UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________________________________
FORM 20-F
___________________________________________________________
☐
☒
☐
☐
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE
ACT OF 1934
OR
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
OR
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
Commission File Number: 001-38438
Spotify Technology S.A.
(Exact name of Registrant as specified in its charter)
___________________________________________________________
Grand Duchy of Luxembourg
(Jurisdiction of incorporation)
42-44, avenue de la Gare
L- 1610 Luxembourg
Grand Duchy of Luxembourg
(address of principal executive offices)
___________________________________________________________
Horacio Gutierrez
Head of Global Affairs and Chief Legal Officer
ir@spotify.com
150 Greenwich Street, 63rd Floor
New York, New York 10007
(Name, E-mail and Address of Company Contact Person)
___________________________________________________________
Securities registered or to be registered, pursuant to Section 12(b) of the Act
Title of Each Class
Ordinary Shares (par value of €0.000625 per share)
Trading Symbol(s)
SPOT
Name of Each Exchange on Which Registered
New York Stock Exchange
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual
report: 190,212,847 Ordinary Shares, par value €0.000625 per share.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
☒ Accelerated filer
☐ Non-accelerated filer
☐ Emerging growth company
☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected
not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal
control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or
issued its audit report. ☒
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ¨
International Financial Reporting Standards as issued
by the International Accounting Standards Board ☒
Other ¨
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to
follow. Item 17 ¨ Item 18 ¨
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange
Act). Yes ☐ No ☒
Table of Contents
Certain Defined Terms
Note on Presentation
Forward-looking Statements
PART I
TABLE OF CONTENTS
Page
Item 1. Identity of Directors, Senior Management and Advisers
Item 2. Offer Statistics and Expected Timetable
Item 3. Key Information
Item 4. Information on the Company
Item 4A. Unresolved Staff Comments
Item 5. Operating and Financial Review and Prospects
Item 6. Directors, Senior Management and Employees
Item 7. Major Shareholders and Related Party Transactions
Item 8. Financial Information
Item 9. The Offer and Listing
Item 10. Additional Information
Item 11. Quantitative and Qualitative Disclosures About Market Risk
Item 12. Description of Securities Other than Equity Securities
PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
Item 15. Controls and Procedures
Item 16A. Audit Committee Financial Expert
Item 16B. Code of Ethics
Item 16C. Principal Accountant Fees and Services
Item 16D. Exemptions from the Listing Standards for Audit Committees
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Item 16F. Change in Registrant’s Certifying Accountant
Item 16G. Corporate Governance
Item 16H. Mine Safety Disclosure
PART III
Item 17. Financial Statements
Item 18. Financial Statements
Item 19. Exhibits
Signatures
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
i
1
1
3
2
4
4
4
35
43
43
59
78
80
81
81
90
91
92
92
92
92
93
93
93
93
94
94
94
95
96
96
96
96
100
F-1
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In this report, unless the context otherwise requires, references to “Company,” “we,” “us,” “our,” and “Spotify” refer to Spotify Technology S.A. and its
direct and indirect subsidiaries on a consolidated basis.
Certain Defined Terms
Note on Presentation
Currency
All references in this report to (i) “Euro,” “EUR,” or “€” are to the currency of the member states participating in the European Monetary Union, and (ii)
“U.S. dollar,” “USD,” or “$” are to the currency of the United States. Our reporting currency is the Euro.
Presentation of Financial Information
In accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), we
prepare our consolidated financial statements on a historical cost basis, except for our short term investments, long term investments, Convertible Notes (as defined
herein), derivative financial instruments, and contingent consideration, which have been measured at fair value, and our lease liabilities, which are measured at
present value.
Non-IFRS Financial Measures
In this report, we present certain financial measures that are not recognized by IFRS and that may not be permitted to appear on the face of IFRS-
compliant financial statements or notes thereto.
The only non-IFRS financial measure used in this report is Free Cash Flow. For a discussion of Free Cash Flow and a reconciliation of each to their most
closely comparable IFRS measures, see “Item 3.A. Selected Financial Data.”
Rounding
Certain monetary amounts, percentages, and other figures included in this report have been subject to rounding adjustments. Accordingly, figures shown
as totals in certain tables may not be the arithmetic aggregation of the figures that precede them, and figures expressed as percentages in the text may not total
100% or, as applicable, when aggregated may not be the arithmetic aggregation of the percentages that precede them.
Table of Contents
PART I
Table of Contents
Forward-looking Statements
This report contains estimates and forward-looking statements. All statements other than statements of historical fact are forward-looking statements. The
words “may,” “might,” “will,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,” “intend,” “seek,” “believe,” “estimate,” “predict,” “potential,”
“continue,” “contemplate,” “possible,” and similar words are intended to identify estimates and forward-looking statements.
Our estimates and forward-looking statements are mainly based on our current expectations and estimates of future events and trends, which affect or may
affect our businesses and operations. Although we believe that these estimates and forward-looking statements are based upon reasonable assumptions, they are
subject to numerous risks and uncertainties and are made in light of information currently available to us. Many important factors may adversely affect our results
as indicated in forward-looking statements. These factors include, but are not limited to:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
our ability to attract prospective users and to retain existing users;
competition for users, user listening time, and advertisers;
risks associated with our international expansion and our ability to manage our growth;
our ability to predict, recommend, and play content that our users enjoy;
our ability to effectively monetize our Service;
our ability to generate sufficient revenue to be profitable or to generate positive cash flow and grow on a sustained basis;
risks associated with the expansion of our operations to deliver non-music content, including podcasts, including increased business,
legal, financial, reputational, and competitive risks;
potential disputes or liabilities associated with content made available on our Service;
risks relating to the acquisition, investment, and disposition of companies or technologies;
our dependence upon third-party licenses for most of the content we stream;
our lack of control over the providers of our content and their effect on our access to music and other content;
our ability to comply with the many complex license agreements to which we are a party;
our ability to accurately estimate the amounts payable under our license agreements;
the limitations on our operating flexibility due to the minimum guarantees required under certain of our license agreements;
our ability to obtain accurate and comprehensive information about the compositions embodied in sound recordings in order to obtain
necessary licenses or perform obligations under our existing license agreements;
new copyright legislation and related regulations that may increase the cost and/or difficulty of music licensing;
assertions by third parties of infringement or other violations by us of their intellectual property rights;
our ability to protect our intellectual property;
the dependence of streaming on operating systems, online platforms, hardware, networks, regulations, and standards that we do not
control;
potential breaches of our security systems;
interruptions, delays, or discontinuations in service in our systems or systems of third parties;
changes in laws or regulations affecting us;
risks relating to privacy and data security;
our ability to maintain, protect, and enhance our brand;
payment-related risks;
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•
•
•
•
•
•
•
•
•
our ability to hire and retain key personnel;
our ability to accurately estimate our user metrics and other estimates;
risks associated with manipulation of stream counts and user accounts and unauthorized access to our services;
tax-related risks;
the concentration of voting power among our founders who have and will continue to have substantial control over our business;
risks related to our status as a foreign private issuer;
international, national or local economic, social or political conditions;
risks associated with accounting estimates, currency fluctuations and foreign exchange controls; and
the impact of the COVID-19 pandemic on our business and operations, including any adverse impact on advertising sales or subscriber
revenue.
Other sections of this report describe additional risk factors that could adversely impact our business and financial performance. Moreover, we operate in
an evolving environment. New risk factors and uncertainties emerge from time to time, and it is not possible for our management to predict all risk factors and
uncertainties, nor are we able to assess the impact of all of these risk factors on our business or the extent to which any risk factor, or combination of risk factors,
may cause actual results to differ materially from those contained in any forward-looking statements.
We qualify all of our forward-looking statements by these cautionary statements. See “Item 3.D. Risk Factors.”
You should read this report and the documents that we have filed as exhibits to this report completely and with the understanding that our actual future
results may be materially different from our expectations.
Item 1.Identity of Directors, Senior Management and Advisers
Not applicable.
Item 2.Offer Statistics and Expected Timetable
Not applicable.
Item 3. Key Information
A. Selected Financial Data
Summary of Consolidated Financial and Other Data
The following consolidated financial and other data should be read in conjunction with, and is qualified in its entirety by reference to, the section of this
report entitled “Item 5. Operating and Financial Review and Prospects” and our consolidated financial statements and the notes thereto included elsewhere in this
report.
The consolidated financial and other data for the years ended December 31, 2020, 2019, and 2018 and as of December 31, 2020 and 2019 have been
derived from our audited consolidated financial statements and the notes thereto included elsewhere in this report. We prepared our consolidated financial
statements for the years ended December 31, 2020, 2019, and 2018 in accordance with IFRS as issued by the IASB. Please read Note 2 to the consolidated
financial statements included elsewhere in this report. Our consolidated financial statements and the notes thereto and other data for the years ended December 31,
2017 and 2016 and as of December 31, 2018, 2017, and 2016 are not included elsewhere in this report.
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Our historical results for any prior period are not necessarily indicative of results expected in any future period.
(2)
Consolidated Statement of Operations Data :
Revenue
Cost of revenue
Gross profit
Research and development
Sales and marketing
General and administrative
Operating loss
Finance income
Finance costs
Share in (losses)/earnings of associate
Finance income/(costs) - net
Loss before tax
Income tax (benefit)/expense
Net loss attributable to owners of the parent
(1)
Net loss per share attributable to owners of the
parent
Basic
Diluted
Weighted-average ordinary shares outstanding
Basic
Diluted
(1)
(2)
Consolidated Statement of Cash Flows Data :
Net cash flows from operating activities
Net cash flows used in investing activities
Net cash flows from/(used in) financing activities
Net increase/(decrease) in cash and cash equivalents
Selected Other Data (unaudited):
(3)
Free Cash Flow
(2)
Consolidated Statement of Financial Position Data :
Cash and cash equivalents
Short term investments
Working capital
Total assets
Convertible Notes
Total equity/(deficit) attributable to owners of the parent
2020
7,880
5,865
2,015
837
1,029
442
2,308
(293)
94
(510)
—
(416)
(709)
(128)
(581)
(3.10)
(3.10)
2019
Year ended December 31,
2018
(in € millions, except share and per share data)
2017
6,764
5,042
1,722
615
826
354
1,795
(73)
275
(333)
—
(58)
(131)
55
(186)
(1.03)
(1.03)
5,259
3,906
1,353
493
620
283
1,396
(43)
455
(584)
(1)
(130)
(173)
(95)
(78)
(0.44)
(0.51)
2016
2,952
2,551
401
207
368
175
750
(349)
152
(336)
(2)
(186)
(535)
4
(539)
(3.63)
(3.63)
4,090
3,241
849
396
567
264
1,227
(378)
118
(974)
1
(855)
(1,233)
2
(1,235)
(8.14)
(8.14)
187,583,307
187,583,307
180,960,579
180,960,579
177,154,405
181,210,292
151,668,769
151,668,769
148,368,720
148,368,720
259
(372)
285
172
183
2020
573
(218)
(203)
152
440
2019
344
(22)
92
414
209
179
(435)
34
(222)
109
As of December 31,
2018
(in € millions)
2017
2016
1,065
692
(208)
5,122
—
2,037
891
915
97
4,336
—
2,094
477
1,032
38
3,107
944
238
1,151
596
(534)
6,326
—
2,805
5
101
(827)
916
190
73
755
830
689
2,100
1,106
(240)
Table of Contents
________________________________
(1)
(2)
(3)
See Note 11 to our consolidated financial statements for an explanation of the calculations of our basic and diluted net loss per share attributable to owners of the parent as well as
our basic and diluted weighted-average ordinary shares outstanding.
The 2016 – 2018 results have not been restated for the impact of IFRS 16, Leases, which was adopted on January 1, 2019 using the modified retrospective approach. See Notes 2
and 12 to the consolidated financial statements for further information.
We define “Free Cash Flow” as net cash flows from/(used in) operating activities less capital expenditures and change in restricted cash. We believe Free Cash Flow is a useful
supplemental financial measure for us and investors in assessing our ability to pursue business opportunities and investments and to service our debt. Free Cash Flow is not a
measure of our liquidity under IFRS and should not be considered as an alternative to net cash flows from/(used in) operating activities.
Free Cash Flow is a non-IFRS measure and is not a substitute for IFRS measures in assessing our overall financial performance. Because Free Cash Flow is not a measurement
determined in accordance with IFRS, and is susceptible to varying calculations, it may not be comparable to other similarly titled measures presented by other companies. You
should not consider Free Cash Flow in isolation, or as a substitute for an analysis of our results as reported on our consolidated financial statements appearing elsewhere in this
report.
2020
2019
Year ended December 31,
2018
(in € millions)
2017
2016
259
(78)
2
183
573
(135)
2
440
344
(125)
(10)
209
179
(36)
(34)
109
101
(27)
(1)
73
Free Cash Flow:
Net cash flows from operating activities
Capital expenditures
Change in restricted cash
Free Cash Flow
B. Capitalization and Indebtedness.
Not applicable.
C. Reasons for the Offer and Use of Proceeds.
Not applicable.
D. Risk Factors
An investment in our ordinary shares involves a high degree of risk. You should carefully read and consider the following risks, along with the other
information included in this Annual Report on Form 20-F. The risks described below may not be the only ones we face. If any of the risks actually occur, our
business, results of operations, financial condition, and cash flow could be materially impaired. The trading price of our ordinary shares could decline due to any of
these risks, and you could lose all or part of your investment. The risks described below are organized by risk type and are not listed in order of their priority to us.
Summary Risk Factors
Risks Related to Our Business Model, Strategy, and Performance
• We face significant competition and we might not be successful at attracting and retaining users, including predicting, recommending, and playing content
that our users enjoy.
• We face many risks associated with our growth and our international expansion, including attracting, retaining and motivating qualified personnel and
•
obtaining rights to stream content on favorable terms.
Our business emphasizes rapid innovation and prioritizes long-term user engagement over short-term results. That strategy may not align with the
market’s expectations.
• We may not be able to effectively monetize our Service on mobile and other connected devices.
• We may not be able to generate sufficient revenue to be profitable, or to generate positive cash flow on a sustained basis. In addition, our revenue growth
•
•
rate may decline.
Any failure to convince advertisers of the benefits of advertising on our Service in the future could harm our business, operating results, and financial
condition.
Emerging industry trends in digital advertising may pose challenges for our ability to forecast or optimize our advertising inventory, which may adversely
impact our Ad-Supported revenue.
• We may be subject to disputes or liabilities associated with our content, and our expansion into non-music content also subjects us to increased risks.
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•
•
Our continued interest in acquisition or investment could divert management’s attention and disrupt our operations. We may fail to complete strategic
acquisitions or investments.
Any adverse change to, loss of, or claim that we do not hold any necessary third-party licenses may materially adversely affect our business, operating
results, and financial condition.
The concentration of control of content by our major providers means they may unilaterally affect our access to music and other content.
•
• We are a party to many license agreements that are complex and with numerous obligations, including a complex royalty payment scheme, and a breach
of such agreements could adversely affect our business, operating results and financial condition.
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• Minimum guarantees under certain license agreements may limit our operating flexibility.
•
Difficulties in identifying the compositions in our sound recordings and the ownership thereof may impact our ability to perform our obligations under our
licenses.
Assertions of infringement or other violation by us of third-party intellectual property rights, or failure to protect our own intellectual property, could
harm our business.
The limitations on our ability to access online platforms, operating systems, hardware, or networks may seriously harm our business.
Our Service and software may contain undetected software bugs or vulnerabilities.
Interruptions, delays, or discontinuations in service arising from our own systems or from third parties, such as Google Cloud Platform, could impair the
delivery of our Service.
Our business is subject to complex and evolving laws and regulations, including laws and regulations related to copyright, privacy and data security,
which may increase the costs and/or difficulty of music licensing, pose the threat of lawsuits, regulatory fines and other liabilities.
Other risks such as failure to protect our brand, payments-related risks, fluctuation of our operating results, failure to implement and maintain effective
internal control over financial reporting, lack of additional capital to support our growth, global public health crisis such as COVID-19, changes of
worldwide economic conditions and significant fluctuations of exchange rates, may adversely affect our business, operating results, and financial
condition.
Risks Related to Our Metrics
•
Our user metrics and other estimates are subject to inherent challenges in measurement, and real or perceived inaccuracies may harm and negatively affect
our reputation and our business.
• We are at risk of artificial manipulation of stream counts, and manipulation or exploitation of our software to gain or provide unauthorized access to
certain features of our Service, and failure to effectively prevent and remediate such attempts could undermine investor confidence in the integrity of our
key performance indicators.
Risks Related to Tax
• We face complex taxation regimes in various jurisdictions. Audits, investigations, tax proceedings and changes to tax laws, including new proposals on
taxing digital companies, in any of the jurisdictions we operate, could have a material adverse effect on our business, operating results, and financial
condition.
• We may not be able to utilize all, or any, of our net operating loss carry-forwards.
•
The social costs we accrue for share-based compensation may fluctuate unpredictably and significantly with the trading price of our ordinary shares,
which could adversely impact our financial performance.
• We may be classified as a passive foreign investment company, which could result in adverse U.S. federal income tax consequences to U.S. Holders of
•
our ordinary shares.
If a United States person is treated as owning at least 10% of our ordinary shares, such holder may be subject to adverse U.S. federal income tax
consequences.
Risks Related to Owning Our Ordinary Shares and Our Status as a Foreign Private Issuer
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•
•
Our founders have substantial control over our business, and sales of substantial amounts of our ordinary shares by our founders could reduce the price of
our ordinary shares.
If securities or industry analysts publish inaccurate or unfavorable research about our business or cease covering our business, our share price and trading
volume could decline.
The requirements of being a public company may strain our resources and divert management’s attention.
Provisions in our articles of association, the issuance of beneficiary certificates, and the existence of certain voting agreements may delay or prevent our
acquisition by a third party.
• We do not expect to pay cash dividends in the foreseeable future.
•
The issuance of beneficiary certificates to certain shareholders will limit your voting power and your ability to influence our corporate governance.
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•
As a foreign private issuer, we are exempt from a number of U.S. securities laws and rules promulgated thereunder and the rights of our shareholders may
differ from those of shareholders of a U.S. corporation.
• We are organized under the laws of Luxembourg and a substantial amount of our assets are not located in the United States. It may be difficult for you to
•
obtain or enforce judgments or bring original actions against us or the members of our board of directors in the United States.
Luxembourg and European insolvency and bankruptcy laws are substantially different from U.S. insolvency laws and may offer our shareholders less
protection than U.S. insolvency and bankruptcy law.
Risks Related to Our Business Model, Strategy, and Performance
If our efforts to attract prospective users and to retain existing users are not successful, our growth prospects and revenue will be adversely affected.
Our ability to grow our business and generate revenue depends on retaining, expanding, and effectively monetizing our total user base, including by
increasing advertising revenue on our ad-supported service (“Ad-Supported Service”), increasing the number of subscribers to our premium service (“Premium
Service”, and together with the Ad-Supported Service, the “Service”), and finding ways to monetize content across the Service. We must convince prospective
users of the benefits of our Service and our existing users of the continuing value of our Service. Our ability to attract new users, retain existing users, and convert
users of our Ad-Supported Service (“Ad-Supported Users”) to subscribers to our Premium Service (“Premium Subscribers”) depends in large part on our ability to
continue to offer leading technologies and products, compelling content, superior functionality, and an engaging user experience. Some of our competitors,
including Apple, Amazon, and Google, have developed, and are continuing to develop, devices for which their audio streaming services are preloaded or may also
be set as the default providers, which puts us at a significant competitive disadvantage. As consumer tastes and preferences change on the internet and with mobile
devices and other internet-connected products, we will need to enhance and improve our existing Service, introduce new services and features, and maintain our
competitive position with additional technological advances and an adaptable platform. If we fail to keep pace with technological advances or fail to offer
compelling product offerings and state-of-the-art delivery platforms to meet consumer demands, our ability to grow or sustain the reach of our Service, attract and
retain users, and increase our Premium Subscriber base may be adversely affected.
In addition, in order to increase our advertising revenue, we also seek to increase the listening time that our Ad-Supported Users spend on our Ad-Supported
Service and find new opportunities to deliver advertising to users on the Service, such as through podcasts and other opportunities relating to content promotion to
users. The more content users stream on our Service, the more advertising inventory we generally have to sell. Further, growth in our user base increases the size
and scope of user pools targeted by advertisers, which improves our ability to deliver relevant advertising to those users in a manner that maximizes our advertising
customers’ return on investment and that ultimately allows us to better demonstrate the effectiveness of our advertising solutions and justifies a pricing structure
that is advantageous for us. If we fail to grow our user base, the amount of content streamed, and the listening time that our users spend on our Ad-Supported
Service or on podcasts, we may be unable to grow Ad-Supported revenue. Moreover, given that Premium Subscribers are sourced primarily from the conversion of
our Ad-Supported Users to Premium Subscribers, any failure to grow our Ad-Supported User base or convert Ad-Supported Users to Premium Subscribers may
negatively impact our revenue.
In order to increase our Ad-Supported Users and our Premium Subscribers, we will need to address a number of challenges, including:
providing users with a consistently high-quality and user-friendly experience;
continuing to curate a catalog of content that consumers want to engage with on our Service;
continuing to innovate and keep pace with changes in technology and our competitors; and
•
•
•
• maintaining and building our relationships with the makers of consumer products such as mobile devices.
Failure to overcome any one of these challenges could have a material adverse effect on our business, operating results, and financial condition.
We face and will continue to face significant competition for users, user listening time, and advertisers.
We compete for the time and attention of our users with other content providers on the basis of a number of factors, including quality of experience,
relevance, diversity of content, ease of use, price, accessibility, perception of advertising load, brand awareness, reputation, and presence and visibility of our
website and our Spotify application. Our competitors include providers of streamed and on-demand music and podcasts as well as internet radio, terrestrial radio,
and satellite radio. See “Item 4.B. Business Overview—Competition” for a description of certain services that compete with us.
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Our current and future competitors may have higher brand recognition, more established relationships with content licensors and mobile device
manufacturers, greater financial, technical, and other resources, more sophisticated technologies, and/or more experience in the markets in which we compete. Our
current and future competitors may also engage in mergers or acquisitions with each other, as SiriusXM and Pandora, or Amazon Music and Wondery, have done,
to combine and leverage their audiences, content, and capabilities. Our current and future competitors may innovate new features or introduce new ways of
consuming or engaging with content that cause our users, especially the younger demographic, to switch to another product, which would negatively affect our user
retention, growth, and engagement. Some of our larger competitors, such as Apple and Amazon, have substantially broader product offerings and offer bundled or
integrated products and services to leverage their relationships based on other products in their ecosystem to gain subscribers, which could discourage users from
subscribing to our Service. Apple, Amazon, and Google also own application store platforms and are charging in-application purchase fees, which may not be
levied on their own applications, likely creating a competitive advantage for themselves against us. If other competitors that own application store platforms and
competitive services adopt similar practices, we may be similarly impacted. As the market for on-demand audio on the internet and mobile and connected devices
increases, new competitors, business models, and solutions are likely to emerge. We believe that companies with a combination of technical expertise, brand
recognition, financial resources, and digital media experience pose a significant threat of developing competing on-demand audio distribution technologies.
We also compete for users based on our presence and visibility as compared with other businesses and platforms that deliver audio content through the
internet and connected devices. We face significant competition for users from companies promoting their own digital audio content online or through application
stores, including several large, well-funded, and seasoned participants in the digital media market. Device application stores often offer users the ability to browse
applications by various criteria, such as the number of downloads in a given time period, the length of time since an application was released or updated, or the
category in which the application is placed. The websites and applications of our competitors may rank higher than our website and our Spotify application, and
our application may be difficult to locate in device application stores, which could draw potential users away from our Service and toward those of our
competitors. In addition, some of our competitors, including Apple, Amazon, and Google, have developed, and are continuing to develop, devices for which their
music and/or podcast streaming service is preloaded and/or able to be used out-of-the-box without the need to log in, creating a visibility and access advantage. If
we are unable to compete successfully for users against other digital media providers by maintaining and increasing our presence, ease of use, and visibility online,
on devices, and in application stores, our number of Premium Subscribers, Ad-Supported Users, and the amount of content streamed on our Service may fail to
increase or may decline and our subscription fees and advertising sales may suffer. See “—If our efforts to attract prospective users and to retain existing users are
not successful, our growth prospects and revenue will be adversely affected.”
We compete for a share of advertisers’ overall marketing budgets with other content providers on a variety of factors, including perceived return on
investment, effectiveness and relevance of our advertising products, pricing structure, and ability to deliver large volumes or precise types of advertisements to
targeted user demographic pools. We also compete for advertisers with a range of internet companies, including major internet portals, search engine companies,
social media sites, and mobile applications, as well as traditional advertising channels such as terrestrial radio and television.
Large internet companies with strong brand recognition, such as Facebook, Google, Amazon, and Twitter, have significant numbers of sales personnel,
substantial advertising inventory, proprietary advertising technology solutions, and traffic across web, mobile, and connected devices that provide a significant
competitive advantage and have a significant impact on pricing for reaching these user bases. Failure to compete successfully against our current or future
competitors could result in the loss of current or potential advertisers, a reduced share of our advertisers’ overall marketing budget, the loss of existing or potential
users, or diminished brand strength, which could adversely affect our pricing and margins, lower our revenue, increase our research and development and
marketing expenses, and prevent us from achieving or maintaining profitability.
We face many risks associated with our international expansion, including difficulties obtaining rights to stream content on favorable terms.
We are continuing to expand our operations into additional international markets. However, offering our Service in a new geographical area involves
numerous risks and challenges. For example, the licensing terms offered by rights organizations and individual copyright owners in countries around the world are
currently expensive. Addressing licensing structure and royalty rate issues in any new geographic market requires us to make very substantial investments of time,
capital, and other resources, and our business could fail if such investments do not succeed. There can be no assurance that we will succeed or achieve any return
on these investments.
In addition to the above, continued expansion around the world exposes us to other risks such as:
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lack of well-functioning copyright collective management organizations that are able to grant us music licenses, process reports, and distribute royalties in
markets;
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fragmentation of rights ownership in various markets causing lack of transparency of rights coverage and overpayment or underpayment to record labels,
music publishers, artists, performing rights organizations, and other copyright owners;
difficulties in obtaining license rights to local content;
increased risk of disputes with and/or lawsuits filed by rights holders in connection with our expansion into new markets (see “Item 8.A. Consolidated
Statements and Other Financial Information—Legal or Arbitration Proceedings”);
difficulties in achieving market acceptance of our Service in different geographic markets with different tastes and interests;
difficulties in achieving viral marketing growth in certain other countries where we commit fewer sales and marketing resources;
difficulties in managing operations due to language barriers, distance, staffing, user behavior and spending capability, cultural differences, business
infrastructure constraints, and laws regulating corporations that operate internationally;
application of different laws and regulations of other jurisdictions, including privacy, censorship, and liability standards and regulations, as well as
intellectual property laws;
potential adverse tax consequences associated with foreign operations and revenue;
complex foreign exchange fluctuation and associated issues;
increased competition from local websites and audio content providers, some with financial power and resources to undercut the market or enter into
exclusive deals with local content providers to decrease competition;
credit risk and higher levels of payment fraud;
political and economic instability in some countries;
region-specific effects of the COVID-19 pandemic;
compliance with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and similar laws in other jurisdictions;
export controls and economic sanctions administered by the U.S. Department of Commerce’s Bureau of Industry and Security and the U.S. Department of
the Treasury’s Office of Foreign Assets Control;
restrictions on international monetary flows; and
reduced or ineffective protection of our intellectual property rights in some countries.
As a result of these obstacles, we may find it impossible or prohibitively expensive to enter additional markets, or entry into foreign markets could be
delayed, which could hinder our ability to grow our business.
If we fail to effectively manage our growth, our business, operating results, and financial condition may suffer.
Our rapid growth has placed, and will continue to place, significant demands on our management and our operational and financial infrastructure. In order to
attain and maintain profitability, we will need to recruit, integrate, and retain skilled and experienced personnel who can demonstrate our value proposition to
users, advertisers, and business partners and who can increase the monetization of the music and podcasts streamed on our Service, particularly on mobile devices.
Continued growth could also strain our ability to maintain reliable service levels for our users, effectively monetize the music and podcasts streamed, develop and
improve our operational and financial controls, and recruit, train, and retain highly skilled personnel. If our systems do not evolve to meet the increased demands
placed on us by an increasing number of advertisers, we also may be unable to meet our obligations under advertising agreements with respect to the delivery of
advertising or other performance obligations. As our operations grow in size, scope, and complexity, we will need to improve and upgrade our systems and
infrastructure, which will require significant expenditures and allocation of valuable technical and management resources. If we fail to maintain efficiency and
allocate limited resources effectively in our organization as it grows, our business, operating results, and financial condition may suffer.
We have experienced rapid growth rates in both the number of active users of our Service and revenue over the last few years. As we grow larger and
increase our user base and usage, we expect it will become increasingly difficult to maintain the rate of growth we currently experience.
Our business emphasizes rapid innovation and prioritizes long-term user engagement over short-term financial condition or results of operations. That
strategy may yield results that sometimes do not align with the market’s expectations. If that happens, our stock price may be negatively affected.
Our business is growing and becoming more complex, and our success depends on our ability to quickly develop and launch new and innovative products.
We believe our culture fosters this goal. Our focus on complexity and quick reactions could result in unintended outcomes or decisions that are poorly received by
our users, advertisers, or partners. We have made, and expect to continue to make, significant investments to develop and launch new products, services, and
initiatives, which may involve significant risks and uncertainties, including the fact that such offerings may not be commercially viable for an indefinite period of
time or at all, or may not result in adequate return of capital on our investments. No assurance can be given that such new offerings will be successful and will not
adversely affect our reputation, operating results, and financial
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condition. Our culture also prioritizes our long-term user engagement over short-term financial condition or results of operations. We frequently make decisions
that may reduce our short-term revenue or profitability if we believe that the decisions benefit the aggregate user experience and will thereby improve our financial
performance over the long term. These decisions may not produce the long-term benefits that we expect, in which case our user growth and engagement, our
relationships with advertisers and partners, as well as our business, operating results, and financial condition could be seriously harmed.
If we fail to accurately predict, recommend, and play content that our users enjoy, we may fail to retain existing users and attract new users in sufficient
numbers to meet investor expectations for growth or to operate our business profitably.
We believe that a key differentiating factor between Spotify and other audio content providers is our ability to predict music or podcasts that our users will
enjoy. Our system for predicting user preferences and selecting content tailored to our users’ individual tastes is based on advanced data analytics systems and our
proprietary algorithms. We have invested, and will continue to invest, significant resources in refining these technologies; however, we cannot assure you that such
investments will yield an attractive return or that such refinements will be effective. The effectiveness of our ability to predict user preferences and select content
tailored to our users’ individual tastes depends in part on our ability to gather and effectively analyze large amounts of user data. In addition, our ability to offer
users content that they have not previously heard and impart a sense of discovery depends on our ability to acquire and appropriately categorize additional content
that will appeal to our users’ diverse and changing tastes. While we have a large catalog of music and podcasts available to stream, we must continuously identify
and analyze additional content that our users will enjoy and we may not effectively do so. Our ability to predict and select content that our users enjoy is critical to
the perceived value of our Service among users and failure to make accurate predictions could materially adversely affect our ability to adequately attract and
retain users, increase content hours consumed, and sell advertising to meet investor expectations for growth or to operate the business profitably.
If we are unable to effectively monetize our Service on mobile and other connected devices, our results of operations may be materially adversely
affected.
Our business model with respect to monetization of our Service on mobile and other connected devices is still evolving. As users migrate away from
personal computers, there is increasing pressure to monetize mobile and other connected devices, including cars and in-home devices. We offer our Ad-Supported
Service on mobile, from which we generate advertising revenue. However, to date, we primarily rely on our Premium Service to generate revenue on mobile and
other connected devices. If we are unable to effectively monetize our Service on mobile and other connected devices, our business, operating results, and financial
condition may suffer.
We have incurred significant operating losses in the past, and we may not be able to generate sufficient revenue to be profitable, or to generate positive
cash flow on a sustained basis. In addition, our revenue growth rate may decline.
Since our inception in April 2006, we have incurred significant operating losses and, as of December 31, 2020, had an accumulated deficit of €3,290 million.
For the years ended December 31, 2020, 2019, and 2018, our operating losses were €293 million, €73 million, and €43 million, respectively. We have incurred
significant costs to license content and continue to pay royalties to record labels, publishers, and other copyright owners for such content. If we cannot successfully
earn revenue at a rate that exceeds the operational costs, including royalty expenses, associated with our Service, we will not be able to achieve or sustain
profitability or generate positive cash flow on a sustained basis.
Furthermore, we cannot assure you that the growth in revenue we have experienced over the past few years will continue at the same rate or even continue to
grow at all. We expect that, in the future, our revenue growth rate may decline because of a variety of factors, including increased competition and the maturation
of our business. You should not consider our historical revenue growth or operating expenses as indicative of our future performance. If our revenue growth rate
declines or our operating expenses exceed our expectations, our financial performance may be adversely affected.
Additionally, we also expect our costs to increase in future periods, which could negatively affect our future operating results and ability to achieve
profitability. We expect to continue to expend substantial financial and other resources on:
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securing top quality audio and video content from leading record labels, distributors, and aggregators, as well as the publishing right to any underlying
musical compositions;
creating new forms of original content;
our technology infrastructure, including website architecture, development tools, scalability, availability, performance, security, and disaster recovery
measures;
research and development, including investments in our research and development team and the development of new features;
sales and marketing, including a significant expansion of our field sales organization;
international expansion in an effort to increase our member base, engagement, and sales;
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capital expenditures, including costs related to our facilities, that we will incur to grow our operations and remain competitive; and
general administration, including legal and accounting expenses.
These investments may not result in increased revenue or growth in our business. If we fail to continue to grow our revenue and overall business, our
business, operating results, and financial condition would be harmed.
We rely on advertising revenue to monetize our Service, and any failure to convince advertisers of the benefits of advertising on our Service in the future
could harm our business, operating results, and financial condition.
Our ability to attract and retain advertisers, and ultimately to generate advertising revenue, depends on a number of factors, including:
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increasing the number of hours our Ad-Supported Users spend listening to audio or otherwise engaging with content on our Ad-Supported Service and the
number of Ad-Supported Users;
increasing the number of hours our users spend listening to podcasts and the number of our users listening to podcasts;
keeping pace with changes in technology and our competitors;
competing effectively for advertising dollars with other online and mobile marketing and media companies;
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• maintaining and growing our relationships with marketers, agencies, and other demand sources who purchase advertising inventory from us;
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continued impact from the COVID-19 pandemic on marketers;
implementing and maintaining an effective infrastructure for order management; and
continuing to develop and diversify our advertising platform and offerings, which currently include delivery of advertising products through multiple
delivery channels, including traditional computers, mobile, and other connected devices, and multiple content types, including podcasts.
We may not succeed in capturing a greater share of our advertisers’ core marketing budgets, particularly if we are unable to achieve the scale, reach,
products, and market penetration necessary to demonstrate the effectiveness of our advertising solutions, or if our advertising model proves ineffective or not
competitive when compared to other alternatives and platforms through which advertisers choose to invest their budgets.
Failure to grow the Ad-Supported User base and to effectively demonstrate the value of our Ad-Supported Service and other similar offerings on the Service
to advertisers could result in loss of, or reduced spending by, existing or potential future advertisers, which would materially harm our business, operating results,
and financial condition. In addition, macroeconomic conditions may affect advertisers’ spending. For example, we have experienced a decline in Ad-Supported
revenue growth as a result of headwinds to our advertising business during the COVID-19 pandemic, which, given the market uncertainty, could continue and
adversely affect our business, operating results, and financial condition.
Selling advertisements requires that we demonstrate to advertisers that our offerings on the Service are effective. For example, we need to show that our
Service has substantial reach and engagement by relevant demographic audiences. Some of our demographic data may be incomplete or inaccurate. For example,
because our users self-report their personal data, which may include their genders and dates of birth, the personal data we have may differ from our users’ actual
genders and ages. If our users provide us with incorrect or incomplete information regarding their personal data, such as genders, age, or other attributes we use to
target advertisements to users, or the data are otherwise not available to us, then we may fail to target the correct demographic with our advertising. In addition,
changes to operating systems' practices and policies, such as Apple's iOS updates that may impose new requirements in order to track users or otherwise access
Apple's Identifiers for Advertisers (“IDFA”), may reduce the quantity and quality of the data and metrics that can be collected or used by us and our partners.
These limitations may also adversely affect our and our advertisers' ability to target advertisements and measure their performance, which could reduce the demand
and pricing for our advertising products and harm our business. Advertisers often rely on third parties to quantify the reach and effectiveness of our ad products.
These third-party measurement services may not reflect our true audience or the performance of our ad products, and their underlying methodologies are subject to
change at any time. In addition, the methodologies we apply to measure the key performance indicators that we use to monitor and manage our business may differ
from the methodologies used by third-party measurement service providers, who may not integrate effectively with our Service. Measurement technologies for
mobile devices may be even less reliable in quantifying the reach and usage of our Service, and it is not clear whether such technologies will integrate with our
systems or uniformly and comprehensively reflect the reach, usage, or overall audience composition of our Service. If such third-party measurement providers
report lower metrics than we do, there is wide variance among reported metrics, or we cannot adequately integrate with such services that advertisers require, our
ability to convince advertisers of the benefits of our Service could be adversely affected. See “—Our user metrics and other estimates are subject to inherent
challenges in measurement, and real or perceived inaccuracies in those metrics may seriously harm and negatively affect our reputation and our business.”
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Emerging industry trends in digital advertising may pose challenges for our ability to forecast or optimize our advertising inventory, which may adversely
impact our Ad-Supported revenue.
The digital advertising industry is introducing new ways to measure and price advertising inventory. In the absence of a uniform industry standard, agencies,
advertisers, and other third parties have adopted several different measurement methodologies and standards. In addition, measurement services may require
technological integrations, which are still being evaluated by the advertising industry without an agreed-upon industry standard metric. Other advertisers will
measure the effectiveness of their advertising campaigns based on our ability to serve their ads to audiences that match their demographic data benchmarks, and
our ability to meet the requirements of these third party measurement providers may be impacted when we do not have accurate or complete user data. As these
trends in the industry continue to evolve, our advertising revenue may be adversely affected by the availability, accuracy, and utility of analytics and measurement
technologies as well as our ability to successfully implement and operationalize such technologies and standards. For example, we have introduced Streaming Ad
Insertion ("SAI") technology to improve our targeting and measurement capabilities for podcast advertising that rely on our streaming capabilities instead of using
downloads as a proxy. However, the impact of the shift in measurement from downloads to real impressions on our advertising revenue is uncertain, as well as its
acceptance by our advertising partners or our ability to scale this technology successfully.
Further, the digital advertising industry is shifting to data-driven technologies and advertising products, such as automated buying. These data-driven
advertising products and automated buying technologies allow publishers and advertisers to use data to target advertising toward specific groups of users who are
more likely to be interested in the advertising message delivered to them. These advertising products and programmatic technologies may not integrate with our
Service, especially our desktop software version, as they are currently more technologically developed and more widely adopted by the advertising industry on the
web than they are on mobile or on other software applications. Because the majority of our Ad-Supported User hours and podcast consumption occur on mobile
devices, if we are unable to deploy effective solutions to monetize the mobile device usage by our Ad-Supported User base, our ability to attract advertising spend,
and ultimately our advertising revenue, may be adversely affected by this shift. In addition, we rely on third-party advertising technology platforms to participate in
automated buying, and if these platforms cease to operate or experience instability in their business models, it also may adversely affect our ability to capture
advertising spend. The evolution of privacy laws, including the GDPR, CCPA, CPRA, the ePrivacy Regulation (which is still in draft form), and LGPD (each as
defined below), may also impact the way we generate revenue from advertising.
Expansion of our operations to deliver non-music content, including podcasts, subjects us to increased business, legal, financial, reputational, and
competitive risks.
Expansion of our operations to deliver non-music content involves numerous risks and challenges, including increased capital requirements, new
competitors, and the need to develop new strategic relationships. Growth in these areas may require additional changes to our existing business model and cost
structure, modifications to our infrastructure, and exposure to new regulatory, legal and reputational risks, including infringement liability, any of which may
require additional expertise that we currently do not have. See “—We may be subject to disputes or liabilities associated with content made available on our
Service.” There is no guarantee that we will be able to generate sufficient revenue from podcasts or other non-music content to offset the costs of creating or
acquiring this content. Failure to successfully monetize and generate revenues from such content, including failure to obtain or retain rights to podcasts or other
non-music content on acceptable terms, or at all, or to effectively manage the numerous risks and challenges associated with such expansion, could adversely affect
our business, operating results, and financial condition.
In addition, we enter into multi-year commitments for original content that we produce or commission. Given the multiple-year duration and largely fixed
cost nature of such commitments, if our user growth and retention do not meet our expectations, our margins may be adversely impacted. Payment terms for certain
content that we produce or commission will typically require more upfront cash payments than other content licenses or arrangements whereby we do not pay for
the production of such content. To the extent our user and/or revenue growth do not meet our expectations, our liquidity and results of operations could be
adversely affected as a result of such content commitments. The long-term and fixed cost nature of certain original content commitments may also limit our
flexibility in planning for or reacting to changes in our business, as well as our ability to adjust our content offering if our users do not react favorably to the
content we produce. Any such event could adversely impact our business, operating results, and financial condition.
We may be subject to disputes or liabilities associated with content made available on our Service.
We provide various services and products that enable artists, podcasters, and other creators or users to make content available on our Service. For example,
creators or users can record and distribute podcasts using Anchor and can upload cover art and profile images. These may subject us to heightened risk of claims of
intellectual property infringement by third parties if such creators do not obtain the appropriate authorizations from rights holders. We are dependent on those who
provide content
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on our Service complying with the terms and conditions of any license agreements with us as well as our Terms and Conditions of Use, which prohibit providing
content that infringes the intellectual property or proprietary rights of third parties or is otherwise legally actionable pursuant to privacy and/or publicity rights.
However, we cannot guarantee that the creators and users who provide content on our Service will comply with their obligations, and any failure of creators and
users to do so may materially impact our business, operating results, and financial condition. In addition, while we may avail ourselves of various legal safe
harbors related to third-party content, we cannot be certain that courts will always agree that these safe harbors apply. We also face a risk that the laws related to
these safe harbors or the removal of content could change. Changes in any such laws that shield us from liability could materially harm our business, operating
results, and financial condition. See “Risk Related to Our Operations—Our business is subject to complex and evolving laws and regulations around the world.
Many of these laws and regulations are subject to change and uncertain interpretation, and could result in claims, changes to our business practices, monetary
penalties, increased cost of operations, or otherwise harm our business.”
We also cannot guarantee the integrity of the content third parties make available on our Service, which may adversely affect our reputation and our
business. Given the large volume of content that various third parties, including record labels, distributors, aggregators, podcasters, and our users, make available
on our platform, it is challenging for us to accurately verify the legitimacy of such content, including their copyright status and whether such content implicates the
legal rights of third parties, or review and moderate such content to ensure that it is otherwise in compliance with our policies. If we fail to build and maintain an
effective system to moderate the content on our platform, our users may lose trust in us, our reputation may be impaired and our business may be adversely
affected. See “Risks Related to Our Operations—Our business depends on a strong brand, and any failure to maintain, protect, and enhance our brand could harm
our business.”
We have acquired and invested in, and may continue to acquire or invest in, other companies or technologies, which could divert management’s
attention and otherwise disrupt our operations and harm our operating results. We may fail to acquire or invest in companies whose market power or
technology could be important to the future success of our business.
We have recently acquired and invested in, and may in the future seek to acquire or invest in, other companies or technologies that we believe could
complement or expand our Service, enhance our technical capabilities or content offerings, or otherwise offer growth opportunities. Pursuit of future potential
acquisitions or investments may divert the attention of management and cause us to incur various expenses in identifying, investigating, and pursuing suitable
opportunities, whether or not they are consummated. In addition, we may be unsuccessful in integrating our recently acquired businesses or any additional business
we may acquire in the future, and we may fail to acquire companies whose market power or technology could be important to the future success of our business.
We also may not achieve the anticipated benefits from any acquisition or investment due to a number of factors, including:
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unanticipated costs or liabilities associated with the acquisition or investment, including costs or liabilities arising from the acquired companies’ failure to
comply with intellectual property laws and licensing obligations they are subject to;
incurrence of acquisition- or investment-related costs;
diversion of management’s attention from other business concerns;
regulatory uncertainties;
risks related to integrating the acquired company’s various systems and processes and ensuring compliance with applicable requirements, including those
with respect to privacy, data security, or credit card processing;
implementation or improvement of controls, procedures, and policies at the acquired company;
harm to our existing business relationships with business partners and advertisers as a result of the acquisition or investment;
harm to our brand and reputation;
the potential loss of key employees;
work stoppages associated with labor disputes;
use of resources that are needed in other parts of our business; and
use of substantial portions of our available cash to consummate the acquisition or investment.
If we acquire or invest in other companies, these acquisitions or investments may reduce our operating margins for the foreseeable future. In addition, a
significant portion of the purchase price of companies we acquire may be allocated to acquired goodwill, which must be assessed for impairment at least annually.
The market value of our investments may also fluctuate due to volatility in the share price used to measure the investment. For example, the majority of our long
term investments relates to Tencent Music Entertainment (“TME”). The value of these securities is subject to the risks associated with TME’s business, as well as
any changes by the Chinese government in foreign investment laws or elevated scrutiny or regulation of foreign investments in Chinese companies. See “Item 11.
Quantitative and Qualitative Disclosures About Market Risk—Investment Risk” for additional discussion of the risk relating to our long term investment in TME.
In the future, if our acquisitions or investments do not yield expected returns, we may be required to take charges to our operating results based on this impairment
assessment process. Acquisitions or investments could also result in dilutive issuances of equity securities or the incurrence of
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debt, which could adversely affect our operating results. In addition, if a business we acquire or invest in fails to meet our expectations, our business, operating
results, and financial condition may suffer.
We have also entered into, and may in the future enter into, additional, strategic alliances with certain partners that we believe will help advance the success
of our business. Such partnerships may divert management focus and resources from other aspects of our business, it may take longer than expected for them to
produce the expected benefits, they may subject us to additional and unknown licensing or regulatory requirements across different jurisdictions, and they on
occasion fail to produce all of the expected benefits. The success of these partnerships will depend in part on our ability to leverage them to enhance our Service
and other products, or to develop new services and products, and we may not be successful in doing so. Any adverse results related to our strategic partnerships
could negatively impact our business, operating results, and financial condition.
The COVID-19 pandemic has had, and could continue to have, an adverse impact on our business, operating results, and financial condition.
The COVID-19 pandemic has created significant volatility, uncertainty, and economic disruption. The full extent to which the COVID-19 pandemic will
continue to impact our business, financial condition, and results of operations will depend on numerous evolving factors that we may not be able to accurately
predict and that will vary by market, including the duration and scope of the pandemic, the impact of the pandemic on economic activity, and actions taken by
governments, businesses, and individuals in response. The economic disruption caused by the COVID-19 pandemic has adversely affected, and could continue to
adversely affect, the levels of advertising spending and consumer spending on discretionary items, which in turn adversely affect our ad sales and Subscriber
revenue. Limitations on travel, “stay at home” orders, social distancing requirements, and other governmental actions implemented in response to COVID-19 led to
changes as to how our users consume music and podcasts, and, although we have seen some return to pre-COVID-19 levels in our users’ engagement with our
Service, any failure to predict or address changes in our users’ engagement with our Service arising from the COVID-19 pandemic could adversely affect our
business. As a result of the COVID-19 pandemic, podcasters and other creators or users may experience delays or interruptions in their ability to create and provide
content on our platform, and a decrease in the amount or quality of content available on our Service could adversely affect user engagement and harm our business.
An extended period of remote working by our employees could introduce or heighten operational challenges, including our ability to launch new products and
services or expand our Service to additional geographic markets. Any such effect could cause or contribute to the risks and uncertainties enumerated in this report
and could materially adversely affect our business, operating results, and financial condition.
Risks Related to Securing the Rights to the Content We Stream
We depend upon third-party licenses for most of the content we stream and an adverse change to, loss of, or claim that we do not hold any necessary
licenses may materially adversely affect our business, operating results, and financial condition.
To secure the rights to stream content, we enter into license agreements to obtain licenses from rights holders, such as record labels, aggregators, artists,
music publishers, performing rights organizations, collecting societies, podcasters, podcast networks, and other audio/video content creators, copyright owners or
their agents, or obtain licenses via government-provided statutory or compulsory licenses, and pay royalties or other consideration to such parties or their agents
around the world. We cannot guarantee that our efforts to obtain all necessary licenses to stream content will be successful, nor that the licenses available to us now
will continue to be available in the future at rates and on terms that are favorable or commercially reasonable or at all. The terms of these licenses, including the
royalty rates that we are required to pay pursuant to them, may change as a result of changes in our bargaining power, the industry, laws and regulations, or for
other reasons. Increases in royalty rates or changes to other terms of these licenses may materially impact our business, operating results, and financial condition.
For example, if we fail to obtain licenses to stream sound recordings from major record labels; if the rates we pay for mechanical licenses that are set by the
Copyright Royalty Board increase our royalty costs; if we are unable to obtain blanket licenses for public performance rights on reasonable terms; if our licenses
with collecting societies and our direct licenses with publishers outside of the U.S. do not provide full coverage for all of the musical compositions we make
available to our users; for podcasts and other non-music content, if rights holders or content providers do not comply with the terms and conditions of our license
agreements as well as the Spotify Terms and Conditions of Use, our business, operating results and financial condition could be materially harmed.
There is also no guarantee that we have all of the licenses we need to stream content, as the process of obtaining such licenses involves many rights holders,
some of whom are unknown, and myriad complex legal issues across many jurisdictions, including open questions of law as to when and whether particular
licenses are needed. Additionally, rights holders, creators, performers, writers and their agents, or societies, unions, guilds, or legislative or regulatory bodies have
created and may
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continue to create or attempt to create new rights or regulations that could require us to enter into license agreements with, and pay royalties to, newly defined
groups of rights holders, some of which may be difficult or impossible to identify. See also “—Difficulties in obtaining accurate and comprehensive information
necessary to identify the compositions embodied in sound recordings on our Service and the ownership thereof may impact our ability to perform our obligations
under our licenses, affect the size of our catalog, impact our ability to control content acquisition costs, and lead to potential copyright infringement claims.”
Even when we are able to enter into license agreements with rights holders, we cannot guarantee that such agreements will continue to be renewed
indefinitely. To the extent we make content available based on brief extensions of license agreements or provisional licenses and/or continuing to operate on an at
will basis, we may not have assurance of long-term access to such rights holders’ content, which could have a material adverse effect on our business and could
lead to potential copyright infringement claims.
It is also possible that such agreements will never be renewed at all. The lack of renewal, or termination, of one or more of our license agreements, or the
renewal of a license agreement on less favorable terms, could have a material adverse effect on our business, operating results, and financial condition. See “Item
4.B. Business Overview—Licensing Agreements.”
We have no control over third-party providers of the content we stream. The concentration of control of content by our major providers means that even
one entity, or a small number of entities working together, may unilaterally affect our access to music and other content.
We rely on various rights holders, over whom we have no control, for the content we make available on our Service. We cannot guarantee that these parties
will always choose to license to us or license to us on terms that are acceptable to us.
The music industry has a high level of concentration, which means that one or a small number of entities may, on their own, take actions that adversely affect
our business. For example, with respect to sound recordings, the music licensed to us under our agreements with Universal Music Group, Sony Music
Entertainment, Warner Music Group, and Music and Entertainment Rights Licensing Independent Network (“Merlin”), makes up the majority of music consumed
on our Service. For the year ended December 31, 2020, this content accounted for approximately 78% of music streams. Our business may be adversely affected if
our access to music is limited or delayed because of deterioration in our relationships with one or more of these rights holders or if they choose not to license to us
for any other reason. Rights holders also may attempt to take advantage of their market power (including by leveraging their publishing affiliate) to seek onerous
financial or other terms from us or otherwise impose restrictions that hinder our ability to further innovate our service offerings. We have particular issues in
markets where local content is important and such local content is held by local major labels or even individual artists, making it difficult to obtain such local
content at all or on economically favorable terms. In addition, publishers’ fractional ownership of shares of musical works enhances their market power. As a
result, the loss of rights to a major publisher catalogue would force us to take down a significant portion of popular repertoire in the applicable territory or
territories, which would significantly disadvantage us in such territory or territories. The lack of complete metadata with respect to publisher ownership may also
present challenges in taking down all the tracks of a given publisher. Even if we are able to secure rights to sound recordings from record labels and other
copyright owners, artists and/or artist groups may object and may exert public or private pressure on those record labels or copyright owners or other third parties
to discontinue licensing rights to us, hold back content from us, or increase royalty rates. As a result, our ability to continue to license rights to sound recordings is
subject to convincing a broad range of stakeholders of the value and quality of our Service. To the extent that we are unable to license a large amount of content or
the content of certain popular artists, our business, operating results, and financial condition could be materially harmed.
We are a party to many license agreements that are complex and impose numerous obligations upon us that may make it difficult to operate our
business, and a breach of such agreements could adversely affect our business, operating results, and financial condition.
