|
The Netherlands
(State or other jurisdiction of incorporation or organization) |
| |
5961
(Primary Standard Industrial Classification Code Number) |
| |
Not Applicable
(I.R.S. Employer Identification No.) |
|
|
Christopher M. Bartoli
Roger W. Bivans Baker & McKenzie LLP 300 E Randolph St Chicago, Illinois 60601 (312) 861-8000 |
| |
Christoph Wolf
Baker & McKenzie Partnerschaft von Rechtsanwälten und Steuerberatern mbB Bethmannstrasse 50-54 60311 Frankfurt am Main Germany + 49 69 2 99 08 245 |
| |
Marc D. Jaffe
Adam J. Gelardi Latham & Watkins LLP 885 Third Avenue New York, New York 10022 (212) 906-1200 |
| |
Oliver Seiler
Latham & Watkins LLP Reuterweg 20, 60323 Frankfurt am Main Germany +49 69 6062 6000 |
|
|
CALCULATION OF REGISTRATION FEE
|
| ||||||||||||||||
|
Title of Each Class of Securities
to be Registered(1) |
| | |
Amount to be
Registered |
| | |
Proposed Maximum
Offering Price Per Share |
| | |
Proposed Maximum
Aggregate Offering Price(2)(3) |
| | |
Amount of
Registration Fee(4) |
|
|
Ordinary shares, nominal value €0.000015 per share
|
| | |
17,994,117
|
| | |
$26.00
|
| | |
$467,847,042
|
| | |
$35,337
|
|
| | |
Page
|
| |||
| | | | ii | | | |
| | | | iii | | | |
| | | | v | | | |
| | | | 1 | | | |
| | | | 16 | | | |
| | | | 18 | | | |
| | | | 23 | | | |
| | | | 66 | | | |
| | | | 68 | | | |
| | | | 69 | | | |
CAPITALIZATION | | | | | 70 | | |
DILUTION | | | | | 71 | | |
| | | | 73 | | | |
| | | | 76 | | | |
BUSINESS | | | | | 99 | | |
| | |
Page
|
| |||
MANAGEMENT | | | | | 115 | | |
| | | | 135 | | | |
| | | | 137 | | | |
| | | | 139 | | | |
| | | | 141 | | | |
| | | | 155 | | | |
| | | | 163 | | | |
| | | | 165 | | | |
| | | | 166 | | | |
UNDERWRITERS | | | | | 184 | | |
| | | | 191 | | | |
| | | | 191 | | | |
EXPERTS | | | | | 191 | | |
| | | | 191 | | | |
| | | | 192 | | | |
| | | | F-1 | | |
| | |
Three Months Ended
|
| |
Six Months Ended
|
| ||||||||||||||||||||||||||||||
| | |
December 31, 2019
|
| |
December 31, 2020
(estimated) |
| |
December 31, 2019
|
| |
December 31, 2020
(estimated) |
| ||||||||||||||||||||||||
(in millions) (unaudited)
|
| |
Actual
|
| |
Low
|
| |
High
|
| |
Actual
|
| |
Low
|
| |
High
|
| ||||||||||||||||||
Net sales
|
| | | € | 119.4 | | | | | € | 156.8 | | | | | € | 158.8 | | | | | € | 218.5 | | | | | € | 283.2 | | | | | € | 285.2 | | |
Gross profit
|
| | | € | 58.4 | | | | | € | 77.2 | | | | | € | 78.2 | | | | | € | 104.7 | | | | | € | 135.9 | | | | | € | 136.9 | | |
Gross profit margin(1)
|
| | | | 48.9% | | | | | | 48.9% | | | | | | 49.2% | | | | | | 47.9% | | | | | | 47.8% | | | | | | 48.0% | | |
Operating income
|
| | | € | 7.4 | | | | | € | 15.4 | | | | | € | 16.4 | | | | | € | 8.9 | | | | | € | 23.6 | | | | | € | 24.6 | | |
Adjusted Operating Income(2)
|
| | | € | 10.9 | | | | | € | 17.3 | | | | | € | 19.3 | | | | | € | 13.4 | | | | | € | 25.8 | | | | | € | 27.8 | | |
Adjusted Operating Income margin(1)
|
| | | | 9.1% | | | | | | 11.0% | | | | | | 12.2% | | | | | | 6.1% | | | | | | 9.1% | | | | | | 9.7% | | |
Active customer (LTM in thousands)
|
| | | | 444.1 | | | | | | 568.0 | | | | | | 568.5 | | | | | | 444.1 | | | | | | 568.0 | | | | | | 568.5 | | |
| | |
Three Months Ended
|
| |
Six Months Ended
|
| ||||||||||||||||||||||||||||||
| | |
December 31, 2019
|
| |
December 31, 2020
(estimated) |
| |
December 31, 2019
|
| |
December 31, 2020
(estimated) |
| ||||||||||||||||||||||||
(in millions) (unaudited)
|
| |
Actual
|
| |
Low
|
| |
High
|
| |
Actual
|
| |
Low
|
| |
High
|
| ||||||||||||||||||
Operating income
|
| | | € | 7.3 | | | | | € | 15.4 | | | | | € | 16.4 | | | | | € | 8.9 | | | | | € | 23.6 | | | | | € | 24.6 | | |
U.S. sales tax(1)
|
| | | € | 0.8 | | | | | | — | | | | | | — | | | | | € | 1.7 | | | | | | — | | | | | | — | | |
IPO preparation and transaction
costs(2) |
| | | € | 2.7 | | | | | € | 1.9 | | | | | € | 2.9 | | | | | € | 2.7 | | | | | € | 2.2 | | | | | € | 3.2 | | |
Share-based compensation expense(3)
|
| | | € | 0.0 | | | | | € | 0.0 | | | | | € | 0.0 | | | | | € | 0.1 | | | | | € | 0.0 | | | | | € | 0.0 | | |
Adjusted Operating Income
|
| | | € | 10.9 | | | | | € | 17.3 | | | | | € | 19.3 | | | | | € | 13.4 | | | | | € | 25.8 | | | | | € | 27.8 | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands, except share and per share data)
|
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||
Consolidated Statement
of Operations Data: |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net sales
|
| | | € | 303,520 | | | | | € | 379,086 | | | | | € | 449,487 | | | | | $ | 505,089 | | | | | € | 99,112 | | | | | € | 126,359 | | | | | $ | 148,130 | | |
Cost of sales, exclusive
of depreciation and amortization |
| | | | (160,469) | | | | | | (201,410) | | | | | | (239,546) | | | | | | (269,178) | | | | | | (52,766) | | | | | | (67,678) | | | | | | (79,339) | | |
Gross profit
|
| | | | 143,051 | | | | | | 177,676 | | | | | | 209,941 | | | | | | 235,911 | | | | | | 46,346 | | | | | | 58,681 | | | | | | 68,791 | | |
Shipping and payment
costs |
| | | | (36,163) | | | | | | (44,104) | | | | | | (52,857) | | | | | | (59,395) | | | | | | (13,141) | | | | | | (14,833) | | | | | | (17,389) | | |
Marketing expenses
|
| | | | (47,671) | | | | | | (55,767) | | | | | | (62,507) | | | | | | (70,239) | | | | | | (15,816) | | | | | | (17,441) | | | | | | (20,446) | | |
Selling, general and administrative expenses
|
| | | | (40,114) | | | | | | (52,038) | | | | | | (66,427) | | | | | | (74,644) | | | | | | (13,955) | | | | | | (15,556) | | | | | | (18,236) | | |
Depreciation and amortization
|
| | | | (6,796) | | | | | | (7,686) | | | | | | (7,885) | | | | | | (8,860) | | | | | | (1,877) | | | | | | (2,021) | | | | | | (2,369) | | |
Other income (expense), net
|
| | | | 1,499 | | | | | | 995 | | | | | | 645 | | | | | | 725 | | | | | | (40) | | | | | | (621) | | | | | | (728) | | |
Operating income
|
| | | | 13,806 | | | | | | 19,076 | | | | | | 20,910 | | | | | | 23,498 | | | | | | 1,517 | | | | | | 8,209 | | | | | | 9,623 | | |
Finance (expense) income,
net |
| | | | (4,835) | | | | | | (13,986) | | | | | | (11,119) | | | | | | (12,494) | | | | | | (9,373) | | | | | | 5,182 | | | | | | 6,075 | | |
Income (loss) before income taxes
|
| | | | 8,971 | | | | | | 5,090 | | | | | | 9,791 | | | | | | 11,004 | | | | | | (7,856) | | | | | | 13,391 | | | | | | 15,698 | | |
Income tax (expense) benefit
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | | | | | (3,867) | | | | | | (3,545) | | | | | | (3,762) | | | | | | (4,410) | | |
|
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands, except share and per share data)
|
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||
Net income (loss)
|
| | | € | 5,503 | | | | | € | 1,651 | | | | | € | 6,350 | | | | | $ | 7,137 | | | | | € | (4,311) | | | | | € | 9,629 | | | | | $ | 11,288 | | |
Basic and diluted earnings (loss) per ordinary share
|
| | | € | 0.08 | | | | | € | 0.02 | | | | | € | 0.09 | | | | | $ | 0.10 | | | | | € | (0.06) | | | | | € | 0.14 | | | | | $ | 0.16 | | |
Weighted average ordinary shares outstanding (basic and diluted):
|
| | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | |
Consolidated Statement
of Cash Flow Data: |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net cash (outflow) inflow from operating activities
|
| | | € | (4,862) | | | | | € | 2,367 | | | | | € | 10,559 | | | | | $ | 11,865 | | | | | € | (21,996) | | | | | € | (33,378) | | | | | $ | (39,129) | | |
Net cash (outflow) from investing activities
|
| | | | (5,431) | | | | | | (1,845) | | | | | | (2,420) | | | | | | (2,719) | | | | | | (619) | | | | | | (904) | | | | | | (1,060) | | |
Net cash (outflow) inflow from financing activities
|
| | | | (4,410) | | | | | | (2,092) | | | | | | (878) | | | | | | (987) | | | | | | 25,127 | | | | | | 30,834 | | | | | | 36,147 | | |
| | |
As of September 30, 2020
|
| |||||||||||||||||||||
| | |
Actual
(unaudited) |
| |
Actual
(unaudited) |
| |
Pro
Forma as Adjusted(1) |
| |
Pro
Forma as Adjusted(1) |
| ||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||
Consolidated Statement of Financial Position Data: | | | | | | | | | | | | | | | | | | | | | | | | | |
Total non-current assets
|
| | | € | 182,424 | | | | | $ | 213,856 | | | | | € | 182,424 | | | | | $ | 213,856 | | |
Total current assets
|
| | | | 231,114 | | | | | | 270,935 | | | | | | 305,609 | | | | | | 358,266 | | |
Total assets
|
| | | | 413,538 | | | | | | 484,791 | | | | | | 488,033 | | | | | | 572,121 | | |
Total current liabilities
|
| | | | 124,568 | | | | | | 146,031 | | | | | | 124,568 | | | | | | 146,031 | | |
Total non-current liabilities
|
| | | | 214,328 | | | | | | 251,257 | | | | | | 28,952 | | | | | | 33,940 | | |
Total liabilities
|
| | | | 338,896 | | | | | | 397,288 | | | | | | 153,520 | | | | | | 179,971 | | |
Accumulated deficit
|
| | | | (18,605) | | | | | | (21,811) | | | | | | (18,605) | | | | | | (21,811) | | |
Total shareholders’ equity
|
| | | € | 74,642 | | | | | $ | 87,503 | | | | | € | 334,513 | | | | | $ | 392,150 | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands, except average order value, average selling price)
|
| |||||||||||||||||||||||||||||||||||||||
Active customers(1)
|
| | | | 299 | | | | | | 400 | | | | | | 486 | | | | | | N/A | | | | | | 420 | | | | | | 522 | | | | | | N/A | | |
Average order value(2)
|
| | | € | 632 | | | | | € | 614 | | | | | € | 600 | | | | | $ | 674 | | | | | € | 614 | | | | | € | 594 | | | | | $ | 696 | | |
Total orders shipped(3)
|
| | | | 704 | | | | | | 905 | | | | | | 1,092 | | | | | | N/A | | | | | | 955 | | | | | | 1,168 | | | | | | N/A | | |
Adjusted EBITDA(4)
|
| | | € | 20,922 | | | | | € | 30,513 | | | | | € | 35,400 | | | | | $ | 39,780 | | | | | € | 4,359 | | | | | € | 10,438 | | | | | $ | 12,236 | | |
Adjusted Operating
Income(4) |
| | | € | 14,126 | | | | | € | 22,827 | | | | | € | 27,515 | | | | | $ | 30,920 | | | | | € | 2,482 | | | | | € | 8,417 | | | | | $ | 9,867 | | |
Adjusted Net Income(4)
|
| | | € | 9,068 | | | | | € | 15,810 | | | | | € | 19,294 | | | | | $ | 21,682 | | | | | € | 3,520 | | | | | € | 5,438 | | | | | $ | 6,375 | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||||||||||||||
Net income
|
| | | € | 5,503 | | | | | € | 1,651 | | | | | € | 6,350 | | | | | $ | 7,137 | | | | | € | (4,311) | | | | | € | 9,629 | | | | | $ | 11,288 | | |
Finance expenses, net
|
| | | | 4,835 | | | | | | 13,986 | | | | | | 11,119 | | | | | | 12,494 | | | | | | 9,373 | | | | | | (5,182) | | | | | | (6,075) | | |
Income tax expense
|
| | | | 3,468 | | | | | | 3,439 | | | | | | 3,441 | | | | | | 3,867 | | | | | | (3,545) | | | | | | 3,762 | | | | | | 4,410 | | |
Depreciation and amortization
|
| | | | 6,796 | | | | | | 7,686 | | | | | | 7,885 | | | | | | 8,860 | | | | | | 1,877 | | | | | | 2,021 | | | | | | 2,369 | | |
thereof depreciation of right-of use
assets(a) |
| | | | 5,143 | | | | | | 5,133 | | | | | | 5,116 | | | | | | 5,749 | | | | | | 1,201 | | | | | | 1,308 | | | | | | 1,533 | | |
EBITDA
|
| | | | 20,602 | | | | | | 26,762 | | | | | | 28,795 | | | | | | 32,358 | | | | | | 3,394 | | | | | | 10,230 | | | | | | 11,992 | | |
U.S. sales tax(b)
|
| | | | — | | | | | | 1,540 | | | | | | 1,334 | | | | | | 1,499 | | | | | | 936 | | | | | | — | | | | | | — | | |
Strategic investor sale preparation costs(c)
|
| | | | — | | | | | | 2,059 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
IPO preparation and transaction costs(d)
|
| | | | — | | | | | | — | | | | | | 5,206 | | | | | | 5,850 | | | | | | — | | | | | | 201 | | | | | | 236 | | |
Share-based compensation expense(e)
|
| | | | 320 | | | | | | 152 | | | | | | 65 | | | | | | 73 | | | | | | 29 | | | | | | 7 | | | | | | 8 | | |
Adjusted EBITDA
|
| | | € | 20,922 | | | | | € | 30,513 | | | | | € | 35,400 | | | | | $ | 39,780 | | | | | € | 4,359 | | | | | € | 10,438 | | | | | $ | 12,236 | | |
|
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||||||||||||||
Operating income
|
| | | € | 13,806 | | | | | € | 19,076 | | | | | € | 20,910 | | | | | $ | 23,498 | | | | | € | 1,517 | | | | | € | 8,209 | | | | | $ | 9,623 | | |
U.S. sales tax(b)
|
| | | | — | | | | | | 1,540 | | | | | | 1,334 | | | | | | 1,499 | | | | | | 936 | | | | | | — | | | | | | — | | |
Strategic investor sale preparation costs(c)
|
| | | | — | | | | | | 2,059 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
IPO preparation and transaction costs(d)
|
| | | | — | | | | | | — | | | | | | 5,206 | | | | | | 5,850 | | | | | | — | | | | | | 201 | | | | | | 236 | | |
Share-based compensation expense(e)
|
| | | | 320 | | | | | | 152 | | | | | | 65 | | | | | | 73 | | | | | | 29 | | | | | | 7 | | | | | | 8 | | |
Adjusted Operating Income
|
| | | € | 14,126 | | | | | € | 22,827 | | | | | € | 27,515 | | | | | $ | 30,920 | | | | | € | 2,482 | | | | | € | 8,417 | | | | | $ | 9,867 | | |
|
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||||||||||||||
Net income
|
| | | € | 5,503 | | | | | € | 1,651 | | | | | € | 6,350 | | | | | $ | 7,137 | | | | | € | (4,311) | | | | | € | 9,629 | | | | | $ | 11,288 | | |
U.S. sales tax(b)
|
| | | | — | | | | | | 1,540 | | | | | | 1,334 | | | | | | 1,499 | | | | | | 936 | | | | | | — | | | | | | — | | |
Strategic investor sale preparation costs(c)
|
| | | | — | | | | | | 2,059 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | — | | |
IPO preparation and transaction costs(d)
|
| | | | — | | | | | | — | | | | | | 5,206 | | | | | | 5,850 | | | | | | — | | | | | | 201 | | | | | | 236 | | |
Share-based compensation
expense(e) |
| | | | 320 | | | | | | 152 | | | | | | 65 | | | | | | 73 | | | | | | 29 | | | | | | 7 | | | | | | 8 | | |
Finance expenses on
loans(f) |
| | | | 4,247 | | | | | | 13,315 | | | | | | 9,645 | | | | | | 10,838 | | | | | | 9,215 | | | | | | (5,450) | | | | | | (6,389) | | |
Income tax effect(g)
|
| | | | (1,002) | | | | | | (2,907) | | | | | | (3,306) | | | | | | (3,715) | | | | | | (2,349) | | | | | | 1,051 | | | | | | 1,232 | | |
Adjusted Net Income
|
| | | € | 9,068 | | | | | € | 15,810 | | | | | € | 19,294 | | | | | $ | 21,682 | | | | | € | 3,520 | | | | | € | 5,438 | | | | | $ | 6,375 | | |
| | |
As of September 30, 2020
|
| |||||||||
| | |
Actual
(unaudited) |
| |
As Adjusted(2)
(unaudited) |
| ||||||
| | |
(in thousands)
|
| |||||||||
Total debt, including current portion(1)
|
| | | € | 228,186 | | | | | € | 42,810 | | |
Shareholders’ equity:
|
| | | | | | | | | | | | |
Subscribed capital
|
| | | € | 1 | | | | | € | 1 | | |
Capital reserve
|
| | | | 91,015 | | | | | | 350,886 | | |
Accumulated deficit
|
| | | | (18,605) | | | | | | (18,605) | | |
Other comprehensive loss
|
| | | | 2,231 | | | | | | 2,231 | | |
Total shareholders’ equity
|
| | | € | 74,642 | | | | | € | 334,513 | | |
Total Capitalization
|
| | | € | 302,828 | | | | | € | 377,323 | | |
|
Assumed initial public offering price
|
| | | | | | | | | $ | 25.00 | | |
|
Pro forma net tangible book value per ADS
|
| | | $ | (1.38) | | | | | | | | |
|
Increase in pro forma net tangible book value per ADS attributable to this offering
|
| | | $ | 3.80 | | | | | | | | |
| As adjusted net tangible book value per ADS | | | | | | | | | |||||
|
Dilution in pro forma net tangible book value per ADS to new investors
|
| | | | | | | | | $ | 22.58 | | |
| | |
ADSs Purchased
|
| |
Ordinary Shares
Purchased |
| |
Total
Consideration |
| |
Average
Price per Share |
| |
Average
Price Per ADS |
| |||||||||||||||||||||||||||||||||
| | |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
| |
Amount in
thousands |
| |
Percent
|
| ||||||||||||||||||||||||||||||
Existing shareholders
|
| | | | 70,136,824 | | | | | | 81.8% | | | | | | 70,136,824 | | | | | | 81.8% | | | | | $ | 263,493 | | | | | | 43.6% | | | | | $ | 3.65 | | | | | $ | 3.65 | | |
New investors
|
| | | | 15,647,059 | | | | | | 18.2% | | | | | | 15,647,059 | | | | | | 18.2% | | | | | $ | 341,176 | | | | | | 56.4% | | | | | | 25.00 | | | | | | 25.00 | | |
Total | | | | | 85,783,883 | | | | | | 100% | | | | | | 85,783,883 | | | | | | 100% | | | | | $ | 604,669 | | | | | | 100% | | | | | | | | | | | | | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||||||||
| | |
(in thousands, except share and per share data)
|
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||
Consolidated Statement of Operations Data:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net sales
|
| | | € | 303,520 | | | | | € | 379,086 | | | | | € | 449,487 | | | | | $ | 505,089 | | | | | € | 99,112 | | | | | € | 126,359 | | | | | $ | 148,130 | | |
Cost of sales, exclusive of depreciation and
amortization |
| | | | (160,469) | | | | | | (201,410) | | | | | | (239,546) | | | | | | (269,178) | | | | | | (52,766) | | | | | | (67,678) | | | | | | (79,339) | | |
Gross profit
|
| | | | 143,051 | | | | | | 177,676 | | | | | | 209,941 | | | | | | 235,911 | | | | | | 46,346 | | | | | | 58,681 | | | | | | 68,791 | | |
Shipping and payment costs
|
| | | | (36,163) | | | | | | (44,104) | | | | | | (52,857) | | | | | | (59,395) | | | | | | (13,141) | | | | | | (14,833) | | | | | | (17,389) | | |
Marketing expenses
|
| | | | (47,671) | | | | | | (55,767) | | | | | | (62,507) | | | | | | (70,239) | | | | | | (15,816) | | | | | | (17,441) | | | | | | (20,446) | | |
Selling, general and administrative expenses
|
| | | | (40,114) | | | | | | (52,038) | | | | | | (66,427) | | | | | | (74,644) | | | | | | (13,955) | | | | | | (15,556) | | | | | | (18,236) | | |
Depreciation and amortization
|
| | | | (6,796) | | | | | | (7,686) | | | | | | (7,885) | | | | | | (8,860) | | | | | | (1,877) | | | | | | (2,021) | | | | | | (2,369) | | |
Other income (expense), net
|
| | | | 1,499 | | | | | | 995 | | | | | | 645 | | | | | | 725 | | | | | | (40) | | | | | | (621) | | | | | | (728) | | |
Operating income
|
| | | | 13,806 | | | | | | 19,076 | | | | | | 20,910 | | | | | | 23,498 | | | | | | 1,517 | | | | | | 8,209 | | | | | | 9,623 | | |
Finance (expense) income, net
|
| | | | (4,835) | | | | | | (13,986) | | | | | | (11,119) | | | | | | (12,494) | | | | | | (9,373) | | | | | | 5,182 | | | | | | 6,075 | | |
Income (loss) before income taxes
|
| | | | 8,971 | | | | | | 5,090 | | | | | | 9,791 | | | | | | 11,004 | | | | | | (7,856) | | | | | | 13,391 | | | | | | 15,698 | | |
Income tax (expense) benefit
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | | | | | (3,867) | | | | | | 3,545 | | | | | | (3,762) | | | | | | (4,410) | | |
Net income (loss)
|
| | | € | 5,503 | | | | | € | 1,651 | | | | | € | 6,350 | | | | | $ | 7,137 | | | | | € | (4,311) | | | | | € | 9,629 | | | | | $ | 11,288 | | |
Basic and diluted earnings (loss) per ordinary share
|
| | | € | 0.08 | | | | | € | 0.02 | | | | | € | 0.09 | | | | | $ | 0.10 | | | | | € | (0.06) | | | | | € | 0.14 | | | | | $ | 0.16 | | |
Weighted average ordinary shares outstanding (basic and diluted):
|
| | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | |
Consolidated Statement of Cash Flow Data:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net cash (outflow) inflow from operating activities
|
| | | € | (4,862) | | | | | € | 2,367 | | | | | € | 10,559 | | | | | $ | 11,865 | | | | | € | (21,996) | | | | | € | (33,378) | | | | | $ | (39,129) | | |
Net cash (outflow) from investing activities
|
| | | | (5,431) | | | | | | (1,845) | | | | | | (2,420) | | | | | | (2,719) | | | | | | (619) | | | | | | (904) | | | | | | (1,060) | | |
Net cash (outflow) inflow from financing
activities |
| | | | (4,410) | | | | | | (2,092) | | | | | | (878) | | | | | | (987) | | | | | | 25,127 | | | | | | 30,834 | | | | | | 36,147 | | |
| | |
As of June 30,
|
| |
As of September 30,
|
| ||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| |
2020
(unaudited) |
| ||||||||||||||||||
| | | | | | | | | | | | | | |
(in thousands)
|
| | | | | | | | | | | | | |||||||||
Consolidated Statement of Financial Position Data:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total non-current assets
|
| | | € | 188,525 | | | | | € | 182,907 | | | | | € | 183,537 | | | | | $ | 206,241 | | | | | € | 182,424 | | | | | $ | 213,856 | | |
Total current assets
|
| | | | 125,029 | | | | | | 152,242 | | | | | | 202,263 | | | | | | 227,283 | | | | | | 231,114 | | | | | | 270,935 | | |
Total assets
|
| | | | 313,554 | | | | | | 335,149 | | | | | | 385,800 | | | | | | 433,524 | | | | | | 413,538 | | | | | | 484,791 | | |
Total current liabilities
|
| | | | 61,008 | | | | | | 73,611 | | | | | | 104,831 | | | | | | 117,799 | | | | | | 124,568 | | | | | | 146,031 | | |
Total non-current liabilities
|
| | | | 144,435 | | | | | | 150,218 | | | | | | 216,592 | | | | | | 243,384 | | | | | | 214,328 | | | | | | 251,257 | | |
Total liabilities
|
