Exhibit 3.2

 

VAN DOORNE N.V.¹

 

FOR DISCUSSION PURPOSES ONLY - SUBJECT TO CHANGE

 

DRAFT DATED 10 JUNE 2021

DTB/RJB/60019318

  

DEED OF CONVERSION AND AMENDMENT OF THE ARTICLES OF ASSOCIATION OF LILIUM B.V. INTO LILIUM N.V.

 

Today, the [●] day of [●] two thousand and twenty-one, appears before me, Daan ter Braak, civil-law notary practising in Amsterdam:

 

[●], born in [●] on the [●] day of [●], with office address at Jachthavenweg 121, 1081 KM Amsterdam.

 

The appearer declares that:

 

	-	the general meeting of Lilium B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated and existing under the laws of the Netherlands, having its registered seat (statutaire zetel) in Amsterdam (the Netherlands) and its business office at Rhijnspoorplein 10, 1018 TX Amsterdam (the Netherlands), registered with the trade register of the Chamber of Commerce under number 82165874 (the "Company"), has resolved on the [●] day of [●] two thousand and twenty-one to:

	(i)	convert the Company into a public limited liability company (naamloze vennootschap);

	(ii)	amend the articles of association of the Company as stated hereinafter; and

	(iii)	authorise the appearer to execute this deed,

 

which resolutions appear from the shareholders' resolution of which a copy is attached to this deed as Annex I;

 

	-	an auditor as referred to in article 2:393 of the Dutch Civil Code has declared that the net assets (eigen vermogen) of the Company on a date within five months before this conversion and amendment to the articles of association at least corresponds to the issued and paid-up share capital of the Company, being forty-five thousand euro (EUR 45,000) (the "Auditor Statement"). A copy of the Auditor Statement is attached to this deed as Annex II;

-

the articles of association of the Company were established by deed of amendment of the articles of association, executed on the eight day of April two thousand and twenty-one by a deputy of P.P. de Vries, civil-law notary practising in Amsterdam (the Netherlands).

 

 ¹  Brackets will be completed following the consummation of the business combination.

 

 

In order to carry out the (legal) acts contemplated in the shareholders' resolution, the appearer, acting in the aforementioned capacity, declares to amend the articles of association of the Company as follows:

 

CHAPTER I.

 

Definitions.

 

Article 1. Definitions.

 

	1.	In these articles of association the following expressions shall have the following meanings:

	a.	"Accountant": a registered accountant or other accountant as referred to in Section 2:393 DCC or as the case may be an organization in which such accountants work together;

	b.	"Affiliate": means, with respect to a person or legal entity, any legal entity that, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such person or legal entity. The term "control" shall mean the ownership, directly or indirectly, of shares possessing more than fifty percent (50%) of the voting power of a legal entity, or having the power to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such legal entity; notwithstanding the foregoing in no event shall a limited partner of (or comparable passive investor in) any entity be deemed to be an Affiliate of such entity. A party shall cease to qualify as an Affiliate for purposes of this definition if it ceases to control, be controlled by, or be under common control with such person or legal entity; provided in each case of this sentence and the preceding sentences that any person or legal entity controlled within meaning of Section 56 paragraph 1 subsection 3 as well as paragraphs 4 and 5 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung) ("AWV") (or a successor regulation) shall be deemed to be under control for purposes of this definition;

	c.	"Board": the management board of the Company, consisting of one or more Executive Directors and one or more Non-Executive Directors;

	d.	"Chairman": the Non-Executive Director appointed as Chairman in accordance with article 13 paragraph 4;

	e.	"Chief Executive Officer": the Executive Director appointed as Chief Executive Officer in accordance with article 13 paragraph 3;

	f.	"Class Share Premium Reserve": has the meaning given thereto in article 4 paragraph 5;

	g.	"Company": the public company governed by these articles of association;

	h.	"Class Meeting": the Class Meeting Shares A, the Class Meeting Shares B or the Class Meeting Shares C;

	i.	"Class Meeting Shares A": the meeting of holders of Shares A;

	j.	"Class Meeting Shares B": the meeting of holders of Shares B;

	k.	"Class Meeting Shares C": the meeting of holders of Shares C;

	l.	"Closing Date": the [●] day of [●] two thousand twenty-one;

m.

"Conversion Date": the date on which a Conversion Event has occurred;

 

 

	n.	"Conversion Event": means, in respect of any Shares B held by any of the following parties, the occurrence of an event as a consequence of which,

		(i)         anyone who is a Qualified B Holder ceasing to be a Qualified B Holder;

		(ii)        anyone who is a Permitted Entity ceasing to be a Permitted Entity; or

(iii)       anyone who is Permitted Transferee ceasing to be a Permitted Transferee;

 

	o.	"DCC": Dutch Civil Code;

	p.	"Directors": the Executive Directors and the Non-Executive Directors;

	q.	"Executive Director": a member of the Board appointed as executive director;

	r.	"Founder": Daniel Christian Wiegand, born in Tübingen (Germany) on the twelfth day of June nineteen hundred eighty-five;

	s.	"Founder Minimum Ownership Shares B Threshold": the Founder, together with its Permitted Transferees, holding at least twenty percent (20%) of the aggregate amount of outstanding Shares B held by such persons on the Closing Date;

	t.	"General Meeting": the general meeting of Shareholders as corporate body of the Company as well as meetings of this corporate body;

	u.	"Group": an economic unit in which legal entities and companies are united within the meaning of Section 2:24b DCC;

	v.	"Initial Qualified Holder" means, in relation to any Share B, the person holding such Share B on the Closing Date;

	w.	"in writing": any communication sent by letter, telefax, e-mail or by any other electronic means of communication which can transmit text, provided such communication is readable and reproducible, unless Dutch law or these articles of association provide otherwise;

	x.	"Non-Executive Director": a member of the Board appointed as non-executive director;

	y.	"Notice": shall have the meaning given thereto in article 4A paragraph 3;

	z.	"Offer": shall have the meaning given thereto in article 4A paragraph 3;

	aa.	"Permitted Entity": means, with respect to any Initial Qualified Holder and/or spouse of the Founder, any vehicle (including a trust, corporation and partnership) so long as an Initial Qualified Holder and/or a spouse of a Founder, if applicable, collectively have sole dispositive power and exclusive Voting Control with respect to the Shares B held by such vehicle;

	bb.	"Permitted Transferee"

	a.	in relation to any Share B held by an Initial Qualified Holder means:

(i)

such Initial Qualified Holder (as transferee of any Share B retransferred to such Initial Qualified Holder from its Permitted Transferee);

 

 

	(ii)	any Permitted Entity and/or estate or tax planning vehicle (including a trust, corporation and partnership), the beneficiaries of which are limited to such Initial Qualified Holder and/or members of the immediate family (being the spouse or children) of such Initial Qualified Holder, provided that:

	(A)	(1) prior to the Initial Qualified Holder’s death or mental incapacitation, such Initial Qualified Holder retains (subject to any community or spousal property laws) sole voting and dispositive power over such Share B, and (2) following the date on which such Initial Qualified Holder’s dies or is mentally incapacitated such vehicle shall immediately cease to be a Permitted Transferee; and

	(B)	the Transfer to such estate or tax planning vehicle does not involve payment of any consideration (other than the interest in such trust, corporation, partnership or other estate or tax planning vehicle); and

	b.	in relation to any Share held by Qell Partners LLC means:

	(i)	any party who is and has not ceased to be a director, officer, member, partner or equity holder of Qell Partners LLC; and

	(ii)	any estate or tax planning vehicle (including a trust, corporation and partnership), the beneficiaries of which are limited to the members of the immediate family (being the spouse or children) of those initial persons identified in paragraph b.(i), provided that (a) prior to such person’s death or mental incapacitation, such initial person retains (subject to any community or spousal property laws) sole voting and dispositive power over the shares held by such estate or tax planning vehicle, and (b) following the date on which such person ceases to be a director, officer, member, partner or equity holder of Qell Partners LLC, dies, or is mentally incapacitated such vehicle shall immediately cease to be a Permitted Transferee; and provided further that the Transfer to such estate or tax planning vehicle does not involve payment of any consideration (other than the interest in such trust, corporation, partnership or other estate or tax planning vehicle);

	cc.	“Qell Group” means Qell Partners LLC and its Permitted Transferees;

	dd.	"Qualified B Holder" means, in relation to any Share B: the Company, the Initial Qualified Holder of such Share B and any Permitted Transferee thereof, in each case provided that such Share B has not been Transferred (including by way of a transfer of the legal holder thereof) other than to a Permitted Transferee;

	ee.	"Regulated Market": regulated market or multilateral trading facility, as referred to in article 1:1 of the Financial Supervision Act (Wet op het financieel toezicht) or a system of a non-EU/EEA member state that is comparable to a regulated market or multilateral trading facility (including, for purposes hereof any of the NASDAQ market tiers);

ff.

"Secretary": the person appointed as Secretary in accordance with article 15 paragraph 7;

 

 

	gg.	"Shareholders' Covenant”: means in respect of any Shareholder that has notified the Company in writing that this covenant shall irrevocably apply to such Shareholder, in relation to the ownership of its Shares, provided that such Shareholder, in each case together with its Subsidiaries and/or Affiliates, in aggregate is (i) holding or acquiring, or (ii) controlling (including under a voting agreement, specific or general proxy, usufruct, pledge or other arrangement) Shares that reach or exceed the screening threshold pursuant to Sections 55 and 56 paragraph 1 subsection 3 as well as paragraph 4 and 5 of the AWV (or in each case a successor regulation), this Shareholder is required not to hold and/or acquire more than twenty-four and nine-tenths of a percent (24.9%) of the total voting rights attached to all issued and outstanding Shares (not counting any Shares in respect of which no votes can be exercised pursuant to mandatory Dutch law) ("Voting Rights Limitation Threshold"), unless such Shareholder has obtained (i) a certificate of non-objection within the meaning of Section 58 (1) of the AWV or (ii) a permit or clearance within the meaning of Section 15 of the German Foreign Trade Act (Außenwirtschaftsgesetz) ("AWG") (or in each case a successor regulation), or (iii) the German Federal Ministry for Economic Affairs and Energy ("BMWi") has confirmed in writing that voting rights of such Shareholder and/or such Shareholders' Affiliates above the Voting Rights Limitation Threshold are in line with, or out of scope of, the German regime on the screening of foreign investments, or if such voting rights above this threshold cease to be subject to such regime pursuant to grandfathering or other provisions in the AWG or the AWV or applicable orders or regulatory guidelines of the BMWi in relation to the ownership of its Shares;

	hh.	"Shareholder Support Agreement”: that shareholder support agreement entered into between, among others, Qell Acquisition Corp., the Company and the Founder dated the thirtieth day of March two thousand twenty-one;

	ii.	"Shareholders": holders of Shares or the joint holders of Shares referred to in article 9;

	jj.	"Shares": means any and all shares issued by or in the capital of the Company, including Shares A, the Shares B and the Shares C;

	kk.	"Shares A": the ordinary shares A in the capital of the Company;

	ll.	"Shares B": the ordinary shares B in the capital of the Company;

	mm.	"Shares B Compulsory Conversion Date": the date of the Shares B Compulsory Conversion Event;

	nn.	"Shares B Compulsory Conversion Event": the event occurring on the date set by the Non-Executive Directors within a time period of sixty (60) and one hundred eighty (180) days after the date on which the Founder no longer meets the Founder Minimum Ownership Shares B Threshold, upon which event each issued and outstanding Share B shall be automatically converted into one (1) Share A and one (1) Share C;

	oo.	"Shares C": the ordinary shares C in the capital of the Company;

pp.

"Subsidiary": a subsidiary within the meaning of Section 2:24a DCC;

 

 

	qq.	"Tax Covenant": that certain tax covenant (Founder Tax Covenant) granted by the Company to the benefit of the respective beneficiary pursuant to section 10 of the Shareholder Support Agreement;

	rr.	"Transfer" means: any direct or indirect sale, assignment, transfer under general or specific title (algemene of bijzondere titel), conveyance, grant of any form of security interest (other than as explicitly provided in this definition), or other transfer or disposition of a Share or any legal or beneficial interest therein (including, for the avoidance of doubt, by way of a synthetic transfer or total return swap), whether or not for value and whether voluntary or involuntary or by operation of law. A "Transfer" of a Share B shall also include, without limitation, the transfer of, or entering into a binding agreement with respect to, voting control over a Share B by proxy or otherwise; provided, however, that the following shall not be considered a "Transfer" of a Share B: (a) the granting of a power of attorney to persons designated by the Board in connection with actions to be taken at a General Meeting; (b) the pledge of Shares B by a Qualified B Holder that creates a mere security interest in such Shares B pursuant to a bona fide loan or indebtedness transaction as long as the Qualified B Holder continues to exercise voting control over such pledged shares; provided, however, that a foreclosure on such Shares B or other similar action by the pledgee shall constitute a "Transfer" of a Share B;

	ss.	"Transferor": shall have the meaning given thereto in article 4B paragraph 3;

	tt.	"Voting Cap": means, in respect of a Shareholder who (i) is subject to the Shareholders' Covenant, and (ii) is not in compliance with the Shareholders' Covenant, the suspension of any voting rights (attaching to Shares) which that Shareholder (together with its Affiliates) would otherwise be able to exercise in a General Meeting in excess of twenty-four and nine-tenths of a percent (24.9%) of all voting rights (after deduction of any voting rights suspended under this Voting Cap) which may be exercised in a General Meeting, regardless of whether such Shareholder (together with its Affiliates) would otherwise be entitled to such votes (i) on the basis of Shares held by such Shareholder, its Affiliates and/or its Subsidiaries, or (ii) as any votes on Shares under control of such Shareholder or its Affiliates (including under voting agreement, specific or general proxy, usufruct, pledge or other arrangement), provided that the Board has confirmed the application of the Voting Cap in accordance with article 25 paragraph 4, based on the information available to the Board; and

	uu.	"Voting Control": means with respect to a Share B, the power (exclusively) to vote or direct the voting of such Share B, including by proxy, voting agreement or otherwise.