Many of our license agreements are complex and impose numerous obligations on us, including obligations to, among other things:
• meet certain user and other targets in order to secure certain licenses and royalty rates;
•
calculate and make payments based on complex royalty structures, which requires tracking usage of content on our Service that may have inaccurate or
incomplete metadata necessary for such calculation;
provide periodic reports on the exploitation of the content;
represent that we will obtain all necessary publishing licenses and consents and pay all associated fees, royalties, and other amounts due for the licensing
of musical compositions;
provide advertising inventory at discounted rates or on other favorable terms;
comply with certain service offering restrictions;
•
•
•
•
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•
comply with certain marketing and advertising restrictions; and comply with certain security and technical specifications.
Many of our license agreements grant the licensor the right to audit our compliance with the terms and conditions of such agreements. Some of our license
agreements also include anti-steering, non-discrimination, and so-called “most favored nations” provisions, which require that certain material terms of such
agreements are no less favorable than those provided in our agreements with any other similarly situated licensor. If triggered, these provisions could cause our
payments or other obligations under those agreements to escalate. Additionally, some of our license agreements require consent to undertake certain business
initiatives and, without such consent, our ability to undertake or continue operating new business initiatives may be limited. This could hurt our competitive
position.
If we materially breach any of these obligations or any other obligations set forth in any of our license agreements, or if we use content in ways that are
found to exceed the scope of such agreements, we could be subject to legal or injunctive remedies (including monetary liability), and/or rights holders could
impede our business by withholding content, discounts and bundle approvals and the rights to launch new service offerings, and could ultimately terminate our
rights under such license agreements, any of which could have a material adverse effect on our business, operating results, and financial condition. We have
entered into settlement agreements requiring us to make substantial payments in the past, and may do so in the future, as a result of claims that we are in breach of
certain provisions in, or have exceeded the scope of, our license agreements.
Our royalty payment scheme is complex, and it is difficult to estimate the amount payable under our license agreements.
Under our license agreements and relevant statutes, we must pay all required royalties to record labels, music publishers, and other copyright owners in order
to stream content. The determination of the amount and timing of such payments is complex and subject to a number of variables, including the type of content
streamed, the country in which it is streamed, the service tier such content is streamed on, the amount of revenue generated by the streaming of the content, the
identity of the license holder to whom royalties are owed, the current size of our user base, our current ratio of Ad-Supported Users to Premium Subscribers, the
applicability of any most favored nations provisions, and any applicable advertising fees and discounts, among other variables. Additionally, we have certain
arrangements whereby royalty costs are paid in advance or are subject to minimum guaranteed amounts. An accrual is estimated when actual royalty costs to be
incurred during a contractual period are expected to fall short of the minimum guaranteed amount. Moreover, for minimum guarantee arrangements for which we
cannot reliably predict the underlying expense, we will expense the minimum guarantee on a straight-line basis over the term of the arrangement. We also have
license agreements that include so-called “most favored nations” provisions, which, if triggered, could cause our royalty payments under those agreements to
escalate. An accrual and expense is recognized when it is probable that we will make additional royalty payments under these terms.
We cannot assure you that the internal controls and systems we use to determine royalties payable will always be effective. We have in the past identified a
material weakness in our internal controls relating to rights holder liabilities and may identify additional material weaknesses in the future. See “—If we fail to
implement and maintain effective internal control over financial reporting, our ability to accurately and timely report our financial results could be adversely
affected.” If we fail to implement and maintain effective controls relating to rights holder liabilities, we may underpay/under-accrue or overpay/over-accrue the
royalty amounts payable to record labels, music publishers, and other copyright owners. Underpayment could result in (i) litigation or other disputes with record
labels, music publishers, and other copyright owners, (ii) the unexpected payment of additional royalties in material amounts, and (iii) damage to our business
relationships with record labels, music publishers, other copyright owners, and artists and/or artist groups. If we overpay royalties, we may be unable to reclaim
such overpayments, and our profits will suffer. Failure to accurately pay our royalties may adversely affect our business, operating results, and financial condition.
From time to time, we pay royalties based on management estimates of the rates that will apply while we negotiate license agreement renewals. Furthermore,
on August 11, 2020, the United States Court of Appeals for the D.C. Circuit issued an opinion which, as of the issuance of the formal “mandate” on October 26,
2020, vacated the Copyright Royalty Board’s determination of the royalty rates for applicable mechanical rights in the United States for calendar years 2018 to
2022. These rates apply both to compositions that we license under compulsory license pursuant to Section 115 of the Copyright Act of 1976 and to a number of
direct licenses that we have with music publishers. Until the rates are determined, our recorded royalty costs, both retrospectively and prospectively, will be based
on management estimates of the rates that will apply. When the rates are determined anew, these could either benefit or adversely affect our results of operations
and financial condition.
Minimum guarantees required under certain of our license agreements may limit our operating flexibility and may adversely affect our business,
operating results, and financial condition.
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Certain of our license agreements contain minimum guarantees and/or require that we make minimum guarantee payments. As of December 31, 2020, we
have estimated future minimum guarantee commitments of €3.6 billion under license agreements for sound recordings and musical compositions (both for
mechanical rights and public performance rights) as well as license agreements for podcasts. Such minimum guarantees related to our content acquisition costs are
not always tied to our revenue and/or user growth forecasts (e.g., number of users, active users, Premium Subscribers), or the number of sound recordings and
musical compositions or podcasts used on our Service. We may also be subject to minimum guarantees to rights holders with respect to certain strategic
partnerships we enter into that on occasion do not produce all of the expected benefits. Accordingly, our ability to achieve and sustain profitability and operating
leverage on our Service in part depends on our ability to increase our revenue through increased sales of Premium Service and advertising sales on terms that
maintain an adequate gross margin. The duration of our license agreements for sound recordings and musical compositions that contain minimum guarantees is
frequently between one and four years, but our Premium Subscribers may cancel their subscriptions at any time. If our forecasts of Premium Subscriber acquisition
or retention do not meet our expectations or the number of our Premium Subscribers or advertising sales decline significantly during the term of our license
agreements, our margins may be materially and adversely affected. To the extent our Premium Service revenue growth or advertising sales do not meet our
expectations, our business, operating results, and financial condition could also be adversely affected as a result of such minimum guarantees. In addition, the fixed
cost nature of these minimum guarantees may limit our flexibility in planning for, or reacting to, changes in our business and the market segments in which we
operate.
We rely on estimates of the market share of streaming content owned by each content provider, as well as our own user growth and forecasted advertising
revenue, to forecast whether such minimum guarantees could be recouped against our actual content acquisition costs incurred over the duration of the license
agreement. To the extent that these revenue and/or market share estimates underperform relative to our expectations, leading to content acquisition costs that do not
exceed such minimum guarantees, our margins may be materially and adversely affected.
Difficulties in obtaining accurate and comprehensive information necessary to identify the compositions embodied in sound recordings on our Service
and the ownership thereof may impact our ability to perform our obligations under our licenses, affect the size of our catalog, impact our ability to control
content acquisition costs, and lead to potential copyright infringement claims.
Comprehensive and accurate ownership information for the musical compositions embodied in sound recordings is often unavailable to us or difficult or, in
some cases, impossible for us to obtain, sometimes because it is withheld by the owners or administrators of such rights. We currently rely on the assistance of
third parties to determine this information. If the information provided to us or obtained by such third parties does not comprehensively or accurately identify the
ownership of musical compositions, or if we are unable to determine which musical compositions correspond to specific sound recordings, it may be difficult or
impossible to identify the appropriate rights holders from whom to obtain licenses or to whom to pay royalties. This may make it difficult to comply with the
obligations of any agreements with those rights holders. This may also make it difficult to identify content for removal from the Service if we lose the rights to
such musical compositions.
In the United States, we also relied on the assistance of third parties to issue notices of intent to obtain a compulsory license under Section 115 of the
Copyright Act to those copyright owners with whom we did not have a direct license agreement. The enactment of the Music Modernization Act (“MMA”) in
October 2018 amended the process to obtain a compulsory license under Section 115 of the Copyright Act. In particular, from October 2018 through December 31,
2020, to the extent we did not have a direct license and could not locate the owner of a composition, the law no longer provided a mechanism for us to obtain a
compulsory license, but instead provides a limitation of liability under which our only liability for the reproduction and/or distribution of such compositions is the
royalty rate set by the U.S. Copyright Royalty Board. That limitation of liability is contingent upon following various procedural steps outlined in the MMA and
there is a risk that we can be found to not have properly followed those steps (which could expose us to the risk of increased financial liability in litigations).
Beginning on January 1, 2021, the MMA provides a blanket license to reproduce and/or distribute musical compositions on our service. See “—We depend upon
third-party licenses for most of the content we stream and an adverse change to, loss of, or claim that we do not hold any necessary licenses may materially
adversely affect our business, operating results, and financial condition.”
These challenges, and others concerning the licensing of musical compositions embodied in sound recordings on our Service, may subject us to significant
liability for copyright infringement, breach of contract, or other claims. See “Item 8.A. Consolidated Statements and Other Financial Information—Legal or
Arbitration Proceedings.”
New copyright legislation enacted in the United States, and related regulations, may increase the costs and/or difficulty of music licensing.
The Music Modernization Act, enacted in October 2018, makes a number of significant changes to the legal regime governing music licensing in the United
States. This legislation could, when fully implemented, result in new operational
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requirements and difficulties in obtaining necessary music licenses. The legislation must initially be implemented by the responsible government agencies: the
United States Copyright Office and the Copyright Royalty Board. If there is a delay in the adoption of new regulations, or if the rules adopted are burdensome, it
may make it more challenging for us to obtain the necessary licenses and/or increase our costs. In July 2019, the Copyright Office selected an entity to serve as the
“mechanical licensing collective” (“MLC”) to collect mechanical licensing payments from digital music services and distribute them to the correct copyright
owners. If the MLC cannot carry out its duties, we may be unable to obtain the necessary licenses.
Additionally, the legislation makes various changes in the rules and procedures of the “rate courts” that set royalty rates paid to the American Society of
Composers, Authors and Publishers (“ASCAP”) and Broadcast Music, Inc. (“BMI”) for performance licenses covering musical compositions. It changes the
mechanism by which judges are assigned to hear rate-setting disputes. For some proceedings, it also eliminates a provision barring the introduction of sound
recording royalty rates in rate court proceedings. The legislation also makes changes to how royalty rates are set by the Copyright Royalty Board for statutory
mechanical licenses. The precise effect of these changes is uncertain, but it could lead the rate courts or the Copyright Royalty Board to adopt less favorable terms
for performance licenses or statutory mechanical licenses in the future, which could negatively harm our business, operating results, and financial condition.
The legislation also gives copyright owners a new federal digital performance right for sound recordings made prior to February 15, 1972, which were
previously governed exclusively by state laws. We must ensure that our license agreements for the right to stream sound recordings encompass this new federal
right. If we fail to do so, the size and quality of our catalog may be materially impacted and our business, operating results, and financial condition could be
materially harmed.
Risks Related to Intellectual Property
Assertions by third parties of infringement or other violation by us of their intellectual property rights could harm our business, operating results, and
financial condition.
Third parties have asserted, and may in the future assert, that we have infringed, misappropriated, or otherwise violated their copyrights, patents, and other
intellectual property rights, and as we face increasing competition, the possibility of intellectual property rights claims against us grows. See “Item 8.A.
Consolidated Statements and Other Financial Information—Legal or Arbitration Proceedings.”
Our ability to provide our Service is dependent upon our ability to license intellectual property rights to audio content, including sound recordings, any
musical compositions embodied therein, and podcasts, as well as visual and related content, such as music videos, clips, album cover art, artist images, and any
other media assets that artists and/or labels can add or provide with their tracks. Various laws and regulations govern the copyright and other intellectual property
rights associated with audio and visual content, including sound recordings and musical compositions. Existing laws and regulations are evolving and subject to
different interpretations, and various legislative or regulatory bodies may expand current or enact new laws or regulations. Although we expend significant
resources to seek to comply with the statutory, regulatory, and judicial frameworks by, for example, entering into license agreements, we cannot assure you that we
are not infringing or violating any third-party intellectual property rights, or that we will not do so in the future. See “—Difficulties in obtaining accurate and
comprehensive information necessary to identify the compositions embodied in sound recordings on our Service and the ownership thereof may impact our ability
to perform our obligations under our licenses, affect the size of our catalog, impact our ability to control content acquisition costs, and lead to potential copyright
infringement claims.” Moreover, while we may often be able to seek indemnities from our licensors with respect to infringement claims that may relate to the
content they provide to us, such indemnities may not be sufficient to cover the associated liability if the licensor at issue does not have adequate financial
resources.
In addition, music, internet, technology, and media companies are frequently subject to litigation based on allegations of infringement, misappropriation, or
other violations of intellectual property rights. Many companies in these industries, including many of our competitors, have substantially larger patent and
intellectual property portfolios than we do, which could make us a target for litigation. We may not be able to assert counterclaims against parties that sue us for
patent, or other intellectual property infringement. In addition, various “non-practicing entities” that own patents and other intellectual property rights often attempt
to aggressively assert claims in order to extract value from technology companies. Further, from time to time we may introduce new products and services,
including in territories where we currently do not have an offering, which could increase our exposure to patent and other intellectual property claims from
competitors and non-practicing entities. It is difficult to predict whether assertions of third-party intellectual property rights or any infringement or
misappropriation claims arising from such assertions will substantially harm our business, operating results, and financial condition. If we are forced to defend
against any infringement or misappropriation claims, whether they are with or without merit, are settled out of court, or are determined in our favor, we may be
required to expend significant time and financial resources on the defense of such claims. Furthermore, an adverse outcome of a dispute may require us to pay
significant damages, which may be even greater if we are found to have willfully infringed upon a party’s intellectual property; cease exploiting copyrighted
content that we have
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previously had the ability to exploit; cease using solutions that are alleged to infringe or misappropriate the intellectual property of others; expend additional
development resources to redesign our solutions; enter into potentially unfavorable royalty or license agreements in order to obtain the right to use necessary
technologies, content, or materials; indemnify our partners and other third parties; and/or take other actions that may have material effects on our business,
operating results, and financial condition.
Moreover, we rely on multiple software programmers to design our proprietary technologies, and we regularly contribute software source code under “open
source” licenses and have made technology we developed available under open source licenses. We cannot assure you that our efforts to prevent the incorporation
of licenses that would require us to disclose code and/or innovations in our products will always be successful, as we do not exercise complete control over the
development efforts of our programmers, and we cannot be certain that our programmers have not used software that is subject to such licenses or that they will not
do so in the future. In the event that portions of our proprietary technology are determined to be subject to licenses that require us to publicly release the affected
portions of our source code, re-engineer a portion of our technologies, or otherwise be limited in the licensing of our technologies, we may be forced to do so, each
of which could materially harm our business, operating results, and financial condition.
Failure to protect our intellectual property could substantially harm our business, operating results, and financial condition.
The success of our business depends on our ability to protect and enforce our patents, trade secrets, trademarks, copyrights, and all of our other intellectual
property rights, including the intellectual property rights underlying our Service. We attempt to protect our intellectual property under patent, trade secret,
trademark, and copyright law through a combination of intellectual property registration, employee, third-party assignment and nondisclosure agreements, other
contractual restrictions, technological measures, and other methods. These afford only limited protection and we are still continuing to develop our processes for
securing our intellectual property rights. Despite our efforts to protect our intellectual property rights, unauthorized parties may attempt to copy aspects of our
product and brand features, or obtain and use our trade secrets and other confidential information. Moreover, policing our intellectual property rights is difficult
and time-consuming. We cannot assure you that we would have adequate resources to protect and police our intellectual property rights, and we cannot assure you
that the steps we take to do so will always be effective.
We have filed, and may in the future file, patent applications on certain of our innovations. It is possible, however, that these innovations may not be
patentable. In addition, given the cost, effort, risks, and downside of obtaining patent protection, including the requirement to ultimately disclose the invention to
the public, we may choose not to seek patent protection for some innovations. Furthermore, our patent applications may not issue as granted patents, the scope of
the protection gained may be insufficient or an issued patent may be deemed invalid or unenforceable. We also cannot guarantee that any of our present or future
patents or other intellectual property rights will not lapse or be invalidated, circumvented, challenged, or abandoned.
Neither can we guarantee that our intellectual property rights will provide competitive advantages to us. Our ability to assert our intellectual property rights
against potential competitors or to settle current or future disputes could be limited by our relationships with third parties, and any of our pending or future patent
applications may not have the scope of coverage originally sought. We cannot guarantee that our intellectual property rights will be enforced in jurisdictions where
competition may be intense or where legal protection may be weak. We could lose both the ability to assert our intellectual property rights against, or to license our
technology to, others and the ability to collect royalties or other payments. Certain countries’ legal systems do not provide the same level of support for the
enforcement or protection of intellectual property rights as those of the United States, and as a result, our intellectual property and proprietary rights may be subject
to theft without, or with little, legal recourse.
We currently own the www.spotify.com internet domain name and various other related domain names. Internet regulatory bodies generally regulate domain
names. If we lose the ability to use a domain name in a particular country, we may be forced either to incur significant additional expenses to market our Service
within that country or, in extreme cases, to elect not to offer our Service in that country. Either result could harm our business, operating results, and financial
condition. The regulation of domain names in the United States and in foreign countries is subject to change. Regulatory bodies could establish additional top-level
domains, appoint additional domain name registrars, or modify the requirements for holding domain names. As a result, we may not be able to acquire or maintain
the domain names that utilize our brand names in the United States or other countries in which we may conduct business in the future.
Litigation or proceedings before governmental authorities and administrative bodies may be necessary in the future to enforce our intellectual property rights,
to protect our patent rights, trademarks, trade secrets, and domain names and to determine the validity and scope of the proprietary rights of others. Our efforts to
enforce or protect our proprietary rights may be ineffective and could result in substantial costs and diversion of resources and management time, each of which
could
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substantially harm our operating results. Additionally, changes in law may be implemented, or changes in interpretation of such laws may occur, that may affect
our ability to protect and enforce our patents and other intellectual property.
Risks Related to Our Operations
Streaming depends on effectively working with operating systems, online platforms, hardware, networks, regulations, and standards we do not control.
Changes in our Service or those operating systems, hardware, networks, regulations, or standards, and our limitations on our ability to access those platforms,
operating systems, hardware, or networks may seriously harm our business.
We rely on a variety of operating systems, online platforms, hardware, and networks to reach our users. These platforms range from desktop and mobile
operating systems and application stores to wearables and intelligent voice assistants. The owners or operators of these platforms may not share our interests and
may restrict our access to them or place conditions on access that would materially affect our ability to access those platforms. In particular, where the owner of a
platform is also our direct competitor, the platform may attempt to use this position to affect our access to users and ability to compete. For example, an online
platform might arbitrarily remove our Service from its platform, deprive us of access to business critical data, or engage in other harmful practices. Online
platforms also may unilaterally impose certain requirements that negatively affect our ability to convert users to the Premium Service, such as conditions that limit
our freedom to communicate promotions and offers to our users. Similarly, online platforms may force us to use the platform’s payment processing systems that
may be inferior to, and more costly than, other payment processing services available in the market. Online platforms frequently change the rules and requirements
for services like ours to access the platform, and such changes may adversely affect the success or desirability of our Service. To maintain certain elements of the
Service on a platform, we may need to make additional concessions to the platform operator that may adversely affect other aspects of the business or require us to
invest significant expenses. Online platforms may limit our access to information about users, limiting our ability to convert and retain them. Online platforms also
may deny access to application programming interfaces or documentation, limiting functionality of our Service on the platform. In addition, if online platforms
discontinue any log-in authentication services that our users use to access our Service, we may lose and be unable to recover users previously using this function.
In March 2019, we filed a complaint against Apple with the European Commission for engaging in certain behaviors that we believe are unlawful and anti-
competitive. In June 2020, the European Commission opened a formal investigation into Apple’s conduct. We cannot assure you that the outcome of the process
with the European Commission will be successfully resolved in our favor. In September 2020, we joined other app developer companies and organizations to form
the Coalition for App Fairness with the goal of promoting app store principles that, among other things, address anti-competitive practices by platforms. We cannot
assure you that those efforts will result in favorable outcomes.
Furthermore, because devices providing access to our Service are not manufactured and sold by us, we cannot guarantee that these devices perform reliably,
and any faulty connection between these devices and our Service may result in consumer dissatisfaction toward us, which could damage our brand. In addition, we
have no control over the hardware or software of these devices and any changes to them may negatively impact our business. For example, as part of an update to
its iOS operating system, Apple has announced new requirements for app developers on a mobile device to track users or receive Apple's IDFA, which may create
difficulties in monetizing our users or measuring the effectiveness of our user acquisition campaigns and challenge our ability to promote our products and services
to iOS users.
Moreover, our Service requires high-bandwidth data capabilities. If the costs of data usage increase or access to data networks is limited, our business may
be seriously harmed. Additionally, to deliver high-quality audio, video, and other content over networks, our Service must work well with a range of technologies,
systems, networks, regulations, and standards that we do not control. In addition, the adoption of any laws or regulations that adversely affect the growth,
popularity, or use of the internet, including laws governing internet neutrality, could decrease the demand for our Service and increase our cost of doing business.
For example, in December 2017, the Federal Communications Commission (the “FCC”) voted to repeal prior “open internet rules,” which included bright-line
provisions prohibiting internet service providers from blocking lawful internet content, throttling such content, or engaging in paid prioritization, as well as a
general conduct standard barring such providers from unreasonably interfering with or disadvantaging online content providers’ access to end users and end users’
access to online content, and to rely instead on disclosure obligations backed by Federal Trade Commission enforcement. Several states have imposed their own
open internet protections modeled on the repealed bright-line provisions, although internet service providers have filed lawsuits challenging such measures, and
additional challenges are likely. Similarly, the European Union (the “EU”) currently requires equal access to internet content, but as part of the EU’s Digital Single
Market initiative and the implementation of the European Electronic Communications Code at the national level, EU Member States may impose network security
and disability access obligations on “over-the-top” services such as those provided by us. If the FCC’s repeal of the open internet rules is maintained, state
initiatives regulating providers are modified, overturned, or vacated, or the EU modifies these open internet rules, broadband service providers may be able to limit
our users’ ability to access Spotify or
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make Spotify a less attractive alternative to our competitors’ applications, and our business, operating results, and financial condition would be seriously harmed.
We may not successfully cultivate relationships with key industry participants or comply with the requirements of various operating systems, online
platforms, hardware, networks, regulations, and standards on which our Service depends, and failure to do so could result in serious harm to our business and user
retention, growth, and engagement.
Failure to maintain the security of data relating to our users could result in civil liability, statutory fines, regulatory enforcement, and the loss of
confidence in us by our users, advertisers, content providers, and other business partners, all of which could harm our business.
Techniques used to gain unauthorized access to data and software are constantly evolving, and we may be unable to anticipate or prevent unauthorized access
to data pertaining to our users, including credit card and debit card information and other personal data about our users, business partners, and employees. Our
Service, which is supported by our own systems and those of third parties that we work with, is vulnerable to software bugs, computer viruses, internet worms,
break-ins, phishing attacks, attempts to overload servers with denial-of-service, or other attacks and similar disruptions from unauthorized use of our and third-
party computer systems, any of which could cause loss of critical data or unauthorized access to personal data. Computer malware, viruses, and computer hacking
and phishing attacks have occurred on our systems in the past and may occur on our systems in the future. Because of our prominence, we believe that we are a
particularly attractive target for such attacks. We cannot assure you that the systems and processes that we have designed to protect our data and our users’ data, to
prevent data loss, to disable undesirable accounts and activities on our platform, and to prevent or detect security breaches, will provide absolute security, and we
may incur significant costs in protecting against or remediating cyber-attacks.
If an actual or perceived breach of security occurs to our systems or a third party’s systems, we may face actions against us by governmental entities, data
protection authorities, civil litigants, or others that could result in enforcement, litigation and financial losses, and the public perception of our security measures
could be diminished and our reputation harmed, all of which would negatively affect our ability to attract and retain users, which in turn would harm our efforts to
attract and retain advertisers, content providers, and other business partners. We would also have to expend significant resources to mitigate the breach and upgrade
our security systems, and in most cases notify affected users and relevant data protection and regulatory authorities. A data breach by service providers that are
acting as our data processors (i.e., processing personal data on our behalf) would raise similar risks and obligations. Any of these events could have a material
adverse effect on our business, operating results, and financial condition and could cause our stock price to drop significantly.
Our Service and software are highly technical and may contain undetected software bugs or vulnerabilities, which could manifest in ways that could
seriously harm our reputation and our business.
Many of the products we offer are highly technical and complex. These products or any other product we may introduce in the future may contain undetected
software bugs, hardware errors, and other vulnerabilities. These bugs and errors can manifest in any number of ways in our products, including through diminished
performance, security vulnerabilities, malfunctions, or even permanently disabled products. We have a practice of rapidly updating our products, and as a result
some errors in our products may be discovered only after a product has been used by users, and may in some cases be detected only under certain circumstances or
after extended use. Additionally, many of our products are available on multiple operating systems and/or multiple devices offered by different manufacturers, and
changes or updates to such operating systems or devices may cause errors or functionality problems in our products, including rendering our products inoperable
by some users. Our products operate in conjunction with, and we are dependent upon, third-party products and services, and any security vulnerability, error, or
other bug in one of these third-party products or services could thwart our users’ ability to access our products and services and harm our reputation. Additionally,
any errors, bugs, or other vulnerabilities discovered in our code or backend after release could damage our reputation, drive away users, allow third parties to
manipulate or exploit our software, lower revenue, and expose us to claims for damages, any of which could seriously harm our business. See “Risks Related to
Our Metrics—We are at risk of attempts to manipulate or exploit our software for the purpose of gaining or providing unauthorized access to certain features of our
Service, and failure to effectively prevent and remediate such attempts could have an adverse impact on our business, operating results, and financial condition.”
Additionally, errors, bugs, or other vulnerabilities may—either directly or if exploited by third parties—affect our ability to make accurate royalty payments. See
“Risks Related to Securing the Rights to the Content We Stream—Our royalty payment scheme is complex, and it is difficult to estimate the amount payable under
our license agreements.”
We could also face claims for product liability, tort, or breach of warranty. Defending a lawsuit, regardless of its merit, is costly and may divert
management’s attention and seriously harm our reputation and our business. In addition, if our liability insurance coverage proves inadequate or future coverage is
unavailable on acceptable terms or at all, our business could be seriously harmed.
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Interruptions, delays, or discontinuations in service arising from our own systems or from third parties could impair the delivery of our Service and harm
our business.
We have experienced, and may in the future experience, periodic service interruptions and delays involving our own systems and those of third parties that
we work with. Both our own systems and those of third parties are vulnerable to damage or interruption from earthquakes, floods, fires, power loss,
telecommunications failures, and similar events. They are also subject to break-ins, sabotage, intentional acts of vandalism, the failure of physical, administrative,
technical, and cyber security measures, terrorist acts, natural disasters, human error, the financial insolvency of third parties that we work with, global pandemics
and other public health crises, such as the COVID-19 pandemic, and other unanticipated problems or events. The occurrence of any of these events could result in
interruptions in our Service and unauthorized access to, or alteration of, the content and data contained on our systems that these third parties store and deliver on
our behalf.
Any disruption in the services provided by these third parties could materially adversely impact our business reputation, customer relations, and operating
results. Upon expiration or termination of any of our agreements with third parties, we may not be able to replace the services provided to us in a timely manner or
on terms and conditions, including service levels and cost, that are favorable to us, and a transition from one third party to another could subject us to operational
delays and inefficiencies until the transition is complete.
We rely upon the Google Cloud Platform to operate certain aspects of our business and to store almost all of our data, and any disruption of or
interference with our use of the Google Cloud Platform could have a material adverse effect on our business, operating results, and financial condition.
Google Cloud Platform (“GCP”) provides a distributed computing infrastructure platform for business operations, or what is commonly referred to as a cloud
computing service. We have designed our software and computer systems to utilize data processing, storage capabilities, and other services provided by GCP, and
currently rely on GCP for the vast majority of our primary data storage (including personal data of users and audio data licensed from rights holders) and
computing. We cannot easily switch our GCP operations to another cloud provider, and any disruption of, or interference with, our use of GCP could have a
material adverse effect on our business, operating results, and financial condition. While the consumer side of Google competes with us, we do not believe that
Google will use the GCP operation in such a manner as to gain competitive advantage against our Service.
Our business is subject to complex and evolving laws and regulations around the world. Many of these laws and regulations are subject to change and
uncertain interpretation, and could result in claims, changes to our business practices, monetary penalties, increased cost of operations, or otherwise harm our
business.
We are an international company that is registered under the laws of Luxembourg, with offices and/or operations in 93 countries and territories around the
world. As a result of this organizational structure and the scope of our operations, we are subject to a variety of laws and regulations in different countries that
involve matters central to our business, including privacy, data protection, content, intellectual property, advertising and marketing, competition, protection of
minors, consumer protection, automatic subscription renewals, credit card processing, foreign exchange controls, and taxation. These laws and regulations may be
interpreted and applied in a manner that is inconsistent from country to country and inconsistent with our current policies and practices and in ways that could harm
our business, particularly in the new and rapidly evolving industry in which we operate. Additionally, the introduction of new products or services, expansion of
our activities in certain jurisdictions, entry into new jurisdictions, or other actions that we may take may subject us to additional laws and regulations. These laws
and regulations, as well as any associated claims, inquiries, or other government actions, may subject us to increased operating costs, delays or impediments in our
business activities, diversion of management time and attention, and remedies that harm our business, including fines or demands or orders that we modify or cease
existing business practices.
The adoption or modification of laws or regulations relating to the internet or other areas of our business could limit or otherwise adversely affect the manner
in which we currently conduct our business. For example, based on the Directive on Copyright in the Digital Single Market, EU Member States are required to
implement new rules on copyright protection by June 2021, including rules on remuneration for use of copyrighted content and obligations on online content-
sharing service providers, which could also impact our costs or the conditions for users to access licensed content. In the United States, the protections from legal
liability for content moderation decisions and third-party content posted on online platforms that are currently available to online platforms under Section 230 of
the Communications Decency Act could change or decrease over the next few years. This could result in increased liability for content moderation decisions and
third-party content posted on our Service and higher litigation costs. Certain jurisdictions have implemented or are contemplating implementing laws that may
negatively impact our automatic renewal structure or our free or discounted trial incentives. Additionally, in Europe, a number of regulatory initiatives have been
proposed to tackle the way platforms and digital services providers operate, including rules on the removal of illegal content and on transparency and reporting.
Further, compliance with laws, regulations,
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and other requirements imposed upon our business may be onerous and expensive, and they may be inconsistent from jurisdiction to jurisdiction, further increasing
the cost of compliance and doing business.
Various existing, new, and changing laws and regulations as well as self-regulation and public concern related to privacy and data security pose the
threat of lawsuits, regulatory fines, other liability and reputational harm, require us to expend significant resources, and may harm our business, operating
results, and financial condition.
As we collect and utilize personal data about our users as they interact with our Service, we are subject to new and existing laws and regulations that govern
our use of user data. We are likely to be required to expend significant capital to ensure ongoing compliance with these laws and regulations. Claims or allegations
that we have violated laws and regulations relating to privacy and data security could result in negative publicity and a loss of confidence in us by our users and our
partners. We may be required to make significant expenditure to resolve these issues and we could be subject to civil liability and/or fines or other penalties,
including by government and data protection authorities.
We are subject to the General Data Protection Regulation (“GDPR”), which came into effect in May 2018 and imposes stringent operational requirements
regarding, among others, data use, sharing and processing, data breach notifications, data subject rights, and cross-border data transfers for entities collecting
and/or processing personal data of EU residents and significant penalties for non-compliance (up to EUR 20 million or up to 4% of the total worldwide annual
turnover of the preceding financial year, whichever is higher). Following the United Kingdom’s (“UK”) departure from the European Union and the expiry of the
transition period, we will be subject to UK data protection law, which imposes obligations and penalties similar to the GDPR. We are also subject to Directive
2002/58 on Privacy and Electronic Communications (the “ePrivacy Directive”), which requires entities to obtain informed and freely given consent for the
placement of cookies and similar technologies on a user’s device. We are also subject to Lei Geral de Proteção de Dados (“LGPD”), which went into effect in
September 2020, and that imposes similar requirements to GDPR on the collection and processing of data of Brazilian residents, as well as penalties for non-
compliance (up to 2% of the Brazil-sourced income for the preceding financial year, limited to approximately $11 million per infraction, with the possibility of a
daily fine to compel the cessation of violations). We are also subject to the California Consumer Privacy Act (“CCPA”), which came into effect in January 2020
and imposes heightened transparency obligations, adds restrictions on the “sale” of personal information, and creates new data privacy rights for California
residents and carries significant enforcement penalties for non-compliance (up to $7,500 per intentional violation and $2,500 per other violation). California
consumers also have a private right of action under the CCPA with respect to certain data breaches and can recover civil damages of up to $750 per incident, per
consumer or actual damages, whichever is greater.
We rely on data transfer mechanisms permitted under the GDPR, including the Standard Contractual Clauses. Such mechanisms have recently received
heightened regulatory and judicial scrutiny, and the European Commission is in the process of substantively updating the Standard Contractual Clauses. Ensuring
we can continue to transfer E.U. personal data outside of the European Economic Area in compliance with new regulatory and judicial guidance and legislative
developments may require us to expend significant resources.
New laws, amendments to, or reinterpretations of existing laws, rules of self-regulatory bodies, industry standards, and contractual obligations, as well as
changes in our users’ expectations and demands regarding privacy and data security, may require that we expend considerable resources to meet these requirements
and may limit our ability to collect, use, and disclose, and to leverage and derive economic value from user data. Restrictions on our ability to collect, access and
harness user data, or to use or disclose user data, may require us to expend significant resources to adapt to these changes, and would in turn limit our ability to
stream personalized content to our users and offer advertising and promotional opportunities to users on the Service.
The regulatory framework for privacy issues worldwide is currently in flux and is likely to remain so for the foreseeable future. Our business, including our
ability to operate and expand internationally, could be adversely affected if legislation or regulations are adopted, interpreted, or implemented in a manner that is
inconsistent with our current business practices and that require changes to these practices, the design of our website, services, features, or our privacy policy.
We have incurred, and will continue to incur, expenses to comply with privacy and security standards and protocols imposed by law, regulation, self-
regulatory bodies, industry standards, and contractual obligations. Any failure to comply with privacy laws could result in litigation, regulatory or governmental
investigations, enforcement action requiring us to change the way we use personal data, restrictions on how we use personal data, or significant regulatory fines. In
addition to statutory enforcement, a data breach could lead to compensation claims by affected individuals (including consumer advocacy groups), negative
publicity and a potential loss of business as a result of customers losing trust in us. Such failures could have a material adverse effect on our financial condition and
operations.
Our business depends on a strong brand, and any failure to maintain, protect, and enhance our brand could harm our business
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We have developed a strong brand that we believe has contributed significantly to the success of our business. Maintaining, protecting, and enhancing the
“Spotify” brand is critical to expanding our base of Ad-Supported Users, Premium Subscribers, and advertisers, and will depend largely on our ability to continue
to provide useful, reliable, trustworthy, and innovative products and services, which we may not do successfully. We may introduce new products, services,
features, content, or terms of service that our users, advertisers, or partners do not like, which may negatively affect our brand. Our brand may be impaired by a
number of other factors, including a decline in the quality or quantity of the content available on our Service, product or technical performance failures, or other
reputational issues. Our brand may also be negatively affected by the sharing of content on our platform that our users find objectionable, the use of our products or
services to create or disseminate content that is deemed to be misleading or intended to manipulate opinions, perceived or actual efforts by governments to censor
certain content on our platform, the use of our products for illicit, objectionable, or illegal ends, or our failure to respond appropriately to such uses of our products
and services or to otherwise adequately address user concerns. Additionally, the actions of our developers, advertisers, and content partners may affect our brand if
users do not have a positive experience using third-party applications or websites integrated with Spotify or that make use of Spotify content or brand features. If
we fail to successfully maintain a strong brand, our business could be harmed.
If we are unable to maintain the growth rate in the number of our Ad-Supported Users and Premium Subscribers, we may be required to expend greater
resources than we currently spend on advertising, marketing, and other brand-building efforts to preserve and enhance consumer awareness of our brand, which
would adversely affect our operating results and may not be effective.
Additionally, we receive a high degree of media coverage around the world. Unfavorable publicity regarding, for example, payments to record labels,
publishers, artists, and other copyright owners, content on our Service, our privacy practices, terms of service, service changes, service quality, litigation or
regulatory activity, government surveillance, employee matters, the actions of our advertisers or strategic partners, the actions of our developers whose services are
integrated with our Service, the actions of our users, or the actions of other companies that provide similar services to us, could materially adversely affect our
reputation and brand. Such negative publicity also could have an adverse effect on the size, engagement, and loyalty of our user base and result in decreased
revenue, which could materially adversely affect our business, operating results, and financial condition.
We are subject to payments-related risks.
We accept payments using a variety of methods, including credit and debit card transactions. For credit and debit card payments, we pay interchange and
other transaction fees, which may increase over time. An increase in those fees would require us to either increase the prices we charge for our Premium Service,
which could cause us to lose Premium Subscribers and subscription revenue, or suffer an increase in our costs without a corresponding increase in the price we
charge for our Premium Service, either of which could harm our business, operating results, and financial condition. We rely on third-party service providers for
payment processing services, including the processing of credit and debit cards. In particular, we rely on one third-party service provider, Adyen, for
approximately 74% of our payment processing. Our business could be materially disrupted if these third-party service providers become unwilling or unable to
provide these services to us. If we or our service providers for payment processing services have problems with our billing software, or the billing software
malfunctions, it could have a material adverse effect on our user satisfaction and could cause one or more of the major credit card companies to disallow our
continued use of their payment products. In addition, if our billing software fails to work properly and, as a result, we do not automatically charge our Premium
Subscribers’ credit cards on a timely basis or at all, our business, operating results, and financial condition could be materially adversely affected.
We are also subject to payment card association operating rules, certification requirements, and rules governing electronic funds transfers, including the
Payment Card Industry Data Security Standard v3.2.1, which could change or be reinterpreted to make it more difficult for us to comply. Any failure to comply
with these rules or requirements may subject us to higher transaction fees, fines, penalties, damages, and civil liability, and may result in the loss of our ability to
accept credit and debit card payments. Further, there is no guarantee that, even if we are in compliance with such rules or requirements, such compliance will
prevent illegal or improper use of our payment systems or the theft, loss, or misuse of data pertaining to credit and debit cards, credit and debit card holders, and
credit and debit card transactions. Certain payment card associations have proposed additional requirements for trial offers for automatic renewal subscription
services, which may hinder our ability to attract or retain Premium Subscribers.
If we fail to adequately control fraudulent credit card transactions, we may face civil liability, diminished public perception of our security measures, and
significantly higher credit card-related costs, each of which could adversely affect our business, financial condition, and results of operations. If we are unable to
maintain our chargeback rate or refund rates at acceptable levels, credit card and debit card companies may increase our transaction fees or terminate their
relationships with
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us. The termination of our ability to process payments on any major credit or debit card would significantly impair our ability to operate our business.
We also accept payments through various payment solution providers, such as telco integrated billings and prepaid codes vendors. These payment solution
providers provide services to us in exchange for a fee, which may be subject to change. Furthermore, we rely on their accurate and timely reports on sales and
redemptions. If such accurate and timely reports are not being provided, it will affect the accuracy of our reports to our licensors, and also affect the accuracy of
our financial reporting.
We depend on highly skilled key personnel to operate our business, and if we are unable to attract, retain, and motivate qualified personnel, our ability to
develop and successfully grow our business could be harmed.
We believe that our future success is highly dependent on the talents and contributions of our senior management, including Daniel Ek, our Chief Executive
Officer, members of our executive team, and other key employees, such as key engineering, finance, research and development, marketing, and sales personnel.
Our future success depends on our continuing ability to attract, develop, motivate, and retain highly qualified and skilled employees. All of our employees,
including our senior management, are free to terminate their employment relationship with us at any time, and their knowledge of our business and industry may be
difficult to replace. Qualified individuals are in high demand, particularly in the digital media industry, and we may incur significant costs to attract them. We use
equity awards to attract talented employees. If the value of our ordinary shares declines significantly and remains depressed, that may prevent us from recruiting
and retaining qualified employees. If we are unable to attract and retain our senior management and key employees, we may not be able to achieve our strategic
objectives, and our business could be harmed. In addition, we believe that our key executives have developed highly successful and effective working
relationships. We cannot assure you that we will be able to retain the services of any members of our senior management or other key employees. If one or more of
these individuals leave, we may not be able to fully integrate new executives or replicate the current dynamic, and working relationships that have developed
among our senior management and other key personnel, and our operations could suffer.
Our operating results may fluctuate, which makes our results difficult to predict.
Our revenue and operating results could vary significantly from quarter to quarter and year to year because of a variety of factors, many of which are outside
our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful. Factors that may contribute to the variability of our
quarterly and annual results include:
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our ability to retain our current user base, increase our number of Ad-Supported Users and Premium Subscribers, and increase users’ time spent streaming
content on our Service;
our ability to more effectively monetize our Service on mobile and other connected devices;
our ability to effectively manage our growth;
our ability to attract user and/or customer adoption of and generate significant revenue from new products, services, and initiatives;
our ability to attract and retain existing advertisers and prove that our advertising products are effective enough to justify a pricing structure that is
profitable for us;
the effects of increased competition in our business;
seasonal fluctuations in spending by our advertisers and product usage by our users;
increases in research and development, marketing, sales, and other operating expenses that we may incur to grow and expand our operations and to remain
competitive;
costs related to the acquisition of businesses, talent, technologies or intellectual property;
lack of accurate and timely reports and invoices from our rights holders and partners;
interruptions in service, whether or not we are responsible for such interruptions, and any related impact on our reputation;
our ability to pursue and appropriately time our entry into new geographic or content markets and, if pursued, our management of this expansion;
costs associated with defending any litigation, including intellectual property infringement litigation;
fluctuations in currency exchange rates;
social costs we accrue for share-based compensation;
timing of restricted stock units (“RSUs”) vesting and stock option exercise activity of our employees;
changes in the market value of our investments (such as our long term investments relating to TME) or the fair value of any outstanding financial
instruments (such as our warrants);
the impact of general economic conditions on our revenue and expenses; and
changes in regulations affecting our business.
If we fail to implement and maintain effective internal control over financial reporting, our ability to accurately and timely report our financial results
could be adversely affected.
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We are required to maintain internal control over financial reporting and to report any material weaknesses in those controls. We have in the past identified a
material weakness in our internal control over financial reporting that was subsequently remediated. If we identify future material weaknesses in our internal
control over financial reporting or fail to meet our obligations as a public company, including the requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-
Oxley Act”), we may be unable to accurately report our financial results, or report them within the timeframes required by law or stock exchange regulations, and
we could lose investor confidence in the accuracy and completeness of our financial reports, which would cause the price of our ordinary shares to decline. Under
Section 404 of the Sarbanes-Oxley Act, we are required to evaluate and determine the effectiveness of our internal control over financial reporting and provide a
management report as to internal control over financial reporting. Failure to maintain effective internal control over financial reporting also could potentially
subject us to sanctions or investigations by the SEC, the NYSE, or other regulatory authorities, or shareholder lawsuits, which could require additional financial
and management resources.
We may require additional capital to support business growth and objectives, and this capital might not be available on acceptable terms, if at all.
We intend to continue to make investments to support our business growth and may require additional funds to respond to business challenges, including the
need to develop new features or enhance our existing Service, expand into additional markets around the world, improve our infrastructure, or acquire
complementary businesses and technologies. Accordingly, we have in the past engaged, and may in the future engage, in equity and debt financings to secure
additional funds. If we raise additional funds through future issuances of equity or convertible debt securities, our existing shareholders could suffer significant
dilution, and any new equity securities we issue could have rights, preferences, and privileges superior to those of holders of our ordinary shares. Any debt
financing we secure in the future could also contain restrictive covenants relating to our capital-raising activities and other financial and operational matters, which
may make it more difficult for us to obtain additional capital and pursue business opportunities, including potential acquisitions. We may not be able to obtain
additional financing on terms favorable to us, if at all. If we are unable to obtain adequate financing or financing on terms satisfactory to us when we require it, our
ability to continue to support our business growth, acquire or retain users, and to respond to business challenges could be significantly impaired, and our business
may be harmed.
If currency exchange rates fluctuate substantially in the future, the results of our operations, which are reported in Euros, could be adversely affected.
As we continue to expand our international operations, we become increasingly exposed to the effects of fluctuations in currency exchange rates. We incur
expenses for employee compensation, property leases, and other operating expenses in the local currency, and an increasing percentage of our international revenue
is from users who pay us in currencies other than U.S. dollars and Euros, including the Swedish Krona, the Australian dollar, and the British Pound Sterling. In
addition, while we incur royalty expenses primarily in U.S. dollars and Euros, the corresponding revenues are being generated in local currencies and, as such, the
multiple currency conversions will be affected by currency fluctuations, which may result in losses to us. Fluctuations in the exchange rates between the Euro and
other currencies may impact expenses as well as revenue, and consequently have an impact on margin and the reported operating results. This could have a
negative impact on our reported operating results. To date, we have engaged in limited hedging strategies related to foreign exchange risk stemming from our
operations. These strategies may include instruments such as foreign exchange forward contracts and options. However, these strategies should not be expected to
fully eliminate the foreign exchange rate risk that we are exposed to.
The impact of worldwide economic conditions may adversely affect our business, operating results, and financial condition.
Our financial performance is subject to worldwide economic conditions and their impact on levels of advertising spending. Expenditures by advertisers
generally tend to reflect overall economic conditions, and to the extent that the economy continues to stagnate, reductions in spending by advertisers could have a
material adverse impact on our business. Historically, economic downturns have resulted in overall reductions in advertising spending.
Economic conditions may adversely impact levels of consumer spending, which could adversely impact the number of users who purchase our Premium
Service on our website and mobile application. Consumer purchases of discretionary items generally decline during recessionary periods and other periods in
which disposable income is adversely affected. To the extent that overall economic conditions reduce spending on discretionary activities, our ability to retain
current and obtain new Premium Subscribers could be hindered, which could reduce our subscription revenue and negatively impact our business. For example, the
economic disruption caused by the COVID-19 pandemic has adversely affected, and could continue to adversely affect, the levels of advertising spending and
consumer spending on discretionary items, which in turn adversely affect our ad sales and Subscriber revenue. See “Risks Related to Our Business Model,
Strategy, and Performance—The COVID-19 pandemic has had, and could continue to have, an adverse impact on our business, operating results, and financial
condition.” Additionally, under the terms of a withdrawal agreement between the United Kingdom and the EU, the United Kingdom
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formally left the EU on January 31, 2020, and on January 1, 2021, the United Kingdom left the EU Single Market and Customs Union, as well as all EU policies
and international agreements. On December 24, 2020, the European Commission reached a trade agreement with the United Kingdom on the terms of its future
cooperation with the EU (the “Trade Agreement”). Although we cannot predict the impact that the Trade Agreement and any future agreements on services will
have on our business, it is possible that new terms, as well as the continued uncertainty related to Brexit, may adversely affect consumer confidence and the level
of consumer purchases of discretionary items, including our Service. Any such effect could adversely affect our business, operating results, and financial condition.
Risks Related to Our Metrics
Our user metrics and other estimates are subject to inherent challenges in measurement, and real or perceived inaccuracies in those metrics may
seriously harm and negatively affect our reputation and our business.
We regularly review key metrics related to the operation of our business, including, but not limited to, our monthly active users (“MAUs”), Ad-Supported
MAUs, Premium average revenue per user (“ARPU”), and Premium Subscribers, to evaluate growth trends, measure our performance, and make strategic
decisions. These metrics are calculated using internal company data and have not been validated by an independent third party. While these numbers are based on
what we believe to be reasonable estimates of our user base for the applicable period of measurement, there are inherent challenges in measuring how our Service
is used across large populations globally. For example, we believe that while there are individuals who have multiple Spotify accounts, which we treat as multiple
users for purposes of calculating our active users, there are also Spotify accounts that are used by more than one person. Accordingly, the calculations of our active
users may not reflect the actual number of people using our Service. In addition, we are continually seeking to improve our estimates of our user base, and such
estimates may change due to improvements or changes in our methodology, including improvements in our ability to identify and/or address previously undetected
undesirable user behaviors. We cannot assure you that our efforts to improve our estimates of user base and to identify and/or address undesirable user behaviors
will be successful, and these efforts could result in the removal of certain user accounts and/or a reduction in MAUs or other metrics.
Errors or inaccuracies in our metrics or data could result in incorrect business decisions and inefficiencies, including expending resources to implement
unnecessary business measures or failing to take required actions to attract a sufficient number of users to satisfy our growth strategies.
In addition, advertisers generally rely on third-party measurement services to calculate metrics related to our advertising business, and these third-party
measurement services may not reflect our true audience. Some of our demographic data also may be incomplete or inaccurate because users self-report their names
and dates of birth or because we receive them from other third parties. Consequently, the personal data we have may differ from our users’ actual names and ages.
If advertisers, partners, or investors do not perceive our user, geographic, or other demographic metrics to be accurate representations of our user base, or if we
discover material inaccuracies in our user, geographic, or other demographic metrics, our reputation may be seriously harmed.
We are at risk of artificial manipulation of stream counts and failure to effectively manage and remediate such fraudulent streams could have an adverse
impact on our business, operating results, and financial condition. Fraudulent streams and potentially associated fraudulent user accounts or artists may
cause us to overstate key performance indicators, which once discovered, corrected, and disclosed, could undermine investor confidence in the integrity of our
key performance indicators and could cause our stock price to drop significantly.
We have in the past been, and continue to be, impacted by attempts by third parties to artificially manipulate stream counts. Such attempts may, for example,
be designed to generate revenue for rights holders or to influence placement of content on Spotify-created playlists or industry music charts. These potentially
fraudulent streams may involve creating non-bona fide user accounts or artists or using compromised passwords to access legitimate user accounts. For example,
we have detected instances of botnet operators creating fake user accounts or hackers using passwords compromised as a result of a breach on a non-Spotify
service to access legitimate user accounts and streaming specific content repeatedly, thereby generating royalties each time the content is streamed or increasing its
visibility on our or third-party charts. We use a combination of algorithms and manual review by employees to detect fraudulent streams and aim to remove fake
user accounts created for the above purposes and filter them out from our metrics on an ongoing basis, as well as to require users to reset passwords that we suspect
have been compromised. However, we may not be successful in detecting, removing, and addressing all fraudulent streams and any related user accounts. If we fail
to successfully detect, remove, and address fraudulent streams and associated user accounts, it may result in the manipulation of our data, including the key
performance indicators, which underlie, among other things, our contractual obligations with rights holders and advertisers (which could expose us to the risk of
litigation), as well as harm our relationships with rights holders and advertisers. In addition, once we detect, correct, and disclose fraudulent streams and associated
user accounts, this may result in the removal of certain user accounts and/or a reduction in account activity,
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which may affect key performance indicators and undermine investor confidence in the integrity of our key performance indicators. These could have a material
adverse impact on our business, operating results, and financial condition.
We are at risk of attempts to manipulate or exploit our software for the purpose of gaining or providing unauthorized access to certain features of our
Service, and failure to effectively prevent and remediate such attempts could have an adverse impact on our business, operating results, and financial
condition.
We have in the past been, and continue to be, impacted by attempts by third parties to manipulate or exploit our software for the purpose of gaining or
providing unauthorized access to certain features of our Service. For example, we have detected instances of third parties seeking to provide mobile device users a
means to suppress advertisements without payment and gain access to features only available to the Ad-Supported Service on tablets and desktop computers. If we
fail to successfully detect and address such issues, it may have artificial effects on our key performance indicators, such as MAUs, which underlie, among other
things, our contractual obligations with rights holders and advertisers (which could expose us to the risk of litigation), as well as harm our relationship with rights
holders and advertisers. The discovery or development of any new method to gain unauthorized access to certain features of our Service, such as through the
exploitation of software vulnerabilities, and the sharing of any such method among third parties, may increase the level of unauthorized access (and the attendant
negative financial impact described above). We cannot assure you we will be successful in finding ways to effectively address unauthorized access achieved
through any such method. Additionally, compared to our Ad-Supported Users, individuals using unauthorized versions of our application may be less likely to
convert to Premium Subscribers. Moreover, once we detect and disable such unauthorized access, this may result in the removal of certain user accounts and/or a
reduction in account activity, which may affect our key performance indicators and could undermine investor confidence in the integrity of our key performance
indicators. These could have a material adverse impact on our business, operating results, and financial condition.
Risks Related to Tax
We are a multinational company that faces complex taxation regimes in various jurisdictions. Audits, investigations, and tax proceedings could have a
material adverse effect on our business, operating results, and financial condition.
We are subject to income and non-income taxes in numerous jurisdictions. Income tax accounting often involves complex issues, and judgment is required in
determining our worldwide provision for income taxes and other tax liabilities. In particular, most of the jurisdictions in which we conduct business have detailed
transfer pricing rules, which require that all transactions with non-resident related parties be priced using arm’s length pricing principles within the meaning of
such rules. We are subject to ongoing tax audits in several jurisdictions, and most of such audits involve transfer pricing issues. We regularly assess the likely
outcomes of these audits in order to determine the appropriateness of our tax reserves as well as tax liabilities going forward. We have initiated and are in
negotiations of an Advance Pricing Agreement (“APA”) between Sweden and the United States governments for tax years 2014 through 2020 covering various
transfer pricing matters. These transfer pricing matters may be significant to our consolidated financial statements. We believe that our tax positions are reasonable
and our tax reserves are adequate to cover any potential liability. We believe that our assumptions, judgements, and estimates are also reasonable. However, tax
authorities in certain jurisdictions may disagree with our position, including any judgements or estimates used. If any of these tax authorities were successful in
challenging our positions, we may be liable for additional income tax and penalties and interest related thereto in excess of any reserves established therefor, which
may have a significant impact on our results and operations and future cash flow.
