Form S-8 Spotify Technology S.A.
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E-mailAs filed with the United States Securities and Exchange Commission on April 28, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SPOTIFY TECHNOLOGY S.A.
(Exact Name of Registrant as Specified in its Charter)
| Grand Duchy of Luxembourg | 98-1097620 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
42-44, avenue de la Gare
L-1610 Luxembourg
Grand Duchy of Luxembourg
(Address, including zip code, of principal executive offices)
TERMS AND CONDITIONS GOVERNING DIRECTOR STOCK OPTIONS 2021/2026 IN SPOTIFY
TECHNOLOGY S.A.
TERMS AND CONDITIONS GOVERNING DIRECTOR RESTRICTED STOCK UNITS 2021/2026 IN
SPOTIFY TECHNOLOGY S.A.
(Full title of the plan)
Horacio Gutierrez
Head of Global Affairs and Chief Legal Officer
150 Greenwich Street, 63rd Floor
New York, NY 10007
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Marc. D. Jaffe
Gregory P. Rodgers
Benjamin J. Cohen
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
(212) 906-1200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share(3) |
Proposed Maximum Aggregate Offering Price(3) |
Amount of Registration Fee | ||||
| Ordinary Shares, nominal value of €0.000625 per share |
220,000(2) | $268.12 | $58,986,400 | $6,435.42 | ||||
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| (1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Ordinary Shares, nominal value of €0.000625 per share (“Ordinary Shares”), of Spotify Technology S.A. (the “Company”) that become issuable under the Terms and Conditions Governing Director Stock Options 2021/2026 in the Company along with the appendices thereto (the “2021 DSOP”) and the Terms and Conditions Governing Director Restricted Stock Units 2021/2026 in the Company along with the appendices thereto (the “2021 Director RSU Plan”), by reason of any share dividend, share split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding Ordinary Shares. |
| (2) | The 2021 DSOP and the 2021 Director RSU Plan collectively authorize the issuance of up to a maximum of 220,000 Ordinary Shares. Ordinary Shares available for grant or sale under each of the 2021 DSOP and the 2021 Director RSU Plan will be reduced by the net Ordinary Shares granted under any such plan. |
| (3) | Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act, solely for the purpose of calculating the registration fee, based on the average of the high and low sale prices per Ordinary Share as reported on the New York Stock Exchange on April 22, 2021. |
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
References in this Registration Statement to “we,” “us,” “our,” and the “Company,” or similar references, refer to Spotify Technology S.A., unless otherwise stated or the context otherwise requires.
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Company with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
(a) the Company’s Annual Report on Form 20-F for the year ended December 31, 2020, filed with the Commission on February 5, 2021 (File No. 001-38438); and
(b) the description of the Ordinary Shares contained in the Company’s Registration Statement on Form 8-A filed with the Commission on March 21, 2018 (File No. 001-38438), together with any amendment thereto filed with the Commission for the purpose of updating such description.
All reports and other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents or reports.
For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained therein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference, modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company’s articles of association provide that it will indemnify its directors and officers, past and present, to the fullest possible extent permitted under Luxembourg law, from and against all liability and expenses reasonably incurred or paid by him or her in connection with any claim, action, suit or proceeding in which he or she would be involved by virtue of his or her being or having been a director or officer and against amounts paid or incurred by him or her in the settlement thereof.
The Company will provide directors’ and officers’ liability insurance for its directors and officers against certain liabilities that they may incur in connection with their activities on behalf of the Company. The Company intends to expand its insurance coverage against such liabilities, including by providing for coverage against liabilities under the Securities Act.
However, no indemnification will be provided against any liability to the Company’s directors or officers (i) by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties of a director or officer, (ii) with respect to any matter as to which any director or officer shall have been finally adjudicated to have acted in bad faith and not in the interest of the Company, or (iii) in the event of a settlement, unless approved by a court of competent jurisdiction or the board of directors.
The rights to and obligations of indemnification among or between the Company and any of our current or former directors and officers are generally governed by the laws of Luxembourg and subject to the jurisdiction of the Luxembourg courts, unless such rights or obligations do not relate to or arise out of such persons’ capacities listed above. Although there is doubt as to whether U.S. courts would enforce this indemnification provision in an action brought in the United States under U.S. federal or state securities laws, this provision could make it more difficult to obtain judgments outside Luxembourg or from non-Luxembourg jurisdictions that would apply Luxembourg law against our assets in Luxembourg.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration Statement:
| * | Filed herewith. |
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to this Registration Statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
(b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on April 28, 2021.
| SPOTIFY TECHNOLOGY S.A. | ||
| By: |
/s/ Paul Vogel | |
| Paul Vogel | ||
| Chief Financial Officer | ||
Each person whose signature appears below constitutes and appoints Paul Vogel and Horacio Gutierrez, and each of them severally, his or her true and lawful attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign any amendments (including post-effective amendments) to this registration statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
Title |
Date | ||
| /s/ Daniel Ek Daniel Ek |
Chief Executive Officer, Chairman, and Director (Principal Executive Officer) |
April 28, 2021 | ||
| /s/ Paul Vogel Paul Vogel |
Chief Financial Officer (Principal Financial Officer) |
April 28, 2021 | ||
| /s/ Paul Sawyer |
Chief Accounting Officer (Principal Accounting Officer) |
April 28, 2021 | ||
| Paul Sawyer | ||||
| /s/ Martin Lorentzon Martin Lorentzon |
Director | April 28, 2021 | ||
| /s/ Christopher Marshall Christopher Marshall |
Director | April 28, 2021 | ||
| /s/ Barry McCarthy Barry McCarthy |
Director | April 28, 2021 | ||
| /s/ Shishir Mehrotra Shishir Mehrotra |
Director | April 28, 2021 | ||
| /s/ Heidi O’Neill Heidi O’Neill |
Director | April 28, 2021 | ||
| /s/ Ted Sarandos Ted Sarandos |
Director | April 28, 2021 | ||
| /s/ Thomas Staggs Thomas Staggs |
Director | April 28, 2021 | ||
| /s/ Cristina Stenbeck Cristina Stenbeck |
Director | April 28, 2021 | ||
| /s/ Mona Sutphen Mona Sutphen |
Director | April 28, 2021 | ||
| /s/ Padmasree Warrior Padmasree Warrior |
Director | April 28, 2021 | ||
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the registrant’s duly authorized representative has signed the registration statement on Form S-8, in the City of New York, State of New York, on April 28, 2021.