	2.	Unless the contrary is shown or it is manifestly intended otherwise, a reference to a concept or word in the singular includes a reference to the plural form of this concept or word and vice versa.

3.

Unless the contrary is shown or it is manifestly intended otherwise, a reference to a concept or word of any gender includes a reference to a concept or word of any other gender.

 

 

CHAPTER II.

 

Name. Seat. Objects.

 

Article 2. Name. Seat.

 

	1.	The Company is a public company with the name: Lilium N.V.

	2.	The registered seat of the Company is in Amsterdam (the Netherlands). The Company may have branch offices and branch establishments, both in and outside of the Netherlands.

Article 3. Objects.

 

The objects of the company are to participate in, to take an interest in any other way in, to conduct any business of whatever nature², to provide services of any nature, or to conduct the management of other business enterprises of whatever nature, to provide services to other business enterprises of whatever nature, furthermore to finance third parties, in any way to provide security or undertake the obligations of third parties and finally all activities which are incidental to or which may be conducive to any of the foregoing. The objects of the Company include to enhance and promote the interest of the Group of companies of which the Company forms part of.

 

CHAPTER III.

 

Capital and register. Transfer and conversion of Shares B. Qualified shareholding of Shares B and Shares C.

 

Article 4. Capital. Class Share Premium Reserve. Joint ownership.³

 

	1.	The authorized share capital of the Company amounts to [●] euro (EUR) [●].

	2.	The authorized share capital is divided into:

	(i)         [●] ([●]) Shares A with a nominal value of twelve eurocent (EUR 0.12) each;

(ii)        [●] ([●]) Shares B with a nominal value of thirty-six eurocent (EUR 0.36) each; and

 

(iii)       [●] ([●]) Shares C with a nominal value of twenty-four eurocent (EUR 0.24) each.

 

	3.	At the time of conversion of Shares B into Shares A and Shares C referred to in article 4A, the authorized capital shall decrease by the number of Shares B converted and increase by the number of Shares A and Shares C converted.

	4.	The Shares A are continuously numbered from A1 onwards, the Shares B are continuously numbered from B1 onwards and the Shares C are continuously numbered from C1 onwards.

5.

Where in these articles reference is made to Shares and Shareholders this shall include the Shares of each class and the holders of Shares of each class respectively, unless explicitly provided otherwise.

 

³         To be completed based on the final numbers in the Cap table, which will be available shortly before closing

 

 

	6.	Shares shall be issued in registered form only. Shares shall be available in the form of an entry in the share register. Share certificates shall not be issued.

	7.	At all times at least one Share is or should be held by and for the account of a person other than the Company or any of its subsidiaries.

	8.	The Company shall maintain for the exclusive benefit of the holders of Shares of the applicable class of Shares a separate share premium reserve (hereinafter jointly as well as separately referred to as: a "Class Share Premium Reserve"), and this Class Share Premium Reserve bears the same letter as the corresponding Shares. If upon or after the issuance of Shares of a certain class more than the nominal value of such Shares is paid, in cash or in kind, the excess shall be considered to be share premium for the exclusive benefit of holders of Shares of the applicable class.

Article 4A. Transfer and conversion of Shares B.

 

	1.	Shares B may only be Transferred to (i) Permitted Transferees and/or (ii) the Company. Any other purported Transfer of a Share B shall be null and void. A holder of Shares B shall notify the Company in writing of any Transfer of Shares (i) if practicable, prior to the consummation of such Transfer, and (ii) always, as soon as possible following (and in any event within ten (10) days of) such Transfer.

	2.	A Share B shall be automatically converted into one (1) Share A and one (1) Share C upon the occurrence of a Conversion Event or a Shares B Compulsory Conversion Event. Upon the Company becoming aware of a Conversion Event, the Non-Executive Directors shall determine in their sole discretion the Conversion Date, which Conversion Date shall not be later than the date of such determination,

	3.	If at any time a Share C is held by anyone other than the Company (regardless as a consequence of conversion), such holder of shares C (the "Transferor") shall forthwith notify the Company of this fact by written notice (the "Notice") as soon as possible and in any event within three (3) days after the occurrence of such event pursuant to which the Transferor is obliged to serve the Notice. The holder of one or more Shares C, other than the Company itself, shall be obliged to transfer such Share(s) C to the Company for no consideration.

	4.	If the Transferor fails to:

	a.	give the Notice within the time period provided in this article; or

	b.	transfer the relevant Shares C to the Company within sixty (60) days of the Notice, the Company is irrevocably empowered and authorized to offer and transfer the relevant Shares C to the Company for no consideration and until such transaction occurs. If and so long as any Share C is not held by the Company, the voting rights, dividend rights and other rights pertaining to such Share C (including, without limitation, the approval rights hereunder, if any) may not be exercised, subject to paragraph 5 of this article.

	5.	If the Company fails to accept the offered Shares C from the Transferor within three (3) months after receipt of the Notice, then the Transferor's dividend rights attached to its Shares C shall revive.

	6.	The Board shall forthwith register any such conversion of Shares in the register of Shareholders and equally in any applicable company register.

7.

The Company shall at all times reserve and keep available out of its authorized but unissued capital, solely for the purpose of effecting the conversion of Shares B, such number of Shares A and Shares C as shall from time to time be sufficient to effect the conversion of all outstanding Shares B into Shares A and Shares C.

 

 

	8.	The Company may, from time to time, establish such policies and procedures relating to the general administration of the share capital structure as it may deem necessary or advisable, and may request that holders of Shares B furnish affidavits or other proof to the Company as it deems necessary to verify the legal and beneficial ownership of Shares B and the "Qualified B Holder" status of any such holder, and to confirm that Shares B are no longer held by a Qualified B Holder.

Article 5. Register of Shareholders.

 

	1.	Each Shareholder, each usufructuary and each pledgee of a Share is required to give notice to the Company of their (email) address and shall ensure that the Company is informed of such (email) address. If an electronic address is disclosed by the Shareholder, usufructuary or pledgee of a Share for the purpose of entry into the register, such disclosure is deemed to entail the consent to receive all notifications and announcements for a meeting via electronic means.

	2.	The Board shall keep a register in which the names and (email) addresses of all Shareholders are recorded, showing the date on which they acquired the Shares, the date of the acknowledgement or notification, and the amount paid on each Share. Also recorded in the register are the names and (email) addresses of usufructuaries and pledgees, showing the date on which they acquired such rights, the date of the acknowledgement or notification, and also specifying whether or not the voting rights attached to the Shares accrue to them. The register may, at the discretion of the Board, be kept in more than one copy and at more than one address. Part of the register may be kept outside the Netherlands in order to comply with applicable foreign statutory provisions or applicable listing rules. The Board may delegate its duty to keep the register to one or more agents for the purposes as meant in this article.

	3.	The register shall be kept accurate and up to date. The Board shall determine the form and contents of the register with due observance of the provisions of Article 5 paragraphs 1 and 2.

	4.	On application by a Shareholder, a usufructuary or a pledgee of Shares, the Board shall furnish an extract from the register, free of charge, insofar as it relates to his rights in a Share. If a right of usufruct is vested on a Share or if a Share is pledged, the extract also sets forth who is entitled to exercise the voting rights attached to the Share and who is entitled to attend the General Meeting.

5.

The Board shall be authorized to provide the authorities with information and data contained in the register of shareholders or have the same inspected to the extent that this is requested to comply with applicable foreign legislation or rules of the stock exchange where the Company’s shares are listed.

  

 

CHAPTER IV.

 

Issue of Shares. Own Shares. Joint ownership of Shares.

 

Article 6. Issue of Shares. Authorized body. Conditions of issue.

 

1.

Shares shall be issued:

 

	a.	pursuant to a resolution proposed by the Board and adopted by the General Meeting; or

b.

pursuant to a resolution of the Board if by resolution of the General Meeting the Board has been authorized for a specific period not exceeding five (5) years to issue Shares.

 

The resolution granting the aforesaid authorization must determine the number and class of the Shares that may be issued. The authorization may from time to time be extended for a period not exceeding five (5) years. Unless otherwise stipulated at its grant, the authorization cannot be withdrawn.

 

2.

Within eight (8) days following a resolution by the General Meeting to issue Shares or to designate, as referred to in paragraph 1 of this article, the Company shall file the full text of such resolution at the offices of the Dutch trade register. Within eight (8) days after close of each quarter, the Company shall report each issue of Shares in the past quarter to the offices of the Dutch trade register, stating the number of Shares issued.

 

3.

The provisions of paragraphs 1 and 2 of this article shall apply mutatis mutandis to the granting of rights to acquire Shares, but not to the issue of Shares to a person exercising a previously acquired right to acquire Shares.

 

4.

The Company cannot acquire Shares in its own capital upon the issue of the Shares.

 

5.

When Shares are acquired the amount of their nominal value must be paid at the same time and, in addition, if the Share is subscribed at a higher amount, the difference between such amounts. It may be agreed that part of that amount, such part not to exceed three fourths (3/4th) of the nominal value of the Shares, may remain unpaid until the Company shall make a call in respect of the monies unpaid on the Shares. Such arrangement may only be agreed prior to the resolution to issue Shares and shall require the approval of the body of the Company which has the authority to resolve to issue.

 

6.

Calls upon the Shareholders in respect of any monies unpaid on their Shares shall be made by the Board.

 

7.

The Board shall be authorized to enter into transactions concerning non-monetary contributions on Shares and any other transaction referred to in Section 2:94 paragraph 1 DCC, without the prior approval of the General Meeting.

 

Article 7. Rights of pre-emption upon issue.

 

1.

Without prejudice to paragraph 2 of this article, upon an issue of Shares A and/or Shares B, each holder of Shares A or Shares B (as applicable) shall have a pre-emption right pro rata to the total number of (in aggregate) Shares A and Shares B (whereby the Shares A and Shares B shall, for the purposes of this article 7 paragraph 1, be treated as a single class of Shares) held by him on the date of the resolution to issue the Shares A and/or Shares B, it being understood that this pre-emption right shall not apply to an issuance of Shares A:

 

	a.	to employees of the Company or employees of a Group company; and

b.

to a person exercising a previously obtained right to acquire Shares A or Shares B (in accordance with the terms of such right) subject always to article 7 paragraph 7.

 

 

 

2.	If a Qualified B Holder elects to participate in a pre-emptive issuance of Shares that includes Shares A and/or Shares B, then, for so long as such person remains a Qualified B Holder, such Qualified B Holder shall be issued Shares B in lieu of any Shares A.

 

If a holder of Shares A elects to participate in a pre-emptive issuance of Shares that includes Shares A and/or Shares B, such holder of Shares A shall be issued Shares A in lieu of any Shares B.

 

3.	No pre-emption rights shall apply in respect of an issuance of Shares C.

 

4.

The pre-emptive right may be restricted or excluded by a resolution proposed by the Board and adopted by the General Meeting. In the proposal for such resolution the reasons for the proposal and the choice of the intended price of issue must be explained in writing. If the Board has been designated as the body authorized to issue Shares, the General Meeting may by resolution also designate the Board for a period not exceeding five (5) years as the body authorized to restrict or exclude the pre-emptive right. This authorization may from time to time be extended for a period not exceeding five (5) years. Unless otherwise stipulated at its grant, the authorization cannot be withdrawn.

 

5.

A resolution of the General Meeting to restrict or exclude the pre-emptive right or to designate the Board as referred to in paragraph 3 of this article requires a majority of at least two-thirds (2/3rd) of the votes cast, if less than half of the issued capital is represented at the General Meeting.

 

6.

The Company announces the issue of Shares with pre-emption right and the period in which the pre-emption right may be exercised in the Dutch State Gazette (Staatcourant) and in a nationally distributed daily newspaper, unless the announcement is made to all Shareholders in writing to the addresses as provided by them.

 

7.

The pre-emption right may be exercised during the period to be determined by the body authorized to restrict or exclude the pre-emptive right. Such period to be at least two (2) weeks from the day following the date of announcement in the Dutch State Gazette or dispatch of the announcement to the Shareholders.

 

8.	The provisions of the preceding paragraphs of this article shall apply mutatis mutandis to the granting of rights to acquire Shares, but shall not apply to the issue of shares to one who exercises a previously acquired subscription right.

 

Article 8. Acquisition by the Company of own Shares.

 

1.	Any acquisition by the Company of partly-paid Shares in its own capital shall be null and void.

2.	Provided that the General Meeting has given the Board authorization for this purpose, the Company may acquire fully paid-up Shares provided that:

	a.	the Company's equity capital, reduced by the acquisition price, is not less than the sum of the issued and paid-up capital and the reserves to be maintained pursuant to the law or these articles of association;

	b.	following the transaction contemplated, at least one issued share in the capital of the Company remains outstanding and is not held by the Company; and

c.

in case the Company is admitted to trading on a Regulated Market, the nominal value of the Shares to be acquired, already held by the Company or already held by the Company as pledgee or which are held by Subsidiaries, does not exceed fifty percent (50%) of the issued capital of the Company.

 

 

3.

The factor deciding whether the acquisition is valid shall be the amount of the equity of the Company as shown in its most recently adopted balance sheet, reduced by (i) the acquisition price of Shares, (ii) the amount of loans as described in Section 2:98c paragraph 2 DCC and (iii) any payments from profit or reserves to others which may have become due by the Company and its Subsidiaries after the balance sheet date.

 

If more than six (6) months of a financial year have passed without the annual accounts having been adopted, the acquisition of own Shares under paragraph 2 of this article shall not be permitted until such time as such most recent annual accounts have been so adopted.

 

4.

The authorization of the General Meeting, referred to in paragraph 2 of this article, which shall be valid for a maximum of eighteen (18) months only, must specify how many Shares are permitted to be acquired, the manner in which they may be acquired and the permitted upper and lower limits of the price.

 

5.

The preceding paragraphs of this article shall not apply in respect of (i) Shares which the Company may acquire gratuitously or by universal succession and (ii) Shares that are admitted to trading on a Regulated Market Shares which are acquired for the purpose of distribution of such Shares to employees of the Company and/or its Subsidiaries pursuant to an employee option plan.

 

6.	Any acquisition of Shares made in breach of the provisions of paragraph 2 of this article shall be null and void.

 

7.