We may not be able to utilize all, or any, of our net operating loss carry-forwards.
We have significant net operating loss carry-forwards in Sweden and the United States. As of December 31, 2020, we had net operating loss carry-forwards
of €100 million in Luxembourg, €1,293 million in Sweden, €461 million in the United States relating to federal taxes, and €315 million in the United States
relating to state taxes. In certain jurisdictions, if we are unable to earn sufficient income or profits to utilize such carry-forwards before they expire, they will no
longer be available to offset future income or profits.
In Sweden, utilization of these net operating loss carry-forwards may be subject to a substantial annual limitation or elimination in full or part if there is an
ownership or control change within the meaning of Chapter 40, paragraphs 10-14 of the Swedish Income Tax Act (the “Swedish Income Tax Act”). In general, an
ownership or control change, as defined by the Swedish Income Tax Act, results from a transaction or series of transactions over a five-year period resulting in an
ownership or control change of a company by certain categories or individuals, businesses or organizations. The treatment of the issuance of the beneficiary
certificates in February 2018 is unclear under the Swedish Income Tax Act and there is a risk that such issuance may have constituted an ownership or control
change, as defined by the Swedish Income Tax Act. If our issuance of the beneficiary certificates were to be deemed to have constituted an ownership or control
change, our ability to use our net operating loss carry-forwards may be limited or eliminated.
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In addition, in the United States, utilization of these net operating loss carry-forwards may be subject to a substantial annual limitation if there is an
ownership change within the meaning of Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change, as defined by Section 382,
results from a transaction or series of transactions over a three-year period resulting in an ownership change of more than 50% of the outstanding stock of a
company by certain stockholders or public groups. Since our formation, we have raised capital through the issuance of capital stock on several occasions, and we
may continue to do so in the future, which, combined with current or future shareholders’ disposition of ordinary shares, may have resulted in such an ownership
change. Such an ownership change may limit the amount of net operating loss carry-forwards that can be utilized to offset future taxable income.
If the fair market value of our ordinary shares fluctuates unpredictably and significantly on a quarterly basis, the social costs we accrue for share-based
compensation may fluctuate unpredictably and significantly, which could result in our failing to meet our expectations or investor expectations for quarterly
financial performance. This could negatively impact investor sentiment for the Company, and as a result, adversely impact the price of our ordinary shares.
Social costs are payroll taxes associated with employee salaries and benefits, including share-based compensation that we are subject to in various countries
in which we operate. This is not a withholding tax. For the year ended December 31, 2020, we recorded a social cost expense related to share-based compensation
of €168 million compared to a €37 million expense for the year ended December 31, 2019.
When the fair market value of our ordinary shares increases on a quarter-to-quarter basis, the accrued expense for social costs will increase, and when the fair
market value of ordinary shares falls, the accrued expense will become a reduction in social costs expense, all other things being equal, including the number of
vested stock options and exercise price remaining constant. The fair market value of our ordinary shares has been and will likely continue to be volatile. See “—
Risks Related to Owning Our Ordinary Shares—The trading price of our ordinary shares has been and will likely continue to be volatile.” As a result, the accrued
expense for social costs may fluctuate unpredictably and significantly from quarter to quarter, which could result in our failing to meet our expectations or investor
expectations for quarterly financial performance. This could negatively impact investor sentiment for the company, and as a result, the price for our ordinary
shares.
Approximately 30% of our employees are in Sweden. With respect to our employees in Sweden, we are required to pay a 31.42% tax to the Swedish
government on the profit an employee realizes on the exercise of our stock options or the vesting of our RSUs. They accounted for a total of 1,716,413 in vested
options as of December 31, 2020 compared to a total of 1,849,493 in vested options as of December 31, 2019. We cannot accurately predict how many of their
vested options will remain outstanding. As a result, the cash payments to the Swedish government upon the exercise of vested stock options may vary significantly
from quarter to quarter.
Given our levels of share-based compensation, our tax rate may vary significantly depending on our share price.
The tax effects of the accounting for share-based compensation may significantly impact our effective tax rate from period to period. When the share price of
awards exercised in the period is greater than the accounting expense for those awards, the resulting excess tax benefits will be presented in equity. This means that
although these excess benefits reduce our taxable income and our current tax liability, the benefit is reflected in equity rather than in the consolidated statement of
operations. There can be periods when our current tax liability is nil but we disclose an income tax expense in the consolidated statement of operations (with an
offsetting credit in equity).
These tax effects are dependent on our share price and level of exercises in a period, which we do not control and could significantly impact our effective tax
rate and adversely affect our operating results.
Changes to tax laws, including new proposals on taxing digital companies, in any of the jurisdictions in which we operate could have a material adverse
effect on our business, results of operations, and financial condition.
Tax laws, including tax rates, in the jurisdictions in which we operate may change as a result of macroeconomic or other factors outside of our control. For
example, various governments and organizations such as the EU and Organization for Economic Co-operation and Development are increasingly focused on tax
reform and other legislative or regulatory action to increase tax revenue, such as the imposition of taxes in connection with certain digital services.
The U.S. tax reform enacted in 2017 (informally titled the “Tax Cuts and Jobs Act”) introduced a number of significant changes to the U.S. federal income
tax rules. Among other things, the Tax Cuts and Jobs Act reduced the marginal U.S. corporate income tax rate from 35% to 21%, limited the deduction for net
interest expense, shifted the United States toward a more territorial tax system, and imposed new taxes to combat erosion of the U.S. federal income tax base. Our
financial statements for the year ended December 31, 2020 reflect the effects of the applicable provisions within the tax law changes based on current guidance.
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Changes in tax laws, treaties, or regulations or their interpretation or enforcement are unpredictable. Any of these occurrences could have a material adverse
effect on our results of operations and financial condition.
We may be classified as a passive foreign investment company, which could result in adverse U.S. federal income tax consequences to U.S. Holders of
our ordinary shares.
We would be classified as a passive foreign investment company (“PFIC”) for any taxable year if, after the application of certain look-through rules, either:
(i) 75% or more of our gross income for such year is “passive income” (as defined in the relevant provisions of the Internal Revenue Code of 1986, as amended),
or (ii) 50% or more of the value of our assets (determined on the basis of a quarterly average) during such year is attributable to assets that produce or are held for
the production of passive income. Based on the trading price of our ordinary shares and the composition of our income, assets and operations, we do not believe
that we were a PFIC for U.S. federal income tax purposes for the taxable year ending on December 31, 2020, nor that we will be a PFIC in the foreseeable future.
However, this is a factual determination that must be made annually after the close of each taxable year. Moreover, the value of our assets for purposes of the PFIC
determination may be determined by reference to the trading price of our ordinary shares, which could fluctuate significantly. Therefore, there can be no assurance
that we will not be classified as a PFIC in the future. Certain adverse U.S. federal income tax consequences could apply to a U.S. Holder if we are treated as a PFIC
for any taxable year during which such U.S. Holder holds our ordinary shares. Accordingly, each holder of our ordinary shares should consult such holder’s tax
advisor as to the potential effects of the PFIC rules.
If a United States person is treated as owning at least 10% of our ordinary shares, such holder may be subject to adverse U.S. federal income tax
consequences.
If a United States person is treated as owning (directly, indirectly, or constructively) at least 10% of the value or voting power of our ordinary shares, such
person may be treated as a “United States shareholder” with respect to each “controlled foreign corporation” in our group (if any). Because our group includes one
or more U.S. subsidiaries, certain of our non-U.S. subsidiaries could be treated as controlled foreign corporations (regardless of whether or not we are treated as a
controlled foreign corporation). A United States shareholder of a controlled foreign corporation may be required to report annually and include in its U.S. taxable
income its pro rata share of “Subpart F income,” “global intangible low-taxed income,” and investments in U.S. property by controlled foreign corporations,
regardless of whether we make any distributions. An individual that is a United States shareholder with respect to a controlled foreign corporation generally would
not be allowed certain tax deductions or foreign tax credits that would be allowed to a United States shareholder that is a U.S. corporation. Failure to comply with
these reporting obligations may subject a United States shareholder to significant monetary penalties and may prevent the statute of limitations with respect to such
shareholder’s U.S. federal income tax return for the year for which reporting was due from starting. We cannot provide any assurances that we will assist investors
in determining whether any of our non-U.S. subsidiaries is treated as a controlled foreign corporation or whether any investor is treated as a United States
shareholder with respect to any such controlled foreign corporation or furnish to any United States shareholders information that may be necessary to comply with
the aforementioned reporting and tax paying obligations. A United States investor should consult its advisors regarding the potential application of these rules to an
investment in our ordinary shares.
Risks Related to Owning Our Ordinary Shares
The trading price of our ordinary shares has been and will likely continue to be volatile.
The trading price of our ordinary shares has been and is likely to continue to be volatile. In 2020, the trading price of our ordinary shares ranged from
$117.64 to $343.30. The market price of our ordinary shares may fluctuate or decline significantly in response to numerous factors, many of which are beyond our
control, including:
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the number of our ordinary shares publicly owned and available for trading;
quarterly variations in our results of operations or those of our competitors;
the accuracy of our financial guidance or projections;
our actual or anticipated operating performance and the operating performance of similar companies in the internet, radio, or digital media spaces;
our announcements or our competitors’ announcements regarding new services, enhancements, significant contracts, acquisitions, or strategic
investments;
general economic conditions and their impact on advertising spending;
the overall performance of the equity markets, including fluctuations due to general economic uncertainty or negative market sentiment, in particular
related to the COVID-19 pandemic;
threatened or actual litigation;
changes in laws or regulations relating to our Service;
any major change in our board of directors or management;
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•
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publication of research reports about us or our industry or changes in recommendations or withdrawal of research coverage by securities analysts; and
sales or expected sales, or repurchases or expected repurchases, of our ordinary shares by us, and our officers, directors, and significant shareholders.
In addition, the stock market in general, and the market for technology companies in particular, have experienced extreme price and volume fluctuations that
often have been unrelated or disproportionate to the operating performance of those companies. Price volatility over a given period may cause the average price at
which the Company repurchases its ordinary shares to exceed the trading price at a given point in time. Securities class action litigation has often been instituted
against companies following periods of volatility in the overall market and in the market price of a company’s securities. Such litigation, if instituted against us,
could result in very substantial costs, divert our management’s attention and resources and harm our business, operating results, and financial condition.
Because of their significant ownership of our ordinary shares and beneficiary certificates, our founders have substantial control over our business, and
their interests may differ from our interests or those of our other shareholders. Sales of substantial amounts of our ordinary shares in the public markets by
our founders or other shareholders, or the perception that such sales might occur, could reduce the price that our ordinary shares might otherwise attain and
may dilute your voting power and your ownership interest in us.
As of December 31, 2020, our founders, Daniel Ek and Martin Lorentzon, beneficially owned or controlled, directly or indirectly, ordinary shares and
beneficiary certificates representing 33.5% and 41.9% of the combined voting power of all of our outstanding voting securities, respectively (or 75.4% in the
aggregate). See “Item 7.A. Major Shareholders.” Additionally, our shareholders have authorized the issuance of up to 1,400,000,000 beneficiary certificates to
shareholders of the Company. We may issue additional beneficiary certificates under the total authorized amount at the discretion of our board of directors, of
which our founders are members. Pursuant to our articles of association, the beneficiary certificates may be issued at a ratio of between one and 20 beneficiary
certificates per ordinary share as determined by our board of directors or its delegate at the time of issuance. For example, in the future, we may issue to Mr. Ek up
to 20 beneficiary certificates for each ordinary share he receives upon the exercise of outstanding warrants, of which he currently holds 800,000 in the aggregate.
As a result of this ownership or control of our voting securities, if our founders act together, they will have control over the outcome of substantially all
matters submitted to our shareholders for approval, including the election of directors. This may delay or prevent an acquisition or cause the trading price of our
ordinary shares to decline. Our founders may have interests different from yours. Therefore, the concentration of voting power among our founders may have an
adverse effect on the price of our ordinary shares.
Sales of substantial amounts of our ordinary shares in the public market by our founders, affiliates, or non-affiliates, or the perception that such sales could
occur, could adversely affect the trading price of our ordinary shares and may make it more difficult for you to sell your ordinary shares at a time and price that you
deem appropriate.
If securities or industry analysts publish inaccurate or unfavorable research about our business or cease publishing research about our business, our
share price and trading volume could decline.
The trading market for our ordinary shares will be influenced by the research and reports that securities or industry analysts publish about our Company or
us. If one or more of the analysts who cover us downgrade our ordinary shares or publish inaccurate or unfavorable research about our Company, our ordinary
share price would likely decline. Further, if one or more of these analysts cease coverage of our Company or fail to publish reports on us regularly, demand for our
ordinary shares could decrease, which might cause our ordinary share price and trading volume to decline.
The requirements of being a public company may strain our resources and divert management’s attention.
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Sarbanes-Oxley Act, the listing
requirements of the NYSE, and other applicable securities rules and regulations. Compliance with these rules and regulations incurs substantial legal and financial
compliance costs, makes some activities more difficult, time-consuming, or costly, and places increased demand on our systems and resources. The Exchange Act
requires, among other things, that we file annual and current reports with respect to our business and operating results. The Sarbanes-Oxley Act requires, among
other things, that we maintain effective disclosure controls and procedures and internal control over financial reporting. In order to maintain disclosure controls and
procedures and internal control over financial reporting that meet this standard, significant resources and management oversight are required. As a result,
management’s attention may be diverted from other business concerns, which could harm our business and operating results.
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Provisions in our articles of association, the issuance of beneficiary certificates, and the existence of certain voting agreements may delay or prevent our
acquisition by a third party.
Our articles of association contain provisions that may make it more difficult or expensive for a third party to acquire control of us without the approval of
our board of directors and, if required, our shareholders. These provisions also may delay, prevent, or deter a merger, acquisition, tender offer, proxy contest, or
other transaction that might otherwise result in our shareholders receiving a premium over the market price for their ordinary shares. The provisions include,
among others, the authorization granted by the general meeting of shareholders to our board of directors to issue ordinary shares within the limits of the authorized
share capital at such times and on such terms as our board of directors may decide for a maximum period of five years after the date of publication in the
Luxembourg official gazette (Recueil électronique des Sociétés et Associations, as applicable) of the minutes of the relevant general meeting approving such
authorization. The general meeting may amend, renew, or extend such authorized share capital and such authorization to the board of directors to issue ordinary
shares.
The provisions of our articles of association could discourage potential takeover attempts and reduce the price that investors might be willing to pay for our
ordinary shares in the future, which could reduce the trading price of our ordinary shares.
Additionally, the issuance of beneficiary certificates also may make it more difficult or expensive for a third party to acquire control of us without the
approval of our founders. See “—The issuance of beneficiary certificates to certain shareholders will limit your voting power and will limit your ability to
influence the composition of the board of directors, strategy, or performance of the business. We cannot predict the impact that beneficiary certificates may have
on our stock price.”
We do not expect to pay cash dividends in the foreseeable future.
We have never declared or paid any cash dividends on our share capital. We currently intend to retain any future earnings for working capital and general
corporate purposes and do not expect to pay dividends or other distributions on our ordinary shares in the foreseeable future. As a result, you may only receive a
return on your investment in our ordinary shares if you sell some or all of your ordinary shares after the trading price of our ordinary shares increases. You may not
receive a gain on your investment when you sell your ordinary shares and you may lose the entire amount of the investment.
Moreover, we are a holding company and have no material assets other than our direct and indirect ownership of shares in our subsidiaries. Our ability to pay
any future dividends is subject to restrictions on the ability of our subsidiaries to pay dividends or make distributions to us, including the laws of the relevant
jurisdiction in which the subsidiaries are organized or located, as well as any restrictions in the future indebtedness of our subsidiaries or on our ability to receive
dividends or distributions from our subsidiaries. Since we are expected to rely primarily on dividends from our direct and indirect subsidiaries to fund our financial
and other obligations, restrictions on our ability to receive such funds may adversely impact our ability to fund our financial and other obligations.
The issuance of beneficiary certificates to certain shareholders will limit your voting power and will limit your ability to influence the composition of the
board of directors, strategy, or performance of the business. We cannot predict the impact that beneficiary certificates may have on our stock price.
Our shareholders have authorized the issuance of up to 1,400,000,000 beneficiary certificates to shareholders of the Company without reserving to our
existing shareholders a preemptive right to subscribe for the beneficiary certificates issued in the future. Entities beneficially owned by our founders, Daniel Ek and
Martin Lorentzon, collectively have 365,014,840 beneficiary certificates outstanding as of December 31, 2020. We may issue additional beneficiary certificates
under the total authorized amount at the discretion of our board of directors, of which our founders are members. Pursuant to our articles of association, our
beneficiary certificates may be issued at a ratio of between one and 20 beneficiary certificates per ordinary share as determined by our board of directors or its
delegate at the time of issuance. For example, in the future, we may issue to Mr. Ek up to 20 beneficiary certificates for each ordinary share he receives upon the
exercise of outstanding warrants, of which he currently holds 800,000. See “Item 6.B. Compensation—Compensation Discussion & Analysis—Warrants.” Each
beneficiary certificate entitles its holder to one vote. The beneficiary certificates carry no economic rights and are issued to provide the holders of such beneficiary
certificates additional voting rights. The beneficiary certificates, subject to certain exceptions, may not be transferred and will automatically be canceled for no
consideration in the case of sale or transfer of the ordinary share to which they are linked. As a result, the issuance of the beneficiary certificates and the voting
power that they provide to the shareholders receiving those beneficiary certificates will limit the voting power of minority shareholders and the ability of minority
shareholders to influence the composition of the board of directors, strategy, or performance of our business. See “—Because of their significant ownership of our
ordinary shares and beneficiary certificates, our founders have substantial control over our business, and their interests may differ from our interests or those of our
other shareholders. Sales of substantial amounts of our ordinary shares in the public markets by our founders or other shareholders, or the perception that
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such sales might occur, could reduce the price that our ordinary shares might otherwise attain and may dilute your voting power and your ownership interest in us,”
“Item 7.A. Major Shareholders”, and “Item 10.B. Memorandum and Articles of Association—Voting Rights.”
Finally, we cannot predict whether the issuance of additional beneficiary certificates will result in a lower or more volatile trading price of our ordinary
shares or result in adverse publicity or other adverse consequences. For example, FTSE Russell requires new constituents of its indexes to have greater than five
percent of the company’s voting rights in the hands of public shareholders, and S&P Dow Jones will not admit companies with multiple-class share structures to
certain of its indexes. While we do not have a multiple-class share structure, we cannot predict if we would be excluded from these indexes as a result of the
issuance of beneficiary certificates and we cannot assure you that other stock indexes will not take similar actions. Given the sustained flow of investment funds
into passive strategies that seek to track certain indexes, exclusion from stock indexes would likely preclude investment by many of these funds and could make
our ordinary shares less attractive to other investors. As a result, the trading price of our ordinary shares could be adversely affected.
Risks Related to Investment in a Luxembourg Company and Our Status as a Foreign Private Issuer
As a foreign private issuer, we are exempt from a number of U.S. securities laws and rules promulgated thereunder and are permitted to publicly disclose
less information than U.S. companies must. This may limit the information available to holders of the ordinary shares.
We currently qualify as a foreign private issuer, as defined in the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”), and,
consequently, we are not subject to all of the disclosure requirements applicable to companies organized within the United States. For example, we are exempt
from certain rules under the Exchange Act, that regulate disclosure obligations and procedural requirements related to the solicitation of proxies, consents or
authorizations applicable to a security registered under the Exchange Act. In addition, our officers and directors are exempt from the reporting and “short-swing”
profit recovery provisions of Section 16 of the Exchange Act and related rules with respect to their purchases and sales of our securities. For example, some of our
key executives may sell a significant amount of ordinary shares and such sales will not be required to be disclosed as promptly as companies organized within the
United States would have to disclose. Accordingly, once such sales are eventually disclosed, our ordinary share price may decline significantly. Moreover, we are
not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. public companies. We are also not subject to
Regulation FD under the Exchange Act, which would prohibit us from selectively disclosing material nonpublic information to certain persons without
concurrently making a widespread public disclosure of such information. Accordingly, there may be less publicly available information concerning our company
than there is for U.S. public companies.
As a foreign private issuer, we are required to file an annual report on Form 20-F within four months of the close of each fiscal year ended December 31 and
furnish reports on Form 6-K relating to certain material events promptly after we publicly announce these events. However, because of the above exemptions for
foreign private issuers, our shareholders may not always be afforded the same information generally available to investors holding shares in public companies that
are not foreign private issuers.
The rights of our shareholders may differ from the rights they would have as shareholders of a U.S. corporation, which could adversely impact trading in
our ordinary shares and our ability to conduct equity financings.
Our corporate affairs are governed by our articles of association and the laws of Luxembourg, including the Luxembourg Company Law (loi du 10 août 1915
concernant les sociétés commerciales, telle qu’elle a été modifiée). The rights of our shareholders and the responsibilities of our directors and officers under
Luxembourg law are different from those applicable to a corporation incorporated in the United States. See “Item 10.B. Memorandum and Articles of Association
—Differences in Corporate Law” for an explanation of the differences. In addition, Luxembourg law governing the securities of Luxembourg companies may not
be as extensive as those in effect in the United States, and Luxembourg law and regulations in respect of corporate governance matters might not be as protective
of minority shareholders as state corporation laws in the United States. Therefore, our shareholders may have more difficulty in protecting their interests in
connection with actions taken by our directors and officers or our principal shareholders than they would as shareholders of a corporation incorporated in the
United States.
We are organized under the laws of Luxembourg and a substantial amount of our assets are not located in the United States. It may be difficult for you
to obtain or enforce judgments or bring original actions against us or the members of our board of directors in the United States.
We are organized under the laws of Luxembourg. In addition, a substantial amount of our assets are located outside the United States. Furthermore, many of
the members of our board of directors and officers reside outside the United States and a substantial portion of their assets are located outside the United States.
Investors may not be able to effect service of process within the United States upon us or these persons or enforce judgments obtained against us or these persons
in U.S. courts,
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including judgments in actions predicated upon the civil liability provisions of the U.S. federal securities laws. Likewise, it may also be difficult for an investor to
enforce in U.S. courts judgments obtained against us or these persons in courts located in jurisdictions outside the United States, including judgments predicated
upon the civil liability provisions of the U.S. federal securities laws. Awards of punitive damages in actions brought in the United States or elsewhere are generally
not enforceable in Luxembourg.
As there is no treaty in force on the reciprocal recognition and enforcement of judgments in civil and commercial matters between the United States and
Luxembourg, courts in Luxembourg will not automatically recognize and enforce a final judgment rendered by a U.S. court. A valid judgment obtained from a
court of competent jurisdiction in the United States may be entered and enforced through a court of competent jurisdiction in Luxembourg, subject to compliance
with the enforcement procedures (exequatur). The enforceability in Luxembourg courts of judgments rendered by U.S. courts will be subject, prior to any
enforcement in Luxembourg, to the procedure and the conditions set forth in the Luxembourg procedural code. In addition, actions brought in a Luxembourg court
against us, the members of our board of directors, or our officers to enforce liabilities based on U.S. federal securities laws may be subject to certain restrictions. In
particular, Luxembourg courts generally do not award punitive damages. Litigation in Luxembourg also is subject to rules of procedure that differ from the U.S.
rules. Proceedings in Luxembourg would have to be conducted in the French or German language, and all documents submitted to the court would, in principle,
have to be translated into French or German. For these reasons, it may be difficult for a U.S. investor to bring an original action in a Luxembourg court predicated
upon the civil liability provisions of the U.S. federal securities laws against us, the members of our board of directors, or our officers. In addition, even if a
judgment against the Company, the non-U.S. members of our board of directors, or our officers based on the civil liability provisions of the U.S. federal securities
laws is obtained, a U.S. investor may not be able to enforce it in U.S. or Luxembourg courts.
Our articles of association provide that directors and officers, past and present, are entitled to indemnification from us to the fullest extent permitted by
Luxembourg law against all liability and expenses reasonably incurred or paid by him or her in connection with any claim, action, suit, or proceeding in which he
or she would be involved by virtue of his or her being or having been a director or officer and against amounts paid or incurred by him or her in the settlement
thereof, subject to limited exceptions. The rights to and obligations of indemnification among or between us and any of our current or former directors and officers
are generally governed by the laws of Luxembourg and subject to the jurisdiction of the Luxembourg courts, unless such rights or obligations do not relate to or
arise out of such persons’ capacities listed above. Although there is doubt as to whether U.S. courts would enforce this indemnification provision in an action
brought in the United States under U.S. federal or state securities laws, this provision could make it more difficult to obtain judgments outside Luxembourg or from
non-Luxembourg jurisdictions that would apply Luxembourg law against our assets in Luxembourg.
Luxembourg and European insolvency and bankruptcy laws are substantially different from U.S. insolvency laws and may offer our shareholders less
protection than they would have under U.S. insolvency and bankruptcy laws.
As a company organized under the laws of Luxembourg and with its registered office in Luxembourg, we are subject to Luxembourg insolvency and
bankruptcy laws in the event any insolvency proceedings are initiated against us including, among other things, Council and European Parliament Regulation (EU)
2015/848 of 20 May 2015 on insolvency proceedings (recast). Should courts in another European country determine that the insolvency and bankruptcy laws of
that country apply to us in accordance with and subject to such EU regulations, the courts in that country could have jurisdiction over the insolvency proceedings
initiated against us. Insolvency and bankruptcy laws in Luxembourg or the relevant other European country, if any, may offer our shareholders less protection than
they would have under U.S. insolvency and bankruptcy laws and make it more difficult for them to recover the amount they could expect to recover in a liquidation
under U.S. insolvency and bankruptcy laws.
Item 4. Information on the Company
A. History and Development of the Company
We are a Luxembourg public limited liability company (société anonyme), which means that shareholders’ liability is limited to their contributions to the
company. The shares forming the share capital of a Luxembourg public limited liability company (société anonyme) may be publicly traded and registered on a
stock exchange. Our legal name is “Spotify Technology S.A.” and our commercial name is “Spotify.” We were incorporated on December 27, 2006 as a
Luxembourg private limited liability company (société à responsabilité limitée) and were transformed, on March 20, 2009, into a Luxembourg public limited
liability company (société anonyme). The principal legislation under which we operate, and under which our ordinary share capital has been created, is the law of
10 August 1915 on commercial companies, as amended, and the law of 19 December 2002 on the register of commerce and companies and the accounting and
annual accounts of undertakings and the regulations, as amended, made thereunder.
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We are registered with the Luxembourg Trade and Companies’ Register under number B.123.052. Our registered office is located at 42-44, avenue de la
Gare L-1610 Luxembourg, Grand Duchy of Luxembourg, and our principal operational office is located at Regeringsgatan 19, 111 53 Stockholm, Sweden. Our
agent for U.S. federal securities law purposes is Horacio Gutierrez, Head of Global Affairs and Chief Legal Officer, 150 Greenwich Street, 63rd Floor, New York,
New York 10007.
On April 3, 2018, we completed a direct listing of the Company’s ordinary shares on the NYSE.
On February 14, 2019, we acquired Anchor FM Inc. (“Anchor”), a software company that enables users to create and distribute their own podcasts, for a
total purchase consideration of €136 million. The acquisition allows us to leverage Anchor’s creator-focused platform to accelerate our path to becoming the
world’s leading audio platform.
On February 15, 2019, we acquired Gimlet Media Inc. (“Gimlet”), an independent producer of podcast content, for a total purchase consideration of €172
million. The acquisition allows us to leverage Gimlet’s in-depth knowledge of original content production and podcast monetization.
On April 1, 2019, we acquired Cutler Media, LLC (“Parcast”), a premier storytelling podcast studio, for a total purchase consideration of €49 million. The
acquisition allows us to bolster our content portfolio and utilize Parcast’s writers, producers, and researchers in the production of high-quality content.
On March 6, 2020, we acquired Bill Simmons Media Group, LLC (“The Ringer”), a leading creator of sports, entertainment, and pop culture content, for
a total purchase consideration of €170 million. The acquisition allows us to expand our content offering, audience reach, and podcast monetization.
On December 8, 2020, we acquired Megaphone LLC (“Megaphone”), a podcast technology company, for a total purchase consideration of €195 million.
The acquisition allows us to expand and scale our podcast monetization and product offering for advertisers.
See Note 5 to our consolidated financial statements included elsewhere in this report.
B. Business Overview
Our mission is to unlock the potential of human creativity by giving a million creative artists the opportunity to live off their art and billions of fans the
opportunity to enjoy and be inspired by these creators.
We are the most popular global audio streaming subscription service. With a presence in 93 countries and territories and growing, our platform includes
345 million MAUs and 155 million Premium Subscribers as of December 31, 2020.
We currently monetize our Service through both subscriptions and advertising. Our Premium Subscribers grew 24% year-over-year as of December 31,
2020 to 155 million. Our 345 million MAUs grew 27% year-over-year as of December 31, 2020. The Premium Service and Ad-Supported Service live
independently, but thrive together. Our Ad-Supported Service serves as a funnel, driving a significant portion of our total gross added Premium Subscribers. With a
25% increase in revenue from our Ad-Supported Service from 2018 to 2019 and a 10% increase in revenue from our Ad-Supported Service from 2019 to 2020, we
believe our Ad-Supported Service is a strong and viable stand-alone product with considerable long-term opportunity for growth in Ad-Supported Users, revenue,
and gross profit contribution. However, we face intense competition in growing both our Ad-Supported Users and Premium Subscribers, as well as in keeping our
users highly engaged. If user engagement declines or if we fail to continue to grow our Ad-Supported User base or Premium Subscriber base, our revenue growth
will be negatively impacted. See “Item 3.D. Risk Factors—Risks Related to Our Business Model, Strategy, and Performance—If our efforts to attract prospective
users and to retain existing users are not successful, our growth prospects and revenue will be adversely affected.”
For the years ended December 31, 2020, 2019, and 2018, we generated €7,880 million, €6,764 million, and €5,259 million in revenue, respectively,
representing a CAGR of 22%. For the years ended December 31, 2020, 2019, and 2018, we incurred net losses of €581 million, €186 million, and €78 million,
respectively. For the years ended December 31, 2020, 2019, and 2018, our net cash flow from operating activities was €259 million, €573 million, and
€344 million, respectively. For the years ended December 31, 2020, 2019, and 2018, our Free Cash Flow was €183 million, €440 million, and €209 million,
respectively. Free Cash Flow is a non-IFRS financial measure. For a discussion of Free Cash Flow and a reconciliation to its most closely comparable IFRS
measures, see “Item 3.A. Selected Financial Data.”
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Music Industry Growth Continues to be Led by Streaming
Following more than 10 years of decline as the industry transitioned from physical product sales to streaming access models, the global recorded music
business hit its digital inflection point in 2015 and has grown ever since. Global recorded music industry revenues grew 8% to $20.2 billion in 2019, following on
growth of 10% in 2018, 8% in 2017, 9% in 2016, and 4% in 2015. Industry-wide streaming revenues grew nearly 23% in 2019, accounting for over 56% of global
recorded music industry revenues and more than offsetting the industry’s mid-single digit decline in physical sales.
As the largest global audio subscription streaming service, we are a key driver of global recorded music revenue growth. Through December 31, 2020, we
have paid more than €21 billion in royalties to certain record labels, music publishers, and other rights holders since our launch. In 2020, our expenses for rights
holders grew by 17% compared to the prior year, making us one of the largest engines for revenue growth to artists and labels in the music industry.
Spotify is the Most Popular Global Audio Streaming Subscription Service
Spotify has transformed the way people access and enjoy music and podcasts. Today, millions of people around the world have access to over 70 million
tracks, including 2.2 million podcast titles, through Spotify whenever and wherever they want.
We are transforming the music industry by allowing users to move from a “transaction-based” experience of buying and owning music to an “access-
based” model, which allows users to stream music on demand. In contrast, traditional radio relies on a linear distribution model in which stations and channels are
programmed to deliver a limited song selection with little freedom of choice.
We are actively investing in podcasts and other forms of alternative and spoken word content to complement the music library available through our
platform. Approximately 25% of our Monthly Active Users as of December 31, 2020 have consumed this kind of content. We believe offering a more diverse
selection of content will lead to a more enriching experience and higher user engagement. To the extent such content is made exclusive to our platform through
direct ownership or licensing arrangements, we believe these investments can help differentiate our service, attract incremental users, and enhance engagement.
Spotify is more than an audio streaming service. We are in the discovery business. Every day, fans from around the world trust our brand to guide them to
music and entertainment that they would never have discovered on their own. If discovery drives delight, and delight drives engagement, and engagement drives
discovery, we believe Spotify wins and so do our users. Our brand reflects culture—and occasionally creates it—by turning vast and intriguing listening data into
compelling stories that remind people of the role music and other audio content play in their lives and encourage new fans to join Spotify each week.
Our Business Model
We offer both Premium and Ad-Supported Services. Our Premium and Ad-Supported Services live independently, but thrive together. We believe this
business model has allowed us to achieve scale with attractive unit economics and is a critical part of our success. Our Ad-Supported Service serves as a funnel,
driving a significant portion of our total gross added Premium Subscribers. With a 10% increase in revenue from our Ad-Supported Service from 2019 to 2020, we
believe our Ad-Supported Service is a strong and viable stand-alone product with considerable long-term opportunity for growth in Ad-Supported Users and
revenue. However, we face intense competition in growing both our Ad-Supported Users and Premium Subscribers, as well as in keeping our users highly
engaged. If user engagement declines or if we fail to continue to grow our Ad-Supported User base or Premium Subscriber base, our revenue growth will be
negatively impacted. See “Item 3.D. Risk Factors—Risks Related to Our Business Model, Strategy, and Performance—If our efforts to attract prospective users
and to retain existing users are not successful, our growth prospects and revenue will be adversely affected.”
We continue to invest heavily in developing our two-sided marketplace with new and better product features and functionality for users and creators and
believe our investments are leading to higher user engagement and enjoyment. We provide personalization that drives a unique and tailored experience to each user
and the tools for artists to reach the widest fan base.
We are currently in 93 countries and territories, including our July 2020 launch in Russia, Commonwealth of Independent States, and the Balkans, and our
February 2021 launch in South Korea. On a geographic basis, all four of our major regions are growing. Europe is our largest region with 119 million MAUs,
accounting for 35% of our total MAUs as of December 31, 2020, an increase of 26% from the prior year. In our North America region, MAUs increased by 17%
from
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December 31, 2019 to December 31, 2020 and now account for 24% of our MAUs. Our two fastest growing regions are Latin America, with 22% of our MAUs, an
increase of 26% from December 31, 2019 to December 31, 2020, and the rest of the world, with 19% of our MAUs, an increase of 49% from December 31, 2019
to December 31, 2020.
Despite the worldwide disruption caused by the COVID-19 pandemic and shifted listening patterns, our Ad-Supported Users and Premium Subscribers
continued to spend significant time engaging with our Service. Combined, our audience streamed 92 billion hours of content for the year ended December 31,
2020, an increase of 26% compared to the year ended December 31, 2019.
Premium Service
Our Premium Service provides Premium Subscribers with unlimited online and offline high-quality streaming access to our catalog of music and
podcasts. In addition to accessing our catalog on computers, tablets, and mobile devices, users can connect through speakers, receivers, televisions, cars, game
consoles, and smart devices. The Premium Service offers a music listening experience without commercial breaks.
We generate revenue for our Premium segment through the sale of Premium Services. Premium Services are sold directly to end users and through
partners who are generally telecommunications companies that bundle the subscription with their own services or collect payment for the stand-alone subscriptions
from end customers.
We offer a variety of subscription pricing plans for our Premium Service, including our standard plan, Family Plan, Duo Plan, and Student Plan, among
others, to appeal to users with different lifestyles and across various demographics and age groups. Our pricing varies by plan and is adapted to each local market
to align with consumer purchasing power, general cost levels, and willingness to pay for an audio service.
We also bundle the Premium Service with third-party services and products.
In addition, as we have entered into new markets where recurring subscription services are less common, we have expanded our subscription products to
include prepaid options and durations other than monthly (both longer and shorter durations), as well as expanded both online and offline payment options.
Premium partner services are priced on a per-subscriber rate in a negotiated agreement.
Revenue for our Premium segment is a function of the number of Premium Subscribers who use our Premium Service. As of December 31, 2020 and
2019, we had approximately 155 million and 124 million Premium Subscribers, respectively. New Premium Subscribers primarily are sourced from the conversion
of our Ad-Supported Users. Through both our online platform and external marketing efforts, we engage our Ad-Supported Users by highlighting key features that
encourage conversion to our subscription offerings. These efforts include product links, campaigns targeting existing users, and performance marketing across
leading social media platforms. Additionally, new subscriber growth also is driven by the success of converting users from our trial programs to full-time Premium
Subscribers. These trial campaigns typically offer our Premium Service free or at a discounted price for a period of time.
Ad-Supported Service
Our Ad-Supported Service has no subscription fees and generally provides Ad-Supported Users with limited on-demand online access to our catalog of
music and unlimited online access to our catalog of podcasts on their computers, tablets, and compatible mobile devices. We generate revenue for our Ad-
Supported segment from the sale of display, audio, and video advertising delivered through advertising impressions across our music and podcast content. We
generally enter into arrangements with advertising agencies that purchase advertising on our platform on behalf of the agencies’ clients. These advertising
arrangements typically specify the type of advertising product, pricing, insertion dates, and number of impressions in a stated period.
Our advertising strategy centers on the belief that advertising products that are based in music and podcasts and are relevant to Ad-Supported Users and
podcast listeners can enhance user experiences and provide even greater returns for advertisers. We have historically introduced, and continue to introduce, new
advertising products across both music and podcast content. Offering advertisers additional ways to purchase advertising on an automated basis is a key way that
we intend to expand our portfolio of advertising products and enhance advertising revenue. Furthermore, we continue to focus on analytics and measurement tools
to evaluate, demonstrate, and improve the effectiveness of advertising campaigns on our platform.
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Revenue for our Ad-Supported segment is affected primarily by, but not limited to, the number of our Ad-Supported Users, the total content hours per
MAU of our Ad-Supported Users, and our ability to provide innovative advertising products that are relevant to our Ad-Supported Users and podcast listeners and
enhance returns for our advertising partners.
Licensing Agreements
In order to stream content to our users, we generally secure intellectual property rights to such content by obtaining licenses from, and paying royalties or
other consideration to, rights holders or their agents. Below is a summary of certain provisions of our license agreements relating to sound recordings and the
musical compositions embodied therein (i.e., the musical notes and the lyrics), as well as podcasts and other non-music content.
Sound Recording License Agreements with Major and Independent Record Labels
We have license agreements with record label affiliates of the three largest music companies—Universal Music Group, Sony Music Entertainment, and
Warner Music Group—as well as Merlin, which represents the digital rights on behalf of hundreds of independent record labels. These agreements require us to
pay royalties and, in some circumstances, make minimum guaranteed payments. They also often include marketing commitments, advertising inventory, financial
and data reporting obligations, and numerous prescriptions about the manner in which the Spotify service is operated. Rights to sound recordings granted pursuant
to these agreements accounted for over 78% of music streams for the year ended December 31, 2020. Generally, these license agreements have a multi-year
duration, are not automatically renewable, and apply worldwide (subject to agreement on rates with certain rights holders prior to launching in new territories). The
license agreements also allow for the record label to terminate the agreement in certain circumstances, including, for example, our failure to timely pay sums due
within a certain period, our breach of material terms, and in some situations that could constitute a “change of control” of Spotify. These agreements generally
provide that the record labels have the right to audit us for compliance with the terms of these agreements. Further, some agreements contain “most favored
nations” provisions, which require that certain material contract terms are at least as favorable as the terms we have agreed to with other record labels. As of
December 31, 2020, we have estimated future minimum guarantee commitments of €3.6 billion. See “Item 3.D. Risk Factors—Risks Related to Securing the
Rights to the Content We Stream—Minimum guarantees required under certain of our license agreements may limit our operating flexibility and may adversely
affect our business, operating results, and financial condition.”
We also have direct license agreements with independent labels, as well as companies known as “aggregators” (for example, Believe Digital, CDBaby,
Distrokid, and TuneCore). The majority of these agreements are worldwide (subject to agreement on rates with certain rights holders prior to launching in new
territories) but others, with local repertoire, are limited to specific territories. These agreements have financial and data reporting obligations and audit rights.
We also offer marketplace programs, some of which may result in a discounted recording royalty rate.
Musical Composition License Agreements with Music Publishers
We generally obtain licenses for two types of rights with respect to musical compositions: mechanical rights and public performance rights.
With respect to mechanical rights, in the United States, the rates that the Copyright Royalty Board set apply both to compositions that we license under the
compulsory license in Section 115 of the Copyright Act of 1976 (the “Copyright Act”) and to a number of direct licenses that we have with music publishers for
U.S. rights, in which the applicable rate is generally pegged to the statutory rate set by the Copyright Royalty Board. In the United States, for the year ended
December 31, 2020, all compulsory licenses obtained by us pursuant to Section 115 of the Copyright Act and direct licenses entered into between us and music
publishers were administered by a third-party company, the Harry Fox Agency. In January 2021, we obtained a new blanket compulsory license available under
U.S. law, administered by an entity called the Mechanical Licensing Collective. The most recent proceeding before the Copyright Royalty Board, known as the
“Phonorecords III Proceedings,” set the rates for the Section 115 compulsory license for calendar years 2018 to 2022. The Copyright Royalty Board issued its final
written determination in November 2018. In March 2019, Google, Amazon, Pandora, and we each filed an appeal of the Copyright Royalty Board’s determination.
In August 2020, the D.C. Circuit Court of Appeals vacated the Copyright Royalty Board’s determination and remanded for further proceedings. Until the rates are
determined, our royalty costs both retrospectively and prospectively will be based on management estimates of the rates that will apply. The rates set by the
Copyright Royalty Board are also subject to further change as part of future Copyright Royalty Board proceedings.
In the United States, public performance rights are generally obtained through intermediaries known as performing rights organizations (“PROs”), which
negotiate blanket licenses with copyright users for the public performance of compositions in their repertory, collect royalties under such licenses, and distribute
those royalties to copyright owners. We have obtained public performance licenses from, and pay license fees to, the major PROs in the United States—ASCAP,
BMI, and SESAC,
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among others. These agreements have music usage reporting obligations on Spotify and typically have one to four-year terms, and are limited to the territory of the
United States and its territories and possessions.
In other parts of the world, including Europe, Asia Pacific, and Latin America, we obtain mechanical and performance licenses for musical compositions
either through local collecting societies representing publishers or from publishers directly, or a combination thereof. Our license agreements with local collecting
societies and direct license agreements with publishers worldwide are generally in place for one to three years and provide for reporting obligations on both us and
the licensor and auditing rights for the licensors. Certain of these license agreements also provide for minimum guaranteed payments or advance payment
obligations.
Podcast License Agreements with Podcasters and Podcast Networks
With respect to podcasts and other non-music content for which we obtain distribution rights directly from rights holders, we either negotiate licenses
directly with individuals or entities or obtain rights through our owned and operated platforms, such as Anchor, Soundtrap for Storytellers, and Spotify for
Podcasters, that enable creators to post content directly to our Service after agreeing to comply with the applicable terms and conditions.
For original content that we produce or commission, we typically enter into multi-year commitments. Payment terms for content that we produce or
commission will often require payments in advance of delivery of content. Some of these agreements also include participations which may require us to share
associated revenues, and can include minimum guarantees, and include other payments contingent on performance of the content.
License Agreement Extensions and Renewals
From time to time, our license agreements with certain rights holders and/or their agents expire while we negotiate their renewals. Per industry custom and
practice, we may enter into brief (for example, month-, week-, or even days-long) extensions of those agreements or provisional licenses and/or continue to operate
on an at will basis as if the license agreement had been extended, including by our continuing to make content available. It is also possible that such agreements
will never be renewed at all. See “Item 3.D. Risk Factors—Risks Related to Securing the Rights to the Content We Stream—We depend upon third-party licenses
for most of the content we stream and an adverse change to, loss of, or claim that we do not hold any necessary licenses may materially adversely affect our
business, operating results, and financial condition.”
Intellectual Property
The success of our business depends on our ability to protect and enforce our intellectual property rights, including the intellectual property rights underlying
our Service. We attempt to protect our intellectual property under patent, trade secret, trademark, and copyright laws through a combination of intellectual property
registration, employee or third-party assignment and nondisclosure agreements, other contractual restrictions, technological measures, and other methods.
Seasonality
See “Item 5.D. Trend Information” for a description of the seasonality of our business.
Competition
We compete for the time and attention of our users with various content providers on the basis of a number of factors, including quality of experience,
relevance, diversity of content, ease of use, price, accessibility, perception of advertising load, brand awareness, reputation, and presence and visibility of our
website and our Spotify application. Our current competitors include Amazon Music, Apple Music, Apple Podcasts, Deezer, Joox, Pandora, SoundCloud, TikTok,
YouTube Music, and others with competing services.
We compete with providers of on-demand music, which is purchased or available for free and playable on mobile or other connected devices. These forms of
media may be purchased, downloaded, and owned, such as iTunes audio files, MP3s, or CDs, or accessed from subscription or free online on-demand offerings by
music providers or content streams from other online services. We face increasing competition for users from a growing variety of businesses, including other free
and/or subscription music services around the world, many of which offer services that seek to emulate our Service and/or have differentiated service offerings.
Many of our current or future competitors are already entrenched or may have significant brand recognition, existing user bases, and/or ability to bundle with other
goods and/or services, both globally and in particular regions and/or markets which we seek to penetrate.
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We also compete with providers of podcasts that offer an on-demand catalog of podcast content that is similar to ours. We face increasing competition from
a growing variety of podcast providers that seek to differentiate their service by content offering and product features.
Our competitors also include providers of internet radio, terrestrial radio, and satellite radio. Internet radio providers may offer more extensive content
libraries than we offer and some may have broader international coverage than our Service. In addition, internet radio providers may leverage their existing
infrastructure and content libraries, as well as their brand recognition and user base, to augment their services by offering competing on-demand music features to
provide users with more comprehensive music service delivery choices. Terrestrial radio providers often offer their content for free, are well-established and
accessible to consumers, and offer media content that we currently do not offer. In addition, many terrestrial radio stations have begun broadcasting digital signals,
which provide high-quality audio transmission. Satellite radio providers, such as SiriusXM and iHeartRadio, may offer extensive and exclusive news, comedy,
sports and talk content, and national signal coverage.
We also compete for advertisers’ budgets with other content providers, including a range of internet companies. See “Item 3.D. Risk Factors—Risks Related
to Our Business Model, Strategy, and Performance—We face and will continue to face significant competition for users, user listening time, and advertisers.”
Government Regulation
We are subject to many U.S. federal and state, European, Luxembourg, and other foreign laws and regulations, including those related to privacy, data
protection, content regulation, intellectual property, consumer protection, rights of publicity, health and safety, employment and labor, competition, and taxation.
These laws and regulations are constantly evolving and may be interpreted, applied, created, or amended in a manner that could harm our business. In addition, it is
possible that certain governments may seek to block or limit our products or otherwise impose other restrictions that may affect the accessibility or usability of any
or all of our products for an extended period of time or indefinitely.
In the area of information security and data protection, the laws in several jurisdictions require companies to implement specific information security
controls to protect certain types of information. Data protection, privacy, cybersecurity, consumer protection, content regulation, and other laws and regulations can
be very stringent and vary from jurisdiction to jurisdiction. For example, we are subject to the GDPR, which came into effect on May 25, 2018, as well as its
implementing legislation in the EU member states. The GDPR imposes stringent operational requirements regarding, among others, data use, sharing and
processing, data breach notifications, data subject rights, and cross-border data transfers for entities collecting and/or processing personal data of EU residents and
significant penalties for non-compliance (up to EUR 20 million or up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is
higher). We will be subject to a similar legal regime in the United Kingdom following its departure from the EU and the end of the transition period, by virtue of its
national legislation that imposes similar obligations to the GDPR; the United Kingdom may also implement new or amended data protection legislation. We are
subject to the LGPD, which went into effect September 2020 and imposes similar requirements to the GDPR on the collection and processing of data of Brazilian
residents, as well as penalties for non-compliance (up to 2% of the Brazil-sourced income for the preceding fiscal year, limited to approximately $11 million per
infraction, with the possibility of a daily fine to compel the cessation of violations). We are also subject to the CCPA, which came into effect on January 1, 2020,
and imposes heightened transparency obligations, creates new data privacy rights for California residents, and carries significant enforcement penalties for non-
compliance (up to $7,500 per intentional violation and $2,500 per other violation) as well as a private right of action for certain data breaches ($750 per incident,
per consumer or actual damages, whichever is greater). Furthermore, in Europe, the current political agenda sets as a priority to regain what has been labelled as
“EU digital sovereignty.” A number of regulatory initiatives are foreseen to tackle the way platforms and digital services providers operate. Similar laws coming
into effect in other states, adoption of a comprehensive federal data privacy law, and new legislation in international jurisdictions may continue to change the data
protection landscape globally and could result in us expending considerable resources to meet these requirements.
For more information, see “Item 3.D. Risk Factors—Risks Related to Our Operations—Our business is subject to complex and evolving laws and regulations
around the world. Many of these laws and regulations are subject to change and uncertain interpretation, and could result in claims, changes to our business
practices, monetary penalties, increased cost of operations, or declines in user growth or engagement, or otherwise harm our business.” and “—Various existing,
new, and changing laws and regulations as well as self-regulation and public concern related to privacy and data security pose the threat of lawsuits, regulatory
fines, other liability and reputational harm, require us to expend significant resources, and may harm our business, operating results, and financial condition.”
Human Capital Resources
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At Spotify, we know that when our employees grow, Spotify grows. We value innovation, sincerity, passion, collaboration, and playfulness. Our objective is
to unlock the potential of human creativity by focusing on talent development, supported by robust compensation, benefits, health, safety and wellness programs,
and a diverse, inclusive culture.
Talent Development
We enable and empower our employees by offering a number of learning opportunities through a variety of platforms and delivery methods, including face-
to-face sessions, virtual and online sessions, and podcasts. We also host onboarding events and programs for new employees to meet other new employees and hear
from leaders from around the world, including our global leadership team. We provide development opportunities for both new and seasoned managers to learn
how to lead, inspire their direct reports and peers, and shape organizational culture.
Compensation and Benefits
We provide competitive compensation for our employees and a range of flexible benefits, including a tailored incentive mix program, giving our employees
the flexibility to choose the incentive mix that best works for them, an industry-leading parental leave policy, flexible public holidays, and one full day of paid time
off a year for our employees to give back to social causes of their choice. We are also developing guidelines to provide more flexibility in where and how our
employees work.
Health, Safety, and Wellness
We provide our employees and their families with robust healthcare benefits and a variety of health and wellness programs. Through Heart & Soul, our
global mental health initiative, we focus on raising awareness and building knowledge, enabling self-care and professional support, and normalizing the
conversation around mental health issues. In response to the COVID-19 pandemic, we have taken a number of actions focused on protecting the health and safety
of our employees, including having all of our employees work from home starting in March 2020, extending the work-from-home arrangement through September
1, 2021, and providing incremental funds and food allowances to support the employees through the work-from-home period.
Diversity, Inclusion, and Belonging
We are dedicated to fostering a workplace free from discrimination and a culture built on the principle of inclusion. Our Diversity, Inclusion & Belonging
team focuses on accelerating diversity, fostering inclusive leadership, enabling good mental health, building a culture of allyship, and amplifying a sense of
belonging. During 2020, we focused on increasing diversity through our inclusive diverse recruiting strategy to ensure that we are attracting and retaining unique,
innovative and passionate individuals to Spotify, which includes training for interviewers, metrics to measure improvement for our hiring teams, and the tracking
of demographic data through our hiring process. In addition, we launched an internal cross-functional coalition that expands our commitment to raising awareness,
providing education opportunities, and pursuing other deliverables around racial equity. We also have 13 autonomous Employee Resource Groups that represent
the diversity of our workplace and advocate for communities that are often underrepresented in society.
See “Item 6.D. Employees” for more information about our employees.
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C. Organizational Structure
The Company’s principal subsidiaries as at December 31, 2020 are as follows:
Name
Spotify AB
Spotify USA Inc.
Spotify Ltd
Spotify Spain S.L.
Spotify GmbH
Spotify France SAS
Spotify Netherlands B.V.
Spotify Canada Inc.
Spotify Australia Pty Ltd
Spotify Brasil Serviços De Música LTDA
Spotify Japan K.K
Spotify India LLP
S Servicios de Música México, S.A. de C.V.
Spotify Singapore Pte Ltd.
D. Property, Plant and Equipment
Principal activities
Main operating company
USA operating company
Sales, marketing, contract research and development,
and customer support
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Marketing
Proportion of
voting rights
and shares
held (directly
or indirectly)
Country of
incorporation
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
Sweden
USA
UK
Spain
Germany
France
Netherlands
Canada
Australia
Brazil
Japan
India
Mexico
Singapore
Spotify’s principal operational offices are located in Stockholm, Sweden and New York, New York under leases for approximately 375,000 and 594,000
square feet of office space, respectively, expiring in September 2027 and April 2034, respectively. We also lease regional offices in Los Angeles, California; San
Francisco, California; Boston, Massachusetts; Dallas, Texas; Chicago, Illinois; Atlanta, Georgia; Miami, Florida; Nashville, Tennessee; and Washington D.C. We
also lease other offices in Sweden and lease office space in Argentina, Australia, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Germany, India,
Indonesia, Italy, Japan, Luxembourg, Malaysia, Mexico, Netherlands, Norway, Philippines, Poland, Russia, Singapore, South Korea, Spain, Taiwan, the United
Arab Emirates, and the United Kingdom.