| By: | /s/ Horacio Gutierrez | |||
| Name: | Horacio Gutierrez | |||
| Title: | Authorized Representative in the United States |
Exhibit 5.1
| To the Board of Directors of Spotify Technology S.A. 42-44, avenue de la Gare, L-1610 Luxembourg Grand Duchy of Luxembourg | ||||||
| Luxembourg, 28 April 2021 | ||||||
| Your ref. | : / | |||||
| Our ref. | : 49797/ 33584696 | |||||
| Tel. : (352) 40 78 78-253 Fax : (352) 40 78 04-634 | ||||||
Spotify Technology S.A. – S-8 Registration Statement
Ladies and Gentlemen,
We are acting as Luxembourg counsel for Spotify Technology S.A., a Luxembourg société anonyme, having its registered office at 42-44, avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg, registered with the Registre de Commerce et des Sociétés de Luxembourg under number B 123.052, (the “Company”) in connection with the Company’s filing of a registration statement on Form S-8 with the U.S. Securities and Exchange Commission (the “Registration Statement”) relating to the registration of stock options and restricted stock units with respect to two hundred twenty thousand (220,000) ordinary shares, each with a nominal value of zero point zero zero zero six hundred twenty-five euro (€ 0.000625) per share (the “Plan Shares”) which may be issued or granted by the Company under the Director Equity Incentive Plans (as this term is defined below). The Plan Shares to be newly issued by the Company under the Director Equity Incentive Plans are hereinafter referred to as the “New Plan Shares” whereas the Plan Shares to be granted by the Company under the Director Equity Incentive Plans out of the treasury shares held by the Company as of the date of the present opinion are hereinafter referred to as the “Treasury Shares”.
| 1. | Scope |
In arriving to the opinions expressed below, we have examined and relied on the documents identified in Appendix A hereto as well as on such corporate records as have been disclosed to us and such certifications made to us, which we deemed necessary and appropriate as a basis for the opinions hereinafter expressed.
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| 2. | Assumptions |
We have assumed for the purposes hereof that the Company will at all times continue to have a sufficient authorised unissued share capital and sufficient authorised unissued ordinary shares with the relevant waivers in force, to issue the New Plan Shares to be issued under the Director Equity Incentive Plans. We have also assumed that the Company will at all times continue to have sufficient Treasury Shares to grant the Treasury Shares to be granted under the Director Equity Incentive Plans. We have further assumed that the board of directors of the Company or its duly authorised delegates will duly pass the relevant resolutions for the issue and/or grant of the Plan Shares in accordance with the Restated Articles of Association, the terms of the Director Equity Incentive Plans and applicable law.
For the purposes of the present opinion we have further assumed (i) the genuineness of all signatures and seals and that all documents reviewed are duly signed by the persons purported to have signed them; (ii) the completeness and conformity to originals of all documents supplied to us as certified, photostatic, scanned, electronically transmitted copies or other copies of the documents reviewed and the authenticity of the originals of such documents and the conformity to originals of the latest drafts reviewed by us; (iii) that there have been no amendments to the documents in the form delivered to us for the purposes of this opinion; (iv) that there is no other resolutions, decisions, agreement or undertaking and no other arrangement (whether legally binding or not) which renders any of the documents or information reviewed or provided to us inaccurate, incomplete or misleading or which affects the conclusions stated in this opinion and that the documents reviewed accurately record the whole of the terms agreed between the parties thereto relevant to this opinion; (v) that no proceedings have been instituted or injunction granted against the Company to restrain it from performing any of its obligations under the Director Equity Incentive Plans and/or issue or grant the Plan Shares; (vi) that the terms used in the documents reviewed carry the meaning ascribed to them in vernacular English; (vii) that the terms governing the Director Equity Incentive Plans are legal, valid and binding under their respective applicable laws; (viii) that the corporate bodies of the Company have approved the terms of the Director Equity Incentive Plans, pursuant to which the Plan Shares will be issued and/or granted, in accordance with applicable laws; (ix) that upon issue of any New Plan Shares the Company will receive payment in cash of an issue price at least equal to the nominal value thereof; (x) that the New Plan Shares will be issued within the limits of the authorized share capital of the Company; (xi) that there will be no amendments to the authorised share capital of the Company which would adversely affect the issue of the New Plan Shares and the conclusions stated in this opinion; (xii) that upon issue of any Treasury Shares the Company received payment in cash of an issue price at least equal to the nominal value thereof or that the relevant Treasury Shares were issued by way of incorporation of available reserves into the share capital; (xiii) that the Treasury Shares have been legally acquired by the Company; (xiv) that all representations made by the Company as to matters of fact in the Certificate are correct, complete and up-to-date at the date of the Certificate and are still correct, complete and up-to-date as of the date hereof and (xv) that the head office (administration centrale), the place of effective management (siège de direction effective), and, for the purposes of the regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), the center of main interests (centre des intérêts principaux) of the Company are located at the place of its registered office (siège statutaire) in Luxembourg.
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We express no opinion as to any laws other than the laws of the Grand Duchy of Luxembourg and this opinion is to be construed under Luxembourg law and is subject to the exclusive jurisdiction of the courts of Luxembourg.
The opinions expressed herein are subject to all limitations by reason of gestion contrôlée, concordat, faillite, bankruptcy, moratorium (sursis de paiement) and other, insolvency, moratorium, controlled management, general settlement with creditors, reorganisation or similar laws affecting creditors’ rights generally.
| 3. | Opinion |
Based on the foregoing, and having regard for such legal considerations as we have deemed relevant, we are of the opinion that:
| 3.1. | The New Plan Shares, once subscribed, fully paid-up and issued under the Authorized Share Capital and in accordance with the Restated Articles of Association and the Director Equity Incentive Plans, will be validly issued, fully paid and non-assessable (within the meaning that the holder of such shares shall not be liable, solely because of his or her or its shareholder status, for additional payments to the Company or the Company’s creditors). |
| 3.2. | The Treasury Shares have been validly issued, fully paid up and are non-assessable. |
| 4. | Qualifications |
This opinion speaks as of the date hereof and is subject to all limitations by reason of national or foreign bankruptcy, insolvency, winding-up, liquidation, moratorium, controlled management, suspension of payment, voluntary arrangement with creditors, fraudulent conveyance, general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally. No obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof which affect the opinion in any respect.
This opinion is issued solely for the purposes of the filing of the Registration Statement and the issuance and/or grant of the Plan Shares by the Company. It may not be used, circulated, quoted, referred to or relied upon for any other purpose without our written consent in each instance. We hereby consent to filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended.
This Opinion is issued by and signed on behalf of Arendt & Medernach SA, admitted to practice in the Grand-Duchy of Luxembourg and registered on the list V of lawyers of the Luxembourg Bar.