Shares owned by the Company shall not bear any dividend rights unless rights of usufruct are created in respect of such Shares prior to the acquisition by the Company, in which case the holder of usufruct shall be entitled to any dividends on the underlying Shares. Shares owned by the Company or its Subsidiaries shall not bear any voting rights.

 

Article 9. Joint ownership of Shares.

 

If through any cause whatsoever one or more Shares are jointly held by two or more persons, such persons may jointly exercise the rights arising from those Shares, provided that these persons be represented for that purpose by one from their midst or by a third party authorized by them for that purpose by a written power of attorney. The Board may, whether or not subject to certain conditions, grant an exemption for the provision of the previous sentence.

 

Article 10. Formalities on the issue and transfer of Shares.

 

1.	Unless these articles of association provide otherwise, the issue and transfer of Shares or the transfer of a limited right thereon shall require a deed drawn up for that purpose, executed before a civil-law notary registered in the Netherlands.

 

2.

If Shares are admitted to trading on a Regulated Market, the transfer of such Share or of a limited right (beperkt recht) thereto shall require an instrument intended for such purpose and, save when the Company itself is a party to such legal act, the written acknowledgement by the Company of the transfer. The acknowledgement shall be made in the instrument or by a dated statement on the instrument or on a copy or extract thereof mentioning the acknowledgement signed as a true copy thereof by a civil-law notary or the transferor. Service of such instrument of transfer, copy or extract on the Company shall be deemed to constitute such acknowledgement.

 

 

3.

Following a transfer referred to in this article, the rights attached to the Shares concerned may not be exercised until the instrument of transfer has been served upon the Company or until the Company has acknowledged the transaction in writing or has been deemed to have acknowledged such transaction. The provision in the preceding sentence shall not apply if the Company itself has been a party to the transaction.

 

4.

To the fullest extent permitted by Dutch law, in accordance with the applicable law on International Private laws as referred to in Title 10 of Book 10 DCC (Boek 10 Internationaal privaatrecht), especially article 10:138 DCC, for as long as Shares are listed on a Regulated Market, the Company may, by a resolution of the Board for that purpose, determine that the laws of the State of New York (United States of America), shall apply to the property law aspects of the Shares (including the legal rules on ownership, legal title, transfer). Articles 10.1 up to and including 10.3 shall not apply to such Shares. Such resolution, as well as a resolution to revoke such determination, shall be made public in accordance with applicable law and shall be filed with the offices of the Company and the Dutch trade register for inspection.

 

5.

The property law aspects of the Shares (including the legal rules on ownership, legal title, transfer) in book-entry form, as included in the part of the register of shareholders kept by the relevant transfer agent, shall be governed the State of New York (United States of America), in accordance with the applicable law on International Private laws as referred to in Title 10 of Book 10 DCC (Boek 10 Internationaal privaatrecht), especially article 10:141 DCC.

 

CHAPTER V.

 

Capital reduction. Limited rights.

 

Article 11. Capital reduction.

 

1.

The General Meeting may resolve to reduce the issued capital of the Company by a cancellation of Shares or by reduction of the nominal value of the Shares by amendment of the articles of association of the Company, with due observance of the provisions in Section 2:99 and 2:100 DCC. This resolution must designate the Shares to which the resolution relates and provide for the implementation of the resolution.

2.	A resolution to cancel may only relate to Shares held by the Company itself.

3.

If the General Meeting resolves to reduce the nominal value of the Shares by amendment of the articles of association, such reduction must be made pro rata on all Shares, regardless whether this is done without redemption or against partial repayment on the Shares or upon release from the obligation to pay up the Shares. Such pro rata requirement may be waived with the consent of all Shareholders concerned.

4.	A resolution for reduction of capital shall require a majority of at least two-thirds (2/3rd) of the votes cast, if less than half of the issued capital is represented at the General Meeting.

 

Article 12. Depositary receipts. Usufruct and pledge on Shares.

 

1.	The Company may not give its cooperation to the issue of depositary receipts.

 

2.	A right of usufruct or a right of pledge may be vested on the Shares, with due observance of the provisions of the Articles.

 

3.

If a Share is pledged or a right of usufruct is vested on a Share, the Shareholder remains entitled to exercise the voting rights. A usufructuary and pledgee shall not have the same rights as those conferred by law upon the holders of depositary receipts for shares issued with the cooperation of a company.

 

4.	In deviation of paragraph 3 of this article 12, if a Share A is pledged or a right of usufruct is vested on a Share A, the holder of this Share A is entitled to transfer the voting rights on the Share A to the usufructuary and pledgee.

 

 

CHAPTER VI.

 

Board.

 

Article 13. One-tier Board.

 

1.	The management of the Company shall be conducted by the Board.

2.

The Board of Directors shall initially, as of the Closing Date, subject to the provisions of the following sentence, consist of seven (7) persons, of whom one (1) shall be Executive Directors and six (6) shall be Non-Executive Directors. The total number of Directors, the total number of Executive Directors and the total number of Non-Executive Directors, may be increased or decreased pursuant to a resolution of the Board approved by a majority vote of all of the Directors, and a majority vote of all of the Non-Executive Directors, then in office. A decrease in the number of Directors, or in the number of Executive Directors or Non-Executive Directors, shall not result in a decrease in the term of office of any Director in office at the time of such decrease in the number of Directors.

3.	Only natural persons can be Directors.

4.	The Board shall appoint a Non-Executive Director to be Chairman of the Board for such period as the Board may decide. The Board will appoint an Executive Director as Chief Executive Officer for such period as the Board may decide. The Board may grant other titles to the Directors.

 

Article 14. Appointment and nomination. Suspension and dismissal. Remuneration.

 

1.

Executive and Non-Executive Directors shall be appointed as such by the General Meeting at the binding nomination of the Non-Executive Directors, and for such term as proposed by the Non-Executive Directors, provided that a Director shall retire at the close of the first annual General Meeting held following the expiry of the term of his appointment, without prejudice to article 14 paragraph 3. A Director may be reappointed one or more times, with due observance of this paragraph and paragraph 3.

 

2.

Without prejudice to paragraph 3 of this article, if a Director is to be appointed, the Non-Executive Directors shall make a binding nomination of at least the number of persons prescribed by law by a majority decision.

 

3.

As of the Closing Date, Barry Engle shall be a Non-Executive Director. Barry Engle shall, in deviation of paragraph 1 of this article 14, serve a three (3) year term. On the termination of Barry Engle’s first three (3) year term, the Qell Group shall be entitled (but not obliged), to nominate Barry Engle to be appointed as Non-Executive Director for an additional three (3) year term.

 

 

4.

The General Meeting may at all times overrule the binding nomination by at least a two thirds (2/3rd) majority of the votes cast, provided such majority represents more than half of the issued share capital. If the General Meeting overruled the binding nomination, the Non-Executive Directors shall make a new nomination and a new General Meeting is called at which the resolution for appointment of a Director shall require at least a two thirds (2/3rd) majority of the votes cast, provided such majority represents more than half of the issued share capital, notwithstanding article 14 paragraph 3. The nomination shall be included in the notice of the General Meeting at which the appointment shall be considered.

 

5.

If a nomination has not been made or has not been made in due time, this shall be stated in the notice and the General Meeting shall be free to appoint a Director at its discretion. A resolution to appoint a Director that was not nominated by the Board, may only be appointed by a two thirds (2/3rd) majority of the votes cast, provided such majority represents more than half the issued share capital. With regard to subjects referred to in this paragraph and the previous paragraph, a second General Meeting may not be convened pursuant to Section 2:120 paragraph 3 DCC.

 

6.

A Director may at any time be suspended or dismissed by the General Meeting. A resolution of the General Meeting to suspend or dismiss a Director other than pursuant to a proposal by the Board shall require a two thirds (2/3rd) majority of the votes cast, provided such majority represents more than half the issued share capital. If and to the extent permitted by law, an Executive Director may also be suspended by the Board.

 

7.

Every suspension may be extended one or more times, but the total term of suspension cannot exceed three (3) months. If the General Meeting does not terminate the suspension or resolve to dismiss the respective Director within this period, the suspension ends.

 

8.

The Company must establish a policy for the remuneration of the Directors, which shall at least describe the items referred to in Section 2:383c up to and including Section 2:383e DCC, to the extent that these relate to the Directors. The remuneration policy is adopted by the General Meeting at the proposal by the Board.

 

9.

The remuneration of the Executive Directors shall be determined by the Board with due observance of the remuneration policy adopted by the General Meeting. The remuneration of the Non-Executive Directors shall be determined by the General Meeting with due observance of the remuneration policy adopted by the General Meeting.

 

10.

A proposal with respect to remuneration schemes in the form of Shares or rights to Shares is submitted by the Board to the general meeting for its approval. This proposal must set out at least the maximum number of Shares or rights to Shares to be granted to the Directors and the criteria for granting or amendment. The lack of approval referred to in this paragraph does not affect the authority of the Board or the Directors to represent the Company.

 

11.

The appointment of a Director in itself does not constitute an employment contract between the Director and the Company. An employment contract between the Company and a Director is prohibited.

 

 

Article 15. Power. Division of duties. Regulations.

 

1.	Subject to the division of duties included and as referred to in paragraph 2 of this article, the Board shall be entrusted with the management of the Company and shall for such purpose have all the powers within the limits of the law that are not granted to others by these articles of association.

 

2.

The Executive Directors are charged in particular with the day-to-day management of the company and its affiliated business. The Non-Executive Directors are charged in particular with the supervision of the duties carried out by the Directors. The Board may further divide its duties among the Directors by regulation referred to in paragraph 3, provided that the day-to-day management of the Company shall be exclusively entrusted to the Executive Directors and the supervision of the Board shall be exclusively entrusted to the Non-Executive Directors.

 

3.

With due observance of these articles of association and the restrictions provided by the law, the Board shall adopt one or more sets of regulations dealing with such matters as its internal organization, the manner in which decisions are taken, the composition, the duties and organization of committees established by the Board (if any) and any other matters concerning the Board, the Chief Executive Officer, the Executive Directors, the Non-Executive Directors and the committees established by the Board. Regulations dealing with matters concerning General Meetings will be placed on the Company's website.

4.	The Board may establish such committees as it may deem necessary which committees may consist of one or more Directors or of other persons. The Board appoints the members of each committee and determines the tasks of each committee. The Board may at any time change the duties and the composition of each committee.

5.	The Executive Directors shall endeavor to timely provide the Non-Executive Directors with all information required for the exercise of their duties.

6.	In fulfilling their duties, the Directors shall act in accordance with the corporate interests of the Company and its affiliated business.

7.

The Board shall appoint a Secretary from outside the Directors, who shall have such powers as are assigned to him by these articles of association and, subject to these articles of association, by the Board on or after his appointment. The Secretary may be removed from office at any time by the Board.

 

Article 16. Meetings of the Board. Decision-making process.

 

1.	Meetings of the Board shall be held as often as a Director deems such necessary.

 

2.

Meetings of the Board shall be convened in writing to the addresses of the Directors or by means of a legible and reproducible notice sent by electronic means of communication to the (e-mail) address provided for this purpose to the Company. Notice shall be given no later than on the seventh (7th) day prior to the date of the meeting of the Board, provided that this convening period may be waived by all Directors. The notice shall specify the date, time and place of the meeting of the Board and the subjects to be addressed.

3.	Each Director has the right to cast one (1) vote in meetings of the Board.

 

In as far as Dutch law or these articles of association do not stipulate any greater majority, all resolutions of the Board shall be adopted by a majority of the votes cast. If there is a tie of votes the proposal is rejected.

 

 

4.

In case a Director has a direct or indirect personal interest which conflicts with the interests of the Company and its business, such Director will not participate in the deliberation and decision-making of the Board. In the event that a Director is uncertain whether or not he has a conflict of interest, he may request the Chairman to determine if he has a conflict of interest. If as a result hereof no resolution can be adopted by the Board, the resolution shall be adopted by the Non-Executive Directors, and the Non-Executive Directors shall record in writing the reasons in the minutes.

5.	Meetings of the Board can be held by telephone conference, videoconference or any other electronic means of communication, provided that all Directors can communicate with each other.

6.	A Director can attend a meeting of the Board by telephone conference, videoconference or any other electronic means of communication, provided this Director can communicate with the other attending Directors at all times and vice versa. A Director may only be represented by a co-Director authorized in writing.

7.	Minutes shall be kept of the proceedings of each meeting of the Board.

8.	Resolutions of the Board may also be adopted in writing without recourse to a meeting of the Board, provided that all Directors gave their written consent to this way of decision-making.

9.

One or more Directors who have been allocated certain duties pursuant to these articles of association or the board rules and regulations, can adopt resolutions regarding matters that belong to his or their duties, respectively. If one or more Directors have been allocated certain duties in the aforementioned manner, article 16.8 – and, in the event of multiple Directors, article 16.5 up to and including 16.8 – shall apply to the adoption of resolutions, whereby this Director or these Directors shall be deemed to constitute the Board. If all Directors that have been allocated certain duties within the meaning of the first sentence of this paragraph have a conflict of interest, the resolution shall, to the extent possible and permitted by law, be adopted by the other Directors.

10.

Any resolution of the Executive Directors or the Board regarding Shares B, including but not limited to transfer or conversion of Shares B and the admittance of the Shares B or Shares C for trading on a Regulated Market, shall be adopted by the unanimous votes of the Executive Directors, with the exception of the Founder, and all Non-Executive Directors in a meeting of the Board in which all Directors, with the exception of the Founder, are present or represented.

11.

Any resolution regarding (i) any non-compete arrangement between the Company and any Executive Director, (ii) any resolution with regard to the fulfilment of the undertakings, consent, amendment, waiver, termination, satisfaction, enforcement or any other action under the Tax Covenant and (iii) the sale (or any other disposal) and subsequent transfer of shares in the capital of Lilium GmbH, a private company with limited liability incorporated under German law, registered with the Handelsregister B des Amtsgerichts München under number HRB 216921, may in each case only be adopted by the Non-Executive Directors by an absolute majority of the votes cast.

