.1

Computers, laptops, handheld devices, e-mail and internet access are provided by the Company Group primarily for business use. All Employees and Officers should use the same care, caution and etiquette in sending an e-mail (or when making use of other electronic means of communication) as they would in corresponding in paper form.

 

 

12.2

Employees and Officers shall not download any data at work that is unprofessional or inappropriate for use or viewing in a business context.

 

12.3

An Employee or Officer shall promptly report to his direct supervisor any situation in which data relating to the Company Group has been compromised or when such Employee or Officer suspects or becomes aware of any breach of data relating to the Company Group, including the loss or theft of a computer, laptop or handheld device.

 

12.4

Employees and Officers should always secure their computers and laptops provided by the Company Group and handle in accordance with the Company's IT policy. Employees and Officers are strongly discouraged to write down these passwords and should not, under any circumstance, give their password to others (including to other Employees or Officers). At work, screens of computers and laptops must be locked when an Employee or Officer leaves his desk.

  

CORPORATE OPPORTUNITIES

 

Article

13

 

13.1

Employees and Officers are expected to advance the Company Group's legitimate business interests.

 

13.2

An Employee or Officer shall not:

 

a.

enter into competition with the Company Group;

 

b.

provide unjustified advantages to third parties to the detriment of the Company Group; or

 

c.

take advantage of business opportunities available to the Company Group for himself or for his spouse, registered partner or other life companion, foster child or any relative by blood or marriage up to the second degree.

 

GOVERNMENT RELATIONS AND POLITICAL AFFAIRS

 

Article

14

 

14.1

When dealing with the government or Government Officials in performing activities for the Company Group, Employees and Officers shall conduct themselves according to the highest business, ethical, moral and legal standards. Employees and Officers should also be aware of, and abide by, the provisions of the Company's anti-corruption policy.

 

14.2

Without prejudice to Article 14.3, the Company Group shall practice great reticence when considering to make contributions to political parties or candidates at any level of government, regardless of local laws and regulations.

 

14.3

From time to time, issues of significant importance to the financial and business well-being of the Company Group may arise in a political context. The Company Group may participate in such political processes in order to advance its legitimate business interests, including through lobbying, publication of its views in the media and supporting interested organisations.

 

 

INTERNATIONAL BUSINESS PRACTICES

 

Article

15

 

15.1

The Company Group:

 

a.

shall not expand its business into a new foreign country without discussing it with the appropriate level of management and, if required, the Company's legal department;

 

b.

shall be particularly sensitive to dealings with countries that are involved in conflicts or subject to international sanctions;

 

c.

when involved in exports, shall observe all laws, regulations and international trade agreements that govern the shipment of the Company Group's products and services to the importing country and vice versa; and

 

d.

shall consult with the Company's legal department when appropriate for specific guidelines for conducting international business.

 

15.2

Employees and Officers shall apply the Company Group's business, ethical, moral and legal standards when conducting business in foreign countries, even if culture or common practice might indicate that contradicting or lesser standards of conduct are acceptable.

 

MEDIA AND OTHER COMMUNICATIONS

 

Article

16

 

16.1

The Company Group will disclose information to the public only through specific channels. Unless an Employee or Officer has received proper authorisation to speak on behalf of the Company Group by the appropriate level of management, an Employee or Officer should decline to comment in response to any media requesting information about matters relating to the Company Group, regardless of whether the request is made off the record, for background, or confidentially.

 

16.2

Employees and Officers are expected to conduct themselves in a manner that reflects positively on the Company Group. When expressing personal views in any media, including television, radio, chat rooms, forums, social media platforms and other electronic media, it should be clear that such statements are personal and do not represent the Company Group's point of view.

 

 

16.3

The Company Group considers the following types of advertisements immoral:

 

a.

False or Misleading Information − Any advertisement by the Company Group must not contain any sort of claim, which is false, deceptive, or ambiguous to public.

 

b.

Inaccurate Testimonials − When a person gives his or her opinion or talks about his or her experiences regarding any product/service, he or she must not give fake information.

 

c.

Provoking Statements − Any sort of statement, insulting phrase or immoral comparison must not be part of any advertisement by the Company Group. This includes derogatory phrase or disrespectful comments regarding a race, nationality, profession, cast, sex, social background, age, religion or culture.

 

d.

Offensive Materials − All material used in an advertisement by the Company Group must be decent for the general public. No material may be used in any such advertisement which is offensive, obscene, or indecent.

 

WHISTLEBLOWERS POLICY

 

Article

17

 

17.1

Current and former Employees and Officers may report Alleged Irregularities to the Compliance Officer.

 

17.2

Alleged Irregularities concerning the functioning of:

 

a.

the Compliance Officer may be reported to any Managing Director;

 

b.

a Managing Director or a Supervisory Director who is not the Chairperson may be reported to the Chairperson; and

 

c.

the Chairperson may be reported to a CEO.