| | | | 205,443 | | | | | | 223,829 | | | | | | 321,423 | | | | | | 361,183 | | | | | | 338,896 | | | | | | 397,288 | | |
Accumulated deficit
|
| | | | (36,235) | | | | | | (34,584) | | | | | | (28,234) | | | | | | (31,727) | | | | | | (18,605) | | | | | | (21,811) | | |
Total shareholders’ equity
|
| | | € | 108,111 | | | | | € | 111,320 | | | | | € | 64,377 | | | | | $ | 72,341 | | | | | € | 74,642 | | | | | $ | 87,503 | | |
| | |
As of and for the
Years Ended June 30, |
| |
As of and for the
Three Months Ended September 30, |
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
(unaudited) |
| |
2020
(unaudited) |
| |||||||||||||||
| | |
(in thousands, except average order value, average selling price)
|
| |||||||||||||||||||||||||||
Active customers(1)
|
| | | | 299 | | | | | | 400 | | | | | | 486 | | | | | | 420 | | | | | | 522 | | |
Average order value(1)
|
| | | € | 632 | | | | | € | 614 | | | | | € | 600 | | | | | € | 614 | | | | | € | 594 | | |
Total orders shipped(2)
|
| | | | 704 | | | | | | 905 | | | | | | 1,092 | | | | | | 955 | | | | | | 1,168 | | |
Adjusted EBITDA(2)
|
| | | € | 20,922 | | | | | € | 30,513 | | | | | € | 35,400 | | | | | € | 4,359 | | | | | € | 10,438 | | |
Adjusted Operating Income(2)
|
| | | € | 14,126 | | | | | € | 22,827 | | | | | € | 27,515 | | | | | € | 2,482 | | | | | € | 8,417 | | |
Adjusted Net Income(5)
|
| | | € | 9,068 | | | | | € | 15,810 | | | | | € | 19,294 | | | | | € | 3,520 | | | | | € | 5,438 | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30
|
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
(Unaudited) |
| |
2020
(Unaudited) |
| |||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||
Net sales
|
| | | € | 303,520 | | | | | € | 379,086 | | | | | € | 449,487 | | | | | € | 99,112 | | | | | € | 126,359 | | |
Cost of sales, exclusive of depreciation
and amortization |
| | | | (160,469) | | | | | | (201,410) | | | | | | (239,546) | | | | | | (52,766) | | | | | | (67,678) | | |
Gross profit
|
| | | | 143,051 | | | | | | 177,676 | | | | | | 209,941 | | | | | | 46,346 | | | | | | 58,681 | | |
Shipping and payment costs
|
| | | | (36,163) | | | | | | (44,104) | | | | | | (52,857) | | | | | | (13,141) | | | | | | (14,833) | | |
Marketing expenses
|
| | | | (47,671) | | | | | | (55,767) | | | | | | (62,507) | | | | | | (15,816) | | | | | | (17,441) | | |
Selling, general and administrative expenses
|
| | | | (40,114) | | | | | | (52,038) | | | | | | (66,427) | | | | | | (13,955) | | | | | | (15,556) | | |
Depreciation and amortization
|
| | | | (6,796) | | | | | | (7,686) | | | | | | (7,885) | | | | | | (1,877) | | | | | | (2,021) | | |
Other income (expense), net
|
| | | | 1,499 | | | | | | 995 | | | | | | 645 | | | | | | (40) | | | | | | (621) | | |
Operating income
|
| | | | 13,806 | | | | | | 19,076 | | | | | | 20,910 | | | | | | 1,517 | | | | | | 8,209 | | |
Finance (expense) income, net
|
| | | | (4,835) | | | | | | (13,986) | | | | | | (11,119) | | | | | | (9,373) | | | | | | 5,182 | | |
Income (loss) before income taxes
|
| | | | 8,971 | | | | | | 5,090 | | | | | | 9,791 | | | | | | (7,856) | | | | | | 13,391 | | |
Income tax (expense) benefit
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | | | | | 3,545 | | | | | | (3,762) | | |
|
| | |
Years Ended June 30,
|
| |
Three Months Ended
September 30 |
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
(Unaudited) |
| |
2020
(Unaudited) |
| |||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||
Net income (loss)
|
| | | € | 5,503 | | | | | € | 1,651 | | | | | € | 6,350 | | | | | € | 4,311 | | | | | € | 9,629 | | |
|
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30
|
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
(Unaudited) |
| |
2020
(Unaudited) |
| |||||||||||||||
Net sales
|
| | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | |
Cost of sales, exclusive of depreciation and amortization
|
| | | | (52.9) | | | | | | (53.1) | | | | | | (53.3) | | | | | | (53.2) | | | | | | (53.6) | | |
Gross profit
|
| | | | 47.1 | | | | | | 46.9 | | | | | | 46.7 | | | | | | 46.8 | | | | | | 46.4 | | |
Shipping and payment costs
|
| | | | (11.9) | | | | | | (11.6) | | | | | | (11.8) | | | | | | (13.3) | | | | | | (11.7) | | |
Marketing expenses
|
| | | | (15.7) | | | | | | (14.7) | | | | | | (13.9) | | | | | | (16.0) | | | | | | (13.8) | | |
Selling, general and administrative expenses
|
| | | | (13.2) | | | | | | (13.7) | | | | | | (14.8) | | | | | | (14.1) | | | | | | (12.3) | | |
Depreciation and amortization
|
| | | | (2.2) | | | | | | (2.0) | | | | | | (1.8) | | | | | | (1.9) | | | | | | (1.6) | | |
Other income (expense), net
|
| | | | 0.5 | | | | | | 0.3 | | | | | | 0.1 | | | | | | (0.0) | | | | | | (0.5) | | |
Operating income
|
| | | | 4.5 | | | | | | 5.0 | | | | | | 4.7 | | | | | | 1.5 | | | | | | 6.5 | | |
Finance (expense) income, net
|
| | | | (1.6) | | | | | | (3.7) | | | | | | (2.5) | | | | | | (9.5) | | | | | | 4.1 | | |
Income (loss) before income taxes
|
| | | | 3.0 | | | | | | 1.3 | | | | | | 2.2 | | | | | | (7.9) | | | | | | 10.6 | | |
Income tax (expense) benefit
|
| | | | (1.1) | | | | | | (0.9) | | | | | | (0.8) | | | | | | 3.6 | | | | | | (3.0) | | |
Net income (loss)
|
| | | | 1.8% | | | | | | 0.4% | | | | | | 1.4% | | | | | | (4.3)% | | | | | | 7.6% | | |
| | |
Three months ended September 30,
|
| | | | | | | | | | | | | |||||||||||||||||||||
| | |
2019
|
| |
% of
Net sales |
| |
2020
|
| |
% of
Net sales |
| |
Change
|
| |
% Change
|
| ||||||||||||||||||
Personnel expenses
|
| | | € | (11,188) | | | | | | (11.3)% | | | | | € | (12,684) | | | | | | (10.0)% | | | | | € | (1,496) | | | | | | 13.4% | | |
thereof fulfilment personnel expenses
|
| | | | (2,196) | | | | | | (2.2) | | | | | | (2,913) | | | | | | (2.3) | | | | | | (717) | | | | | | 32.7 | | |
General and administrative expenses
|
| | | | (2,767) | | | | | | (2.8) | | | | | | (2,872) | | | | | | (2.3) | | | | | | (105) | | | | | | 3.8 | | |
Total
|
| | | € | (13,955) | | | | | | (14.1)% | | | | | € | (15,556) | | | | | | (12.3)% | | | | | € | (1,601) | | | | | | 11.5% | | |
| | |
Years ended June 30,
|
| | | | | | | | | | | | | |||||||||||||||||||||
| | |
2019
|
| |
% of
Net sales |
| |
2020
|
| |
% of
Net sales |
| |
Change
|
| |
% Change
|
| ||||||||||||||||||
Personnel expenses
|
| | | € | (41,601) | | | | | | (11.0)% | | | | | € | (50,910) | | | | | | (11.3)% | | | | | € | (9,309) | | | | | | 22.4% | | |
thereof fulfilment personnel expenses
|
| | | | (7,976) | | | | | | (2.1) | | | | | | (10,149) | | | | | | (2.3) | | | | | | (2,173) | | | | | | 27.2 | | |
General and administrative expenses
|
| | | | (10,437) | | | | | | (2.8) | | | | | | (15,517) | | | | | | (3.5) | | | | | | (5,080) | | | | | | 48.7 | | |
Total
|
| | | € | (52,038) | | | | | | (13.7)% | | | | | € | (66,427) | | | | | | (14.8)% | | | | | € | (14,389) | | | | | | 27.7% | | |
| | |
Years Ended June 30,
|
| | | | | | | | | | | | | |||||||||||||||||||||
| | |
2018
|
| |
% of
Net sales |
| |
2019
|
| |
% of
Net sales |
| |
Change
|
| |
%
Change |
| ||||||||||||||||||
| | |
(in thousands)
|
| | | | | | | | | | | | | |||||||||||||||||||||
Personnel-related expenses
|
| | | € | (33,590) | | | | | | (11.1)% | | | | | € | (41,601) | | | | | | (11.0)% | | | | | € | (8,011) | | | | | | 23.8% | | |
thereof fulfilment personnel
expenses |
| | | | (6,243) | | | | | | (2.1) | | | | | | (7,976) | | | | | | (2.1) | | | | | | (1,733) | | | | | | 27.8% | | |
Other general and administrative
expenses |
| | | | (6,524) | | | | | | (2.1) | | | | | | (10,437) | | | | | | (2.8) | | | | | | (3,913) | | | | | | 60.0% | | |
Total
|
| | | € | (40,114) | | | | | | (13.2)% | | | | | € | (52,038) | | | | | | (13.7)% | | | | | € | (11,924) | | | | | | 29.7% | | |
| | |
Three months ended
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
September 30,
2020 |
| |||||||||||||||||||||||||||
| | |
(unaudited, in thousands)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||
Net sales
|
| | | € | 79,791 | | | | | € | 98,885 | | | | | € | 99,215 | | | | | € | 101,195 | | | | | € | 99,112 | | | | | € | 119,369 | | | | | € | 111,735 | | | | | € | 119,271 | | | | | € | 126,359 | | |
Cost of sales
|
| | | | (43,862) | | | | | | (50,863) | | | | | | (53,729) | | | | | | (52,956) | | | | | | (52,766) | | | | | | (60,989) | | | | | | (61,798) | | | | | | (63,993) | | | | | | (67,678) | | |
Gross profit
|
| | | | 35,929 | | | | | | 48,022 | | | | | | 45,486 | | | | | | 48,239 | | | | | | 46,346 | | | | | | 58,380 | | | | | | 49,937 | | | | | | 55,278 | | | | | | 58,681 | | |
Shipping and payment costs
|
| | | | (9,111) | | | | | | (11,359) | | | | | | (11,387) | | | | | | (12,247) | | | | | | (13,141) | | | | | | (14,204) | | | | | | (13,129) | | | | | | (12,383) | | | | | | (14,833) | | |
Marketing expenses
|
| | | | (13,239) | | | | | | (12,420) | | | | | | (14,424) | | | | | | (15,684) | | | | | | (15,816) | | | | | | (17,294) | | | | | | (16,199) | | | | | | (13,198) | | | | | | (17,441) | | |
Selling, general and administrative expenses
|
| | | | (10,940) | | | | | | 12,205 | | | | | | (14,488) | | | | | | (14,405) | | | | | | (13,955) | | | | | | (17,839) | | | | | | (20,001) | | | | | | (14,632) | | | | | | (15,556) | | |
Depreciation and amortization
|
| | | | (1,855) | | | | | | (2,192) | | | | | | (1,809) | | | | | | (1,830) | | | | | | (1,877) | | | | | | (1,987) | | | | | | (1,881) | | | | | | (2,140) | | | | | | (2,021) | | |
Other income, net
|
| | | | 39 | | | | | | 467 | | | | | | (121) | | | | | | 610 | | | | | | (40) | | | | | | 284 | | | | | | (124) | | | | | | 525 | | | | | | (621) | | |
Operating Income
|
| | | | 823 | | | | | | 10,313 | | | | | | 3,257 | | | | | | 4,683 | | | | | | 1,517 | | | | | | 7,340 | | | | | | (1,397) | | | | | | 13,450 | | | | | | 8,209 | | |
Finance expenses, net
|
| | | | (3,108) | | | | | | (4,740) | | | | | | (5,761) | | | | | | (377) | | | | | | (9,373) | | | | | | 3,389 | | | | | | (5,522) | | | | | | 387 | | | | | | 5,182 | | |
Income before income taxes
|
| | | | (2,285) | | | | | | 5,573 | | | | | | (2,504) | | | | | | (4,306) | | | | | | (7,856) | | | | | | 10,729 | | | | | | (6,919) | | | | | | 13,837 | | | | | | 13,391 | | |
Income tax expense
|
| | | | 1,329 | | | | | | (2,932) | | | | | | 558 | | | | | | (2,393) | | | | | | 3,545 | | | | | | (4,398) | | | | | | 189 | | | | | | (2,777) | | | | | | (3,762) | | |
Net income
|
| | | € | (954) | | | | | € | 2,640 | | | | | € | (1,945) | | | | | € | 1,910 | | | | | € | (4,311) | | | | | € | 6,331 | | | | | € | (6,730) | | | | | € | 11,060 | | | | | € | 9,629 | | |
| | |
Three months ended
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
September 30,
2020 |
| |||||||||||||||||||||||||||
Net sales
|
| | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | |
Cost of sales
|
| | | | (55.0) | | | | | | (51.4) | | | | | | (54.2) | | | | | | (52.3) | | | | | | (53.2) | | | | | | (51.1) | | | | | | (55.3) | | | | | | (53.7) | | | | | | (53.6) | | |
Gross profit
|
| | | | 45.0 | | | | | | 48.6 | | | | | | 45.8 | | | | | | 47.7 | | | | | | 46.8 | | | | | | 48.9 | | | | | | 44.7 | | | | | | 46.3 | | | | | | 46.4 | | |
Shipping and payment costs
|
| | | | (11.4) | | | | | | (11.5) | | | | | | (11.5) | | | | | | (12.1) | | | | | | (13.3) | | | | | | (11.9) | | | | | | (11.8) | | | | | | (10.4) | | | | | | (11.7) | | |
Marketing expenses
|
| | | | (16.6) | | | | | | (12.6) | | | | | | (14.5) | | | | | | (15.5) | | | | | | (16.0) | | | | | | (14.5) | | | | | | (14.5) | | | | | | (11.1) | | | | | | (13.8) | | |
Selling, general and administrative expenses
|
| | | | (13.7) | | | | | | (12.3) | | | | | | (14.6) | | | | | | (14.2) | | | | | | (14.1) | | | | | | (14.9) | | | | | | (17.9) | | | | | | (12.3) | | | | | | (12.3) | | |
Depreciation and amortization
|
| | | | (2.3) | | | | | | (2.2) | | | | | | (1.8) | | | | | | (1.8) | | | | | | (1.9) | | | | | | (1.7) | | | | | | (1.7) | | | | | | (1.8) | | | | | | (1.6) | | |
Other income, net
|
| | | | 0.0 | | | | | | 0.5 | | | | | | (0.1) | | | | | | 0.6 | | | | | | (0.0) | | | | | | 0.2 | | | | | | (0.1) | | | | | | 0.4 | | | | | | (0.5) | | |
Operating Income
|
| | | | 1.0 | | | | | | 10.4 | | | | | | 3.3 | | | | | | 4.6 | | | | | | 1.5 | | | | | | 6.1 | | | | | | (1.3) | | | | | | 11.3 | | | | | | 6.5 | | |
Finance expenses, net
|
| | | | (3.9) | | | | | | (4.8) | | | | | | (5.8) | | | | | | (0.4) | | | | | | (9.5) | | | | | | 2.8 | | | | | | (4.9) | | | | | | 0.3 | | | | | | 4.1 | | |
Income before income taxes
|
| | | | (2.9) | | | | | | 5.6 | | | | | | (2.5) | | | | | | 4.3 | | | | | | (7.9) | | | | | | 9.0 | | | | | | (6.2) | | | | | | 11.6 | | | | | | 10.6 | | |
Income tax expense
|
| | | | 1.7 | | | | | | (3.0) | | | | | | 0.6 | | | | | | (2.4) | | | | | | 3.6 | | | | | | (3.7) | | | | | | 0.2 | | | | | | (2.3) | | | | | | (3.0) | | |
Net income
|
| | | | (1.2)% | | | | | | 2.7% | | | | | | (2.0)% | | | | | | 1.9% | | | | | | (4.3)% | | | | | | 5.3% | | | | | | (6.0)% | | | | | | 9.3% | | | | | | 7.6% | | |
|
| | |
Year ended June 30,
|
| |
Three months ended September 30,
|
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
|
| |
2020
|
| |||||||||||||||
Net Sales | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Online
|
| | | € | 292,030 | | | | | € | 365,558 | | | | | € | 437,448 | | | | | € | 95,386 | | | | | € | 123,288 | | |
Retail Store
|
| | | | 11,490 | | | | | | 13,528 | | | | | | 12,039 | | | | | | 3,726 | | | | | | 3,071 | | |
EBITDA | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Online
|
| | | € | 20,105 | | | | | € | 26,455 | | | | | € | 32,361 | | | | | € | 2,872 | | | | | € | 9,828 | | |
Retail Store
|
| | | | 772 | | | | | | 2,634 | | | | | | 1,947 | | | | | | 698 | | | | | | 667 | | |
| | |
Years Ended June 30,
|
| |
Three Months Ended September 30,
|
| ||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |
2019
|
| |
2020
|
| |||||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||||||||
Consolidated Statement of Cash Flow Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net cash (outflow) inflow from operating activities
|
| | | € | (4,862) | | | | | € | 2,367 | | | | | € | 10,559 | | | | | € | (21,996) | | | | | € | (33,378) | | |
Net cash outflow from investing activities
|
| | | | (5,431) | | | | | | (1,845) | | | | | | (2,420) | | | | | | (619) | | | | | | (904) | | |
Net cash (outflow) inflow from financing activities
|
| | | | (4,410) | | | | | | (2,092) | | | | | | (878) | | | | | | 25,127 | | | | | | 30,834 | | |
| | | | | | | | |
Payments Due by Period
|
| |||||||||||||||||||||
| | |
Total
|
| |
Less than
one year |
| |
1-3 Years
|
| |
3-5 Years
|
| |
More than
5 Years |
| |||||||||||||||
Contractual obligations | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Lease liabilities(1)
|
| | | € | 21,018 | | | | | € | 6,360 | | | | | € | 10,132 | | | | | € | 4,526 | | | | | € | — | | |
Other lease obligations(2)
|
| | | | 365 | | | | | | 157 | | | | | | 202 | | | | | | 6 | | | | | | — | | |
Revolving credit facilities(3)
|
| | | | 10,000 | | | | | | 10,000 | | | | | | — | | | | | | — | | | | | | — | | |
Shareholder Loans(4)
|
| | | | 252,045 | | | | | | — | | | | | | — | | | | | | — | | | | | | 252,045 | | |
Total | | | | € | 283,428 | | | | | € | 16,517 | | | | | € | 10,334 | | | | | € | 4,532 | | | | | € | 252,045 | | |
| | |
As of
September 30, 2020 |
| |||
Department: | | | | | | | |
Creative, Customer Experience and Public Relations
|
| | | | 135.6 | | |
Performance Marketing, CRM and Business Development
|
| | | | 55.9 | | |
Buying, Merchandising & Planning
|
| | | | 64.8 | | |
Finance, Human Resources & Management
|
| | | | 85.2 | | |
IT & Shop Management
|
| | | | 85.4 | | |
Customer Service, Fulfillment & Logistics
|
| | | | 366.6 | | |
Other(1) | | | | | 35.1 | | |
Total | | | | | 828.5 | | |
| | |
As of
September 30, 2020 |
| |||
Geography: | | | | | | | |
Germany
|
| | | | 761.4 | | |
Italy
|
| | | | 5.0 | | |
United Kingdom
|
| | | | 16.0 | | |
Spain
|
| | | | 44.5 | | |
United States of America
|
| | | | 1.6 | | |
Total | | | | | 828.5 | | |
Location
|
| |
Type
|
| |
Square Meters
|
| |
Lease
Expiration |
| |
Right of
Renewal |
|
Aschheim, Germany
|
| |
Corporate Headquarters
|
| |
9,830
|
| |
Feb. 2025
|
| | Yes | |
Heimstetten, Germany
|
| | Fulfillment Center | | |
16,970
|
| |
Apr. 2024
|
| | Yes | |
Munich, Germany
|
| | Store | | |
1,625
|
| |
Dec. 2022
|
| | Yes | |
Munich, Germany
|
| | Store | | |
102
|
| |
Dec. 2022
|
| | Yes | |
Shanghai
|
| | Office space | | |
10
|
| |
Apr. 2021
|
| | Yes | |
Berlin
|
| | Office space | | |
250
|
| |
Sep. 2021
|
| | Yes | |
Milan
|
| | Photo Studio | | |
1,815
|
| |
Aug. 2025
|
| | Yes | |
Barcelona
|
| | Office space | | |
630
|
| |
Nov. 2024
|
| | No | |
Name
|
| |
Age
|
| |
Term Ends
|
| |
Position
|
|
Michael Kliger | | |
53
|
| | 2024 | | | Chief Executive Officer | |
Dr. Martin Beer | | |
52
|
| | 2024 | | | Chief Financial Officer | |
Name
|
| |
Age
|
| |
Term
|
| |
Position
|
|
Sebastian Dietzmann | | |
46
|
| | 2025 | | | Chief Operating Officer | |
Gareth Locke | | |
45
|
| | 2025 | | | Chief Growth Officer | |
Isabel May | | |
47
|
| | 2025 | | | Chief Customer Experience Officer | |
Name
|
| |
Age
|
| |
Term Expires
|
| |
Principal Occupation
|
|
Dennis Gies | | |
41
|
| |
2024
|
| |
Senior Advisor, Private Equity Group of Ares Management Corporation
|
|
David B. Kaplan | | |
53
|
| |
2024
|
| |
Co-Founder, Director, Partner and Co-Chairman of Private Equity Group of Ares Management Corporation
|
|
Marjorie Lao* | | |
46
|
| |
2024
|
| |
Director, Modern Times Group and Logitech
|
|
Cesare Ruggiero | | |
44
|
| |
2024
|
| | Managing Director, CPPIB | |
Susan Gail Saideman* | | |
58
|
| |
2024
|
| |
Director, Church & Dwight Co., Inc. and Prepac Manufacturing Ltd.
|
|
Michaela Tod | | |
51
|
| |
2024
|
| | Consultant | |
Sascha Zahnd* | | |
45
|
| |
2024
|
| | Vice-Chairman, Valora Holding AG | |
Name of Committee
|
| |
Current Members
|
|
Audit Committee
|
| |
Marjorie Lao
Dennis Gies Cesare J. Ruggiero Sascha Zahnd Susan Gail Saideman |
|
Nominating, Governance and Compensation Committee
|
| |
Dennis Gies
Cesare J. Ruggiero Michaela Tod David B. Kaplan |
|
| | | | | | | | | | | | | | | | | | | | |
Ordinary shares beneficially
owned after the Offering |
| |||||||||||||||||||||
| | |
Ordinary shares
beneficially owned before the Offering |
| |
Shares offered
hereby |
| |
No exercise of
underwriters’ option to purchase additional ADSs |
| |
Full exercise of
underwriters’ option to purchase additional ADSs |
| ||||||||||||||||||||||||||||||
Shareholder
|
| |
Number
|
| |
Percent
|
| |
Number
|
| |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
| |||||||||||||||||||||
Selling Shareholder | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
MYT Holding(1)
|
| | | | 70,190,687 | | | | | | 97.30% | | | | | | 2,000,000 | | | | | | 68,190,687 | | | | | | 79.49% | | | | | | 66,430,393 | | | | | | 76.90% | | |
Members of our Supervisory Board
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Dennis Gies
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
David B. Kaplan
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Marjorie Lao
|
| | | | 4,000 | | | | | | * | | | | | | — | | | | | | 4,000 | | | | | | * | | | | | | 4,000 | | | | | | * | | |
Cesare Ruggiero
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Susan Gail Saideman
|
| | | | 4,000 | | | | | | * | | | | | | — | | | | | | 4,000 | | | | | | * | | | | | | 4,000 | | | | | | * | | |
Michaela Tod
|
| | | | 4,000 | | | | | | * | | | | | | — | | | | | | 4,000 | | | | | | * | | | | | | 4,000 | | | | | | * | | |
Sascha Zahnd
|
| | | | 4,000 | | | | | | * | | | | | | — | | | | | | 4,000 | | | | | | * | | | | | | 4,000 | | | | | | * | | |
Members of our Management Board
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Michael Kliger
|
| | | | 965,069 | | | | | | 1.34% | | | | | | — | | | | | | 965,069 | | | | | | 1.13% | | | | | | 971,822 | | | | | | 1.13% | | |
Dr. Martin Beer
|
| | | | 231,616 | | | | | | * | | | | | | — | | | | | | 231,616 | | | | | | * | | | | | | 233,237 | | | | | | * | | |
Members of our senior management
|
| | | | 389,974 | | | | | | * | | | | | | — | | | | | | 389,974 | | | | | | * | | | | | | 392,702 | | | | | | * | | |
All members of our
Supervisory Board, and Management Board and senior management, as a group |
| | | | 1,602,659 | | | | | | 2.28% | | | | | | — | | | | | | 1,602,659 | | | | | | 1.87% | | | | | | 1,613,761 | | | | | | 1.87% | | |
| | |
The Netherlands
|
| |
Delaware
|
|
Board System | | |
A Dutch B.V. may choose to have a two-tier board structure composed of the Management Board and the Supervisory Board. We have chosen this structure.
