On July 12, 2023, Sono Group N.V. received a notice from The Nasdaq Stock Market LLC (“Nasdaq”) stating that the staff of the Listing Qualifications Department (the “Staff”) has determined that Sono Group N.V.’s securities will be delisted from Nasdaq. As a result, the company’s common shares were suspended from trading at the opening of business on July 21, 2023. We have requested a hearing before the Nasdaq Hearings Panel to appeal the Staff’s determination. Subject to the Staff’s discretion, we currently expect the delisting to be postponed (stayed) until the Nasdaq Hearings Panel issues its written determination in the hearing. Our hearing request will not affect the trading suspension, which occured on July 21st.
Frequently Asked Questions
Below we’ve put together the most important information regarding Sono Motors. You can catch up on the latest news in our newsletter – feel free to subscribe here.
The Staff’s determination was based on the following factors: the associated public interest concerns raised by the company’s announcement that it had applied to the insolvency court of Munich, Germany, to permit the opening of a self-administration proceeding with respect to Sono Group N.V. pursuant to Section 270 et seqq. of the German Insolvency Code; concerns regarding the residual equity interest of the existing listed securities holders; and concerns about the company’s ability to sustain compliance with all requirements for continued listing on Nasdaq.
The notice further states that the company’s failure to timely file its Form 20-F for the year ended December 31, 2022, with the SEC and Nasdaq serves as an additional and separate basis for delisting.
If SEV shares are delisted from Nasdaq, they can only be bought and sold via an unregulated market. This is often referred to as the pink sheet or over-the-counter (OTC) market. An over-the-counter market allows investors to sell their stock without trading on a major U.S. stock exchange. The term pink sheets refer to the fact that the quotes for these listings used to appear on pink sheets of paper.
We have requested a hearing before the Nasdaq Hearings Panel to appeal the Staff’s determination.
It depends on the investor. Some investors are interested in purchasing the Sion program, others are interested in the solar technology - we believe that the trading suspension and potential delisting do not necessarily have a negative impact on these groups of investors. Other potential investors are interested in the Nasdaq-listed entity and will have to evaluate the cost and time required for a new listing application in case of a delisting.
Protective Shield Proceedings
We continue to work towards a sale of the Sion program. Since the Sion program was very extensive – from the technology to the patents to the final Sion models – the discussions and documentation needed for this are quite extensive. In addition, we are in discussions with several OEMs from the automotive sector who are currently evaluating our solar technology for their vehicles.
All SVC models were in use until the end, at roadshows, in crash tests and also in the sun for tests to validate the simulation models. We have now put the topic back on the agenda and are currently working on a plan for further validation as well as a concept for how we can best present the data.
May 15, 2023: Sono Motors GmbH filed an application for a protective shield proceeding at the competent local court of Munich. In connection with the proceeding, the company is being supported by Dentons' restructuring team led by the experienced restructuring experts Dr. Holger Ellers and Dirk Schoene.
Also on May 15, 2023, Sono Group N.V., the U.S.-listed parent company of Sono Motors GmbH, filed an application for self-administration at the competent local court of Munich. Sono Group N.V. is being supported in its efforts by SGP Schneider Geiwitz.
May 17, 2023 and May 19, 2023: The court ordered the protective shield proceedings on May 17, 2023 and May 19, 2023 and appointed preliminary custodians for each of Sono Group N.V. and Sono Motors GmbH, respectively. Both custodians supervise the proceedings in the interests of the creditors.
The aim of the protective shield proceedings is to enable the company to successfully restructure in an organized process. Protective shield proceedings are a modern instrument under German insolvency law for corporate restructurings. Under the current situation, the company believes that the protective shield proceeding will provide it with the flexibility needed for a sustainable restructuring, re-capitalization and realignment in the interests of the Company’s suppliers, creditors, customers and employees.
From the filing of the petition for the debtor-in-possession proceedings, the company is obliged to protect its creditors to the highest degree. According to German Law, all creditors must be treated equally; no creditor may be paid with preference. There is a statutory prohibition to pay old accounts payables (Altverbindlichkeiten) of the Company. These old accounts’ payables will be appropriately considered within the restructuring concept but cannot be paid at the moment. After the opening of proceedings (currently expected to take place mid/end of August 2023), you will receive a request from the custodian to file your old claims with the custodian.
You will be informed about how you can file your claims with the administrator for the insolvency table at the latest following the opening of the insolvency proceedings beyond the preliminary stage. We currently assume that the self-administration insolvency proceedings will be opened in mid-August, at the latest by the end of August. We would like to make it as easy as possible for you to file your claims and are currently working with the custodian on a solution for filing claims electronically. We will inform you about the exact procedure as soon as possible.
The opening of the insolvency proceedings will be made public and can be viewed by anyone at www.insolvenzbekanntmachungen.de. To ensure that all reservation holders (= creditors) receive the information, you will also be informed about the opening of the insolvency proceedings via the contact information saved in your Sono account.
Prior to the opening of the proceedings, we will ask you to consent to receive information about the insolvency proceedings by e-mail and via your Sono account. If you do not consent to communication by email, you will receive communications concerning the self-administration proceedings by mail. Since several pieces of information will be sent out in the next few weeks, we kindly ask you to agree to communication by email for cost and environmental reasons.