 

 

12.	Any resolution of the Board regarding the issuance of shares, or the granting of rights to subscribe for shares (i) to employees, other than in accordance with an employee plan, or (ii) to the Founder, may in each case only be adopted by the unanimous votes of the Non-Executive Directors.

 

Article 17. Approval of decisions of the Board.

 

1.	Without prejudice to any other applicable provisions of these articles of association, the Board shall require the approval of the General Meeting for resolutions of the Board regarding a significant change in the identity or nature of the Company or the enterprise, including in any event:

 

a.

the transfer of the enterprise or practically the entire enterprise to a third party;

 

	b.	the conclusion or cancellation of any long-lasting cooperation by the Company or a Subsidiary with any other legal person or company or as a fully liable general partner of a limited partnership or a general partnership, provided that such cooperation or the cancellation thereof is of essential importance to the Company; and

	c.	the acquisition or disposal of a participating interest in the capital of a company with a value of at least one-third of the sum of the assets according to the consolidated balance sheet with explanatory notes thereto according to the last adopted annual accounts of the Company, by the Company or a subsidiary.

2.	The Board is entitled to require resolutions of the Executive Directors to be subject to its approval. These resolutions shall be clearly specified and notified to the Executive Directors in writing.

3.	The lack of approval referred to in paragraph 1 and 2 of this article does not affect the authority of the Board or the Directors to represent the Company.

 

Article 18. Representation. Proxy holders.

 

1.	The Board shall be authorized to represent the Company. The Company shall also be represented by each Executive Director or by any two Directors acting jointly.

2.	The Board may appoint persons with general or limited power to represent the Company. Each of those persons shall be competent to represent the Company with due regard to any restrictions imposed on him.

3.	The Board can determine to grant a specific title to the persons as referred to in paragraph 2 of this article.

 

Article 19. Absence or prevention.

 

In the event of the absence or inability to act of one or more Directors, the powers of the Board remain intact, provided that:

 

(i)	in the event of the absence or inability to act of all Executive Directors, the Non-Executive Directors shall be authorized to temporarily entrust the management to others;

(ii)

in the event of the absence or inability to act of all Directors, the Secretary shall temporarily be responsible for the management of the Company until the vacancies have been filled. In the event of the absence or inability to act of all Directors, the Secretary will as soon as possible take the necessary measures required for a permanent solution.

 

 

CHAPTER VII.

 

Annual accounts. Profits.

 

Article 20. Financial year. Drawing up of the annual accounts. Accountant.

 

1.	The financial year of the Company shall run concurrently with the calendar year.

 

2.

Annually, as prescribed by law and in any event not later than five (5) months after the end of the financial year of the Company, the Board shall draw up the annual accounts and make these available for inspection by the Shareholders at the offices of the Company. This term may be extended by the General Meeting for a period not exceeding five (5) months, by reason of special circumstances. As far as required by law, the Board shall also prepare a management report within the abovementioned period and make the management board report available for inspection by the Shareholders.

 

3.	The annual accounts shall be signed by all Directors. If the signature of one or more of them is lacking, this shall be expressly stated and explained.

 

4.

The General Meeting shall instruct an Accountant to audit the annual accounts prepared by the Board, in accordance with Section 2:393 paragraph 3 DCC. If the General Meeting fails to give these instructions, the Board shall be authorized to do so at the Company's expense. The Accountant shall report on his audit to the Board and shall present the result of his audit in a report with due observance of Section 2:393 paragraph 2.

 

Article 21. Adoption of the annual accounts. Discharge. Publication.

 

1.

The General Meeting shall adopt the annual accounts. Adoption of the annual accounts shall not automatically discharge a Director. The General Meeting may discharge a Director by a separate resolution.

 

2.

The Company shall make the annual accounts publicly available within eight (8) days following the adoption thereof, unless a statutory exemption is applicable.

 

Article 22. Profits and loss.

 

1.

The profits of the Company appearing from the annual accounts adopted by the General Meeting shall be at the disposal of the General Meeting. The Board shall make a proposal to the General Meeting which amount of the profit shall be allocated to the Company's profit reserves and which amount of the profit shall be available for distribution.

 

2.	The Company may distribute profits only if and to the extent that its shareholders' equity is greater than the paid and called-up part of the issued capital plus the reserves which must be maintained by virtue of the law or the articles of association.

 

3.	Dividends may be paid only after adoption of the annual accounts which show that they are justified.

 

4.	For the purposes of determining the allocation of profits, any Shares held by the Company and any Shares of which the Company has a usufruct shall not be taken into account.

 

 

5.

The holders of Shares A and Shares B shall be entitled pari passu to the profits of the Company, pro rata to the total number of Shares A and Shares B held as a percentage of the total number of Shares A and Shares B issued and outstanding, provided that out of the profit of any financial year, the holders of Shares C shall be entitled to a maximum amount per financial year equal to one-tenth of a percent (0.1%) of the nominal value of such Shares C.

 

6.	The Board may resolve to declare interim dividends. Dividend payments as referred to in this paragraph may be made only if the provisions in paragraph 2 of this article have been met and in accordance with the relevant provisions of the law.

 

7.	Unless the General Meeting resolves, at the proposal of the Board, upon a different term for that purpose, dividends shall be made payable within thirty (30) days after they are declared.

 

8.	The General Meeting declaring a dividend may, upon proposal of the Board, decide that dividend will be distributed, wholly or partly, other than in cash.

 

9.	The General Meeting is authorized to reserve the profits to which the Shareholders are entitled, wholly or partly, for their benefit.

 

10.	A deficit may only be offset against the reserves prescribed by law to the extent that this is allowed by law.

 

11.	Any claim of a Shareholder for payment of a distribution shall be barred after five (5) years have elapsed, to be computed from the date on which such distribution becomes payable.

 

CHAPTER VIII.

 

General Meetings.

 

Article 23. General Meetings.

 

1.	During each financial year at least one (1) General Meeting shall be held, in which shall, in any event, be considered:

 

a.

the management report, as far as required by law;

 

b.

the adoption of the annual accounts;

 

c.

the granting of discharge from liability to the Directors for actions in respect of their management during the preceding financial year; and

 

d.

any other matters put forward by Board and announced pursuant to this article.

 

2.	Other General Meetings shall be held as often as the Board deems such necessary.

3.	The General Meeting shall be announced and convened with due observance of the relevant statutory minimum convening period.

4.	Notice of the General Meeting shall be given by the Board, subject to a time limit and in accordance with the applicable statutory provisions and stock exchange regulations; notice to holders of Shares and to usufructuaries and pledgees of Shares who are entitled to vote shall also be given by means of letters sent by registered post or by regular post.

5.

The Board may decide that the convocation letters as referred to in paragraph 4 in respect of a person entitled to attend a General Meeting pursuant to Shares who agrees thereto, is replaced by a legible and reproducible message sent by electronic mail to the address indicated by him to the Company for such purpose.

 

 

  

	6.	The notice shall state the subjects on the agenda, the place and time of the General Meeting, the procedure for participation in the General Meeting and the exercise of voting rights in person or by proxy, matters and particulars prescribed by law, as well as any matters and particulars that the Board deems fit.
	7.	An item proposed by one or more shareholders having the right thereto according to applicable law, will be included in the convocation or announced in the same manner, provided the company receives such substantiated request or a proposal for a resolution in writing no later than the sixtieth day prior to the day of the meeting.
	8.	The Board may resolve that Shareholders entitled to attend the General Meeting are those who at the record date laid down by law have these rights derived from their Shares and have been registered as such in a register designated by the Board for that purpose, regardless of who would have been entitled to attend the General Meeting based on the rights derived from Shares if no record date as contemplated in this paragraph should have been determined. The record date shall be the twenty-eighth day prior to the day of the meeting, unless Dutch law prescribes another record date or offers the opportunity for another record date. In the latter case the Board shall determine the record date. The convocation notice for the meeting shall state the record date and the manner in which the persons who derive their right to attend the General Meeting from their Shares may register and exercise their rights.
	9.	General Meetings shall be held in the municipality in which the Company has its registered seat or alternatively in Rotterdam, Utrecht, The Hague or Haarlemmermeer (Schiphol Airport), the Netherlands.
	10.	The General Meeting shall be presided by the Chairman or, if he is absent, by one of the other Non-Executive Directors designated for that purpose by the Board. If no Non-Executive Directors are present at the meeting, the General Meeting shall be presided by one of the Executive Directors designated for that purpose by the Board. The Chairman shall decide on all disputes with regard to voting, admitting people and, in general the procedure at the meeting, insofar as this is not provided for by law or the articles of association.
	11.	Directors as such have an advisory vote in General Meetings.

 

Article 24. The entire issued capital is represented. Records.

 

1.

Valid resolutions in respect of matters which were not mentioned on the agenda in the notice of General Meeting, or which have not been properly published, or in respect of which there has been no due observance of the period set for notice, can only be taken by unanimous votes in a General Meeting where the entire issued capital is represented.

2.

The Board shall keep a record of the resolutions taken. If the Board is not represented in a meeting, by or on behalf of the chairman of the meeting a copy of the resolutions taken will be provided to the Board as soon as possible after the meeting. The records shall be deposited at the offices of the Company for inspection by the Shareholders. Upon request each of them shall be provided with a copy or an extract of such record at not more than the actual costs.

Article 25. Right to attend a General Meeting. Votes.

 

1.

In each case without prejudice to the Voting Cap being applicable to any Shareholder, each Share A confers the right to cast twelve (12) votes in a General Meeting, each Share B confers the right to cast thirty-six (36) votes in a General Meeting and each Share C confers the right to cast twenty-four (24) votes in a General Meeting.

2.

Again, without prejudice to the Voting Cap being applicable to any Shareholder, each Shareholder shall be authorized to attend and address the General Meeting and, in the event the shareholder is entitled to the voting rights, to exercise the voting rights, either in person or by written proxy. The requirement of a written proxy is met if the proxy is recorded electronically.

3.

Each Shareholder is obliged to provide the Board with all information relevant to assess the applicability of the Voting Cap to the number of votes in the General Meeting available to such Shareholder.

4.

Before any General Meeting, the Board, acting reasonably and in accordance with Section 56 paragraphs 4 and 5 AWV (or a successor regulation), shall assess and confirm, based on the information available to it, whether the Voting Cap applies to the voting of a Shareholder in that General Meeting and inform the relevant Shareholder(s) and the General Meeting of the applicability of a Voting Cap to the voting in that General Meeting.

5.

The Board is authorized to determine that the rights in respect of a General Meeting as referred to in paragraph 2 can be exercised by using an electronic means of communication. If so decided, it will be required that the Shareholder or his proxy can be identified through the electronic means of communication, follow the discussions in the meeting and exercise voting rights. The Board may also determine that the electronic means of communication used must allow the Shareholder or his proxy to participate in the discussions.

6.

The Board may set further requirements to the use of the electronic means of communication referred to in paragraph 3 of this article. Those conditions shall be set out in the notice convening the meeting. The chairman of the General Meeting is fully authorized to take any action as he deems fit in the interest if the meeting being conducted properly. Any non or malfunctioning of the means of electronic communication used is at the risk of the Shareholder or proxy using the same.

7.

The Board may decide that persons entitled to attend and to vote at a General Meeting may, within a period prior to the General Meeting to be set by the Board, which period cannot start prior to the record date as meant in article 23 paragraph 8, cast their votes electronically in a manner to be decided by the Board and/or, if permitted by law, by post. Votes cast in accordance with the previous sentence are equal to votes cast at the General Meeting.

8.

Blank and invalid votes will not be counted as cast votes.

9.

In as far as Dutch law or these articles of association do not stipulate any greater majority, all resolutions by the General Meeting shall be passed by an absolute majority of the votes cast.

 

 

10.

In case of a tie of votes in an election of persons, one new voting will take place in the same meeting; in case the votes are tied again, the matter shall be decided by the drawing of lots.

 

If in an election among more than two (2) persons no one has obtained an absolute majority of the votes cast, a revote shall be taken between the two (2) candidates who have received the largest number of votes in their favor, where necessary after an interim vote and/or a drawing of lots.

 

In case of a tie of votes concerning another proposal than mentioned in this paragraph, the proposal is rejected.

 

Article 26. Resolutions outside of meetings. Records.

 

1.

Resolutions of the General Meeting may also be adopted in writing or by electronic means of communication without recourse to a General Meeting. These resolutions must be taken with unanimous votes of all Shareholders entitled to vote.

2.

The Board shall keep a record of the resolutions thus made. Each of the Shareholders must procure that the Board is informed in writing of the resolutions made in accordance with paragraph 1 of this article as soon as possible. The records shall be deposited at the offices of the Company for inspection by the Shareholders. Upon request each of them shall be provided with a copy or an extract of such record at not more than the actual costs.

Article 27. Class Meetings.

 

1.

Class Meetings shall be convened by the Board.

2.

The convocation shall take place not later than on the fifth (5th) day prior to the day on which the meeting shall take place.

3.

A Share of a certain class confers the right to cast one (1) vote in the respective Class Meeting.

4.

A Class Meeting shall be held in the municipality in which the Company has its registered seat or alternatively in Rotterdam, Utrecht, The Hague or Haarlemmermeer (Schiphol Airport), the Netherlands, provided, however, that if all of the holders of such class of Shares so agree, (i) a meeting of such class may instead be convened elsewhere, or (ii) such holders may pass resolutions in writing in accordance with article 26.

5.

Other than as varied by paragraphs 2 and 3 above, articles 23 through 26 shall apply, mutatis mutandis, to any meeting referred to in this article, save that the Directors have the right to render advice on any resolution proposed in any Class Meeting.

CHAPTER IX.

 

Amendment of the articles of association. Merger. Demerger. Conversion.

 

Article 28. Resolutions and proposals.

 

1.

Without prejudice to the provisions of article 2:334ff paragraph 1 DCC, on proposal of the Board, the General Meeting may resolve to amend the Company's articles of association, to conclude a legal merger or a demerger, or to dissolve the Company. A resolution of the General Meeting on a legal merger or a demerger requires a majority of at least two-thirds (2/3rd) of the votes cast, if less than half of the issued capital is represented at the General Meeting.

 

 

2.