During 2020, to accommodate anticipated future growth, we continued the build-outs at our new and existing leased office spaces in New York, London
and Los Angeles, among others. In 2020, we capitalized €79 million of fixed assets principally related to these build-outs. We have planned capital expenditures of
approximately €87 million in 2021 for additional projects in Los Angeles, Stockholm, Berlin, Mumbai, and Miami among others.
We believe that our existing facilities are adequate to meet current requirements and that suitable additional or substitute space will be available as needed
to accommodate any further physical expansion of operations and for any additional offices.
While we continue to make investments in offices and information technology infrastructure through purchases of property and equipment and lease
arrangements to provide capacity for the growth of our business, we may slow the pace of our investments due to the COVID-19 pandemic.
Item 4A. Unresolved Staff Comments
None
Item 5. Operating and Financial Review and Prospects
For discussion related to our financial condition, changes in financial condition, and the results of operations for 2019 compared to 2018, refer to Part I,
Item 5. Operating and Financial Review and Prospects, in our Annual Report on Form 20-F for the fiscal year ended December 31, 2019, which was filed with the
SEC on February 12, 2020.
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Overview
Our mission is to unlock the potential of human creativity by giving a million creative artists the opportunity to live off their art and billions of fans the
opportunity to enjoy and be inspired by these creators.
We are the most popular global audio streaming subscription service. With a presence in 93 countries and territories and growing, our platform includes
345 million MAUs and 155 million Premium Subscribers as of December 31, 2020.
We currently monetize our Service through both subscriptions and advertising. Our Premium Subscribers grew 24% year-over-year as of December 31,
2020 to 155 million. Our 345 million MAUs grew 27% year-over-year as of December 31, 2020.
Acquisitions
On March 6, 2020, we acquired The Ringer, a leading creator of sports, entertainment, and pop culture content, for a total purchase consideration of €170
million. The acquisition allows us to expand our content offering, audience reach, and podcast monetization.
On December 8, 2020, we acquired Megaphone, a podcast technology company, for a total purchase consideration of €195 million. The acquisition
allows us to expand and scale our podcast monetization and product offering for advertisers.
Podcast licensing
During the second quarter of 2020, we entered into a multi-year exclusive licensing deal with The Joe Rogan Experience, which debuted on Spotify in
September 2020 and became exclusive on the platform in December 2020. We continue to enter into license agreements with producers, publishers, and creators to
enhance our podcast content offerings.
How We Generate Revenue
We operate and manage our business in two reportable segments—Premium and Ad-Supported. We identify our reportable segments based on the
organizational units used by the chief operating decision maker to monitor performance and make operating decisions. See Note 6 to our consolidated financial
statements included elsewhere in this report for additional information regarding our reportable segments.
Premium
Our Premium Service provides Premium Subscribers with unlimited online and offline high-quality streaming access to our catalog of music and
podcasts. In addition to accessing our catalog on computers, tablets, and mobile devices, users can connect through speakers, receivers, televisions, cars, game
consoles, and smart watches. The Premium Service offers a music listening experience without commercial breaks.
We generate revenue for our Premium segment through the sale of the Premium Service. The Premium Service is sold directly to end users and through
partners who are generally telecommunications companies that bundle the subscription with their own services or collect payment for the stand-alone subscriptions
from the end user.
We offer a variety of subscription pricing plans for our Premium Service, including our standard plan, Family Plan, Duo Plan, and Student Plan, among
others, to appeal to users with different lifestyles and across various demographics and age groups. Our pricing varies by plan and is adapted to each local market
to align with consumer purchasing power, general cost levels, and willingness to pay for an audio service. Our Family Plan consists of one primary Premium
Subscriber and up to five additional sub-accounts, allowing up to six Premium Subscribers per Family Plan subscription. Our Duo Plan consists of one primary
subscriber and up to one additional sub-account, allowing up to two Premium Subscribers per Duo Plan Subscription.
We also bundle the Premium Service with third-party services and products.
In addition, as we have entered into new markets where recurring subscription services are less common, we have expanded our subscription products to
include prepaid options and durations other than monthly (both longer and shorter durations), as well as expanded both online and offline payment options.
Premium partner services are priced on a per-subscriber rate in a negotiated agreement.
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Revenue for our Premium segment is a function of the number of Premium Subscribers who subscribe to our Premium Service. New Premium
Subscribers are sourced primarily from the conversion of our Ad-Supported Users. Through both our online platform and external marketing efforts, we engage our
Ad-Supported Users by highlighting key features that encourage conversion to our subscription offerings. These efforts include product links, campaigns targeting
existing users, and performance marketing across leading social media platforms. Additionally, new Premium Subscriber growth is driven by the success of
converting users from our trial campaigns to full-time Premium Subscribers. These trial campaigns typically offer our Premium Service free or at a discounted
price for a period of time.
The rate of net growth in Premium Subscribers also is affected by our ability to retain our existing Premium Subscribers and the mix of subscription
pricing plans. We have increased retention over time, as new features and functionality have led to increased user engagement and satisfaction. From a product
perspective, while the launches of our Family Plan, Duo Plan, and our Student Plan have decreased Premium ARPU (as further described below) due to the lower
price points per Premium Subscriber for these Premium pricing plans, each of these Plans has helped improve retention across the Premium Service.
Our platform is built to work across multiple devices, including smartphones, desktops, cars, game consoles, and in-home devices. We have found that
Premium Subscribers who access our Service over multiple devices have higher engagement and lower churn, which increases their expected lifetime value to
Spotify.
Ad-Supported
Our Ad-Supported Service has no subscription fees and generally provides Ad-Supported Users with limited on-demand online access to our catalog of
music and unlimited online access to our catalog of podcasts on their computers, tablets, and compatible mobile devices. It serves as both a Premium Subscriber
acquisition channel and a robust option for users who are unable or unwilling to pay a monthly subscription fee but still want to enjoy access to a wide variety of
high-quality audio content.
We generate revenue for our Ad-Supported segment from the sale of display, audio, and video advertising delivered through advertising impressions
across our music and podcast content.
We generally enter into arrangements with advertising agencies that purchase advertising on our platform on behalf of the agencies’ clients. These
advertising arrangements typically specify the type of advertising product, pricing, insertion dates, and number of impressions in a stated period. Revenue for our
Ad-Supported segment is comprised primarily of the number and hours of engagement of our Ad-Supported Users and podcast listeners and our ability to provide
innovative advertising products that are relevant to those users and enhance returns for our advertising partners. Our advertising strategy centers on the belief that
advertising products that are based in music and podcasts and are relevant to Ad-Supported Users and podcast listeners can enhance users’ experiences and provide
even greater returns for advertisers. Offering advertisers additional ways to purchase advertising on an automated basis is a key way that we intend to expand our
portfolio of advertising products and enhance advertising revenue. Furthermore, we continue to focus on analytics and measurement tools to evaluate, demonstrate,
and improve the effectiveness of advertising campaigns on our platform.
Revenue from our Ad-Supported segment also will be impacted by the demographic profile of our Ad-Supported Users and podcast listeners and our
ability to enable advertisers to reach their target audience with relevant advertising in the geographic markets in which we operate. A large percentage of our Ad-
Supported Users are between 18 and 34 years old. This is a highly sought-after demographic that has traditionally been difficult for advertisers to reach. By
offering advertisers increased “self-serve options,” we expect to improve the efficiency and scalability of our advertising platform. Additionally, we believe that
our largest markets, including Europe and North America, are among the top advertising markets globally. However, our continuing expansion into new
geographic markets will present monetization challenges. Monetizing our Ad-Supported User base has historically been, and is expected to remain, more
challenging in our two fastest growing regions, Latin America and the rest of the world, compared to Europe and North America.
Components of our Operating Results
Cost of Revenue. Cost of revenue consists predominantly of royalty and distribution costs related to content streaming. We incur royalty costs, which we
pay to certain record labels, music publishers, and other rights holders, for the right to stream music to our users. Royalties are typically calculated monthly based
on the combination of a number of different elements. Generally, Premium Service royalties are based on the greater of a percentage of revenue and a per user
amount. Royalties for the Ad-Supported Service are typically a percentage of relevant revenue, although certain agreements are based on the greater of a
percentage of relevant revenue and an amount for each time a sound recording and musical composition is streamed. We
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have negotiated lower per user amounts for our lower priced subscription plans such as Family Plan, Duo Plan, and Student Plan users. In our agreements with
certain record labels, the percentage of revenue used in the calculation of royalties is generally dependent upon certain targets being met. The targets can include
such measures as the number of Premium Subscribers, the ratio of Ad-Supported Users to Premium Subscribers, and/or the rates of Premium Subscriber churn. In
addition, royalty rates vary by country. Some of our royalty agreements require that royalty costs be paid in advance or are subject to minimum guaranteed
amounts. For the majority of royalty agreements incremental costs incurred due to un-recouped advances and minimum guarantees have not been significant to
date. We also have certain so-called most favored nation royalty agreements, which require us to record additional costs if certain material contract terms are not as
favorable as the terms we have agreed to with similar licensors.
Cost of revenue also includes credit card and payment processing fees for subscription revenue, customer service, certain employee compensation and
benefits, cloud computing, streaming, facility, and equipment costs, as well as the amortization of podcast content assets. Amortization of podcast content assets is
recorded over the shorter of the estimated useful economic life or the license period (if relevant), and begins at the release of each episode.
Additionally, cost of revenue has historically included discounted trial costs related to our bi-annual trial programs. While we believe our discounted trial
programs help drive incremental revenue and gross margins as users convert to full-time Premium Subscribers, these discounted trial programs, which historically
have typically begun in the middle of the second and fourth quarters of each year, have led to decreases in gross margins in the first and third calendar quarters as
we absorb the promotional expenses of the discounted trial offers. For the year ended December 31, 2020, we offered relatively more free trials compared to
discounted trials than during comparable periods and, as a result, there is less impact on gross margin in the year ended December 31, 2020 than in comparable
periods.
Research and Development. We invest heavily in research and development in order to drive user engagement and customer satisfaction on our platform,
which we believe helps to drive organic growth in new MAUs, which in turn drives additional growth in, and better retention of, Premium Subscribers, as well as
increased advertising opportunities to Ad-Supported Users. We aim to design products and features that create and enhance user experiences, and new technologies
are at the core of many of these opportunities. Research and development expenses were 11%, 9%, and 9% of our total revenue in each of 2020, 2019, and 2018,
respectively. Expenses primarily comprise costs incurred for development of products related to our platform and Service, as well as new advertising products and
improvements to our mobile and desktop applications and streaming services. The costs incurred include related employee compensation and benefits costs,
consulting costs, and facilities costs. We expect engineers to represent a significant portion of our employees over the foreseeable future.
Many of our new products and improvements to our platform require large investments and involve substantial time and risks to develop and launch.
Some of these products may not be well received or may take a long time for users to adopt. As a result, the benefits of our research and development investments
may be difficult to forecast.
Sales and Marketing. Sales and marketing expenses primarily comprise employee compensation and benefits, public relations, branding, consulting
expenses, customer acquisition costs, advertising, live events and trade shows, amortization of trade name intangible assets, the cost of working with music record
labels, publishers, songwriters, and artists to promote the availability of new releases on our platform, and the costs of providing free trials of Premium Services.
Expenses included in the cost of providing free trials are derived primarily from per user royalty fees determined in accordance with the rights holder agreements.
General and Administrative. General and administrative expenses primarily comprise employee compensation and benefits for functions such as finance,
accounting, analytics, legal, human resources, consulting fees, and other costs including facility and equipment costs, directors' and officers’ liability insurance,
director fees, and fair value adjustments on contingent consideration.
Key Performance Indicators
We use certain key performance indicators to monitor and manage our business. We use these indicators to evaluate our business, measure our
performance, identify trends affecting our business, formulate business plans, and make strategic decisions. We believe these indicators provide useful information
to investors in understanding and evaluating our operating results in the same manner we do.
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MAUs
We track MAUs as an indicator of the size of the audience engaged with our Service. We define MAUs as the total count of Ad-Supported Users and
Premium Subscribers that have consumed content for greater than zero milliseconds in the last thirty days from the period-end indicated. Reported MAUs may
overstate the number of unique individuals who actively use our Service within a thirty-day period as one individual may register for, and use, multiple accounts.
Additionally, fraud and unauthorized access to our Service may contribute, from time to time, to an overstatement of MAUs, if undetected. Fraudulent accounts
typically are created by bots to inflate content licensing payments to individual rights holders. We strive to detect and minimize these fraudulent accounts. Our
MAUs in the tables below are inclusive of Ad-Supported Users who may have employed methods to limit or otherwise avoid being served advertisements. For
additional information, refer to the risk factors discussed under “Item 3.D. Risk Factors” included elsewhere in this report.
The table below sets forth our MAUs as of December 31, 2020, 2019, and 2018.
MAUs
As of December 31,
2019
2020
2018
2020 vs. 2019
2019 vs. 2018
Change
345
271
(in millions, except percentages)
207
74
27 %
64
31 %
MAUs were 345 million as of December 31, 2020. This represented an increase of 27% from the preceding fiscal year. MAUs benefited from our
continued investment in driving the growth of our Service, both through geographic expansion and consumer marketing. MAUs also benefited from continued
investment in content and features on our platform, including featured playlists, artist marketing campaigns, podcasts, and original content, to drive increased user
engagement and customer satisfaction.
Premium Subscribers
We define Premium Subscribers as users that have completed registration with Spotify and have activated a payment method for Premium Service. Our
Premium Subscribers include all registered accounts in our Family Plan and Duo Plan. Our Family Plan consists of one primary subscriber and up to five additional
sub-accounts, allowing up to six Premium Subscribers per Family Plan Subscription. Our Duo Plan consists of one primary subscriber and up to one additional
sub-account, allowing up to two Premium Subscribers per Duo Plan Subscription. Premium Subscribers includes subscribers in a grace period of up to 30 days
after failing to pay their subscription fee.
The table below sets forth our Premium Subscribers as of December 31, 2020, 2019, and 2018.
As of December 31,
2019
2020
2018
2020 vs. 2019
2019 vs. 2018
(in millions, except percentages)
Change
Premium Subscribers
155
124
96
30
24 %
28
29 %
Premium Subscribers were 155 million as of December 31, 2020. This represented an increase of 24% from the preceding fiscal year. The Family Plan
was a meaningful contributor of total gross added Premium Subscribers, while our free trial offers and global campaigns also accounted for a significant portion of
gross added Premium Subscribers. In addition, there was an increase in the number of Premium Subscribers on our Duo Plan.
Ad-Supported MAUs
We define Ad-Supported MAUs as the total count of Ad-Supported Users that have consumed content for greater than zero milliseconds in the last thirty
days from the period-end indicated.
The table below sets forth our Ad-Supported MAUs as of December 31, 2020, 2019, and 2018.
Ad-Supported MAUs
As of December 31,
2019
2020
2018
2020 vs. 2019
2019 vs. 2018
Change
199
153
(in millions, except percentages)
116
46
30 %
37
32 %
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Ad-Supported MAUs were 199 million as of December 31, 2020. This represented an increase of 30% from the preceding fiscal year. Ad-Supported
MAUs benefited from our continued investment in driving the growth of our Ad-Supported Service, both through geographic expansion and consumer marketing.
Ad-Supported MAUs also benefited from continued investment in content and features on our platform, including featured playlists, artist marketing campaigns,
podcasts, and original content, to drive increased Ad-Supported User engagement and customer satisfaction.
Premium ARPU
Premium ARPU is a monthly measure defined as Premium revenue recognized in the quarter indicated divided by the average daily Premium Subscribers
in such quarter, which is then divided by three months. Annual figures are calculated by averaging Premium ARPU for the four quarters in such fiscal year.
The table below sets forth our average Premium ARPU for the years ended December 31, 2020, 2019, and 2018.
Year ended December 31,
2019
2018
2020
Change
2020 vs. 2019
2019 vs. 2018
Premium ARPU
€
4.31 €
4.72 €
4.81 €
(0.41)
(9)% €
(0.09)
(2)%
For the year ended December 31, 2020, Premium ARPU was €4.31. This represented a decrease of 9% from the preceding fiscal year. The decrease was
due principally to a change in Premium Subscriber mix, reducing Premium ARPU by €0.27, and movements in foreign exchange rates, reducing Premium ARPU
by €0.13.
The table below sets forth our average Premium ARPU for the quarters ended December 31, 2020, 2019, and 2018.
Three months ended December 31, 2020
2019
2020
2018
Change
2020 vs. 2019
2019 vs. 2018
Premium ARPU
€
4.26 €
4.65 €
4.89 €
(0.39)
(8)% €
(0.24)
(5)%
For the quarter ended December 31, 2020, Premium ARPU was €4.26. This represented a decrease of 8% from the preceding fiscal year quarter ended
December 31. The decrease was due principally to movements in foreign exchange rates, reducing Premium ARPU by €0.24, and a change in Premium Subscriber
mix, reducing Premium ARPU by €0.19.
A. Operating Results
Impact of COVID-19 pandemic
The COVID-19 pandemic has created significant volatility, uncertainty, and economic disruption. In response to the COVID-19 pandemic, we have taken
a number of actions focused on protecting the health and safety of our employees, maintaining business continuity, and supporting the global music community,
including extending the work-from-home arrangement for all employees that began in March 2020 until September 1, 2021, slowing the pace of hiring in 2020,
and launching the Spotify COVID-19 Music Relief Project, through which we matched donations to organizations that offer financial relief to those in the music
community most in need around the world for a total contribution of $10 million.
Although during the second half of 2020, we have started to see some return to pre-COVID-19 levels in our users’ engagement with our Service, the full
impact of the COVID-19 pandemic on our business, financial condition, and results of operations will depend on numerous evolving factors that we may not be
able to accurately predict and that will vary by market, including the duration and scope of the pandemic, the impact of the pandemic on economic activity, and
actions taken by governments, businesses, and individuals in response. For example, although our Ad-Supported revenue returned to growth during the second half
of 2020, we have continued to face headwinds to our advertising business. Refer to Part II, Item 1A. “Risk Factors” in this document for further discussion of the
impact of the COVID-19 pandemic on our business, operating results, and financial condition.
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Revenue
Premium
Ad-Supported
Total
Premium revenue
Year ended December 31,
2019
2018
2020
Change
2020 vs. 2019
2019 vs. 2018
7,135
745
7,880
6,086
678
6,764
(in € millions, except percentages)
4,717
542
5,259
1,049
67
1,116
17 %
10 %
16 %
1,369
136
1,505
29 %
25 %
29 %
For the years ended December 31, 2020 and 2019, Premium revenue comprised 91% of our total revenue. For the year ended December 31, 2020, as
compared to 2019, Premium revenue increased €1,049 million or 17%. The increase was attributable primarily to a 24% increase in Premium Subscribers. The year
ended December 31, 2020 reflected a change in prior period estimates that reduced revenue by €16 million.
Ad-Supported revenue
For the years ended December 31, 2020 and 2019, Ad-Supported revenue comprised 9% of our total revenue. For the year ended December 31, 2020, as
compared to 2019, Ad-Supported revenue increased €67 million or 10%. This increase was due primarily to an increase in revenue from podcasts of €27 million
and our self-serve channel of €20 million. Although there was reduced advertising demand in the first half of the year due to the COVID-19 pandemic, Ad-
Supported revenue recovered in the later half of the year.
Foreign exchange impact on total revenue
The general strengthening of the Euro relative to certain foreign currencies, primarily the U.S. dollar and Brazilian Real for the year ended December 31,
2020, as compared to 2019, had an unfavorable net impact on our revenue. We estimate that total revenue for the year ended December 31, 2020 would have been
approximately €243 million higher if foreign exchange rates had remained consistent with foreign exchange rates for the year ended December 31, 2019.
Cost of revenue
Premium
Ad-Supported
Total
Year ended December 31,
2019
2018
2020
Change
2020 vs. 2019
2019 vs. 2018
5,126
739
5,865
4,443
599
5,042
(in € millions, except percentages)
3,451
455
3,906
683
140
823
15 %
23 %
16 %
992
144
1,136
29 %
32 %
29 %
Effective January 1, 2020, all podcast content costs are recorded in the Ad-Supported segment. Certain reclassifications have been made to the amounts
for prior years in order to conform to the current year’s presentation.
Premium cost of revenue
For the year ended December 31, 2020, as compared to 2019, Premium cost of revenue increased €683 million, or 15%, and Premium cost of revenue as a
percentage of Premium revenue decreased from 73% to 72%. The increase in Premium cost of revenue was driven primarily by an increase in new Premium
Subscribers resulting in higher royalty costs, payment transaction fees, and streaming delivery costs of €682 million, €19 million, and €22 million, respectively,
partially offset by a decrease in discounted trial costs of €33 million as we had relatively more users on free trials compared to discounted trials year-over-year.
The year ended December 31, 2020 included a net €4 million benefit relating to changes in prior period estimates for rights holder liabilities. The year ended
December 31, 2019 included charges related to disputes with certain rights holders of €8 million.
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Ad-Supported cost of revenue
For the year ended December 31, 2020, as compared to 2019, Ad-Supported cost of revenue increased €140 million, or 23%, and Ad-Supported cost of
revenue as a percentage of Ad-Supported revenue increased from 88% to 99%. The increase in Ad-Supported cost of revenue was driven primarily by an increase
in podcast costs of €63 million, growth in advertising revenue and streams resulting in higher royalty costs of €47 million, and delivery costs of €18 million. The
year ended December 31, 2020 included a charge of €7 million relating to changes in prior period estimates for rights holder liabilities.
Foreign exchange impact on total cost of revenue
The general strengthening of the Euro relative to certain foreign currencies, primarily the U.S. dollar and Brazilian Real for the year ended December 31,
2020, as compared to 2019, had a favorable net impact on our cost of revenue. We estimate that total cost for the year ended December 31, 2020 would have been
approximately €185 million higher, if foreign exchange rates had remained consistent with foreign exchange rates for the year ended December 31, 2019.
Gross profit and gross margin
Gross profit
Premium
Ad-Supported
Consolidated
Gross margin
Premium
Ad-Supported
Consolidated
Year ended December 31,
2019
2020
2018
2020 vs. 2019
(in € millions, except percentages)
Change
2019 vs. 2018
2,009
6
2,015
28 %
1 %
26 %
1,643
79
1,722
27 %
12 %
25 %
1,266
87
1,353
27 %
16 %
26 %
366
(73)
293
22 %
(92)%
17 %
377
(8)
369
30 %
(9)%
27 %
Premium gross profit and gross margin
For the year ended December 31, 2020, as compared to 2019, Premium gross profit increased by €366 million and Premium gross margin increased from
27% to 28%. The increase in Premium gross margin was due primarily to a decrease in discounted trial costs.
Ad-Supported gross profit and gross margin
For the year ended December 31, 2020, as compared to 2019, Ad-Supported gross profit decreased by €73 million to a gross profit of €6 million, and Ad-
Supported gross margin decreased from 12% to 1%. The decrease in Ad-Supported gross margin was due primarily to royalties derived from per play rates in
certain markets, where an increase in streams outpaced revenue growth, and an increase in podcast costs. In addition, there was an increase in delivery costs as a
percentage of revenue.
Consolidated operating expenses
Research and development
Research and development
As a percentage of revenue
Year ended December 31,
2019
2020
2018
2020 vs. 2019
(in € millions, except percentages)
Change
2019 vs. 2018
837
11 %
615
9 %
493
9 %
222
36 %
122
25 %
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For the year ended December 31, 2020, as compared to 2019, research and development costs increased €222 million, or 36%, as we continually enhance
our platform to retain and grow our user base. The increase was due primarily to an increase in personnel-related costs of €208 million, which included increased
social costs of €94 million, as a result of share price movements, and increased salaries, share-based compensation, and other employee benefits of €75 million,
€24 million, and €15 million, respectively, as a result of increased headcount to support our growth. In addition, there was an increase in information technology
costs of €20 million due to an increase in our usage of cloud computing services and additional software license fees. There was also an increase of €11 million due
to incremental fees relating to consultants and external contractors. These increases were partially offset by a decrease in expenses relating to travel and employee
trainings of €19 million driven by COVID-19 restrictions.
Sales and marketing
Sales and marketing
As a percentage of revenue
Year ended December 31,
2019
2020
2018
2020 vs. 2019
(in € millions, except percentages)
Change
2019 vs. 2018
1,029
13 %
826
12 %
620
12 %
203
25 %
206
33 %
For the year ended December 31, 2020, as compared to 2019, sales and marketing expense increased by €203 million, or 25%. The increase was due
primarily to an increase in the cost of providing free trials of €79 million as a result of an increase in the number of Premium Subscribers on free trials. There was
also an increase in personnel-related costs of €71 million, which included increased social costs of €32 million, as a result of share price movements, and increased
salaries and share-based compensation of €28 million and €7 million, respectively, as a result of increased headcount to support our growth. In addition, there was
an increase in advertising costs of €70 million for marketing campaigns. These increases were partially offset by a decrease in expenses relating to decreased travel
and employee trainings of €24 million driven by COVID-19 restrictions.
General and administrative
General and administrative
As a percentage of revenue
Year ended December 31,
2019
2020
2018
2020 vs. 2019
(in € millions, except percentages)
Change
2019 vs. 2018
442
6 %
354
5 %
283
5 %
88
25 %
71
25 %
For the year ended December 31, 2020, as compared to 2019, general and administrative expense increased €88 million or 25%. The increase was due
primarily to an increase in personnel-related costs of €75 million, which included increased salaries and share-based compensation of €27 million and €20 million,
respectively, as a result of increased headcount to support our growth, and increased social costs of €23 million, as a result of share price movements. In addition,
there was an increase in charitable contributions of €18 million. There was also an increase in external consulting and legal fees of €6 million. These increases
were partially offset by a decrease in expenses relating to decreased travel and employee trainings of €17 million driven by COVID-19 restrictions.
Finance income
Finance income consists of fair value adjustment gains on certain financial instruments, interest income earned on our cash and cash equivalents and short
term investments, and foreign currency gains.
Year ended December 31,
2019
2018
2020
Change
2020 vs. 2019
2019 vs. 2018
Finance income
As a percentage of revenue
94
1 %
275
4 %
51
(in € millions, except percentages)
455
(181)
(66)%
(180)
(40)%
9 %
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For the year ended December 31, 2020, as compared to 2019, finance income decreased €181 million. The decrease was due primarily to a decrease in
fair value gains recorded for warrants of €133 million. There was also a decrease of €41 million in foreign exchange gains on the remeasurement of monetary
assets and liabilities in a transaction currency other than the functional currency.
Finance costs
Finance costs consist of fair value adjustment losses on financial instruments, interest expense, and foreign currency losses.
Finance costs
As a percentage of revenue
Year ended December 31,
2019
2020
2018
2020 vs. 2019
(in € millions, except percentages)
Change
2019 vs. 2018
(510)
(6)%
(333)
(5)%
(584)
(11)%
(177)
53 %
251
(43)%
For the year ended December 31, 2020, as compared to 2019, finance costs increased by €177 million. The increase was due primarily to an increase of
€94 million in foreign exchange losses on the remeasurement of monetary assets and liabilities in a transaction currency other than the functional currency. There
was also an increase in fair value losses recorded for warrants of €72 million.
Income tax (benefit)/expense
Income tax (benefit)/expense
As a percentage of revenue
Year ended December 31,
2019
2020
2020 vs. 2019
2018
(in € millions, except percentages)
Change
2019 vs. 2018
(128)
(2)%
55
1 %
(95)
(2)%
(183)
(333)%
150
N/A
For the year ended December 31, 2020, income tax benefit was €128 million, as compared to income tax expense of €55 million for the year ended
December 31, 2019. The change was due primarily to the recognition of deferred taxes as a result of the unrealized increase in the fair value of our long term
investment in TME. We will be subject to tax in future periods as a result of foreign exchange movements between USD, EUR, and SEK, primarily related to our
investment in TME. We may also be subject to current tax expense in future periods as a result of share-based compensation activity.
Critical Accounting Policies and Estimates
We prepare our consolidated financial statements in accordance with IFRS as issued by the IASB. Preparing these financial statements requires us to
make estimates and assumptions that affect the reported amounts of assets, liabilities, equity, revenue, expenses, and related disclosures. We evaluate our estimates
and assumptions on an ongoing basis. Our estimates are based on historical experience and various other assumptions that we believe to be reasonable under the
circumstances. Our actual results may differ from these estimates.
The critical accounting policies, estimates, assumptions, and judgments that we believe to have the most significant impact on our consolidated financial
statements are described below.
Revenue Recognition
Premium Revenue
We generate revenue for our Premium segment from the sale of Premium Services. Premium Services are sold directly to end users and through partners
who are generally telecommunications companies that bundle the subscription with their own services or collect payment for the stand-alone subscriptions from the
end user.
Premium Services sold directly to end users are typically paid monthly in advance. We satisfy our performance obligation, and revenue from these
services is recognized, on a straight-line basis over the subscription period.
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We periodically provide discounted trial periods for Premium Services. Consideration received for the discounted trial periods is recognized in revenue on
a straight-line basis over the term of the discounted trial period.
Premium Services sold through partners are recognized as revenue based on a per-subscriber rate in a negotiated partner agreement. Under these
arrangements, a Premium partner may bundle the Premium Service with its existing product offerings or offer the Premium Service as an add-on. We satisfy our
performance obligation, and revenue from these services is recognized, on a straight-line basis over the subscription period. We assess the facts and circumstances,
including whether the partner is acting as a principal or agent, of all partner revenue arrangements and then recognize revenues either gross or net. Premium partner
services, whether recognized gross or net, have one material performance obligation which is the delivery of our Premium Service.
We also bundle the Premium Service with third-party services and products. In bundle arrangements where we have multiple performance obligations, the
transaction price is allocated to each performance obligation based on the relative stand-alone selling price. We generally determine stand-alone selling prices
based on the prices charged to customers. For each performance obligation within the bundle, revenue is recognized either on a straight-line basis over the
subscription period or at a point in time when control of the service or product is transferred to the customer.
Ad-Supported Revenue
We generate revenue for our Ad-Supported segment primarily through display, audio, and video advertising delivered through advertising impressions
and podcast downloads. We enter into arrangements with advertising agencies that purchase advertising on our platform on behalf of the agencies’ clients and
directly with some large advertisers. These advertising arrangements are typically sold on a cost-per-thousand basis and are evidenced by an Insertion Order (“IO”)
that specifies the terms of the arrangement such as the type of advertising product, pricing, insertion dates, and number of impressions or downloads in a stated
period. Ad-Supported revenue is recognized upon delivery of impressions or downloads. IOs may include multiple performance obligations as they generally
contain several different advertising products that each represents a separately identifiable promise within the contract. For such arrangements, we allocate Ad-
Supported revenue to each performance obligation on a relative stand-alone selling price basis. We determine stand-alone selling prices based on the prices
charged to customers. We also may offer cash rebates to advertising agencies based on the volume of advertising inventory purchased. These rebates are estimated
based on historical data and projected spend and result in a reduction of revenue recognized.
Additionally, we generate Ad-Supported revenue through arrangements with certain advertising exchange platforms to distribute advertising inventory for
purchase on a cost-per-thousand basis through their automated exchange. Ad-Supported revenue is recognized over time when impressions are delivered on the
platform.
Share-based Compensation
Our employees and members of our board of directors receive remuneration in the form of share-based compensation transactions, whereby employees
and directors render services in consideration for equity instruments.
The fair value of a stock option is estimated on the grant date using the Black-Scholes option-pricing model. The fair value of an RSU or restricted stock
award is measured using the fair value of our ordinary shares on the date of the grant. Stock-based compensation expense is recognized, net of forfeitures, over the
requisite service periods of the awards, which is generally less than five years.
Our use of the Black-Scholes option-pricing model requires the input of highly subjective assumptions, including expected term of the option, expected
volatility of the price of our ordinary shares, risk-free interest rates, and the expected dividend yield of our ordinary shares. The assumptions used in our option-
pricing model represent management’s best estimates. These estimates involve inherent uncertainties and the application of management’s judgment. If factors
change and different assumptions are used, our stock-based compensation expense could be materially different in the future.
We also must estimate a forfeiture rate to calculate the stock-based compensation expense for our awards. Our forfeiture rate is based on an analysis of
our actual forfeitures. We will continue to evaluate the appropriateness of the forfeiture rate based on actual forfeiture experience, analysis of employee turnover,
and other factors. Changes in the estimated forfeiture rate can have a significant impact on our stock-based compensation expense as the cumulative effect of
adjusting the rate is recognized in the period the forfeiture estimate is changed. A higher revised forfeiture rate than previously estimated will result in an
adjustment that will decrease the stock-based compensation expense recognized in the consolidated statement of
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operations. A lower revised forfeiture rate than previously estimated will result in an adjustment that will increase the stock-based compensation expense
recognized in the consolidated statement of operations.
We will continue to use judgment in evaluating the assumptions related to our stock-based compensation on a prospective basis. As we accumulate
additional data related to our ordinary shares, we may have refinements to our estimates, which could materially impact our future stock-based compensation
expense.
Social costs are payroll taxes associated with employee salaries and benefits, including share-based compensation. Social costs in connection with granted
options and RSUs are accrued over the vesting period based on the intrinsic value of the award that has been earned at the end of each reporting period. The
amount of the liability reflects the amortization of the award and the impact of expected forfeitures. The social cost rate at which the accrual is made generally
follows the tax domicile within which other compensation charges for a grantee are recognized.
Content
We incur royalty costs for the right to stream music to our users, paid to record labels, music publishers, and other rights holders. Royalties are calculated
using negotiated rates in accordance with license agreements, estimates of those rates in instances where rights holders are not identified, or rates as determined by
government bodies. Calculations are based on either Premium and Ad-Supported revenue earned or user/usage measures or a combination of these. The rights
holder agreements are complex and our determination of royalties payable involves certain significant judgments, assumptions, and estimates in addition to
complex systems and a significant volume of data to be processed and analyzed. In particular, in certain jurisdictions rights holders have several years to claim
royalties for works streamed each month. As such, the royalty costs incurred in a period might not be fully settled for a number of years and are estimated. The
estimate of royalty costs requires us to make assumptions about the rates to be recorded for streams where the rights holder is not identified and the potential
incidence of duplicate claims. These estimates are subject to revision until settlement. Considering the number of variables impacting the amounts owed, the actual
outcome could be different than our estimates, resulting in an additional accrual or release of previously recorded liabilities.
Some rights holders have allowed the use of their content on our platform while negotiations of the terms and conditions of individual agreements or
determination of statutory rates are ongoing. In these instances, royalties are calculated based on our best estimate of the eventual payout. In addition, on August
11, 2020, the United States Court of Appeals for the D.C. Circuit issued an opinion which, as of the issuance of the formal “mandate” on October 26, 2020, vacated
the Copyright Royalty Board’s determination of the royalty rates for applicable mechanical rights in the United States for calendar years 2018 to 2022. These rates
apply both to compositions that we license under compulsory license in Section 115 of the Copyright Act of 1976 and to a number of direct licenses that we have
with music publishers. Until the rates are determined, our recorded royalty costs both retrospectively and prospectively will be based on management estimates of
the rates that will apply. When the rates are determined anew, these could either benefit or adversely affect our results of operations and financial condition.
Many of the rights holders agreements include the right to audit our royalty payments, and any such audit could result in disputes over whether we have
paid the proper royalties. Given the complexity of the arrangements, if such a dispute were to occur, we could be required to pay additional royalties, and the
amounts involved could be material.
The majority of our rights holder liabilities are settled on commercial payment terms shortly after they are incurred. However, certain of these liabilities
are not settled for more significant periods of time due to uncertainties related to the reasons discussed above. Of the total accruals and provisions to rights holders
at December 31, 2020 and December 31, 2019, approximately €418 million and €295 million, respectively, relate to liabilities that were incurred more than twelve
months prior to the date of the statement of financial position. Of the December 31, 2020 amount, €13 million was expensed in the year ended December 31, 2020
due to an increase of estimates included in the financial statements for the year ended December 31, 2019.
We have certain arrangements whereby royalty costs are paid in advance or are subject to minimum guaranteed amounts. These minimum guarantee
amounts have been disclosed in Note 25 of the consolidated financial statements, included elsewhere in this report. An accrual is established when actual royalty
costs to be incurred during a contractual period are expected to fall short of the minimum guaranteed amounts. For minimum guarantee arrangements for which we
cannot reliably predict the underlying expense, we will expense the minimum guarantee on a straight-line basis over the term of the arrangement. We also have
certain royalty arrangements where we would have to make additional payments if the royalty rates for specified periods were below those paid to certain other
licensors (most favored nation clauses). For rights holders with this clause, we compare royalties incurred to date plus estimated royalties payable for the remainder
of the period to estimates of the royalties payable to other appropriate rights holders, and the shortfall, if any, is recognized on a straight-line basis over the
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period of the applicable most favored nation clause. An accrual and expense is recognized when it is probable that we will make additional royalty payments under
these terms. The expense related to these accruals is recognized in cost of revenue.
Amortization of podcast content assets is recorded in cost of revenue over the shorter of the estimated useful economic life or the license period, and
begins at the release of each episode. The economic life and expected amortization profile of podcast content assets is estimated by management based on
historical listening patterns and is evaluated on an ongoing basis. Determining these estimates requires significant judgment by management.
Provisions
From time to time, we are involved in legal actions or other third-party assertions related to content on our platform. There can be no assurance these
actions or other third-party assertions will be resolved without costly litigation in a manner that does not adversely impact our financial position, results of
operations, or cash flows, or without requiring higher royalty payments in the future, which may adversely impact gross margins. We record a liability when it is
probable that a loss has been incurred and the amount can be reasonably estimated. In determining the probability of a loss and consequently, determining a
reasonable estimate, management is required to use significant judgment. Given the uncertainties associated with any litigation, the actual outcome can be different
from our estimates and could adversely affect our results of operations, financial position, and cash flows. See “Risk Factors—Risks Related to Securing the Rights
to the Content We Stream—Our royalty payment scheme is complex, and it is difficult to estimate the amount payable under our license agreements.”
Warrants
Our warrants are re-measured at each reporting date using valuation models using input data. The change in fair value of these financial liabilities are
recognized in finance income or cost in the consolidated statement of operations. Our ordinary share price is a primary driver of the fair value of the warrants. If
factors change and different assumptions are used, our finance costs (net) could be materially different in the future. Please refer to “Item 11. Quantitative and
Qualitative Disclosures About Market Risk” included elsewhere in this report for additional information on the share price risk relate to our warrants.
See Note 24 to our consolidated financial statements included elsewhere in this report for additional information on the valuation models used for our
warrants.
Income Taxes
We are subject to income taxes in Luxembourg, Sweden, the United States, and numerous foreign jurisdictions. Significant judgment is required in
determining our uncertain tax positions.
Deferred tax assets are recognized for unused tax losses, unused tax credits, and deductible temporary differences to the extent that it is probable that
future taxable profits will be available, against which they can be used. Unused tax loss carry-forwards are reviewed at each reporting date and have not been
recorded when we believe we will not generate future taxable income to utilize the loss carry-forwards.
In determining the amount of current and deferred income tax, we take into account the impact of uncertain tax positions and whether additional taxes,
interest, or penalties may be due. Although we believe that we have adequately reserved for our uncertain tax positions, we can provide no assurance that the final
tax outcome of these matters will not be materially different. We adjust these reserves when facts and circumstances change, such as the closing of a tax audit or
the refinement of an estimate. To the extent that the final tax outcome of these matters is different than the amounts recorded, such differences will affect the
provision for income taxes in the period in which such determination is made and could have a material impact on our financial condition and operating results.
We have initiated and are in negotiations of an APA between Sweden and the United States governments for tax years 2014 through 2020 covering
various transfer pricing matters. These transfer pricing matters may be significant to our consolidated financial statements. In addition, we are subject to the
continuous examination of our income tax returns by various tax authorities which could result in assessments against us.
Business Combinations
In business combinations, we allocate the fair value of purchase consideration to the tangible assets acquired, liabilities assumed, and intangible assets
acquired based on their estimated fair values. The excess of the fair value of purchase consideration over the fair values of these identified assets and liabilities is
recorded as goodwill. Such valuations require
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management to make significant estimates, assumptions, and judgments, especially with respect to intangible assets and contingent consideration.
Lease Agreements
As most of our lease agreements do not provide an implicit rate of return, we use our incremental borrowing rate based on the information available at the
lease commencement date to determine the present value of lease payments. For our lease agreements that existed prior to the adoption date of IFRS 16, we
determined our incremental borrowing rate as of January 1, 2019. Our incremental borrowing rate is determined based on estimates and judgments, including the
credit rating of our leasing entities and a credit spread.
Goodwill Impairment
In accordance with the accounting policy described in Note 2 to our consolidated financial statements included elsewhere in this report, we annually
perform an impairment test regarding goodwill. The assumptions used for estimating fair value and assessing available headroom based on conditions that existed
at the testing date are disclosed in Note 14 to our consolidated financial statements included elsewhere in this report.
Recent Accounting Pronouncements
See Note 2 to our consolidated financial statements included elsewhere in this report for recently adopted accounting pronouncements and recently issued
accounting pronouncements not yet adopted as of the dates of the statement of financial position included in this report.
B. Liquidity and Capital Resources
Our principal sources of liquidity are our cash and cash equivalents, short term investments, and cash generated from operations. Cash and cash
equivalents and short term investments consist mostly of cash on deposit with banks, investments in money market funds, and investments in government and
agency securities, corporate debt securities, and collateralized reverse purchase agreements. Cash and cash equivalents and short term investments decreased by
€10 million from €1,757 million as of December 31, 2019 to €1,747 million as of December 31, 2020.
We believe our existing cash and cash equivalents, short term investments, and the cash flow we generate from our operations will be sufficient to meet
our working capital and capital expenditure needs and other liquidity requirements for at least the next 12 months. However, our future capital requirements may
be materially different than those currently planned in our budgeting and forecasting activities and depend on many factors, including our rate of revenue growth,
the timing and extent of spending on content and research and development, the expansion of our sales and marketing activities, the timing of new product
introductions, market acceptance of our products, our continued international expansion, the acquisition of other companies, competitive factors, and overall
economic conditions, globally. To the extent that current and anticipated future sources of liquidity are insufficient to fund our future business activities and
requirements, we may be required to seek additional equity or debt financing. The sale of additional equity would result in additional dilution to our shareholders,
while the incurrence of debt financing would result in debt service obligations. Such debt instruments also could introduce covenants that might restrict our
operations. Furthermore, such additional equity or debt financing might not be available on acceptable terms, if at all. See “Item 3.D. Risk Factors—Risks Related
to Our Operations—We may require additional capital to support business growth and objectives, and this capital might not be available on acceptable terms, if at
all.”
While the COVID-19 pandemic has not materially impacted our liquidity and capital resources to date, it has led to increased disruption and volatility in
capital markets and credit markets. The pandemic and resulting economic uncertainty could adversely affect our liquidity and capital resources in the future. Based
on past performance and current expectations, we believe our strong cash and cash equivalents and short term investments position are critical at this time of
uncertainty, and allow us to use our cash resources for working capital needs, capital expenditures, investment requirements, contractual obligations, commitments,
and other liquidity requirements associated with our operations. See “Item 3.D. Risk Factors—Risks Related to Our Business Model, Strategy, and Performance—
The COVID-19 pandemic has had, and could continue to have, an adverse impact on our business, operating results, and financial condition.”
On November 5, 2018, we announced that we would commence a share repurchase program that began in the fourth quarter of 2018. Repurchases of up to
10,000,000 of the Company’s ordinary shares have been authorized by the Company’s general meeting of shareholders, and the board of directors approved such
repurchase up to the amount of $1.0 billion. As of December 31, 2020, we had repurchased an aggregate of 4,366,427 ordinary shares for a total of approximately
$572 million under the share repurchase program. The authorization to repurchase will expire on April 21, 2021 unless renewed by decision
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of a general meeting of shareholders of the Company. The timing and actual number of shares repurchased will depend on a variety of factors, including price,
general business and market conditions, and alternative investment opportunities. The repurchase program will be executed consistent with our capital allocation
strategy of prioritizing investment to grow the business over the long term. Under the repurchase program, repurchases can be made from time to time using a
variety of methods, including open market purchases, all in compliance with the rules of the Commission and other applicable legal requirements. The repurchase
program does not obligate the Company to acquire any particular amount of ordinary shares, and the repurchase program may be suspended or discontinued at any
time at the Company’s discretion. We may use current cash and cash equivalents, short term investments, and the cash flow we generate from our operations to
fund our share repurchase program.
Cash Flow
Net cash flows from operating activities
Net cash flows used in investing activities
Net cash flows from/(used in) financing activities
2020
Year ended December 31,
2019
(in € millions)
2018
259
(372)
285
573
(218)
(203)
344
(22)
92
For the year ended December 31, 2020, as compared to 2019, net cash flows from operating activities decreased by €314 million. The decrease was due
primarily to an increase in operating loss of €220 million, partially offset by non-cash items including depreciation, amortization, and share-based compensation
expense. In addition, there was an increase in interest payments on lease liabilities of €18 million.
For the year ended December 31, 2020, as compared to 2019, net cash flows used in investing activities increased by €154 million, due primarily to an
increase in purchases of short term investments of €453 million, partially offset by an increase in sales and maturities of short term investments of €258 million and
a decrease in capital expenditures of €57 million.
For the year ended December 31, 2020, as compared to 2019, net cash flows from financing activities increased by €488 million, due primarily to an
increase in proceeds from the exercise of stock options of €165 million, partially offset by a decrease in proceeds from the exercise of warrants of €74 million. The
year ended December 31, 2019 included €438 million in repurchases of ordinary shares, with no material repurchases occurring during the year ended December
31, 2020.
Free Cash Flow
Free Cash Flow
2020
Year ended December 31,
2019
(in € millions)
2018
183
440
209
For the year ended December 31, 2020, as compared to 2019, Free Cash Flow decreased by €257 million. The decrease in Free Cash Flow was due
primarily to a decrease in net cash flows from operating activities of €314 million, as described above, partially offset by a decrease in capital expenditures of €57
million.
For a discussion of the limitations associated with using Free Cash Flow rather than IFRS measures and a reconciliation of Free Cash Flow to net cash
flows from operating activities, see “Item 3.A. Selected Financial Data.”
Indebtedness
As of December 31, 2020, we have no material outstanding indebtedness, other than lease liabilities. We may from time to time seek to incur additional
indebtedness. Such indebtedness, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions, and other factors. The
amounts involved may be material.
On April 3, 2018, we completed a direct listing of the Company’s ordinary shares on the NYSE. Upon the direct listing, the outstanding liability relating
to the Company’s Convertible Notes was reclassified to equity. See Note 20 to our consolidated financial statements, included elsewhere in this report, for further
information regarding the Convertible Notes.
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C. Research and Development, Patents and Licenses
For a detailed analysis of research and development costs, see “Item 4.B. Business Overview” and “Item 5. Operating and Financial Review and
Prospects.”
D. Trend Information
Our results reflect the effects of our bi-annual trial programs, both discounted and free trials, in addition to seasonal trends in user behavior and, with
respect to our Ad-Supported segment, advertising behavior. Historically, Premium Subscriber growth accelerates when we run bi-annual trial programs in the
summer and winter, which typically begin in the middle of the second and fourth quarters. Historically, discounted trial programs have led to decreases in gross
margin in the first and third quarter of each year, as discounted trial costs are included in costs of revenue, while the costs of providing free trials are included in
sales and marketing expense and do not impact gross margin. For the year ended December 31, 2020, we offered relatively more free trials compared to discounted
trials than during comparable periods in prior years, and, as a result, there is less impact on gross margin.
For our Ad-Supported segment, typically we experience higher advertising revenue in the fourth quarter of each calendar year due to greater advertising
demand during the holiday season. However, in the first quarter of each calendar year, we typically experience a seasonal decline in advertising revenue due to
reduced advertiser demand.
Other than as disclosed here and elsewhere in this report, we are not aware of any trends, uncertainties, demands, commitments, or events since
December 31, 2020 that are reasonably likely to have a material adverse effect on our revenues, income, profitability, liquidity, or capital resources, or that would
cause the disclosed financial information to be not necessarily indicative of future operating results or financial conditions.
E. Off-balance sheet arrangements
As of December 31, 2020, we do not have transactions with unconsolidated entities, such as entities often referred to as structured finance or special
purpose entities, whereby we have financial guarantees, subordinated retained interests, derivative instruments, or other contingent arrangements that expose us to
material continuing risks, contingent liabilities, or any other obligation under a variable interest in an unconsolidated entity that provides financing, liquidity,
market risk, or credit risk support to us.
F. Tabular disclosure of contractual obligations
The following table sets forth our contractual obligations and commercial commitments as of December 31, 2020:
Contractual obligations:
(1)
Minimum guarantees
Lease obligations
Purchase obligations
Deferred and contingent consideration
(3)
(2)
Total
Total
Less than
1 year
Payments due by period
1-3 years
(in € millions)
3-5 years
More than
5 years
3,576
902
898
74
5,450
317
82
279
22
700
3,144
169
619
32
3,964
115
169
—
20
304
—
482
—
—
482
(4)
___________________________________
(1)
(2)
(3)
(4)
We are subject to minimum guarantees relating to the content on our service, the majority of which relate to minimum royalty payments associated with our license agreements for
the use of licensed content. See “Item 3.D. “Risk Factors”.
Included in the lease obligations are short term leases and certain lease agreements that we have entered into, but have not yet commenced as of December 31, 2020. Lease
obligations relate to our office space. The lease terms are between one and fourteen years. See Note 12 to the consolidated financial statements for further details regarding leases.
We are subject to various non-cancelable purchase obligations and service agreements with minimum spend commitments, the majority of which relate to a service agreement with
Google for the use of Google Cloud Platform and certain podcast commitments.
Included in deferred consideration are obligations to transfer €41 million of cash consideration over the next five years to former owners of certain entities we have acquired.
Included in contingent consideration is the obligation to transfer a maximum of €33 million of contingent cash payment consideration over the next two years to former owners of
an entity we acquired if specified user engagement targets are achieved.
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Item 6. Directors, Senior Management and Employees
A. Directors and Senior Management
The following table sets forth the names, ages, and positions of our senior management and directors as of the date of this report:
Name
Daniel Ek
Martin Lorentzon
Paul Vogel
Katarina Berg
Horacio Gutierrez
Alex Norström
Dawn Ostroff
Gustav Söderström
Christopher Marshall
Barry McCarthy
Shishir Mehrotra
Heidi O’Neill
Ted Sarandos
Thomas Staggs
Cristina Stenbeck
Padmasree Warrior
Age
Position
37 Founder, Chief Executive Officer, Chairman, and Director
51 Co-Founder and Director
47 Chief Financial Officer
52 Chief Human Resources Officer
56 Head of Global Affairs & Chief Legal Officer
44 Chief Freemium Business Officer
60 Chief Content & Advertising Business Officer
44 Chief Research & Development Officer
52 Lead Independent Director
67 Director
41 Director
56 Director
56 Director
60 Director
43 Director
60 Director
The business address of each director and each of Mr. Ek, Mr. Lorentzon, Ms. Berg, Mr. Norström, and Mr. Söderström is Regeringsgatan 19, 111 53
Stockholm, Sweden. The business address of each of Ms. Ostroff, Mr. Gutierrez, and Mr. Vogel is 150 Greenwich Street, 63rd Floor, New York, New York 10007.
The following is a brief biography of each of our senior managers and directors:
Daniel Ek is our founder, Chief Executive Officer, and Chairman of our board of directors. As our Chief Executive Officer and Chairman, Mr. Ek is
responsible for guiding the vision and strategy of the Company and leading the management team. He has been a member of our board of directors since July 21,
2008, and his term will expire on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. Prior to founding Spotify in
2006, Mr. Ek founded Advertigo, an online advertising company acquired by Tradedoubler, held various senior roles at the Nordic auction company Tradera,
which was acquired by eBay, and served as Chief Technology Officer at Stardoll, a fashion and entertainment community for pre-teens.
Martin Lorentzon is our co-founder and a member of our board of directors. He has been a member of our board of directors since July 21, 2008, and his
term will expire on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. Mr. Lorentzon previously served as
Chairman of our board of directors from 2008 to 2016. In addition to his role on our board of directors, Mr. Lorentzon served as a member of the board of directors
of Telia Company AB (“Telia Company”), Sweden’s main telecom operator, from 2013 to 2018. In 1999, Mr. Lorentzon founded Tradedoubler, an internet
marketing company based in Stockholm, Sweden, and initially served as a member of its board of directors. Additionally, Mr. Lorentzon has held senior roles at
Telia Company and Cell Ventures. He holds a Master of Science in Civil Engineering from the Chalmers University of Technology.
Paul Vogel is our Chief Financial Officer. He is responsible for overseeing the Company’s financial affairs. Mr. Vogel previously served as the
Company’s Head of Financial Planning & Analysis, Treasury and Investor Relations from 2016 to January 2020. Before joining Spotify, he spent the majority of
his career in the investment community as a portfolio manager and equity research analyst, most recently serving as a Managing Director and Head of the Internet
and Media Equity Research team at Barclays. Prior to Barclays, Mr. Vogel held various roles in finance, including as a Portfolio Manager at AllianceBernstein and
a Research Analyst at Morgan Stanley and DLJ. He is a CFA Charterholder and holds a Bachelor of Arts in Economics from the University of Pennsylvania.