[signature page follows]
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Yours faithfully,
By and on behalf of Arendt & Medernach SA
/s/ Guy Harles
Partner
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APPENDIX A – DOCUMENTS
| 1. | A copy of the updated articles of association of the Company as at 9 March 2021 (the “Restated Articles of Association”). |
| 2. | A scanned copy of the signed minutes of the meeting of the board of directors of the Company held on 4 February 2021 that, among others, approved the filing of the Registration Statement. |
| 3. | The signed minutes of the annual general meeting of shareholders of the Company held on 21 April 2021. |
| 4. | A copy of the Terms and Conditions Governing Director Stock Options 2021/2026 in the Company and to be filed as exhibit 99.1 to the Registration Statement (the “2021 DSOP”). |
| 5. | A copy of the Terms and Conditions Governing Director Restricted Stock Units 2021/2026 in the Company and to be filed as exhibit 99.2 to the Registration Statement (the “2021 Director RSU Plan” and together with the 2021 DSOP, the “Director Equity Incentive Plans”). |
| 6. | A scanned copy of a signed certificate dated 28 April 2021 and issued by an authorized officer of the Company, confirming, among others, the amount of options outstanding under each of the Director Equity Incentive Plans. |
| 7. | A copy of the certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 28 April 2021 and issued by the Luxembourg Trade and Companies’ Register in relation to the Company. |
| 8. | An excerpt dated 28 April 2021 in respect of the Company issued by the Luxembourg Trade and Companies’ Register. |
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Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Terms and Conditions Governing Director Stock Options 2021/2026 in Spotify Technology S.A., and the Terms and Conditions Governing Director Restricted Stock Units 2021/2026 in Spotify Technology S.A. of our reports dated February 5, 2021, with respect to the consolidated financial statements of Spotify Technology S.A., and the effectiveness of internal control over financial reporting of Spotify Technology S.A., included in its Annual Report (Form 20-F) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young AB
Stockholm, Sweden
April 28, 2021
Exhibit 99.1
TERMS AND CONDITIONS GOVERNING DIRECTOR STOCK OPTIONS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
| 1. | STOCK OPTION ISSUER AND RECIPIENT |
| 1.1 | Spotify Technology S.A., a Luxembourg société anonyme, with registered offices at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”). |
| 1.2 | Selected members of the Company’s board of directors (the “Board”) who have received an individual notice of grant (the “Directors”) (the “Notice”). |
| 2. | BACKGROUND |
| 2.1 | At the Board meeting held on 2 December 2020, it was resolved to propose to the general meeting of shareholders to approve a remuneration plan to the members of the Board. At the annual meeting of the Company’s shareholders held on 21 April 2021, the Company’s shareholders voted in favor of a resolution to approve a remuneration plan in the form of cash bonuses, warrants, stock options, restricted stock units or any other form to the Board. It was resolved to implement such resolution by granting Stock Options (as defined below) to the Directors in accordance with these Terms and Conditions. |
| 2.2 | A Director’s appointment as a director of the Company shall not give the Director any right or expectation to be granted Director Stock Options at any time under the Director Stock Option Program or otherwise. Moreover, the granting of a Stock Option under this director stock option program (the “Director Stock Option Program”) shall not give the Director any right or expectation to be granted additional Stock Options at any time under the Director Stock Option Program or otherwise. |
| 3. | OPTION; SHARES AVAILABLE |
Subject to the terms and conditions set out herein, the Director is entitled to delivery of one share in the Company (a “Share”) per stock option (a “Stock Option”) at the exercise price communicated to the Director (the “Exercise Price”). The Exercise Price may be re-calculated under certain circumstances pursuant to clause 8.
Subject to the provisions of clauses 8 and 9.3.3, the maximum aggregate number of Shares that may be subject to Stock Options under the Director Stock Option Program is 220,000 Shares. Shares available for grant under the Director Stock Option Program will be reduced by the net Shares granted under the Terms and Conditions Governing Director Restricted Stock Units 2021/2026 in the Company.
| 4. | IMPLEMENTATION AND GRANT |
| 4.1 | The Director Stock Option Program shall be effective as of 21 April 2020 (the “Implementation Date”). |
| 4.2 | Stock Options may be granted to Directors during the period as from and including 1 January 2021 up to and including 31 December 2021. The date or dates of grants of Stock Options during such period (each, a “Date of Grant”) shall be determined by the Board in its sole discretion. |
| 5. | VESTING |
| 5.1 | General |
Except as set forth in clause 9.1 below, vesting of the Director’s granted Stock Options shall occur on the dates set out in the Notice, subject to the Director’s continued mandate with the Company.
| 5.1.1 | Notwithstanding the aforesaid, the Board shall be entitled, in its sole discretion, to resolve that some or all unvested Stock Options shall vest in advance. |
| 5.2 | Termination of mandate |
| 5.2.1 | If (i) the Director resigns for any reason or (ii) the Company’s shareholders terminate the Director’s mandate with the Company for any reason (including, for the avoidance of doubt, as a result of the decision to not re-elect the Director as a member of the Board), all unvested Stock Options shall cease vesting as of the date of termination of the Director’s mandate in accordance with clause 5.2.2 and shall immediately lapse. |
| 5.2.2 | If the Director resigns, termination of his/her mandate for purposes of the Stock Options shall be deemed to occur immediately on the Company’s receipt of the Director’s written notice of resignation. If the Company’s shareholders terminate the Director’s mandate with the Company (including, for the avoidance of doubt, as a result of the decision to not re-elect the Director as a member of the Board), termination of his/her mandate for purposes of the Stock Options shall be deemed to occur immediately after the resolution to not re-elect or to discharge, as applicable, the Director is adopted at a general meeting of shareholders. Notwithstanding the foregoing in this clause 5.2.2 or in clause 5.2.1, the Board shall be entitled, in its sole discretion, to resolve that termination of the Director’s mandate shall be deemed to occur at a later point in time. |
| 5.2.3 | If a Director ceases to serve as a member of the Board, but is appointed as director of any company controlled by the Company (the “Group”), such change will not be deemed a termination of the mandate for purposes of his/her Stock Options, provided that there is no other interruption or termination between the termination of mandate as Director and the provision of such services, unless the Board, in its sole discretion, determines that the entity to which the Director transfers is not a qualified affiliate of the Group. |
| 6. | EXERCISE |
| 6.1 | General |
| 6.1.1 | The Director is entitled to exercise his/her rights under the Stock Options to the extent the Stock Options have vested pursuant to these terms and conditions by requesting exercise at any time up to and including the fifth anniversary of the Date of Grant in the manner set forth below (“Exercise”), provided such Stock Options have not previously lapsed. |
| 6.1.2 | In the event the Director has not requested Exercise on or before the fifth anniversary of the Date of Grant (such date, or an earlier date set for the expiration of the term of the Stock Options as provided for in clause 9, the “Expiration Date”), all rights under the Stock Options shall lapse. |
| 6.1.3 | Exercise may only be requested through an electronic platform where the Director will be able (i) to place requests on the said electronic platform in order to exercise some or all of her/his vested Stock Options (the “Exercise Request”) and (ii) carry out any actions required to settle the Director’s Payment Obligations (as defined in clause 7.1) . |
2(10)
| 6.1.4 | The Exercise Request placed by the Director must be placed not later than on the Expiration Date and state the number of Stock Options that the Director wishes to Exercise. An Exercise Request is binding and irrevocable. |
| 6.1.5 | If the Director’s Stock Options at Exercise entitle the Director to subscribe for a number of Shares which is not an integer, the number of Shares to which the entitlement relates shall be rounded down to the nearest integer. |
| 6.1.6 | Exercise may not take place in the event the Company is declared bankrupt. However, Exercise may take place in the event the bankruptcy order is subsequently overturned on appeal. |
| 6.1.7 | The Expiration Date and the periods during which Exercise can take place may be amended pursuant to this clause 6, clause 9, or by other express action of the Board as provided for in these terms and conditions. |
| 6.2 | Termination of mandate |