When a proposal is to be made to the General Meeting to enter into an amend the articles of association, a legal merger, legal demerger or to dissolve the Company, this must be mentioned in the convocation of the General Meeting. As regards an amendment of the articles of association, legal merger or legal demerger, a copy of the proposal including the text of the proposed amendment, legal merger or legal demerger must at the same time be deposited and held available at the offices of the Company for inspection by the Shareholders until the end of the meeting.

3.

A resolution to amend these articles of association which negatively impacts the rights of holders of Shares B, requires the prior approval of the Class Meeting Shares B.

4.

Unless the law provided for a larger majority or larger quorum, a resolution of the General Meeting to amend these articles of association as result of which one or more of the following articles is amended or abolished, requires the prior approval of the Class Meeting Shares A, which approval can only be granted by a majority of the votes cast in a meeting in which at least fifty percent (50%) of the issued and outstanding Shares A is present of represented:

a.

article 1 subsections j, n, s, aa, bb, dd, mm or nn;

b.

article 4 paragraph 2 or paragraph 3, to the extent it concerns a change of the nominal value of the Shares;

c.

article 4A;

d.

article 7 paragraph 1 or paragraph 2;

e.

article 16 paragraph 10, paragraph 11 or paragraph 12;

f.

article 22 paragraph 5;

g.

this article 28 paragraph 4.

A second general meeting as referred to in Section 2:120 paragraph 3 DCC cannot be convened.

 

5.

A resolution of the General Meeting to amend these articles of association as result of which article 14 paragraph 3 or this article 28 paragraph 5 is amended or abolished, requires within the first three years after the Closing Date a majority of at least eighty-five percent (85%) of the votes cast in a meeting in which at least eighty-five percent (85%) of the issued and outstanding share capital is present of represented. A second general meeting as referred to in Section 2:120 paragraph 3 DCC cannot be convened.

Article 29. Dissolution and liquidation.

 

1.

The General Meeting may only resolve to dissolve the Company at the proposal of the Board. The Board will be in charge of the liquidation of the business of the Company, unless the General Meeting appoints one or more other persons or the law provides otherwise.

2.

During liquidation, the provisions of these articles of association shall remain in force as far as possible.

3.

The balance remaining after payment of all debts of the dissolved Company, shall be transferred to the Shareholders pro rata to the total number of Shares held as a percentage of the total number of Shares issued and outstanding, albeit that the holders of Shares C shall be entitled to a maximum amount of one eurocent (EUR 0.01) per Share C.

 

 

4.

After the Company has ceased to exist, the books, records and other databases of the dissolved Company shall retain at the person appointed thereto in writing by the liquidators for seven (7) years.

5.

Furthermore, the provisions of Title 1, Book 2 DCC apply to the liquidation.

Indemnity and Insurance.

 

Article 30.

 

1.

To the fullest extent permissible by law, the Company shall indemnify and hold harmless:

 

a.

each Director, both former Directors and Directors currently in office;

b.

each person who is or was serving as an officer of the Company;

c.

each person who is or was serving as a proxy holder of the Company;

d.

each person who is or was a member of the board or supervisory board or officer of other companies or corporations, partnerships, joint ventures, trusts or other enterprises by virtue of their functional responsibilities with the Company and or its Subsidiaries,

(each of them, for the purpose of this article only, an "indemnified person"), against any and all liabilities, claims, judgments, fines and penalties ("claims") incurred by the indemnified person as a result of any threatened, pending or completed action, investigation or other proceeding, whether civil, criminal or administrative (each, a "legal action"), brought by any party other than the Company itself or any Subsidiaries, in relation to acts or omissions in or related to his capacity as an indemnified person.

 

2.

Claims will include derivative actions brought on behalf of the Company or any Subsidiaries against the indemnified person and claims by the Company (or any Subsidiaries) itself for reimbursement for claims by third parties on the ground that the indemnified person was jointly liable toward that third party in addition to the Company.

3.

The indemnified person will not be indemnified with respect to claims insofar as they relate to the gaining in fact of personal profits, advantages or compensation to which he was not legally entitled, or if the indemnified person shall have been adjudged to be liable for willful misconduct (opzet) or intentional recklessness (bewuste roekeloosheid).

4.

Any expenses (including reasonable attorneys’ fees and litigation costs) (collectively,"expenses") incurred by the indemnified person in connection with any legal action shall be settled or reimbursed by the Company, but only upon receipt of a written undertaking by that indemnified person that he shall repay such expenses if a competent court in an irrevocable judgment has determined that he is not entitled to be indemnified.Expenses shall be deemed to include any tax liability which the indemnified person may be subject to as a result of his indemnification.

5.

Also in case of a legal action against the indemnified person by the Company itself or any Subsidiary(s), the Company will settle or reimburse to the indemnified person his reasonable attorneys’ fees and litigation costs, but only upon receipt of a written undertaking by that indemnified person that he shall repay such fees and costs if a competent court in an irrevocable judgment has resolved the legal action in favor of the Company or the relevant Subsidiary(s) rather than the indemnified person.

6.

Expenses incurred by the indemnified person in connection with any legal action will also be settled or reimbursed by the Company in advance of the final disposition of such action, but only upon receipt of a written undertaking by that indemnified person that he shall repay such expenses if a competent court in an irrevocable judgment has determined that he is not entitled to be indemnified.

 

Such expenses incurred by indemnified persons may be so advanced upon such terms and conditions as the Board decides.

 

7.

The indemnified person shall not admit any personal financial liability vis-à-vis third parties, nor enter into any settlement agreement, without the Company’s prior written authorization.

 

The Company and the indemnified person shall use all reasonable endeavors to cooperate with a view to agreeing on the defense of any claims, but in the event that the Company and the indemnified person would fail to reach such agreement, the indemnified person shall comply with all reasonable directions given by the Company, in order to be entitled to the indemnity contemplated by this article.

 

8.

The indemnification provided for by this article shall not be deemed exclusive of any other right to which a person seeking indemnification or advancement of expenses may be entitled under the laws of the Netherlands as from time to time amended or under any by-laws, agreement, resolution of the General Meeting or of the Directors or officers who are not an interested party in this matter or otherwise, both as to actions in his official capacity and as to actions in another capacity while holding such position, and shall continue as to a person who has ceased to be a Director or an officer, but was a member of the board of directors or an officer at any time after the execution of this deed of amendment and shall also inure to the benefit of the heirs, executors and administrators of the estate of such person.

9.

The Company may purchase and maintain insurance on behalf of any indemnified person, whether or not the company would have the power to indemnify him against such liability under the provisions of this article. The indemnity contemplated by this article shall not apply to the extent claims and expenses are reimbursed by insurers.

10.

The Company will provide for and bear the cost of adequate insurance covering claims against the indemnified person, unless such insurance cannot be obtained at reasonable terms.

11.

This article can be amended without the consent of the indemnified persons as such. However, the indemnity provided herein shall nevertheless continue to apply to claims and/or expenses incurred in relation to the acts or omissions by the indemnified person during the periods in which this clause was in effect.

12.

At its discretion, the Board may have the Company indemnify other members of the management team, not being Directors, or other employees, each in case of the Company or of a Subsidiary, comparable to the indemnification provided herein for the benefit of other indemnified persons.

Transitory Provisions.

 

Article 31.

 

The first financial year of the Company shall run up to and including the thirty-first day of December two thousand and twenty-one. This article and its heading shall cease to exist after the end of the first financial year.

 

 

Article 32.

 

1.

The provisions of article 4 paragraph 1 and paragraph 2 of these articles of association shall only come into effect if and when the share issue deed whereby [•] Shares A, numbered A[•] up to and including A[•] and [•] Shares B, numbered B[•] up to and including B[•] shall be issued to the parties holding shares in Lilium GmbH immediately prior to the Closing Date, becomes effective (the "Authorised Share Capital CP 2"), which shall be evidenced by the filing of a Board resolution with the trade register of the Chamber of Commerce that states that the Authorised Share Capital CP 2 has been fulfilled.

2.

Prior to the Authorised Share Capital CP 2, but after the deed of issue whereby [•] Shares A, numbered A[•] up to and including A[•] to [•exchange agent], acting as an exchange agent for and on behalf of Cede & Co, a general partnership organized under the laws of the State of New York, United States of America, with its place of business at 55 Water Street, New York, NY 10041, United States of America, as nominee for The Depository Trust Company, a central securities clearing depository existing under the laws of the State of New York, United States of America, having its address at 55 Water Street, New York, NY 10041, United States of America, solely for the benefit of the parties holding shares in Qell Acquisition Corp. immediately prior to the Closing Date, becomes effective (the "Authorised Share Capital CP 1"), which shall be evidenced by the filing of a Board resolution with the trade register of the Chamber of Commerce that states that the Authorised Share Capital CP 1 has been fulfilled, article 4 paragraph 1 and paragraph 2 shall read as follows:

“1.

The authorized share capital of the Company amounts to [●] euro (EUR) [●].

“2.

The authorized share capital is divided into:

(i)

[●] ([●]) Shares A with a nominal value of twelve eurocent (EUR 0.12) each;

(ii)

[●] ([●]) Shares B with a nominal value of thirty-six eurocent (EUR 0.36) each; and

(iii)

[●] ([●]) Shares C with a nominal value of twenty-four eurocent (EUR 0.24) each.”

3.

Upon these articles of association taking effect and prior to the Authorised Share Capital CP 1, article 4 paragraph 1 and paragraph 2 shall read as follows:

"1.

The authorized share capital of the Company amounts to [●] euro (EUR) [●].

"2.

The authorized share capital is divided into:

(i)

[●] ([●]) Shares A with a nominal value of twelve eurocent (EUR 0.12) each;

(ii)

[●] ([●]) Shares B with a nominal value of thirty-six eurocent (EUR 0.36) each; and

(iii)

[●] ([●]) Shares C with a nominal value of twenty-four eurocent (EUR 0.24) each."

4.

This article shall cease to exist upon the Authorised Share Capital CP 2.

 

Article 33.

 

1.

The provisions of article 14 paragraph 1, paragraph 2, paragraph 4 and paragraph 5 of these articles of association shall only come into effect the next day after the Closing Date (Central European Time). Until such point in time, article 14 paragraph 1 shall read as follows while paragraph 2, paragraph 4 and paragraph 5 shall be non-existent:

 

“1.

Executive and Non-Executive Directors shall be appointed as such by the General Meeting and for such term as set at the time of the appointment by the General Meeting, provided that a Director shall retire at the close of the first annual General Meeting held following the expiry of the term of his appointment, without prejudice to article 14 paragraph 3. A Director may be reappointed one or more times, with due observance of this paragraph and paragraph 3."

 

2.

This article shall cease to exist the next day after the Closing Date (Central European Time).

 

Final Statement.

 

Finally, the person appearing has declared that:

 

a.

immediately prior to the moment that the subject amendment to the articles of association becomes effective, the entire issued and outstanding share capital of the Company amounted to forty-five thousand euro (EUR 45,000), comprised of four hundred and fifty thousand (450,000) ordinary shares with a nominal value of ten eurocent (EUR 0.10) each, numbered 1 up to and including 450,000 (the "Ordinary Shares").

b.

as of the moment that the subject amendment to the articles of association becomes effective, the Ordinary Shares will be converted in three hundred seventy-five thousand (375,000) Shares A, numbered A1 up to and including A375,000; and

c.

therefore, as of the moment that the subject amendment to the articles of association becomes effective, the issued and paid up share capital of the Company amounts to forty-five thousand euro (EUR 45,000), divided into three hundred seventy-five thousand (375,000) Shares A, numbered A1 up to and including A375,000.

Conclusion deed.

 

The appearer is known to me, civil-law notary.

 

This deed is executed in Amsterdam (the Netherlands) on the date mentioned in the heading of this deed. After the substance of this deed and an explanation thereon have been stated to the appearer, the appearer has declared to have taken notice of the contents of this deed and to consent thereto. Immediately after those parts of the deed that the law requires to be read out have been read out, this deed is signed by the appearer and by me, civil-law notary.

 

 

 

Exhibit 8.1

 

June 10, 2021

 

Qell Acquisition Corp.

505 Montgomery Street, Suite 1100

San Francisco, California 94111

 

Ladies and Gentleman:

 

We are United States tax counsel to Qell Acquisition Corp., an exempted company incorporated under the laws of the Cayman Islands (“Qell”), in connection with the preparation of the registration statement on Form F-4 (as amended or supplemented as of June 10, 2021, and together with the Proxy Statement/Prospectus filed therewith, the “Registration Statement”) (Registration No. 333-255800), under the Securities Act of 1933, as amended (the “Securities Act”), by Lilium B.V., a Dutch private limited liability company.

 

The Registration Statement is being filed in connection with the transactions (the “Business Combination”) contemplated by the Business Combination Agreement, dated as of March 30, 2021 (the “Business Combination Agreement”), by and among Qell, Qell DutchCo B.V., a Netherlands limited liability company (“Holdco”), Queen Cayman Merger LLC, a Cayman Islands limited liability company (“Merger Sub”) and Lilium GmbH, a German limited liability company.

 

Capitalized terms not otherwise defined herein shall have the same meanings attributed to such terms in the Registration Statement.

 

You have requested our opinion concerning the discussion set forth in the section entitled “Material U.S. Federal Income Tax Considerations—The Merger” in the Registration Statement (the “Tax Disclosure”). In providing this opinion, we have assumed (without any independent investigation or review thereof) that:

 

a.       All original documents submitted to us (including signatures thereto) are authentic, all documents submitted to us as copies conform to the original documents, all such documents have been duly and validly executed and delivered where due execution and delivery are a prerequisite to the effectiveness thereof, and all parties to such documents had or will have, as applicable, the requisite corporate powers and authority to enter into such documents and to undertake and consummate the Business Combination;

 

b.       All factual representations, warranties and statements made or agreed to by the parties to the Business Combination Agreement, the Sponsor Letter Agreement, the Subscription Agreements, and the other agreements referred to therein or otherwise relating to the Business Combination (collectively, the “Agreements” and, together with the Registration Statement, the “Documents”), and in the representation letter provided to us by Qell, HoldCo and Merger Sub are true, correct and complete as of the date hereof without regard to any qualification as to knowledge, belief, or otherwise;

 

 

Qell

June 10, 2021

Page 2

 

c.       The description of the Business Combination (and other statements set forth) in the Registration Statement are accurate, the Business Combination will be consummated in accordance with such description and with the Business Combination Agreement and the other Agreements, without any waiver or breach of any material provision thereof, and the Business Combination will be effective under applicable corporate law as described in the Business Combination Agreement and the other Agreements; and

 

d.       The Documents represent the entire understanding of the parties with respect to the Business Combination, there are no other written or oral agreements regarding the Business Combination other than the Agreements and none of the material terms and conditions thereof have been or will be waived or modified.