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Katarina Berg is our Chief Human Resources Officer. She oversees all aspects of human resource management and is responsible for developing and
executing the people strategy in support of our overall business plan. Ms. Berg serves as a member of the board of directors of House of Education and as member
of the advisory board of directors of ToppHälsa, Bonnier Tidskrifter. Before joining our team, Ms. Berg held human resources roles in various multinational
companies, such as Swedbank, 3 Scandinavia, and Kanal 5 (SBS Broadcasting). Ms. Berg holds a Master of Arts in Human Resources Management and
Development in Behavioral Science from Lund University.
Horacio Gutierrez is our Head of Global Affairs and Chief Legal Officer. In this capacity, he oversees the Company’s work on a wide range of areas
around the world, including industry relations and partnerships, public policy and trust and safety, among others, and leads a global team of business, public affairs,
government relations, licensing, and legal professionals. Mr. Gutierrez joined Spotify as General Counsel in 2016 after spending over 17 years at Microsoft
Corporation, ultimately as General Counsel and Corporate Vice President for Legal Affairs. Throughout his career, he has been involved in a number of high-
profile legal and regulatory matters and concluded numerous intellectual property deals, including licensing agreements with companies around the world. Mr.
Gutierrez has played a leading role on technology and innovation policy issues, including competition policy, intellectual property policy and internet regulation.
He holds a Master of Laws degree from Harvard Law School, which he attended as a Fulbright Scholar; a Juris Doctor degree summa cum laude from the
University of Miami; a Bachelor of Laws degree from Universidad Católica Andrés Bello in Caracas, Venezuela; and a post-graduate diploma in corporate and
commercial law from the same institution.
Alex Norström is our Chief Freemium Business Officer. As our Chief Freemium Business Officer, Mr. Norström is responsible for overseeing strategy,
marketing, global partnerships, and product offerings for our subscription business. Mr. Norström was previously our Vice President of Growth and our Vice
President of Subscription. Prior to joining Spotify in 2011, Mr. Norström was Chief New Business Officer at King.com Ltd. He was a member of the board of
directors of Circle from 2016 through December 2019. Mr. Norström also has a private investment company, Fragrant Harbour Capital AB, based and registered in
Stockholm, Sweden. Mr. Norström holds a Master of Science in Business & Economics with a Major in Finance from the Stockholm School of Economics.
Dawn Ostroff is our Chief Content & Advertising Business Officer. She is responsible for overseeing the Company’s global content and distribution
operations, including all original content and industry and creator relationships. Ms. Ostroff is also responsible for managing our global advertising sales business.
She serves as a member of the board of directors of Activision Blizzard, Inc. where she serves on the Compensation Committee. Prior to joining Spotify, Ms.
Ostroff served as President of Condé Nast Entertainment, a studio and distribution network with entertainment content across film, television, premium digital
video, social, and virtual reality. She was previously President of Entertainment for The CW broadcast network, a joint venture of CBS and Warner Bros. that she
helped launch in 2006, and before that, President of the UPN broadcast network. Ms. Ostroff holds a Bachelor of Science in Journalism from Florida International
University.
Gustav Söderström is our Chief Research & Development Officer. He oversees the product, design, data, and engineering teams at Spotify and is
responsible for our product strategy. Mr. Söderström is a startup seed investor and also has been an advisor to Tictail since 2013 and was formerly an advisor to
13th Lab (acquired by Facebook’s Oculus). Before joining the Company in 2009, Mr. Söderström was director of product and business development for Yahoo!
Mobile from 2006 to 2009. In 2003, Mr. Söderström founded Kenet Works, a company that developed community software for mobile phones and served as the
company’s Chief Executive Officer until it was acquired by Yahoo! in 2006. Mr. Söderström holds a Master of Science in Electrical Engineering from KTH Royal
Institute of Technology.
Christopher (Woody) Marshall is a member of our board of directors. He has been a member of our board of directors since June 16, 2015, and his term
will expire on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. In addition to his role on our board of directors,
Mr. Marshall currently serves on the boards of directors of a number of private companies. Since 2008, he also has served as a general partner of Technology
Crossover Ventures, a private equity firm. Prior to that, Mr. Marshall spent 12 years at Trident Capital, a venture capital firm. Mr. Marshall holds a Bachelor of
Arts in Economics from Hamilton College and a Master of Business Administration from the Kellogg School of Management at Northwestern University.
Barry McCarthy is a member of our board of directors. He has been a member of our board of directors since January 8, 2020, and his term will expire
on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. Mr. McCarthy previously served as our Chief Financial
Officer from 2015 to January 2020. Prior to joining Spotify, Mr. McCarthy was a private investor and served as a member of the board of directors of several
private companies, including Spotify from 2014 to 2015. He also has served as a member of the board of directors of Pandora from 2011 to 2013 (Chairman of the
audit committee), Eventbrite from 2011 to 2015, and Chegg from 2010 to 2015 (Chairman of the audit committee). Since 2011, Mr. McCarthy also has served as
an Executive Adviser to Technology Crossover Ventures. From 1999 to 2010,
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Mr. McCarthy served as the Chief Financial Officer and Principal Accounting Officer of Netflix. Before joining Netflix, Mr. McCarthy served in various
management positions in management consulting, investment banking, and media and entertainment. Mr. McCarthy holds a Bachelor of Arts in History from
Williams College and a Master of Business Administration in Finance from the Wharton School at the University of Pennsylvania.
Shishir Mehrotra is a member of our board of directors. He has been a member of our board of directors since June 13, 2017, and his term will expire on
the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. Mr. Mehrotra previously served as our Strategic Advisor to the
Chief Executive Officer from December 2015 to May 2017. Mr. Mehrotra is the CEO and Co-Founder of Coda, Inc. Mr. Mehrotra has previously served as a Vice
President of Product and Engineering at Google and Director of Program Management at Microsoft. Mr. Mehrotra holds a Bachelor of Science in Computer
Science and a Bachelor of Science in Mathematics from the Massachusetts Institute of Technology.
Heidi O’Neill is a member of our board of directors. She has been a member of our board of directors since December 5, 2017, and her term will expire
on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. Ms. O’Neill previously served as a member of the board of
directors of Skullcandy, where she also was the Chair of the compensation committee, and the Nike School Innovation Fund, of which she was a founding
member. Ms. O’Neill also serves as the President of Consumer and Marketplace, a division of Nike, Inc.
Ted Sarandos is a member of our board of directors. He has been a member of our board of directors since September 13, 2016, and his term will expire
on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. In addition to his role on our board of directors, Mr. Sarandos
serves on the board of directors of Netflix, as well as the Film Advisory Board of Directors for Tribeca Film Festival, the board of directors of American
Cinematheque, and the advisory board of Film Independent. Mr. Sarandos is also an American Film Institute trustee, an Executive Committee Member of the
Academy of Television Arts & Sciences, a Henry Crown Fellow at the Aspen Institute, and serves on the board of directors of Exploring the Arts. He also serves as
the co-CEO and Chief Content Officer of Netflix and has led content acquisition for Netflix since 2000.
Thomas Staggs is a member of our board of directors. He has been a member of our board of directors since June 13, 2017, and his term will expire on
the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. In addition to his role on our board of directors, Mr. Staggs
serves as the Executive Chairman of Vejo, Inc, Executive Chairman of Bertsch Industries, GmbH, Chairperson of the Strategic Advisory Committee and director
of Forest Road Acquisition Corp., Chairman of PureForm Global Inc., and a director of REQPay Inc. and Weta Digital Limited. He also serves on the board of
advisors of the University of Minnesota Carlson School of Management and the board of trustees of the Center for Early Education. Mr. Staggs previously served
in various roles at The Walt Disney Company, including as Chief Financial Officer, Chairman of Disney Parks and Resorts, Chief Operating Officer, and Special
Advisor to the Chief Executive Officer. He also was previously a member of the board of directors at Euro Disney SCA from 2002 until 2015. Mr. Staggs holds a
Bachelor of Science in Business from the University of Minnesota and a Master of Business Administration from the Stanford Graduate School of Business.
Cristina Stenbeck is a member of our board of directors. She has been a member of our board of directors since June 13, 2017, and her term will expire
on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. In addition to her role on our board of directors, Ms. Stenbeck
chairs the Supervisory Board of Zalando SE, the leading European starting point for online fashion listed on the MDAX in Germany. From 2003 through 2019,
Ms. Stenbeck served on the board of directors as principal shareholder of Kinnevik AB, a Swedish listed investment management company. She was Deputy
Chairman from 2003 to 2007 and Executive Chairman from 2007 to 2016.
Padmasree Warrior is a member of our board of directors. She has been a member of our board of directors since June 13, 2017, and her term will
expire on the date of the general meeting of shareholders to be held to approve the annual accounts of 2020. In addition to her role on our board of directors,
Ms. Warrior serves on the boards of directors of Microsoft. In addition, Ms. Warrior was a member of the board of directors of The Gap, Inc. from 2013 to 2016
and a member of the board of directors of Box, Inc. from 2014 to 2016. From 2008 to 2015 Ms. Warrior worked at Cisco, most recently as Chief Technology and
Strategy Officer. She served as the Chief Executive Officer of NIO USA and Chief Development Officer of NIO Inc. from December 2015 to 2018. In 2019, she
founded Fable Group, where she serves as President and Chief Executive Officer. She holds a Bachelor of Technology in Chemical Engineering from the Indian
Institute of Technology and a Master of Science in Chemical Engineering from Cornell University.
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Family Relationships
There are no family relationships between any of the directors. There are no family relationships between any director and any of the senior management
of our Company.
Arrangements or Understandings
Christopher Marshall was elected as a director pursuant to a shareholder arrangement pursuant to his role as a general partner of TCMI, Inc., which
manages the TCV funds. Such shareholder arrangement has since been terminated. None of our other senior management, directors, or key employees has any
arrangement or understanding with our principal shareholder, customers, suppliers, or other persons pursuant to which such senior management, director, or key
employee was selected as such.
B. Compensation
This section discusses the principles underlying the material components of our executive compensation program for a subset of our executive leadership
team who would be our named executive officers, if we were a domestic issuer, and the factors relevant to an analysis of these policies and decisions. These
“named executive officers” for 2020 are:
•
•
•
•
•
•
Daniel Ek, who is our Founder and serves as our Chief Executive Officer (“CEO”), Chairman, and Director and is our principal
executive officer;
Barry McCarthy, who served as our Chief Financial Officer (“CFO”) and our principal financial officer until he retired on January 15,
2020 and currently serves as a member of our board of directors;
Paul Vogel, who serves as our CFO and our principal financial officer;
Dawn Ostroff, who serves as our Chief Content & Advertising Business Officer;
Gustav Söderström, who serves as our Chief Research & Development Officer; and
Alex Norström, who serves as our Chief Freemium Business Officer.
Specifically, this section provides an overview of our executive compensation philosophy, the overall objectives of our executive compensation program,
and each compensation component that we provide. In addition, we explain how and why the remuneration committee of our board of directors arrived at specific
compensation policies and decisions involving our named executive officers during 2020.
Each of the key elements of our executive compensation program is discussed in more detail below. Our compensation programs are designed to be
flexible and complementary and to collectively serve their principles and objectives.
Executive Compensation Philosophy and Objectives
We operate in the highly competitive and dynamic digital media industry as the world’s most popular global audio streaming subscription service. This
industry is characterized by rapidly changing market requirements and the emergence of new competitors. To succeed in this environment, we must continuously
develop solutions that meet the needs of our rapidly growing user base in a rapidly changing environment, efficiently develop and refine new and existing products
and services, and demonstrate a strong return on investment to our advertisers. To achieve these objectives, we need a highly talented and seasoned team of data
scientists, engineers, product designers, product managers, and other business professionals.
We recognize that our future success depends on our continuing ability to attract, develop, motivate, and retain highly qualified and skilled employees,
which is driven by our compensation, culture and reputation, and the strength of our brand. We strive to create an environment that is responsive to the needs of
our employees, is open towards employee communication and continual performance feedback, encourages teamwork, and rewards commitment and performance.
The principles and objectives of our compensation and benefits programs for our executive leadership team and other employees are to:
•
•
attract, engage, and retain the best executives to work for us, with experience and managerial talent enabling us to be an employer of
choice in highly competitive and dynamic industries;
align compensation with our corporate strategies, business and financial objectives, and the long-term interests of our shareholders;
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•
•
motivate and reward executives whose knowledge, skills, and performance ensure our continued success; and
ensure that our total compensation is fair, reasonable, and competitive.
We compete with many other companies in seeking to attract and retain experienced and skilled executives. To meet this challenge, we have embraced a
compensation philosophy that offers our executive leadership team competitive compensation and benefits packages including equity grants, which are focused on
long-term value creation, and that rewards our executive leadership team for achieving our financial and strategic objectives.
Roles of Our Board of Directors, Remuneration Committee, and Chief Executive Officer in Compensation Decisions
The initial compensation arrangements with our executive leadership team, including the named executive officers, have been determined in arms-length
negotiations with each individual executive. Typically, our CEO has been responsible for negotiating these arrangements, except with respect to his own
compensation, with the oversight and final approval of the members of our board of directors or the remuneration committee. The compensation arrangements have
been influenced by a variety of factors, including, but not limited to:
•
•
•
•
•
our financial condition and available resources;
our need for that particular position to be filled;
our board of directors’ evaluation of the competitive market based on the third-party data provided by Compensia, Inc. (“Compensia”),
a national compensation consulting firm, competitive pay practices for comparable positions at companies of comparable scale and in
relevant business segments, as further described below, and the experience of the members of the remuneration committee with other
companies;
the length of service of an individual; and
the compensation levels of other members of the executive leadership team, each as of the time of the applicable compensation
decision.
Following the establishment of the initial compensation arrangements, our CEO, board of directors, and remuneration committee have been responsible
for overseeing our executive compensation program, as well as determining and approving the ongoing compensation arrangements for our CEO and other
members of the executive leadership team, including the other named executive officers. Typically, our CEO reviews the performance of the other members of the
executive leadership team, including the other named executive officers, and based on this review, along with the factors described above, make recommendations
to the remuneration committee with respect to the total compensation, including each individual component of compensation, of these individuals for the coming
year. There is no predetermined time of year for these reviews, although they are generally performed on an annual basis coinciding with our Company-wide
employee compensation review in March. Further, the remuneration committee reviews the performance of our CEO, and based on this review and the factors
described above, determines his total compensation for the coming year.
The current compensation levels of our executive leadership team, including the named executive officers, primarily reflect the varying roles and
responsibilities of each individual.
Engagement of Compensation Consultant
The remuneration committee has engaged the services of Compensia to provide executive compensation advisory services. The remuneration committee
directed Compensia to develop a peer group of comparable companies in our sector and prepare a competitive market analysis of our executive compensation
program to assist it in determining the appropriate level of overall compensation, as well as assess each separate component of compensation, with the goal of
understanding the competitiveness of the compensation we offer to our executive leadership team. In 2019, the remuneration committee approved the
compensation peer group (the “Peer Group”) for fiscal year 2020. The Peer Group for 2020 consisted of the following companies:
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Activision Blizzard
eBay
Intuit
PayPal Holdings
Trip.com Group
Autodesk
Electronic Arts
Live Nation Entertainment
Sirius XM Holdings
Twitter
Booking Holdings
Expedia Group
MercadoLibre
Snap
Zalando
Discovery
IAC/InterActiveCorp
Netflix
Take-Two Interactive
The remuneration committee bases its executive compensation decisions, at least in part, by reference to the compensation of the executives holding
comparable positions at this group of comparable peer companies, as it may be adjusted from time to time. In 2019, Compensia provided the remuneration
committee with total cash compensation data and total compensation data (including cash compensation and equity compensation) at various percentiles within the
Peer Group. The remuneration committee considered this data in determining the compensation levels of our named executive officers, but we did not benchmark
our executive compensation to any pre-determined target percentile of market. The remuneration committee sought to compensate our named executive officers at
a level that would allow us to successfully recruit and retain the best possible talent for our executive leadership team. Overall, Compensia’s analysis of our Peer
Group indicated that the target total cash compensation for our named executive officers was approximately the 25th percentile of our Peer Group. Our total
compensation for our named executive officers other than our CEO (who, as we note below, did not receive any cash or equity compensation in 2020), including
cash and equity compensation, was between the 50th and 75th percentile of our Peer Group. As discussed below, we rely heavily on our equity awards to
incentivize our employees, including each of our named executive officers.
Compensation Philosophy
We design the principal components of our executive compensation program to fulfill one or more of the principles and objectives described above.
Compensation of our named executive officers consists of the following elements:
•
•
•
•
•
base salary;
equity incentive compensation;
certain severance benefits;
retirement savings plans; and
health and welfare benefits and certain limited perquisites and other personal benefits.
We offer cash compensation in the form of base salaries that we believe appropriately reward our executive leadership team members for their individual
contributions to our business. We have opted not to offer annual cash bonuses to our executive leadership team members, as we believe they do not incentivize the
long-term growth of the Company. Instead, we incentivize our executive leadership team members heavily through share-based compensation, which we believe
fosters the long-term growth of the Company.
We have emphasized the use of equity to incentivize our executive leadership team to focus on the growth of our overall enterprise value and,
correspondingly, the creation of value for our shareholders. As a result of this compensation practice, we have tied a greater percentage of each executive
leadership team member’s total compensation to shareholders returns and kept cash compensation at modest levels, while providing the opportunity to be well-
rewarded through equity if we perform well over time.
Except as described below, we have not adopted any policy or guidelines for allocating compensation between currently-paid and long-term
compensation, between cash and non-cash compensation, or among different forms of non-cash compensation.
Each of the primary elements of our executive compensation program is discussed in more detail below. We believe that, as a part of our overall executive
compensation policy, each individual element serves our objectives described above.
Executive Compensation Program Components
The following describes the primary components of our executive compensation program for each of our named executive officers, the rationale for that
component, and how compensation amounts are determined.
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Base Salary
Generally, each named executive officer’s initial base salaries were established through arms-length negotiation at the time the individual was hired,
taking into account his or her qualifications, experience, and prior salary level. Thereafter, the base salaries of our executive leadership team members, including
the named executive officers, are reviewed periodically by our remuneration committee, and adjustments are made as deemed appropriate. In January 2020, in
connection with Mr. Vogel’s promotion to Chief Financial Officer, Mr. Vogel received an increase in his annual base salary from $400,000 to $600,000.
As of July 1, 2017, our CEO does not receive a base salary; however, the remuneration committee may, from time to time, provide Mr. Ek with a
discretionary bonus as it determines to be appropriate. Mr. Ek did not receive a bonus for 2018, 2019, or 2020.
As of the end of fiscal year 2020, our named executive officers who were employed by us were entitled to the following annual base salaries:
Named Executive Officer
(1)(2)
Daniel Ek
Paul Vogel
Dawn Ostroff
Gustav Söderström
Alex Norström
(2)
(2)
Annual Base
Salary
0
600,000
1,000,000
364,520
379,101
$
$
$
$
$
______________________
(1)
(2)
As of July 1, 2017, Mr. Ek does not receive a base salary.
Messrs. Ek, Söderström, and Norström are each paid in Swedish Krona. Such amounts are based on the exchange rate of SEK 8.23 per dollar as of December 31, 2020 as published
by Reuters.
Long-Term Incentives
Each of our named executive officers has been granted equity awards in the Company, which allow them to share in the future appreciation of the
Company, subject to certain vesting conditions, as described in more detail below. These equity awards are designed to foster a long-term commitment to us by our
named executive officers, provide a balance to the salary component of our compensation program, align a portion of our executives’ compensation to the interests
of our shareholders, promote retention, and reinforce our pay-for-performance structure (as discussed in more detail below).
Long-term incentive awards are provided upon hire as well as during employment at the Company’s discretion.
In 2019, we established a new incentive mix program, which provides our named executive officers as well as all other permanent employees with
maximum flexibility and individual autonomy, by allowing our employees to have the ability to choose their own composition of long-term incentive
awards. Employees are informed of their intended aggregate dollar amount of long-term incentive compensation, and they can allocate such dollar amount among
at-the-money stock options, out-of-the-money stock options with a closing price equal to 150% of the closing price per ordinary share on the grant date, RSUs, or
cash. Employees can choose to have one or two types of equity awards and/or cash and can mix their programs in portions of 25%, 50%, and 75%. The amount of
any cash award chosen will be 90% of the dollar amount the employee allocates to cash. The number of RSUs provided is equal to the dollar amount the employee
allocates to RSUs divided by the closing price per ordinary share on the grant date. The number of at-the-money options provided is equal to four times the dollar
amount the employee allocates to such stock options divided by such closing price. The number of out-of-the-money stock options provided is equal to eight times
the dollar amount the employee allocates to stock options divided by such closing price. Each type of long-term incentive award vests on the same schedule:
3/48ths of the equity award and/or cash payment vests on the third calendar month following the date of grant, and thereafter 1/48th of the equity award and/or
cash payment vests on the first day of each calendar month. For further information on our equity award programs please see “—Stock Options,” “—Restricted
Stock Units” and “—Cash Program” below.
In 2020, each of our named executive officers, other than Mr. Ek, participated in the incentive mix program. The following table shows the dollar amount
of incentive compensation allocated to each named executive officer, as well as the allocations chosen by each such individual:
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Named Executive Officer
(1)
Barry McCarthy
Paul Vogel
Dawn Ostroff
Gustav Söderström
Alex Norström
Aggregate Long-Term
Incentive Award Dollar
Value
($)
2020 At-the-Money
Stock Option
Allocation
2020 Out-of-the-Money
Stock Option Allocation
2020 RSU
Allocation
2020 Cash
Allocation
($)
340,000
3,500,000
9,000,000
6,800,000
6,000,000
—
51,050
65,636
198,366
87,515
15,033
—
—
—
—
—
12,763
49,227
—
21,879
—
—
—
—
—
_____________________
(1)
Mr. McCarthy retired on January 15, 2020. Following his retirement, he continued to serve on our board of directors. The amount shown in the table relates to Mr. McCarthy
participation in the incentive mix program as a director.
Long-Term Incentive Award Decisions
Each year our remuneration committee reviews and recommends an equity program to our board of directors for approval in order to incentivize our
employees, including our named executive officers, and directors. Our remuneration committee, in consultation with our CEO, determines the aggregate dollar
value of the long-term incentive compensation to be awarded to each executive leadership team member. In making these decisions, the remuneration committee
takes into consideration the Company’s financial results and market conditions, as well as the factors described above.
Retirement Savings and Other Benefits
Our retirement programs are designed to comply with local laws and regulations. For our employees who reside in Sweden, including Messrs. Ek,
Söderström, and Norström, we participate in an occupational pension plan. Pursuant to such plan we pay a premium of 4.5% of each such employee’s monthly
base salary up to an annual income ceiling and 30% of monthly base salary on amounts above such annual income ceiling. Employees also may contribute
additional amounts through a salary exchange program pursuant to which eligible employees are given the opportunity to enhance their pension savings by
choosing to exchange a portion of their base salary for additional pension contributions. Certain legal limitations apply to the amount of contributions that may be
made to the occupational pension plan.
For our employees in the United States who satisfy certain eligibility requirements, including Messrs. McCarthy (prior to his retirement) and Vogel, and
Ms. Ostroff, we have established a 401(k) retirement savings plan. Under the 401(k) plan, eligible employees may elect to reduce their current compensation by up
to the prescribed annual limit and contribute these amounts to the 401(k) plan. The Company matches up to 50% of the employee’s contributions up to 6% of their
annual salary. Employees vest in the employer contributions ratably over one year.
The Company does not maintain any defined benefit plans for any of its named executive officers.
Employee Benefits and Perquisites
Additional benefits received by our Swedish employees, including Messrs. Ek, Söderström, and Norström, include private healthcare, accident insurance,
life and long-term disability insurance, travel insurance, and parental leave. Additional benefits received by our U.S. employees, including Messrs. McCarthy
(prior to his retirement) and Vogel, and Ms. Ostroff, include medical, dental, and vision benefits, medical, and dependent care flexible spending accounts, short-
term and long-term disability insurance, basic life insurance coverage, and parental leave. These benefits are provided to our named executive officers on the same
general terms as they are provided to all of our full-time employees in the applicable countries.
We design our employee benefits programs to be affordable and competitive in relation to the market, as well as compliant with applicable laws and
practices. We adjust our employee benefits programs as needed based upon regular monitoring of applicable laws and practices in the competitive market.
We do not view perquisites or other personal benefits as a significant component of our executive compensation program. We generally provide
relocation assistance to all of our employees, when applicable. In October 2020, we entered into a short-term lease for a residential property in Los Angeles,
California for use by Ms. Ostroff and her family. The property provides Ms. Ostroff with meeting and working space in Los Angeles during a time that our
corporate offices are closed as a
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result of the COVID-19 pandemic. Ms. Ostroff reimburses us for any personal use of the property based on the value of overnight stays at a comparable hotel
room. The unreimbursed costs to the Company of the lease are reported as other compensation to Ms. Ostroff in the “2020 Summary Compensation Table” below.
In addition, the personal safety of our employees, including our NEOs, is of the highest importance to us and in 2020 we paid for personal security services for
certain NEOs pursuant to the Company's personal security program for senior management. Although we consider these personal security services to be
appropriate and necessary for the reasons described above, the costs related to such services are reported as other compensation to our NEOs in the “2020
Summary Compensation Table” below. In the future, we may provide other perquisites or other personal benefits in limited circumstances, such as where we
believe it is appropriate to assist an individual executive officer in the performance of his or her duties, to make our executive leadership team members more
efficient and effective, and for recruitment, motivation, or retention purposes. All future practices with respect to perquisites or other personal benefits for our
named executive officers will be approved and subject to periodic review by the remuneration committee. We do not expect these perquisites to be a significant
component of our compensation program.
Severance
Each of our named executive officers is entitled to severance upon certain qualifying terminations. For further information on such amounts please see
“—Employment Agreements” below.
Employment Agreements
We have, or one of our subsidiaries has, entered into employment agreements with Messrs. Ek, McCarthy (prior to his retirement), Vogel, Norström, and
Söderström, and Ms. Ostroff. We currently do not have employment agreements or other service contracts with any members of our board of directors, except for
Mr. Ek.
In 2011, Mr. Ek entered into a new employment agreement that replaced his prior agreement. The employment agreement provides for an indefinite term
that automatically expires upon Mr. Ek’s retirement at age 65. The agreement provides for a fixed monthly salary, although the board of directors determined that,
commencing July 1, 2017, Mr. Ek would no longer receive an annual salary. Mr. Ek is also entitled to an annual cash bonus payment, at the sole discretion of the
board of directors. The Ek Agreement also provides for a six-month notice period prior to termination, though we may terminate the agreement with immediate
effect if Mr. Ek has grossly neglected his obligations or otherwise materially breached the contract. In the event of termination of employment by us (other than
due to gross neglect), in addition to pay during the notice period, Mr. Ek also will be entitled to a severance payment equal to six times his monthly salary, less any
income from future employment, payable in monthly installments following termination (using Mr. Ek’s current base salary, he would be entitled to no payments
under this arrangement).
Mr. Ek’s employment agreement contains post-termination non-competition covenants that we could choose to enforce for 12 months following any type
of termination of employment, except termination by us due to any reason other than breach of contract by Mr. Ek. In consideration for the non-competition
covenant, we will pay Mr. Ek, in monthly installments during his restricted period, 12 times his monthly salary, less any income from future employment, in an
amount up to 60% of Mr. Ek’s monthly salary (using Mr. Ek’s current base salary, he would be entitled to no payments under this arrangement). Such payment
will not be made during any period Mr. Ek is otherwise receiving severance pay from us or if Mr. Ek’s employment ceases as a result of retirement or termination
by us due to Mr. Ek’s breach of contract. If we decide not to enforce the non-competition covenant, the corresponding payment obligation would also cease.
Mr. Ek’s employment agreement also includes employee and customer non-solicitation clauses that will apply for 12-months post-termination and that do not
require us to pay any additional consideration.
In October 2016, Mr. McCarthy entered into a new employment agreement that replaced his prior agreement (the “McCarthy Agreement”). The
agreement provided for an indefinite employment period. The agreement also provided for a base salary, participation in our benefit plans, and total target
compensation of $5,000,000. The employment agreement provided that we could terminate Mr. McCarthy’s employment without “Cause” (as defined in the
agreement) upon three months’ notice. In addition, upon a termination without Cause, Mr. McCarthy would have been entitled to a severance amount equal to his
base salary for six months and subsidized health benefits for six months. If Mr. McCarthy’s employment were terminated within 12 months after a change in
control of the Company, or if he were required to perform duties that are materially inconsistent with those normally performed by him or is otherwise
constructively dismissed following the change in control, he would have been entitled to receive a lump sum severance payment of 12 months’ salary and
subsidized health benefits. Mr. McCarthy was also subject to a nine-month post-termination non-competition covenant (with such period commencing on the last
day of the notice period) and a two-year post-termination non-solicitation covenant.
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Mr. McCarthy retired effective as of January 15, 2020. We and Mr. McCarthy did not enter into a separation agreement or any similar arrangement in
connection with his resignation.
In 2017, each of Messrs. Norström, and Söderström entered into revised employment agreements (the “2017 Agreements”) that provide substantially
similar terms to the terms described above for the McCarthy Agreement, except that the 2017 Agreements do not provide for a specified total target compensation
and their non-competition periods commence on the first day of their respective notice periods rather than the last day.
Effective July 2018, we entered into an employment agreement with Ms. Ostroff (the “Ostroff Agreement”). The Ostroff Agreement provides for
substantially similar terms to the terms described above for the 2017 Agreements, except that the Ostroff Agreement provides for a signing bonus of $2,000,000,
payable in two equal installments on the date Ms. Ostroff’s first base salary payment is made and on the 12-month anniversary of such date, respectively. Payment
of each installment is subject to Ms. Ostroff’s continued employment through the 12-month period following the applicable installment payment date. If Ms.
Ostroff’s employment is terminated during either such 12-month period, she will be required to repay the amount received on the applicable installment payment
date, prorated for the number of fully completed months of employment during such 12-month period.
In 2018, Mr. Vogel entered into a new employment agreement that replaced his prior agreement (the “Vogel Agreement”). The Vogel Agreement
provides for an indefinite employment period. The agreement also provides for a base salary and participation in our benefit plans. The Vogel Agreement provides
that we can terminate Mr. Vogel without Cause (as defined in the Vogel Agreement) upon three months’ notice. In addition, upon a termination with Cause, Mr.
Vogel is entitled to a severance amount equal to his base salary for three months and subsidized health benefits for three months. In addition, if we terminate Mr.
Vogel at any time during the three month notice period, Mr. Vogel will also be entitled to an amount equal to his base salary through the end of the notice period.
Mr. Vogel will not be entitled to the above severance payments in the event of certain asset sales where Mr. Vogel continues his employment in the same or greater
capacity following the transaction or Mr. Vogel is offered continued employment in connection with the transaction and the Vogel Agreement is assumed by the
surviving entity following the transaction. Mr. Vogel is also subject to six-month post-termination non-compete covenant (with such period commencing on the
last day of the notice period) and a two-year post-termination non-solicitation covenant. In January 2020, in connection with Mr. Vogel’s promotion to Chief
Financial Officer, Mr. Vogel received an increase in his annual base salary from $400,000 to $600,000. The remaining terms and conditions of the Vogel
Agreement remain in effect following such promotion.
For further information on the post-termination treatment of our equity awards, please see “—Stock Options” and “—Restricted Stock Units” below.
C. Board Practices
Board of Directors Structure
Our board of directors currently consists of ten directors and is composed of Class A and Class B directors. Our articles of association provide that the
board of directors must be composed of at least three members. Each director holds office for the term decided by the general meeting of the shareholders or until
his or her successor has been appointed. For more information on the date of expiration of each director’s term and the length of time each director has served, see
“Item 6.A. Directors and Senior Management.” Our directors may be removed at any time, with or without cause, by a resolution of the shareholders’ meeting. See
“Item 10.B. Memorandum and Articles of Association.”
Remuneration Committee
Our board of directors has established a remuneration committee that consists of Christopher Marshall, Martin Lorentzon, and Shishir Mehrotra.
Christopher Marshall is the chair of our remuneration committee. Our remuneration committee has the following responsibilities, among others:
•
•
•
•
reviewing and making recommendations to our board of directors related to our incentive-compensation plans and equity-based plans;
establishing and reviewing the overall compensation philosophy of the Company;
reviewing and approving total compensation for our chief executive officer and other executive officers;
reviewing and making recommendations regarding the compensation to be paid to our non-employee directors;
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•
•
Audit Committee
selecting and retaining a compensation consultant; and
such other matters that are specifically delegated to the remuneration committee by our board of directors from time to time.
Our board of directors has established an audit committee that consists of Thomas Staggs, Christopher Marshall, and Padmasree Warrior. Mr. Staggs is
the chair of our audit committee. All audit committee members satisfy the “independence” requirements set forth under the rules of the NYSE and in Rule 10A-3
under the Exchange Act. Our audit committee has the following responsibilities, among others:
•
•
•
•
•
•
appointing and replacing our independent registered public accounting firm, subject to shareholder approval;
retaining, compensating, evaluating, and overseeing the work of our independent registered public accounting firm;
reviewing with our independent registered public accounting firm any difficulties or material audit issues and the Company’s response
to any management letters provided by the independent registered public accounting firm;
discussing the annual audited financial statements and quarterly financial statements with management and our independent registered
public accounting firm;
reviewing and evaluating the Company’s enterprise risk management, including the Company’s data protection and cybersecurity
programs; and
such other matters that are specifically delegated to our audit committee by our board of directors from time to time.
D. Employees
In 2020, 2019, and 2018, we had 5,584, 4,405, and 3,651 full-time employees on average, respectively. The following table describes our average number
of employees by department per fiscal year:
Content Production and Customer Service
Sales and Marketing
Research and Development
General and Administrative
2020
December 31,
2019
2018
2020 vs. 2019
2019 vs. 2018
% Change
580
1,436
2,624
944
371
1,192
2,094
748
236
1,016
1,846
553
56 %
20 %
25 %
26 %
57 %
17 %
13 %
35 %
The following table describes our average number of employees by geographic location:
United States
Sweden
United Kingdom
2020
December 31,
2019
2018
2,746
1,688
463
2,121
1,437
353
1,708
1,280
273
Additionally, for the years ended December 31, 2020, 2019, and 2018, we had an average of approximately 687, 494, and 390 employees, respectively, in
the aggregate in Argentina, Australia, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Germany, Hong Kong, India, Italy, Japan, Mexico,
Netherlands, Norway, Poland, Russia, Singapore, South Korea, Spain, Taiwan, Turkey, and United Arab Emirates. From time to time, we have engaged temporary
employees to fill open positions. We are not a signatory to any labor union collective bargaining agreement. As of December 31, 2020, 65 employees of The
Ringer, 56 employees of Parcast, and 48 employees of Gimlet, wholly-owned indirect subsidiaries of the Company, were represented by the Writer’s Guild of
America-East labor union. Collective bargaining has commenced, but an agreement has not been reached.
E. Share Ownership
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The following table provides information regarding share ownership by our officers and directors as of December 31, 2020.
Name of Beneficial Owner
Daniel Ek
(1)
Martin Lorentzon
(2)
Number of
Shares
Owned
31,973,691
21,164,094
Paul Vogel
Katarina Berg
Horacio Gutierrez
Alex Norström
Dawn Ostroff
Gustav Söderström
Christopher Marshall
(3)
Barry McCarthy
(4)
Shishir Mehrotra
Heidi O’Neill
Ted Sarandos
Thomas Staggs
(5)
Cristina Stenbeck
Padmasree Warrior
—
—
4,710
—
—
—
19,594
—
—
—
8,605
—
—
5,743
—
—
—
6,958
—
—
5,920
—
—
—
49,867
—
—
440,722
68,074
—
3,808
10,792
—
—
35,585
—
44,368
—
4,332
—
Approximate
Percentage of
Outstanding
Ordinary
Shares
Number of
Shares
Underlying
Options
Option
Exercise
Price ($)
Option
Expiration
Date
Restricted
Stock
Units
16.8 %
11.1 %
— %
— %
*
— %
— %
— %
*
— %
— %
— %
*
— %
— %
*
— %
— %
— %
*
— %
— %
*
— %
— %
— %
*
— %
— %
*
*
— %
*
*
— %
— %
*
— %
*
— %
*
— %
—
18,602
3,758
7,517
1,520
28,520
21,191
51,050
7,040
43,600
32,609
23,337
63,135
2,038
600
195,600
130,800
153,623
87,515
24,804
58,798
58,513
155,280
145,360
171,014
198,366
4,651
9,301
7,517
15,033
13,952
11,275
2,325
4,651
9,301
3,758
7,386
7,959
4,651
3,758
4,651
3,758
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
—
219.33
180.93
271.40
50.70
123.13
138.00
137.12
50.70
123.13
138.00
137.12
142.55
138.00
78.25
50.70
123.13
138.00
137.12
138.00
137.12
180.12
50.70
123.13
138.00
137.12
146.22
219.33
180.93
271.40
219.33
271.40
146.22
146.22
219.33
180.93
146.22
180.93
219.33
271.40
219.33
180.93
—
6/28/2024
5/29/2025
5/29/2025
3/31/2022
3/31/2023
3/1/2024
3/1/2025
3/31/2022
3/31/2023
3/1/2024
3/1/2025
12/1/2024
3/1/2024
3/31/2022
3/31/2022
3/31/2023
3/1/2024
3/1/2025
3/1/2024
3/1/2025
3/31/2023
3/31/2022
3/31/2023
3/1/2024
3/1/2025
6/28/2024
6/28/2024
5/29/2025
5/29/2025
6/28/2024
5/29/2025
6/28/2024
6/28/2024
6/28/2024
5/29/2025
6/28/2024
5/29/2025
6/28/2024
5/29/2025
6/28/2024
5/29/2025
—
2,051
—
—
13,351
—
—
—
18,807
—
—
—
48,881
—
—
17,776
—
—
—
56,200
—
—
—
—
—
—
2,051
—
—
—
2,956
—
4,918
2,991
—
—
2,573
—
4,768
—
2,051
—
Warrants
800,000
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Subscription
Price ($)
190.09
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
________________________
*
(1)
Represents beneficial ownership of less than 1%.
Includes 15,341,722 ordinary shares held by D.G.E. Investments Limited (“D.G.E. Investments”). Mr. Ek is the sole shareholder of D.G.E. Holding Limited (“D.G.E. Holding”),
which is the sole shareholder of D.G.E. Investments. Also includes 4,276,200 ordinary shares held by Tencent Music Entertainment Hong Kong Limited (“TME Hong Kong”),
9,076,240 ordinary shares held by Image Frame Investment (HK) Limted (“Image Frame”), 3,227,920 ordinary shares held by Tencent Mobility Limited, and 51,609 ordinary
shares held by Distribution Pool Limited. Mr. Ek exercises voting power over the ordinary shares held by TME Hong Kong, Image Frame, Tencent Mobility Limited, and
Distribution Pool Limited through his indirect ownership of D.G.E. Investments, which holds an irrevocable proxy with regard to these ordinary shares. As such, Mr. Ek may be
deemed to share beneficial ownership of the ordinary shares held by TME Hong Kong, Image Frame, Tencent
70
Table of Contents
(2)
(3)
(4)
(5)
Mobility Limited, and Distribution Pool Limited. Additionally, each of D.G.E. Holding and Mr. Ek may be deemed to share beneficial ownership of the ordinary shares held by
D.G.E. Investments. The business address of D.G.E. Holding is 1 Alexandrou Panagouli, Office 2B, Novel Tower, 6057 Larnaca, Cyprus.
Includes 21,159,762 ordinary shares held by Rosello Company Limited (“Rosello”). Mr. Lorentzon is the sole shareholder of Amaltea S.à r.l. (“Amaltea”), which is the sole
shareholder of Rosello. As such, each of Amaltea and Mr. Lorentzon may be deemed to share beneficial ownership of the ordinary shares held by Rosello. The business address of
Rosello is 22 Stasikratous Street, Office 001, 1065 Nicosia, Cyprus.
Includes (i) 32,992 ordinary shares held by Marshall Carroll 2000 Trust; (ii) 440 ordinary shares held by Marshall Partners; (iii) 16,435 shares held by Mr. Marshall for the benefit
of TCV VII Management, L.L.C. (“TCV VII Management”) and TCV VIII Management, L.L.C. (“TCV VIII Management”); (iv) 21,469 non-qualified stock options held by Mr.
Marshall for the benefit of TCV VII Management and TCV VIII Management; and (v) 2,051 ordinary shares issuable upon vesting of RSUs held by Mr. Marshall for the benefit of
TCV VII Management and TCV VIII Management. Mr. Marshall is a trustee of the Marshall Carroll 2000 Trust and a general partner of Marshall Partners. Mr. Marshall disclaims
beneficial ownership of such shares except to the extent of his pecuniary interest therein. Mr. Marshall and the other members of TCV VII Management and TCV VIII
Management (collectively, the “Management Members”) may be deemed to have the shared power to dispose or direct the disposition of the 16,435 ordinary shares, the 21,469
non-qualified stock options, and the 2,051 ordinary shares issuable upon vesting of the RSUs held by Mr. Marshall. The Management Members disclaim beneficial ownership of
the ordinary shares and the ordinary shares issuable upon vesting of non-qualified stock options and RSUs, except to the extent of their respective pecuniary interest therein.
Includes 167,855 ordinary shares held by Rivers Cross Trust, an entity wholly owned by Mr. McCarthy. The business address of Rivers Cross Trust is 3875 Woodside Rd,
Woodside, CA 94062.
Includes 31,040 ordinary shares held by the Staggs Trust, a revocable inter-vivos trust established by Mr. Staggs and his spouse. The business address of the Staggs Trust is 433 N.
Camden Drive, Suite 54, Beverly Hills, CA 90210.
Stock Options
As noted above, we have granted stock options to our employees, including as part of the incentive mix program implemented in 2019. Each stock option
represents the right to purchase one of our ordinary shares. Each year through 2020, we adopted a new employee stock option program for a one-year term;
however, in 2019, we adopted two stock option programs, an interim 2019 plan (the “Interim 2019 Plan”) and the 2020 plan (the “2020 Plan”). In 2020, we
adopted a new employee stock option program that takes effect in April 2021 for a five-year term (the “2021 Plan”). Pursuant to the recent stock option programs,
each participant is granted a stock option at a specified exercise price. Since January 1, 2016, the exercise prices have been set at fair market value. Of each grant
made prior to 2019 and each grant made pursuant to the Interim 2019 Plan, 3/16ths of the total number of options granted vests on the first of any of March 1, June
1, September 1, or December 1 falling more than three months from the date of grant (except for grants made prior to 2017 in Australia for which 5/16 vests on the
first of March 1, June 1, September 1, or December 1 after 12 months from the date of grant), and thereafter 1/16 vests on each March 1, June 1, September 1, and
December 1 thereafter, subject to continued employment. As noted above, of each grant made pursuant to the 2020 Plan and 2021 Plan as part of the incentive mix
program, 3/48ths of the total number of options granted vested on the third calendar month following the date of grant, and thereafter 1/48th of the total number of
options granted vests on the first day of each calendar month thereafter, subject to continued employment. The options granted prior to 2019 and granted pursuant
to the Interim 2019 Plan expire on March 31 of the fifth year following the date of grant. The options granted under the 2020 Plan and the 2021 Plan expire on the
fifth anniversary of the date of grant. Initially, vested options were only exercisable annually during a 30-day exercise window, for a period of time immediately
following the optionee’s termination and upon the expiration of the term of the option. In 2016, we amended our stock option program to provide that vested
options could be exercised during each March, June, September, and December prior to the expiration of the term of the option. We later further amended our stock
option program in 2017 to provide that vested options may be exercised at any time prior to the expiration of the option term. For our employees in certain
countries, upon the exercise of a stock option, the Company is required to pay a social security contribution in an amount equal to the spread value of the option
multiplied by the applicable tax rate.
Upon the termination of an optionee’s employment for any reason, all unvested options held by the optionee will generally be immediately forfeited.
However, for certain employees, including the named executive officers, upon termination of an optionee’s employment (i) by the Company for any reason other
than Cause or (ii) by the optionee due to the Company’s material breach of the optionee’s employment agreement, a portion of unvested options will immediately
vest. The portion of unvested options that will accelerate and vest ranges from six to twelve months’ worth of unvested options, depending on the optionee. If the
optionee resigns; if we terminate the optionee’s employment other than as a result of death, disability or “Cause” (as defined in the applicable option plan); or if the
optionee retires, the optionee’s vested options will remain exercisable for 90 days following such termination. If the optionee’s termination of employment occurs
due to death or disability, the vested options will remain exercisable for 194 days following termination. In either case, the option will no longer be exercisable
after the expiration date. Upon termination for Cause, vested options will immediately be forfeited. We also may cancel an optionee’s options upon the optionee’s
commission of a material breach of the terms and conditions governing the options.
The board of directors may provide for a new exercise period upon a change in control. If the board of directors sets a new exercise period, 50% of each
holder’s unvested options will accelerate and vest. Following such acceleration, the board of directors may choose to allow the unvested options to continue to vest
or lapse. For the plans prior to 2018 and the Interim 2019
71
Table of Contents
Plan, if the board allows the unvested options to continue vesting, 1/8th of the unvested options will vest on the first cliff vesting date as described above, and
1/32nd of the remaining options will vest each quarter thereafter. For the 2020 Plan and 2021 Plan, if the board allows the unvested options to continue vesting,
3/96th of the unvested options will vest after the first cliff vesting date as described above, and 1/96th of the remaining options will vest on each subsequent
regularly scheduled vesting occasion. If we or our successor terminates an optionee’s employment without Cause within six months following a transaction
constituting a change in control, any unvested stock options held by the optionee will vest as of such termination. In addition, for certain employees, including the
named executive officers, if within six months following a change in control, such employee (i) resigns because he or she is required to perform duties that are
materially inconsistent with the ones normally performed by someone in such position or (ii) otherwise experiences a constructive termination, any unvested stock
options held by the employee will vest as of such resignation. The plans provide for other potential adjustments to the stock options in the event of corporate
transactions.
We also maintain an option program for former employees of The Echo Nest Corporation who are not members of the executive leadership team, which
options we assumed in connection with the acquisition of The Echo Nest Corporation.
Restricted Stock Units
As noted above, we have granted RSUs to our employees, including as part of the incentive mix program implemented in 2019. Each year through 2020,
we adopted a new employee RSU program for a one-year term; however, in 2020, we adopted a new employee restricted stock unit program for a five-year term
that will take effect in 2021. Each RSU represents the right to receive one of our ordinary shares. With respect to RSUs granted prior to 2018, one-fifth of each
grant of RSUs time-vests on each September 1, commencing on the September 1 falling more than three months from the date of grant and subject to the holder’s
continued employment with us. In addition to time-vesting, one of the following events or dates also has to occur in order for such RSUs granted prior to 2018 to
fully vest: (i) the six-month anniversary of an initial public offering, (ii) a change in control, and (iii) September 1 of the third year following the date of grant,
subject to the holder’s continued employment through such date. If one of such events or dates occurs prior to final time-vesting of an award of RSUs, then the
RSUs will continue to be subject to time-vesting following such event or date, and will fully vest upon the final time-vesting date. RSUs granted in 2018 fully vest
on each of the first five anniversaries of the date of grant, subject to the holder’s continued employment with us. As described above, for RSUs granted in 2019 and
2020 as part of the incentive mix program, 3/48ths of the total number of RSUs granted vested on the third calendar month following the date of grant, and
thereafter 1/48th of the total number of RSUs granted vests on the first day of each calendar month thereafter, subject to continued employment. For certain
employees, including the named executive officers, upon termination of an employee’s employment (i) by the Company for any reason other than Cause or (ii) by
the employee due to the Company’s material breach of the employee’s employment agreement, a portion of the individual’s unvested RSUs will immediately vest.
The portion of unvested RSUs that will accelerate and vest will be equal to the number of such RSUs that would have otherwise vested between six and 12 months
following the termination, depending on the employee. In addition, for certain employees, including the named executive officers, if within six months following a
change in control, the individual (i) resigns because he or she is required to perform duties that are materially inconsistent with the ones normally performed by
someone in such position or (ii) otherwise experiences a constructive termination, all of the individual’s outstanding unvested RSUs will accelerate and vest.
For our employees in certain countries, upon vesting of an RSU, the Company is required to pay a social security contribution in an amount equal to the
profit an employee realizes upon vesting multiplied by the applicable tax rate. The RSUs are settled in ordinary shares on or as soon as reasonably practicable (but
no later than 30 days) following full vesting.
The plans provide for other potential adjustments to the RSUs in the event of corporate transactions. If the holder commits a material breach of the terms
and conditions governing RSUs, we may cancel the unvested RSUs. All unvested RSUs will be forfeited upon any termination of employment.
On certain occasions we also grant RSUs to individuals who become employees through acquisitions, with varying vesting schedules.
Cash Program
As noted above, we also offer cash retention awards as part of our incentive mix program to all permanent employees. Pursuant to the cash alternative of
the incentive mix program, the named executive officers who choose to include cash in their incentive mix composition will receive a fixed cash payment upon
each vesting date. As noted above, for the cash awards granted in 2020, 3/48ths of the cash payment vested on the third calendar month following the date of
grant, and thereafter 1/48th of the cash payment granted vests on the first day of each calendar month thereafter, subject to continued employment.
72
Table of Contents
Other Contingently Issuable Shares
In connection with acquisitions in 2019 and 2020, we issued equity instruments to certain employees of the target. Of each such grant of equity
instruments, one-fourth will vest on each anniversary of the closing of such transaction until fully vested, subject, in each case, to the employee’s continued
employment through such vesting date. The agreement provides for potential adjustments to the equity instrument in the event of corporate transactions.
Warrants
On October 17, 2016, Mr. Ek purchased, through D.G.E. Investments, an entity indirectly wholly owned by him, 3,200,000 non-compensatory warrants in
the Company, pursuant to a subscription agreement. Each warrant was purchased for $5.76. The terms and conditions for the warrants provide that D.G.E.
Investments may purchase the ordinary shares underlying the warrants for $50.61 per share at any time prior to October 17, 2019. On October 4, 2019, the
Company issued 1,600,000 ordinary shares and 16,000,000 beneficiary certificates to Mr. Ek, through D.G.E. Investments, upon the exercise of 1,600,000 warrants
that were granted on October 17, 2016, for cash of €74 million. On October 17, 2019, the Company issued 905,285 ordinary shares and 9,052,850 beneficiary
certificates to Mr. Ek, through D.G.E. Investments, upon the effective net settlement of the remaining 1,600,000 warrants that were granted on October 17, 2016.
On July 13, 2017, Mr. Ek purchased, through D.G.E. Investments, 1,600,000 non-compensatory warrants in the Company, pursuant to a subscription
agreement. Each warrant was purchased for $6.23, the then-current fair market value per share. The terms and conditions for the warrants provide that D.G.E.
Investments may purchase the ordinary shares underlying the warrants for $89.73 per share at any time prior to July 13, 2020. On July 13, 2020, the Company
issued 1,084,043 ordinary shares and 10,840,430 beneficiary certificates to Mr. Ek, through D.G.E. Investments, upon the effective net settlement of 1,600,000
warrants that were granted on July 13, 2017.
On July 1, 2019, Mr. Ek purchased, through D.G.E. Investments, 800,000 non-compensatory warrants in the Company, pursuant to a subscription
agreement. Each warrant was purchased for $20.61, the then-current fair market value per share. The terms and conditions for the warrants provide that D.G.E.
Investments may purchase the ordinary shares underlying the warrants for $190.09 per share at any time prior to July 1, 2022.
The warrants are subject to adjustment upon certain corporate events.
Compensation Tables
The following table sets forth information concerning the compensation of our named executive officers for the years ended December 31, 2020, 2019
and 2018.
2020 Summary Compensation Table
73
Table of Contents
Name and Principal Position
Year
Salary
($)
Bonus
($)
Option
Awards
($)
(1)
Stock
Awards
($)
(2)
All Other
Compensation
($)
Daniel Ek (CEO)
Barry McCarthy (Former CFO)
(5)
Paul Vogel (CFO)
(6)
Dawn Ostroff (Chief Content &
Advertising Business Officer)
Gustav Söderström (Chief Research &
Development Officer)
Alex Norström (Chief Freemium
Business Officer)
2020
2019
2018
2020
2019
2018
2020
2020
2019
2018
2020
2019
2018
2020
2019
2018
— (3)
— (3)
— (3)
23,333
560,000
560,000
595,386
1,000,000
1,000,000
420,513 (8)
364,520 (10)
320,514 (10)
332,963 (10)
379,101 (10)
333,335 (10)
346,282 (10)
— (3)
— (3)
— (3)
—
—
—
—
—
1,000,000
1,000,000
—
—
—
—
—
—
—
—
—
403,600
6,682,200
5,000,341
1,663,708
2,139,061
1,500,679
6,499,650
6,464,706
6,682,200
5,000,341
2,852,095
6,002,664
4,499,406
—
—
—
—
—
—
1,750,063
6,750,006
3,974,952
—
—
—
—
3,000,048
—
—
490,334 (4)
336,462
2,220
—
8,400
2,220
8,550
87,250 (7)
8,400
10,470
95,889 (9)
113,494
90,949
102,290 (9)
91,379
96,889
Total
($)
490,334
336,462
2,220
426,933
7,250,600
5,562,561
4,017,707
9,976,317
7,484,031
7,930,633
6,925,115
7,116,208
5,424,253
6,333,534
6,427,378
4,942,577
________________________
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Amounts reflect the grant-date Black-Scholes value of the stock options granted to our named executive officers, computed in accordance with IFRS 2, rather than the amounts
paid to or realized by the named individual. We provide information regarding the assumptions used to calculate the value of all option awards made to executive officers in
“Operating and Financial Review and Prospects” and in Note 19 of the consolidated financial statements included elsewhere in this 20-F.