| 6.2.1 | If (i) the Director resigns for any reason or (ii) the Company’s shareholders terminate the Director’s mandate with the Company for any reason (including, for the avoidance of doubt, as a result of the decision to not re-elect the Director as a member of the Board), the new Expiration Date shall be the 90th calendar day following the termination of mandate (as determined pursuant to clause 5.2.2) or such later dates as determined by the Company (but in no event later than the fifth anniversary of the Date of Grant or such date as follows pursuant to clause 9). |
| 6.2.2 | In the event that the Director’s termination of mandate occurs due to death or physical disability, the new Expiration Date shall be the 194th calendar day following such event or such later dates as determined by the Board (but in no event later than the fifth anniversary of the Date of Grant or such date as follows pursuant to clause 9). The Director (or, in the event of the Director’s death, the Director’s estate (Sw. dödsbo)) shall up to and including the new Expiration Date be entitled to Exercise any Stock Options, which have vested in accordance with these terms and conditions as of such event. Following the new Expiration Date, the Director (or, in the event of the Director’s death, the Director’s estate) shall have no rights pursuant to the Stock Options and all rights under the Stock Options which have not been subject to Exercise shall lapse. In the event of the Director’s death, the rights and obligations in accordance with these terms and conditions shall be binding upon and inure to the Director’s estate. |
| 7. | PAYMENT AND DELIVERY OF SHARES |
| 7.1 | Payment of the Exercise Price and, to the extent applicable, any Withholding Obligation (as defined in clause 13.1 below) (Director’s obligation to pay the Exercise Price jointly with any such Withholding Obligation that the Board requires to be so settled, the “Director’s Payment Obligations”) shall, unless the Board determines otherwise, be satisfied by a “cash settlement” arrangement pursuant to which the Director’s Payment Obligations shall be satisfied with money that shall have been paid by the Director to the Director’s personal account on the electronic platform (“Cash Settlement”). |
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| 7.2 | To the extent the Board determines that Cash Settlement will not be used to satisfy a Director’s Payment Obligations, the Board may require the Director to satisfy such Director’s Payment Obligations by any other method or combination of methods determined in the Board’s sole discretion, including, without limitation, by |
(i) placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole Share) then being distributed in respect of vested Stock Options as are sufficient to satisfy such Director’s Payment Obligations. The net proceeds of such sale shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess proceeds resulting from rounding up to the nearest whole Share shall be deposited into the Director’s account on the electronic platform; or
(ii) a “net settlement” arrangement pursuant to which the Company will reduce the number of Shares deliverable to the Director upon vesting or settlement by the minimum number of Shares (rounded up to the nearest whole Share, without any consideration to the Director for such rounding) as are sufficient to satisfy Director’s Payment Obligations.
| 7.3 | If the Company receives a valid Exercise Request and all actions required by the Director to settle the Director’s Payment Obligation have been completed, the Company shall deliver Shares to the Director within 10 days on which banks are open for business generally (and not for internet banking only) in Luxembourg and the U.S (a “Business Day”) (less any Shares reduced or sold pursuant to this clause 7). |
| 7.4 | As a condition to the exercise of a Stock Option, the Director shall make such arrangements as the Board may require for the satisfaction of any Director’s Payment Obligations that may arise in relation to the Stock Options. |
| 8. | RE-CALCULATION OF EXERCISE PRICE ETC. |
| 8.1 | The Exercise Price and the number of Shares to which each Stock Option entitles the Director to subscribe for shall be re-calculated in the event that there are changes in the Company’s share capital by way of a bonus issue of shares, share split, reverse share split, or a reduction of the share capital (a “Re-calculation Event”), in order not to affect the value of the Stock Options. The re-calculation shall be carried out by the Board in accordance with the following formula: |
| n4 = n3 × | ( | n1 + n2 | ) | |||
| n1 |
where:
n1 = number of shares issued in the Company prior to the Re-calculation Event
n2 = number of shares issued/reduced in the Re-calculation Event
n3 = number of Shares which each Stock Option entitled the Director to subscribe for immediately prior to the Re-calculation Event
n4 = number of Shares that each Stock Option gives the right to subscribe for after the Re-calculation Event
Consequently, the Exercise Price for the Stock Option shall be re-calculated in accordance with the following formula:
|
p2 = p1 ×
|
( | n1 | ) | |||
| n1 + n2 |
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where (in addition to the above definitions):
p1 = Exercise Price per Share prior to the Re-calculation Event
p2 = Exercise Price per Share after the Re-calculation Event
| 8.2 | In the event that a Re-calculation Event would lead to an Exercise Price after the Re-calculation Event which is less than the par value of the Company’s shares, the Exercise Price at Exercise shall instead equal the par value of the Company’s shares. |
| 9. | AMENDMENT OF VESTING SCHEDULE AND EXPIRATION DATE ETC. |
| 9.1 | Change in Control |
| 9.1.1 | Notwithstanding clause 5, in the event of a Change in Control the Board shall decide to set a period during which the Director may request Exercise (an “Exercise Period”) and, if determined by the Board, a new Expiration Date, in accordance with the provisions of clause 9.1.2. |
| 9.1.2 | The Board shall, immediately prior to closing of such Change in Control (“Closing”), notify the Director of the Exercise Period and, if the Board so decides, the new Expiration Date. All of the Director’s unvested Stock Options shall vest immediately prior to Closing, subject to the Director’s continued mandate as director of the Company immediately prior to Closing. The Board’s notice will set forth the Exercise Period, which shall, to the extent possible taking into account the circumstances and process related to the Change in Control, give the Director reasonable time to decide whether to Exercise any vested Stock Options. The Director shall during the Exercise Period be entitled to Exercise any Stock Options which have vested in accordance with these terms and conditions. The Board shall be entitled, in its sole discretion, to decide whether any vested Stock Options which have not been subject to Exercise during an Exercise Period shall be subject to a new Expiration Date and therefore lapse, or whether the vested Stock Options will be exercisable following the expiration of an Exercise Period. If the Board decides to establish a new Expiration Date so that any vested but unexercised Stock Options shall lapse, the Director shall have no further rights pursuant to the Stock Options. If no Closing takes place, Shares underlying Stock Options will not be issued under this clause 9.1.2, any cash payment made by the Director will be returned and these terms and conditions will remain unaffected. |
| 9.1.3 | If permitted by applicable law, the Board may, instead of allowing the Director to acquire Shares in accordance with clause 9.1.2, in its sole discretion, cause the cancellation of any vested Stock Options outstanding immediately prior to Closing, in whole or in part, in exchange for a payment to the Director, in such form as determined by the Board, provided that the Board shall ensure that the tax treatment and economic returns of the Director is not affected adversely compared to the procedure described in clause 9.1.2 and may provide that any such payment to the Director shall be subject to the same conditions as are imposed on holders of the Shares in the Change in Control (e.g., an earn out or escrow) as well as to the satisfaction of any Director’s Payment Obligations. |
| 9.1.3.1 | “Change in Control” shall mean and include each of the following: |
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company
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possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y) any acquisition which complies with clauses 9.1.3.1(iii)(I)-(III); or (z) in respect of an Stock Option held by a particular Director, any acquisition by the Director or any group of persons including the Director (or any entity controlled by the Director or any group of persons including the Director);
(ii) the Incumbent Directors cease for any reason to constitute a majority of the Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (I) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (II) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (II) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; and (III) after which at least a majority of the members of the board of directors (or the analogous governing body) of the Successor Entity were Board members at the time of the Board’s approval of the execution of the initial agreement providing for such transaction; or
(iv) the date which is 10 Business Days prior to the completion of a liquidation or dissolution of the Company.