We will use the contact information saved in your Sono account for both means of communication. The same contact information will also be used by the court-appointed custodian. We will send out additional emails as reminders in anticipation of this deadline.
IMPORTANT: Log in to your Sono account now, check if all the information is up to date, and make any necessary corrections.
Reservation holders will register their outstanding claims with the custodian in the insolvency table. We will work with the custodian to make the process as easy as possible and will inform you about the exact process after the opening of the proceedings. The claims filed by reservation holders will be examined at a court hearing, and, if they are justified, established by the court.
Reservation holders will be notified in writing by the custodian shortly after the opening of the proceedings beyond the preliminary stage. The letter is typically accompanied by the court's order opening the proceedings. The date of the first creditors' meeting (so-called report date), which reservation holders can attend, will be included in the letter. Reservation holders who file their claims with the custodian in the insolvency table within the time period set by the court will be notified of the audit result at the examination meeting and in writing by the court.
The insolvency court has ordered Sono Motors to file a so-called insolvency plan with the court by August 19, 2023. An insolvency plan is a settlement between the creditors and the subject company which, among other matters, typically includes provisions regarding an insolvency quota. The insolvency plan presupposes that a potential investor has been found to fund and/or acquire all or parts of Sono Motors’ business in one or more potential M&A transactions. As an alternative to the insolvency plan, an asset deal can be concluded with a potential investor. All creditors vote on the insolvency plan. Draft insolvency plans must be submitted to the court for approval by the creditors’ committee/creditors’ meeting and for subsequent confirmation by the court.
If the plan is accepted, it will stipulate what payment reservation holders will receive for their claims. If the plan is rejected, the company must examine what alternatives are available. In this case, any payments to reservation holders are likely to be made much later and lower. You will of course receive further information on the insolvency plan as soon as it is available.
Alongside the creditors' meeting, the creditors' committee is a decision-making and supervisory body of the creditors. A (provisional) creditors' committee is only formed in insolvency proceedings in which the debtor company reaches certain thresholds (pursuant to § 22a of the German Insolvency Code (Insolvenzordnung). The main tasks of the creditors' committee are to examine monetary transactions and to support and monitor the debtor company in self-administration. There are a total of five (5) creditor representatives on the creditors' committee, including two representatives of the reservation holders.
Sono is not entitled to correct the invoice for the Sion down payment, as the down payment cannot currently be refunded (A 17.1 para. 7 Umsatzsteueranwendungserlass). However, you can try to claim a refund of the sales tax directly from your tax office. This direct claim by a service recipient was only recently recognized by the tax authorities (see the letter from the Federal Ministry of Finance dated April 12, 2022). According to the letter, the prerequisites for a direct refund of the VAT amount is, in particular, that (i) you have not claimed any input tax from the Sion down payment and (ii) the conclusion of the insolvency proceedings (in the opinion of the tax authorities).
The reservation holders' down payments will be taken into account as insolvency claims in accordance with section 38 of the German Insolvency Code (Insolvenzordnung) after the insolvency proceedings have been opened beyond the preliminary stage, provided that the reservation holders file their claims with the administrator in the insolvency table after proceedings have been opened. This applies regardless of whether an investor joins or not.
All creditors entitled to vote, as well as the debtor company and the shareholders, will vote on the insolvency plan.
The insolvency plan will be voted on by the creditors entitled to vote in their respective groups at a court voting meeting. Adoption of the insolvency plan provides for a double majority requirement. In each group, the majority of the voting creditors must approve the plan (so-called head majority). In addition, the sum of the claims of the consenting creditors must exceed half of the sum of the claims of the voting creditors in the respective group (so-called cumulative majority). In principle, the insolvency plan is accepted if there is consent in each group. If the majority of all groups vote in favor of the plan, those groups that voted against the plan may be outvoted under certain conditions.
With regard to the head and sum majorities required in the respective group, the votes actually cast are decisive. If no one in a group votes, this is considered as approval.
If, for example, the cumulative majority could not be reached in a group, this is deemed to be a rejection of the plan in this group despite the head majority being reached, since the sum majority and head majority must be present cumulatively . If a group votes against the plan, the consent of this group can be fictitiously given as a matter of law in accordance with the requirements of section 245 et seq. of the German Insolvency Code (Insolvenzordnung) if, for example, the members of this group are not likely to be worse off as a result of the plan than they would be without the plan.
The insolvency plan is generally adopted if there is consent in each group.
Once the insolvency plan has been accepted by the creditors in each group and the debtor has given its consent, the insolvency court must confirm the plan. Once the court's confirmation of the insolvency plan has become final and the insolvency plan does not provide otherwise, the insolvency court decides to terminate the insolvency proceedings. The insolvency plan is expected to contain provisions for the payment of an insolvency quota to the insolvency creditors. At this stage, no statements can be made about the amount or the payment date.
If the insolvency plan is not accepted by the creditors or approval of the insolvency plan cannot be fictitiously given as a matter of law, the company will examine possible alternatives. Rejection of the insolvency plan does not automatically result in the order for self-administration being revoked by the insolvency court. The order for self-administration can only be revoked by the insolvency court if, among other things, the achievement of the self-administration objective, in particular the intended reorganization, proves to be futile. For this reason, even if the plan is rejected, it is possible, for example, for the company to file a new insolvency plan with the court. Alternatively, the conclusion of an asset deal with one or more potential investors may also be considered.