The Management Board is responsible for running the company’s affairs and representing the company in dealings with third parties.
The Supervisory Board has a supervisory and advisory function. The Supervisory Board does not actively manage the company but certain Management Board actions require the approval of the Supervisory Board. The absence of the approval of the Supervisory Board shall result in the relevant resolution being null and void, but shall not affect the powers of representation of the Management Board or its members.
|
| |
Under Delaware law, a corporation has a unitary board structure, and it is the responsibility of the board of directors to appoint and oversee the management of the corporation on behalf of and in the best interests of the stockholders of the corporation.
Management is responsible for running the corporation and overseeing its day-to-day operations.
|
|
Appointment and Number of Directors | | |
The Articles of Association of MYT Netherlands provide that there will be at least one member of the Management Board, and the actual number of the members of the Management Board will be determined by the Supervisory Board.
Management Board members are appointed by the general meeting upon a binding nomination of the Supervisory Board.
The general meeting has the right to overrule the binding nature of the nomination of the Supervisory Board by a resolution of the general meeting adopted with a two-thirds majority of the votes cast representing more than half of
|
| | Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws. | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | |
the issued and outstanding share capital of the Company. If the binding nomination is overruled, the Supervisory Board shall draw up a new binding nomination to be voted upon in the next general meeting.
Members of the Management Board are appointed for a period of four years, provided that, unless a member of the Management Board retires sooner or upon his or her appointment a term shorter than four years has been determined, his or her term shall expire as of the moment of the closing of the annual general meeting, to be held in the fourth calendar year following the year of his or her appointment. A member of our Management Board may be re-appointed with due observance of the previous sentence.
|
| | | |
| | |
The Articles of Association of MYT Netherlands provide that the Supervisory Board must consist of at least three Supervisory Board members.
The actual number of Supervisory Board members shall be determined by the Supervisory Board.
Subject to the shareholding of MYT Holding (as further explained below), the Articles of Association provide that members of the Supervisory Board are appointed by the general meeting for a maximum term of four years provided that, unless a member of the Supervisory Board retires sooner or upon his or her appointment a term shorter than four years has been determined, his or her term shall expire at the closing of the annual a general meeting to be held in the fourth calendar year after the year of his or her appointment. From and after the
|
| | | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | date MYT Holding directly or indirectly owns less than 25% of the issued and outstanding share capital of MYT Netherlands, MYT Netherlands will be required to file a declaration confirming such event with the Dutch Trade Register of the Chamber of Commerce and to publish a public announcement confirming such filing. Effective at the time of filing of such declaration, the terms of the members of the Supervisory Board then in office will automatically be reduced to expire at the closing of the next annual general meeting, and thereafter the term of all members of the Supervisory Board will expire each year at the closing of the annual general meeting. A member of our Supervisory Board may be reappointed with due observance of the previous two sentences. | | | | |
Removal of Directors | | |
The general meeting and the Supervisory Board are authorized to dismiss, with or without cause, a member of the Management Board from office at any time.
The general meeting and the Supervisory Board are authorized to suspend a member of the Management Board from office at any time. The general meeting may lift such suspension at any time and such suspension will automatically lapse if the general meeting does not resolve to dismiss such member of the Management Board within three months of such suspension.
The general meeting may at any time suspend or dismiss, with or without cause, any member of the Supervisory Board. The general meeting may lift such suspension at any time and such suspension will automatically lapse if the general meeting does not resolve to dismiss such member of the
|
| | Under Delaware law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (i) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board of directors is classified, stockholders may effect such removal only for cause; or (ii) in the case of a corporation having cumulative voting, if less than the entire board of directors is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part. | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | Supervisory Board within three months of such suspension. | | | | |
Vacancies on the Board of Directors | | |
Vacancies on the Management Board are filled by the general meeting upon a binding nomination of the Supervisory Board. In the event of the absence or inability to act of all the members of our Management Board or the sole remaining member of our Management Board, a person appointed for that purpose by the Supervisory Board shall be temporarily charged with the management of the Company.
A vacancy on the Supervisory Board does not affect the valid composition of the Supervisory Board.
|
| | Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (i) otherwise provided in the certificate of incorporation or by-laws of the corporation or (ii) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy. | |
Annual general meeting | | | At least once during each financial year, an annual general meeting has to be held. The annual general meeting and any extraordinary general meeting must be held in the district of Munich, or in certain other municipalities within the Federal Republic of Germany specified in our Articles of Association, as decided by the Management Board. An annual general meeting and any extraordinary general meeting may also be held in any other location if all holders of meeting rights have agreed with the location and the members of the Management Board and Supervisory Board have had the opportunity to advise the general meeting. | | | Under Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or by the bylaws. | |
General meeting | | |
Under the law, extraordinary general meetings, in addition to the annual general meeting, may be called by either the Management Board or by the Supervisory Board.
Shareholders who individually or together with other shareholders represent at least 1% of issued share capital may submit a
|
| | Under Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | written request that a general meeting be convened, provided that such request contains a detailed description of the items to be addressed at said general meeting. The Management Board and the Supervisory Board must take the necessary steps to ensure that a general meeting is held within four weeks of its receipt of such request, unless this would conflict with a substantial interest of MYT Netherlands. If such general meeting has not been convened within four weeks following such shareholder’s request, the shareholders making such request may, upon their request, be authorized by the court in summary proceedings to convene a general meeting. | | | | |
Notice of General meetings | | | Under applicable Dutch law, unless a longer period is otherwise provided for in the articles of association or applies because of registration requirements stipulated in the articles of association, the shareholders must be given at least eight days’ advance notice of the general meeting. Such notices must at least specify the name of the company, and the location, date and time of the general meeting. In addition, the notice must contain the agenda items as well. | | | Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the stockholders must be given to each stockholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour, and purpose or purposes of the meeting. | |
Proxy | | |
A shareholder may designate another person to attend, speak and vote at a general meeting of the company on such shareholder’s behalf by written proxy.
With respect to Management Board meetings, a Management Board member may participate in voting by issuing a written vote via another Management Board member entitled to attend the Management Board meeting.
|
| | Under Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A director of a Delaware corporation may not issue a proxy representing the director’s voting rights as a director. | |
| | | With respect to Supervisory Board meetings, a Supervisory | | | | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | Board member may participate in voting by issuing a written vote to another Supervisory Board member entitled to attend the Supervisory Board meeting. | | | | |
Preemptive Rights | | | Under Dutch law, every shareholder is generally entitled to subscription rights (commonly known as preemptive rights) to any new shares issued in proportion to the number of shares he or she holds in the company’s existing share capital. Under our Articles of Association, any pre-emptive rights of shareholders are fully excluded and no shareholder has any pre-emptive right on any further share issue or any grant of rights to subscribe for shares. | | | Under Delaware law, stockholders have no preemptive rights to subscribe to additional issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation. | |
Authority to Allot | | | Under Dutch law and the Articles of Association of MYT Netherlands, the general meeting is authorized to issue shares. The general meeting may delegate its powers in this respect to another corporate body of MYT Netherlands and may revoke such delegation. On September 17, 2020, the general meeting resolved to delegate the authority to issue shares to the Management Board for a period of five years. The authority to issue shares is unlimited. A share issue is effective as of the moment of the execution of a notarial deed of issuance of shares before a Dutch notary. | | | Under Delaware law, if the corporation’s certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. It may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive. | |
Liability of Directors and Officers | | | Under Dutch law, any provision, whether contained in the company’s articles of association or any contract or otherwise, that purports to exempt a Management or Supervisory Board member from any liability that would otherwise attach to such board member in connection with any negligence, default, breach of duty or breach of trust in relation to the company may not be enforceable. | | |
Under Delaware law, a corporation’s certificate of incorporation may include a provision eliminating or limiting the personal liability of a director to the corporation and its stockholders for damages arising from a breach of fiduciary duty as a director. However, no provision can limit the liability of a director for:
•
any breach of the director’s duty of loyalty to the
|
|
| | |
The Netherlands
|
| |
Delaware
|
|
| | | Under Dutch law, under special circumstances, members of both the Management Board and members of the Supervisory Board may be held liable to the company, to third parties or shareholders, for any damage caused to them due to serious negligence (ernstig verwijt). Apart from insolvency or special circumstances, only the company has the right to claim damages from members of either board. It is customary for the company to waive such claims against the members of the management and supervisory boards in the course of the adoption of the annual accounts. Such waiver only covers events that are reflected in the annual accounts. | | |
corporation or its stockholders;
•
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•
intentional or negligent payment of unlawful dividends or stock purchases or redemptions; or
•
any transaction from which the director derives an improper personal benefit.
|
|
Voting Rights | | | Each ordinary share is entitled to one vote. | | | Delaware law provides that, unless otherwise provided in the certificate of incorporation, each stockholder is entitled to one vote for each share of capital stock held by such stockholder. | |
Shareholder Vote on Certain Transactions | | |
In principle, the adoption of any resolution by the general meeting, including resolutions approving any merger, consolidation, sale, lease or exchange of all or substantially all of the assets of MYT Netherlands or dissolution, requires the affirmative vote of a simple majority of the votes permitted to be cast by persons present and voting at a general meeting at which a quorum is present.
Resolutions may also be adopted outside a meeting, subject to the requirements set out in Dutch law, including that all persons with meeting rights consent to such method of decision-making.
|
| |
Generally, under Delaware law, unless the certificate of incorporation provides for a greater vote, any merger, consolidation, sale, lease or exchange of all or substantially all of a corporation’s assets or dissolution requires:
•
the approval of the board of directors; and
•
approval by the vote of the holders of a majority of the outstanding shares entitled to vote thereof and, if the certificate of incorporation provides for a separate vote of any class or series of stock, the approval by the holders of a majority of the outstanding shares of such class or series of stock of a corporation entitled to vote on the matter.
|
|
Standard of Conduct for Directors | | | Members of the Management Board have a general duty to | | | Delaware law does not contain specific provisions setting forth | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | |
exercise care and skill towards the Company, according to which each member of the Management Board should properly perform his duties. The standard that applies is that of a capable member of the Management Board who exercises his or her tasks meticulously.
The Management Board is charged with managing the Company. Dutch law does not describe what is meant by “managing”; the scope of what is considered to be part of managing the Company depends on the type of enterprise being managed, its articles of association and its activities.
In any case, Dutch law explicitly includes the following duties:
(i)
keeping records of the Company’s financial position and of everything concerning its activities, as well as keeping the Company’s books, records and other databases (including the shareholders’ register) in such a manner that the Company’s rights and obligations can be ascertained from them at all times;
(ii)
preparing and filing the Company’s annual accounts with the Trade Register on time;
(iii)
registering the Company with the Trade Register and keeping the registered information up to date;
(iv)
preparing general meetings; and
(v)
representing the Company.
|
| |
the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self-interest, on a well-informed basis and in a manner they reasonably believe to be in the best interest of the stockholders.
Directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its stockholders. The duty of care generally requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. In general, but subject to certain exceptions, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation.
|
|
| | | The Supervisory Board’s duty is to supervise the policy of the Management Board, the general course of affairs of the Company | | | In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | and of the enterprise connected with it and to advise the Management Board. The standard that applies is that of a capable member of the Management Board who exercises his or her tasks meticulously. | | | corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the stockholders. | |
| | | Under Dutch law, the corporate interest extends to the interests of all corporate stakeholders, such as shareholders, creditors, employees, customers and suppliers. | | | ||
Stockholder Actions | | |
Under Dutch law, generally, the company, rather than its shareholders, is the proper claimant in an action with respect to a wrong committed against the company, or in cases where there is an irregularity in the company’s internal management or supervision. Therefore, such claims may only be raised by the company represented by its Management Board. In the case of a wrong committed by a member of the Management Board, the other members of the Management Board may raise such claim on behalf of the Company. This does not preclude claims from third parties against such Management Board Member that has committed a wrong.
|
| |
Under Delaware law, a stockholder may initiate a derivative action to enforce a right of a corporation if the corporation fails to enforce the right itself. The complaint must:
•
state that the plaintiff was a stockholder at the time of the transaction of which the plaintiff complains or that the plaintiffs shares thereafter devolved on the plaintiff by operation of law; and
•
either (i) allege with particularity the efforts made by the plaintiff to obtain the action the plaintiff desires from the directors and the reasons for the plaintiff’s failure to obtain the action, or (ii) or state the reasons for not making the effort.
|
|
| | | The Management Board, or, if a claim is against a member of the Management Board, the Supervisory Board, is obliged to pursue the company’s claims against the designated individuals if so resolved by a simple majority of votes cast during a general meeting provided this is specified in the company’s articles of association. With a simple majority of votes, shareholders can request that a representative pursues the claim on behalf of the company. | | |
Additionally, the plaintiff must remain a stockholder through the duration of the derivative suit. The action will not be dismissed or compromised without the approval of the Delaware Court of Chancery.
|
|
| | |
If the company is unable to fulfill
|
| | | |
| | |
The Netherlands
|
| |
Delaware
|
|
| | | its third-party obligations, the company’s creditors may pursue the company’s damage claims against members of the Management Board for certain wrongdoings if such members acted unlawfully towards those third parties. | | | | |
|
Persons depositing or withdrawing shares or
ADS holders must pay: |
| |
For:
|
|
| $5.00 (or less) per 100 ADSs (or portion of ADSs) | | | Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property | |
| | | | Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates | |
| $0.05 (or less) per ADS | | | Any cash distribution to ADS holders | |
| | | | Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders | |
| $0.05 (or less) per ADS per calendar year | | | Depositary services | |
| Registration or transfer fees | | | Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares | |
| Expenses of the depositary | | | Cable and facsimile transmissions (when expressly provided in the deposit agreement) | |
| | | | Converting foreign currency to U.S. Dollars | |
| Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes | | | As necessary | |
| Any charges incurred by the depositary or its agents for servicing the deposited securities | | | As necessary | |
Underwriters
|
| |
Number of ADSs
|
| |||
Morgan Stanley & Co. LLC
|
| | | | | | |
J.P. Morgan Securities LLC
|
| | | | | | |
Credit Suisse Securities (USA) LLC
|
| | | | | | |
UBS Securities LLC
|
| | | | | | |
Jefferies LLC
|
| | | | | | |
Cowen and Company, LLC
|
| | | | | | |
Total
|
| | | | 15,647,059 | | |
| | | | | | | | |
Total
|
| |||||||||
| | |
Per Share
|
| |
No Exercise
|
| |
Full Exercise
|
| |||||||||
Public offering price
|
| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discounts and commissions to be paid by us
|
| | | $ | | | | | $ | | | | | $ | | | |||
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | | | | $ | | | |||
Proceeds, before, expenses, to the Selling Shareholder
|
| | | $ | | | | | $ | | | | | $ | | | |
Expenses
|
| |
Amount
|
| |||
U.S. Securities and Exchange Commission registration fee
|
| | | $ | 35,337 | | |
FINRA filing fee
|
| | | | 70,678 | | |
NYSE listing fee
|
| | | | 100,000 | | |
Printing and engraving expenses
|
| | | | 475,000 | | |
Legal fees and expenses
|
| | | | 3,725,000 | | |
Accounting fees and expenses
|
| | | | 7,480,000 | | |
Miscellaneous costs
|
| | | | 1,613,985 | | |
Total
|
| | | $ | 13,500,000 | | |
| | |
Page
|
| |||
Consolidated Financial Statements | | | | | | | |
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | | |
Interim Condensed Consolidated Financial Statements (unaudited) | | | | | | | |
| | | | F-44 | | | |
| | | | F-45 | | | |
| | | | F-46 | | | |
| | | | F-47 | | | |
| | | | F-48 | | |
| | | | | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
Note
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Net sales
|
| |
7,8
|
| | | | 303,520 | | | | | | 379,086 | | | | | | 449,487 | | |
Cost of sales, exclusive of depreciation and amortization
|
| |
16
|
| | | | (160,469) | | | | | | (201,410) | | | | | | (239,546) | | |
Gross profit | | | | | | | | 143,051 | | | | | | 177,676 | | | | | | 209,941 | | |
Shipping and payment cost
|
| | | | | | | (36,163) | | | | | | (44,104) | | | | | | (52,857) | | |
Marketing expenses
|
| | | | | | | (47,671) | | | | | | (55,767) | | | | | | (62,507) | | |
Selling, general and administrative expenses
|
| |
9
|
| | | | (40,114) | | | | | | (52,038) | | | | | | (66,427) | | |
Depreciation and amortization
|
| |
13,14,15
|
| | | | (6,796) | | | | | | (7,686) | | | | | | (7,885) | | |
Other income, net
|
| |
10
|
| | | | 1,499 | | | | | | 995 | | | | | | 645 | | |
Operating income
|
| | | | | | | 13,806 | | | | | | 19,076 | | | | | | 20,910 | | |
Finance expenses, net
|
| |
11
|
| | | | (4,835) | | | | | | (13,986) | | | | | | (11,119) | | |
Income before income taxes
|
| | | | | | | 8,971 | | | | | | 5,090 | | | | | | 9,791 | | |
Income tax expense
|
| |
12
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | |
Net income
|
| | | | | | | 5,503 | | | | | | 1,651 | | | | | | 6,350 | | |
Other comprehensive income
|
| | | | | | | (1,244) | | | | | | 1,406 | | | | | | 4,730 | | |
Comprehensive income
|
| | | | | | | 4,259 | | | | | | 3,057 | | | | | | 11,080 | | |