| 9.1.3.2 | “Incumbent Directors’ shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clause 9.1.3.1(i) or 9.1.3.1(iii)) whose election or nomination for election to the Board was approved by a vote of at least a majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director without objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director. |
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| 9.2 | Merger and de-merger |
In the event of a merger through which the Company is absorbed into another company (other than a Change in Control) or a de-merger through which the Company is divided into two or more new entities (other than a Change in Control), the Board shall, before the adoption of any resolution in the aforementioned respects, determine an Exercise Period, the first day of which shall fall at least 20 calendar days after the date of the notice by the Board to the Director of such Exercise Period. During such Exercise Period the Director shall be entitled to Exercise any Stock Options which have vested in accordance with these terms and conditions. At the conclusion of such Exercise Period, all Stock Options which have not been subject to Exercise during the Exercise Period shall lapse and the Director shall have no rights pursuant to the Stock Options.
| 9.3 | Share for share exchange etc. |
| 9.3.1 | If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use reasonable efforts to either: (a) ensure that the Director receives substantially equivalent rights to acquire securities in the new holding company as the Director had in the Company immediately before such transaction, provided that the Director in writing waives any rights under the Stock Options, which shall lapse as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding company assumes the Company’s rights and obligations hereunder and that the Director’s right to subscribe for Shares in accordance with clause 3 shall relate to shares in the new holding company. |
| 9.3.2 | In the event of a transaction as described in clause 9.3.1, the Director shall always be obliged upon the Board’s request to, in case of (a) in clause 9.3.1, waive any rights under the Stock Options provided that the Director receives substantially equivalent rights in the new holding company as the Director had in the Company immediately before such transaction or, in case of (b) in clause 9.3.1, approve any such amendment to these terms and conditions. No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 9.3.2, provided that the Stock Options preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of the Stock Option as of immediately prior to such transaction. |
| 9.3.3 | If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class of securities subject to the Stock Options. The Board will make such adjustments, and its determination will be final, binding and conclusive. |
| 10. | CANCELLATION OF STOCK OPTIONS IN CASE OF A MATERIAL BREACH |
| 10.1 | If the Director commits a material breach of any of its obligations under these terms and conditions, and the breach has not been rectified within 15 calendar days from the date the Director receives a written demand for rectification, the Company shall be entitled to cancel the Director’s unexercised Stock Options (vested as well as unvested) which as a consequence thereof shall lapse. |
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| 10.2 | A material breach for purposes of clause 10 and 11 shall mean a breach by the Director of the provisions in clauses 9.3, 12, 13, 15.1 or 15.5 or any other breach by the Director of these terms and conditions that is reasonably likely to have a material adverse effect on the Company. |
| 11. | LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH |
| 11.1 | If the Director commits a material breach in accordance with clause 10.2 and the breach has not been rectified within 15 calendar days from the date the Director receives a written demand for rectification, the Director shall upon written request by the Company pay liquidated damages in an amount corresponding to 50 per cent of the aggregate then-current fair market value of the Shares represented by, or delivered upon exercise of, the Stock Options. The Company shall not be entitled to demand liquidated damages if the Company has cancelled the Director’s Stock Options pursuant to clause 10.1. |
| 11.2 | If the Director commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any liquidated damages in accordance with the provisions of clause 11.1, to claim damages in an amount corresponding to the difference between the actual damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any). |
| 11.3 | The payment by the Director of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the Company may have against the Director as a result of a breach. |
| 12. | APPOINTMENT OF AGENT ETC. |
| 12.1 | The Director hereby irrevocably authorises the Board, with full power of substitution, to endorse such documents on behalf of the Director and to take any other action reasonably necessary to effect any of the Director’s obligations under these terms and conditions, including but not limited to, execution of a transfer of Shares owned by the Director. The Board shall hold any payment received for the benefit of the Director under this clause 12 on behalf of the Director and separated from any other funds. A withdrawal of the authorisation as provided for in this clause 12 constitutes a material breach of these terms and conditions for purposes of clause 10 and 11. |
| 12.2 | The Director hereby undertakes to sign, execute and deliver such documents, and to take any other actions, as reasonably required by the Board in order to ensure compliance with or observation of the Director’s obligations under these terms and conditions. |
| 13. | PAYMENT OF CERTAIN TAXES |
| 13.1 | The Company will perform withholding of taxes in relation to the Stock Options and the Shares acquired at Exercise if and to the extent required by law or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Company to perform such withholding of taxes (any such withholding tax obligation of the Director, “Withholding Obligation”). For the avoidance of doubt, this clause 13.1 shall not affect the Director’s liabilities and undertakings pursuant to the remainder of this clause 13. |
| 13.2 | The Director is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, self-employment taxes, social security contributions as well as any tax penalties thereon) for which he/she may be liable in relation to the Stock Options and any Shares acquired at Exercise (“Director’s Tax Liability”). For |
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the avoidance of doubt, any Withholding Obligation (whether preliminary or deducted at source) on employment income, dividends and capital gains will always be considered as Director’s Tax Liability.