 

This opinion is based on current provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the U.S. Treasury Regulations promulgated thereunder, and the interpretation of the Code and such regulations by the courts and the U.S. Internal Revenue Service, in each case, as they are in effect and exist at the date of this opinion. It should be noted that statutes, regulations, judicial decisions and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. Any change that is made after the date hereof in any of the foregoing bases for our opinion, or any inaccuracy in the facts or assumptions on which we have relied in issuing our opinion, could adversely affect our conclusion. We assume no responsibility to inform you of any such change or inaccuracy that may occur or come to our attention. No opinion is expressed as to any transactions other than the Business Combination, or any matter other than those specifically covered by this opinion. In particular, this opinion is limited to the matters discussed in the Tax Disclosure, and does not address (i) the U.S. federal income tax treatment of any shareholder subject to special rules under the Code or the Treasury Regulations, as further described in the Tax Disclosure or (ii) the status of any entity under the “passive foreign investment company” rules of Sections 1291-1297 of the Code.

 

The U.S. federal income tax consequences of the transactions described in the Registration Statement are complex and are subject to varying interpretations. Our opinion is not binding on the U.S. Internal Revenue Service or any court, and there is no assurance or guarantee that either will agree with our conclusions. Indeed, the U.S. Internal Revenue Service may challenge one or more of the conclusions contained herein and the U.S. Internal Revenue Service may take a position that is inconsistent with the views expressed herein. There is no assurance or guarantee that a court would, if presented with the issues addressed herein, reach the same or similar conclusions as we have reached.

 

 

Qell

June 10, 2021

Page 3

 

Based upon and subject to the foregoing, we confirm that the statements set forth in the Registration Statement under the heading “Material U.S. Federal Income Tax Considerations to U.S. Holders—The Merger,” insofar as they address the material U.S. federal income tax considerations for beneficial owners of Qell securities in connection with the Merger and discuss matters of U.S. federal income tax law and regulations or legal conclusions with respect thereto, and except to the extent stated otherwise therein, are our opinion, subject to the assumptions, qualifications and limitations stated herein and therein.

 

This opinion is furnished to you solely for use in connection with the Registration Statement. This opinion is based on facts and circumstances existing on the date hereof. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

	Very truly yours,
	/s/ Goodwin Procter LLP
	Goodwin Procter LLP

 

 

Exhibit 8.2

 

To Lilium B.V.	P.O. Box 75505 1070 AM Amsterdam
Rijnspoorlaan 10	Gustav Mahlerplein 50 Amsterdam
1018 TX Amsterdam
The Netherlands

 

Amsterdam, 8 June 2021

Re: Lilium B.V. – Tax opinion

Our ref: 290000374/26315453.2

 

Ladies and Gentlemen,

 

1.

Introduction

 

We have acted as Dutch tax counsel to Lilium B.V., with corporate seat in Amsterdam, the Netherlands and trade register number 82165874 (the "Company") in con nection with the filing of a registration statement in Form F-4 before the United States Securities and Exchange Commission with respect to the listing of certain shares in the Company on the New York Stock Exchange, dated 5 May 2021 (the "Registration Statement"). We have solely taken instructions from Goodwin Procter (UK) LLP.

 

2.

Scope of Investigation

 

We have solely examined an e-mailed copy of the Registration Statement.

 

3.

Assumptions

 

We assume that:

 

3.1.

all copies of documents conform to the originals and that all originals are authentic and complete;

 

3.2.

the section with header "Material Dutch Tax Considerations" set forth in the Registration Statement has through the date hereof remained in existence in the form in which it was presented to us; and

 

 

 

 

3.3.

any law, other than Dutch law, which may apply to the Registration Statement or the transactions contemplated thereby would not be such as to affect any opinion expressed in this opinion letter.

 

4.

Opinion

 

Based upon the foregoing assumptions and limitations stated hereafter, we express the following opinion:

 

The statements set forth in the Registration Statement under the section with the header "Material Dutch Tax Considerations", to the extent such statements purport to constitute a summary of certain provisions of the tax laws of the Netherlands, are true and accurate in all material respects.

 

5.

Scope of Opinion Letter

 

This opinion letter is limited to the laws of the European part of the Kingdom of the Netherlands, currently in force and as applied by Dutch courts (not including unpublished case law and, unless available on www.rechtspraak.nl, case law available in electronic form only). We express no opinion on the laws of the European Union insofar as not implemented in Dutch law or directly applicable in the Netherlands. We do not opine on regulatory law, including competition and procurement laws. In this opinion letter Dutch law concepts are expressed in English terms and not in their original Dutch terms. These concepts of Dutch law may not be the same as the concepts described by the English terms as such terms may be understood under the laws of other relevant jurisdictions. Our review of documents that are not governed by Dutch law has been based upon our understanding of the plain meaning of the language contained therein; we have not investigated the meaning and effect of any such language under any law other than Dutch tax law (ie. any tax of any nature levied by or on behalf of the Netherlands).

 

The opinion expressed herein is rendered only as of the date of this opinion letter. We assume no obligation to inform you of any changes to Dutch tax law arising after the date hereof.

 

Nothing in this letter should be taken as expressing an opinion on any matters of fact. We assume that there are no factual matters and documents not disciosed to us in the course of our investigation that would affect any opinion expressed in this opinion letter. We express no opinion on any representations, warranties or other statements contained in the Registration Statement, except as expressly confirmed herein.

 

6.

Reliance

 

This opinion letter is given on the express basis, accepted by each person who is entitled to rely on it, that this opinion letter and all rights, obligations or liability in relation to it are governed by Dutch law and that any action or claim in relation to it can only be brought exclusively before the courts of Amsterdam, the Netherlands. In addition, this opinion letter is given on the express basis, accepted by each person who is entitled to rely on it, that any possible liability Houthoff Coöperatief U.A., its members (including their directors) and employees is limited to the amount available and payable under Houthoff Coöperatief U.A.'s professional malpractice insurance coverage.

 

 

 

 

This opinion letter is addressed to you and may only be relied upon by you in connection with the transaction to which the Registration Statement relates, and may not be relied upon by, be transmitted to, quoted or referred to in any public document or filed with any other person, firm, company, or institution (other than as an exhibit to a filing of the Registration Statement) without our prior written consent. A copy may, however, be disclosed, but only on the express basis that they may not rely on it, to your legal counsel, in each case solely for the purpose of the transaction to which the Registration Statement relates and subject to the same restrictions or be disclosed on a non-reliance basis as required by law or regulation. For the avoidance of doubt, we do not assume any duty or liability to any person or entity to whom such copy is provided.

 

Yours faithfully,

 

/s/ Houthoff
Houthoff Coöperatief U.A.

 

 

 

Exhibit 8.3

 

 

Qell Acquisition Corp. Floor 4, Willow House, Cricket Square Grand Cayman KY1-9010 Cayman Islands

Campbells LLP Floor 4, Willow House, Cricket Square Grand Cayman KY1-9010 Cayman Islands   D +1 345 914 5879 T +1 345 949 2648 E jreilly@campbellslegal.com   campbellslegal.com   Our Ref: ASC/JLR/19012-33563 Your Ref:       CAYMAN | BVI | HONG KONG

 

7 June 2021

 

Dear Sirs

 

Qell Acquisition Corp. (the “Company”)

 

We have acted as Cayman Islands counsel for the Company in connection with the registration statement on Form F-4 prepared by Lilium B.V. (the “Company”), including all amendments or supplements thereto, and filed with the United States Securities and Exchange commission under the United States Securities Act of 1933 (the “Act”), as amended, (including its exhibits, the “Registration Statement”) filed in connection the business combination contemplated by the business combination agreement dated as of 30 March 2021 by and among the Company, Lilium GmbH, a German limited liability company, Queen Cayman Merger LLC, a Cayman Islands limited liability company (the “Merger Sub”) and Qell, pursuant to which several transactions will occur, and in connection therewith, Qell will merge with Merger Sub (with Merger Sub being the surviving company) and the Company will become the ultimate parent company of Lilium GmbH.

 

This opinion letter is given in accordance with the terms of the Legal Matters section of the Registration Statement.

 

For the purposes of giving this opinion, we have examined the documents and instruments listed in Schedule 1 hereto.

 

In giving this opinion we have relied upon the assumptions set out in Schedule 2 hereto, which we have not independently verified.

 

We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted by the courts of the Cayman Islands at the date hereof.

 

Based upon the foregoing examinations and assumptions and upon such searches as we have conducted and having regard to legal considerations which we deem relevant, and subject to the qualifications set out in Schedule 3 hereto, we are of the opinion that under the laws of the Cayman Islands:

 

 

The Cayman Islands firm known as “Campbells” converted from a firm to a Cayman Islands limited liability partnership known as “Campbells LLP” on 25 February 2021.

 

 

1

The statements under the caption “Material Cayman Islands Tax Considerations” in the Registration Statement, insofar as such statements constitute a summary of Cayman Islands law, fairly summarise in all material respects such legal matters and are the opinion of Campbells.

 

This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given solely for your benefit and the benefit of your legal advisers acting in that capacity in relation to this transaction, who may rely upon this opinion as if addressed to them, and may not be relied upon by any other person without our prior written consent. This opinion shall be construed in accordance with the laws of the Cayman Islands. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the reference to this firm in the Registration Statement under the heading “Legal Matters”.

 

Yours faithfully

 

/s/ Campbells
Campbells

 

 

Schedule 1

 

List of Documents Examined

 

1

The Registration Statement; and

 

2

Such other documents as we have considered necessary for the purposes of rendering this opinion.

 

 

Schedule 2

 

Assumptions

 

The opinions hereinbefore given are based upon the following assumptions:

 

1

All original documents are authentic, all copies are complete and conform to their originals and conform in every material respect to the latest drafts of the same produced to us, all signatures and seals are genuine, all documents purporting to be sealed have been so sealed, and, with respect to electronic signatures, that: (i) the means of creating the electronic signatures is linked to the signatory and to no other person; (ii) the means of creating the electronic signature was, at the time of signing, under the control of the signatory; (iii) no alteration to the electronic signature has been made after the time of signing; and (iv) any alteration made to the documents executed by way of an electronic signature after the time of signing is detectable.

 

2

Where the Registration Statement has been provided to us in draft or undated form, that Registration Statement has been filed by all parties in materially the form provided to us and, where we have been provided with successive drafts of the Registration Statement marked to show changes from a previous draft, all such changes have been accurately marked.

 

3

Each of the parties referred to in the Registration Statement other than the Company is duly incorporated, formed or organised (as applicable), validly existing and in good standing under all relevant laws.

 

4

None of the opinions expressed hereunder will be adversely affected by the laws or public policies of any jurisdiction other than the Cayman Islands.

 

 

Schedule 3

 

Qualifications

 

The opinions hereinbefore given are subject to the following qualifications:

 

1

In the event that documents are executed in or brought within the jurisdiction of the Cayman Islands (e.g. for purposes of enforcement or obtaining payment), stamp duty of a nominal amount may be payable on the original thereof and any counterparts thereof.

 

 

 

Exhibit 8.4

 

 

 

PRIVILEGED AND CONFIDENTIAL

 

Qell Acquisition Corp.

Floor 4, Willow House, Cricket Square

Grand Cayman KY1-9010

Cayman lslands

 

2 June 2021

 

Dear Sirs,

 

German tax statements in the Lilium B.V. Form F4 registration statement

 

1.     BACKGROUND

 

We (Goodwin Procter LLP or "us", as appropriate), have been requested to deliver this tax opinion (the "Opinion") in our capacity as German tax adviser to Qell Acquisition Corp., a blank check company incorporated under the laws of the Cayman lslands in connection with the filing of a Form F-4 registration statement prepared by Lilium B.V. and to be filed with the United States Securities and Exchange commission under the United States Securities Act of 1933, as amended, (the "Registration Statement").

 

2.     EXAMINED DOCUMENTS

 

We have only examined an electronic copy of the Registration Statement dated 5 May 2021.

 

3.     SCOPE

 

This Opinion is limited the tax laws of the Federal Republic of Germany as in force as on the date hereof and as applied by the German fiscal courts (not including unpublished cases). We express no opinion on the laws of the European Union insofar as not implemented in German tax law or directly applicable in the Federal Republic of Germany. We have made no investigation of the tax laws of any jurisdiction outside Germany and do not express or imply any opinion based thereon.

 

Goodwin Procter LLP, a Limited Liability Padnership under the laws of the Commonwealth of Massachuserrs. The personal liability of the partners as partners of Goodwin Procter LLP is limited. A fuil list ot parrners ,s available for review at our website, www.goodwinlaw.com

 

 

Qell Acquisition Corp.

2 June 2021

Page 2

 

This Opinion is as of the date hereof. We have no obligation to update it or to notify any Addressee of this Opinion of any change in the tax laws of the Federal Republic of Germany or their construction or application after the date of this Opinion.

 

This Opinion is limited to the opinions expressed herein and no opinion may be concluded or implied from it. Nothing in this Opinion should be taken as expressing an opinion on any matters of fact. We express no opinion on any representations, warranties or other statements contained in the Registration Statement, except as expressly confirmed herein.

 

4.     ASSUMPTIONS

 

For the purpose of this Opinion we assume that:

 

•     the Registration Statement which we have reviewed in draft form will only be filed in the same form as the draft which we have received and, where we have been provided with successive drafts of the Registration Statement marked to show changes from a previous draft, all such changes have been accurately marked; and

 

•     there are no factual matters and documents not disclosed to us in the course of our investigation that would affect any opinion expressed in this Opinion.