Basic and diluted earnings per share
|
| |
5.2,27
|
| | | € | 0.08 | | | | | € | 0.02 | | | | | € | 0.09 | | |
Weighted average ordinary shares outstanding (basic and diluted)
|
| | | | | | | 70,190,687 | | | | | | 70,190,687 | | | | | | 70,190,687 | | |
(in € thousands)
|
| |
Note
|
| |
July 1, 2017
|
| |
June 30, 2018
|
| |
June 30, 2019
|
| |
June 30, 2020
|
| ||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Intangible assets and goodwill
|
| |
13
|
| | | | 154,968 | | | | | | 155,066 | | | | | | 155,208 | | | | | | 154,966 | | |
Property and equipment, net
|
| |
14
|
| | | | 6,973 | | | | | | 10,654 | | | | | | 9,804 | | | | | | 9,570 | | |
Right-of-use assets
|
| |
15
|
| | | | 24,831 | | | | | | 22,740 | | | | | | 17,711 | | | | | | 19,001 | | |
Prepayment option
|
| |
26
|
| | | | 13 | | | | | | 65 | | | | | | 184 | | | | | | — | | |
Total non-current assets
|
| | | | | | | 186,785 | | | | | | 188,525 | | | | | | 182,907 | | | | | | 183,537 | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Inventories
|
| |
16
|
| | | | 71,870 | | | | | | 106,715 | | | | | | 136,034 | | | | | | 169,131 | | |
Trade and other receivables
|
| |
17
|
| | | | 3,686 | | | | | | 5,560 | | | | | | 5,648 | | | | | | 4,815 | | |
Other assets
|
| |
18
|
| | | | 5,518 | | | | | | 9,064 | | | | | | 8,440 | | | | | | 18,950 | | |
Cash and cash equivalents
|
| | | | | | | 18,393 | | | | | | 3,690 | | | | | | 2,120 | | | | | | 9,367 | | |
Total current assets
|
| | | | | | | 99,467 | | | | | | 125,029 | | | | | | 152,242 | | | | | | 202,263 | | |
Total assets
|
| | | | | | | 286,252 | | | | | | 313,554 | | | | | | 335,149 | | | | | | 385,800 | | |
Shareholders’ equity and liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Subscribed capital
|
| |
19
|
| | | | 72 | | | | | | 72 | | | | | | 72 | | | | | | 1 | | |
Capital reserve
|
| |
19
|
| | | | 148,488 | | | | | | 148,808 | | | | | | 148,960 | | | | | | 91,008 | | |
Accumulated Deficit
|
| | | | | | | (41,738) | | | | | | (36,235) | | | | | | (34,584) | | | | | | (28,234) | | |
Accumulated other comprehensive income
|
| | | | | | | (3,290) | | | | | | (4,534) | | | | | | (3,128) | | | | | | 1,602 | | |
Total shareholders’ equity
|
| | | | | | | 103,532 | | | | | | 108,111 | | | | | | 111,320 | | | | | | 64,377 | | |
Non-current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| |
20
|
| | | | 108,722 | | | | | | 114,208 | | | | | | 126,079 | | | | | | 191,194 | | |
Other liabilities
|
| |
23
|
| | | | — | | | | | | 1,121 | | | | | | 3,515 | | | | | | 5,905 | | |
Tax liabilities
|
| |
21
|
| | | | 3,216 | | | | | | 4,666 | | | | | | 975 | | | | | | 3,853 | | |
Provisions
|
| |
22
|
| | | | 778 | | | | | | 781 | | | | | | 782 | | | | | | 582 | | |
Lease liabilities
|
| |
15
|
| | | | 20,297 | | | | | | 18,344 | | | | | | 13,675 | | | | | | 13,928 | | |
Deferred income tax liabilities, net
|
| |
12,24
|
| | | | 5,454 | | | | | | 5,315 | | | | | | 5,192 | | | | | | 1,130 | | |
Total non-current liabilities
|
| | | | | | | 138,467 | | | | | | 144,435 | | | | | | 150,218 | | | | | | 216,592 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities to banks
|
| |
20
|
| | | | — | | | | | | — | | | | | | 3,649 | | | | | | 10,000 | | |
Lease liabilities
|
| |
15
|
| | | | 3,803 | | | | | | 4,986 | | | | | | 4,689 | | | | | | 5,787 | | |
Contract liabilities
|
| |
8
|
| | | | 2,042 | | | | | | 3,858 | | | | | | 4,548 | | | | | | 6,758 | | |
Trade and other payables
|
| | | | | | | 22,442 | | | | | | 31,280 | | | | | | 29,413 | | | | | | 36,158 | | |
Other liabilities
|
| |
23
|
| | | | 15,966 | | | | | | 20,884 | | | | | | 31,312 | | | | | | 46,128 | | |
Total current liabilities
|
| | | | | | | 44,253 | | | | | | 61,008 | | | | | | 73,611 | | | | | | 104,831 | | |
Total liabilities
|
| | | | | | | 182,720 | | | | | | 205,443 | | | | | | 223,829 | | | | | | 321,423 | | |
Total shareholders’ equity and liabilities
|
| | | | | | | 286,252 | | | | | | 313,554 | | | | | | 335,149 | | | | | | 385,800 | | |
(in € thousands)
|
| |
Subscribed
capital |
| |
Capital
reserve |
| |
Accumulated
deficit |
| |
Foreign
currency translation reserve |
| |
Total
shareholders’ equity |
| |||||||||||||||
Balance as of July 1, 2017
|
| | | | 72 | | | | | | 148,488 | | | | | | (41,738) | | | | | | (3,290) | | | | | | 103,532 | | |
Net income
|
| | | | — | | | | | | — | | | | | | 5,503 | | | | | | — | | | | | | 5,503 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | (1,244) | | | | | | (1,244) | | |
Comprehensive income
|
| | | | — | | | | | | — | | | | | | 5,503 | | | | | | (1,244) | | | | | | 4,259 | | |
Share-based compensation
|
| | |
|
—
|
| | | | | 320 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 320 | | |
Balance as of June 30, 2018
|
| | | | 72 | | | | | | 148,808 | | | | | | (36,235) | | | | | | (4,534) | | | | | | 108,111 | | |
Balance as of July 1, 2018
|
| | | | 72 | | | | | | 148,808 | | | | | | (36,235) | | | | | | (4,534) | | | | | | 108,111 | | |
Net income
|
| | | | — | | | | | | — | | | | | | 1,651 | | | | | | — | | | | | | 1,651 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,406 | | | | | | 1,406 | | |
Comprehensive income
|
| | | | — | | | | | | — | | | | | | 1,651 | | | | | | 1,406 | | | | | | 3,057 | | |
Share-based compensation
|
| | |
|
—
|
| | | | | 152 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 152 | | |
Balance as of June 30, 2019
|
| | | | 72 | | | | | | 148,960 | | | | | | (34,584) | | | | | | (3,128) | | | | | | 111,320 | | |
Balance as of July 1, 2019
|
| | | | 72 | | | | | | 148,960 | | | | | | (34,584) | | | | | | (3,128) | | | | | | 111,320 | | |
Net income
|
| | | | — | | | | | | — | | | | | | 6,350 | | | | | | — | | | | | | 6,350 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 4,730 | | | | | | 4,730 | | |
Comprehensive income
|
| | | | — | | | | | | — | | | | | | 6,350 | | | | | | 4,730 | | | | | | 11,080 | | |
Legal Reorganization
|
| | | | (71) | | | | | | 36,252 | | | | | | | | | | | | — | | | | | | 36,181 | | |
Distribution | | | | | — | | | | | | (191,207) | | | | | | — | | | | | | — | | | | | | (191,207) | | |
Contribution | | | | | — | | | | | | 96,938 | | | | | | — | | | | | | — | | | | | | 96,938 | | |
Share-based compensation
|
| | | | — | | | | | | 65 | | | | | | — | | | | | | — | | | | | | 65 | | |
Balance as of June 30, 2020
|
| | | | 1 | | | | | | 91,008 | | | | | | (28,234) | | | | | | 1,602 | | | | | | 64,377 | | |
| | | | | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
Note
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Net income
|
| | | | | | | 5,503 | | | | | | 1,651 | | | | | | 6,350 | | |
Non-Cash items | | | | | | | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| |
13,14,15
|
| | | | 6,796 | | | | | | 7,686 | | | | | | 7,885 | | |
Finance expenses, net
|
| |
11
|
| | | | 4,835 | | | | | | 13,986 | | | | | | 11,119 | | |
Share-based compensation
|
| |
25
|
| | | | 320 | | | | | | 152 | | | | | | 65 | | |
Income tax expense
|
| |
12
|
| | | | 3,468 | | | | | | 3,439 | | | | | | 3,441 | | |
Change in operating assets and liabilities | | | | | | | | | | | | | | | | | | | | | | |
Increase (decrease) in provisions
|
| |
22
|
| | | | 3 | | | | | | 1 | | | | | | (200) | | |
Increase in inventories
|
| |
16
|
| | | | (34,845) | | | | | | (29,319) | | | | | | (33,097) | | |
(Increase) decrease in trade and other receivables
|
| | | | | | | (1,874) | | | | | | (88) | | | | | | 833 | | |
(Increase) decrease in other assets
|
| |
18
|
| | | | (3,546) | | | | | | 624 | | | | | | (10,510) | | |
Increase in other liabilities
|
| |
23
|
| | | | 5,988 | | | | | | 12,642 | | | | | | 17,894 | | |
Increase in contract liabilities
|
| | | | | | | 1,816 | | | | | | 690 | | | | | | 2,210 | | |
Increase (decrease) in trade and other payables
|
| | | | | | | 8,838 | | | | | | (1,867) | | | | | | 6,745 | | |
Income taxes paid
|
| | | | | | | (2,164) | | | | | | (7,230) | | | | | | (2,176) | | |
Net cash (used in) provided by operating activities
|
| | | | | | | (4,862) | | | | | | 2,367 | | | | | | 10,559 | | |
Expenditure for property and equipment and intangible assets
|
| | | | | | | (5,495) | | | | | | (1,845) | | | | | | (2,420) | | |
Proceeds from sale of property and equipment
|
| | | | | | | 64 | | | | | | — | | | | | | — | | |
Net cash (used in) investing activities
|
| | | | | | | (5,431) | | | | | | (1,845) | | | | | | (2,420) | | |
Proceeds from bank liabilities
|
| |
20
|
| | | | 4,500 | | | | | | 25,649 | | | | | | 90,750 | | |
Repayment of liabilities from banks
|
| |
20
|
| | | | (4,500) | | | | | | (22,000) | | | | | | (84,399) | | |
Lease payments
|
| | | | | | | (3,822) | | | | | | (5,070) | | | | | | (4,256) | | |
Interest paid
|
| |
11
|
| | | | (588) | | | | | | (671) | | | | | | (2,973) | | |
Net cash (used in) provided by financing activities
|
| | | | | | | (4,410) | | | | | | (2,092) | | | | | | (878) | | |
Net (decrease) increase in cash and cash equivalents
|
| | | | | | | (14,703) | | | | | | (1,570) | | | | | | 7,261 | | |
Cash and cash equivalents at the beginning of the period
|
| | | | | | | 18,393 | | | | | | 3,690 | | | | | | 2,120 | | |
Effects of exchange rate changes on cash and cash equivalents
|
| | | | | | | — | | | | | | — | | | | | | (14) | | |
Cash and cash equivalents at end of the period
|
| | | | | | | 3,690 | | | | | | 2,120 | | | | | | 9,367 | | |
Subsidiary
|
| |
Location
|
| |
Percentage of
ownership |
| |||
Mariposa II S.à.r.l.(1)
|
| |
Luxembourg, Luxembourg
|
| | | | 100% | | |
Mytheresa Group GmbH
|
| | Munich, Germany | | | | | 100% | | |
Mytheresa SE(2)
|
| | Munich, Germany | | | | | 100% | | |
Theresa Warenvertrieb GmbH
|
| | Munich, Germany | | | | | 100% | | |
mytheresa.com GmbH
|
| | Munich, Germany | | | | | 100% | | |
mytheresa.com Service GmbH
|
| | Munich, Germany | | | | | 100% | | |
mytheresa Business Information Consulting Co Ltd.(3)
|
| | Shanghai, China | | | | | 100% | | |
Asset type
|
| |
Estimated useful life
|
|
Leasehold improvements
|
| |
over the period of the lease
|
|
Other fixed assets and office equipment
|
| |
3 – 15 years
|
|
New or revised standard
|
| |
Effective date
|
|
IFRS 4(A) Insurance Contracts – deferral of IFRS 9
|
| |
January 1, 2021
|
|
IFRS 17(A) Insurance Contracts
|
| |
January 1, 2023
|
|
IAS 1(A) Presentation of Financial Statements: Classification of Liabilities as Current or Non-current
|
| |
January 1, 2023
|
|
IAS 1(A) and IAS 8(A) Definition of Material
|
| |
January 1, 2020
|
|
IFRS 3(A) Business Combinations
|
| |
January 1, 2022
|
|
IFRS 9(A), IAS 39(A) and IFRS 7(A) Interest Rate Benchmark Reform
|
| |
January 1, 2020
|
|
IAS 16(A) Property, Plant and Equipment
|
| |
January 1, 2022
|
|
IAS 37(A) Provisions, Contingent Liabilities and Contingent Assets
|
| |
January 1, 2022
|
|
Annual Improvements 2018-2020
|
| |
January 1, 2022
|
|
| | |
June 30, 2018
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Online
|
| |
Retail Store
|
| |
Segments total
|
| |
Reconciliation(1)
|
| |
IFRS consolidated
|
| |||||||||||||||
Net Sales
|
| | | | 292,030 | | | | | | 11,490 | | | | | | 303,520 | | | | | | — | | | | | | 303,520 | | |
EBITDA | | | | | 20,105 | | | | | | 772 | | | | | | 20,877 | | | | | | (275) | | | | | | 20,602 | | |
Depreciation and amortization
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (6,796) | | |
Finance expenses, net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (4,835) | | |
Income tax expense
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (3,468) | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 5,503 | | |
|
| | |
June 30, 2019
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Online
|
| |
Retail Store
|
| |
Segments total
|
| |
Reconciliation(1)
|
| |
IFRS consolidated
|
| |||||||||||||||
Net Sales
|
| | | | 365,558 | | | | | | 13,528 | | | | | | 379,086 | | | | | | — | | | | | | 379,086 | | |
EBITDA | | | | | 26,455 | | | | | | 2,634 | | | | | | 29,089 | | | | | | (2,327) | | | | | | 26,762 | | |
Depreciation and amortization
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (7,686) | | |
Finance expenses, net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (13,986) | | |
Income tax expense
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (3,439) | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 1,651 | | |
|
| | |
June 30, 2020
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Online
|
| |
Retail Store
|
| |
Segments total
|
| |
Reconciliation(1)
|
| |
IFRS consolidated
|
| |||||||||||||||
Net Sales
|
| | | | 437,448 | | | | | | 12,039 | | | | | | 449,487 | | | | | | — | | | | | | 449,487 | | |
EBITDA | | | | | 32,361 | | | | | | 1,947 | | | | | | 34,308 | | | | | | (5,513) | | | | | | 28,795 | | |
Depreciation and amortization
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (7,885) | | |
Finance expenses, net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (11,119) | | |
Income tax expense
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (3,441) | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,350 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Germany
|
| | | | 69,714 | | | | | | 84,534 | | | | | | 88,866 | | |
United States
|
| | | | 31,910 | | | | | | 38,559 | | | | | | 46,328 | | |
Europe (excluding Germany)(1)
|
| | | | 108,383 | | | | | | 141,951 | | | | | | 178,747 | | |
Rest of the world(1)
|
| | | | 93,513 | | | | | | 114,042 | | | | | | 135,546 | | |
| | | | | 303,520 | | | | | | 379,086 | | | | | | 449,487 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Personnel-related expenses
|
| | | | (33,590) | | | | | | (41,601) | | | | | | (50,910) | | |
Rental and other facility-related expenses
|
| | | | (1,728) | | | | | | (1,786) | | | | | | (932) | | |
IT expenses
|
| | | | (1,782) | | | | | | (2,733) | | | | | | (4,567) | | |
Other
|
| | | | (3,014) | | | | | | (5,918) | | | | | | (10,018) | | |
| | | | | (40,114) | | | | | | (52,038) | | | | | | (66,427) | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Other income | | | | | | | | | | | | | | | | | | | |
Other income
|
| | | | 1,735 | | | | | | 2,021 | | | | | | 2,062 | | |
Foreign exchange gains, net
|
| | | | 542 | | | | | | — | | | | | | 65 | | |
Subleasing income
|
| | | | — | | | | | | 478 | | | | | | — | | |
| | | | | 2,277 | | | | | | 2,499 | | | | | | 2,127 | | |
Other expenses | | | | | | | | | | | | | | | | | | | |
Foreign exchange losses, net
|
| | | | (308) | | | | | | (704) | | | | | | — | | |
Other operational expenses
|
| | | | (470) | | | | | | (800) | | | | | | (1,482) | | |
| | | | | (778) | | | | | | (1,504) | | | | | | (1,482) | | |
| | | | | 1,499 | | | | | | 995 | | | | | | 645 | | |
|
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Finance expenses | | | | | | | | | | | | | | | | | | | |
Interest expenses from Shareholder Loans
|
| | | | (8,069) | | | | | | (8,634) | | | | | | (7,492) | | |
Foreign exchange losses from Shareholder Loans, net
|
| | | | — | | | | | | (4,682) | | | | | | (2,209) | | |
Interest expenses on revolving credit facility
|
| | | | (53) | | | | | | (185) | | | | | | (951) | | |
Interest expenses on leases
|
| | | | (535) | | | | | | (486) | | | | | | (523) | | |
| | | | | (8,657) | | | | | | (13,987) | | | | | | (11,175) | | |
Finance income | | | | | | | | | | | | | | | | | | | |
Interest income from Shareholder Loans
|
| | | | — | | | | | | 1 | | | | | | 56 | | |
Foreign exchange gains from Shareholder Loans, net
|
| | | | 3,822 | | | | | | — | | | | | | — | | |
| | | | | 3,822 | | | | | | 1 | | | | | | 56 | | |
Finance expenses, net
|
| | | | (4,835) | | | | | | (13,986) | | | | | | (11,119) | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Current tax
|
| | | | (3,607) | | | | | | (3,562) | | | | | | (5,185) | | |
Deferred tax
|
| | | | 139 | | | | | | 123 | | | | | | 1,744 | | |
Income tax expense
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Income before tax
|
| | | | 8,971 | | | | | | 5,090 | | | | | | 9,791 | | |
Tax at the expected group tax rate (27.8%)
|
| | | | (2,494) | | | | | | (1,415) | | | | | | (2,722) | | |
Tax effects of: | | | | | | | | | | | | | | | | | | | |
Non-deductible interest expenses from interest cap
|
| | | | (867) | | | | | | (1,103) | | | | | | (1,042) | | |
Recognition of deferred tax assets on prior period interest carry-forward
|
| | | | — | | | | | | — | | | | | | 1,400 | | |
Trade tax add-backs and deductions
|
| | | | (269) | | | | | | (331) | | | | | | (233) | | |
Other non-deductible expenses
|
| | | | (625) | | | | | | (778) | | | | | | (874) | | |
Tax free income
|
| | | | 1,438 | | | | | | 1,297 | | | | | | 108 | | |
Tax rate difference between group and local tax rates
|
| | | | 54 | | | | | | 32 | | | | | | 57 | | |
Prior year adjustments
|
| | | | — | | | | | | — | | | | | | (85) | | |
Non-recognition on deferred tax assets on loss carryforwards
|
| | | | (583) | | | | | | (1,062) | | | | | | (18) | | |
Others
|
| | | | (122) | | | | | | (79) | | | | | | (32) | | |
Income tax expense
|
| | | | (3,468) | | | | | | (3,439) | | | | | | (3,441) | | |
Effective total income tax rate (%)
|
| | | | 38.7% | | | | | | 67.6% | | | | | | 35.1% | | |
| | |
As of June 30,
|
| |||||||||||||||||||||
(in € thousands)
|
| |
July 1, 2017
|
| |
2018
|
| |
2019
|
| |
2020
|
| ||||||||||||
Intangible assets with finite life | | | | | | | | | | | | | | | | | | | | | | | | | |
Software and license
|
| | | | 491 | | | | | | 589 | | | | | | 731 | | | | | | 489 | | |
Intangible assets with indefinite life
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Trademark
|
| | | | 15,585 | | | | | | 15,585 | | | | | | 15,585 | | | | | | 15,585 | | |
Goodwill
|
| | | | 138,892 | | | | | | 138,892 | | | | | | 138,892 | | | | | | 138,892 | | |
| | | | | 154,968 | | | | | | 155,066 | | | | | | 155,208 | | | | | | 154,966 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Cost | | | | | | | | | | | | | | | | | | | |
Beginning of fiscal year
|
| | | | 1,996 | | | | | | 2,571 | | | | | | 3,146 | | |
Additions
|
| | | | 575 | | | | | | 575 | | | | | | 220 | | |
End of fiscal year
|
| | | | 2,571 | | | | | | 3,146 | | | | | | 3,366 | | |
Accumulated amortization | | | | | | | | | | | | | | | | | | | |
Beginning of fiscal year
|
| | | | 1,504 | | | | | | 1,982 | | | | | | 2,415 | | |
Amortization charge of the year
|
| | | | 478 | | | | | | 433 | | | | | | 462 | | |
End of fiscal year
|
| | | | 1,982 | | | | | | 2,415 | | | | | | 2,877 | | |
Carrying amount at end of year
|
| | | | 589 | | | | | | 731 | | | | | | 489 | | |
| | |
Fiscal Year
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Discount rate
|
| | | | 8.2% | | | | | | 7.7% | | | | | | 7.1% | | |
Royalty rate
|
| | | | 2.0% | | | | | | 2.0% | | | | | | 2.0% | | |
Terminal revenue growth rate
|
| | | | 2.0% | | | | | | 2.0% | | | | | | 2.0% | | |
| | |
Fiscal Year
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Online | | | | | | | | | | | | | | | | | | | |
Terminal growth rate
|
| | | | 2.0% | | | | | | 2.0% | | | | | | 2.0% | | |
Discount rate
|
| | | | 10.8% | | | | | | 10.0% | | | | | | 9.2% | | |
Retail store | | | | | | | | | | | | | | | | | | | |
Terminal growth rate
|
| | | | 2.0% | | | | | | 2.0% | | | | | | 2.0% | | |
Discount rate
|
| | | | 10.7% | | | | | | 9.7% | | | | | | 8.7% | | |
(in € thousands)
|
| |
Leasehold
improvements |
| |
Other fixed assets and
office equipment |
| |
Total property and
equipment |
| |||||||||
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | | | 6,592 | | | | | | 5,790 | | | | | | 12,382 | | |
Additions
|
| | | | 2,717 | | | | | | 2,203 | | | | | | 4,920 | | |
Disposals
|
| | | | (183) | | | | | | — | | | | | | (183) | | |
As of June 30, 2018
|
| | | | 9,126 | | | | | | 7,993 | | | | | | 17,119 | | |
Accumulated depreciation and impairment | | | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | | | 1,852 | | | | | | 3,557 | | | | | | 5,409 | | |
Depreciation charge of the year
|
| | | | 339 | | | | | | 836 | | | | | | 1,175 | | |
Disposals
|
| | | | (119) | | | | | | — | | | | | | (119) | | |
As of June 30, 2018
|
| | | | 2,072 | | | | | | 4,393 | | | | | | 6,465 | | |
Carrying amount
|
| | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | | | 4,740 | | | | | | 2,233 | | | | | | 6,973 | | |
As of June 30, 2018
|
| | | | 7,054 | | | | | | 3,600 | | | | | | 10,654 | | |
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2018
|
| | | | 9,126 | | | | | | 7,993 | | | | | | 17,119 | | |
Additions
|
| | | | 373 | | | | | | 897 | | | | | | 1,270 | | |
As of June 30, 2019
|
| | | | 9,499 | | | | | | 8,890 | | | | | | 18,389 | | |
Accumulated depreciation and impairment | | | | | | | | | | | | | | | | | | | |
As of July 1, 2018
|
| | | | 2,072 | | | | | | 4,393 | | | | | | 6,465 | | |
Depreciation charge of the year
|
| | | | 1,054 | | | | | | 1,066 | | | | | | 2,120 | | |
As of June 30, 2019
|
| | | | 3,126 | | | | | | 5,459 | | | | | | 8,585 | | |
Carrying amount
|
| | | | | | | | | | | | | | | | | | |
As of July 1, 2018
|
| | | | 7,054 | | | | | | 3,600 | | | | | | 10,654 | | |
As of June 30, 2019
|
| | | | 6,373 | | | | | | 3,431 | | | | | | 9,804 | | |
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2019
|
| | | | 9,499 | | | | | | 8,890 | | | | | | 18,389 | | |
Additions
|
| | | | 214 | | | | | | 1,859 | | | | | | 2,073 | | |
As of June 30, 2020
|
| | | | 9,713 | | | | | | 10,749 | | | | | | 20,462 | | |
Accumulated depreciation and impairment | | | | | | | | | | | | | | | | | | | |
(in € thousands)
|
| |
Leasehold
improvements |
| |
Other fixed assets and
office equipment |
| |
Total property and
equipment |
| |||||||||
As of July 1, 2019
|
| | | | 3,126 | | | | | | 5,459 | | | | | | 8,585 | | |
Depreciation charge of the year
|
| | | | 954 | | | | | | 1,353 | | | | | | 2,307 | | |
As of June 30, 2020
|
| | | | 4,080 | | | | | | 6,812 | | | | | | 10,892 | | |
Carrying amount
|
| | | | | | | | | | | | | | | | | | |
As of July 1, 2019
|
| | | | 6,373 | | | | | | 3,431 | | | | | | 9,804 | | |
As of June 30, 2020
|
| | | | 5,633 | | | | | | 3,937 | | | | | | 9,570 | | |
(in € thousands)
|
| |
Land and
buildings |
| |
Company
Cars |
| |
Total right-of-
use assets |
| |||||||||
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | | | 24,801 | | | | | | 30 | | | | | | 24,831 | | |
Additions
|
| | | | 3,052 | | | | | | — | | | | | | 3,052 | | |
As of June 30, 2018
|
| | | | 27,853 | | | | | | 30 | | | | | | 27,883 | | |
Accumulated depreciation and impairment | | | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | |
|
—
|
| | | |
|
—
|
| | | | | — | | |
Depreciation Charge of the year
|
| | | | 5,130 | | | | | | 13 | | | | | | 5,143 | | |
As of June 30, 2018
|
| | | | 5,130 | | | | | | 13 | | | | | | 5,143 | | |
Carrying Amount | | | | | | | | | | | | | | | | | | | |
As of July 1, 2017
|
| | | | 24,801 | | | | | | 30 | | | | | | 24,831 | | |
As of June 30, 2018
|
| | | | 22,723 | | | | | | 17 | | | | | | 22,740 | | |