| 13.3 | The calculation of any Withholding Obligation, as applicable, will be subject to applicable rules and regulations and based on the applicable tax rates, as determined by the Board in its sole discretion in connection with determining the Director’s Payment Obligations. |
| 13.4 | The Company assumes no responsibility for any Director’s Tax Liability. The Director represents that the Director is not relying on the Company for any tax advice and explicitly agrees not to demand any compensation from the Company to cover any Director’s Tax Liability. |
| 14. | DATA PROTECTION |
For the purposes of implementing, managing and administering the Stock Option Program, and for the Director to participate in the Stock Option Program, it is necessary for the Company, acting as data controller, and other companies in the Group to process the Director’s personal data. For more information regarding the processing of the Director’s personal data, see the Privacy Notice attached as Appendix 1.
| 15. | MISCELLANEOUS |
| 15.1 | The Stock Options may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security. |
| 15.2 | The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons, and provided in all of the aforementioned cases that the Director’s rights are in no material respects adversely affected. If the Director’s rights would be materially adversely affected, the Director’s written consent shall be necessary for such amendment. |
| 15.3 | Nothing in these terms and conditions or in any right or Stock Option granted under these terms and conditions shall confer upon the Director the right to continue his/her mandate for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Group or of the Director, which rights are hereby expressly reserved by each, to terminate the Director’s mandate at any time. |
| 15.4 | The Director has no right to compensation or damages for any loss in respect of the Stock Option where such loss arises (or is claimed to arise), in whole or in part, from the termination of the Director’s mandate; or notice to terminate the mandate given by or to the Director. |
| 15.5 | The Director undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the Director may disclose the terms and conditions of his or her Stock Options to the Director’s spouse, personal attorney and/or |
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tax preparer. If a Director becomes required, in circumstances contemplated by (i) to disclose any information, the disclosing Director shall use its best efforts to consult with the Company prior to any such disclosure.
| 15.6 | The Stock Options (and Shares issued on settlement of a Stock Option) will be subject to recoupment in accordance with any clawback policy that the Group adopts pursuant to the listing standards of any national, foreign or international securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law, or as the Board otherwise deems necessary or appropriate. The Board may include such other clawback, recovery or recoupment provisions in the Notice of Grant or other written agreement with the Director, as the Board determines necessary or appropriate. |
| 15.7 | Shares will not be issued or delivered under this Stock Option Program unless the issuance and delivery of such Shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded. In addition to the terms and conditions provided herein, the Board may require that a Director make such reasonable covenants, agreements and representations as the Board, in its sole discretion, deems advisable in order to comply with applicable law. The Board shall have the right to require any Director to comply with any timing or other restrictions with respect to the settlement, distribution or exercise of any Stock Option, including a window-period limitation, as may be imposed in the sole discretion of the Board. |
| 16. | TERM AND TERMINATION |
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on 31 December 2030. The parties shall, however, after such date continue to be bound by the provisions set out in clause 15.5 and 17.
| 17. | GOVERNING LAW AND JURISDICTION |
| 17.1 | These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of laws). |
| 17.2 | The Company and the Director undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between them or any two or more of them through discussions and mutual agreement. |
| 17.3 | Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be Stockholm and the language to be used in the arbitral proceedings shall be English. |
| 17.4 | The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the Company and the Director in writing. |
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Exhibit 99.2
TERMS AND CONDITIONS GOVERNING DIRECTOR RESTRICTED STOCK UNITS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
| 1. | RESTRICTED STOCK UNIT ISSUER AND RECIPIENT |
| 1.1 | Spotify Technology S.A., a Luxembourg société anonyme, with registered offices at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”). |
| 1.2 | Selected members of the Company’s board of directors (the “Board”) who have received an individual notice of grant (the “Directors”) (the “Notice”). |
| 2. | BACKGROUND |
| 2.1 | At the Board meeting held on 2 December 2020, it was resolved to propose to the general meeting of shareholders to approve a remuneration plan to the members of the Board. At the annual meeting of the Company’s shareholders held on 21 April 2021, the Company’s shareholders voted in favor of a resolution to approve a remuneration plan in the form of cash bonuses, warrants, stock options, restricted stock units or any other form to the Board. It was resolved to implement such resolution by granting Restricted Stock Units (as defined below) to the Directors in accordance with these Terms and Conditions. |
| 2.2 | A Director’s appointment as a director of the Company shall not give the Director any right or expectation to be granted Director Restricted Stock Units at any time under the Director Stock Program or otherwise. Moreover, the granting of a Restricted Stock Unit under this director restricted stock unit program (the “Director Restricted Stock Unit Program”) shall not give the Director any right or expectation to be granted additional Restricted Stock Units at any time under the Director Restricted Stock Program or otherwise. |
| 3. | RESTRICTED STOCK UNIT; SHARES AVAILABLE |
Subject to the terms and conditions set out herein, the Director is entitled to delivery of one share in the Company (a “Share”) per restricted stock unit (a “Restricted Stock Unit”).
Subject to the provisions of clauses 7.2 and 7.3.3, the maximum aggregate number of Shares that may be subject to Restricted Stock Units pursuant to this Director Restricted Stock Unit program is 220,000 Shares. Shares available for grant under the Restricted Stock Unit Program will be reduced by the net Shares granted under the Terms and Conditions Governing Director Stock Options 2021/2026 in the Company.
| 4. | IMPLEMENTATION |
The Director Restricted Stock Unit Program shall be effective as of 21 April 2021 (the “Implementation Date”).