Amounts reflect the grant-date fair value of the RSUs granted, computed in accordance with IFRS 2, rather than the amounts paid to or realized by the named individual. We
provide information regarding the assumptions used to calculate the value of all stock awards made to executive officers in “Operating and Financial Review and Prospects” and in
Note 19 of the consolidated financial statements included elsewhere in this 20-F.
As of July 1, 2017, we ceased paying Mr. Ek a base salary; however, the remuneration committee may, from time to time, provide Mr. Ek with a discretionary bonus as it
determines to be appropriate. Mr. Ek did not receive a bonus for fiscal years 2018, 2019, or 2020.
For 2020, amount reflects $490,334 for home security services. These 2020 dollar amounts are based on a currency translation of SEK 8.23 per dollar as published by Reuters on
December 31, 2020.
Mr. McCarthy retired on January 15, 2020. He continues to serve on our board of directors, which he joined on January 8, 2020. The amounts shown for Mr. McCarthy include
compensation earned or paid to him as an employee and as a non-employee director during 2020.
Mr. Vogel’s service as the Company’s Chief Financial Officer commenced January 15, 2020. Amount reflects the actual base salary earned by Mr. Vogel during fiscal year 2020.
Amount reflects $8,550 for Company matching contributions to the 401(k) plan and $78,700 for use of a corporate apartment.
Ms. Ostroff’s service as the Company’s Chief Content & Advertising Business Officer commenced July 31, 2018. Amount reflects the actual base salary paid to Ms. Ostroff during
fiscal year 2018.
Amount reflects contributions to the Swedish retirement plan.
Messrs. Söderström and Norström were each paid in Swedish Krona in 2018, 2019, and 2020. The 2018 dollar amounts are based on a currency translation of SEK 9.01 per dollar
as published by Reuters on December 31, 2018, and the 2019 dollar amounts are based on a currency translation of SEK 9.36 per dollar as published by Reuters on December 31,
2019. The 2020 dollar amounts are based on a currency translation of SEK 8.23 per dollar as published by Reuters on December 31, 2020. The amounts include vacation pay
received by Messrs. Söderström and Norström pursuant to Swedish standards.
The following table sets forth information regarding grants of plan-based awards made to our named executive officers during the year ended
December 31, 2020:
Grants of Plan-Based Awards in 2020
74
Table of Contents
Name
Daniel Ek
Barry McCarthy
Paul Vogel
Dawn Ostroff
Gustav Söderström
Alex Norström
All Other Stock
Awards: Number of
Shares of Stocks or
Units (# shares)(1)
Grant Date
—
05/29/2020
03/01/2020
03/01/2020
03/01/2020
03/01/2020
03/01/2020
03/01/2020
03/01/2020
—
—
—
12,763
—
49,227
—
—
21,879
All Other
Option
Awards:
Number of
Securities
Underlying
Options
(# shares)
(1)
—
15,033
51,050
—
65,636
—
198,366
87,515
—
Exercise or
Base Price
of Option
Awards Per
Ordinary Share
($)
Grant Date
Fair Value
of Stock and Option
Awards
($)
(2)
—
271.40
137.12
—
137.12
—
137.12
137.12
—
—
403,600
1,663,708
1,750,063
2,139,061
6,750,006
6,464,706
2,852,095
3,000,048
________________________
(1)
(2)
All stock awards were issued under the Company’s Terms and Conditions Governing Employee Restricted Stock Units 2020/2025 in Spotify Technology S.A. and all option
awards were issued under the Company’s Terms and Conditions Governing Employee Stock Options 2020/2025 in Spotify Technology S.A.
Amounts of option awards reflect the grant-date Black-Scholes value of the stock options granted during 2020 computed in accordance IFRS 2, rather than the amounts paid to or
realized by the named individual. Amounts of stock awards reflect the grant-date fair value of the RSUs granted, computed in accordance with IFRS 2, rather than the amounts paid
to or realized by the named individual. We provide information regarding the assumptions used to calculate the value of all option awards made to executive officers in “Operating
and Financial Review and Prospects” and in Note 19 of the consolidated financial statements included elsewhere in this 20-F.
The following table summarizes the number of ordinary shares underlying outstanding equity incentive plan awards for each named executive officer as
of December 31, 2020:
Outstanding Equity Awards at 2020 Fiscal Year-End
75
Table of Contents
Name
Daniel Ek
Barry McCarthy
Paul Vogel
Dawn Ostroff
Gustav Söderström
Alex Norström
Option Awards
Ordinary Share Awards
Number
of Securities
Underlying
Unexercised
Options
(#)
Exercisable
Number
Of Securities
Underlying
Unexercised
Options
(#)
Unexercisable
Option
Exercise
Price
($)
—
—
1,520
19,000
9,271
—
9,572
—
16,718
3,200
—
5,469
—
155,280
109,000
74,818
37,194
195,600
98,080
67,210
16,409
—
—
15,033
(3)
—
9,520
11,920
(1)
(1)
—
41,478
(2)
—
41,795
21,604
(1)
(2)
—
53,329
(2)
—
—
36,360
96,196
161,172
—
32,720
86,413
71,106
—
(1)
(2)
(2)
(1)
(2)
(2)
—
271.40
50.70
123.13
138.00
—
137.12
—
180.12
138.00
—
137.12
—
50.70
123.13
138.00
137.12
50.70
123.13
138.00
137.12
—
Grant
Date
—
05/29/2020
03/01/2017
03/01/2018
03/01/2019
03/01/2019
03/01/2020
03/01/2020
08/01/2018
03/01/2019
03/01/2019
03/01/2020
03/01/2020
03/01/2017
03/01/2018
03/01/2019
03/01/2020
03/01/2017
03/01/2018
03/01/2019
03/01/2020
03/01/2020
Number
Of
Ordinary
Shares
That Have
Not
Vested
(#)
—
—
—
—
—
Option
Expiration
Date
—
05/29/2025
03/01/2022
03/01/2023
03/01/2024
Market
Value of
Ordinary
Shares
That Have
Not
Vested
($)
(4)
—
—
—
—
—
—
2,981
(5)
03/01/2025
—
938,001
—
—
10,370
(6)
3,263,024
03/31/2023
03/01/2024
—
—
—
—
16,203
(5)
5,098,436
03/01/2025
—
—
39,997
(6)
12,585,456
03/31/2022
03/31/2023
03/01/2024
03/01/2025
03/31/2022
03/31/2023
03/01/2024
03/01/2025
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
17,776
(6)
5,593,396
________________________
(1)
(2)
(3)
(4)
(5)
(6)
Of each option grant, 3/16ths of the total number of options granted vested on the first day of any of March 1, June 1, September 1, or December 1 falling more than three months
from the grant date and thereafter 1/16th vests on each March 1, June 1, September 1, and December 1 thereafter, subject to continued employment.
Of each option grant, 3/48ths of the total number of options granted vested on the third calendar month following the date of grant, and thereafter 1/48th of the total number of
options granted vests on the first day of each calendar month thereafter, subject to continued employment.
Of each option grant, 1/4th of the total number of options granted vest on the first February 15th following the date of grant, and thereafter 1/4th of the total number of options
granted vests on each February 15th thereafter, subject to continued service on the board of directors.
Values were calculated based on a $314.66 closing price of our ordinary shares, as reported on the NYSE on December 31, 2020.
Of each RSU grant, 3/48ths of such RSU grant vested on June 1, 2019 and thereafter 1/48th vests on the first day of each calendar month thereafter, subject to continued
employment.
Of each RSU grant, 3/48ths of such RSU grant vested on June 1, 2020 and thereafter 1/48th vests on the first day of each calendar month thereafter, subject to continued
employment.
The following table summarizes stock option exercises by and vesting of stock applicable to our named executive officers during the year ended
December 31, 2020:
2020 Option Exercises and Stock Vested
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Name
Daniel Ek
Barry McCarthy
Paul Vogel
Dawn Ostroff
Gustav Söderström
Alex Norström
Option Awards
Stock Awards
Number of Ordinary
Shares
Acquired on Exercise
(#)
Value Realized on
Exercise
($)
(1)
Number of Ordinary
Shares
Acquired on Vesting
(#)
Value Realized on
Vesting
($)
(2)
65,480
857,467
35,520
95,672
98,800
30,000
10,063,761
77,715,169
5,248,989
7,904,134
19,222,840
6,510,300
—
—
3,717
16,430
—
4,103
(3)
(4)
(5)
—
—
838,253
3,662,520
—
971,750
(1)
(2)
(3)
(4)
(5)
Represents the difference between the market value per share of the shares acquired on exercise, as determined based on the closing price of our ordinary shares as reported on the
NYSE on the date of exercise, and the exercise price of the option.
Value realized is calculated based on the closing price of our ordinary shares as reported on the NYSE on the date of vesting.
Includes 1,823 RSUs which the Company retained as part of a net share settlement to satisfy the applicable tax withholding liability of Mr. Vogel related to the vesting of such
shares.
Includes 7,858 RSUs which the Company retained as part of a net share settlement to satisfy the applicable tax withholding liability of Ms. Ostroff related to the vesting of such
shares.
Includes 2,295 RSUs which the Company retained as part of a net share settlement to satisfy the applicable tax withholding liability of Mr. Norström related to the vesting of such
shares.
Non-Employee Director Compensation
Similarly to our executive compensation decisions, the remuneration committee bases its decisions regarding non-employee director compensation, at
least in part, by reference to the compensation of the non-employee directors in the Peer Group (as described above in “—Engagement of Compensation
Consultant”). Our non-employee directors are also eligible to participate in our new incentive mix program, which provides our non-employee directors with
maximum flexibility and individual autonomy, by allowing our non-employee directors to have the ability to choose their own composition of long-term incentive
awards each year. For further information on our incentive mix program, please see “—Long Term Incentives” above. Each such grant generally vests ratably over
four years. The non-employee director RSUs will fully vest upon the occurrence of a change in control. Like employee RSUs, the RSUs are settled within 30 days
following vesting, subject to payment by the holder of the nominal value per ordinary share, and unvested RSUs are forfeited on termination of service. The plans
provide for certain potential adjustments in the event of corporate transactions.
In 2020, each of our non-employee directors participated in the incentive mix program. The following table shows the dollar amount of incentive
compensation allocated to each named executive officer, as well as the allocations chosen by each such individual:
Aggregate Long-Term
Incentive Award Dollar
Value
($)
2020 At-the-Money
Stock Option Allocation
2020 Out-of-the-Money
Stock Option Allocation
2020 RSU
Allocation
340,000
340,000
340,000
340,000
340,000
360,000
340,000
340,000
3,758
7,517
—
—
3,758
7,959
—
3,758
7,517
—
11,275
—
—
—
3,758
—
—
—
470
1,879
940
—
1,409
—
2020 Cash
Allocation
($)
—
—
—
—
—
—
—
153,000
Name
Martin Lorentzon
Christopher Marshall
Shishir Mehrotra
Heidi O’Neill
Ted Sarandos
Thomas Staggs
Cristina Stenbeck
Padmasree Warrior
2020 Director Compensation
The following table sets forth information concerning the compensation of our non-employee directors during the year ended December 31, 2020:
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Name(1)
Martin Lorentzon
Christopher Marshall
Shishir Mehrotra
Heidi O’Neill
Ted Sarandos
Thomas Staggs
Cristina Stenbeck
Padmasree Warrior
Fees Earned or Paid in
Cash
($)
Stock
Awards
($)
(2)
Stock
Options
($)
(3)
Total
($)
(4)
—
—
—
—
—
—
—
153,000
—
—
85,037
339,967
170,074
—
254,930
—
379,649
355,725
302,706
—
177,836
376,642
100,891
177,836
379,649
355,725
387,743
339,967
347,910
376,642
355,821
330,836
________________________
(1)
(2)
(3)
(4)
Mr. Ek serves on our board of directors. His compensation is fully reflected in the Summary Compensation Table.
Amounts reflect the aggregate grant-date fair value of the RSUs computed in accordance with IFRS 2, rather than the amounts paid to or realized by the named individual.
Amounts reflect the aggregate grant-date Black-Scholes value of the stock options granted during 2020 computed in accordance IFRS 2, rather than the amounts paid to or realized
by the named individual. We provide information regarding the assumptions used to calculate the value of all option awards made to executive officers in “Operating and Financial
Review and Prospects” and in Note 19 of the consolidated financial statements included elsewhere in this 20-F.
The table below shows the aggregate numbers of stock awards and stock options held as of December 31, 2020 by each non-employee director who was serving as of
December 31, 2020.
Name
Martin Lorentzon
Christopher Marshall
Shishir Mehrotra
Heidi O’Neill
Ted Sarandos
Thomas Staggs
Cristina Stenbeck
Padmasree Warrior
Restricted
Stock Units
Outstanding
at Fiscal
Year End
Stock Options
Outstanding
at Fiscal
Year End
2,051
2,051
2,956
4,918
2,991
2,573
4,768
2,051
29,877
21,469
25,227
2,325
17,710
15,345
8,409
8,409
Item 7. Major Shareholders and Related Party Transactions.
A. Major Shareholders
The following table sets forth, as of December 31, 2020 (except where noted), the number of our ordinary shares and beneficiary certificates held by each
person we know to be the beneficial owner of more than 5% of our ordinary shares and beneficiary certificates, respectively, and the percentage of total votes held
by each such person. The voting rights of our major shareholders are the same as the voting rights of holders of our ordinary shares and beneficiary certificates who
are not our major shareholders. As of December 31, 2020, the registrar and transfer agent for our Company reported that 137,073,270 of our ordinary shares were
held by 292 record holders in the United States and none of our beneficiary certificates were held by record holders in the United States. Our beneficiary
certificates carry no economic rights and are issued to provide the holders of such beneficiary certificates additional voting rights; however, each beneficiary
certificate entitles its holder to one vote.
In accordance with the rules of the SEC, beneficial ownership includes voting or investment power with respect to securities and includes the ordinary
shares issuable pursuant to options, warrants, and RSUs that are exercisable or settled within 60 days of December 31, 2020. Ordinary shares issuable pursuant to
options, warrants, and RSUs are deemed outstanding for computing the percentage of the class beneficially owned by the person holding such options, warrants,
and RSUs but are not deemed outstanding for computing the percentage of the class beneficially owned by any other person. The percentage of beneficial
ownership for the following table is based on 190,212,847 total ordinary shares and 365,014,840 total beneficiary certificates outstanding as of December 31, 2020.
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Table of Contents
(2)
(1)(6)
Name
Daniel Ek
Martin Lorentzon
Baillie Gifford & Co
Morgan Stanley
(5)
T. Rowe Price
Tencent
(4)
(6)
(3)
Ordinary Shares
Beneficiary Certificates
(7)
Number
Percent
Number
Percent
32,773,691
21,176,660
20,795,970
13,385,493
11,478,209
16,631,969
17.2 %
11.1 %
10.9 %
7.0 %
6.0 %
8.7 %
153,417,220
211,597,620
—
—
—
—
— %
— %
—
—
—
—
Percent
of
Total
Voting Power
33.5 %
41.9 %
3.8 %
2.4 %
2.1 %
* (8)
________________________
(1)
Includes 15,341,722 ordinary shares that are held by D.G.E. Investments. Also includes 800,000 ordinary shares issuable pursuant to warrants that are held of record by D.G.E.
Investments that are exercisable or settled within 60 days of December 31, 2020. Mr. Ek is the sole shareholder of D.G.E. Holding, which is the sole shareholder of D.G.E.
Investments. Mr. Ek exercises voting power over the ordinary shares held of record by TME Hong Kong, Image Frame, Tencent Mobility Limited, and Distribution Pool Limited
through his indirect ownership of D.G.E. Investments, which holds an irrevocable proxy with regard to these ordinary shares. As such, Mr. Ek may be deemed to share beneficial
ownership of the ordinary shares held of record by TME Hong Kong, Image Frame, Tencent Mobility Limited, and Distribution Pool Limited. Additionally, each of D.G.E.
Holding and Mr. Ek may be deemed to share beneficial ownership of the ordinary shares held of record by D.G.E. Investments. The business address of D.G.E. Holding and
D.G.E. Investments is 1 Alexandrou Panagouli, Office 2B, Novel Tower, 6057 Larnaca, Cyprus. The business address of Mr. Ek is c/o Spotify AB Regeringsgatan 19, 111 53
Stockholm, Sweden.
Includes 21,159,762 ordinary shares held by Rosello. Also includes 12,121 ordinary shares issuable pursuant to options and 445 ordinary shares issuable pursuant to RSUs that are
held of record by Mr. Lorentzon that, in each case, are exercisable or settled within 60 days of December 31, 2020. Mr. Lorentzon is the sole shareholder of Amaltea, which is the
sole shareholder of Rosello. As such, each of Amaltea and Mr. Lorentzon may be deemed to share beneficial ownership of the shares held of record by Rosello. The business
address of Rosello is 22 Stasikratous Street, Office 001, 1065 Nicosia, Cyprus.
Based on information reported on Schedule 13G, as filed by Baillie Gifford & Co (Scottish partnership) (“Baillie Gifford”) with the SEC on January 8, 2021, Baillie Gifford has
the following powers with respect to our ordinary shares: (i) sole voting power: 15,299,983; (ii) shared voting power: 0; (c) sole dispositive power: 20,795,970; and (iv) shared
dispositive power: 0. The business address for Baillie Gifford is Carlton Square, 1 Greenside Row, Edinburgh EH1 3AN, Scotland, UK.
Based on information reported on Schedule 13G, as filed jointly by Morgan Stanley and Morgan Stanley Investment Management Inc. (collectively, “Morgan Stanley”) with the
SEC on February 14, 2020, Morgan Stanley has the following powers with respect to our ordinary shares: (i) sole voting power: 0; (ii) shared voting power: 11,341,616; (c) sole
dispositive power: 0; and (iv) shared dispositive power: 13,385,493. The business address for Morgan Stanley is 1585 Broadway, New York, NY 10036.
Based on information reported on Schedule 13G, as filed by T. Rowe Price Associates, Inc. (“T. Rowe Price ”) with the SEC on February 14, 2020, T. Rowe Price has the
following powers with respect to our ordinary shares: (i) sole dispositive power: 4,656,535; (ii) shared voting power: 0; (iii) sole dispositive power: 11,478,209; and (iv) shared
dispositive power: 0. The business address of T. Rowe Price is 100 E. Pratt St, Baltimore, MD 21202.
Includes 4,276,200 ordinary shares held of record by TME Hong Kong, 9,076,240 ordinary shares held of record by Image Frame, 3,227,920 ordinary shares held of record by
Tencent Mobility Limited, and 51,609 ordinary shares held by Distribution Pool Limited received in connection with a distribution in kind of the Company’s ordinary shares by a
fund in which an affiliate of Distribution Pool Limited is a limited partner. Tencent is also the majority equity holder of TME, which is the sole shareholder of TME Hong Kong.
Each of Image Frame, Tencent Mobility Limited, and Distribution Pool Limited is wholly owned by Tencent Holdings Limited ("Tencent"). As such, Tencent may be deemed to
share beneficial ownership of the ordinary shares held of record by each of TME Hong Kong, Image Frame, Tencent Mobility Limited, and Distribution Pool Limited. The address
for Tencent is Level 29, Three Pacific Place, 1 Queen’s Road East, Wanchai, Hong Kong.
Our shareholders have authorized the issuance of up to 1,400,000,000 beneficiary certificates to shareholders of the Company without reserving to our existing shareholders a
preemptive right to subscribe for the beneficiary certificates issued in the future. Pursuant to our articles of association, our beneficiary certificates may be issued at a ratio of
between one and 20 beneficiary certificates per ordinary share as determined by our board of directors or its delegate at the time of issuance. We have issued ten beneficiary
certificates per ordinary share held of record to entities beneficially owned by our founders, Daniel Ek and Martin Lorentzon, for a total of 365,014,840 beneficiary certificates
outstanding as of December 31, 2020. The beneficiary certificates carry no economic rights and are issued to provide the holders of such certificates additional voting rights. Each
beneficiary certificate entitles its holder to one vote. The beneficiary certificates, subject to certain exceptions, are non-transferable and shall be automatically canceled for no
consideration in the case of sale or transfer of the ordinary share to which they are linked. See “Item 10.B. Memorandum and Articles of Association.”
Mr. Ek exercises voting power over the ordinary shares held of record by TME Hong Kong, Image Frame, Tencent Mobility Limited, and Distribution Pool Limited through his
indirect ownership of D.G.E. Investments, which holds an irrevocable proxy with regard to these ordinary shares.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Change in Control Arrangements
None applicable.
B. Related Party Transactions
Luxembourg law prescribes certain procedures for related party transactions with directors, and our articles of association mandate that directors with a
direct or indirect personal interest in any transaction that conflicts with the Company’s interest shall make that interest known and recorded in the board minutes
and shall not participate in discussing or voting on
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Table of Contents
such transaction. In addition, our articles of association provide that any such conflict of interest must be reported to the next general meeting of shareholders of
the Company prior to any resolution taking place at such meeting.
Please see “Item 6. Directors, Senior Management and Employees—E. Share Ownership—Warrants” and Note 26 to the consolidated financial statements
for a description of the transactions relating to the warrants purchased by Messrs. Ek and Lorentzon.
Related Party Transaction Policy
Our board of directors has adopted the Related Party Transaction Policy, which requires that any material transaction between us and any related party,
including our directors and senior management as well as their family members, be reviewed and approved by the audit committee to ensure that the transaction is
on terms comparable to those that could be obtained in arm’s length dealings with an unrelated third party.
C. Interests of Experts and Counsel
Not applicable
Item 8. Financial Information
A. Consolidated Statements and Other Financial Information
Refer to “Item 18. Financial Statements” for our consolidated financial statements and report of our independent registered public accounting firm
included elsewhere in this document.
Export Sales
Refer to “Item 4.B. Business Overview” for a discussion of our sales and distribution channels.
Legal or arbitration proceedings
Refer to Notes 23 and 25 of the consolidated financial statements included elsewhere in this report for information regarding provisions made for legal
proceedings.
Dividend Policy
We have never declared or paid any cash dividends on our share capital, and we do not expect to pay dividends or other distributions on our ordinary
shares in the foreseeable future. There are no legislative or other legal provisions currently in force in Luxembourg or arising under our articles of association that
restrict the payment of dividends or distributions to holders of our ordinary shares not resident in Luxembourg, except for regulations restricting the remittance of
dividends, distributions, and other payments in compliance with United Nations and EU sanctions. We currently intend to retain any future earnings for working
capital and general corporate purposes. Under Luxembourg law, the amount and payment of dividends or other distributions is determined by a simple majority
vote at a general shareholders’ meeting based on the recommendation of our board of directors, except in certain limited circumstances. Pursuant to our articles of
association, the board of directors has the power to pay interim dividends or make other distributions in accordance with applicable Luxembourg law. Distributions
may be lawfully declared and paid if our net profits and/or distributable reserves are sufficient under Luxembourg law. All of our ordinary shares rank pari
passu with respect to the payment of dividends or other distributions unless the right to dividends or other distributions has been suspended in accordance with our
articles of association or applicable law. Holders of beneficiary certificates are not entitled to receive any dividend payments with respect to such beneficiary
certificates.
Under Luxembourg law, at least 5% of our net profits per year must be allocated to the creation of a legal reserve until such reserve has reached an
amount equal to 10% of our issued share capital. The allocation to the legal reserve becomes compulsory again when the legal reserve no longer represents 10% of
our issued share capital. The legal reserve is not available for distribution.
We are a holding company and have no material assets other than our indirect ownership of ordinary shares in our operating subsidiaries. Our ability to
generate income and pay dividends is dependent on the ability of our subsidiaries to declare and pay dividends or lend funds to us.
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The registrar and transfer agent for Spotify’s ordinary shares is Computershare Trust Company, N.A.
B. Significant Changes
There have been no significant changes since the approval date of the financial statements included elsewhere in this annual report. Please see Note 28 of
the consolidated financial statements elsewhere in this annual report for details of events after the reporting period.
Item 9. The Offer and Listing
A. Offer and Listing Details
Our ordinary shares are listed on the NYSE under the symbol “SPOT.”
B. Plan of Distribution
Not applicable.
C. Markets
Our ordinary shares are listed and traded on the NYSE.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
Item 10. Additional Information
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
We are registered with the Luxembourg Trade and Companies’ Register under number B.123.052. Our corporate purpose, as stated in Article 3 of our
articles of association, is the acquisition and holding of direct or indirect interests in Luxembourg and/or in foreign undertakings, as well as the administration,
development, and management of our holdings. We may provide any financial assistance to subsidiaries, affiliated companies, or other companies forming part of
the group of which we belong, including, but not limited to, the providing of loans and the granting of guarantees or securities in any kind or form. We also may
use our funds to invest in real estate, intellectual property rights, or any other movable or immovable assets in any kind or form. We may borrow in any kind or
form and privately issue bonds or notes. In general, we may carry out any commercial, industrial, or financial operation that we may deem useful in the
accomplishment and development of our purposes.
See Exhibit 2.1 to this Annual Report on Form 20-F for more information.
C. Material Contracts
The following is a summary of each material agreement, other than material agreements entered into in the ordinary course of business, to which we are
or have been a party for the two years immediately preceding the date of this report:
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•
•
D. Exchange Controls
Subscription Agreement by and among TME, TME Hong Kong, Spotify Technology S.A., and Spotify AB, dated as of December 8,
2017, pursuant to which TME issued shares of TME to Spotify, and Spotify issued ordinary shares of Spotify to an affiliate of TME.
Investor Agreement by and among Spotify Technology S.A., TME, TME Hong Kong, Tencent, Image Frame, and with respect to
certain sections only, D.G.E. Investments and Rosello, dated as of December 15, 2017, pursuant to which an affiliate of Tencent
purchased ordinary shares of Spotify through a secondary purchase. Additionally, pursuant to this Investor Agreement, D.G.E.
Investments, an entity indirectly wholly owned by Mr. Ek, shall have the sole and exclusive right to vote, in its sole and absolute
discretion, any of our securities beneficially owned by the Tencent Investors or their controlled affiliates on all proposals, resolutions,
and other matters for which a vote, consent, or other approval (including by written consent) of the holders of our securities is sought or
upon which such holders are otherwise entitled to vote or consent.
We are not aware of any governmental laws, decrees, regulations or other legislation in Luxembourg that restrict the export or import of capital, including
the availability of cash and cash equivalents for use by our affiliated companies, or that affect the remittance of dividends, interest or other payments to non-
resident holders of our securities, except for regulations restricting the remittance of dividends, distributions, and other payments in compliance with United
Nations and EU sanctions.
E. Taxation
Luxembourg Tax Considerations
The following is an overview of certain material Luxembourg tax consequences of purchasing, owning, and disposing of the ordinary shares issued by us.
It does not purport to be a complete analysis of all possible tax situations that may be relevant to a decision to purchase, own, or deposit our ordinary shares. It is
included herein solely for preliminary information purposes and is not intended to be, nor should it construed to be, legal or tax advice. Prospective purchasers of
our ordinary shares should consult their own tax advisers as to the applicable tax consequences of the ownership of our ordinary shares, based on their particular
circumstances. The following description of Luxembourg tax law is based upon Luxembourg law and regulations as in effect and as interpreted by the Luxembourg
tax authorities as of the date of this annual report and is subject to any amendments in law (or in interpretation) later introduced, whether or not on a retroactive
basis. Please be aware that the residence concept used under the respective headings below applies for Luxembourg tax assessment purposes only. Any reference in
this section to a tax, duty, levy impost or other charge or withholding of a similar nature refers to Luxembourg tax laws and/or concepts only. Also, please note that
a reference to Luxembourg income tax encompasses corporate income tax (impôt sur le revenu des collectivités), municipal business tax (impôt commercial
communal), a solidarity surcharge (contribution au fonds pour l’emploi), and personal income tax (impôt sur le revenu des personnes physiques) generally.
Corporate taxpayers may further be subject to net worth tax (impôt sur la fortune), as well as other duties, levies or taxes. Corporate income tax, municipal
business tax, as well as the solidarity surcharge invariably applies to most corporate taxpayers resident of Luxembourg for tax purposes. Individual taxpayers are
generally subject to personal income tax and to the solidarity surcharge. Under certain circumstances, where an individual taxpayer acts in the course of the
management of a professional or business undertaking, municipal business tax may apply as well.
Taxation of the Company
Income Tax
As the Company is a fully-taxable Luxembourg company, its net taxable profit is as a rule subject to corporate income tax (“CIT”) and municipal business
tax (“MBT”) at ordinary rates in Luxembourg.
The taxable profit as determined for CIT purposes is applicable, with minor adjustments, for MBT purposes. CIT is levied at an effective maximum rate
of 18.19% as from 2019 (inclusive of the 7% surcharge for the employment fund). MBT is levied at a variable rate according to the municipality in which the
Company is located (6.75% in the City of Luxembourg in 2019). The maximum aggregate CIT and MBT rate consequently amounts to 24.94% as from 2019 for
companies located in the City of Luxembourg.
Dividends and other payments derived from ordinary shares by the Company are subject to income taxes, unless the conditions of the participation
exemption regime, as described below, are satisfied. Where the conditions of the participation exemption are not satisfied, a tax credit is generally granted for
withholding taxes levied at source within the limit of the tax
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payable in Luxembourg on such income, whereby any excess withholding tax is not refundable but deductible as an operating expense from the tax base.
Under the participation exemption regime (subject to the relevant anti-abuse rules), dividends derived from ordinary shares may be exempt from income
tax if (i) the distributing company is a qualified subsidiary (“Qualified Subsidiary”), and (ii) at the time the dividend is put at the company’s disposal, the company
has held or commits itself to hold for an uninterrupted period of at least 12 months’ shares representing a direct participation in the share capital of the Qualified
Subsidiary (a) of at least 10%, or (b) of an acquisition price of at least €1.2 million (or an equivalent amount in another currency). A Qualified Subsidiary means
(i) a Luxembourg resident fully-taxable company limited by share capital (société de capitaux), (ii) a company covered by Article 2 of the Council Directive
2011/96/EU of November 30, 2011 (the “EU Parent-Subsidiary Directive”), or (iii) a non-resident company limited by share capital (société de capitaux) liable to a
tax corresponding to Luxembourg CIT.
Liquidation proceeds are assimilated to a received dividend and may be exempt under the same conditions. If the conditions of the participation
exemption regime are not met, dividends derived by the Company from Qualified Subsidiaries may be exempt for 50% of their gross amount.
Capital gains realized by the Company on shares are subject to CIT and MBT at ordinary rates, unless the conditions of the participation exemption
regime, as described below, are satisfied. Under the participation exemption regime, capital gains realized on shares of a Qualified Subsidiary may be exempt from
CIT and MBT at the level of the Company if at the time the capital gain is realized, the Company has held or commits itself to hold for an uninterrupted period of
at least 12 months shares representing a direct participation in the share capital of the Qualified Subsidiary (i) of at least 10%, or (ii) of an acquisition price of at
least €6 million (or an equivalent amount in another currency). Taxable gains are defined as the difference between the price for which shares have been disposed
of and the lower of their cost or book value.
Withholding Tax
Dividends paid by us to the holders of our ordinary shares are as a rule subject to a 15% withholding tax in Luxembourg, unless a reduced withholding tax
rate applies pursuant to an applicable double tax treaty or an exemption pursuant to the application of the Luxembourg domestic withholding tax exemption, and, to
the extent withholding tax applies to Luxembourg entities, we are responsible for withholding amounts corresponding to such taxation at its source.
If the Company and a U.S. relevant holder are eligible for the benefits of the tax treaty concluded between the United States and Luxembourg (the
“Treaty”), the rate of withholding on distributions shall not exceed 15%, or 5% if the U.S. relevant holder is a qualified resident company as defined in Article 24
of the Treaty that owns at least 10% of our Company’s voting stock.
An exemption may apply under the withholding tax exemption (subject to the relevant anti-abuse rules) if cumulatively (i) the holder of our ordinary
shares is an eligible parent (“Eligible Parent”), and (ii) at the time the income is made available, the holder of our ordinary shares has held or commits itself to hold
for an uninterrupted period of at least 12 months a direct participation of at least 10% of our share capital or a direct participation of an acquisition price of at least
€1.2 million (or an equivalent amount in another currency). Holding a participation through an entity treated as tax transparent from a Luxembourg income tax
perspective is deemed to be a direct participation in proportion to the net assets held in this entity. An Eligible Parent includes (i) a company covered by Article 2
of the EU Parent-Subsidiary Directive or a Luxembourg permanent establishment thereof, (ii) a fully-taxable company limited by share capital (société de
capitaux) resident in Luxembourg, (iii) a company resident in a State having a double tax treaty with Luxembourg and subject to a tax corresponding to
Luxembourg CIT or a Luxembourg permanent establishment thereof, (iv) a company limited by share capital (société de capitaux) or a cooperative society (société
coopérative) resident in the European Economic Area other than an EU Member State and liable to a tax corresponding to Luxembourg CIT or a Luxembourg
permanent establishment thereof, or (v) a Swiss company limited by share capital (société de capitaux) which is effectively subject to corporate income tax in
Switzerland without benefiting from an exemption.
No withholding tax is levied on capital gains and liquidation proceeds. However, capital gains realized by a non-resident shareholder on the disposal of
shares held in a Luxembourg company may be subject to Luxembourg CIT if they are deemed to be speculative (i.e. if shares are disposed of within six months
after their acquisition or if their disposal precedes their acquisition).
Net Wealth Tax
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The Company is as a rule subject to Luxembourg net wealth tax (“NWT”) on its net assets as determined for net wealth tax purposes. NWT is levied at
the rate of 0.5% on net assets not exceeding €500 million and at the rate of 0.05% on the portion of the net assets exceeding €500 million. Net worth is referred to
as the unitary value (valeur unitaire), as determined at January 1 of each year. The unitary value is in principle calculated as the difference between (i) assets
estimated at their fair market value (valeur estimée de réalisation), and (ii) liabilities vis-à-vis third parties.
Under the participation exemption regime, a qualified shareholding held by the Company in a Qualified Subsidiary is exempt for net wealth tax purposes.
A minimum net wealth tax (“MNWT”) is levied on companies having their statutory seat or central administration in Luxembourg. For entities for which
the sum of fixed financial assets, receivables against related companies, transferable securities, and cash at bank exceeds 90% of their total balance sheet and
€350,000, the MNWT is set at €4,815. For all other companies having their statutory seat or central administration in Luxembourg which do not fall within the
scope of the €4,815 MNWT, the MNWT ranges from €535 to €32,100, depending on the company’s total balance sheet.
Other Taxes
The issuance of our ordinary shares and any other amendment of our articles of association are currently subject to a €75 fixed registration duty. The
disposal of our ordinary shares is not subject to a Luxembourg registration tax or stamp duty, unless recorded in a Luxembourg notarial deed or otherwise
registered in Luxembourg.
Taxation of the Holders of Ordinary Shares
Luxembourg Tax Residency of the Holders of Our Ordinary Shares
A holder of our ordinary shares will not become resident, nor be deemed to be resident, in Luxembourg by reason only of the holding and/or disposing of
our ordinary shares or the execution, performance, or enforcement of his/her rights thereunder.
Income Tax—Luxembourg Resident Holders
Luxembourg Individual Residents. Dividends and other payments derived from our ordinary shares by resident individual holders of our ordinary shares,
who act in the course of the management of either their private wealth or their professional or business activity, are subject to income tax at the ordinary
progressive rates. A tax credit is generally granted for withholding taxes levied at source within the limit of the tax payable in Luxembourg on such income,
whereby any excess withholding tax is not refundable. 50% of the gross amount of dividends received from the Company by resident individual holders of our
ordinary shares are exempt from income tax.
Capital gains realized on the disposal of our ordinary shares by resident individual holders of our ordinary shares, who act in the course of the
management of their private wealth, are not subject to income tax, unless said capital gains qualify either as speculative gains or as gains on a substantial
participation. Capital gains are deemed to be speculative and are subject to income tax at ordinary rates if our ordinary shares are disposed of within six months
after their acquisition or if their disposal precedes their acquisition. Speculative gains are subject to income tax as miscellaneous income at ordinary rates. A
participation is deemed to be substantial where a resident individual holder of our ordinary shares holds or has held, either alone or together with his/her spouse or
partner and/or minor children, directly or indirectly at any time within the five years preceding the disposal, more than 10% of the share capital of the Company
whose ordinary shares are being disposed of. A holder of our ordinary shares also is deemed to alienate a substantial participation if he acquired free of charge,
within the five years preceding the transfer, a participation that was constituting a substantial participation in the hands of the alienator (or the alienators in case of
successive transfers free of charge within the same five-year period). Capital gains realized on a substantial participation more than six months after the acquisition
thereof are taxed according to the half-global rate method, (i.e., the average rate applicable to the total income is calculated according to progressive income tax
rates and half of the average rate is applied to the capital gains realized on the substantial participation). A disposal may include a sale, an exchange, a contribution
or any other kind of alienation of the participation.
Capital gains realized on the disposal of our ordinary shares by resident individual holders of our ordinary shares, who act in the course of their
professional or business activity, are subject to income tax at ordinary rates. Taxable gains are determined as the difference between the price for which our
ordinary shares have been disposed of and the lower of their cost or book value.
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Luxembourg Fully-taxable Corporate Residents. Dividends and other payments derived from our ordinary shares by Luxembourg resident fully-taxable
companies are subject to CIT and MBT, unless the conditions of the participation exemption regime, as described below, are satisfied. A tax credit is generally
granted for withholding taxes levied at source within the limit of the tax payable in Luxembourg on such income, whereby any excess withholding tax is not
refundable. If the conditions of the participation exemption regime are not met, 50% of the gross amount of dividends received by Luxembourg resident, fully-
taxable companies from our ordinary shares are exempt from CIT and MBT.
Under the participation exemption regime (subject to the relevant anti-abuse rules), dividends derived from our ordinary shares may be exempt from CIT
and MBT at the level of the holder of our ordinary shares if cumulatively (i) the holder of our ordinary shares is an Eligible Parent, and (ii) at the time the dividend
is put at the holder of our ordinary shares’ disposal, the holder of our ordinary shares has held or commits itself to hold for an uninterrupted period of at least 12
months a qualified shareholding (“Qualified Shareholding”). A Qualified Shareholding means ordinary shares representing a direct participation of at least 10% in
the share capital of the Company or a direct participation in the Company of an acquisition price of at least €1.2 million (or an equivalent amount in another
currency). Liquidation proceeds are assimilated to a received dividend and may be exempt under the same conditions. If the conditions of the participation
exemption regime are not met, dividends derived by the Company from Qualified Subsidiaries may be exempt for 50% of their gross amount. Ordinary shares held
through a tax-transparent entity are considered as being a direct participation proportionally to the percentage held in the net assets of the transparent entity.
Capital gains realized by a Luxembourg resident fully-taxable company on our ordinary shares are subject to CIT and MBT at ordinary rates, unless the
conditions of the participation exemption regime, as described below, are satisfied. Under the participation exemption regime, capital gains realized on our
ordinary shares may be exempt from CIT and MBT at the level of the holder of our ordinary shares if cumulatively (i) the holder of our ordinary shares is an
Eligible Parent, and (ii) at the time the capital gain is realized, the holder of our ordinary shares has held or commits itself to hold for an uninterrupted period of at
least 12 months our ordinary shares representing a direct participation in the share capital of the Company of at least 10% or a direct participation in the Company
of an acquisition price of at least €6 million (or an equivalent amount in another currency). Taxable gains are determined as the difference between the price for
which our ordinary shares have been disposed of and the lower of their cost or book value.
Luxembourg Residents Benefiting from a Special Tax Regime. Holders of our ordinary shares who are either (i) an undertaking for collective investment
governed by the amended law of December 17, 2010, (ii) a specialized investment fund governed by the amended law of February 13, 2007, (iii) a family wealth
management company governed by the amended law of May 11, 2007, or (iv) a reserved alternative investment fund treated as a specialized investment fund for
Luxembourg tax purposes governed by the amended law of July 23, 2016, are exempt from income tax in Luxembourg. Dividends derived from and capital gains
realized on our ordinary shares are thus not subject to Luxembourg income tax in their hands.
Income Tax—Luxembourg Non-Resident Holders
Non-resident holders of our ordinary shares who have neither a permanent establishment nor a permanent representative in Luxembourg to which or
whom our ordinary shares are attributable, are not liable to any Luxembourg income tax on income and gains derived from our ordinary shares except capital gains
realized on (i) a substantial participation before the acquisition or within the first six months of the acquisition thereof, or (ii) a substantial participation more than
six months after the acquisition thereof by a holder of our ordinary shares who has been a former Luxembourg resident for more than 15 years and has become a
non-resident, at the time of transfer, less than five years ago. A participation is deemed to be substantial where a shareholder holds or has held, either alone or, in
case of an individual shareholder, together with his/her spouse or partner and/or minor children, directly or indirectly at any time within the five years preceding
the disposal, more than 10% of the share capital of the Company whose ordinary shares are being disposed of. A shareholder also is deemed to alienate a
substantial participation if he acquired free of charge, within the five years preceding the transfer, a participation that was constituting a substantial participation in
the hands of the alienator (or the alienators in case of successive transfers free of charge within the same five-year period).
If the Company and a U.S. relevant holder are eligible for the benefits of the Treaty, such U.S. relevant holder generally should not be subject to
Luxembourg tax on the gain from the disposal of such ordinary shares unless such gain is attributable to a permanent establishment of such U.S. relevant holder in
Luxembourg.
Non-resident holders of our ordinary shares which have a permanent establishment or a permanent representative in Luxembourg to which or whom our
ordinary shares are attributable, must include any income received, as well as any gain realized, on the sale, disposal or redemption of our ordinary shares, in their
taxable income for Luxembourg tax assessment purposes, unless the conditions of the participation exemption regime, as described below, are satisfied. If the
conditions of the
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participation exemption regime are not fulfilled, 50% of the gross amount of dividends received by a Luxembourg permanent establishment or permanent
representative may be, however, exempt from income tax. Taxable gains are determined as the difference between the price for which the ordinary shares have
been disposed of and the lower of their cost or book value.
Under the participation exemption regime (subject to relevant anti-abuse rules), dividends derived from our ordinary shares may be exempt from income
tax if cumulatively (i) our ordinary shares are attributable to a qualified permanent establishment (“Qualified Permanent Establishment”), and (ii) at the time the
dividend is put at the disposal of the Qualified Permanent Establishment, it has held or commits itself to hold a Qualified Shareholding for an uninterrupted period
of at least 12 months. A Qualified Permanent Establishment means (i) a Luxembourg permanent establishment of a company covered by Article 2 of the EU
Parent-Subsidiary Directive, (ii) a Luxembourg permanent establishment of a company limited by share capital (société de capitaux) resident in a State having a
tax treaty with Luxembourg, and (iii) a Luxembourg permanent establishment of a company limited by share capital (société de capitaux) or a cooperative society
(société coopérative) resident in the European Economic Area other than a EU Member State. Liquidation proceeds are assimilated to a received dividend and may
be exempt under the same conditions. Ordinary shares held through a tax transparent entity are considered as being a direct participation proportionally to the
percentage held in the net assets of the transparent entity.
Under the participation exemption regime, capital gains realized on our ordinary shares may be exempt from income tax if (i) our ordinary shares are
attributable to a Qualified Permanent Establishment, and (ii) at the time the capital gain is realized, the Qualified Permanent Establishment has held or commits
itself to hold, for an uninterrupted period of at least 12 months, our ordinary shares representing a direct participation in the share capital of the Company of at least
10% or a direct participation in the Company of an acquisition price of at least €6 million (or an equivalent amount in another currency). Taxable gains are
determined as the difference between the price for which our ordinary shares have been disposed of and the lower of their cost or book value.
Net Wealth Tax
Luxembourg resident holders of our ordinary shares, as well as non-resident holders of our ordinary shares who have a permanent establishment or a
permanent representative in Luxembourg to which or whom our ordinary shares are attributable, are subject to Luxembourg NWT on our ordinary shares, except if
the holder is (i) a resident or non-resident individual taxpayer, (ii) a securitization company governed by the amended law of March 22, 2004 on securitization,
(iii) a company governed by the amended law of June 15, 2004 on venture capital vehicles, (iv) a professional pension institution governed by the amended law of
July 13, 2005, (v) a specialized investment fund governed by the amended law of February 13, 2007, (vi) a family wealth management company governed by the
amended law of May 11, 2007, (vii) an undertaking for collective investment governed by the amended law of December 17, 2010, or (viii) a reserved alternative
investment fund governed by the amended law of July 23, 2016. However, (i) a securitization company governed by the amended law of March 22, 2004 on
securitization, (ii) a company governed by the amended law of June 15, 2004 on venture capital vehicles, (iii) a professional pension institution governed by the
amended law of July 13, 2005, and (iv) a reserved alternative investment fund treated as a venture capital vehicle for Luxembourg tax purposes and governed by
the amended law of July 23, 2016, remain subject to MNWT.
Under the participation exemption, a Qualified Shareholding held in the Company by an Eligible Parent or attributable to a Qualified Permanent
Establishment may be exempt. The net wealth tax exemption for a Qualified Shareholding does not require the completion of the 12-month holding period.
Other Taxes
Under Luxembourg tax law, where an individual holder of our ordinary shares is a resident of Luxembourg for inheritance tax purposes at the time of his
or her death, our ordinary shares are included in his or her taxable basis for inheritance tax purposes. On the contrary, no inheritance tax is levied on the transfer of
our ordinary shares upon the death of an individual holder in cases where the deceased was not a resident of Luxembourg for inheritance purposes.
Gift tax may be due on a gift or donation of our ordinary shares, if the gift is recorded in a Luxembourg notarial deed or otherwise registered in
Luxembourg.
U.S. Federal Income Tax Considerations
The following summary describes certain U.S. federal income tax considerations generally applicable to U.S. Holders (as defined below) of our ordinary
shares. This summary deals only with our ordinary shares held as capital assets within the meaning of Section 1221 of the Internal Revenue Code of 1986, as
amended (the “Internal Revenue Code”). This summary also
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does not address the tax consequences that may be relevant to holders in special tax situations including, without limitation, dealers in securities, traders that elect
to use a mark-to-market method of accounting, holders that own our ordinary shares as part of a “straddle,” “hedge,” “conversion transaction,” or other integrated
investment, banks or other financial institutions, individual retirement accounts and other tax-deferred accounts, insurance companies, tax-exempt organizations,
U.S. expatriates, holders whose functional currency is not the U.S. dollar, holders subject to the alternative minimum tax, holders that acquired our ordinary shares
in a compensatory transaction, or holders that actually or constructively own 10% or more of the total voting power or value of our ordinary shares.
This summary is based upon the Internal Revenue Code, applicable U.S. Treasury regulations, administrative pronouncements and judicial decisions, in
each case as in effect on the date hereof, all of which are subject to change (possibly with retroactive effect). No ruling will be requested from the Internal Revenue
Service (the “IRS”) regarding the tax consequences of the initial listing, and there can be no assurance that the IRS will agree with the discussion set out below.
This summary does not address any U.S. federal tax consequences other than U.S. federal income tax consequences (such as the estate and gift tax or the Medicare
tax on net investment income).
As used herein, the term “U.S. Holder” means a beneficial owner of our ordinary shares that is, for U.S. federal income tax purposes, (i) a citizen or
resident of the United States, (ii) a corporation or other entity taxable as a corporation created or organized under the laws of the United States or any state thereof
or therein or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) a trust (a) that is
subject to the supervision of a court within the United States and the control of one or more United States persons as described in Internal Revenue Code
Section 7701(a)(30), or (b) that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.
If an entity or other arrangement treated as a partnership for U.S. federal income tax purposes acquires our ordinary shares, the tax treatment of a partner
in the partnership generally will depend upon the status of the partner and the activities of the partnership. Partners of a partnership considering an investment in
our ordinary shares should consult their tax advisers regarding the U.S. federal income tax consequences of acquiring, owning, and disposing of our ordinary
shares.
THE SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES SET OUT BELOW IS FOR GENERAL INFORMATION ONLY.
ALL PROSPECTIVE INVESTORS SHOULD CONSULT THEIR TAX ADVISERS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM
OF OWNING OUR ORDINARY SHARES, INCLUDING THE APPLICABILITY AND EFFECT OF STATE, LOCAL AND NON-U.S. TAX LAWS
AND POSSIBLE CHANGES IN TAX LAW.
Dividends
Subject to the discussion below under “—Passive Foreign Investment Company,” the amount of dividends paid to a U.S. Holder with respect to our
ordinary shares generally will be included in the U.S. Holder’s gross income as ordinary income from foreign sources to the extent paid out of our current or
accumulated earnings and profits (as determined for U.S. federal income tax purposes). Distributions in excess of earnings and profits will be treated as a non-
taxable return of capital to the extent of the U.S. Holder’s adjusted tax basis in our ordinary shares and thereafter as capital gain. However, we do not intend to
calculate our earnings and profits under U.S. federal income tax principles. Therefore, U.S. Holders should expect that a distribution will generally be treated as a
dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above. The amount of
any distribution paid in foreign currency will be equal to the U.S. dollar value of such currency, translated at the spot rate of exchange on the date such distribution
is received, regardless of whether the payment is in fact converted into U.S. dollars at that time.
Foreign withholding tax (if any) paid on dividends on our ordinary shares at the rate applicable to a U.S. Holder (taking into account any applicable
income tax treaty) will, subject to limitations and conditions, be treated as foreign income tax eligible for credit against such holder’s U.S. federal income tax
liability or, at such holder’s election, eligible for deduction in computing such holder’s U.S. federal taxable income. Dividends paid on our ordinary shares
generally will constitute “passive category income” for purposes of the foreign tax credit. However, if we are a “United States-owned foreign corporation,” solely
for foreign tax credit purposes, a portion of the dividends allocable to our U.S. source earnings and profits may be recharacterized as U.S. source. A “United States-
owned foreign corporation” is any foreign corporation in which United States persons own, directly or indirectly, 50% or more (by vote or by value) of the stock.
In general, United States-owned foreign corporations with less than 10% of earnings and profits attributable to sources within the United States are excepted from
these rules. Although we don’t believe we are currently a “United States-owned foreign corporation,” we may become one in the future. In such case, if 10% or
more of our earnings and profits are attributable to sources within the United States, a portion of the dividends paid on our ordinary shares allocable to our U.S.
source earnings and profits will be treated as U.S.
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source, and, as such, a U.S. Holder may not offset any foreign tax withheld as a credit against U.S. federal income tax imposed on that portion of dividends. The
rules governing the treatment of foreign taxes imposed on a U.S. Holder and foreign tax credits are complex, and U.S. Holders should consult their tax advisors
about the impact of these rules in their particular situations.
Dividends paid to a non-corporate U.S. Holder by a “qualified foreign corporation” may be subject to reduced rates of taxation if certain holding period
and other requirements are met. “Qualified foreign corporation” generally includes a foreign corporation (other than a foreign corporation that is a PFIC (as defined
below) with respect to the relevant U.S. Holder for the taxable year in which the dividends are paid or for the preceding taxable year) (i) whose ordinary shares are
readily tradable on an established securities market in the United States, or (ii) which is eligible for benefits under a comprehensive U.S. income tax treaty that
includes an exchange of information program and which the U.S. Treasury Department has determined is satisfactory for these purposes. Our ordinary shares are
expected to be readily tradable on the NYSE, an established securities market. U.S. Holders should consult their own tax advisors regarding the availability of the
reduced tax rate on dividends in light of their particular circumstances. The dividends will not be eligible for the dividends received deduction available to
corporations in respect of dividends received from other U.S. corporations.
Disposition of Our Ordinary Shares
Subject to the discussion below under “—Passive Foreign Investment Company,” a U.S. Holder generally will recognize capital gain or loss for U.S.
federal income tax purposes on the sale or other taxable disposition of our ordinary shares equal to the difference, if any, between the amount realized and the U.S.
Holder’s adjusted tax basis in shares. In general, capital gains recognized by a non-corporate U.S. Holder, including an individual, are subject to a lower rate under
current law if such U.S. Holder held shares for more than one year. The deductibility of capital losses is subject to limitations. Any such gain or loss generally will
be treated as U.S. source income or loss for purposes of the foreign tax credit. A U.S. Holder’s initial tax basis in shares generally will equal the cost of such
shares.
If the consideration received upon the sale or other taxable disposition of our ordinary shares is paid in foreign currency, the amount realized will be the
U.S. dollar value of the payment received, translated at the spot rate of exchange on the date of taxable disposition. If our ordinary shares are treated as traded on
an established securities market, a cash basis U.S. Holder and an accrual basis U.S. Holder who has made a special election (which must be applied consistently
from year to year and cannot be changed without the consent of the IRS) will determine the U.S. dollar value of the amount realized in foreign currency by
translating the amount received at the spot rate of exchange on the settlement date of the sale. An accrual basis U.S. Holder that does not make the special election
will recognize exchange gain or loss to the extent attributable to the difference between the exchange rates on the sale date and the settlement date, and such
exchange gain or loss generally will constitute ordinary income or loss.