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2018
|
| | | | 27,853 | | | | | | 30 | | | | | | 27,883 | | |
Additions
|
| | | | 100 | | | | | | 4 | | | | | | 104 | | |
As of June 30, 2019
|
| | | | 27,953 | | | | | | 34 | | | | | | 27,987 | | |
Accumulated depreciation and impairment | | | | | | | | | | | | | | | | | | | |
As of July 1, 2018
|
| | | | 5,130 | | | | | | 13 | | | | | | 5,143 | | |
Depreciation Charge of the year
|
| | | | 5,120 | | | | | | 13 | | | | | | 5,133 | | |
As of June 30, 2019
|
| | | | 10,250 | | | | | | 26 | | | | | | 10,276 | | |
Carrying Amount | | | | | | | | | | | | | | | | | | | |
(in € thousands)
|
| |
Land and
buildings |
| |
Company
Cars |
| |
Total right-of-
use assets |
| |||||||||
As of July 1, 2018
|
| | | | 22,723 | | | | | | 17 | | | | | | 22,740 | | |
As of June 30, 2019
|
| | | | 17,703 | | | | | | 8 | | | | | | 17,711 | | |
Cost | | | | | | | | | | | | | | | | | | | |
As of July 1, 2019
|
| | | | 27,953 | | | | | | 34 | | | | | | 27,987 | | |
Additions
|
| | | | 6,364 | | | | | | 42 | | | | | | 6,406 | | |
As of June 30, 2020
|
| | | | 34,317 | | | | | | 76 | | | | | | 34,393 | | |
Accumulated Depreciation and Impairment | | | | | | | | | | | | | | | | | | | |
As of July 1, 2019
|
| | | | 10,250 | | | | | | 26 | | | | | | 10,276 | | |
Depreciation Charge of the year
|
| | | | 5,104 | | | | | | 12 | | | | | | 5,116 | | |
As of June 30, 2020
|
| | | | 15,354 | | | | | | 38 | | | | | | 15,392 | | |
Carrying Amount | | | | | | | | | | | | | | | | | | | |
As of July 1, 2019
|
| | | | 17,703 | | | | | | 8 | | | | | | 17,711 | | |
As of June 30, 2020
|
| | | | 18,963 | | | | | | 38 | | | | | | 19,001 | | |
| | |
As of June 30,
|
| |||||||||||||||||||||
(in € thousands)
|
| |
July 1, 2017
|
| |
2018
|
| |
2019
|
| |
2020
|
| ||||||||||||
Right of return asset
|
| | | | 2,591 | | | | | | 3,261 | | | | | | 4,784 | | | | | | 5,075 | | |
IPO preparation costs
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,312 | | |
Other assets
|
| | | | 1,265 | | | | | | 3,585 | | | | | | 1,172 | | | | | | 7,746 | | |
Prepaid expenses
|
| | | | 1,651 | | | | | | 2,205 | | | | | | 2,394 | | | | | | 2,012 | | |
Deposits
|
| | | | 11 | | | | | | 13 | | | | | | 90 | | | | | | 1,805 | | |
| | | | | 5,518 | | | | | | 9,064 | | | | | | 8,440 | | | | | | 18,950 | | |
Instrument
|
| |
Origination Date
|
| |
Original Principal
|
| |
Fixed Interest Rate
|
| |
Maturity Date
|
| |||
CPEC I
|
| |
December 18, 2014
|
| |
USD 45.0 million
|
| | | | 5.825% | | | |
December 18, 2044
|
|
CPEC II
|
| |
December 19, 2014
|
| |
USD 39.5 million
|
| | | | 5.825% | | | |
December 19, 2043
|
|
| | |
July 1,
|
| |
As of June 30,
|
| ||||||||||||||||||
(in € thousands)
|
| |
2017
|
| |
2018
|
| |
2019
|
| |
2020
|
| ||||||||||||
Shareholder Loans | | | | | | | | | | | | | | | | | | | | | | | | | |
Variable Interest Shareholder Loan(1)
|
| | | | 77,639 | | | | | | 80,807 | | | | | | 88,425 | | | | | | — | | |
Variable Interest Shareholder Loan(1)
|
| | | | 1,268 | | | | | | 1,322 | | | | | | 1,559 | | | | | | — | | |
CPEC I(2)
|
| | | | 15,697 | | | | | | 16,875 | | | | | | 19,057 | | | | | | — | | |
CPEC II(2)
|
| | | | 14,118 | | | | | | 15,204 | | | | | | 17,038 | | | | | | — | | |
Fixed Interest Shareholder Loan(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 57,380 | | |
Fixed Interest Shareholder Loan(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 133,814 | | |
| | |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
(in € thousands)
|
| | | | | | | | | | | | | | | | | | |
Beginning of fiscal year
|
| | | | 3,216 | | | | | | 4,666 | | | | | | 975 | | |
Additions
|
| | | | 2,378 | | | | | | 683 | | | | | | 3,673 | | |
Releases
|
| | | | — | | | | | | — | | | | | | — | | |
Utilizations
|
| | | | (928) | | | | | | (4,374) | | | | | | (795) | | |
End of fiscal year
|
| | | | 4,666 | | | | | | 975 | | | | | | 3,853 | | |
| | |
Dismantling
|
| |
Other
|
| |
Total
|
| |||||||||||||||||||||||||||||||||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |
2018
|
| |
2019
|
| |
2020
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||||||||||||||||||||
Beginning of fiscal year
|
| | | | 731 | | | | | | 721 | | | | | | 737 | | | | | | 47 | | | | | | 60 | | | | | | 45 | | | | | | 778 | | | | | | 781 | | | | | | 782 | | |
Additions
|
| | | | 15 | | | | | | 16 | | | | | | 34 | | | | | | 25 | | | | | | — | | | | | | 43 | | | | | | 40 | | | | | | 16 | | | | | | 77 | | |
Releases
|
| | | | (2) | | | | | | — | | | | | | (277) | | | | | | — | | | | | | (6) | | | | | | — | | | | | | (2) | | | | | | (6) | | | | | | (277) | | |
Utilizations
|
| | | | (23) | | | | | | — | | | | | | — | | | | | | (12) | | | | | | (9) | | | | | | — | | | | | | (35) | | | | | | (9) | | | | | | — | | |
End of fiscal year
|
| | | | 721 | | | | | | 737 | | | | | | 494 | | | | | | 60 | | | | | | 45 | | | | | | 88 | | | | | | 781 | | | | | | 782 | | | | | | 582 | | |
| | |
As of June 30,
|
| |||||||||||||||||||||
(in € thousands)
|
| |
July 1, 2017
|
| |
2018
|
| |
2019
|
| |
2020
|
| ||||||||||||
Personnel-related liabilities
|
| | | | 2,240 | | | | | | 1,940 | | | | | | 1,584 | | | | | | 1,758 | | |
Customer returns
|
| | | | 4,011 | | | | | | 5,534 | | | | | | 8,012 | | | | | | 8,607 | | |
Accrued expenses
|
| | | | 3,599 | | | | | | 5,297 | | | | | | 14,455 | | | | | | 24,989 | | |
Other accrued expenses
|
| | | | 261 | | | | | | 156 | | | | | | 222 | | | | | | 78 | | |
Liabilities from sales tax
|
| | | | 3,407 | | | | | | 2,746 | | | | | | 4,906 | | | | | | 4,143 | | |
Other liabilities
|
| | | | 2,448 | | | | | | 5,211 | | | | | | 2,133 | | | | | | 6,553 | | |
| | | | | 15,966 | | | | | | 20,884 | | | | | | 31,312 | | | | | | 46,128 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Deferred tax liabilities, net | | | | | | | | | | | | | | | | | | | |
Beginning of fiscal year
|
| | | | (5,454) | | | | | | (5,315) | | | | | | (5,192) | | |
Recognized through equity(1)
|
| | | | — | | | | | | — | | | | | | 2,318 | | |
Recognized through profit or loss
|
| | | | 139 | | | | | | 123 | | | | | | 1,744 | | |
End of fiscal year
|
| | | | (5,315) | | | | | | (5,192) | | | | | | (1,130) | | |
| | |
2018
|
| |
2019
|
| |
2020
|
| |||||||||||||||||||||||||||
| | |
Deferred tax
|
| |
Deferred tax
|
| |
Deferred tax
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Assets
|
| |
Liabilities
|
| |
Assets
|
| |
Liabilities
|
| |
Assets
|
| |
Liabilities
|
| ||||||||||||||||||
Intangible assets and goodwill
|
| | | | 455 | | | | | | (4,333) | | | | | | 415 | | | | | | (4,333) | | | | | | 375 | | | | | | (4,333) | | |
Property and equipment
|
| | | | 167 | | | | | | — | | | | | | — | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| |
Inventory
|
| | | | 1,988 | | | | | | (1,872) | | | | | | 2,353 | | | | | | (2,538) | | | | | | — | | | | | | (1,722) | | |
Receivables
|
| | | | — | | | | | | (155) | | | | | | — | | | | | | (164) | | | | | | — | | | | | | (175) | | |
Right-of-Use asset, contract asset and other
assets |
| | | | — | | | | | | (7,228) | | | | | | — | | | | | | (6,253) | | | | | | — | | | | | | (7,335) | | |
Lease liabilities, contract liabilities and other
liabilities |
| | | | 7,545 | | | | | | (2,032) | | | | | | 7,306 | | | | | | (2,103) | | | | | | 10,531 | | | | | | (2,209) | | |
Shareholder Loans
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 2,200 | | | | | | | | |
Provisions
|
| | | | 200 | | | | |
|
(50)
|
| | | | | 206 | | | | | | (81) | | | | | | 136 | | | | | | — | | |
Interest carry forward
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,400 | | | | | | — | | |
Total Gross
|
| | | | 10,355 | | | | | | (15,670) | | | | | | 10,280 | | | | | | (15,472) | | | | | | 14,643 | | | | | | (15,773) | | |
Thereof non-current
|
| | | | 6,234 | | | | | | (10,706) | | | | | | 5,399 | | | | | | (9,337) | | | | | | 8,797 | | | | | | 9,626 | | |
Netting
|
| | | | (10,355) | | | | | | 10,355 | | | | | | (10,280) | | | | | | 10,280 | | | | | | (14,643) | | | | | | 14,643 | | |
Total net
|
| | | | — | | | | | | (5,315) | | | | | | — | | | | | | (5,192) | | | | | | — | | | | | | (1,130) | | |
|
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Classified within capital reserve (beginning of year)
|
| | | | 517 | | | | | | 837 | | | | | | 989 | | |
Expense related to: | | | | | | | | | | | | | | | | | | | |
Stock options
|
| | | | 17 | | | | | | 25 | | | | | | 28 | | |
Restricted stock
|
| | | | 303 | | | | | | 127 | | | | | | 37 | | |
Classified within capital reserve (end of year)
|
| | | | 837 | | | | | | 989 | | | | | | 1,054 | | |
| | |
Time-vested Options
|
| |
Performance-based Options
|
| | | | | | | ||||||||||||||||||
| | |
Options
|
| |
Wtd. Average
Exercise Price (USD) |
| |
Options
|
| |
Wtd. Average
Exercise Price (USD) |
| |
Restricted Stock
|
| |||||||||||||||
July 1, 2017
|
| | | | 2,902 | | | | | | 1,116 | | | | | | 2,493 | | | | | | 1,000 | | | | | | 1,627 | | |
Options forfeited
|
| | | | (697) | | | | | | 1,000 | | | | | | (673) | | | | | | 1,000 | | | | | | (260) | | |
Options exercised
|
| | | | — | | | | | | n.a. | | | | | | — | | | | | | n.a. | | | | | | (289) | | |
June 30, 2018
|
| | | | 2,205 | | | | | | 500 | | | | | | 1,820 | | | | | | 1,000 | | | | | | 1,078 | | |
Options forfeited
|
| | | | (200) | | | | | | 500 | | | | | | (200) | | | | | | 1,000 | | | | | | (65) | | |
Options exercised
|
| | | | — | | | | | | n.a. | | | | | | — | | | | | | n.a. | | | | | | (621) | | |
June 30, 2019
|
| | | | 2,005 | | | | | | 500 | | | | | | 1,620 | | | | | | 1,000 | | | | | | 392 | | |
Options forfeited
|
| | | | — | | | | | | n.a. | | | | | | — | | | | | | n.a. | | | | | | — | | |
Options exercised
|
| | | | — | | | | | | n.a. | | | | | | — | | | | | | n.a. | | | | | | (392) | | |
June 30, 2020
|
| | |
|
2,005
|
| | | |
|
500
|
| | | |
|
1,620
|
| | | |
|
1,000
|
| | | | | — | | |
| | |
July 1, 2017
|
| ||||||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category
in accordance with IFRS 9 |
| |
Category in
accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| ||||||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other assets
|
| | | | 13 | | | | | | — | | | |
FVTPL
|
| | | | 13 | | | | | | Level 2 | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other receivables
|
| | | | 3,686 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Cash and cash equivalents
|
| | | | 18,393 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Other assets
|
| | | | 5,518 | | | | | | 2,097 | | | | | | | | | | | | | | | | | |
thereof deposits
|
| | | | 36 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
thereof other financial assets
|
| | | | 3,385 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 108,722 | | | | | | — | | | |
Amortized cost
|
| | | | 113,511 | | | | | | Level 2 | | |
Lease liabilities
|
| | | | 20,297 | | | | | | 20,297 | | | |
N/A
|
| | | | — | | | | | | — | | |
Other liabilities
|
| | | | — | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Lease liabilities
|
| | | | 3,803 | | | | | | 3,803 | | | |
N/A
|
| | | | — | | | | | | — | | |
Trade and other payables
|
| | | | 22,442 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Other liabilities
|
| | | | 15,966 | | | | | | 9,507 | | | | | | | | | | | | | | | | | |
thereof other financial liabilities
|
| | | | 6,459 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
| | |
Year ended June 30, 2018
|
| |||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category
in accordance with IFRS 9 |
| |
Category in
accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| |||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other assets
|
| | | | 65 | | | | | | — | | | |
FVTPL
|
| | | | 65 | | | |
Level 2
|
|
Current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other receivables
|
| | | | 5,560 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Cash and cash equivalents
|
| | | | 3,690 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other assets
|
| | | | 9,064 | | | | | | 5,643 | | | | | | | | | | | | | | |
thereof deposits
|
| | | | 36 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
thereof other financial assets
|
| | | | 3,385 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 114,208 | | | | | | — | | | |
Amortized cost
|
| | | | 116,811 | | | |
Level 2
|
|
Lease liabilities
|
| | | | 18,344 | | | | | | 18,344 | | | |
N/A
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 1,121 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Lease liabilities
|
| | | | 4,986 | | | | | | 4,986 | | | |
N/A
|
| | | | — | | | |
—
|
|
Trade and other payables
|
| | | | 31,280 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 20,884 | | | | | | 10,139 | | | | | | | | | | | | | | |
thereof other financial liabilities
|
| | | | 10,745 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
| | |
Year ended June 30, 2019
|
| |||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category
in accordance with IFRS 9 |
| |
Category
in accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| |||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Other assets
|
| | | | 184 | | | | | | — | | | |
FVTPL
|
| | | | 184 | | | |
Level 2
|
|
Current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other receivables
|
| | | | 5,648 | | | | | | — | | | | | | | | | | | | | | |
thereof trade receivables
|
| | | | 5,617 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
thereof other receivables
|
| | | | 31 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Cash and cash equivalents
|
| | | | 2,120 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other assets
|
| | | | 8,440 | | | | | | 7,232 | | | | | | | | | | | | | | |
thereof deposits
|
| | | | 90 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
thereof other financial assets
|
| | | | 1,118 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 126,079 | | | | | | — | | | |
Amortized cost
|
| | | | 131,168 | | | |
Level 2
|
|
Lease liabilities
|
| | | | 13,675 | | | | | | 13,675 | | | |
N/A
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 3,515 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities to banks
|
| | | | 3,649 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Lease liabilities
|
| | | | 4,689 | | | | | | 4,689 | | | |
N/A
|
| | | | — | | | |
—
|
|
Trade and other payables
|
| | | | 29,413 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 31,312 | | | | | | 21,167 | | | | | | | | | | | | | | |
thereof other financial liabilities
|
| | | | 10,145 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
| | |
Year ended June 30, 2020
|
| |||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category
in accordance with IFRS 9 |
| |
Category in
accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| |||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Current financial assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other receivables
|
| | | | 4,815 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Cash and cash equivalents
|
| | | | 9,367 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other assets
|
| | | | 18,950 | | | | | | 8,886 | | | | | | | | | | | | | | |
thereof deposits
|
| | | | 1,805 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
thereof other financial assets
|
| | | | 8,259 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 191,194 | | | | | | — | | | |
Amortized cost
|
| | | | 192,338 | | | |
Level 2
|
|
Lease liabilities
|
| | | | 13,928 | | | | | | 13,928 | | | |
N/A
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 5,905 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Current financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities to banks
|
| | | | 10,000 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Lease liabilities
|
| | | | 5,787 | | | | | | 5,787 | | | |
N/A
|
| | | | — | | | |
—
|
|
Trade and other payables
|
| | | | 36,158 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
Other liabilities
|
| | | | 46,128 | | | | | | 30,968 | | | | | | | | | | | | | | |
thereof other financial liabilities
|
| | | | 15,160 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | |
—
|
|
| | |
Year ended June 30,
|
| |||||||||||||||||||||
| | |
July 1, 2017
|
| |
2018
|
| |
2019
|
| |
2020
|
| ||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
Carrying
amount |
| |
Carrying
amount |
| |
Carrying
amount |
| ||||||||||||
Financial assets measured at Amortized cost (AC)
|
| | | | 25,500 | | | | | | 12,671 | | | | | | 8,976 | | | | | | 24,246 | | |
Financial assets measured at Fair Value through Profit or
Loss |
| | | | 13 | | | | | | 65 | | | | | | 184 | | | | | | — | | |
Financial liabilities measured at Amortized cost (AC)
|
| | | | 137,021 | | | | | | 152,580 | | | | | | 175,304 | | | | | | 245,545 | | |
(in € thousands)
|
| |
July 1, 2019
|
| |
Additions
|
| |
Reclassification
|
| |
June 30, 2020
|
| ||||||||||||
OCI 1
|
| | |
|
—
|
| | | |
|
(1,863)
|
| | | |
|
1,863
|
| | | |
|
—
|
| |
OCI 2
|
| | |
|
—
|
| | | |
|
(597)
|
| | | |
|
597
|
| | | |
|
—
|
| |
| | |
Year ended June 30,
|
| |||||||||||||||
(in € thousands)
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Financial assets measured at Amortized cost (AC)
|
| | | | 17 | | | | | | — | | | | | | — | | |
Financial liabilities measured at Amortized cost (AC)
|
| | | | (4,290) | | | | | | (13,439) | | | | | | (12,988) | | |
Financial assets and financial liabilities measured at fair value through profit or loss
|
| | | | 84 | | | | | | 32 | | | | | | 2 | | |
| | |
Year ended June 30,
|
| |||||||||||||||||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |||||||||||||||||||||||||||
in € thousands
|
| |
€ appreciation
+10% |
| |
€ depreciation
-10% |
| |
€ appreciation
+10% |
| |
€ depreciation
-10% |
| |
€ appreciation
+10% |
| |
€ depreciation
-10% |
| ||||||||||||||||||
€ Sensitivity
|
| | | | 15,874 | | | | | | (19,401) | | | | | | 14,565 | | | | | | (17,801) | | | | | | 16,678 | | | | | | (20,414) | | |
| | |
Year ended June 30, 2018
|
| |||||||||||||||||||||||||||
in € thousands
|
| |
<1 year
|
| |
1 - 5 years
|
| |
> 5 years
|
| |
Total
|
| |
Carrying
amount |
| |||||||||||||||
Shareholder Loans
|
| | | | — | | | | | | 96,160 | | | | | | 383,470 | | | | | | 479,630 | | | | | | 114,208 | | |
Trade and other payables
|
| | | | 31,280 | | | | | | — | | | | | | — | | | | | | 31,280 | | | | | | 31,280 | | |
Other liabilities
|
| | | | 20,884 | | | | | | 1,121 | | | | | | — | | | | | | 22,005 | | | | | | 22,005 | | |
Lease liabilities
|
| | | | 5,711 | | | | | | 17,662 | | | | | | 2,184 | | | | | | 25,557 | | | | | | 23,330 | | |
Total | | | | | 57,875 | | | | | | 114,943 | | | | | | 385,654 | | | | | | 558,472 | | | | | | 190,823 | | |
| | |
Year ended June 30, 2019
|
| |||||||||||||||||||||||||||
in € thousands
|
| |
<1 year
|
| |
1 - 5 years
|
| |
> 5 years
|
| |
Total
|
| |
Carrying
amount |
| |||||||||||||||
Shareholder Loans
|
| | | | — | | | | | | 98,722 | | | | | | 393,686 | | | | | | 492,408 | | | | | | 126,079 | | |
Trade and other payables
|
| | | | 29,413 | | | | | | — | | | | | | — | | | | | | 29,413 | | | | | | 29,413 | | |
Other liabilities
|
| | | | 31,312 | | | | | | 3,515 | | | | | | — | | | | | | 34,827 | | | | | | 34,827 | | |
Liabilities to banks
|
| | | | 3,649 | | | | | | — | | | | | | — | | | | | | 3,649 | | | | | | 3,649 | | |
Lease liabilities
|
| | | | 5,534 | | | | | | 14,348 | | | | | | 974 | | | | | | 20,856 | | | | | | 18,364 | | |
Total | | | | | 69,908 | | | | | | 116,585 | | | | | | 394,660 | | | | | | 581,153 | | | | | | 212,332 | | |
| | |
Year ended June 30, 2020
|
| |||||||||||||||||||||||||||
in € thousands
|
| |
<1 year
|
| |
1 - 5 years
|
| |
> 5 years
|
| |
Total
|
| |
Carrying
amount |
| |||||||||||||||
Shareholder Loans
|
| | | | — | | | | | | — | | | | | | 252,045 | | | | | | 252,045 | | | | | | 191,194 | | |
Trade and other payables
|
| | | | 36,158 | | | | | | — | | | | | | — | | | | | | 36,158 | | | | | | 36,158 | | |
Other liabilities
|
| | | | 46,128 | | | | | | 5,905 | | | | | | — | | | | | | 52,033 | | | | | | 52,033 | | |
Liabilities to banks
|
| | | | 10,000 | | | | | | — | | | | | | — | | | | | | 10,000 | | | | | | 10,000 | | |
Lease liabilities
|
| | | | 6,517 | | | | | | 14,866 | | | | | | — | | | | | | 21,383 | | | | | | 19,715 | | |
Total | | | | | 98,803 | | | | | | 20,771 | | | | | | 252,045 | | | | | | 371,619 | | | | | | 309,100 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
in € thousands
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Rating Class 1
|
| | | | 591 | | | | | | 1,057 | | | | | | 8,416 | | |
Rating Class 2
|
| | | | 2,792 | | | | | | 934 | | | | | | 880 | | |
Rating Class 3
|
| | | | 307 | | | | | | 129 | | | | | | 71 | | |
| | |
Year ended June 30,
|
| |||||||||||||||
in € thousands
|
| |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
Beginning of fiscal year
|
| | | | 29 | | | | | | 46 | | | | | | 46 | | |
Increase/decrease loss allowance during the period
|
| | | | 17 | | | | |
|
—
|
| | | | | — | | |
Write-offs
|
| | | | — | | | | | | — | | | | | | — | | |
End of fiscal year
|
| | | | 46 | | | | | | 46 | | | | | | 46 | | |
| | | | | | | | |
Three months ended
September 30, |
| |||||||||
(in € thousands)
|
| |
Note
|
| |
2019
|
| |
2020
|
| |||||||||
Net sales
|
| | | | 6 | | | | | | 99,112 | | | | | | 126,359 | | |
Cost of sales, exclusive of depreciation and amortization
|
| | | | 7 | | | | | | (52,766) | | | | | | (67,678) | | |
Gross profit
|
| | | | | | | | | | 46,346 | | | | | | 58,681 | | |
Shipping and payment cost
|
| | | | | | | | | | (13,141) | | | | | | (14,833) | | |
Marketing expenses
|
| | | | | | | | | | (15,816) | | | | | | (17,441) | | |
Selling, general and administrative expenses
|
| | | | | | | | | | (13,955) | | | | | | (15,556) | | |
Depreciation and amortization
|
| | | | | | | | | | (1,877) | | | | | | (2,021) | | |
Other expense, net
|
| | | | | | | | | | (40) | | | | | | (621) | | |
Operating income
|
| | | | | | | | | | 1,517 | | | | | | 8,209 | | |
Finance (expense) income, net
|
| | | | | | | | | | (9,373) | | | | | | 5,182 | | |
(Loss) income before income taxes
|
| | | | | | | | | | (7,856) | | | | | | 13,391 | | |
Income tax benefit (expense)
|
| | | | | | | | | | 3,545 | | | | | | (3,762) | | |
Net (loss) income
|
| | | | | | | | | | (4,311) | | | | | | 9,629 | | |
Cash Flow Hedge
|
| | | | | | | | | | (1,282) | | | | | | 871 | | |
Income Taxes related to Cash Flow Hedge
|
| | | | | | | | | | 356 | | | | | | (242) | | |
Other comprehensive (loss) income
|
| | | | | | | | | | (926) | | | | | | 629 | | |
Comprehensive (loss) income
|
| | | | | | | | | | (5,237) | | | | | | 10,258 | | |
Basic and diluted earnings per share
|
| | | | 10 | | | | | € | (0.06) | | | | | € | 0.14 | | |
Weighted average ordinary shares outstanding (basic and diluted)
|
| | | | | | | | | | 70,190,687 | | | | | | 70,190,687 | | |
(in € thousands)