| 5. | VESTING |
| 5.1 | Vesting general |
| 5.1.1 | Except as set forth in clause 7.1 below, vesting of the Director’s granted Restricted Stock Units shall occur on the dates set out in the Notice (each, a “Vesting Date”), subject to the Director’s continued mandate with the Company. |
| 5.1.2 | Notwithstanding the aforesaid, the Board shall be entitled, in its sole discretion, to grant Restricted Stock Units that are subject to a different vesting schedule. |
| 5.2 | Termination of mandate |
| 5.2.1 | If (i) the Director resigns for any reason or (ii) the Company’s shareholders terminate the Director’s mandate with the Company for any reason (including, for the avoidance of doubt, as a result of the decision to not re-elect the Director as a member of the Board), all unvested Restricted Stock Units shall cease vesting as of the date of termination of the Director’s mandate in accordance with clause 5.2.2 and shall immediately lapse. |
| 5.2.2 | If the Director resigns, termination of his/her mandate for purposes of the Restricted Stock Units shall be deemed to occur immediately on the Company’s receipt of Director’s written notice of resignation. If the Company’s shareholders terminate the Director’s mandate with the Company (including, for the avoidance of doubt, as a result of the decision to not re-elect the Director as a member of the Board), termination of his/her mandate for purposes of the Restricted Stock Units shall be deemed to occur immediately after the resolution to not re-elect or to discharge, as applicable, the Director is adopted at a general meeting of shareholders. Notwithstanding the foregoing in this clause 5.2.2 or in clause 5.2.1, the Board shall be entitled, in its sole discretion, to resolve that termination of the Director’s mandate shall be deemed to occur at a later point in time. |
| 5.2.3 | If a Director ceases to serve as a member of the Board, but is appointed as director of any company controlled by the Company (the “Group”), such change will not be deemed a termination of the mandate for purposes of his/her Restricted Stock Units, provided that there is no other interruption or termination between the termination of mandate as Director and the provision of such services, unless the Board, in its sole discretion, determines that the entity to which the Director transfers is not a qualified affiliate of the Group. |
| 6. | SETTLEMENT |
| 6.1 | Settlement will occur through an electronic platform, where the Director will be able to carry out any actions required to settle any Withholding Obligation (as defined in clause 11.1 below). |
| 6.2 | Without limiting the foregoing, unless the Director elects otherwise prior to vesting of the Restricted Stock Units, the Director’s Withholding Obligation will be satisfied by a “cash settlement” arrangement pursuant to which the Director’s Withholding Obligation shall be satisfied with money that shall have been paid by the Director to the Director’s personal account on the electronic platform (“Cash Settlement”). |
| 6.3 | To the extent the Director wishes to settle his/her Withholding Obligation through a method other than a Cash Settlement, the Director may elect, prior to vesting, to satisfy such Director’s Withholding Obligation by any other method or combination of methods allowed in the Board’s sole discretion, including, without limitation, by: |
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| i. | placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole Share) then being distributed in respect of vested Restricted Stock Units as are sufficient to satisfy the Director’s Withholding Obligation. The net proceeds of such sale shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess proceeds resulting from rounding up to the nearest whole Share shall be deposited into the Director’s account on the electronic platform; or |
| ii. | by a “net settlement” arrangement pursuant to which the Company will reduce the number of Shares issuable upon vesting or settlement by the minimum number of Shares (rounded up to the nearest whole Share, without any consideration to the Director for such rounding) as are sufficient to satisfy Director’s Withholding Obligation. |
| 6.4 | As soon as reasonably practicable (but no later than 30 days) following the completion of all actions required by the Director to settle the Director’s Withholding Obligation with respect to any Restricted Stock Units that become vested (or if no such actions are required, within 30 days following the Vesting Date), the Company shall issue the number of Shares subject to the Restricted Stock Units that become vested in the name of the Director (or if deceased, the Director’s legal representative) (less any Shares reduced or sold pursuant to this clause 6). The Shares will be issued as fully paid and nonassessable Shares and may be authorized but previously unissued shares, treasury shares or shares purchased in the open market |
| 6.5 | If the Director does not complete any required actions to settle the Director’s Withholding Obligation with respect to any Restricted Stock Units that vested within 30 days following the applicable Vesting Date, then such Restricted Stock Units will be cancelled with respect to those Shares that would otherwise have become issuable therefor, unless otherwise decided by the Board. |
| 7. | AMENDMENT OF THE RESTRICTED STOCK UNITS; ADJUSTMENT |
| 7.1 | Change in Control |
| 7.1.1 | Notwithstanding clause 5, if there is a Change in Control, all unvested Restricted Stock Units shall, contingent upon closing of such Change in Control actually taking place and subject to the Director’s continued mandate as director of the Company immediately prior to closing of such Change in Control (“Closing”), vest immediately prior to the Closing provided, however, that the Director shall have satisfied the Director’s Withholding Obligation and all other documentation for the issuance of Shares reasonably required by the Board. If the Director’s Withholding Obligation is not satisfied and such documentation is not delivered by the Director within a reasonable time prior to Closing in accordance with the Board’s instructions then such Restricted Stock Units may, as determined by the Board in its sole discretion, be cancelled with respect to those Shares that would otherwise have become issuable therefor. If no Closing takes place Shares underlying Restricted Stock Units will not be issued, any cash payment made by the Director will be returned and these terms and conditions will remain unaffected. |
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| 7.1.2 | If permitted by applicable law, the Board may, instead of allowing the Director to acquire Shares in accordance with clause 7.1.1, in its sole discretion, cause the cancellation of any vested Restricted Stock Unit outstanding immediately prior to Closing, in whole or in part, in exchange for a payment to the Director, in such form as determined by the Board, provided that the Board shall ensure that the tax treatment and economic returns of the Director is not affected adversely compared to the procedure described in clause 7.1.1 and may provide that any such payment to the Director shall be subject to the same conditions as are imposed on holders of the Shares in the Change in Control (e.g., an earn out or escrow) as well as to the satisfaction of any of Director’s Withholding Obligation. |
| 7.1.2.1 | “Change in Control” shall mean and include each of the following: |
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than 50 % of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y) any acquisition which complies with clauses 7.1.2.1(iii)(I)-(III); or (z) in respect of an Restricted Stock Unit held by a particular Director, any acquisition by the Director or any group of persons including the Director (or any entity controlled by the Director or any group of persons including the Director);
(ii) the Incumbent Directors cease for any reason to constitute a majority of the Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (I) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (II) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (II) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; and (III) after which at least a majority of the members of the board of directors (or the analogous governing body) of the Successor Entity were Board members at the time of the Board’s approval of the execution of the initial agreement providing for such transaction; or
4(9)
(iv) the date which is 10 days on which banks are open for business generally (and not for internet banking only) in Luxembourg and the U.S. prior to the completion of a liquidation or dissolution of the Company.
| 7.1.2.2 | “Incumbent Directors” shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clause 7.1.2.1, (i) or 7.1.2.1, (iii)) whose election or nomination for election to the Board was approved by a vote of at least a majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director without objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director. |
| 7.2 | Distribution, reclassification etc. |
If any share split, reverse share split, recapitalization, combination, reclassification or other distribution of the Company’s Shares without the receipt of consideration by the Company occurs, the Board will adjust the number and class of Shares that may be delivered under each outstanding Restricted Stock Unit and in a manner that complies with all applicable laws to prevent diminution or enlargement of the benefits or potential benefits intended to be made available with respect to any grant of any Restricted Stock Unit.