Passive Foreign Investment Company
In general, a non-U.S. corporation will be classified as a PFIC for any taxable year if at least (i) 75% of its gross income is classified as “passive income,”
or (ii) 50% of its assets (determined on the basis of a quarterly average) produce or are held for the production of passive income. For these purposes, cash is
considered a passive asset. In making this determination, the non-U.S. corporation is treated as earning its proportionate share of any income and owning its
proportionate share of any assets of any corporation in which it holds a 25% or greater interest. Based on our historic and expected operations, composition of
assets and market capitalization, we do not expect to be classified as a PFIC for the current table year or for the foreseeable future. However, the determination of
whether we are a PFIC is made annually. Moreover, the value of our assets for purposes of the PFIC determination will generally be determined by reference to the
public price of our ordinary shares, which may fluctuate significantly. Therefore, there is no assurance that we would not be classified as a PFIC in the future due
to, for example, changes in the composition of our assets or income, as well as changes in our market capitalization. Under the PFIC rules, if we were considered a
PFIC at any time that a U.S. Holder holds our ordinary shares, we would continue to be treated as a PFIC with respect to such holder’s investment unless (i) we
cease to be a PFIC, and (ii) the U.S. Holder has made a “deemed sale” election under the PFIC rules.
If we are considered a PFIC for any taxable year that a U.S. Holder holds our ordinary shares, any gain recognized by the U.S. Holder on a sale or other
disposition of our ordinary shares would be allocated pro-rata over the U.S. Holder’s holding period for the ordinary shares. The amounts allocated to the taxable
year of the sale or other disposition and to any year before we became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year
would be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and an interest charge would be imposed.
Further, to the extent that any distribution received by a U.S. Holder on our ordinary shares exceeds 125% of the average of the annual distributions on the ordinary
shares received during the preceding three years or the U.S. Holder’s
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holding period, whichever is shorter, that distribution would be subject to taxation in the same manner as gain on the sale or other disposition of ordinary shares if
we were a PFIC, described above. Certain elections may be available that would result in alternative treatments (such as mark-to-market treatment) of the ordinary
shares. If we are treated as a PFIC with respect to a U.S. Holder for any taxable year, the U.S. Holder will be deemed to own shares in any of our subsidiaries that
also are PFICs. A timely election to treat us as a qualified electing fund under the Internal Revenue Code would result in an alternative treatment. However, we do
not intend to prepare or provide the information that would enable U.S. Holders to make a qualified electing fund election. If we are considered a PFIC, a U.S.
Holder also will be subject to annual information reporting requirements. U.S. Holders should consult their own tax adviser about the potential application of the
PFIC rules to an investment in the ordinary shares.
Information Reporting and Backup Withholding
Dividend payments and proceeds paid from the sale or other taxable disposition of ordinary shares may be subject to information reporting to the IRS. In
addition, a U.S. Holder (other than exempt holders who establish their exempt status if required) may be subject to backup withholding on cash payments received
in connection with dividend payments and proceeds from the sale or other taxable disposition of our ordinary shares made within the United States or through
certain U.S.-related financial intermediaries.
Backup withholding will not apply, however, to a U.S. Holder who furnishes a correct taxpayer identification number, makes other required certification
and otherwise complies with the applicable requirements of the backup withholding rules. Backup withholding is not an additional tax. Rather, any amount
withheld under the backup withholding rules will be creditable or refundable against the U.S. Holder’s U.S. federal income tax liability, provided the required
information is timely furnished to the IRS.
Foreign Financial Asset Reporting
Certain U.S. Holders are required to report their holdings of certain foreign financial assets, including equity of foreign entities, if the aggregate value of
all of these assets exceeds certain threshold amounts. The ordinary shares are expected to constitute foreign financial assets subject to these requirements unless the
ordinary shares are held in an account at certain financial institutions. U.S. Holders should consult their tax advisors regarding the application of these reporting
requirements.
FATCA
Provisions under Sections 1471 through 1474 of the Internal Revenue Code and applicable U.S. Treasury regulations commonly referred to as “FATCA”
generally impose 30% withholding on certain “withholdable payments” and, in the future, may impose such withholding on “foreign passthru payments” made by
a “foreign financial institution” (each as defined in the Internal Revenue Code) that has entered into an agreement with the IRS to perform certain diligence and
reporting obligations with respect to the foreign financial institution’s U.S.-owned accounts. The United States has entered into an intergovernmental agreement, or
IGA, with Luxembourg, implemented by the Luxembourg law dated July 24, 2015 and amended on June 18, 2020, which modifies the FATCA withholding regime
described above. Under the regulations, any withholding on foreign passthru payments would apply to passthru payments made on or after the date that is two
years after the date of publication in the Federal Register of applicable final regulations defining foreign passthru payments. Although these regulations are not
final, taxpayers generally may rely on them until final regulations are issued. Prospective investors should consult their tax advisors regarding the potential impact
of FATCA, the Luxembourg IGA and any non-U.S. legislation implementing FATCA on the investment in our ordinary shares.
F. Dividends and Paying Agents
Not applicable.
G. Statements by Experts
Not applicable.
H. Documents on Display
Our SEC filings are available to you on the SEC’s website at http://www.sec.gov. This site contains reports, proxy and information statements and other
information regarding issuers that file electronically with the SEC. The information on that website is not part of this report.
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We also make available on the Investors section of our website, free of charge, our annual reports on Form 20-F and the text of our reports on Form 6-K,
including any amendments to these reports, as well as certain other SEC filings, as soon as reasonably practicable after they are electronically filed with or
furnished to the SEC. Our website address is www.spotify.com. The information on that website is not part of this report.
We announce material financial information to our investors using our Investors website (investors.spotify.com), SEC filings, press releases, public
conference calls, and webcasts. We use these channels, as well as social media, to communicate with our users and the public about our company, our services, and
other issues. It is possible that the information we post on these channels could be deemed to be material information. Therefore, we encourage investors, the
media, and others interested in our company to review the information we post on the channels listed on our Investors website. Information contained on our
website is not part of this annual report on Form 20-F or any other filings we make with the SEC.
I. Subsidiary Information
Not applicable.
Item 11. Quantitative and Qualitative Disclosures About Market Risk
Our activities expose us to a variety of market risks. Our primary market risk exposures relate to currency, interest rate, share price and investment risks.
To manage these risks and our exposure to the unpredictability of financial markets, we seek to minimize potential adverse effects on our financial performance
and capital.
Volatile market conditions arising from the COVID-19 pandemic may result in significant changes in foreign exchange rates, interest rates, and share
prices, both our own and those of third parties we use to value certain of our long-term investments. Refer to Part II Item IA. “Risk Factors” in this document for
further discussion on the impact of the COVID-19 pandemic on our business, operating results, and financial condition.
Financial risk management
Our operations are exposed to financial risks. To manage these risks efficiently, we have established guidelines in the form of a treasury policy that serves
as a framework for the daily financial operations. The treasury policy stipulates the rules and limitations for the management of financial risks.
Financial risk management is centralized within Treasury who are responsible for the management of financial risks. Treasury manages and executes the
financial management activities, including monitoring the exposure of financial risks, cash management, and maintaining a liquidity reserve. Treasury operates
within the limits and policies authorized by the board of directors.
Currency Risk
Currency risk manifests itself in transaction exposure, which relates to business transactions denominated in foreign currency required by operations
(purchasing and selling) and/or financing (interest and amortization). The volatility in foreign exchange rates due to the COVID-19 pandemic, in particular a
weakening of foreign currencies relative to the Euro may negatively affect our revenue. Our general policy is to hedge transaction exposure on a case-by-case
basis. Translation exposure relates to net investments in foreign operations. We do not conduct translation risk hedging.
We will be subject to tax in future periods as a result of foreign exchange movements between USD, EUR, and SEK, primarily related to our investment
in TME.
Transaction Exposure Sensitivity
In most cases, our customers are billed in their respective local currency. Major payments, such as salaries, consultancy fees, and rental fees are settled in
local currencies. Royalty payments are primarily settled in Euros and U.S. dollars. Hence, the operational need to net purchase foreign currency is due primarily to
a deficit from such settlements.
The table below shows the immediate impact on net income before tax of a 10% strengthening of foreign currencies relative to the Euro in the closing
exchange rate of significant currencies to which we have transaction exposure at December 31, 2020. The sensitivity associated with a 10% weakening of a
particular currency would be equal and opposite. This assumes that each currency moves in isolation.
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2020
(Increase)/decrease in loss before tax
Translation Exposure Sensitivity
SEK
USD
(in € millions)
(13)
67
The impact on our equity would be approximately €105 million if the Euro weakened by 10% against all translation exposure currencies, based on the
exposure at December 31, 2020.
Interest Rate Risk
Interest rate risk is the risk that changes in interest rates will have a negative impact on earnings and cash flow.
Our exposure to interest rate risk is related to our interest-bearing assets, primarily our short term debt securities. Fluctuations in interest rates impact the
yield of the investment. The sensitivity analysis considered the historical volatility of short term interest rates and determined that it was reasonably possible that a
change of 100 basis points could be experienced in the near term. A hypothetical 100 basis point increase in interest rates would have impacted interest income by
€6 million for the year ended December 31, 2020.
Share Price Risk
Share price risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate due to changes in the fair value of the Company’s
ordinary share price. Our exposure to this risk relates primarily to the outstanding warrants.
The impact on the fair value of the warrants with an increase or decrease in the Company’s ordinary share price of 10% would have resulted in a range of
€72 million to €106 million at December 31, 2020.
The impact on the accrual for social costs on outstanding share-based compensation awards of an increase or decrease in the Company’s ordinary share
price of 10% would have resulted in a change of €27 million at December 31, 2020.
Investment Risk
We are exposed to investment risk as it relates to changes in the market value of our long term investments, due primarily to volatility in the share price
used to measure the investment and exchange rates. The majority of our long term investments relate to TME. The impact on the fair value of the our long term
investment in TME using reasonably possible alternative assumptions with an increase or decrease of TME’s share price used to value our equity interest of 10%
results in a range of €2,005 million to €2,451 million at December 31, 2020.
Item 12. Description of Securities Other Than Equity Securities
Not applicable.
A. Debt Securities
Not applicable.
B. Warrants and Rights
Not applicable.
C. Other Securities
Not applicable.
D. American Depositary Shares
Not applicable.
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Item 13. Defaults, Dividend Arrearages and Delinquencies
None
PART II
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
None
Item 15. Controls and Procedures
A. Disclosure Controls and Procedures
As required by Rules 13a-15(b) and 15d-15(b) under the Exchange Act, our management, with the participation of our Chief Executive Officer and Chief
Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act),
as of the end of the period covered by this Annual Report on Form 20-F. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have
concluded that, as of December 31, 2020, our disclosure controls and procedures were effective at the reasonable assurance level.
In designing and evaluating our disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well
designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in
evaluating and implementing possible controls and procedures.
B. Management’s annual report on internal control over financial reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-
15(f) of the Exchange Act). Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this
assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control
—Integrated Framework (2013). Based on our assessment, our management concluded that our internal control over financial reporting was effective as of
December 31, 2020. The effectiveness of our internal control over financial reporting as of December 31, 2020 has been audited by Ernst & Young AB, an
independent registered public accounting firm, as stated in their report that is included herein.
The effectiveness of any system of internal control over financial reporting is subject to inherent limitations, including the exercise of judgment in
designing, implementing, operating, and evaluating the controls and procedures, and the inability to eliminate misconduct completely. Accordingly, any system of
internal control over financial reporting can only provide reasonable, not absolute, assurances. In addition, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or
procedures may deteriorate. We intend to continue to monitor and upgrade our internal controls as necessary or appropriate for our business, but cannot assure that
such improvements will be sufficient to provide us with effective internal control over financial reporting.
C. Attestation report of the registered public accounting firm
Please see the report of Ernst & Young AB, an independent registered public accounting firm, included in “Item 18. Financial Statements.”
D. Changes in internal control over financial reporting
There were no changes to our internal control over financial reporting during the year ended December 31, 2020 that have materially affected, or are
reasonably likely to materially affect, our internal control over financial reporting. We have not experienced any material impact to our internal control over
financial reporting despite the fact that our employees are currently working remotely due to the COVID-19 pandemic. We are continually monitoring and
assessing the COVID-19 situation to minimize the impact of the pandemic on the design and operating effectiveness of our internal control over financial
reporting.
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Item 16A. Audit Committee Financial Expert
Our board of directors has determined that Mr. Thomas Staggs is an “audit committee financial expert,” as defined in Item 16A of Form 20-F. All audit
committee members satisfy the independence requirements set forth under the rules of the NYSE and in Rule 10A-3 under the Exchange Act.
Item 16B. Code of Ethics
We have adopted the Spotify Code of Conduct and Ethics, which applies to all of directors, officers, employees, consultants and others working on our
behalf, and is intended to meet the definition of “code of ethics” under Item 16B of Form 20-F. The Spotify Code of Conduct and Ethics is available on our website
at investors.spotify.com. We updated the Spotify Code of Conduct and Ethics in December 2020 to introduce, among other changes, guidelines for internal
communications. We did not grant any waivers to the Spotify Code of Conduct and Ethics during the year ended December 31, 2020.
Item 16C. Principal Accountant Fees and Services
Ernst & Young AB have acted as our principal accountants for the years ended December 31, 2020 and 2019, respectively. The following table
summarizes the charge for professional fees rendered in those periods:
Audit fees
Audit-related fees
Tax fees
All other fees
Total
2020
2019
(in € thousands)
5,179
100
4
—
5,283
4,920
425
82
—
5,427
“Audit fees” are the aggregate fees earned by the Ernst & Young entities for the audit of our consolidated annual financial statements, reviews of interim
financial statements and attestation services that are provided in connection with statutory and regulatory filings or engagements. “Audit-related fees” are fees
charged by the Ernst & Young entities for assurance and related services that are reasonably related to the performance of the audit or review of our financial
statements and are not reported under “Audit fees.” This category comprises fees for internal control reviews, agreed-upon procedure engagements and other
attestation services subject to regulatory requirements. “Tax Fees” include fees billed for tax compliance, tax advice and tax planning services. “All other fees” are
the fees for products and services other than those in the above three categories.
All audit services and permitted non-audit services to be performed for us by our independent auditor must be approved by our Audit Committee in
advance to ensure that such engagements do not impair the independence of our independent registered public accounting firm. The Audit Committee generally
pre-approves particular services or categories of services on a case-by-case basis. All services provided to us by our independent auditor in 2020 and 2019 were
pre-approved by the Audit Committee.
Item 16D. Exemptions from the Listing Standards for Audit Committees
None.
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Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers
In November 2018, the board of directors approved a share repurchase program of the Company’s ordinary shares up to the amount of $1.0 billion.
Repurchases of up to 10,000,000 of the Company’s ordinary shares were authorized by the Company’s general meeting of shareholders on April 21, 2016. The
authorization to repurchase will expire on April 21, 2021 unless renewed by decision of a general meeting of shareholders of the Company. The timing and actual
number of shares repurchased will depend on a variety of factors, including price, general business and market conditions, and alternative investment opportunities.
The repurchase program will be executed consistent with the Company's capital allocation strategy of prioritizing investment to grow the business over the long
term.
Total Number of
Shares Purchased
Average Price
Paid per Share
—
—
—
2,012,200
—
—
2,026,000
—
—
—
1,000,000
—
5,038,200
(2)
(2)
(2)
$
$
$
$
$
$
$
$
$
$
$
$
$
—
—
—
—
—
—
—
—
—
—
—
—
—
(3)
(4)
(5)
Total Number of
Shares Purchased
as Part of
Publicly
Announced
Plans or
Programs
(1)
Maximum Value
of Shares that May
Yet Be Purchased
Under the Plans or
Programs
—
—
—
—
—
—
—
—
—
—
—
—
—
$
$
$
$
$
$
$
$
$
$
$
$
$
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
427,748,748
The column includes all the shares repurchased as a part of the repurchase program announced on November 5, 2018, as further described above. As of December 31, 2020, we
had repurchased a total of approximately $572 million under the share repurchase program.
On April 6, 2020, July 10, 2020, and November 5, 2020, the Company issued ordinary shares to our Netherlands subsidiary at par value and subsequently repurchased those
shares at the same price. These shares are held in treasury in order to facilitate the fulfillment of option exercises and RSU releases under the Company’s stock option and RSU
plans.
Price paid per share is equal to the USD equivalent of par value, or $0.000674 per share, as of the date of purchase.
Price paid per share is equal to the USD equivalent of par value, or $0.000706 per share, as of the date of purchase.
Price paid per share is equal to the USD equivalent of par value, or $0.000739 per share, as of the date of purchase
2020
January
February
March
April
May
June
July
August
September
October
November
December
Total
(1)
(2)
(3)
(4)
(5)
During the year ended December 31, 2020, the average price paid per share for share repurchases was equal to par value of €0.000625. As of
December 31, 2020, the maximum value of shares that may yet be purchased under the share repurchase program is approximately €350 million, translated into
Euro from U.S. Dollars at the exchange rate as published by Reuters on December 31, 2020.
Item 16F. Change in Registrant’s Certifying Accountant
Not applicable.
Item 16G. Corporate Governance
Our common shares are listed on the NYSE. For purposes of NYSE rules, so long as we are a foreign private issuer, we are eligible to take advantage of
certain exemptions from NYSE corporate governance requirements provided in the NYSE rules. We are required to disclose the significant ways in which our
corporate governance practices differ from those that apply to U.S. companies under NYSE listing standards. Set forth below is a summary of these differences:
Board Committees—The NYSE rules require domestic companies to have a compensation committee and a nominating and corporate governance
committee composed entirely of independent directors, but as a foreign private issuer we
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are exempt from these requirements. We have a remuneration committee comprised of three members, and we believe that all of the committee members satisfy
the “independence” requirements of the NYSE rules. We do not have a nominating and corporate governance committee.
Shareholder Approval of Equity Plans—The NYSE rules require shareholder approval of stock option plans and other equity compensation arrangements
available to officers, directors or employees and any material amendments thereto, but as a foreign private issuer we are permitted to follow home country practice
in lieu of those rules. Under home country practice, shareholder approval of stock option plans and other equity compensation arrangements is not required;
however, we are required to seek shareholder approval of the compensation paid to our directors. The Company’s Board of Directors approves the stock option
plans and other equity compensation arrangements that do not require shareholder approval under our home country practice.
Item 16H. Mine Safety Disclosure
Not applicable.
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Item 17. Financial Statements
See Item 18.
Item 18. Financial Statements
PART III
The audited Consolidated Financial Statements as required under Item 18 are attached hereto starting on page F-1 of this Form 20-F.
Item 19. Exhibits
The following are filed as exhibits hereto:
1.1
2.1
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
Amended and Restated Articles of Association of Spotify Technology S.A. (English Translation), as currently in effect.
Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934. (filed as Exhibit 2.1 to
Spotify Technology S.A.'s Annual Report on Form 20-F filed on February 12, 2020, File No. 001-38438, and incorporated herein by
reference).
Form of Terms and Conditions for Warrants 2019 in Spotify Technology S.A. (filed as Exhibit 4.1 to Spotify Technology S.A.'s Annual
Report on Form 20-F filed on February 12, 2020, File No. 001-38438, and incorporated herein by reference).
Form of Terms and Conditions for Warrants 2017 in Spotify Technology S.A. (filed as Exhibit 10.2 to Spotify Technology S.A.’s Form F-1
filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Form of Terms and Conditions for Warrants 2016 in Spotify Technology S.A. (filed as Exhibit 10.1 to Spotify Technology S.A.’s Form F-1
filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Employee Stock Options 2021/2026 in Spotify Technology S.A., dated April 1, 2021.
First Amendment to Terms and Conditions Governing Employee Stock Options 2020/2025 and Terms and Conditions Governing Employee
Restricted Stock Units 2020/2025 in Spotify Technology S.A., dated December 2, 2020.
Terms and Conditions Governing Employee Stock Options 2020/2025 in Spotify Technology S.A., dated January 1, 2020 (filed as Exhibit
99.1 to Spotify Technology S.A.’s Form S-8 filed on December 30, 2019, File No. 333-235746, and incorporated herein by reference).
Terms and Conditions Governing Employee Stock Options 2019/2024 in Spotify Technology S.A., dated January 1, 2019 (filed as Exhibit 4.3
to Spotify Technology S.A.’s Annual Report on Form 20-F filed on February 12, 2019, File No. 001-38438, and incorporated herein by
reference).
Terms and Conditions Governing Employee Stock Options 2019/2024 Interim in Spotify Technology S.A., dated January 1, 2019 (filed as
Exhibit 4.4 to Spotify Technology S.A.’s Annual Report on Form 20-F filed on February 12, 2019, File No. 001-38438, and incorporated
herein by reference).
Terms and Conditions Governing Employee Stock Options 2018/2023 in Spotify Technology S.A., dated January 1, 2018 (filed as Exhibit
10.3 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
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Table of Contents
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
Terms and Conditions Governing Employee Stock Options 2017/2022 in Spotify Technology S.A., dated December 2, 2016 (filed as Exhibit
10.4 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Employee Stock Options 2016/2021 in Spotify Technology S.A., dated January 1, 2016 (filed as Exhibit
10.5 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Employee Stock Options 2015/2020 in Spotify Technology S.A., dated March 1, 2015 (filed as Exhibit
10.6 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Employee Stock Options 2014/2019 in Spotify Technology S.A., dated March 1, 2014 (filed as Exhibit
10.7 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Employee Restricted Stock Units 2021/2026 in Spotify Technology S.A., dated April 1, 2021.
Terms and Conditions Governing Employee Restricted Stock Units 2020/2025 in Spotify Technology S.A., dated January 1, 2020 (filed as
Exhibit 99.2 to Spotify Technology S.A.’s Form S-8 filed on December 30, 2019, File No. 333-235746, and incorporated herein by
reference).
Terms and Conditions Governing Restricted Stock Units 2019/2024 in Spotify Technology S.A., dated January 1, 2019 (filed as Exhibit 4.10
to Spotify Technology S.A.’s Annual Report on Form 20-F filed on February 12, 2019, File No. 001-38438, and incorporated herein by
reference).
Terms and Conditions Governing Restricted Stock Units 2018/2023 in Spotify Technology S.A., dated January 1, 2018 (filed as Exhibit 10.8
to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Restricted Stock Units 2017/2022 in Spotify Technology S.A., dated June 1, 2017 (filed as Exhibit 10.9 to
Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Restricted Stock Units 2016/2021 in Spotify Technology S.A., dated June 1, 2016 (filed as Exhibit 10.10 to
Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Restricted Stock Units 2015/2020 in Spotify Technology S.A., dated June 1, 2015 (filed as Exhibit 10.11 to
Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Restricted Stock Units 2014/2019 in Spotify Technology S.A., dated October 1, 2014 (filed as Exhibit
10.12 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Terms and Conditions Governing Director Stock Options 2020/2025 in Spotify Technology S.A., dated April 22, 2020 (filed as Exhibit 99.1
to Spotify Technology S.A.’s Form S-8 filed on April 29, 2020, File No. 333-237908, and incorporated herein by reference).
Terms and Conditions Governing Director Stock Options 2019/2023 in Spotify Technology S.A., dated April 19, 2019 (filed as Exhibit 99.1
to Spotify Technology S.A.’s Form S-8 filed on April 29, 2019, File No. 333-231102, and incorporated herein by reference).
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4.24
4.25
4.26
4.27
4.28
4.29
4.30
4.31
4.32
4.33
4.34
4.35
4.36
4.37
8.1
Terms and Conditions Governing Director Restricted Stock Units 2020/2025 in Spotify Technology S.A., dated April 22, 2020 (filed as
Exhibit 99.2 to Spotify Technology S.A.’s Form S-8 filed on April 29, 2020, File No. 333-237908, and incorporated herein by reference).
Terms and Conditions Governing Director Restricted Stock Units 2019/2023 in Spotify Technology S.A., dated April 19, 2019 (filed as
Exhibit 99.2 to Spotify Technology S.A.’s Form S-8 filed on April 29, 2019, File No. 333-231102, and incorporated herein by reference).
Terms and Conditions Governing Director Restricted Stock Units 2018/2022 in Spotify Technology S.A., dated February 28, 2018 (filed as
Exhibit 10.13 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by
reference).
Terms and Conditions Governing Director Restricted Stock Units 2017/2021 in Spotify Technology S.A., dated June 30, 2017 (filed as
Exhibit 10.14 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by
reference).
Terms and Conditions Governing Director Restricted Stock Units 2016/2020 in Spotify Technology S.A., dated September 30, 2016 (filed as
Exhibit 10.15 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by
reference).
The Echo Nest Corporation 2007 Stock Option and Grant Plan (filed as Exhibit 10.16 to Spotify Technology S.A.’s Form F-1 filed on
February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Form of Incentive Stock Option Agreement under The Echo Nest Corporation 2007 Stock Option and Grant Plan, by and between The Echo
Nest Corporation and optionees (filed as Exhibit 10.17 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-
223300, and incorporated herein by reference).
Terms and Conditions Governing Consultant Stock Options 2021/2026 in Spotify Technology S.A., dated April 1, 2021.
First Amendment to Terms and Conditions Governing Consultant Stock Options 2020/2025 and Terms and Conditions Governing Consultant
Restricted Stock Units 2020/2025 in Spotify Technology S.A., December 2, 2020.
Terms and Conditions Governing Stock Options for Consultants 2020/2025 in Spotify Technology S.A., dated January 1, 2020 (filed as
Exhibit 99.3 to Spotify Technology S.A.’s Form S-8 filed on December 30, 2019, File No. 333-235746, and incorporated herein by
reference).
Terms and Conditions Governing Consultant Restricted Stock Units 2021/2026 in Spotify Technology S.A., dated April 1, 2021.
Terms and Conditions Governing Restricted Stock Units for Consultants 2020/2025 in Spotify Technology S.A., dated January 1, 2020 (filed
as Exhibit 99.4 to Spotify Technology S.A.’s Form S-8 filed on December 30, 2019, File No. 333-235746, and incorporated herein by
reference).
Form of Notice of Conversion of Echo Nest Stock Options, by and between Spotify Technology S.A. and certain employees (filed as Exhibit
10.18 to Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
Form of Restricted Consideration Agreement, by and between Spotify Technology S.A. and restricted sellers (filed as Exhibit 10.19 to
Spotify Technology S.A.’s Form F-1 filed on February 28, 2018, File No. 333-223300, and incorporated herein by reference).
List of Subsidiaries.
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12.1
12.2
13.1*
13.2*
15.1
101
* Furnished herewith.
Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer.
Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer.
Certification of Chief Executive Officer Under Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350.
Certification of Chief Financial Officer Under Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350.
Consent of Ernst & Young AB.
Interactive Data Files.
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The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to
sign this annual report on its behalf.
SIGNATURES
Date: February 5, 2021
Spotify Technology S.A.
By:
Name:
Title:
/s/ Paul Vogel
Paul Vogel
Chief Financial Officer
***
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INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm
Consolidated statement of operations for the years ended December 31, 2020, 2019, and 2018
Consolidated statement of comprehensive (loss)/income for the years ended December 31, 2020, 2019, and 2018
Consolidated statement of financial position as of December 31, 2020 and 2019
Consolidated statement of changes in equity for the years ended December 31, 2020, 2019, and 2018
Consolidated statement of cash flows for the years ended December 31, 2020, 2019, and 2018
Notes to consolidated financial statements for the year ended December 31, 2020
F-1
Page
F-2
F-5
F-6
F-7
F-8
F-9
F-10
Table of Contents
To the Shareholders and Board of Directors of Spotify Technology S.A.
Report of Independent Registered Public Accounting Firm
Opinion on the Financial Statements
We have audited the accompanying consolidated statements of financial position of Spotify Technology S.A. (the Company) as of December 31, 2020 and 2019,
the related consolidated statements of operations, comprehensive (loss)/income, changes in equity and cash flows for each of the three years in the period ended
December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements
present fairly, in all material respects, the financial position of the Company at December 31, 2020 and 2019 and the results of its operations and its cash flows for
each of the three years in the period ended December 31, 2020, in conformity with International Financial Reporting Standards as issued by the International
Accounting Standards Board.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal
control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission (2013 framework), and our report dated February 5, 2021 expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements
based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance
with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to
assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such
procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the
accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe
that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be
communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially
challenging, subjective or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the consolidated financial
statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the
accounts or disclosures to which it relates.
F-2
Table of Contents
Cost of revenue and rights holder liabilities
Description of the Matter
How We Addressed the Matter in
Our Audit
For the year ended December 31, 2020, the Company’s cost of revenue was €5,865 million, trade payables was €434
million and accrued fees to rights holders was €1,265 million. As explained in Note 2 in the consolidated financial
statements, cost of revenue and rights holder liabilities consist predominantly of royalty and distribution costs related to
content streaming. Royalties are typically calculated using negotiated or statutory rates and are based on revenue,
user/usage measures, or a combination of these. Calculation variables include the country, product, license holder and
size of user base.
Auditing cost of revenue and rights holder liabilities was complex due to the number of royalty calculation variables in
addition to the Company’s complex IT systems and a significant volume of data. There was significant auditor judgment
related to circumstances where rights holders have allowed the use of their content while negotiations of the terms and
conditions or determination of statutory rates are ongoing and in circumstances where rights holders have several years
to claim royalties for musical compositions.
We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the
Company’s processes to determine cost of revenue and rights holder liabilities. For example, we tested controls specific
to the calculation of royalties, calculation variables and IT systems. Additionally, we tested controls over estimates and
judgments used to determine royalties where rights holders have allowed the use of their content while negotiations or
determination of rates are ongoing, and where rights holders have several years to claim.
We performed the following audit procedures, among others, related to cost of revenue and rights holder liabilities:
recalculated royalty cost amounts, tested calculation variables, tested claim data and performed sensitivity analyses.
Additionally, we evaluated the appropriateness and consistency of management’s estimates and assumptions, used to
determine royalties where rights holders allowed the use of their content while negotiations or determination of rates are
ongoing, and where rights holders have several years to claim.
/s/ Ernst & Young AB
We have served as the Company’s auditor since 2015.
Stockholm, Sweden
February 5, 2021
F-3
Table of Contents
To the Shareholders and the Board of Directors of Spotify Technology S.A.
Report of Independent Registered Public Accounting Firm
Opinion on Internal Control Over Financial Reporting
We have audited Spotify Technology S.A.’s internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control—
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion,
Spotify Technology S.A. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on
the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated statements
of financial position of the Company as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive (loss)/income, changes
in equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes and our report dated February 5, 2021 expressed
an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting included in the accompanying Management's Annual Report on Internal Control over Financial Reporting. Our responsibility is to
express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and
are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the
Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating
the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the
circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial
reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
/s/ Ernst & Young AB
Stockholm, Sweden
February 5, 2021
F-4
Table of Contents
Consolidated statement of operations
for the year ended December 31
(in € millions, except share and per share data)
Revenue
Cost of revenue
Gross profit
Research and development
Sales and marketing
General and administrative
Operating loss
Finance income
Finance costs
Share in losses of associate
Finance income/(costs) - net
Loss before tax
Income tax (benefit)/expense
Net loss attributable to owners of the parent
Net loss per share attributable to owners of the parent
Basic
Diluted
Weighted-average ordinary shares outstanding
Basic
Diluted
Note
4
9
9
10
11
11
11
11
2020
2019
2018
7,880
5,865
2,015
837
1,029
442
2,308
(293)
94
(510)
—
(416)
(709)
(128)
(581)
(3.10)
(3.10)
6,764
5,042
1,722
615
826
354
1,795
(73)
275
(333)
—
(58)
(131)
55
(186)
(1.03)
(1.03)
5,259
3,906
1,353
493
620
283
1,396
(43)
455
(584)
(1)
(130)
(173)
(95)
(78)
(0.44)
(0.51)
187,583,307
187,583,307
180,960,579
180,960,579
177,154,405
181,210,292
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Table of Contents
Consolidated statement of comprehensive (loss)/income
for the year ended December 31
(in € millions)
Net loss attributable to owners of the parent
Other comprehensive income/(loss):
Items that may be subsequently reclassified to consolidated statement of operations (net
of tax):
Change in net unrealized gain or loss on short term investments
Change in net unrealized gain or loss on cash flow hedging instruments
Exchange differences on translation of foreign operations
Items not to be subsequently reclassified to consolidated statement
of operations (net of tax):
Gain/(loss) in the fair value of long term investments
Other comprehensive income/(loss) for the year (net of tax)
Total comprehensive (loss)/income for the year attributable to owners of the parent
Note
2020
2019
2018
(581)
(186)
(78)
18, 24
18, 24
18
18, 24
4
1
(43)
615
577
(4)
5
(3)
4
(117)
(111)
(297)
1
(1)
(8)
572
564
486
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Table of Contents
Consolidated statement of financial position
As at December 31
(in € millions)
Assets
Non-current assets
Lease right-of-use assets
Property and equipment
Goodwill
Intangible assets
Long term investments
Restricted cash and other non-current assets
Deferred tax assets
Current assets
Trade and other receivables
Income tax receivable
Short term investments
Cash and cash equivalents
Other current assets
Total assets
Equity and liabilities
Equity
Share capital
Other paid in capital
Treasury shares
Other reserves
Accumulated deficit
Equity attributable to owners of the parent
Non-current liabilities
Lease liabilities
Accrued expenses and other liabilities
Provisions
Deferred tax liabilities
Current liabilities
Trade and other payables
Income tax payable
Deferred revenue
Accrued expenses and other liabilities
Provisions
Derivative liabilities
Total liabilities
Total equity and liabilities
Note
2020
2019
12
13
14
14
24
15
10
16
10
24
24
17
18
18
18
18
12
22
23
10
21
10
4
22
23
24
444
313
736
97
2,277
78
15
3,960
464
4
596
1,151
151
2,366
6,326
—
4,583
(175)
1,687
(3,290)
2,805
577
42
2
—
621
638
9
380
1,748
20
105
2,900
3,521
6,326
489
291
478
58
1,497
69
9
2,891
402
4
692
1,065
68
2,231
5,122
—
4,192
(370)
924
(2,709)
2,037
622
20
2
2
646
549
9
319
1,438
13
111
2,439
3,085
5,122
The accompanying notes are an integral part of these consolidated financial statements.
F-7
Table of Contents
Consolidated statement of changes in equity
(in € millions, except share data)
Number of
ordinary
shares
outstanding
Note
Balance at January 1, 2018
Loss for the year
Other comprehensive income
Issuance of ordinary shares
Repurchases of ordinary shares
Issuance of shares upon exercise of stock options
and restricted stock units
Restricted stock units withheld for
employee taxes
Issuance of shares upon exchange of Convertible
Notes
Share-based compensation
Income tax impact associated with share-based
payments
Balance at December 31, 2018
Cumulative effect adjustment in connection with the
adoption of IFRS 16
Balance at January 1, 2019
Loss for the year
Other comprehensive loss
Repurchases of ordinary shares
Issuance of shares upon exercise of stock options
and restricted stock units
Issuance of shares upon exercise of, or net
settlement of, warrants
Issuance of share-based compensation in
conjunction with business combinations
Restricted stock units withheld for
employee taxes
Share-based compensation
Income tax impact associated with share-based
payments
Balance at December 31, 2019
Loss for the year
Other comprehensive income
Issuance of ordinary shares
Repurchases of ordinary shares
Issuance of shares upon exercise of stock options,
restricted stock units, and contingently issuable
shares
Issuance of shares upon exercise of, or net
settlement of, warrants
Restricted stock units withheld for
employee taxes
Share-based compensation
Income tax impact associated with share-based
payments
Balance at December 31, 2020
18
18
20
19
10
12
18
24
5
19
10
26
18
18
24
19
10
167,258,400
—
—
5,776,920
(6,427,271)
4,816,072
—
9,431,960
—
—
180,856,081
—
180,856,081
—
—
(3,679,156)
3,557,405
3,591,627
—
—
—
—
184,325,957
—
—
5,038,200
(5,038,200)
4,802,847
1,084,043
—
—
—
190,212,847
Share
capital
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
Treasury
shares
—
—
—
—
(77)
—
—
—
—
—
(77)
—
(77)
—
—
(433)
140
—
—
—
—
—
(370)
—
—
—
—
195
—
—
—
—
(175)
Other
paid in
capital
2,488
—
—
4
—
163
—
1,146
—
—
3,801
—
3,801
—
—
—
14
377
—
—
—
—
4,192
—
—
—
—
124
267
—
—
Other
reserves
Accumulated
deficit
Equity
attributable to
owners of the
parent
177
—
564
—
—
—
(2)
—
88
48
875
—
875
—
(111)
—
—
—
13
(6)
127
26
924
—
577
—
—
—
—
(29)
181
(2,427)
(78)
—
—
—
—
—
—
—
—
(2,505)
(18)
(2,523)
(186)
—
—
—
—
—
—
—
—
(2,709)
(581)
—
—
—
—
—
—
—
238
(78)
564
4
(77)
163
(2)
1,146
88
48
2,094
(18)
2,076
(186)
(111)
(433)
154
377
13
(6)
127
26
2,037
(581)
577
—
—
319
267
(29)
181
34
2,805
—
4,583
34
1,687
—
(3,290)
The accompanying notes are an integral part of these consolidated financial statements.
F-8
Table of Contents
Consolidated statement of cash flows
for the year ended December 31
(in € millions)
Operating activities
Net loss
Adjustments to reconcile net loss to net cash flows
Depreciation of property and equipment and lease
right-of-use assets
Amortization of intangible assets
Share-based compensation expense
Finance income
Finance costs
Income tax (benefit)/expense
Other
Changes in working capital:
Increase in trade receivables and other assets
Increase in trade and other liabilities
Increase in deferred revenue
Increase/(decrease) in provisions
Interest paid on lease liabilities
Interest received
Income tax paid
Net cash flows from operating activities
Investing activities
Business combinations, net of cash acquired
Purchases of property and equipment
Purchases of short term investments
Sales and maturities of short term investments
Change in restricted cash
Other
Net cash flows used in investing activities
Financing activities
Payments of lease liabilities
Lease incentives received
Repurchases of ordinary shares
Proceeds from exercise of stock options
Proceeds from exercise of warrants
Proceeds from issuance of warrants
Other
Net cash flows from/(used in) financing activities
Net increase in cash and cash equivalents
Cash and cash equivalents at January 1
Net foreign exchange (losses)/gains on cash and cash equivalents
Cash and cash equivalents at December 31,
Supplemental disclosure of cash flow information
Non-cash investing and financing activities
Deferred consideration liability recognized in conjunction with business combination
Lease right-of-use assets obtained in exchange for lease liabilities
Purchases of property and equipment in trade and other payables
Issuance of shares upon exercise of, or effective net settlement of, warrants
Issuance of shares upon exchange of Convertible Notes
Note
2020
2019
2018
(581)
86
25
176
(94)
510
(128)
7
(187)
425
73
6
(55)
4
(8)
259
(336)
(78)
(1,354)
1,421
2
(27)
(372)
(24)
20
—
319
—
—
(30)
285
172
1,065
(86)
1,151
32
29
16
267
—
(186)
71
16
122
(275)
333
55
13
(27)
454
59
(35)
(37)
14
(4)
573
(331)
(135)
(901)
1,163
2
(16)
(218)
(17)
15
(438)
154
74
15
(6)
(203)
152
891
22
1,065
2
136
14
303
—
(78)
21
11
88
(455)
584
(95)
8
(61)
291
38
(17)
—
18
(9)
344
(9)
(125)
(1,069)
1,226
(10)
(35)
(22)
—
—
(72)
163
—
—
1
92
414
477
—
891
—
—
23
—
1,145
12 , 13
14
19
9
9
10
5
13
24
24
15
12
12
18
19
24
24
24
24
5
12
13
24
24
The accompanying notes are an integral part of these consolidated financial statements.
F-9
Table of Contents
Notes to the 2020 consolidated financial statements
1. Corporate information
Spotify Technology S.A. (the “Company” or “parent”) is a public limited company incorporated and domiciled in Luxembourg. The Company’s
registered office is 42-44 avenue de la Gare, L1610, Luxembourg, Grand Duchy of Luxembourg.
The principal activity of the Company and its subsidiaries (the “Group”) is audio streaming. The Group’s premium service (“Premium Service”)
provides users with unlimited online and offline high-quality streaming access to its catalog of music and podcasts. The Premium Service offers a music listening
experience without commercial breaks. The Group’s ad-supported service (“Ad-Supported Service,” and together with the Premium Service, the “Service”) has no
subscription fees and generally provides users with limited on-demand online access to the catalog of music and unlimited online access to the catalog of podcasts.
The Group depends on securing content licenses from a number of major and minor content owners and other rights holders in order to provide its service.
2. Summary of significant accounting policies
The principal accounting policies applied in the preparation of these consolidated financial statements are set out below. These policies have been
consistently applied to all the years presented, unless otherwise stated.
(a)
Basis of preparation
The consolidated financial statements of Spotify Technology S.A. comply with International Financial Reporting Standards (“IFRS”) as issued by the
International Accounting Standards Board (“IASB”) and have been prepared on a historical cost basis, except for securities, long term investments, convertible
senior notes (“Convertible Notes”), derivative financial instruments, and contingent consideration, which have been measured at fair value, and lease liabilities,
which are measured at present value.
The preparation of the consolidated financial statements in conformity with IFRS requires the application of certain critical accounting estimates and
assumptions. It also requires management to exercise its judgment in the process of applying the accounting policies. The areas involving a greater degree of
judgment or complexity, or areas in which assumptions and estimates are significant to the consolidated financial statements, are disclosed in Note 3.
(b)
Basis of consolidation
Subsidiaries are all entities over which the Group has control. The Group controls an entity when the Group is exposed to, or has rights to, variable
returns from its involvement with the entity and has the ability to affect those returns through its power over the entity. Subsidiaries are consolidated from the date
on which control is transferred to the Group. They are deconsolidated from the date that control ceases.
(c)
Foreign currency translation
Functional and reporting currency
Items included in the financial statements of each of the Group’s entities are measured using the currency of the primary economic environment in
which the entity operates. The consolidated financial statements are presented in Euro, which is the Group’s reporting currency.
Transactions and balances
Foreign currency transactions are translated into the functional currency using the exchange rates prevailing at the dates of the transactions. Foreign
exchange gains and losses resulting from the settlement of such transactions and from the translation of monetary assets and liabilities denominated in foreign
currencies at year-end exchange rates are recognized in the consolidated statement of operations within finance income or finance costs.
Group companies
The results and financial position of all the Group entities that have a functional currency different from the Group's reporting currency are translated
into Euro as follows:
•
Assets and liabilities are translated at the closing rate at the reporting date;
F-10
Table of Contents
•
•
Income and expenses for each statement of operation are translated at average exchange rates; and
All resulting exchange differences are recognized in other comprehensive income/(loss).
Goodwill and fair value adjustments arising on the acquisition of a foreign operation are treated as assets and liabilities of the operation and
translated at the closing rate at each reporting date.
(d)
Revenue recognition
Premium revenue
The Group generates subscription revenue from the sale of the Premium Service in which customers can listen on-demand and offline. Premium
Services are sold directly to end users and through partners who are generally telecommunications companies that bundle the subscription with their own services
or collect payment for the stand-alone subscriptions from their end customers. The Group satisfies its performance obligation, and revenue from these services is
recognized, on a straight-line basis over the subscription period. Typically, Premium Services are paid for monthly in advance.
Premium partner subscription revenue is based on a per-subscriber rate in a negotiated partner agreement. Under these arrangements, a premium
partner may bundle the Premium Service with its existing product offerings or offer the Premium Service as an add-on. Payment is remitted to the Group through
the premium partner. The Group assesses the facts and circumstances, including whether the partner is acting as a principal or agent, of all partner revenue
arrangements and then recognizes revenues either gross or net. Premium partner services, whether recognized gross or net, have one material performance
obligation, that being the delivery of the Premium Service.
Additionally, the Group bundles the Premium Service with third-party services and products. In bundle arrangements where the Group has multiple
performance obligations, the transaction price is allocated to each performance obligation based on the relative stand-alone selling price. The Group generally
determines stand-alone selling prices based on the prices charged to customers. For each performance obligation within the bundle, revenue is recognized either on
a straight-line basis over the subscription period or at a point in time when control of the service or product is transferred to the customer.
Ad-Supported revenue
The Group’s advertising revenue is primarily generated through display, audio, and video advertising delivered through advertising impressions and
podcast downloads. The Group enters into arrangements with advertising agencies that purchase advertising on its platform on behalf of the agencies’ clients, or
enters into arrangements directly with advertisers. These advertising arrangements are typically sold on a cost-per-thousand basis and are evidenced by an Insertion
Order (“IO”), a submission of order placements through a self-serve platform that includes the online acceptance of terms and conditions, or contracts that specify
the terms of the arrangement such as the type of ad product, pricing, insertion dates, and number of impressions in a stated period. Revenue is recognized over time
based on the number of impressions delivered. The Group also may offer cash rebates to advertising agencies based on the volume of advertising inventory
purchased. These rebates are estimated based on expected performance and historical data and result in a reduction of revenue recognized.
Additionally, the Group generates Ad-Supported revenue through arrangements with certain advertising exchange platforms to distribute advertising
inventory for purchase on a cost-per-thousand basis through their automated exchange. Revenue is recognized over time when impressions are delivered on the
platform.
(e)
Advertising credits
Advertising credits that are not transferable are issued to certain rights holders and allow them to include advertisement on the Ad-Supported Service
that promote their artists and the Spotify service, such as the availability of a new single or album on Spotify. These are issued in conjunction with the Group’s
royalty arrangements for nil consideration. There is no revenue recognized as the advertising credits are mutually beneficial to both the rights holders and the
Group and do not meet the definition of a revenue contract under IFRS 15, Revenue from Contracts with Customers.
(f)
Business combinations
Business combinations are accounted for using the acquisition method. Identifiable assets acquired and liabilities assumed are measured initially at
their fair values at the acquisition date. The excess of the consideration transferred, and the acquisition-date fair value of any previous equity interest in the
acquiree, over the fair value of the identifiable net assets acquired is recognized as goodwill.
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Table of Contents
In some business combinations, the Group will replace awards held by the employees of the acquiree with its share-based compensation awards,
whereby the vesting of the Group’s replacement awards is contingent on continued employment with the Group. Replacements of share-based compensation
awards are accounted for as modifications of the acquiree’s existing share-based compensation awards. The value of the replaced acquiree award at acquisition
date that relates to pre-combination service is accounted for as part of the consideration transferred. The excess of the value of the Group’s replacement award over
the amount attributed to pre-combination services is recognized in the consolidated statement of operations, together with a corresponding credit to other reserves
in equity, over the period in which the service conditions are fulfilled.
Acquisition-related costs, other than those incurred for the issuance of debt or equity instruments, are charged to the consolidated statement of
operations as they are incurred.
(g)
Cost of revenue
Cost of revenue consists predominantly of royalty and distribution costs related to content streaming. The Group incurs royalty costs paid to record
labels, music publishers, and other rights holders for the right to stream music to the Group’s users. Royalties are typically calculated using negotiated rates in
accordance with license agreements and are based on either subscription and advertising revenue earned, user/usage measures, or a combination of these. The
determination of the amount of the rights holders’ liability requires complex IT systems and a significant volume of data and is subject to a number of variables,
including the revenue recognized, the type of content streamed and the country in which it is streamed, the product tier such content is streamed on, identification
of the appropriate license holder, size of user base, ratio of Ad-Supported Users to Premium Subscribers, and any applicable advertising fees and discounts, among
other variables. Some rights holders have allowed the use of their content on the platform while negotiations of the terms and conditions or determination of
statutory rates are ongoing. In such situations, royalties are calculated using estimated rates. In certain jurisdictions, rights holders have several years to claim
royalties for musical compositions, and therefore, estimates of the royalties payable are made until payments are made. The Group has certain arrangements
whereby royalty costs are paid in advance or are subject to minimum guaranteed amounts. An accrual is established when actual royalty costs to be incurred during
a contractual period are expected to fall short of the minimum guaranteed amounts. For minimum guarantee arrangements, for which the Group cannot reliably
predict the underlying expense, the Group will expense the minimum guarantee on a straight-line basis over the term of the arrangement. The Group also has
certain royalty arrangements where the Group would have to make additional payments if the royalty rates were below those paid to other similar licensors (most
favored nation clauses). For rights holders with this clause, a comparison is done of royalties incurred to date plus estimated royalties payable for the remainder of
the period to estimates of the royalties payables to other appropriate rights holders, and the shortfall, if any, is recognized on a straight-line basis over the period of
the applicable most favored nation clause. An accrual and expense is recognized when it is probable that the Group will make additional royalty payments under
these terms. The expense related to these accruals is recognized in cost of revenue. Cost of revenue also includes credit card and payment processing fees for
subscription revenue, customer service, certain employee compensation and benefits, cloud computing, streaming, facility, and equipment costs, as well as the
amortization of podcast content assets over their useful economic life, which starts at the release of each episode. In most cases, amortization is on an accelerated
basis.
(h)
Research and development expenses
Research and development expenses are primarily comprised of costs incurred for development of products related to the Group’s platform and
service, as well as new advertising products and improvements to the Group’s mobile app, desktop, and streaming services. The costs incurred include related
employee compensation and benefits, facility costs, IT costs and consulting costs.
(i)
Sales and marketing expenses
Sales and marketing expenses are primarily comprised of employee compensation and benefits, public relations, branding, consulting expenses,
customer acquisition costs, advertising, live events and trade shows, amortization of trade name and podcast publisher relationship intangible assets, the cost of
working with record labels and artists to promote the availability of new releases on the Group’s platform, and the costs of providing free trials of the Premium
Service. Expenses included in the costs of providing free trials are primarily derived from per user royalty fees determined in accordance with the rights holder
agreements.
F-12
Table of Contents
(j)
General and administrative expenses
General and administrative expenses are comprised primarily of employee compensation and benefits for functions such as finance, accounting,
analytics, legal, human resources, consulting fees, and other costs including facility and equipment costs, officers’ liability insurance, director fees, and fair value
adjustments on contingent consideration.
(k)
Income tax
The tax expense for the period comprises current and deferred tax. Tax is recognized in the consolidated statement of operations except to the extent
that it relates to a business combination, or items recognized directly in equity or in other comprehensive income.
(i)
Current tax
Current tax comprises the expected tax payable or receivable on the taxable income or loss for the year and any adjustment to tax payable or
receivable in respect of previous years. It is measured using tax rates enacted or substantively enacted at the reporting date.
(ii)
Deferred tax
Deferred tax is recognized in respect of temporary differences between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for taxation purposes. Deferred tax is not recognized for:
•
•
•
Temporary differences on the initial recognition of assets or liabilities in a transaction that is not a business
combination and that affects neither accounting nor taxable profit or loss;
Temporary differences related to investments in subsidiaries, and associates to the extent that the Group is able to
control the timing of the reversal of the temporary differences, and it is probable that they will not reverse in the
foreseeable future; and
Taxable temporary differences arising on the initial recognition of goodwill.
Deferred tax assets are recognized for unused tax losses, unused tax credits, and deductible temporary differences to the extent that it is
probable that future taxable profits will be available, against which they can be used. Deferred tax assets are reviewed at each reporting date
and are reduced to the extent that it is no longer probable that the related tax benefit will be realized.
Deferred tax is measured at the tax rates that are expected to be applied to temporary differences when they reverse, using tax rates enacted
or substantively enacted at the reporting date. The measurement of deferred tax reflects the tax consequences that would follow from the
manner in which the Group expects, at the reporting date, to recover or settle the carrying amount of its assets and liabilities.
Deferred tax assets and liabilities are offset only if certain criteria are met, such as when there is a legally enforceable right to offset.
(l)
Leases
Policy applicable before January 1, 2019
At inception of an arrangement, the Group determines whether the arrangement is or contains a lease. The Group leases certain items of property and
equipment. Leases in which substantially all the risks and rewards of ownership are not transferred to the Group as lessee are classified as operating leases.
Payments made under operating leases (net of any incentives received from the lessor) are charged to the consolidated statement of operations on a straight-line
basis over the period of the leases.
Leases of property and equipment where the Group has substantially all the risks and rewards of ownership are classified as finance leases. Finance
leases are capitalized at the lease’s commencement at lower of the fair value of the leased property and the present value of the minimum lease payments. Each
lease payment is allocated between the repayment of the liability and finance charges. The corresponding lease obligations, net of finance charges, are included in
borrowings. The interest element of the finance cost is charged to the consolidated statement of operations over the lease period so as to produce
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a constant periodic rate of interest on the remaining balance of the liability for each period. The property and equipment acquired under finance leases is
depreciated over the shorter of the useful life of the asset and the lease term.
Policy applicable from January 1, 2019
At inception of a contract, the Group assesses whether a contract is, or contains, a lease. A contract is, or contains, a lease if the contract conveys the
right to control the use of an identified asset for a period of time in exchange for consideration. To assess whether a contract conveys the right to control the use of
an identified asset, the Group assesses whether:
–
–
–
The contract involves the use of an identified asset – this may be specified explicitly or implicitly, and should be physically distinct or
represent substantially all of the capacity of a physically distinct asset. If the supplier has a substantive substitution right, then the asset is
not identified;
The Group has the right to obtain substantially all of the economic benefits from the use of the asset throughout the period of use; and
The Group has the right to direct the use of the asset. The Group has this right when it has the decision-making rights that are most relevant
to changing how and for what purpose the asset is used.
At inception or on reassessment of a contract that contains a lease component, the Group allocates the consideration in the contract to each lease
component on the basis of their relative stand-alone prices.