|
| |
Note
|
| |
June 30,
2020 |
| |
September 30,
2020 |
| ||||||
Assets | | | | | | | | | | | | | | | | |
Non-current assets | | | | | | | | | | | | | | | | |
Intangible assets and goodwill
|
| | | | | | | 154,966 | | | | | | 154,959 | | |
Property and equipment, net
|
| | | | | | | 9,570 | | | | | | 9,772 | | |
Right-of-use assets
|
| | | | | | | 19,001 | | | | | | 17,693 | | |
Total non-current assets
|
| | | | | | | 183,537 | | | | | | 182,424 | | |
Current assets | | | | | | | | | | | | | | | | |
Inventories
|
| | | | | | | 169,131 | | | | | | 202,459 | | |
Trade and other receivables
|
| | | | | | | 4,815 | | | | | | 5,785 | | |
Other assets
|
| | | | | | | 18,950 | | | | | | 16,970 | | |
Cash and cash equivalents
|
| | | | | | | 9,367 | | | | | | 5,900 | | |
Total current assets
|
| | | | | | | 202,263 | | | | | | 231,114 | | |
Total assets
|
| | | | | | | 385,800 | | | | | | 413,538 | | |
Shareholders’ equity and liabilities | | | | | | | | | | | | | | | | |
Subscribed capital
|
| | | | | | | 1 | | | | | | 1 | | |
Capital reserve
|
| |
8
|
| | | | 91,008 | | | | | | 91,015 | | |
Accumulated Deficit
|
| | | | | | | (28,234) | | | | | | (18,605) | | |
Other comprehensive income
|
| |
9
|
| | | | 1,602 | | | | | | 2,231 | | |
Total shareholders’ equity
|
| | | | | | | 64,377 | | | | | | 74,642 | | |
Non-current liabilities | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| |
8,9
|
| | | | 191,194 | | | | | | 185,376 | | |
Other liabilities
|
| | | | | | | 5,905 | | | | | | 6,651 | | |
Tax liabilities
|
| | | | | | | 3,853 | | | | | | 4,567 | | |
Provisions
|
| | | | | | | 582 | | | | | | 711 | | |
Lease liabilities
|
| | | | | | | 13,928 | | | | | | 12,602 | | |
Deferred tax liabilities, net
|
| | | | | | | 1,130 | | | | | | 4,421 | | |
Total non-current liabilities
|
| | | | | | | 216,592 | | | | | | 214,328 | | |
Current liabilities | | | | | | | | | | | | | | | | |
Liabilities to banks
|
| |
8
|
| | | | 10,000 | | | | | | 42,810 | | |
Lease liabilities
|
| | | | | | | 5,787 | | | | | | 5,514 | | |
Contract liabilities
|
| | | | | | | 6,758 | | | | | | 7,358 | | |
Trade and other payables
|
| | | | | | | 36,158 | | | | | | 21,254 | | |
Other liabilities
|
| | | | | | | 46,128 | | | | | | 47,632 | | |
Total current liabilities
|
| | | | | | | 104,831 | | | | | | 124,568 | | |
Total liabilities
|
| | | | | | | 321,423 | | | | | | 338,896 | | |
Total shareholders’ equity and liabilities
|
| | | | | | | 385,800 | | | | | | 413,538 | | |
(in € thousands)
|
| |
Subscribed
capital |
| |
Capital
reserve |
| |
Accumulated
deficit |
| |
Hedging
reserve |
| |
Foreign
currency translation reserve |
| |
Total
shareholders’ equity |
| ||||||||||||||||||
Balance as of July 1, 2019
|
| | | | 72 | | | | | | 148,960 | | | | | | (34,584) | | | | | | — | | | | | | (3,128) | | | | | | 111,320 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (4,311) | | | | | | — | | | | | | — | | | | | | (4,311) | | |
Other comprehensive loss
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | (926) | | | | | | 3,716 | | | | | | 2,790 | | |
Comprehensive loss
|
| | | | — | | | | | | — | | | | | | (4,311) | | | | | | (926) | | | | | | 3,716 | | | | | | (1,521) | | |
Legal Reorganization
|
| | | | (71) | | | | | | 36,252 | | | | | | | | | | | | — | | | | | | — | | | | | | 36,181 | | |
Share-based compensation
|
| | | | — | | | | | | 29 | | | | | | — | | | | | | — | | | | | | — | | | | | | 29 | | |
Balance as of September 30, 2019
|
| | | | 1 | | | | | | 185,241 | | | | | | (38,895) | | | | | | (926) | | | | | | 588 | | | | | | 146,009 | | |
Balance as of July 1, 2020
|
| | | | 1 | | | | | | 91,008 | | | | | | (28,234) | | | | | | — | | | | | | 1,602 | | | | | | 64,377 | | |
Net income
|
| | | | — | | | | | | — | | | | | | 9,629 | | | | | | — | | | | | | — | | | | | | 9,629 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 629 | | | | | | — | | | | | | 629 | | |
Comprehensive income
|
| | | | — | | | | | | — | | | | | | 9,629 | | | | | | 629 | | | | | | — | | | | | | 10,258 | | |
Share-based compensation
|
| | | | — | | | | | | 7 | | | | |
|
—
|
| | | |
|
—
|
| | | | | | | | | | | 7 | | |
Balance as of September 30, 2020
|
| | | | 1 | | | | | | 91,015 | | | | | | (18,605) | | | | | | 629 | | | | | | 1,602 | | | | | | 74,642 | | |
| | | | | |
Three months ended
September 30, |
| |||||||||
(in € thousands)
|
| |
Note
|
| |
2019
|
| |
2020
|
| ||||||
Net (loss) income
|
| | | | | | | (4,311) | | | | | | 9,629 | | |
Non-Cash items | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | | | | 1,877 | | | | | | 2,021 | | |
Finance expense (income), net
|
| | | | | | | 9,373 | | | | | | (5,182) | | |
Share-based compensation
|
| | | | | | | 29 | | | | | | 7 | | |
Income tax (income) expense
|
| | | | | | | (3,545) | | | | | | 3,762 | | |
Change in operating assets and liabilities | | | | | | | | | | | | | | | | |
Increase in provisions
|
| | | | | | | 4 | | | | | | 129 | | |
Increase in inventories
|
| | | | | | | (16,939) | | | | | | (33,328) | | |
Decrease (increase) in trade and other receivables
|
| | | | | | | 3,662 | | | | | | (970) | | |
Decrease in other assets
|
| | | | | | | 3,261 | | | | | | 1,980 | | |
(Decrease) increase in other liabilities
|
| | | | | | | (4,473) | | | | | | 2,879 | | |
Increase in contract liabilities
|
| | | | | | | 1,020 | | | | | | 600 | | |
Decrease in trade and other payables
|
| | | | | | | (11,293) | | | | | | (14,905) | | |
Income taxes paid
|
| | | | | | | (661) | | | | | | — | | |
Net cash (outflow) from operating activities
|
| | | | | | | (21,996) | | | | | | (33,378) | | |
Expenditure for property and equipment and intangible assets
|
| | | | | | | (619) | | | | | | (904) | | |
Net cash (outflow) from investing activities
|
| | | | | | | (619) | | | | | | (904) | | |
Interest paid
|
| | | | | | | (589) | | | | | | (547) | | |
Proceeds from bank liabilities
|
| | | | | | | 29,000 | | | | | | 37,810 | | |
Repayment of liabilities from banks
|
| | | | | | | (2,057) | | | | | | (5,000) | | |
Lease payments
|
| | | | | | | (1,227) | | | | | | (1,429) | | |
Net cash inflow from financing activities
|
| | | | | | | 25,127 | | | | | | 30,834 | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | | | | 2,512 | | | | | | (3,448) | | |
Cash and cash equivalents at the beginning of the period
|
| | | | | | | 2,120 | | | | | | 9,367 | | |
Effects of exchange rate changes on cash and cash equivalents
|
| | | | | | | — | | | | | | (19) | | |
Cash and cash equivalents at end of the period
|
| | | | | | | 4,632 | | | | | | 5,900 | | |
| | |
September 30, 2019
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Online
|
| |
Retail Store
|
| |
Segments total
|
| |
Reconciliation(1)
|
| |
IFRS
consolidated |
| |||||||||||||||
Net Sales
|
| | | | 95,386 | | | | | | 3,726 | | | | | | 99,112 | | | | | | — | | | | | | 99,112 | | |
EBITDA
|
| | |
|
2,872
|
| | | |
|
698
|
| | | |
|
3,570
|
| | | |
|
(176)
|
| | | |
|
3,394
|
| |
Depreciation and amortization
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (1,877) | | |
Finance expenses, net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (9,373) | | |
Income tax benefit
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,545 | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (4,311) | | |
|
| | |
September 30, 2020
|
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Online
|
| |
Retail Store
|
| |
Segments total
|
| |
Reconciliation(1)
|
| |
IFRS
consolidated |
| |||||||||||||||
Net Sales
|
| | | | 123,288 | | | | | | 3,071 | | | | | | 126,359 | | | | | | — | | | | | | 126,359 | | |
EBITDA | | | | | 9,828 | | | | | | 667 | | | | | | 10,495 | | | | | | (265) | | | | | | 10,230 | | |
Depreciation and amortization
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (2,021) | | |
Finance expenses, net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 5,182 | | |
Income tax expense
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (3,762) | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 9,629 | | |
| | |
For the three months ended
September 30, |
| |||||||||
(in € thousands)
|
| |
2019
|
| |
2020
|
| ||||||
Germany
|
| | | | 21,161 | | | | | | 26,172 | | |
United States
|
| | | | 10,766 | | | | | | 15,254 | | |
Europe (excluding Germany)
|
| | | | 30,833 | | | | | | 42,537 | | |
Rest of the world
|
| | | | 36,352 | | | | | | 42,396 | | |
| | | | | 99,112 | | | | | | 126,359 | | |
| | | | | | | | | | | | | | |
Carrying amount as of,
|
| |||||||||
(in € thousands)
|
| |
Interest
rate |
| |
Origination Date
|
| |
Maturity
|
| |
June 30,
2020 |
| |
September 30,
2020 |
| |||||||||
Shareholder Loans | | | | | | | | | | | | | | | | | | | | | | | | | |
Facility 1
|
| | | | 6% | | | |
Oct. 9, 2014
|
| |
Oct. 9, 2025
|
| | | | 57,380 | | | | | | 55,543 | | |
Facility 2
|
| | | | 6% | | | |
Oct. 9, 2014
|
| |
Oct. 9, 2025
|
| | | | 133,814 | | | | | | 129,833 | | |
| | |
For the three months ended
September 30, |
| |||||||||
(in € thousands)
|
| |
2019
|
| |
2020
|
| ||||||
Shared-based compensation
|
| | | | 29 | | | | | | 7 | | |
Other long-term employee benefits
|
| | | | 561 | | | | | | 745 | | |
Total | | | | | 590 | | | | | | 752 | | |
| | |
For the three months ended
September 30, |
| |||||||||
(in € thousands)
|
| |
2019
|
| |
2020
|
| ||||||
Classified within capital reserve (beginning of year)
|
| | | | 989 | | | | | | 1,055 | | |
Expense related to: | | | | | | | | | | | | | |
Stock options
|
| | | | 7 | | | | | | 7 | | |
Restricted stock
|
| | | | 22 | | | | | | — | | |
Classified within capital reserve (end of year)
|
| | | | 1,018 | | | | | | 1,062 | | |
|
| | |
Time-vested
Options |
| |
Wtd. Average
Exercise Price (USD) |
| |
Performance-based
Options |
| |
Wtd. Average
Exercise Price (USD) |
| |
Restricted
Stock |
| |||||||||||||||||||||||||||
(in € thousands)
|
| |
Options
|
| |
Options
|
| ||||||||||||||||||||||||||||||||||||
June 30, 2019
|
| | | | 2,005 | | | | | | | | | | | | 500 | | | | | | 1,620 | | | | | | | | | | | | 1,000 | | | | | | 392 | | |
Options forfeited
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Options exercised
|
| | | | — | | | | | | N/A | | | | | | | | | | | | — | | | | | | N/A | | | | | | | | | | | | — | | |
September 30, 2019
|
| | | | 2,005 | | | | | | | | | | | | 500 | | | | | | 1,620 | | | | | | | | | | | | 1,000 | | | | | | 392 | | |
June 30, 2020
|
| | | | 2,005 | | | | | | | | | | | | 500 | | | | | | 1,620 | | | | | | | | | | | | 1,000 | | | | | | — | | |
Options forfeited
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Options exercised
|
| | | | — | | | | | | N/A | | | | | | | | | | | | — | | | | | | N/A | | | | | | | | | | | | — | | |
September 30, 2020
|
| | |
|
2,005
|
| | | | | | | | | |
|
500
|
| | | |
|
1,620
|
| | | | | | | | | |
|
1,000
|
| | | | | — | | |
| | |
Year ended June 30, 2020
|
| ||||||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category
in accordance with IFRS 9 |
| |
Category in
accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| ||||||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current financial assets
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other receivables
|
| | | | 4,815 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Cash and cash equivalents
|
| | | | 9,367 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Other assets
|
| | | | 18,950 | | | | | | 8,886 | | | | | | | | | | | | | | | | | |
thereof deposits
|
| | | | 1,805 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
thereof other financial
assets |
| | | | 8,259 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 191,194 | | | | | | — | | | |
Amortized cost
|
| | | | 192,338 | | | | | | Level 2 | | |
Lease liabilities
|
| | | | 13,928 | | | | | | 13,928 | | | |
N/A
|
| | | | — | | | | | | — | | |
Other liabilities
|
| | | | 5,905 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Current financial liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities to banks
|
| | | | 10,000 | | | | | | | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 5,787 | | | | | | 5,787 | | | |
N/A
|
| | | | — | | | | | | — | | |
Trade and other payables
|
| | | | 36,158 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
Other liabilities
|
| | | | 46,128 | | | | | | 30,968 | | | | | | | | | | | | | | | | | |
thereof other financial
liabilities |
| | | | 15,160 | | | | | | — | | | |
Amortized cost
|
| | | | — | | | | | | — | | |
| | |
For the three months ended September 30, 2020
|
| ||||||||||||||||||||||||
(in € thousands)
|
| |
Carrying
amount |
| |
No category in
accordance with IFRS 9 |
| |
Category in
accordance with IFRS 9 |
| |
Fair
value |
| |
Fair value
hierarchy level |
| ||||||||||||
Financial assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current financial assets
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Derivatives (Hedge Accounting)
|
| | | | 871 | | | | | | — | | | |
N/A
|
| | | | | | | | | | Level 2 | | |
Financial liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current financial liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Shareholder Loans
|
| | | | 185,376 | | | | | | — | | | |
Amortized cost
|
| | | | 194,792 | | | | | | Level 2 | | |
Current financial liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Derivatives (Hedge Accounting)
|
| | | | — | | | | | | — | | | |
N/A
|
| | | | | | | | | | Level 2 | | |
| Morgan Stanley | | |
J.P. Morgan
|
|
| Credit Suisse | | |
UBS Investment Bank
|
|
| Jefferies | | |
Cowen
|
|
|
Signature
|
| |
Title
|
|
|
/s/ Michael Kliger
Michael Kliger
|
| | Chief Executive Officer and Management Board Member (principal executive officer) | |
|
*
Dr. Martin Beer
|
| | Chief Financial Officer and Management Board Member (principal financial officer and principal accounting officer) | |
|
*
Dennis Gies
|
| | Member of the Supervisory Board | |
|
*
David B. Kaplan
|
| | Chairman of the Supervisory Board | |
|
*
Marjorie Lao
|
| | Member of the Supervisory Board | |
|
*
Cesare Ruggiero
|
| | Member of the Supervisory Board | |
|
*
Susan Gail Saideman
|
| | Member of the Supervisory Board | |
|
*
Michaela Tod
|
| | Member of the Supervisory Board | |
|
*
Sascha Zahnd
|
| | Member of the Supervisory Board | |
| | | |
By:
/s/ Colleen A. De Vries
|
| ||||||
| | | | | | | Name: | | | Colleen A. De Vries | |
| | | | | | | Title: | | | Sr. Vice President on behalf of Cogency Global, Inc. | |
Exhibit 1.1
American Depositary Shares
Representing an Aggregate of Ordinary Shares
MYT NETHERLANDS PARENT B.V.
AMERICAN DEPOSITARY SHARES, EACH REPRESENTING
ONE ORDINARY SHARE, NOMINAL VALUE €0.000015 PER SHARE
UNDERWRITING AGREEMENT
January 20, 2021
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
As Representatives of the several Underwriters listed on Schedule I hereto
c/o | Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036 |
c/o J.P. Morgan Securities
LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
MYT Netherlands Parent B.V., a private company with limited liability under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) and registered with the Trade Register of the Chamber of Commerce in the Netherlands under number 74988441 (the “Company”), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”) for whom you are acting as representatives (the “Representatives”), and MYT Holding LLC (the “Selling Shareholder”) proposes to sell to the Underwriters, an aggregate of ordinary shares, nominal value €0.000015 per share, of the Company (the “Firm Shares”), in the form of American Depositary Shares (the “Firm ADSs”), of which Firm Shares represented by Firm ADSs are to be issued and sold by the Company and Firm Shares represented by Firm ADSs are to be sold by the Selling Shareholder.
The Company and the Selling Shareholder also proposes to issue and sell to the several Underwriters not more than an additional ordinary shares, nominal value €0.000015 per share (the “Additional Shares”), in the form of American Depositary Shares (the “Additional ADSs”), of which Additional Shares represented by Additional ADSs are to be issued and sold by the Company and Additional Shares represented by Additional ADSs are to be sold by the Selling Shareholder, if and to the extent that you, as Representatives of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares,” and the Firm ADSs and the Additional ADSs, if any, are hereinafter collectively referred to as the “ADSs.” The ordinary shares, nominal value €0.000015 per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “Stock.”
The ADSs are to be issued pursuant to a deposit agreement (the “Deposit Agreement”), dated January 20, 2021, among the Company, The Bank of New York Mellon, as the depositary (the “Depositary”) and owners and beneficial owners, from time to time, of the ADSs. Each ADS will initially represent one ordinary share deposited with the Depositary pursuant to the Deposit Agreement.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-1 (File No. 333-251765), including a preliminary prospectus, relating to the ADSs. The registration statement as amended at the time it became effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”; the prospectus in the form first used to confirm sales of ADSs (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus.” If the Company has filed an abbreviated registration statement to register additional shares of Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. A registration statement on Form F-6 (File No. 333-252029) relating to the ADSs has been filed with the Commission (such registration statement on Form F-6, including all exhibits thereto, as amended through the time such registration statement became effective, being hereinafter referred to as the “ADS Registration Statement”). The Company has also filed, in accordance with Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), a registration statement (the “Exchange Act Registration Statement”) on Form 8-A (File No. 001-39880) under the Exchange Act to register, under Section 12(b) of the Exchange Act, the ADSs.
For purposes of this Underwriting Agreement (this “Agreement”), “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “preliminary prospectus” shall mean each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted information pursuant to Rule 430A under the Securities Act that was used after such effectiveness and prior to the execution and delivery of this Agreement, “Time of Sale Prospectus” means the preliminary prospectus contained in the Registration Statement at the time of its effectiveness together with the documents and pricing information set forth in Schedule II hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof.
Morgan Stanley & Co. LLC (“Morgan Stanley”) has agreed to reserve a portion of the ADSs to be purchased by it under this Agreement for sale to the Company’s directors, officers, employees and business associates and other parties related to the Company (collectively, “Participants”), as set forth in each of the Time of Sale Prospectus and the Prospectus under the heading “Underwriters” (the “Directed Share Program”). The ADSs to be sold by Morgan Stanley and its affiliates pursuant to the Directed Share Program, at the direction of the Company, are referred to hereinafter as the “Directed Shares.” Any Directed Shares not orally confirmed for purchase by any Participant by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus.
1. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) Each of the Registration Statement, the ADS Registration Statement and the Exchange Act Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement, the ADS Registration Statement or the Exchange Act Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge of the Company, threatened by the Commission. The ADSs have been duly registered under the Securities Act pursuant to the Registration Statement and the ADS Registration Statement.
(b) (i) The Registration Statement and the ADS Registration Statement, when each became effective, did not contain and, as amended or supplemented, if applicable, will not, as of the date of such amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement, the Prospectus and the ADS Registration Statement comply and, as amended or supplemented, if applicable, will comply, when filed, in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the ADSs in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus, as of its date, and as of the Closing Date and the Option Closing Date, as the case may be, does not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a private company with limited liability under the laws of the Netherlands in good standing under the laws of the jurisdiction of its incorporation (where such concept exists), has the corporate power and authority to own or lease its property and to conduct its business as described in the Time of Sale Prospectus and Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power and authority to own or lease its property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing is applicable in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and, following the Closing Date, will be owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized share capital of the Company conforms as to legal matters to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus; the Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the heading “Capitalization”; except as described in or expressly contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any share capital of the Company or any such subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options.
(h) The shares of Stock outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares may be freely deposited with the Depositary against issuance by the Depositary of American Depositary Receipts (“ADRs”) evidencing ADSs. The ADSs, when issued and delivered against payment thereof, will be freely transferable to or for the account of the several Underwriters, and there are no restrictions on subsequent transfers of such ADSs under the laws of the Netherlands or the United States.
(j) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Deposit Agreement will not (i) result in any violation of the provisions of the articles of association of the Company, or (ii) conflict with or result in a breach or violation of any of the terms or provisions of any agreement or other instrument binding upon the Company or any of its subsidiaries, or (iii) result in any violation of any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except in the case of clauses (ii) and (iii), for any breach or violation that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company of its obligations under this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals and authorizations, orders and registrations or qualifications as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the ADSs.