 

5.     OPINION

 

Based on the assumptions and the limitations stated herein, it is our opinion that:

 

The statements made in the Registration Statement under the section with the header "Material German Tax Considerations — Holdco Shares and Holdco Public Warrants ", to the extent such statements purport to constitute a summary of certain provisions of the tax laws of the Federal Republic of Germany, are true and accurate in all material respects.

 

6.     BENEFIT

 

This Opinion is given on the express basis, accepted by each person who is entitled to rely on it, that this Opinion and all rights, obligations or liability in relation to it are governed by German law and that any action or claim in relation to it can only be brought exclusively before the courts of Frankfurt am Main, Germany.

 

This Opinion is solely for the Addressee and solely for the purpose of the Registration Statement and it may not be relied upon by any other person, nor may this Opinion be used for any other purpose without our prior written consent. lt is not intended to create third party rights (Vertrag zugunsten Drifte) pursuant to Sec. 328 German Civil Code (Bürgediches Gesetzbuch) and we accept no liability to any person other than to the Addressee.

 

Accordingly, no person other than the Addressee can rely on the opinions expressed herein, or quote them and this Opinion may not be transmitted to, quoted or referred to by any other person or in any public document or filed with any other person, firm, company, or institution (other than as an exhibit to a filing of the Registration Statement), nor may this Opinion be used for any other purpose without our prior written consent.

 

/s/ Goodwin Proctor LLP

 

 

 

Exhibit 10.3 

 

FORM OF AMENDED AND RESTATED INDEMNIFICATION AGREEMENT, dated [•] (this “Agreement”) between Lilium N.V., a public company under Dutch law, having its seat in Amsterdam, the Netherlands, and its address at Rhijnspoorplein 10, 1018TX Amsterdam, the Netherlands, registered with the Dutch trade register under number 82165874 (the “Company”), and [•] (the “Indemnitee”).

 

WITNESSETH

 

WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as the Indemnitee, and to indemnify its directors, officers and key employees so as to provide them with the maximum protection permitted by law;

 

WHEREAS, the Indemnitee has agreed to serve as [•] of the Company and in such capacity to render valuable services to the Company; and

 

NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth, and for other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt and sufficiency of which are hereby acknowledged, the Company and the Indemnitee hereby agree as follows:

 

1.                  Defined Terms and Phrases. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)                   “Affiliate” means, with respect to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled by, such Person, including, if such Person is an individual, any relative or spouse of such Person, or any relative of such spouse of such Person, any one of whom has the same home as such Person, and also including any trust or estate for which any such Person(s) specified herein, directly or indirectly, serves as a trustee, executor or in a similar capacity (including any protector or settlor of a trust) or in which such Person(s) specified herein, directly or indirectly, has a substantial beneficial interest and any Person who is controlled by any such trust or estate. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean, with respect to any Person, the possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract, or otherwise) of such Person.

 

(b)                   “Beneficial Owner” and “Beneficial Ownership” have the meanings specified in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended.

 

(c)                   “Change of Control” shall be the earliest to occur of any of the following events:

 

(i)                 Acquisition of Shares by Third Party. Any person or group of persons acting in concert, directly or through one or more intermediaries, acquires beneficial or legal ownership of or control over more than 50% of:

 

 

(1)               the issued shares (of all classes) entitling the holder to vote for the election of directors to the Board of the Company (the “Board”); or

 

(2)               the issued share capital (of all classes) of the Company.

 

(ii)              Corporate Transaction. The Company combines with or into any other Person or the Company conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its assets to another Person, in any such event pursuant to a transaction in which the outstanding share capital of the Company prior to the transaction is converted into or exchanged for cash, securities or other property, other than any such transaction in which (A) the share capital of the Company outstanding immediately prior to such transaction is converted into or exchanged for shares of the surviving or transferee Person and (B) the Beneficial Owners of the share capital of the Company outstanding immediately prior to such transaction own, directly or indirectly, not less than a majority of the share capital of the surviving or transferee Person immediately after such transaction.

 

(iii)            For Purposes of D&O Policy. The occurrence of a change of control transaction that results in the insurer no longer being liable to make payments under the Company’s then current directors and officers insurance policy or policies in connection with any claim arising out of, based upon or attributable to a wrongful act committed after the occurrence of the applicable change of control transaction as defined in said insurance policy or policies.

 

(iv)             Liquidation. The approval by the Company’s shareholders of, or the making by a court of an order for, a complete voluntary liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets.

 

(d)                   “Corporate Status” means the status of the Indemnitee as a present or former managing director (in Dutch: bestuurder) or supervisory director (in Dutch: commissaris), officer, employee or similar capacity of an Enterprise.

 

(e)                   “Derivative Action” means a Proceeding brought by a shareholder of the Company in the name or right of the Company or its shareholders (generally).

 

(f)                    “Enterprise” means the Company and any of its subsidiaries or any other enterprise that the Indemnitee has or had Corporate Status and was or is serving at the request of the Company as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant, general partner, managing member or agent.

 

(g)                   “Expenses” means any and all expenses, including, but not limited to, (i) attorneys’ fees, (ii) any and all costs, travel expenses, fees payable to experts, duties, witness fees, procedural fees, telephone charges, postage and delivery service fees, payment for other related services, losses, taxes (including, but not limited to, value added tax), except any income taxes, or any interest, penalties or fines connected with such taxes, in respect of compensation received for services as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant or agent, (iii) all fines, judgments or amounts paid in settlement (including through mutual agreement) and (iv) all interest, accruals and other expenses that are incurred by the Indemnitee in connection with any Proceeding, including, without limitation, in relation to (A) preparation of any defense, (B) preparation as a witness, (C) any investigation or (D) participation in such Proceeding.

 

 

(h)                   “Person” means any natural person, corporation, general partnership, simple partnership, limited partnership, limited liability partnership, limited liability company, proprietorship, other business organization, trust, union, association or governmental agency, whether incorporated or unincorporated; provided, however, that Person shall exclude: (i) the Company; (ii) any direct or indirect majority owned subsidiaries of the Company; (iii) any employee benefit plan of the Company or any direct or indirect majority owned subsidiaries of the Company or of any corporation owned, directly or indirectly, by the Company’s shareholders in substantially the same proportions as their ownership of shares of the Company (an “Employee Benefit Plan”); and (iv) any trustee or other fiduciary holding securities under an Employee Benefit Plan.

 

(i)                     “Proceeding” means any actual, threatened, pending or completed claim, action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding in any jurisdiction, or any inquiry, hearing or investigation leading to any such proceeding, whether brought by a third party, a government agency, the Enterprise or its Board or a committee thereof, whether in the right of the Enterprise or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, legislative, labor or investigative (formal or informal) nature, irrespective of on whose behalf such action is undertaken, including any appeal therefrom, in which the Indemnitee was, is, will or might be involved as a party, potential party, non-party witness or otherwise by reason of (i) the fact that the Indemnitee has, had or will have Corporate Status, or (ii) by reason of any action (or failure to act) taken by the Indemnitee or of any action (or failure to act) on the Indemnitee’s part while having Corporate Status, whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement or advancement of Expenses can be provided under this Agreement.

 

(j)                     “subsidiary” means a subsidiary as referred to in section 2:24a and 2:24c of the Dutch Civil Code;

 

(k)                   As used herein, “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) amalgamating with the Company which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, partners (general, limited or otherwise), members (managing or otherwise), trustees, fiduciaries, employees or agents, so that if the Indemnitee is or was a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant or agent of any other enterprise, the Indemnitee shall, to the fullest extent permitted by applicable law, stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as the Indemnitee would have with respect to such constituent corporation if its separate existence had continued.

 

 

(l)                     In addition, references to “other enterprise” shall include another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise; references to “fines” shall include any excise taxes assessed on the Indemnitee with respect to an employee benefit plan, other than in his capacity as a grantee under such plan; references to “serving at the request of the Company” shall include any service as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant or agent of the Company which imposes duties on, or involves services by the Indemnitee with respect to an employee benefit plan, its participants, or beneficiaries; and references to “include” or “including” shall mean include or including, without limitation; and references to Sections, paragraphs or clauses are to Sections, paragraphs or clauses in this Agreement unless otherwise specified.

 

2.                  Indemnification.

 

(a)                   Third-Party Proceedings. To the fullest extent permitted by applicable law, the Company shall indemnify the Indemnitee, if the Indemnitee was, is or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding (other than a Derivative Action), against all Expenses actually incurred by the Indemnitee in connection with such Proceeding.

 

(b)                   Proceedings By or in the Right of the Enterprise. To the fullest extent permitted by applicable law, the Company shall indemnify the Indemnitee if the Indemnitee was, is or is threatened to be made a party to or a participant (as a witness or otherwise) in any Derivative Action, against all Expenses actually incurred by the Indemnitee in connection with such Proceeding.

 

(c)                   Witness Expenses. To the fullest extent permitted by applicable law and to the extent that the Indemnitee is a witness or otherwise asked to participate in any Proceeding to which the Indemnitee is not a party that relates to his or her Corporate Status, the Company shall indemnify the Indemnitee against all Expenses actually incurred by the Indemnitee in connection with such Proceeding.

 

3.                  Indemnification Procedure.

 

(a)                   Advancement of Expenses. To the fullest extent permitted by applicable law, the Company shall advance or pay on the Indemnitee’s behalf all Expenses actually incurred by the Indemnitee in connection with a Proceeding within ten (10) days after receipt by the Company of a statement requesting such advances from time to time, whether prior to or after final disposition of any Proceeding. Such advances shall be unsecured and interest free and shall be made without regard to the Indemnitee’s ability to repay the Expenses and without regard to the Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. The Indemnitee shall be entitled to continue to receive advancement of Expenses pursuant to this Section 3(a) unless and until the matter of the Indemnitee’s entitlement to indemnification hereunder has been finally adjudicated by arbitral award, court order or judgment from which no further right of appeal exists. The Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it ultimately is determined that the Indemnitee is not entitled to be indemnified by the Company under the other provisions of this Agreement. The Indemnitee shall qualify for advances upon the execution and delivery of this Agreement, which shall constitute the requisite undertaking with respect to repayment of advances made hereunder and no other form of undertaking shall be required to qualify for advances made hereunder other than the execution of this Agreement. In the event that any taxes or fees are paid, due or withheld in accordance with any applicable law in connection any amount paid to the Indemnitee pursuant to this Agreement, the Company shall pay, in addition to the amounts payable to the Indemnitee hereunder, such additional amount as is necessary to ensure that the net amount actually received by the Indemnitee (free and clear of such taxes or fees) will equal the full amount the Indemnitee would have received had no such payment or withholding been required.

 

 

(b)                   Notice and Cooperation by the Indemnitee. The Indemnitee shall promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, notice, request for arbitration, indictment, information or other document relating to any Proceeding or matter for which indemnification will or could be sought under this Agreement and shall include copies of any documentation with which it has been served in such notice. Such notice shall be directed to the General Counsel of the Company and shall be given in accordance with the provisions of Section 14(e). In addition, the Indemnitee shall give the Company such additional information and cooperation as the Company may reasonably request. The Indemnitee’s failure to so notify, provide information and otherwise cooperate with the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement.

 

(c)                   Determination of Entitlement. Notwithstanding any other provision in this Agreement, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding. Subject to the foregoing, promptly after receipt of a statement requesting payment with respect to the indemnification rights set forth in Section 2, the Company shall take the steps necessary to authorize such payment. The Company shall pay any claims made under this Agreement, under any statute, or under any provision of the Company’s Articles of Association providing for indemnification or advancement of Expenses, within ten (10) days after a written request for payment thereof has first been received by the Company, and if such claim is not paid in full within such ten (10) day-period, the Indemnitee may, but need not, at any time thereafter bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 12, the Indemnitee shall also be entitled to be paid for all Expenses actually incurred by the Indemnitee in connection with bringing such action. It shall be a defense to any such action (other than an action brought to enforce a claim for advancement of Expenses under Section 3(a)) that the Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Company to indemnify the Indemnitee for the amount claimed. In making a determination with respect to entitlement to indemnification hereunder, the Person making such determination shall presume that the Indemnitee is entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption with clear and convincing evidence to the contrary. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee engaged in fraudulent or dishonest conduct or is otherwise not entitled to indemnification hereunder. In addition, it is the parties’ intention that if the Company contests the Indemnitee’s right to indemnification, the question of the Indemnitee’s right to indemnification shall be for the arbitral tribunal to decide, and neither the failure of the Company (including its Board, any committee or subgroup of the Board, independent legal counsel, or its shareholders) to have made a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual determination by the Company (including its Board, any committee or subgroup of the Board, independent legal counsel, or its shareholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has or has not met the applicable standard of conduct. If any requested determination with respect to entitlement to indemnification hereunder has not been made within ninety (90) days after the final disposition of the Proceeding, the requisite determination that the Indemnitee’s entitlement to indemnification shall be deemed to have been made (until such time as a tribunal or court has determined otherwise).

 

 

(d)                   Payment Directions. To the extent payments are required to be made hereunder, the Company shall, in accordance with the Indemnitee’s request (but without duplication), (i) pay such Expenses on behalf of the Indemnitee, (ii) advance to the Indemnitee funds in an amount sufficient to pay such Expenses, or (iii) reimburse the Indemnitee for such Expenses.