 

17.3

Alleged Irregularities shall be reported in writing or in person. Anyone reporting an Alleged Irregularity should provide as much relevant and concrete information as possible in order for the Alleged Irregularity to be investigated properly. Each reported Alleged Irregularity shall be treated seriously.

 

17.4

Each Whistleblower has the right, and shall be given the opportunity by the Company Group, to consult with an independent confidential counsellor concerning the Alleged Irregularity reported by such Whistleblower. Such counsellor shall be designated by the Compliance Officer.

 

17.5

To the extent that the Dutch Act on the Whistleblowers' Institute (Wet Huis voor Klokkenluiders) is applicable in relation to the Company Group, a Whistleblower may also turn to the Whistleblowers' Institute (Huis voor klokkenluiders), subject to and in accordance with the provisions of such Act, in order to report an Alleged Irregularity.

 

 

17.6

The Company Group shall treat and safeguard as private and confidential the identity of each Whistleblower, as well as any Alleged Irregularity reported by such Whistleblower. Such information shall not be disclosed by the Company Group, unless:

 

a.

with the consent of the Whistleblower concerned;

 

b.

this is required under applicable laws or regulations, Stock Exchange requirements and/or by any competent authority; or

 

c.

it concerns a disclosure to the professional advisors of the Company Group or of the Whistleblower concerned, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose.

 

17.7

The Company Group shall not take disciplinary action or other adverse employment action against a Whistleblower in retaliation for properly reporting Alleged Irregularities in good faith, or for providing truthful information in good faith in connection with any investigation, inquiry, hearing or legal proceedings involving Alleged Irregularities. However, a Whistleblower who knowingly reports Alleged Irregularities in a manner which is not truthful and in good faith, or does so in a reckless or frivolous manner, may be subject to legal and/or disciplinary action, including dismissal.

 

INSIDER TRADING

 

Article

18

 

The applicable restrictions and prohibitions on market abuse, including concerning the unlawful use and disclosure of inside information, tipping and market manipulation, are specific and complex. Employees and Officers should refer to the Company's insider trading policy, which contains detailed rules on the possession of, and conducting and effecting transactions in, the Company's shares and certain other financial instruments.

  

DISPENSATION

 

Article

19

 

19.1

At the request of an Employee or Officer, the Compliance Officer may grant a dispensation from certain provisions of this policy, but only in exceptional circumstances, after consultation with the appropriate level of management and the Company's legal department, and provided that no dispensation can be granted for matters which follow from mandatory provisions of applicable laws and regulations.

 

19.2

When considering a request for dispensation, the Compliance Officer shall practice great reticence if the matter concerned has the potential of damaging or violating the spirit of the Company Group's business, ethical, moral and legal standards as set out in this policy.

 

19.3

A request for dispensation shall be made in writing and shall be supported by reasons. Any dispensation granted by the Compliance Officer shall be granted in writing and shall be signed by the Compliance Officer and at least one Managing Director. Any dispensation granted, if required, shall be publicly disclosed by the Company in accordance with applicable law and stock exchange requirements.

 

19.4

If and when a dispensation is granted for a specific matter, this does not automatically entitle other Employees or Officers to receive dispensation for that same matter, or for similar matters. Any Employee or Officer who receives a dispensation, shall not automatically be entitled to any renewal, revision or extension of such dispensation.

 

 

AMENDMENTS AND DEVIATIONS

 

Article

20

 

Pursuant to a resolution to that effect, the Management Board may, with the approval of the Supervisory Board, amend or supplement this policy and, without prejudice to Article 19, allow temporary deviations from this policy, subject to ongoing compliance with applicable law and stock exchange requirements.

 

GOVERNING LAW AND JURISDICTION

 

Article

21

 

This policy shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with this policy shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.

 

 

 

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

November 8, 2021

 

PricewaterhouseCoopers GmbH

Wirtschaftsprüfungsgesellschaft

 

/s/ Alexander Fiedler		/s/ Sylvia Eichler
Alexander Fiedler		Sylvia Eichler
Wirtschaftsprüfer		Wirtschaftsprüferin
(German Public Auditor)		(German Public Auditor)

 

 

 

Exhibit 99.1

Consent of Director Nominee

 

Sono Group N.V. is filing a Registration Statement on Form F-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the initial public offering of its common shares. In connection therewith, I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the management board of Sono Group N.V. in the Registration Statement, as may be amended from time to time. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

/s/ Thomas Hausch
Name: Thomas Hausch
Date: November 8, 2021

 

 

 

 

 

Exhibit 99.2

Consent of Director Nominee

 

Sono Group N.V. is filing a Registration Statement on Form F-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the initial public offering of its common shares. In connection therewith, I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the management board of Sono Group N.V. in the Registration Statement, as may be amended from time to time. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

/s/ Markus Volmer
Name: Markus Volmer
Date: November 8, 2021