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(l) (i) Other than as set forth in the Time of Sale Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that, singly or in the aggregate, would reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the ADSs and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the protection of the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or the failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with applicable Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance, in each case associated with applicable Environmental Laws or any permit, license or approval issued thereunder, any related constraints on operating activities resulting from applicable Environmental Laws and any potential liabilities to third parties arising under applicable Environmental Laws) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) The Company and its subsidiaries are in compliance with applicable laws relating to media law, copyright law, data protection law, advertising law, consumer protection law, labor law and criminal law or online payment service regulations of the jurisdictions in which the Company and its subsidiaries are engaged in their business, except where such noncompliance would not have or be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its Subsidiaries taken as a whole, (i) the information technology systems, equipment and software used by the Company and its subsidiaries in their respective businesses, including those used to process online order and payment services, (the “IT Assets”) are adequate for, and operate and perform as required in connection with the operation of the business of the Company and each of its subsidiaries as currently conducted, (ii) have not malfunctioned or failed at any time during the period covered by the financial statements included in the Time of Sale Prospectus and the Prospectus and (iii) to the Company’s knowledge, the IT Assets are free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. To the Company’s best knowledge, there has been no security breach, attack or other compromise as a result of which any person has gained unauthorized access to any IT Asset in a manner that would have or be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) The Company and its subsidiaries have taken precautions that they reasonably believe to be appropriate, including contingency plans, back-up facilities and disaster recovery technology processes consistent with industry standard practices, and necessary to protect the computer systems (hardware and software) and information technologies and related systems (such as networks) implemented or used by the Company and its subsidiaries against (i) overload, failure, limitation of system capacities, manual misuses and other interruptions of regular business operations, (ii) fire, explosion, flood, any calamity or other interruptions of regular business operations and (iii) unauthorized access or manipulation by third parties, in order to ensure that the events under (i) through (iii) above would not have or be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(t) All IT Assets used or required for use by the Company and its subsidiaries are either owned by, or properly licensed or leased to, the Company or its subsidiaries; the Company and its Subsidiaries are not in default under any such licenses or leases, and there are no grounds on which they might be terminated; and the IT Assets have (and each part of them has) sufficient capacity and performance to meet the processing and other business requirements of the Company and its subsidiaries and the anticipated requirements for at least the next twelve months; except, in each case of the above, as non-compliance with this representation would not have or be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole.
(u) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to submit or file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the ADSs registered pursuant to the Registration Statement.
(v) (i) None of the Company or its subsidiaries nor any of their respective directors, officers, affiliates, or to the Company’s knowledge, any employees or agents or other persons associated with or acting on behalf of the Company or any of its subsidiaries, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) or used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws; (iv) neither the Company nor any of its subsidiaries, nor any director, officer of the Company or any of its subsidiaries nor, to the knowledge of the Company, any employee or agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom (the “Bribery Act”) or any other applicable anti-bribery or anti-corruption law; (v) neither the Company nor any of its subsidiaries, nor any director, officer of the Company or any of its subsidiaries nor, to the knowledge of the Company, any employee or agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; and (vi) the Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(w) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-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 Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(x) (i) None of the Company, any of its subsidiaries, or any director, officer or employee thereof, or, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are:
(A) the subject or the target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person,” the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(y) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding share capital, nor declared, paid or otherwise made any dividend or distribution of any kind on its share capital other than ordinary and customary dividends; and (iii) there has not been any material change in the share capital, short-term debt or long-term debt of the Company and its subsidiaries, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(z) The Company and its subsidiaries have good and marketable title in fee simple to all real property that it owns, if any, and good and marketable title to all personal property (other than intellectual property, which is addressed exclusively in Section 1(aa)) owned by them, except such as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole; all such real property and personal property is free and clear of all liens, encumbrances and defects, except such as would not reasonably be expected to have a material adverse effect on the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole.
(aa) Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, the Company and its subsidiaries own or possess, or can acquire on reasonable terms, (i) all patents, patent rights, technology, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names that it holds, if any (collectively, “Intellectual Property Rights”) currently employed by them in connection with their businesses as now operated, or as proposed in the Time of Sale Prospectus and the Prospectus to be operated, by them; (ii) the Intellectual Property Rights owned by the Company and its subsidiaries and, to the Company’s knowledge, the Intellectual Property Rights licensed to the Company and its subsidiaries, are valid, subsisting and enforceable, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, scope or enforceability of any such Intellectual Property Rights; (iii) neither the Company nor any of its subsidiaries has received any notice alleging any infringement, misappropriation or other violation of Intellectual Property Rights which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole; (iv) to the Company’s knowledge, no third party is infringing, misappropriating or otherwise violating, or has infringed, misappropriated or otherwise violated, any Intellectual Property Rights owned by the Company; (v) neither the Company nor any of its subsidiaries infringes, misappropriates or otherwise violates, or has infringed, misappropriated or otherwise violated, any Intellectual Property Rights; (vi) all employees or contractors engaged in the development of Intellectual Property Rights on behalf of the Company or any subsidiary of the Company have executed an invention assignment agreement whereby such employees or contractors presently assign all of their right, title and interest in and to such Intellectual Property Rights to the Company or the applicable subsidiary, and to the Company’s knowledge no such agreement has been breached or violated; and (vii) the Company and its subsidiaries use, and have used, commercially reasonable efforts to appropriately maintain all information intended to be maintained as a trade secret.
(bb) (i) The Company and its subsidiaries use and have used any and all software and other materials distributed under a “free,” “open source,” or similar licensing model (including but not limited to the MIT License, Apache License, GNU General Public License, GNU Lesser General Public License and GNU Affero General Public License) (“Open Source Software”) in compliance with all license terms applicable to such Open Source Software; and (ii) neither the Company nor any of its subsidiaries uses or distributes or has used or distributed any Open Source Software in any manner that requires or has required (A) the Company or any of its subsidiaries to permit reverse engineering of any software code or other technology owned by the Company or any of its subsidiaries or (B) any software code or other technology owned by the Company or any of its subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative works or (3) redistributed at no charge.
(cc) Except as would not have a material adverse effect on the Company and its subsidiaries taken as a whole, (i) the Company and each of its subsidiaries have complied and are presently in compliance with all contractual obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations of any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of its subsidiaries of personal, personally identifiable, sensitive, confidential or regulated data (“Data Security Obligations,” and such data, “Data”), (ii) the Company has not received any notification of or complaint regarding and is unaware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Data Security Obligation; and (iii) there is no action, suit or proceeding by or before any court or governmental agency, authority or body pending or, to the Company’s knowledge, threatened alleging non-compliance with any Data Security Obligation.
(dd) Except as would not reasonably be expected to have material adverse effect on the Company and its subsidiaries, taken as a whole, the Company and its subsidiaries have used commercially reasonable efforts to protect the information technology systems and Data used in connection with the operation of the Company’s and its subsidiaries’ businesses, including to establish and maintain, and comply with, reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection with the operation of the Company’s and its subsidiaries’ businesses (“Breach”). Except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole, there has been no such Breach, and the Company and its subsidiaries have not been notified of and have no knowledge of any event or condition that would reasonably be expected to result in, any such Breach.
(ee) No material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ff) Each benefit and compensation plan, agreement, policy and arrangement that is maintained, administered or contributed to by the Company or any of its subsidiaries or any of their respective controlled affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) for current or former employees or directors of, or independent contractors with respect to, the Company or any of its subsidiaries or any of their respective affiliates, or with respect to which any of such entities could reasonably be expected to have any current, future or contingent liability or responsibility, has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations and the Company and each of its subsidiaries and each of their respective affiliates have complied with all applicable statutes, orders, rules and regulations in regard to such plans, agreements, policies and arrangements, except in each case for any failure to comply with the respective terms and the requirements of any applicable statutes, orders, rules and regulations as would not have or be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole; the fair market value of the assets of each such plan, agreement, policy and arrangement which is required or intended to be funded (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued or earned or payments due under such plan, agreement, policy or arrangement determined using reasonable actuarial assumptions, except where any failure to exceed such present value would not have or be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole; and the liabilities reflected in the relevant entity’s financial statements with respect to each such plan, agreement, policy and arrangement that is not required or intended to be funded accurately reflect the present value of all benefits earned or accrued or payments due under such plan, agreement, policy or arrangement determined using reasonable actuarial assumptions, except where any failure to reflect such present value would not have or be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole.
(gg) The Company and each of its subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries 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 reasonable cost, except in each case as would not have a material adverse effect on the Company and its subsidiaries taken as a whole.
(hh) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except to the extent that the failure to possess such certificates, authorizations and permits would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) The financial statements included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the related schedules and notes thereto, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates shown and its results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the periods covered thereby except for any normal year-end adjustments in the Company’s quarterly financial statements. The other financial information included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby.
(jj) KPMG, who have certified certain financial statements of the Company and its subsidiaries and delivered its report with respect to the audited consolidated financial statements and schedules filed with the Commission as part of the Registration Statement and included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(kk) The Company is in compliance with the provisions of the Sarbanes-Oxley Act of 2002 that are applicable to them as of the date of this Agreement. The Company and each of its subsidiaries 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 otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (x) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (y) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ll) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information required to be disclosed by 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.
(mm) Except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, the Company has not sold, issued or distributed any shares of Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(nn) The Registration Statement, the Prospectus, the Time of Sale Prospectus and any preliminary prospectus comply, and any amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions in which the Prospectus, the Time of Sale Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program.
(oo) No consent, approval, authorization or order of, or qualification with, any governmental body or agency, other than those obtained, is required in connection with the offering of the Directed Shares in any jurisdiction where the Directed Shares are being offered.
(pp) The Company has not offered, or caused Morgan Stanley or any Morgan Stanley Entity as defined in Section 12 to offer, Shares to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level or type of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products.
(qq) The Company and each of its subsidiaries has filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good faith and for which reserves required by IFRS have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which, singly or in the aggregate, has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
(rr) It is not necessary that this Agreement, the Deposit Agreement, the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other document be filed or recorded with any court or other authority in the Netherlands.
(ss) From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
(tt) The Company (i) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communication with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than Morgan Stanley and J.P. Morgan Securities LLC (“J.P. Morgan”) to engage in Testing-the-Waters Communications. The Company reconfirms that Morgan Stanley and J.P. Morgan 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 under the Securities Act.
(uu) As of the time of each sale of the ADSs in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of (A) the Time of Sale Prospectus, (B) any free writing prospectus, when considered together with the Time of Sale Prospectus, and (C) any individual Written Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will 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.
(vv) Except as described in the Registration Statement, Time of Sale Prospectus or Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(ww) Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the ADSs.
(xx) Neither the Company nor any of its subsidiaries has taken, directly or indirectly, without giving effect to activities of the Underwriters, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(yy) Neither the issuance, sale and delivery of the ADSs nor the application of the proceeds thereof by the Company as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(zz) The statistical, industry-related and market-related data included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate and such data is consistent with the sources from which they are derived, in each case in all material respects.
(aaa) Under the current laws and regulations of the Netherlands, all dividends and other distributions declared and payable on the Shares in cash may be freely remitted out of the Netherlands and may be paid in, or freely converted into, United States dollars, in each case without there being required any consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in the Netherlands; and all such dividends and other distributions paid by the Company will not be subject to withholding under the laws and regulations of the Netherlands, except to the extent such dividends and other distributions are paid to the beneficial owners of such dividends and other distributions (i) that are tax resident in the Netherlands, (ii) that are attributable to a permanent establishment in the Netherlands or (iii) of whom the company is unable to assess that the tax residence is outside the Netherlands.
(bbb) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the Netherlands or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the creation, allotment and issuance of the Shares, (iii) the sale and delivery of the ADSs to the Underwriters or purchasers procured by the Underwriters, or (iv) the resale and delivery of the ADSs by the Underwriters in the manner contemplated herein.
(ccc) The Company believes that it was not a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes for its most recent taxable year, and it does not expect to be a PFIC for its current taxable year or in the foreseeable future.
(ddd) It is not necessary under the laws of the Netherlands to enable the Underwriters to enforce their rights under this Agreement, provided that they are not otherwise engaged in business in the Netherlands.
(eee) The Company is a “foreign private issuer” as defined in Rule 405 of the Securities Act.
(fff) 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 it owns or leases property or assets, (ii) the United States or the State of New York or (iii) the Netherlands or any political subdivision thereof.
(ggg) The choice of law of the State of New York as the governing law of this Agreement will be recognized in the Netherlands.
(hhh) The indemnification and contribution provisions set forth in Section 11 hereof do not contravene Dutch law or public policy.
(iii) The Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Depositary, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability. Upon (i) issuance by the Depositary of the ADSs against the deposit of Shares in respect thereof and/or (ii) due execution and delivery by the Depositary of ADRs evidencing ADSs against the deposit of Shares in respect thereof, in accordance with the provisions of the Deposit Agreement, such ADSs and/or ADRs will be duly and validly issued and the persons in whose names the ADSs and/or the ADRs are registered will be entitled to the rights specified therein and in the Deposit Agreement; and the ADRs will conform in all material respects to the descriptions thereof in each of the Time of Sale Prospectus and the Prospectus.
2. Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants that:
(a) The Selling Shareholder has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited liability company, public agency, or a limited partnership, as the case may be, in good standing in its jurisdiction of formation.
(b) The Selling Shareholder has, and immediately prior to any Closing Date (as defined in Section 5) on which the Selling Shareholder is selling Shares represented by ADSs, the Selling Shareholder will have, good and marketable title to the Shares represented by ADSs to be sold by the Selling Shareholder hereunder on such Closing Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect thereof, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims.
(c) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) relating to the Shares.
(d) The Shares represented by the ADSs to be sold by the Selling Shareholder may be freely deposited by the Selling Shareholder with the Depositary in accordance with the Deposit Agreement against the issuance of ADSs; the ADSs, when issued and delivered against payment thereof, will be freely transferable by the Selling Shareholder to or for the accounts of the several Underwriters; and there are no restrictions on subsequent transfers of the ADSs.
(e) Upon payment for the ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of the Shares represented by such ADSs, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares, and (iii) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(g) The sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated therein.
(h) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, the rules and regulations of FINRA, applicable state or foreign securities laws and such other approvals as have been or will have been made prior to the Closing Date in connection with the purchase and sale of the Shares by the Underwriters.
(i) To the knowledge of the Selling Shareholder, the Registration Statement, when it became effective, the Prospectus (as of its date or as of the applicable Closing Date), the Time of Sale Prospectus (at the time of each sale of the ADSs) and any Issuer Free Writing Prospectus listed in Schedule II hereto did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that such representations and warranties set forth in this subsection apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Prospectus, the Time of Sale Prospectus or any other Issuer Free Writing Prospectus listed in Schedule II hereto or any amendment or supplement thereto; it being understood and agreed that the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appears in the Registration Statement, the Prospectus, the Time of Sale Prospectus or any amendment or supplement thereto in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholders” or any other Issuer Free Writing Prospectus listed in Schedule II hereto (collectively, the “Selling Shareholder Information”).
(j) The Selling Shareholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the shares of the Shares.
(k) The Selling Shareholder has not: (i) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, the Bribery Act, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Shareholder has instituted and maintain policies and procedures designed to ensure compliance with all applicable anti-bribery and anti-corruption laws.
(l) The operations of the Selling Shareholder are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Anti-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 Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
(m) The Selling Shareholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, and Syria); and the Selling Shareholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Shareholder has not engaged in for the past five years, are not now engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
Any certificate signed by any officer of the Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Selling Shareholder, as to matters covered thereby, to each Underwriter.
3. Agreements to Sell and Purchase. The Company and the Selling Shareholder hereby agree to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company and the Selling Shareholder at $ per ADS (the “Purchase Price”) the number of Firm ADSs (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the number of Firm ADSs to be sold by the Company and the Selling Shareholder as the number of Firm ADSs set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm ADSs.
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company and the Selling Shareholder agree to sell to the Underwriters the Additional Shares in the form of Additional ADSs, and the Underwriters shall have the right to purchase, severally and not jointly, up to Additional ADSs at the Purchase Price, of which Additional Shares represented by Additional ADSs are to be issued and sold by the Company and Additional Shares represented by Additional ADSs are to be sold by the Selling Shareholder, provided, however, that the amount paid by the Underwriters for any Additional ADSs shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm ADSs but not payable on such Additional ADSs. The Representatives may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional ADSs to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm ADSs nor later than ten business days after the date of such notice. Additional ADSs may be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm ADSs. On each day, if any, that Additional ADSs are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional ADSs (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Additional ADSs to be purchased on such Option Closing Date as the number of Firm ADSs set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm ADSs.
4. Terms of Public Offering. The Company and the Selling Shareholder are advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the ADSs as soon after the Registration Statement and has become effective as in the Representatives’ judgment is advisable. The Company and the Selling Shareholder are further advised by the Representatives that the ADSs are to be offered to the public initially at $ per ADS (the “Public Offering Price”) and to certain dealers selected by the Representatives at a price that represents a concession not in excess of $ per ADS under the Public Offering Price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $ per ADS, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm ADSs to be sold by the Company and the Selling Shareholder shall be made to the Company and the Selling Shareholder in Federal or other funds immediately available in New York City against delivery of such Firm ADSs for the respective accounts of the several Underwriters at a.m., New York City time, on January 25, 2021, or at such other time on the same or such other date, not later than , 2021, as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional ADSs shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional ADSs for the respective accounts of the several Underwriters at a.m., New York City time, on the date specified in the corresponding notice described in Section 3 or at such other time on the same or on such other date, in any event not later than February 24, 2021, as shall be designated in writing by the Representatives.
The Firm ADSs and Additional ADSs shall be registered in such names and in such denominations as the Representatives shall request not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm ADSs and Additional ADSs shall be delivered to the Representatives on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters.
6. Conditions to the Underwriters’ Obligations. The obligations of the Company and the Selling Shareholder to sell the ADSs to the Underwriters and the several obligations of the Underwriters to purchase and pay for the ADSs on the Closing Date are subject to the condition that the Registration Statement, the ADS Registration Statement and the Exchange Act Registration Statement shall have become effective not later than p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, its parent or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Sections 6(a)(i) and 6(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, except for any representations and warranties that expressly speak as of a specific date, which representations and warranties are true and correct as of such date; and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Baker & McKenzie LLP, U.S. counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of Baker & McKenzie Amsterdam N.V., Dutch counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Latham & Watkins LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the Representatives 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.
(f) The Underwriters shall have received on the Closing Date an opinion of Emmet, Marvin & Martin, LLP, counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from KPMG, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Company and the Depositary shall have executed and delivered the Deposit Agreement, and the Deposit Agreement shall be in full force and effect on the Closing Date and shall not be terminated, rescinded or revoked. The Company and the Depositary shall have taken all actions necessary to permit the deposit of the Shares and the issuance of the ADS representing such Shares in accordance with the Deposit Agreement.
(i) The Depositary shall have furnished or caused to be furnished to the Representatives at such Closing Date, confirmation satisfactory to the Representatives evidencing the deposit with it of the Shares being so deposited against issuance of the ADSs to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of the corresponding ADRs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(j) The letters, each substantially in the form attached hereto as Exhibit A (the “Lock-up Agreements”), between the Representatives and certain shareholders, the Selling Shareholder, officers and members of the management board and the supervisory board of the Company shall be in full force and effect on the Closing Date.
(k) The Representatives shall have received on the date hereof a certificate of the Chief Financial Officer of the Company in form and substance satisfactory to the Representatives.
(l) The Underwriters shall have received on the Closing Date an opinion of Baker & McKenzie LLP, counsel for the Selling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(m) The Selling Shareholder shall have furnished to the Underwriters on the Closing Date a certificate, dated the Closing Date, signed by, or on behalf of, the Selling Shareholder stating that the representations and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the date hereof and the Closing Date and that the Selling Shareholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(n) The several obligations of the Underwriters to purchase Additional ADSs hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Baker & McKenzie LLP, U.S. counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iii) an opinion of Baker & McKenzie Amsterdam N.V., Dutch counsel for the Company, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) an opinion and negative assurance letter of Latham & Watkins LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) an opinion of Emmet, Marvin & Martin, LLP, counsel for the Depositary, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from KPMG, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(g) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date;
(vii) a certificate of the Chief Financial Officer of the Company, dated the Option Closing Date to the same effect as the certificate required by Section 6(k) hereof;
(viii) an opinion of Baker & McKenzie LLP, counsel for the Selling Shareholder, dated the Option Closing Date, relating to the Additional ADSs to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(l) hereof;
(ix) a certificate, dated the Option Closing Date and signed by the Selling Shareholder, confirming that the certificate delivered on the Closing Date pursuant to Section 6(m) hereof remains true and correct as of such Option Closing Date; and
(x) such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional ADSs to be sold on such Option Closing Date and other matters related to the issuance of such Additional ADSs.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to the Representatives, without charge, two conformed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the ADSs as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request; provided, however, that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, to execute or file a general consent to service of process in any jurisdiction or to subject itself to taxation in any jurisdiction in which it is not otherwise subject.
(h) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(j) The Company will promptly notify Morgan Stanley and J.P. Morgan if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the Restricted Period referred to in Section 7.
(k) The Company will use its commercially reasonable best efforts to list the ADSs on the NYSE.
(l) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify Morgan Stanley and J.P. Morgan and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(m) The Company agrees to apply the net proceeds from the sale of the ADSs in substantially the manner set forth under the heading “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(n) The Company shall pay, and shall indemnify and hold the Underwriters harmless against, any stamp, issue, registration, documentary, sales, transfer income, capital gains or other similar taxes or duties imposed under the laws of the Netherlands or the United States or any political sub-division or taxing authority thereof or therein that is payable in connection with (i) the execution, delivery, consummation or enforcement of this Agreement, (ii) the creation, allotment and issuance of the Shares, (iii) the sale and delivery of the ADSs to the Underwriters or purchasers procured by the Underwriters, or (iv) the resale and delivery of the ADSs by the Underwriters in the manner contemplated herein.
(o) All sums payable by the Company under this Agreement shall be paid free and clear of and without deductions or withholdings of any present or future taxes or duties, unless the deduction or withholding is required by law, in which case the Company shall pay such additional amount as will result in the receipt by each Underwriter of the full amount that would have been received had no deduction or withholding been made.
(p) All sums payable to an Underwriter shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to an Underwriter, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
The Company also covenants with each Underwriter that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period ending 180 days after the date of the Prospectus (the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Stock or such other securities, in cash or otherwise or (3) submit or file any registration statement with the Commission relating to the offering of any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock.
The restrictions contained in the preceding paragraph shall not apply to (A) the ADSs to be sold hereunder, (B) the issuance by the Company of shares of Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof as described in each of the Time of Sale Prospectus and Prospectus, or (C) facilitating the establishment of a trading plan on behalf of a shareholder, officer or member of the management or supervisory board of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Stock, provided that (i) such plan does not provide for the transfer of Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Stock may be made under such plan during the Restricted Period.
If Morgan Stanley and J.P. Morgan, in their sole discretion, agree to release or waive the restrictions on the transfer of Shares set forth in a Lock-up Agreement for an officer or member of the management or supervisory board of the Company and provide the Company with notice 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.
8. Agreements of the Selling Shareholder. The Selling Shareholder agrees:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) shall use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act), relating to the Shares.
(b) To deliver to the Representatives prior to the Closing Date a properly completed and executed United States Treasury Department Form W-8 or Form W-9, as applicable, together with all required attachments to such form.
(c) The Selling Shareholder will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Shares represented by the ADSs.
(d) The Selling Shareholder will do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Closing Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Shares represented by the ADSs.
(e) The Selling Shareholder will deliver to each Underwriter (or its agent), on or prior to the date of execution of this Agreement, a properly completed and executed FinCEN Certification, together with copies of identifying documentation, of the Selling Shareholder, and the Selling Shareholder undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the FinCEN Certification.