| 7.3 | Share for share exchange etc. |
| 7.3.1 | If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use reasonable efforts to either: (a) ensure that the Director receives substantially equivalent rights with respect to securities in the new holding company as the Director had in the Company immediately before such transaction, provided that the Director in writing waives any rights under the Restricted Stock Units, which shall lapse and be cancelled as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding company assumes the Company’s rights and obligations hereunder and that the Director’s vested and unsettled Restricted Stock Units and unvested Restricted Stock Units shall relate to shares in such new company. |
| 7.3.2 | In the event of a transaction as described in clause 7.3.1, the Director shall always be obliged upon the Board’s request to, in case of (a) in clause 7.3.1, waive any rights under the Restricted Stock Units provided that the Director receives substantially equivalent rights in the new holding company as the Director had in the Company immediately before such transaction or, in case of (b) in clause 7.3.1, approve any such amendment to these terms and conditions. No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 7.3, provided that the Restricted Stock Units preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of the Restricted Stock Unit as of immediately prior to such transaction. |
5(9)
| 7.3.3 | If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class of securities subject to the Restricted Stock Units. The Board will make such adjustments, and its determination will be final, binding and conclusive. |
| 8. | CANCELLATION OF RESTRICTED STOCK UNITS IN CASE OF A MATERIAL BREACH |
| 8.1 | If the Director commits a material breach of any of its obligations under these terms and conditions and the breach has not been rectified within 15 calendar days from the date the Director receives a written demand for rectification, the Company shall be entitled to cancel the Director’s Restricted Stock Units, which as a consequence thereof shall lapse. |
| 8.2 | A material breach for purposes of clause 8 and 9 shall mean a breach by the Director of the provisions in clauses 6.3, 7.3, 10, 11, 13.1 or 13.5 or any other breach by the Director of these terms and conditions that is reasonably likely to have a material adverse effect on the Company. |
| 9. | LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH |
| 9.1 | If the Director commits a material breach in accordance with clause 8.2 and the breach has not been rectified within 15 calendar days from the date the Director receives a written demand for rectification, the Director shall upon written request by the Company pay liquidated damages in an amount corresponding to 50 percent of the aggregate then-current fair market value of the Shares represented by or delivered upon settlement of the Restricted Stock Units. The Company shall not be entitled to demand liquidated damages if the Company has cancelled the Director’s Restricted Stock Units pursuant to clause 8.1. |
| 9.2 | If the Director commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any liquidated damages in accordance with the provisions of clause 9.1, to claim damages in an amount corresponding to the difference between the actual damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any). |
| 9.3 | The payment by the Director of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the Company may have against the Director as a result of a breach. |
| 10. | APPOINTMENT OF AGENT ETC. |
| 10.1 | The Director hereby irrevocably authorises the Board, with full power of substitution, to endorse such documents on behalf of the Director and to take any other action reasonably necessary to effect any of the Director’s obligations under these terms and conditions, including but not limited to, execution of a transfer of Shares owned by the Director. The Board shall hold any payment received for the benefit of the Director under this clause on behalf of the Director and separated from any other funds. A withdrawal of the authorisation as provided for in this clause 10 constitutes a material breach of these terms and conditions for purposes of clause 8 and 9. |
6(9)
| 10.2 | The Director hereby undertakes to sign, execute and deliver such documents (including without limitation any subscription form), and to take any other actions, as reasonably required by the Board in order to ensure compliance with or observation of the Director’s obligations under these terms and conditions. |
| 11. | PAYMENT OF CERTAIN TAXES |
| 11.1 | The Company will perform withholding of taxes in relation to the Restricted Stock Units and the Shares delivered upon settlement if and to the extent required by law or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Company to perform such withholding of taxes (any such withholding tax obligation of the Director, “Withholding Obligation”). For the avoidance of doubt, this clause 11.1 shall not affect the Director’s liabilities and undertakings pursuant to the remainder of this clause 11. |
| 11.2 | The Director is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, self-employment taxes, social security contributions as well as any tax penalties thereon) for which he/she may be liable in relation to the Restricted Stock Units and any Shares issued at settlement (“Director’s Tax Liability”). For the avoidance of doubt, any Withholding Obligation (whether preliminary or deducted at source) on employment income, dividends and capital gains will always be considered as Director’s Tax Liability. |
| 11.3 | The calculation of any Withholding Obligation will be subject to applicable rules and regulations based on the applicable tax rates, as determined by the Board in its sole discretion. |
| 11.4 | The Company assumes no responsibility for any Director’s Tax Liability. The Director represents that the Director is not relying on the Company for any tax advice and explicitly agrees not to demand any compensation from the Company to cover any Director’s Tax Liability. |
| 12. | DATA PROTECTION |
| 12.1 | For the purposes of implementing, managing and administering the Director Restricted Stock Unit Program, and for the Director to participate in the Director Restricted Stock Unit Program, it is necessary for the Company, acting as data controller, and other companies in the Group to process the Director’s personal data. For more information regarding the processing of the Director’s personal data, see the Privacy Notice attached as Appendix 1. |
| 13. | MISCELLANEOUS |
| 13.1 | The Restricted Stock Units may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security. |
| 13.2 | The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons, and provided in all of the aforementioned cases that the Director’s rights are in no material respects adversely affected. If the Director’s rights would be materially adversely affected, the Director’s written consent shall be necessary for such amendment. |
7(9)
| 13.3 | Nothing in these terms and conditions or in any right or Restricted Stock Unit granted under these terms and conditions shall confer upon the Director the right to continue his/her mandate for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company or of the Director, which rights are hereby expressly reserved by each, to terminate the Director’s mandate at any time. |
| 13.4 | The Director has no right to compensation or damages for any loss in respect of the Restricted Stock Unit where such loss arises (or is claimed to arise), in whole or in part, from the termination of the Director’s mandate; or notice to terminate the mandate given by or to the Director. |
| 13.5 | The Director undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the Director may disclose the terms and conditions of his or her Restricted Stock Units to the Director’s spouse, personal attorney and/or tax preparer. If a Director becomes required, in circumstances contemplated by (i) to disclose any information, the disclosing Director shall use its best efforts to consult with the Company prior to any such disclosure. |
| 13.6 | The Restricted Stock Units (and Shares issued on settlement of a Restricted Stock Unit) will be subject to recoupment in accordance with any clawback policy that the Group adopts pursuant to the listing standards of any national, foreign or international securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law, or as the Board otherwise deems necessary or appropriate. The Board may include such other clawback, recovery or recoupment provisions in the Notice of Grant or other written agreement with the Director, as the Board determines necessary or appropriate. |
| 13.7 | Shares will not be issued or delivered under this Director Restricted Stock Unit Program unless the issuance
and delivery of such Shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act |
8(9)
| 14. | TERM AND TERMINATION |
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on 31 December 2030. The parties shall, however, after such date continue to be bound by the provisions set out in clause 13.5 and 15.
| 15. | GOVERNING LAW AND JURISDICTION |
| 15.1 | These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of laws). |
| 15.2 | The Company and the Director undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between them or any two or more of them through discussions and mutual agreement. |
| 15.3 | Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be Stockholm and the language to be used in the arbitral proceedings shall be English. |
| 15.4 | The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the Company and the Director in writing. |
9(9)
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