 

(e)                   Notice to Insurers. If, at the time of the receipt of a notice of a claim pursuant to Section 3(b), the Company has one or more director and officer liability insurance policies in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers under such policies in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

(f)                    Defense of Claim and Selection of Counsel. In the event the Company shall be obligated under Section 3(a) to advance Expenses with respect to any Proceeding, the Company shall have the right, but not the obligation, to assume the defense of such Proceeding, with counsel acceptable to the Indemnitee, upon the delivery to the Indemnitee of written notice of the Company’s election so to do; provided, however, that the applicable Proceeding is not a Derivative Action and there is no other conflict of interest between the Company and the Indemnitee in the conduct of any such defense. Notwithstanding delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company, the Indemnitee shall have the right to employ separate counsel in any such Proceeding and the actual legal fees and Expenses incurred by the Indemnitee for such separate counsel retained by the Indemnitee shall be deemed to be Expenses that are subject to indemnification hereunder to the fullest extent permitted by applicable law. Upon the Indemnitee’s written demand, the Company shall be obliged to assume the defense of the Indemnitee in any Proceeding that may give rise to a right to indemnification under this Agreement; provided, however, that the applicable Proceeding is not made in the name or on behalf of the Company and there is no other conflict of interest between the Company and the Indemnitee in the conduct of any such defense. If the Company elects or is obliged to assume the defense of a Proceeding pursuant to this Section 3(f), the Company shall (i) defend the Proceeding in good faith and in a manner consistent with the best interests of the Indemnitee, (ii) provide the Indemnitee with copies of all relevant documentation related to such Proceeding, and (iii) consult with the Indemnitee on a regular basis regarding the status and progress of the Proceeding and any material developments in connection therewith. The Company shall not be required to obtain the consent of the Indemnitee for the settlement of any Proceeding the Company has undertaken to defend if the Company assumes full and sole responsibility for each such settlement; provided, however, that the Company shall be required to obtain the Indemnitee’s prior written approval before entering into any settlement which (A) does not grant the Indemnitee a complete release of liability, (B) would impose any penalty, obligation or limitation on the Indemnitee, or (C) would admit any liability or misconduct (including fraud or dishonesty) by the Indemnitee.

 

 

4.                  Additional Indemnification Rights.

 

(a)                   Scope. Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify the Indemnitee to the fullest extent permitted by law. In the event of any change, after the date of this Agreement, in any applicable law, statute, or rule which expands the right of a Dutch company to indemnify a member of its Board or an officer, such changes shall be deemed to be within the purview of the Indemnitee’s rights and the Company’s obligations under this Agreement. In the event of any change in any applicable law, statute or rule which narrows the right of a Dutch company to indemnify a member of its Board or an officer, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights and obligations hereunder. The indemnity provided pursuant to this Agreement will apply to the Indemnitee in each capacity in which the Indemnitee has previously served, currently serves or will serve the Enterprise. In particular, to the extent permitted by applicable law, this Agreement will apply to any such relationship between the Enterprise and the Indemnitee which arose before the effective date of this Agreement, and shall be effective from the date of the Indemnitee’s Corporate Status. This Agreement shall cover all possible Proceedings which may arise in any jurisdiction.

 

(b)                   Non-exclusivity. The indemnification provided by this Agreement shall not be deemed exclusive of or in limitation of any rights to which the Indemnitee may be entitled under the Company’s Articles of Association, internal documents, any agreement, insurance policy, any vote of shareholders or disinterested members of the Company’s Board, any applicable laws in Dutch or other jurisdiction, or otherwise, both as to action in the Indemnitee’s official capacity and as to action in another capacity while holding such office. The indemnification provided under this Agreement shall continue as to the Indemnitee for any action taken or not taken while serving in an indemnified capacity even though he or she may have ceased to serve in any such capacity at the time of any action, suit or other covered Proceeding.

 

(c)                   Third-Party Indemnification. The Company hereby acknowledges that the Indemnitee has or may from time to time obtain certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more third parties (collectively, the “Third-Party Indemnitors”). The Company hereby agrees that it is the indemnitor of first resort (i.e., its obligations to the Indemnitee are primary and any obligation of the Third-Party Indemnitors to advance Expenses or to provide indemnification for the same Expenses or liabilities incurred by the Indemnitee are secondary), and that the Company will not assert that the Indemnitee must seek expense advancement or reimbursement, or indemnification, from any Third-Party Indemnitor before the Company must perform its Expense advancement and reimbursement, and indemnification obligations, under this Agreement. No advancement or payment by the Third-Party Indemnitors on behalf of the Indemnitee with respect to any claim for which the Indemnitee has sought indemnification from the Company shall affect the foregoing.

 

 

5.                  Partial Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses, actually incurred in connection with a Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such Expenses to which the Indemnitee is entitled.

 

6.                  Director and Officer Liability Insurance.

 

(a)                   D&O Policy. The Company shall use its best efforts to obtain and maintain a policy or policies of insurance with reputable insurance companies providing the directors and officers of the Company and its subsidiaries with coverage for losses from wrongful acts, or to ensure the Company’s performance of its indemnification obligations under this Agreement, in each case, with coverage that is adequate for the Indemnitee in light of the value of the Company’s assets, the Indemnitee’s potential exposure to liability and any other relevant considerations. In all policies of director and officer liability insurance, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s directors, if the Indemnitee is a director; or of the Company’s officers, if the Indemnitee is not a director of the Company but is an officer of the Company or of a subsidiary of the Company; or of the Company’s key employees, if the Indemnitee is not an officer or director but is a key employee of the Company or of a subsidiary of the Company. The provision of directors’ and officers’ liability insurance, or the failure to so provide directors’ and officers’ insurance, shall in no way limit or diminish the obligation of the Company to indemnify the Indemnitee as provided in this Agreement. It is expressly stated that this Agreement includes all Proceedings insured by liability insurance and the Company shall be responsible for any costs and/or Expenses related to the procurement of directors’ and officers’ insurance that insures the Indemnitee. Should the Company fail to obtain such insurance, it shall be obliged to reimburse the Indemnitee for any reasonable Expenses should the Indemnitee procure (or attempt to procure) its own directors’ and officers’ insurance.

 

(b)                   Tail Coverage. In the event of a Change of Control or the Company becoming insolvent (including being placed into receivership or entering into liquidation or provisional liquidation and the like), the Company shall maintain in force any and all insurance policies then maintained by the Company in providing insurance (directors’ and officers’ liability, fiduciary, employment practices or otherwise) in respect of the Indemnitee, for a period of six years thereafter.

 

 

7.                  Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to applicable law, court order or an arbitral award, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction or an arbitral tribunal, then the Company shall nevertheless indemnify the Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.

 

8.                  Limitation on Proceedings Instituted by Company. The Company and the Indemnitee hereby agree that, subject to applicable law and except with respect to any Derivative Action, the Company, represented by its Board, any of its managing bodies or in any other manner, will not institute any Proceeding against the Indemnitee, and the Indemnitee shall in no instance be obliged to compensate the Company for any losses caused by the Indemnitee; provided, however, that this Section 8 shall not apply to any losses which arise solely as a result of actions of the Indemnitee specified in Section 9(b).

 

9.                  Exclusions. Except as otherwise specified in Section 4, the Company shall not be obligated pursuant to the terms of this Agreement:

 

(a)                   Claims Initiated by the Indemnitee. To indemnify or advance Expenses to the Indemnitee with respect to Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish, enforce or interpret a right to indemnification under this Agreement or any other statute or law, but such indemnification or advancement of Expenses may be provided by the Company in specific cases if the Board finds it to be appropriate; provided, however, that the exclusion set forth in the first clause of this subsection shall not be deemed to apply to any investigation initiated or brought by the Indemnitee to the extent reasonably necessary or advisable in support of the Indemnitee’s defense of a Proceeding to which the Indemnitee was, is or is threatened to be made, a party;

 

(b)                   Fraud or Dishonesty. To indemnify the Indemnitee for any Expenses incurred by the Indemnitee with respect to any Proceeding if fraud or dishonesty is proved against the Indemnitee; provided that the Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against him by reason of any alleged fraud or dishonesty on his part, unless a final judgment or adjudication thereof adverse to the Indemnitee (which is not reversible or contestable) establishes that he or she acted or failed to act in a way that was deliberately fraudulent (in Dutch: bedrog), intentional (in Dutch: opzettelijk), deliberately reckless (in Dutch: bewust roekeloos) or grossly negligent (in Dutch: ernstig verwijtbaar); or

 

(c)                   Insured Claims. To indemnify the Indemnitee for Expenses to the extent such Expenses have been paid directly to the Indemnitee by an insurance carrier under an insurance policy maintained by the Company.

 

 

(d)                   No Duplication of Payments. Subject to Section 4(c), the Company shall not be liable under this Agreement to make any payment in connection with any Proceedings made against the Indemnitee to the extent the Indemnitee has otherwise actually received payment (under any insurance policy, any provision of the Company’s Articles of Association, or otherwise) of the amounts otherwise indemnifiable hereunder.

 

10.              Contribution Claims.

 

(a)                   If the indemnification provided in Section 2 is unavailable in whole or in part and may not be paid to the Indemnitee for any reason other than those set forth in Section 9, then, with respect to any Proceeding in which the Company or any of its subsidiaries is jointly liable with the Indemnitee (or would be if joined in such Proceeding), to the fullest extent permitted by applicable law, the Company, or its subsidiary, as the case may be, in lieu of indemnifying the Indemnitee, shall pay, in the first instance, the entire amount incurred by the Indemnitee for Expenses in connection with any Proceeding without requiring the Indemnitee to contribute to such payment, and the Company, on behalf of itself and its subsidiaries, hereby waives and relinquishes any right of contribution it may have at any time against the Indemnitee.

 

(b)                   With respect to a Proceeding brought against directors, officers, partners (general, limited or otherwise), members (managing or otherwise), trustees, fiduciaries, employees or agents of the Enterprise (other than the Indemnitee), to the fullest extent permitted by applicable law, the Company shall indemnify the Indemnitee from any claims for contribution that may be brought by any such directors, officers, partners (general, limited or otherwise), members (managing or otherwise), trustees, fiduciaries, employees or agents of the Enterprise (other than the Indemnitee) who may be jointly liable with the Indemnitee, to the same extent the Indemnitee would have been entitled to such indemnification under this Agreement if such Proceeding had been brought against the Indemnitee.

 

11.              No Imputation. The knowledge and/or actions, or failure to act, of any director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee, consultant or agent of the Enterprise or the Enterprise itself shall not be imputed to the Indemnitee for purposes of determining any rights under this Agreement.

 

12.              Attorneys’ Fees. In the event that any Proceeding is instituted by the Indemnitee under this Agreement to establish, enforce or interpret any of the terms hereof, the Company shall, to the fullest extent permitted by applicable law, indemnify the Indemnitee against all Expenses actually incurred by the Indemnitee in connection with such Proceeding. In the event of a Proceeding instituted by or in the name of the Company under this Agreement or to establish, enforce or interpret any of the terms of this Agreement, the Company shall, to the fullest extent permitted by applicable law, indemnify the Indemnitee against all Expenses actually incurred by the Indemnitee in connection with such Proceeding (including with respect to the Indemnitee’s counterclaims and cross-claims made in such action.

 

13.              Continuation of Indemnity. The agreements and obligations of the Company and the Indemnitee under this Agreement shall continue during the period in which the Indemnitee has Corporate Status and shall continue thereafter so long as the Indemnitee shall be subject to any possible claim or threatened, pending or completed Proceeding by reason of the fact that the Indemnitee had Corporate Status of the Enterprise or serving in any other capacity referred to herein.

 

 

14.              Miscellaneous.

 

(a)                   Governing Law. This Agreement shall be governed by, and construed in accordance with, Dutch law.

 

(b)                   Dispute Resolution. Any dispute, claim or controversy between or among the parties and arising under, relating to or in connection with, this Agreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence, validity or enforceability of this Agreement, or the arbitrability of any claim and whether brought by the Indemnitee, the Company and/or any of its parents, subsidiaries, Affiliates, officers, directors or agents, shall be shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The place of arbitration shall be Amsterdam, The Netherlands. The proceedings shall be conducted in the English language. Consolidation of the arbitral proceedings with other arbitral proceedings, as provided for in Article 1046 of the Dutch Code of Civil Procedure and Article 39 of the Arbitration Rules of the Netherlands Arbitration Institute, is excluded.

 

(c)                   Entire Agreement; Binding Effect. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussions and supersedes any and all previous agreements between them covering the subject matter hereof. The indemnification provided under this Agreement applies with respect to events occurring before or after the date of this Agreement and shall continue to apply even after the Indemnitee has ceased to serve the Enterprise in any and all indemnified capacities.

 

(d)                   Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.

 

(e)                   Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by email and delivered by internationally-recognized courier, and addressed to the party to be notified at such party’s address as set forth on the signature page or as subsequently modified by written notice.

 

(f)                    Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

 

(g)                   Successors and Assigns. This Agreement shall be binding upon the Company and its successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, and inure to the benefit of the Indemnitee and the Indemnitee’s spouse, heirs, beneficiaries, executors, administrators, legal representatives, successors and assigns, and any legal entities controlled by the Indemnitee or the Indemnitee’s spouse. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

 

(h)                   No Employment Rights. Nothing contained in this Agreement is intended to create in the Indemnitee any right to continued employment.

 

(i)                     Company Position. The Company shall be precluded from asserting, in any action, suit or proceeding brought for purposes of establishing, enforcing or interpreting any right to indemnification under this Agreement, that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any applicable arbitral tribunal or court that the Company is bound by all the provisions of this Agreement and is precluded from making any assertion to the contrary.

 

(j)                     Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company to effectively bring suit to enforce such rights; provided, however, that such documents and acts do not impose any penalty, obligation or limitation on the Indemnitee.

 

 

The parties have executed this Agreement as of the date first set forth above.

 

	the company
	LILIUM N.V.
	By
	Name:
	Title:
	Address:
	[•]
	INDEMNITEE
	[•]
	Address:
	[•]

 

 

 

 

Exhibit 23.5 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in this Prospectus constituting a part of this Registration Statement on Amendment No. 1 to Form F-4 of our report dated May 4, 2021, relating to the financial statements of Qell Acquisition Corp, which is contained in that Prospectus. We also consent to the reference to our Firm under the caption “Experts” in the Prospectus.

 

/s/ WithumSmith+Brown, PC

 

New York, New York

June 10, 2021

 

 

  

Exhibit 23.6

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in this Registration Statement on Form F-4 of Lilium B.V. of our report dated May 5, 2021 relating to the financial statements of Lilium GmbH, which appears in this Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

Munich, Germany

June 10, 2021 

 

PricewaterhouseCoopers GmbH

Wirtschaftsprüfungsgesellschaft 

 

/s/ Katharina Deni		/s/ Alexander Fiedler
Wirtschaftsprüfer		Wirtschaftsprüfer
(German Public Auditor)		(German Public Auditor)