9. Expenses. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the ADSs under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the ADSs to the Underwriters, including any transfer or other taxes payable thereon, (iii) the reasonable cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the ADSs under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the ADSs by the Financial Industry Regulatory Authority (provided that the amount payable by the Company pursuant to subsections (iii) and (iv) shall not exceed $30,000 in the aggregate), (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Stock and all costs and expenses incident to listing the Shares on the NYSE, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any road show undertaken in connection with the marketing of the offering of the ADSs (except as set forth in (B) below), including, without limitation, expenses associated with the production of road show slides and graphics, travel and lodging expenses of the representatives and officers of the Company and any such consultants, (ix) the document production charges and expenses associated with printing this Agreement, (x) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 11 entitled “Indemnity and Contribution”, Section 12 entitled “Directed Share Program Indemnification” and the last paragraph of Section 14 below, the Underwriters will pay (A) all costs and expenses related to their participation in investor presentation on any road show undertaken in connection with the marketing of the offering of the ADSs and 50% of the cost of aircraft chartered in connection with the road show (with the Company paying the remaining 50% of the cost of such aircraft) and all travel and other expenses of the Underwriters or any of their employees incurred by them in connection with participation in investor presentations on any road show undertaken in connection with the marketing of the offering of the ADSs and (B) all of their costs and expenses, including fees and disbursements of their counsel, share transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
10. Covenants of the Underwriters. Each Underwriter, severally and not jointly, covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
11. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any reasonably incurred legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication or that arise out of, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriters through the Representatives consists of the information described as such in paragraph (c) below.
(b) The Selling Shareholder agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to the Selling Shareholder Information.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholder, the members of the supervisory board of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any reasonably incurred legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show or the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a), 11(b) or 11(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party or (iv) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, the members of its supervisory board, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by Morgan Stanley and J.P. Morgan. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 11(a), 11(b) or 11(c) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the ADSs or (ii) if the allocation provided by clause 11(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(e)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholder on the one hand and the Underwriters on the other hand in connection with the offering of the ADSs shall be deemed to be in the same respective proportions as the net proceeds from the offering of the ADSs (before deducting expenses) received by the Company and the Selling Shareholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the ADSs. The relative fault of the Company and the Selling Shareholder on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Shareholder or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 11 are several in proportion to the respective number of ADSs they have purchased hereunder, and not joint. The liability of the Selling Shareholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the ADSs sold by the Selling Shareholder under this Agreement.
(f) The Company, the Selling Shareholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the ADSs underwritten by it and distributed to the public were offered to the public 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. 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. The remedies provided for in this Section 11 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 11 and the representations, warranties and other statements of the Company and the Selling Shareholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, by or on behalf of the Selling Shareholder or any person controlling the Selling Shareholder, or by or on behalf of the Company, its officers, the members of its supervisory board or any person controlling the Company and (iii) acceptance of and payment for any of the Shares or ADSs.
12. Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless Morgan Stanley, each person, if any, who controls Morgan Stanley within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of Morgan Stanley within the meaning of Rule 405 of the Securities Act (“Morgan Stanley Entities”) from and against any and all losses, claims, damages and liabilities (including, without limitation, any reasonably incurred legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) that arise out of, or are based upon, the failure of any Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Morgan Stanley Entities.
(b) In case any proceeding (including any governmental investigation) shall be instituted involving any Morgan Stanley Entity in respect of which indemnity may be sought pursuant to Section 12(a), the Morgan Stanley Entity seeking indemnity, shall promptly notify the Company in writing and the Company, upon request of the Morgan Stanley Entity, shall retain counsel reasonably satisfactory to the Morgan Stanley Entity to represent the Morgan Stanley Entity and any others the Company may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Morgan Stanley Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Morgan Stanley Entity unless (i) the Company shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and the Morgan Stanley Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Morgan Stanley Entities in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Morgan Stanley Entities. Any such separate firm for the Morgan Stanley Entities shall be designated in writing by Morgan Stanley. The Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Morgan Stanley Entities from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time a Morgan Stanley Entity shall have requested the Company to reimburse it for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the Company agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Company of the aforesaid request and (ii) the Company shall not have reimbursed the Morgan Stanley Entity in accordance with such request prior to the date of such settlement. The Company shall not, without the prior written consent of Morgan Stanley, effect any settlement of any pending or threatened proceeding in respect of which any Morgan Stanley Entity is or could have been a party and indemnity could have been sought hereunder by such Morgan Stanley Entity, unless such settlement includes an unconditional release of the Morgan Stanley Entities from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 12(a) is unavailable to a Morgan Stanley Entity or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then the Company in lieu of indemnifying the Morgan Stanley Entity thereunder, shall contribute to the amount paid or payable by the Morgan Stanley Entity as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Morgan Stanley Entities on the other hand from the offering of the Directed Shares or (ii) if the allocation provided by clause 12(c)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 12(c)(i) above but also the relative fault of the Company on the one hand and of the Morgan Stanley Entities on the other hand in connection with any statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Morgan Stanley Entities on the other hand in connection with the offering of the Directed Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Directed Shares (before deducting expenses) and the total underwriting discounts and commissions received by the Morgan Stanley Entities for the Directed Shares, bear to the aggregate Public Offering Price of the Directed Shares. If the loss, claim, damage or liability is caused by an untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, the relative fault of the Company on the one hand and the Morgan Stanley Entities on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the Company or by the Morgan Stanley Entities and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(d) The Company and the Morgan Stanley Entities agree that it would not be just or equitable if contribution pursuant to this Section 12 were determined by pro rata allocation (even if the Morgan Stanley Entities were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 12(c). The amount paid or payable by the Morgan Stanley Entities as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by the Morgan Stanley Entities in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 12, no Morgan Stanley Entity shall be required to contribute any amount in excess of the amount by which the total price at which the Directed Shares distributed to the public were offered to the public exceeds the amount of any damages that such Morgan Stanley Entity has otherwise been required to pay. The remedies provided for in this Section 12 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this Section 12 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Morgan Stanley Entity or the Company, its officers, the members of its supervisory board or any person controlling the Company and (iii) acceptance of and payment for any of the Directed Shares.
13. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date or any Option Closing Date, as the case may be, (a) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange or the Nasdaq Global Market, (b) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (c) a material disruption in securities settlement, payment or clearance services in the United States, the Netherlands or the Federal Republic of Germany shall have occurred, (d) any moratorium on commercial banking activities shall have been declared by Federal or New York State, Dutch or German authorities or (e) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and which, singly or together with any other event specified in this clause (e), makes it, in the Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the ADSs on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
14. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase ADSs that it has or they have agreed to purchase hereunder on such date, and the aggregate number of ADSs which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the ADSs to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm ADSs set forth opposite their respective names in Schedule I bears to the aggregate number of Firm ADSs set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the ADSs which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of ADSs that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 14 by an amount in excess of one-ninth of such number of ADSs without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm ADSs and the aggregate number of Firm ADSs with respect to which such default occurs is more than one-tenth of the aggregate number of Firm ADSs to be purchased on such date, and arrangements satisfactory to the Representatives, the Company and the Selling Shareholder for the purchase of such Firm ADSs are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholder. In any such case either the Representatives or the Company or Selling Shareholder shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional ADSs and the aggregate number of Additional ADSs with respect to which such default occurs is more than one-tenth of the aggregate number of Additional ADSs to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional ADSs to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional ADSs that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company or the Selling Shareholder to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or the Selling Shareholder shall be unable to perform its obligations under this Agreement, the Company or the Selling Shareholder, as applicable, will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
15. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the ADSs, represents the entire agreement between the Company and the Selling Shareholder, on the one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the ADSs.
(b) The Company and the Selling Shareholder acknowledge that in connection with the offering of the ADSs: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, the Selling Shareholder or any other person, (ii) the Underwriters owe the Company and the Selling Shareholder only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company and (iv) 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. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Selling Shareholder or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Selling Shareholder shall consult with their own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor the other Underwriters shall have any responsibility or liability to the Company or the Selling Shareholder with respect thereto. Any review by the Representatives and the other Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or the Selling Shareholder. The Company the Selling Shareholder each waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the ADSs.
(c) The Selling Shareholder further acknowledges and agrees that, although the Underwriters may provide the Selling Shareholder with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriters are not making a recommendation to the Selling Shareholder to participate in the offering or sell any Shares at the Purchase Price, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
16. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
17. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
18. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
19. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at (i) care of Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department and (ii) care of J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Equity Syndicate Desk; if to the Company shall be delivered, mailed or sent to Einsteinring 9, 85609 Aschheim/Munich, Germany, Attention: Chief Financial Officer.
20. Submission to Jurisdiction; Appointment of Agents for Service. (a) The Company and the Selling Shareholder each irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “Specified Courts”) over any suit, action or proceeding arising out of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus, the Registration Statement or the offering of the ADSs (each, a “Related Proceeding”). The Company and the Selling Shareholder each irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company and the Selling Shareholder each has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company and the Selling Shareholder each irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
(b) The Company hereby irrevocably appoints CT Corporation System, with offices at 28 Liberty Street, New York, New York 10005 as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as the Company’s agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
21. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company and the Selling Shareholder with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, the Company and the Selling Shareholder each agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person hereunder, such Underwriter or controlling person agrees to pay to the Company or the Selling Shareholder, as applicable, an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person hereunder.
22. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, 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 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) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “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” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23. Contractual Recognition of Bail-in.
(a) Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding among the Underwriters, the Underwriters acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledge, accept, and agree to be bound by:
(i) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any Underwriters to any other Underwriter under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(A) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(B) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant Underwriters or another person, and the issue to or conferral of such shares, securities or obligations on the creditor or counterparty of such Underwriter;
(C) the cancellation of the BRRD Liability;
(D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
(b) Bail in Definitions. For the purposes of this Section 23:
(i) “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
(ii) “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
(iii) “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
(iv) “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time.
(v) “BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
(vi) “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters.
[Signature page follows.]
Very truly yours, | |||
MYT NETHERLANDS PARENT B.V. | |||
By: | |||
Name: | |||
Title: |
[Signature page to Underwriting Agreement]
MYT HOLDING LLC | |||
By: | |||
Name: | |||
Title: |
[Signature page to Underwriting Agreement]
Accepted as of the date hereof | |
Morgan Stanley & Co. LLC | |
J.P. Morgan Securities LLC | |
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto |
By: | Morgan Stanley & Co. LLC | ||
By: | |||
Name: | |||
Title: |
By: | J.P. Morgan Securities LLC | ||
By: | |||
Name: | |||
Title: |
[Signature page to Underwriting Agreement]
Schedule I
Underwriter | Number of Firm Shares To Be Purchased | |||
Morgan Stanley & Co. LLC | ||||
J.P. Morgan Securities LLC | ||||
Credit Suisse Securities (USA) LLC | ||||
UBS Securities LLC | ||||
Cowen and Company, LLC | ||||
Jefferies LLC | ||||
Total: |
SCHEDULE II
Time of Sale Prospectus
1. | Preliminary Prospectus issued [date] |
2. | [identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] |
3. | [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet] |
4. | [orally communicated pricing information such as price per share and size of offering if a Rule 134 pricing term sheet is used at the time of sale instead of a pricing term sheet filed by the Company under Rule 433(d) as a free writing prospectus] |
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
[Provided separately]
EXHIBIT B
FORM OF WAIVER OF LOCK-UP
[Provided separately]
EXHIBIT C
FORM OF PRESS RELEASE
[Provided separately]
Exhibit 5.1
Baker & McKenzie Amsterdam N.V.
P.O. Box 2720
Tel: +31 20 551 7555 |
Asia Pacific Bangkok Beijing Hanoi Ho Chi Minh City Hong Kong Jakarta Kuala Lumpur Manila Melbourne Shanghai Singapore Sydney Taipei Tokyo
Europe & Middle East Abu Dhabi Almaty Amsterdam Antwerp Bahrain Baku Barcelona Berlin Brussels Budapest Cairo Doha Dusseldorf Frankfurt/ Main Geneva Istanbul Kyiv London Luxembourg Madrid Milan Moscow Munich Paris Prague Riyadh Rome St. Petersburg Stockholm Vienna Warsaw Zurich
North & South America Bogota Brasilia* Buenos Aires Caracas Chicago Dallas Guadalajara Houston Juarez Mexico City Miami Monterrey New York Palo Alto Porto Alegre* Rio de Janeiro* San Diego San Francisco Santiago Sao Paulo* Tijuana Toronto Valencia Washington, DC
|
To the Company (as defined below)
19 January 2021
10122381-50778528/5861689-v4\AMSDMS/TGA/PAV2
Re: MYT Netherlands Parent B.V. – Exhibit 5.1 – Form F-1
Dear Addressees,
I. Introduction
We have acted as Dutch legal counsel (advocaten) to Mytheresa.com GmbH in respect of MYT Netherlands Parent B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) at Amsterdam, The Netherlands, its registered office at Einsteinring 9, 85609 Aschheim, Federal Republic of Germany, and registered with the trade register of the Chamber of Commerce ("Chamber of Commerce", Kamer van Koophandel) under number 74988441 ("Company") in connection with a registration statement on Form F-1 under the Securities Act of 1933, as amended (the "Act"), filed with the Securities and Exchange Commission (the "SEC") on 28 December 2020 (Registration No. 333-251765) (as amended, the "Registration Statement"). The Registration Statement relates to the registration of (i) newly issued common shares of the Company (the "New Shares") and (ii) the Existing Shares (as defined below, and together with the New Shares hereinafter collectively referred to as the "Shares") being offered by MYT Holding LLC as selling shareholder ("Selling Shareholder"), in connection with the initial public offering ("Offering") by the Company. The term "Shares" shall include any additional common shares of the Company registered by the Company pursuant to Rule 462(b) under the Act in connection with the Offering contemplated by the Registration Statement. This opinion letter is rendered to you to be filed with the SEC as an exhibit to the Registration Statement. |
*Associated Firm | Baker & McKenzie Amsterdam N.V. has its registered office in Amsterdam, The Netherlands, and is registered with the Trade Register under number 34208804. Baker & McKenzie Amsterdam N.V. is a member of Baker & McKenzie International, a Swiss Verein. |
II. | Documents |
For the purposes of this opinion letter, we have examined, and relied solely upon, originals or electronic copies of the documents as listed below, but not any documents or agreements cross-referred to in any such document ("Documents"):
a) | the form of underwriting agreement, by the Company, the Selling Shareholder and Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC as representatives of the several underwriters set forth in Schedule I thereto filed as an exhibit to the Registration Statement ("Underwriting Agreement"); |
b) | the Registration Statement; |
c) | the draft notarial deed of issue (akte van uitgifte) in relation to the issuance of the New Shares, prepared by us with reference 20190265/08/WIT ("Deed of Issue"). |
d) | a scanned copy, received by email, of the executed written resolutions of the board of managing directors (bestuur) of the Company, dated 6 November 2020; |
e) | a scanned copy, received by email, of the executed written resolutions of the board of managing directors of the Company, dated 8 January 2021, inter alia, authorising the entering into and performance by the Company of the Underwriting Agreement, the Offering (in relation to the New Shares) and the approval of the Registration Statement; |
f) | a scanned copy, received by email, of the executed written resolutions of the general meeting (algemene vergadering) of the Company, dated 8 January 2021, inter alia, approving the Offering (in relation to the New Shares) and the transactions contemplated by the Registration Statement; |
g) | a scanned copy, received by email, of the executed written resolutions of the board of supervisory directors (raad van commissarissen) of the Company, dated 8 January 2021, inter alia, approving the Offering (in relation to the New Shares) and the transactions contemplated by the Registration Statement; |
h) | a scanned copy, received by email, of the executed written resolutions of the board of supervisory directors of the Company, inter alia, resolving on the issue of the New Shares in connection with the Offering (in relation to the New Shares) and the pricing of the Shares, to be dated on or about 20 January 2021, prepared by us; |
i) | a scanned copy, received by email, of the executed written resolutions of the board of managing directors of the Company, inter alia, resolving on the issue of the New Shares in connection with the Offering (in relation to the New Shares), to be dated on or about 20 January 2021, prepared by us; |
j) | a certified online excerpt (uittreksel), dated 19 January 2021, from the trade register of the Chamber of Commerce regarding the registration of the Company with the Chamber of Commerce under number 74988441 ("Company Excerpt"); |
k) | a scanned copy of the deed of incorporation (akte van oprichting) of the Company, dated 31 May 2019; |
l) | a scanned copy of the articles of association (statuten) of the Company, dated 12 January 2021, as deposited with the Chamber of Commerce and which, according to the Company Excerpt, are the articles of association of the Company, which are in force on the date hereof and which have remained unaltered since that date ("Articles of Association"); |
m) | a scanned copy of the deed of amendment of articles of association of the Company, dated the seventeenth day of September two thousand twenty, pursuant to which the shares in the issued share capital of the Company were converted into one thousand (1,000) ordinary shares, each with a nominal value of one euro (EUR 1.00); |
n) | a scanned copy of the deed of amendment of articles of association of the Company dated the twelfth day of January two thousand twenty-one, pursuant to which the shares in the issued share capital of the Company were converted into seventy million one hundred ninety thousand six hundred eighty-seven (70,190,687) ordinary shares, each with a nominal value of fifteen ten-thousandth eurocent (EUR 0.000015); and |
o) | a scanned copy of the shareholders register of the Company, dated 17 January 2021, evidencing that the Selling Shareholder is the holder of the existing paid-up (volgestort) shares in the capital of the Company being offered in connection with the Offering ("Existing Shares"). |
The documents under d) through o) are hereinafter collectively referred to as "Corporate Documents". The documents under d) through i) are hereinafter collectively referred to as "Resolutions".
Words importing the plural include the singular and vice versa.
Where reference is made to the laws of The Netherlands or to The Netherlands in a geographical sense, reference is made to the laws as in effect in the part of the Kingdom of The Netherlands (Koninkrijk der Nederlanden) that is located in Europe (Europese deel van Nederland) and to the geographical part of the Kingdom of The Netherlands that is located in Europe.
Except as stated herein, we have not examined any documents entered into by or affecting the Company or any corporate records of the Company and have not made any other enquiries concerning the Company.
III. | Assumptions |
In examining and describing the Documents and in giving the opinions expressed in this opinion letter, we have, to the extent necessary to form the opinions expressed in this opinion letter, with your permission, assumed the following:
(i) | the genuineness of all signatures on all Documents of the individual purported to have placed that signature; |
(ii) | the authenticity and completeness of all documents submitted to us as originals and the conformity to originals of all conformed, copied, faxed or specimen documents and that all documents examined by us as draft or execution copy conform to the final and executed documents; |
(iii) | the Registration Statement will be declared effective by the SEC in the form reviewed by us; |
(iv) | (A) the accuracy and completeness of the Corporate Documents and the factual matters stated, certified or evidenced thereby, (B) the Resolutions correctly reflect the resolutions recorded therein and shall have been taken or will have been taken as on the date of this opinion letter or the date of the Deed of Issue (each a "Relevant Time"), as applicable and (C) that the Resolutions have not been amended, superseded, repealed, rescinded or annulled, at each Relevant Time; |
(v) | the Articles of Association are the articles of association as they will be in force at the date of the Deed of Issue; |
(vi) | the Deed of Issue will have been validly signed and executed on behalf of the Company; |
(vii) | the respective parties to the Underwriting Agreement and the Deed of Issue will have entered into such documents for bona fide commercial reasons; and |
(viii) | each of the assumptions made in this opinion letter will be correct in all aspects on each Relevant Time by reference to the facts and circumstances then existing. |
We have not investigated or verified and we do not express an opinion on the accuracy of the facts, representations and warranties as to facts set out in the Documents, and in any other document on which we have relied in giving this opinion letter and for the purpose of this opinion letter, we have assumed that such facts are correct.
We do not express an opinion on matters of fact, matters of law of any jurisdiction other than The Netherlands, nor on tax, anti-trust law, insider dealing, data protection, unfair trade practices, market abuse laws, sanctions or international law, including, without limitation, the laws of the European Union, including Directive 2015/2366/EU of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market and the Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms (Bank Recovery and Resolution Directive), except to the extent the laws of the European Union (other than anti-trust and tax law) have direct force and effect in The Netherlands. No opinion is given on commercial, accounting or non-legal matters or on the ability of the parties to meet their financial or other obligations under the Documents.
IV. | Opinion |
Based on and subject to the foregoing (including the assumptions made above) and subject to any matters, documents or events not disclosed to us by the parties concerned and having regard to such legal considerations as we deem relevant and subject to the qualifications listed below, we are of the opinion that:
Corporate Status
1. | The Company is a corporation duly incorporated and validly existing under the laws of The Netherlands as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid). |
Shares
2. | Subject to receipt by the Company of payment in full for the New Shares as provided for in the Underwriting Agreement and the Deed of Issue, and when issued and accepted in accordance with the Resolutions, the Underwriting Agreement and the Deed of Issue, the New Shares shall be validly issued in accordance with Dutch law and shall be fully paid and non-assessable. |
3. | The Existing Shares are validly issued in accordance with Dutch law and are fully paid and non-assessable. |
V. | Qualifications |
The opinions expressed in this opinion letter are subject to and limited by the following qualifications:
(i) | The opinions expressed in this opinion letter are subject to and limited by the provisions of any applicable bankruptcy, insolvency, reorganisation or moratorium laws and other laws of general application relating to or affecting generally the enforcement of creditors' rights and remedies (including the doctrine of creditors' prejudice (Actio Pauliana) within the meaning of article 3:45 of the DCC and/or article 42 et. sec. of the Dutch Bankruptcy Act), sanctions and measures pursuant to applicable export control regulations, United Nations, European Community or Netherlands sanctions, implemented, effective or sanctioned in inter alia, The Netherlands Sanction Act 1977 (Sanctiewet 1977), 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 (Anti-Boycott Regulation). |
(ii) | Where the centre of a company's main interests is situated within the territory of a Member State (as defined in the EU Insolvency Regulation) but outside The Netherlands, the courts of The Netherlands will have jurisdiction to open insolvency proceedings against that company only if it possesses an establishment within the territory of The Netherlands. The effects of those proceedings will be restricted to the assets of that establishment. Where insolvency proceedings have been opened in accordance with paragraph 3(1) of the EU Insolvency Regulation, any proceedings opened subsequently in accordance with paragraph 3(2) of the EU Insolvency Regulation will be secondary insolvency proceedings. The territorial insolvency proceedings referred to in paragraph 3(2) of the EU Insolvency Regulation may only be opened prior to the opening of main insolvency proceedings in accordance with the EU Insolvency Regulation. When main insolvency proceedings are opened, the territorial insolvency proceedings will become secondary insolvency proceedings. |
(iii) | By "non-assessable" (a phrase which has no recognised meaning under the laws of The Netherlands) we mean that a holder of a Share will 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 Share, and in relation to the New Shares only, other than payment as specifically provided under the Underwriting Agreement. |
(iv) | 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. |
VI. | Confidentiality and Reliance |
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act.
We consent to the filing of this opinion letter as an exhibit to the Registration Statement and also consent to the reference to Baker McKenzie or Baker & McKenzie Amsterdam N.V. 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.
In issuing this opinion letter we do not assume any obligation to notify or to inform you of any developments subsequent to its date that might render its contents untrue or inaccurate in whole or in part at such time.
This opinion letter:
(a) | expresses and describes Dutch legal concepts in English and not in their original Dutch terms. These concepts may not be identical to the concepts described by the English translations; consequently this opinion letter is issued and may only be relied upon on the express condition that any issues of interpretation or liability issues arising under this opinion letter will be governed by the laws of The Netherlands and exclusively be brought before a court of The Netherlands; |
(b) | speaks as of the date stated above; and |
(c) | is strictly limited to the matters set forth herein and no opinion may be inferred or implied beyond that expressly stated herein. |
The opinions expressed in this opinion letter are limited in all respects to and are to be construed and interpreted in accordance with the laws of The Netherlands as they stand at today's date and as they are presently interpreted under published authoritative case law as at present in effect.
This opinion letter is given on behalf of Baker & McKenzie Amsterdam N.V. and not by or on behalf of Baker & McKenzie International (a Swiss Verein) or any other member thereof. In this opinion letter the expressions "we", "us", "our" and similar expressions should be construed accordingly.
Yours sincerely,
/s/ Baker & McKenzie Amsterdam N.V.
Baker & McKenzie Amsterdam N.V.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Supervisory Board
MYT Netherlands Parent B.V.:
We consent to the use of our report included herein and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG AG Wirtschaftsprüfungsgesellschaft
Munich, Germany
January 19, 2021
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