As a Lessee
The Group recognizes a right-of-use asset and a lease liability at the lease commencement date. The right-of-use asset is initially measured at cost,
which comprises the initial amount of the lease liability adjusted for any lease payments made at or before the commencement date, plus any initial direct costs
incurred and an estimate of costs to dismantle and remove the underlying asset or to restore the underlying asset or the site on which it is located, less any lease
incentives received prior to the commencement date. Any costs related to the removal and restoration of leasehold improvements, which meet the definition of
property, plant and equipment under IAS 16 Property Plant and Equipment are assessed under IAS 37 and are not within the scope of IFRS 16.
The lease term is determined based on the non-cancellable period for which the Group has the right to use an underlying asset. The lease term is
adjusted, if applicable, for periods covered by extension and termination options to the extent that the Group is reasonably certain to exercise them.
The right-of-use asset is subsequently depreciated using the straight-line method from the commencement date to the end of the lease term, which is
considered the appropriate useful life of these assets. In addition, the right-of-use asset is reduced by impairment losses, if any, and adjusted for certain
remeasurements of the lease liability, to the extent necessary.
The lease liability is initially measured at the present value of the lease payments, net of lease incentives receivable, that are not paid at the
commencement date, discounted using an incremental borrowing rate if the rate implicit in the lease arrangement is not readily determinable.
Lease payments included in the measurement of the lease liability comprise fixed payments, including in-substance fixed payments and variable lease
payments that depend on an index or a rate, initially measured using the index or rate as at the commencement date.
The lease liability is subsequently increased to reflect accretion of interest and reduced for lease payments made. It is remeasured when there is a
change in future lease payments arising from a change in an index or rate, lease term, or if the Group changes its assessment of whether it will exercise an
extension or termination option. When the lease liability is remeasured in this way, a corresponding adjustment is made to the carrying amount of the right-of-use
asset, or is recorded in profit or loss if the carrying amount of the right-of-use asset has been reduced to zero.
The Group leases certain properties under non-cancellable lease agreements that relate to office space. The expected lease terms are between one and
fourteen years.
The Group does not currently act in the capacity of a lessor.
Short-term leases and lease of low-value assets
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The Group has elected not to recognize right-of-use assets and lease liabilities for short-term leases that have a lease term of 12 months or less and
leases of low-value assets, including certain IT Equipment. The Group recognizes the lease payments associated with these leases as an expense on a straight-line
basis over the lease term.
(m)
Property and equipment
Property and equipment are stated at historical cost less accumulated depreciation and any accumulated impairment losses. Historical cost includes
any expenditure that is directly attributable to bringing the asset to the location and condition necessary for it to be capable of operating in the manner intended by
the Group.
The Group adds to the carrying amount of an item of property and equipment the cost of replacing parts of such an item if the replacement part is
expected to provide incremental future benefits to the Group. All repairs and maintenance are charged to the consolidated statement of operations during the period
in which they are incurred.
After assets are placed into service, depreciation is charged so as to allocate the cost of assets less their residual value over their estimated useful
lives, using the straight-line method as follows:
•
•
Property and equipment: 3 to 5 years
Leasehold improvements: shorter of the lease term or useful life
The assets’ residual values, useful lives, and depreciation methods are reviewed annually and adjusted prospectively if there is an indication of a
significant change. An asset’s carrying amount is written down immediately to its recoverable amount if the asset’s carrying amount is greater than its estimated
recoverable amount.
Gains and losses on disposals are determined by comparing the proceeds with the carrying amount and are recognized in the consolidated statement
of operations when the asset is derecognized.
(n)
Intangible assets
Acquired intangible assets other than goodwill comprise acquired developed technology, trade names, podcast publisher relationships, and patents. At
initial recognition, intangible assets acquired in a business combination are recognized at their fair value as of the date of acquisition. Following initial recognition,
intangible assets are carried at cost less accumulated amortization and impairment losses.
The Group recognizes internal development costs as intangible assets only when the following criteria are met: the technical feasibility of completing
the intangible asset exists, there is an intent to complete and an ability to use or sell the intangible asset, the intangible asset will generate probable future economic
benefits, there are adequate resources available to complete the development and to use or sell the intangible asset, and there is the ability to reliably measure the
expenditure attributable to the intangible asset during its development.
Intangible assets with finite lives are typically amortized on a straight-line basis over their estimated useful lives, typically 3 to 5 years for
technology, 3 to 8 years for trade names and trademarks, and 10 years for podcast publisher relationships, and are assessed for impairment whenever there is an
indication that the intangible asset may be impaired. The amortization period and the amortization method for an intangible asset are reviewed at least annually.
Changes in the expected useful life or the expected pattern of consumption of future economic benefits embodied in the asset are accounted for by changing the
amortization period or method, as appropriate, and are treated as changes in accounting estimates. The amortization of intangible assets is recognized in the
consolidated statement of operations in the expense category consistent with the function of the intangible assets.
(o)
Goodwill
Goodwill is the excess of the consideration transferred over the net identifiable assets acquired and liabilities assumed. Goodwill is tested annually
for impairment, or more regularly if certain indicators are present. For the purpose of impairment testing, goodwill acquired in a business combination is allocated
to each of the operating segments that are expected to benefit from the synergies of the combination and represent the lowest level at which the goodwill is
monitored for internal management purposes. Goodwill is evaluated for impairment by comparing the recoverable amount of the Group’s operating segments to the
carrying amount of the operating segments to which the goodwill relates. If the recoverable amount is less than the carrying amount an impairment charge is
determined.
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The recoverable amount of the operating segments is based on fair value less costs of disposal. The Group determines the fair value of the operating
segments using a combination of a discounted cash flow analysis and a market-based approach.
The Group believes reasonable estimates and judgments have been used in assessing the recoverable amounts.
(p)
Impairment of non-financial assets
Assets that are subject to depreciation or amortization are reviewed for impairment whenever events or changes in circumstances indicate that the
carrying value may not be recoverable. An impairment loss is recognized in the consolidated statement of operations consistent with the function of the assets, for
the amount by which the asset’s carrying amount exceeds its recoverable amount. The recoverable amount is the higher of an asset’s fair value less costs of
disposal and value in use. For the purposes of assessing impairment, assets are grouped at the lowest levels for which there are largely independent cash inflows.
Prior impairments of non-financial assets (other than goodwill) are reviewed for possible reversal each reporting period.
(q)
Financial instruments
(i)
Financial assets
Initial recognition and measurement
The Group’s financial assets are comprised of cash and cash equivalents, short term investments, trade and other receivables, derivative assets, long
term investments, restricted cash, and other non-current assets. All financial assets are recognized initially at fair value plus transaction costs that are
attributable to the acquisition of the financial asset. Purchases and sales of financial assets are recognized on the settlement date; the date that the
Group receives or delivers the asset. Receivables are non-derivative financial assets, other than short term and long term investments described
below, with fixed or determinable payments that are not quoted in an active market. They are included in current assets except for those with
maturities greater than 12 months after the reporting period.
For more information on receivables, refer to Note 16.
Short term investments are primarily comprised of debt instruments carried at fair value through other comprehensive income. The securities in this
category are those that are intended to be held for an indefinite period of time and that may be sold in response to needs for liquidity or in response to
changes in the market conditions (therefore not recognized at amortized cost). These meet both the hold to collect and sell business model and solely
payments of principal and interest contractual cash flows tests under IFRS 9 Financial Instruments. These are classified as current assets.
Long term investments are comprised of equity instruments carried at fair value through other comprehensive income based on the irrevocable
election made at initial recognition under IFRS 9 Financial Instruments. The securities within this category are intended to be held for an indefinite
period of time and for strategic investment purposes. These are neither held for trading nor contingent consideration recognized by an acquirer in a
business combination. These are classified as non-current assets. The Group’s primary long term investment is its equity investment in Tencent
Music Entertainment Group (“TME”).
Subsequent measurement
After initial measurement, short term investments are primarily measured at fair value with unrealized gains or losses recognized in other
comprehensive income and credited in other reserves within equity until the investment is derecognized, at which time, the cumulative gain or loss is
recognized in finance income/costs. Interest earned whilst holding the short term investments is reported as interest income using the effective
interest method. Interest income and foreign exchange revaluation are recognized in the statement of operations in the same manner as all other
financial assets.
After initial measurement, long term investments are measured at fair value with unrealized gains or losses, including any related foreign exchange
impacts, recognized in other comprehensive income and credited in other reserves within equity without recognizing fair value changes to profit and
loss upon derecognition. Dividends received are recognized in the consolidated statement of operations in finance income.
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Derecognition
Financial assets are derecognized when the rights to receive cash flows from the asset have expired.
Impairment of financial assets
The Group assesses at each reporting date whether there is any evidence that a financial asset or a group of financial assets is impaired, primarily its
trade receivables and short term investments. The Group assesses impairment for its financial assets, excluding trade receivables, using the general
expected credit losses model. Under this model, the Group calculates the allowance for credit losses by considering on a discounted basis, the cash
shortfalls it would incur in various default scenarios for prescribed future periods and multiplying the shortfalls by the probability of each scenario
occurring. The allowance on the financial asset is the sum of these probability-weighted outcomes.
For the Group’s short term investments, the Group applies the low credit risk simplification as it does not believe there to be any credit risk related to
these assets given the credit quality ratings required by the Group’s investment policy. At every reporting date, the Group evaluates whether a
particular debt instrument is considered to have low credit risk using all supportable information.
The Group’s long term investments are not assessed for impairment due to the irrevocable election made under IFRS 9 Financial Instruments as
stated above.
The Group uses the simplified approach for measuring impairment for its trade receivables as these financial assets do not have a significant
financing component as defined under IFRS 15, Revenue from Contracts with Customers. Therefore, the Group does not determine if the credit risk
for these instruments has increased significantly since initial recognition. Instead, a loss allowance is recognized based on lifetime expected credit
losses at each reporting date. Impairment losses and subsequent reversals are recognized in profit or loss and is the amount required to adjust the loss
allowance at the reporting date to the amount that is required to be recognized based on the aforementioned policy. The Group has established a
provision matrix that is based on its historical credit loss experiences, adjusted for forward-looking factors specific to the debtors and the economic
environment. The carrying amount of the asset is reduced through the use of an allowance account and the amount of the loss is recognized in the
consolidated statement of operations.
(ii)
Financial liabilities
Initial recognition and measurement
The Group’s financial liabilities are comprised of trade and other payables, lease liabilities, derivative liabilities (warrants and instruments designated
for hedging), and other liabilities, including contingent consideration, Prior to April 3, 2018, financial liabilities also included Convertible Notes and
contingent options. All financial liabilities except lease liabilities are recognized initially at fair value and, in the case of Convertible Notes, net of
directly attributable transaction costs.
The Group accounted for the Convertible Notes in accordance with IAS 39, Financial Instruments: Recognition and Measurement, ‘fair value option’
and IFRS 9 Financial Instruments as fair value through profit and loss. Under these approaches, the Convertible Notes were accounted for in their
entirety at fair value, with any change in fair value after initial measurement being recorded in the consolidated statement of operations and the
transaction costs were effectively immediately expensed.
The Group accounts for the warrants as a financial liability measured at fair value through profit or loss. In accordance with IAS 32, Financial
Instruments: Presentation, the Group determined that the warrants were precluded from equity classification, because while they contain no
contractual obligation to deliver cash or other financial instruments to the holders other than the Company’s own shares, the exercise prices of the
warrants are in US$ and not the Company’s functional currency and the Group allows for net settlement, which enables settlement for a variable
number of the Company’s ordinary shares. Therefore, the warrants do not meet the requirements that they be settled by the issuer exchanging a fixed
amount of cash or another financial asset for a fixed number of its own equity instruments.
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The group accounts for contingent consideration as a financial liability measured at fair value through profit or loss. The fair value of the contingent
consideration is presented as a component of accrued expenses and other liabilities on the consolidated statement of financial position. Changes to the
fair value of the contingent consideration are recorded as operating expenses within general and administrative expenses.
Subsequent measurements
Other financial liabilities
After initial recognition, payables are subsequently measured at amortized cost using the effective interest method. The effective interest method
amortization is included in finance costs in the consolidated statement of operations. Gains and losses are recognized in the consolidated statement of
operations when the liabilities are derecognized.
Payables are classified as current liabilities unless the Group has an unconditional right to defer settlement of the liability for at least 12 months after
the reporting date.
Financial liabilities at fair value through profit or loss
After initial recognition, financial liabilities at fair value through the profit or loss are subsequently re-measured at fair value at the end of each
reporting period with changes in fair value recognized in finance income or finance costs in the consolidated statement of operations.
Derecognition
Financial liabilities are derecognized when the obligation under the liability is discharged, cancelled, or expires.
(iii)
Fair value measurements
For financial assets and liabilities measured at fair value on a recurring basis, fair value is the price the Group would receive to sell an asset or pay to
transfer a liability in an orderly transaction with a market participant at the measurement date. In the absence of active markets for identical assets or
liabilities, such measurements involve developing assumptions based on market observable data and, in the absence of such data, internal information
that is consistent with what market participants would use in a hypothetical transaction that occurs at the measurement date. Observable inputs reflect
market data obtained from independent sources, while unobservable inputs reflect the Group’s market assumptions. All assets and liabilities for
which fair value is measured or disclosed in the consolidated financial statements are categorized within the fair value hierarchy, are described as
follows, based on the lowest level input that is significant to the fair value measurement as a whole:
•
•
•
Level 1: quoted (unadjusted) prices in active markets for identical assets or liabilities;
Level 2: other techniques for which inputs are based on quoted prices for identical or similar instruments in
markets that are not active, quoted prices for similar instruments in active markets, and model-based valuation
techniques for which all significant assumptions are observable in the market or can be corroborated by
observable market data for substantially the full term of the asset or liability;
Level 3: techniques which use inputs that have a significant effect on the recognized fair value that require the
Group to use its own assumptions about market participant assumptions.
The Group maintains policies and procedures to determine the fair value of financial assets and liabilities using what it considers to be the most
relevant and reliable market participant data available. It is the Group’s policy to maximize the use of observable inputs in the measurement of its
Level 3 fair value measurements. To the extent observable inputs are not available, the Group utilizes unobservable inputs based upon the
assumptions market participants would use in valuing the asset or liability. In determining the fair value of financial assets and liabilities employing
Level 3 inputs, the Group considers such factors as the current interest rate, equity market, currency and credit environments, expected future cash
flows, the probability of certain future events occurring, and other published data. The Group performs a variety of procedures to assess the
reasonableness of its fair value determinations including the use of third parties.
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(iv)
Foreign exchange forward contracts
The Group designates certain foreign exchange forward contracts as cash flow hedges when all the requirements in IFRS 9 Financial Instruments are
met. The Group recognizes these foreign exchange forward contracts as either assets or liabilities on the statement of financial position and are
measured at fair value at each reporting period. Assets and liabilities are offset and the net amount is presented in the statement of financial position
when the Group has a legally enforceable right to set off the recognized amounts and intends to settle on a net basis. The asset and liability positions
of the foreign exchange forward contracts are included in other current assets and derivative liabilities on the consolidated statement of financial
position, respectively. The Group reflects the gain or loss on the effective portion of a cash flow hedge as a component of equity and subsequently
reclassifies cumulative gains and losses to revenues or cost of revenues, depending on the risk hedged, when the hedged transactions impact the
statement of operations. If the hedged transactions become probable of not occurring, the corresponding amounts in other reserves are immediately
reclassified to finance income or costs. Foreign exchange forward contracts that do not meet the requirements in IFRS 9 Financial Instruments to be
designated as a cash flow hedge, are classified as derivative instruments not designated for hedging. The Group measures these instruments at fair
value with changes in fair value recognized in finance income or costs. Refer to Note 24.
(r)
Podcast content assets
The Group incurs costs to acquire, license, produce or commission podcasts primarily for inclusion on the Service, with some titles distributed more
broadly. We recognize podcast content assets as current assets in the consolidated statement of financial position and related cash flows are presented as operating
cash flows. Fees, including license fees, and the direct costs of production including employee compensation and production overheads, external production
services and participation minimum guarantees are capitalized. We often enter into multi-year commitments, however, the period between payments and receipt of
content is typically less than a year and no borrowing costs are included in direct costs.
Amortization of podcast content assets is recorded in cost of revenue over the shorter of the estimated useful economic life or the license period (if
relevant), and begins at the release of each episode. The economic life and expected amortization profile of podcast content assets is estimated by management
based on historical listening patterns and is evaluated on an ongoing basis. The Group’s podcast content assets are generally expected to be consumed in less than
three years, and typically, on an accelerated basis, as we expect more upfront listening in most cases.
(s)
Cash and cash equivalents and restricted cash
Cash and cash equivalents comprise cash on deposit at banks and on hand and highly liquid investments including money market funds with
maturities of three months or less at the date of purchase that are not subject to restrictions. Assets in money market funds, whose contractual cash flows do not
represent solely payments of interest and principal, are measured at fair value with gains and losses arising from changes in fair value included in the consolidated
statement of operations. See Note 24.
Cash deposits that have restrictions governing their use are classified as restricted cash, current or non-current, based on the remaining length of the
restriction. See Note 15.
(t)
Short term investments
The Group invests in a variety of instruments, such as commercial paper, corporate debt securities, collateralized reverse purchase agreements, and
government and agency debt securities. Part of these investments are held in short duration fixed income portfolios. The average duration of these instruments is
less than two years. All investments are governed by an investment policy and are held in highly-rated counterparties. Separate credit limits are assigned to each
counterparty in order to minimize risk concentration.
These investments are classified as debt instruments and are primarily carried at fair value with the unrealized gains and losses reported as a
component of equity. Management determines the appropriate classification of investments at the time of purchase and re-evaluates whether the investments pass
both the hold to collect and sell and solely payments of principal and interest tests. The short term investments with maturities greater than twelve months are
classified as short term when they are intended for use in current operations. The cost basis for investments sold is based upon the specific identification method.
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(u)
Long term investments
Long term investments consist primarily of non-controlling equity interests in public and private companies where the Group does not exercise
significant influence. The majority of the investments are classified as equity instruments carried at fair value through other comprehensive income. Refer to Note
24.
(v)
Share capital
Ordinary shares are classified as equity.
Equity instruments are initially measured at the fair value of the cash or other resources received or receivable, net of the direct costs of issuing the
equity instruments.
In 2018, the Group began repurchasing its ordinary shares. The cost of treasury shares repurchased is shown as a reduction to equity, within treasury
shares, on the statement of financial position. When treasury shares are sold, reissued, or retired, the amount received is reflected as an increase to equity based on
a weighted average cost, with any surplus or deficit recorded within Other paid in capital.
(w)
Share-based compensation
Employees of the Group receive remuneration in the form of share-based compensation transactions, whereby employees render services in
consideration for equity instruments.
The cost of equity-settled transactions with employees is determined by the fair value at the date of grant using an appropriate valuation model. The
cost is recognized in the consolidated statement of operations, together with a corresponding credit to other reserves in equity, over the period in which the
performance and service conditions are fulfilled.
The cumulative expense recognized for equity-settled transactions with employees at each reporting date until the vesting date reflects the Group’s
best estimate of the number of equity instruments that will ultimately vest. The expense for a period represents the movement in cumulative expense recognized at
the beginning and end of that period, and is recognized in employee share-based compensation. When the terms of an equity-settled transaction award are
modified, the minimum expense recognized is the expense as if the terms had not been modified, if the original terms of the award are met. An additional expense
is recognized for modifications that increase the total fair value of the share-based compensation transaction or are otherwise beneficial to the grantee as measured
at the date of modification. There were no material modifications to any share-based compensation transactions during 2020, 2019, and 2018.
Social costs are payroll taxes associated with employee salaries and benefits, including share-based compensation. Social costs in connection with
granted options and restricted stock units are accrued over the vesting period based on the intrinsic value of the award that has been earned at the end of each
reporting period. The amount of the liability reflects the amortization of the award and the impact of expected forfeitures. The social cost rate at which the accrual
is made generally follows the tax domicile within which other compensation charges for a grantee are recognized.
The assumptions and models used for estimating fair value for share-based compensation transactions are disclosed in Note 19.
In many jurisdictions, tax authorities levy taxes on share-based compensation transactions with employees that give rise to a personal tax liability for
the employee. In some cases, the Group is required to withhold the tax due and to settle it with the tax authority on behalf of the employees. To fulfil this
obligation, the terms of the Group’s restricted stock unit arrangements permit the Group to withhold the number of shares that are equal to the monetary value of
the employee’s tax obligation from the total number of shares that otherwise would have been issued to the employee upon vesting of the restricted stock unit. The
monetary value of the employee’s tax obligation is recorded as a deduction from Other reserves for the shares withheld.
(x)
Employee benefits
The Group provides defined contribution plans to its employees. The Group pays contributions to publicly and privately administered pension
insurance plans on a mandatory or contractual basis. The Group has no further payment obligations once the contributions have been paid. Contributions to defined
contribution plans are expensed when employees provide services. The Group’s post-employment schemes do not include any defined benefit plans.
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(y)
Provisions
Provisions are recognized when the Group has a present obligation (legal or constructive) as a result of a past event, it is probable that an outflow of
resources embodying economic benefits will be required to settle the obligation, and a reliable estimate can be made of the amount of the obligation.
New and amended standards and interpretations adopted by the Group
The IASB has issued amendments to the definition of a business in IFRS 3 Business Combinations to help entities determine whether or not an
acquired set of activities and assets is a business. It has also issued amendments to IAS 1 Presentation of Financial Statements and IAS 8 Accounting Policies to
align the definition of "material" across the standards and to clarify certain aspects of the definition. The Group has adopted these amendments as of January 1,
2020. There was no impact on the Group's accounting policies or the consolidated financial statements. There are no other IFRS or IFRIC interpretations effective
as of January 1, 2020 that have a material impact.
New standards and interpretations issued not yet effective
There are no IFRS or IFRS Interpretations Committee ("IFRIC") interpretations that are not effective that are expected to have a material impact.
3. Critical accounting estimates and judgments
The preparation of the consolidated financial statements requires management to make judgments, estimates, and assumptions that affect the reported
amounts of revenues, expenses, assets, liabilities, and equity in the consolidated financial statements and the accompanying disclosures. Estimates and judgments
are continually evaluated and are based on historical experience and other factors, including expectations of future events.
Uncertainty about these assumptions and estimates could result in outcomes that require a material adjustment to the carrying amount of assets or
liabilities affected in future periods.
The areas where assumptions and estimates are significant to the consolidated financial statements are:
(i)
(ii)
(iii)
(iv)
(v)
The Group measures the cost of equity-settled transactions with employees and non-employees by reference to the fair value of the
equity instruments at the date at which they are granted. Prior to April 3, 2018, the fair value was estimated using a model, which
required the determination of the appropriate inputs, specifically ordinary share price. Subsequent to the Group’s direct listing,
ordinary share price is no longer based on significant assumptions and estimates. The assumptions and models used for estimating
the fair value of share-based compensation transactions are disclosed in Note 19.
Prior to April 3, 2018, the fair value of the Group’s Convertible Notes, warrants, contingent options, and long term investments
were estimated using valuation techniques using inputs based on management’s judgment and conditions that existed at each
reporting date. On April 3, 2018, the Group derecognized the Convertible Notes and contingent options. Subsequent to December
12, 2018, the fair value of the Group’s investment in TME is based on inputs within Level 1 of the fair value hierarchy as disclosed
in Note 2. The assumptions and models used for estimating the fair value of the instruments are disclosed in Note 24.
The Group has recognized deferred tax assets for fiscal loss carry-forwards, tax credits and deductible temporary differences. At
period end, we assess whether there is convincing evidence that the Group will generate future taxable income against which
deferred tax assets can be utilized and, thus, that recovery is probable. See Note 10.
In accordance with the accounting policy described in Note 2, the Group annually performs an impairment test regarding goodwill.
The assumptions used for estimating fair value and assessing available headroom based on conditions that existed at the testing
date are disclosed in Note 14.
The Group’s agreements and arrangements with rights holders for the content used on its platform are complex. Some rights
holders have allowed the use of their content on the platform while negotiations of the terms and conditions or determination of
statutory rates are ongoing. In certain jurisdictions, rights holders have several years to claim royalties for musical composition,
and therefore, estimates of the royalty accruals are based on available information
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(vi)
(vii)
(viii)
and historical trends. The determination of royalty accruals requires complex IT systems and a significant volume of data as well
as significant judgements, assumptions, and estimates of the amounts to be paid. See Note 22.
Management makes significant assumptions and estimates when determining the amounts to record for provision for legal
contingencies. See Note 23.
In business combinations, the Group allocates the fair value of purchase consideration to the tangible assets acquired, liabilities
assumed, and intangible assets acquired based on their estimated fair values. The excess of the fair value of purchase consideration
over the fair values of these identified assets and liabilities is recorded as goodwill. Such valuations require management to make
significant estimates, assumptions, and judgments, especially with respect to intangible assets and contingent consideration. See
Note 5.
As most of the Group's lease agreements do not provide an implicit rate of return, the Group uses its incremental borrowing rate
based on the information available at the lease commencement date to determine the present value of lease payments. For the
Group’s lease agreements that existed prior to the adoption date of IFRS 16, the Group determined its incremental borrowing rate
as of January 1, 2019. The Group's incremental borrowing rate is determined based on estimates and judgments, including the
credit rating of the Group's leasing entities and a credit spread. See Note 2 and 12.
(ix)
Uncertain tax positions
In determining the amount of current and deferred income tax, the Group takes into account the impact of uncertain tax positions
and whether additional taxes, interest or penalties may be due. This assessment relies on estimates and assumptions and may
involve a series of judgments about future events. New information may become available that causes the Group to change its
judgment regarding the adequacy of existing tax liabilities. Such changes to tax liabilities will impact tax expense in the period that
such a determination is made. See Note 10.
4. Revenue recognition
Revenue from contracts with customers
(i)
(ii)
Disaggregated revenue
The Group discloses revenue by reportable segment and geographic area in Note 6.
Performance obligations
The Group discloses its policies for how it identifies, satisfies, and recognizes its performance obligations associated with its contracts with
customers in Note 2.
(iii)
Contract liabilities
The Group’s contract liabilities from contracts with customers consist primarily of deferred revenue. Deferred revenue is mainly comprised of
subscription fees collected for services not yet performed, and therefore, the revenue has not been recognized. Revenue is recognized over time as the services are
performed. As of December 31, 2020 and 2019, the Group had deferred revenue of €380 million and €319 million, respectively. The increase in deferred revenue
in 2020 is primarily a result of an increase in the number of Premium Subscribers. This balance will be recognized as revenue as the services are performed, which
is generally expected to occur over a period up to a year.
Revenue recognized that was included in the contract liability balance at the beginning of the years ended December 31, 2020, 2019, and 2018 is
€301 million, €248 million, and €210 million, respectively.
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5. Business combinations
The following sections describe the Group’s material acquisitions during the years ended December 31, 2020 and 2019.
Bill Simmons Media Group, LLC
On March 6, 2020, the Group acquired 100% of Bill Simmons Media Group, LLC (“The Ringer”), a leading creator of sports, entertainment, and pop
culture content. The acquisition allows the Group to expand its content offering, audience reach, and podcast monetization.
The fair value of the purchase consideration was €170 million, comprising €138 million in cash paid at closing and a liability of €32 million, being
the present value of payments of €44 million over five years. The acquisition was accounted for under the acquisition method. Of the total purchase consideration,
€140 million has been recorded to goodwill, €26 million to acquired intangible assets, €1 million to cash and cash equivalents, and €3 million to other tangible net
assets. The Group incurred €3 million in acquisition related costs, which were recognized as general and administrative expenses.
The goodwill represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate
recognition, including an increase in content development capabilities, an experienced workforce, and expected future synergies. The goodwill recognized is
expected to be deductible for tax purposes. The goodwill was included in the Ad-Supported segment.
The intangible assets, which consist of trade names, were valued by the Group using the relief from royalty method under the income approach. The
relief from royalty method is based on the application of a royalty rate to forecasted revenue under the trade names. The assets have useful lives ranging from five
to eight years.
In addition to the purchase consideration, there are cash payments of €47 million that are contingent on the continued employment of certain Ringer
employees. In addition, €12 million of equity instruments were offered to and accepted by certain Ringer employees, which have vesting conditions contingent on
continued employment and are accounted for as equity-settled share-based compensation transactions. These cash payments and share-based compensation
transactions are recognized as post-combination expense over employment service periods of up to five years, if not forfeited by the employees.
Megaphone LLC
On December 8, 2020, the Group acquired 100% of Megaphone LLC (“Megaphone”), a podcast technology company that provides hosting and ad-
insertion capabilities for publishers and targeted advertising sales for brand partners. The acquisition allows the Group to expand and scale its podcast monetization
and product offering for advertisers.
The fair value of the purchase consideration was €195 million in cash paid at closing. The acquisition was accounted for under the acquisition
method. Of the total purchase consideration, €164 million has been recorded to goodwill, €22 million to acquired intangible assets, €14 million to trade and other
receivables, €1 million to cash and cash equivalents, and €6 million to other tangible net liabilities. The Group incurred €2 million in acquisition related costs,
which were recognized as general and administrative expenses.
The goodwill represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate
recognition, including expected future synergies and technical expertise of the acquired workforce. The goodwill recognized is expected to be deductible for tax
purposes. The goodwill was included in the Ad-Supported segment.
The intangible assets acquired relate to existing technology and publisher relationships, which have a useful life of five and ten years, respectively.
The Group valued the existing technology and publishers relationships using the relief from royalty method and discounted cash flow method, respectively, under
the income approach.
In addition to the purchase consideration, €6 million of equity instruments were offered to and accepted by Megaphone employees, which have
vesting conditions contingent on continued employment and are accounted for as equity-settled share-based compensation transactions. These share-based
compensation transactions are recognized as post-combination expense over employment service periods of up to four years, if not forfeited by the employees.
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Anchor FM Inc.
On February 14, 2019, the Group acquired Anchor FM Inc. (“Anchor”), a software company that enables users to create and distribute their own
podcasts. The acquisition allows the Group to leverage Anchor’s creator-focused platform to accelerate the Group’s path to becoming the world’s leading audio
platform.
The total purchase consideration was €136 million, which consisted of €125 million in cash and €11 million related to the fair value of partially
vested share-based compensation awards replaced. The replacement of Anchor’s share-based compensation awards with share-based compensation awards of the
Company has been measured in accordance with IFRS 2, Share-based Payment, at the acquisition date. The acquisition was accounted for under the acquisition
method. Of the total purchase consideration, €126 million has been recorded to goodwill, €9 million to acquired intangible assets, €2 million to deferred tax
liabilities, €4 million to cash and cash equivalents, and €1 million to other liabilities. The Group incurred €1 million in acquisition related costs, which were
recognized as general and administrative expenses.
The goodwill represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate
recognition, including expected future synergies and technical expertise of the acquired workforce. None of the goodwill recognized is expected to be deductible
for tax purposes. The goodwill was included in the Ad-Supported segment.
The intangible assets acquired primarily relate to existing technology and have a useful life of 3 years. The Group valued the existing technology
using the replacement cost method under the cost approach.
Included in the arrangement are €20 million of equity instruments granted to certain employees that have vesting conditions contingent on continued
employment and are accounted for as equity-settled share-based compensation transactions. Of the value of these instruments, €11 million is included in purchase
consideration as discussed above, with the remaining amount of up to €9 million to be recorded as post-combination expense over service periods of up to four
years, if not forfeited by the employees.
Gimlet Media Inc.
On February 15, 2019, the Group acquired Gimlet Media Inc. (“Gimlet”), an independent producer of podcast content. The acquisition allows the
Group to leverage Gimlet’s in-depth knowledge of original content production and podcast monetization.
The total purchase consideration was €172 million, which consisted of €170 million in cash and €2 million related to the fair value of partially vested
share-based compensation awards replaced. The replacement of Gimlet’s share-based compensation awards with share-based compensation awards of the
Company has been measured in accordance with IFRS 2, Share-based Payment, at the acquisition date.
The acquisition was accounted for under the acquisition method. Of the total purchase consideration, €148 million has been recorded to goodwill,
€15 million to acquired intangible assets, €5 million to deferred tax liabilities, €3 million to cash and cash equivalents, €3 million to content assets and €8 million
to other tangible net assets. The Group incurred €3 million in acquisition related costs, which were recognized as general and administrative expenses.
The goodwill represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate
recognition, including an increase in content development capabilities, an experienced workforce, and expected future synergies. None of the goodwill recognized
is expected to be deductible for tax purposes. The goodwill was included in the Ad-Supported segment.
The intangible assets and the content assets were valued by the Group using the relief from royalty method and the discounted cash flow method,
respectively, both under the income approach. The relief from royalty method is based on the application of a royalty rate to forecasted revenue under the trade
names. The assets have useful lives ranging from two to eight years.
Included in the arrangement are payments that are contingent on continued employment. The payments are recognized as remuneration for post-
combination services and are automatically forfeited if employment terminates. A total of up to €40 million of post-combination cash pay-outs will be recorded as
compensation expense over a service period of up to four years.
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Table of Contents
Cutler Media, LLC
On April 1, 2019, the Group acquired Cutler Media, LLC (“Parcast”), a premier storytelling podcast studio. The acquisition allows the Group to
bolster its content portfolio and utilize Parcast’s writers, producers, and researchers in the production of high-quality content.
The total purchase consideration was €49 million, which consisted of €36 million in cash and €13 million related to the estimated fair value of
contingent consideration. The maximum potential contingent consideration is €43 million over three years following the date of acquisition, which is dependent on
certain user engagement targets. The fair value of the contingent consideration is presented as a component of accrued expenses and other liabilities on the
consolidated statement of financial position. The contingent consideration was valued by the Group using a simulation of user engagement outcomes under the
income approach. Changes to the fair value of the contingent consideration will be recorded as operating expenses within general and administrative expenses.
The acquisition was accounted for under the acquisition method. Of the total purchase consideration, €46 million has been recorded to goodwill, €2
million to acquired intangible assets, and €1 million to content assets. The Group incurred €1 million in acquisition related costs, which were recognized as general
and administrative expenses.
The goodwill represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate
recognition, including an increase in content development capabilities, an experienced workforce, and expected future synergies. The goodwill recognized is
expected to be deductible for tax purposes. The goodwill was included in the Ad-Supported segment.
The intangibles assets and the content assets were valued by the Group using the relief from royalty method and the discounted cash flow method,
respectively, both under the income approach. The relief from royalty method is based on the application of a royalty rate to forecasted revenue under the trade
names. The assets have useful lives ranging from two to six years.
Included in the arrangement are payments that are contingent on continued employment. The payments are recognized as remuneration for post-
combination services and are automatically forfeited if employment terminates. A total of up to €10 million of post-combination cash pay-outs will be recorded as
compensation expense over a service period of up to four years.
Revenues and operating results of acquired businesses for the years ended December 31, 2020, 2019 or 2018 were not significant, individually or in
the aggregate, to the Group’s consolidated statement of operations. The amount for business combinations, net of cash acquired, within the consolidated statement
of cash flows for the year ended December 31, 2020 includes €3 million and €2 million of investing cash outflows for payments of contingent and deferred
consideration, respectively.
6. Segment information
The Group has two reportable segments: Premium and Ad-Supported. The Premium Service is a paid service in which customers can listen on-
demand and offline. Revenue for the Premium segment is generated through subscription fees. The Ad-Supported Service is free to the user. Revenue for the Ad-
Supported segment is primarily generated through the sale of advertising across the Group's music and podcast content. Royalty costs are primarily recorded in
each segment based on specific rates for each segment agreed to with rights holders. Effective January 1, 2020, all podcast content costs are recorded in the Ad-
Supported segment. Certain reclassifications have been made to the amounts for prior year in order to conform to the current year's presentation. The remaining
royalties that are not specifically associated to either of the segments are allocated based on user activity or the revenue recognized in each segment. The operations
of businesses acquired during each of the years ended December 31, 2019 and 2020 are included in the Ad-Supported segment. No operating segments have been
aggregated to form the reportable segments.
Key financial performance measures of the segments including revenue, cost of revenue, and gross profit are as follows:
F-25
Table of Contents
Premium
Revenue
Cost of revenue
Gross profit
Ad-Supported
Revenue
Cost of revenue
Gross profit
Consolidated
Revenue
Cost of revenue
Gross profit
2020
2019
(in € millions)
2018
7,135
5,126
2,009
745
739
6
7,880
5,865
2,015
6,086
4,443
1,643
678
599
79
6,764
5,042
1,722
4,717
3,451
1,266
542
455
87
5,259
3,906
1,353
Reconciliation of gross profit
Operating expenses, finance income, and finance costs are not allocated to individual segments as these are managed on an overall group basis. The
reconciliation between reportable segment gross profit to the Group’s loss before tax is as follows:
Segment gross profit
Research and development
Sales and marketing
General and administrative
Finance income
Finance costs
Share in losses of associate
Loss before tax
Revenue by country
United States
United Kingdom
Luxembourg
Other countries
2020
2019
(in € millions)
2018
2,015
(837)
(1,029)
(442)
94
(510)
—
(709)
1,722
(615)
(826)
(354)
275
(333)
—
(131)
2020
2019
(in € millions)
2018
2,947
836
5
4,092
7,880
2,542
727
4
3,491
6,764
1,353
(493)
(620)
(283)
455
(584)
(1)
(173)
1,973
576
3
2,707
5,259
Premium revenue is attributed to a country based on where the membership originates. Ad-Supported revenue is attributed to a country based on
where the advertising campaign is viewed. There are no countries that individually make up greater than 10% of total revenue included in “Other countries.”
Non-current assets by country
Non-current assets for this purpose consists of property and equipment and lease right-of-use assets.
F-26
Table of Contents
Sweden
United States
United Kingdom
Other countries
2020
2019
(in € millions)
2018
151
504
65
37
757
154
525
79
22
780
As of December 31, 2020, 2019, and 2018, the Group held no property and equipment in Luxembourg.
7. Personnel expenses
Wages and salaries
Social costs
Contributions to retirement plans
Share-based compensation
Other employee benefits
Average full-time employees
8. Auditor remuneration
Auditor fees
9. Finance income and costs
Finance income
Fair value movements on derivative liabilities (Note 24)
Interest income
Other financial income
Foreign exchange gains
Total
Finance costs
Fair value movements on derivative liabilities (Note 24)
Fair value movements on Convertible Notes (Note 24)
Interest expense on lease liabilities
Interest, bank fees and other costs
Foreign exchange losses
Total
29
142
19
7
197
409
90
20
88
60
667
3,651
2020
2019
(in € millions, except
employee data)
2018
694
265
32
176
97
1,264
5,584
541
111
26
122
88
888
4,405
2020
2019
(in € millions)
2018
5
5
4
2020
2019
(in € millions)
2018
49
17
8
20
94
(307)
—
(41)
(13)
(149)
(510)
182
31
1
61
275
(235)
—
(38)
(5)
(55)
(333)
376
25
11
43
455
(360)
(201)
—
(6)
(17)
(584)
F-27
Table of Contents
10. Income tax
Current tax expense
Current year
Changes in estimates in respect to prior year
Deferred tax (benefit)/expense
Temporary differences
Change in recognition of deferred tax
Change in tax rates
Income tax (benefit)/expense
2020
2019
(in € millions)
2018
25
(9)
16
(137)
(7)
—
(144)
(128)
45
(1)
44
27
(17)
1
11
55
41
—
41
(123)
(14)
1
(136)
(95)
For the years ended December 31, 2020, 2019, and 2018, the Group recorded an income tax (benefit)/expense of €163 million, €(31) million, and
€147 million, respectively, in other comprehensive (loss)/income related to components of other comprehensive (loss)/income.
In 2020, the Group recognized current income tax expense of €4 million for uncertain tax positions and has cumulatively recorded liabilities of €5
million for uncertain tax positions at December 31, 2020, of which none is reasonably expected to be resolved within twelve months.
A reconciliation between the reported tax expense for the year, and the theoretical tax expense that would arise when applying the statutory tax rate in
Luxembourg of 24.94%, 24.94%, and 26.01%, to the consolidated loss before taxes for the years ended December 31, 2020, 2019, and 2018, respectively, is shown
in the table below:
Loss before tax
Tax using the Luxembourg tax rate
Effect of tax rates in foreign jurisdictions
Permanent differences
Change in unrecognized deferred taxes
Adjustments in respect of previous years
Other
Income tax (benefit)/expense
2020
2019
(in € millions)
2018
(709)
(177)
12
54
(9)
(9)
1
(128)
(131)
(33)
2
58
29
(1)
—
55
(173)
(45)
(11)
(7)
(43)
11
(95)
The Group will be subject to tax in future periods as a result of foreign exchange movements between USD, EUR, and SEK, primarily related to its
investment in TME.
F-28
Table of Contents
The major components of deferred tax assets and liabilities are comprised of the following:
Intangible assets
Share-based compensation
Tax losses carried forward
Property and equipment
Unrealized gains
Other
Net deferred tax
A reconciliation of net deferred tax is shown in the table below:
At January 1
Movement recognized in consolidated statement of
operations
Movement recognized in consolidated statement of
changes in equity and other comprehensive income
Movement due to acquisition
At December 31
2020
2019
(in € millions)
(61)
27
224
91
(276)
10
15
2020
2019
(in € millions)
2018
7
144
(136)
—
15
6
(11)
18
(6)
7
(42)
14
78
79
(126)
4
7
6
136
(136)
—
6
Deferred tax assets and deferred tax liabilities are offset if a legally enforceable right exists to set off current tax assets against current tax liabilities
and the deferred taxes relate to the same taxable entity and the same taxation authority.
Reconciliation to consolidated statement of financial position
Deferred tax assets
Deferred tax liabilities
2020
2019
(in € millions)
15
—
9
2
Deferred tax assets have not been recognized in respect of the following items, because it is not probable that future taxable profit will be available
against which the Group can use the benefits. Certain prior year amounts have been reclassified to conform to current year presentation.
Intangible assets
Share-based compensation
Tax losses carried forward
Tax credits carried forward
Unrealized losses
Other
2020
2019
(in € millions)
72
198
201
28
1
35
535
77
58
192
14
3
33
377
At December 31, 2020, no deferred tax liability had been recognized on investments in subsidiaries. The Company has concluded it has the ability
and intention to control the timing of any distribution from its subsidiaries. There are no distributions planned in the foreseeable future. It is not practicable to
calculate the unrecognized deferred tax liability on investments in subsidiaries.
Tax loss and credit carry-forwards as at December 31, 2020 were expected to expire as follows:
F-29
Table of Contents
Expected expiry
2021 - 2030
2031 and onwards
Unlimited
Total
Tax loss carry-forwards
Research and development credit carry-forward
Foreign tax credits
—
—
2
(in € millions)
695
28
—
1,501
—
—
2,196
28
2
The Group has significant net operating loss carry-forwards in the United States and Sweden. In certain jurisdictions, if the Group is unable to earn
sufficient income or profits to utilize such carry-forwards before they expire, they will no longer be available to offset future income or profits.
In Sweden, utilization of these net operating loss carry-forwards may be subject to a substantial annual limitation if there is an ownership change
within the meaning of Chapter 40, paragraphs 10-14, of the Swedish Income Tax Act (the “Swedish Income Tax Act”). In general, an ownership change, as
defined by the Swedish Income Tax Act results from a transaction or series of transactions over a five-year period resulting in an ownership change of more than
50% of the outstanding stock of a company by certain categories or individuals, businesses or organizations.
In addition, in the United States, utilization of these net operating loss carry-forwards may be subject to a substantial annual limitation if there is an
ownership change within the meaning of Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change, as defined by Section 382,
results from a transaction or series of transactions over a three-year period resulting in an ownership change of more than 50% of the outstanding stock of a
company by certain stockholders or public groups. Since the Group formation, the Group has raised capital through the issuance of capital stock on several
occasions, and the Group may continue to do so, which, combined with current or future shareholders’ disposition of ordinary shares, may have resulted in such an
ownership change. Such an ownership change may limit the amount of net operating loss carry-forwards that can be utilized to offset future taxable income.
The Group’s most significant tax jurisdictions are Sweden and the U.S. (both at the federal level and in various state jurisdictions). Because of its tax
loss and tax credit carry-forwards, substantially all of the Group’s tax years after 2012 remain open to federal, state, and foreign tax examination. Certain of the
Group’s subsidiaries are currently under examination by the Swedish, U.S. and other foreign tax authorities for tax years from 2013-2018. These examinations may
lead to adjustments to the Group’s taxes.
The Group has initiated and is in negotiations for an Advanced Pricing Agreement (“APA) between Sweden and the United States governments for
the tax years 2014 through 2020 covering various transfer pricing matters. These transfer pricing matters may be significant to the consolidated financial
statements.
11. Loss per share
Basic loss per share is computed using the weighted-average number of outstanding ordinary shares during the period. Diluted loss per share is
computed using the treasury stock method to the extent that the effect is dilutive by using the weighted-average number of outstanding ordinary shares and
potential ordinary shares during the period. The Group’s potential ordinary shares consist of incremental shares issuable upon the assumed exercise of stock
options and warrants, and the incremental shares issuable upon the assumed vesting of unvested restricted stock units, restricted stock awards, and other
contingently issuable shares, excluding all anti-dilutive ordinary shares outstanding during the period. The Group used the if-converted method to calculate the
dilutive impact of the warrants and adjusted the numerator for changes in profit or loss. The computation of loss per share for the respective periods is as follows:
F-30
Table of Contents
Basic loss per share
Net loss attributable to owners of the parent
Shares used in computation:
Weighted-average ordinary shares outstanding
Basic net loss per share attributable to owners of the parent
Diluted loss per share
Net loss attributable to owners of the parent
Fair value gains on dilutive warrants
Net loss used in the computation of diluted loss per share
Shares used in computation:
Weighted-average ordinary shares outstanding
Warrants
Diluted weighted average ordinary shares
Diluted net loss per share attributable to owners of the parent
2020
2019
(in € millions, except share and per share data)
2018
(581)
(186)
(78)
187,583,307
(3.10)
180,960,579
(1.03)
177,154,405
(0.44)
(581)
—
(581)
187,583,307
—
187,583,307
(3.10)
(186)
—
(186)
180,960,579
—
180,960,579
(1.03)
(78)
(14)
(92)
177,154,405
4,055,887
181,210,292
(0.51)
Potential dilutive securities that were not included in the diluted per share calculations because they would be anti-dilutive were as follows:
Employee options
Restricted stock units
Restricted stock awards
Other contingently issuable shares
Warrants
12. Leases
2020
9,041,288
1,320,193
—
156,190
800,000
2019
12,153,772
638,350
41,280
162,320
2,400,000
2018
12,243,526
100,383
61,880
—
—
On January 1, 2019, the Group adopted IFRS 16, and all related amendments, using the modified retrospective transition method, under which the
cumulative effect of initial application is recognized in accumulated deficit at January 1, 2019.
The Group leases certain properties under non-cancellable lease agreements that relate to office space. The expected lease terms are between one and
fourteen years. The Group currently does not act in the capacity of a lessor.
F-31
(in € millions)
Table of Contents
Below is the roll-forward of lease right-of-use assets:
Right of use assets
Cost
At January 1, 2019
Increases
Acquired in business combinations
Decreases
Exchange differences
At December 31, 2019
Increases
Acquired in business combinations
Decreases
Exchange differences
At December 31, 2020
Accumulated depreciation
At January 1, 2019
Depreciation charge
Decreases
Exchange differences
At December 31, 2019
Depreciation charge
Decreases
Exchange differences
At December 31, 2020
Cost, net accumulated depreciation
At December 31, 2019
At December 31, 2020
Below is the roll-forward of lease liabilities:
Lease liabilities
2020
2019
(1)
At January 1
Increases
Acquired in business combinations
Payments
Interest expense
Decreases
Lease incentives received
Increases in lease incentives receivable
Exchange differences
(1)
At December 31
(1)
Included within the consolidated statement of cash flows
F-32
(in € millions)
628
32
3
(79)
41
—
20
(1)
(36)
608
471
138
11
(39)
6
587
29
3
(3)
(35)
581
(75)
(42)
21
(2)
(98)
(49)
3
7
(137)
489
444
541
147
11
(54)
38
(28)
15
(47)
5
628
Table of Contents
Below is the maturity analysis of lease liabilities:
Lease liabilities
Maturity Analysis
Less than one year
One to five years
More than five years
Total lease commitments
Impact of discounting remaining lease payments
Lease incentives receivable
Total lease liabilities
Lease liabilities included in the consolidated
statement of financial position
Current
Non-current
Total
December 31, 2020
(in € millions)
79
329
480
888
(290)
10
608
31
577
608
Excluded from the lease commitments above are short-term leases. Expenses relating to short term leases were approximately €9 million and €14
million for the year ended December 31, 2020 and 2019, respectively. Additionally, the Group has entered into certain lease agreements with approximately €12
million of commitments, which have not commenced as of December 31, 2020, and as such, have not been recognized in the consolidated statement of financial
position.
The weighted average incremental borrowing rate applied to lease liabilities recognized in the statement of financial position as of December 31,
2020 and December 31, 2019 was 5.4% and 6.4%, respectively.
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Table of Contents
13. Property and equipment
Cost
At January 1, 2019
Additions
Acquired in business combinations
Disposals
Exchange differences
At December 31, 2019
Additions
Disposals
Exchange differences
At December 31, 2020
Accumulated depreciation
At January 1, 2019
Depreciation charge
Impairment charge
Disposals
Exchange differences
At December 31, 2019
Depreciation charge
Disposals
Exchange differences
At December 31, 2020
Cost, net accumulated depreciation
At December 31, 2019
At December 31, 2020
Property
and
equipment
Leasehold
improvements
(in € millions)
Total
61
20
1
(29)
1
54
6
(1)
(3)
56
(50)
(8)
—
30
(1)
(29)
(9)
—
2
(36)
25
20
216
106
5
(38)
6
295
73
(1)
(21)
346
(30)
(21)
(6)
28
—
(29)
(28)
1
3
(53)
266
293
277
126
6
(67)
7
349
79
(2)
(24)
402
(80)
(29)
(6)
58
(1)
(58)
(37)
1
5
(89)
291
313
For the year ended December 31, 2019, the Group recognized a €6 million impairment charge on leasehold improvements upon termination of the
associated lease agreement. There were no impairment charges recognized for the year ended December 31, 2020.
The Group had €59 million and €15 million of leasehold improvements that were not placed into service as of December 31, 2020 and 2019,
respectively.
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Table of Contents
14. Goodwill and intangible assets
Cost
At January 1, 2019
Additions
Acquisition, business combination (Note 5)
Exchange differences
At December 31, 2019
Additions
Acquisition, business combination (Note 5)
Exchange differences
At December 31, 2020
Accumulated amortization
At January 1, 2019
Amortization charge
Exchange differences
At December 31, 2019
Amortization charge
Exchange differences
At December 31, 2020
Cost, net accumulated amortization
At December 31, 2019
At December 31, 2020
Internal
development
costs and
patents
Acquired
intangible
assets
Total
(in € millions)
Goodwill
Total
26
19
—
—
45
19
—
—
64
(12)
(7)
—
(19)
(12)
—
(31)
26
33
21
—
27
(1)
47
—
48
(4)
91
(7)
(9)
1
(15)
(13)
1
(27)
32
64
47
19
27
(1)
92
19
48
(4)
155
(19)
(16)
1
(34)
(25)
1
(58)
58
97
146
—
328
4
478
—
304
(46)
736
—
—
—
—
—
—
—
478
736
193
19
355
3
570
19
352
(50)
891
(19)
(16)
1
(34)
(25)
1
(58)
536
833
Amortization charges related to intangible assets of €18 million, €14 million and €11 million in 2020, 2019, and 2018, respectively, is included in
research and development in the consolidated statement of operations. Research and development costs that are not eligible for capitalization have been expensed
in the period incurred.
Goodwill is tested for impairment on an annual basis or when there are indications the carrying amount may be impaired. Goodwill is allocated to the
Group’s two operating segments, Premium and Ad-Supported, based on the segment that is expected to benefit from the business combination. The Group
monitors goodwill at the operating segment level for internal purposes, consistent with the way it assesses performance and allocates resources. The carrying
amount of goodwill allocated to each of the operating segments is as follows:
Goodwill
Valuation methodology
Premium
2020
Ad-Supported
2020
Premium
2019
Ad-Supported
2019
125
(in € millions)
611
130
348
The Group performed its annual impairment test in the fourth quarter of 2020. The recoverable amount of the Premium and Ad-Supported operating
segments are assessed using a fair value less costs of disposal (“FVLCD”) model. The FVLCD valuation is considered a level 3 in the fair value hierarchy, as it
uses significant unobservable inputs. FVLCD is calculated using both the income and market approaches. The income approach is calculated by discounting the
projected cash flows of each of the operating segments. The market valuation is calculated by applying the third quartile multiple from comparable publicly traded
companies to the average revenue of the preceding and forecast twelve months, before and after the date of the impairment test, respectively. As a result of the
analysis, the FVLCD for the Premium and Ad-Supported operating segments was determined to be in excess of their carrying amounts.
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Table of Contents
Key assumptions used in the FVLCD calculations at the impairment testing date
In 2020, the Group weighted the income and market approaches 50% and 50%, respectively, for each of its operating segments. The key assumptions
used in the income approach was the discount rate based on the weighted-average cost of capital. The discount rate was 8.0% and 8.5% for the Group’s Premium
and Ad-Supported segments, respectively. The key assumptions used in the market approach were the revenue multiples for comparable companies, which were
selected based on industry similarity, financial risk, and size of each of the Group’s operating segments. Revenue multiples used in the market approach ranged
from 4.0 to 6.5.
There are no reasonably possible changes in the key assumptions that would result in the operating segments’ carrying amounts exceeding their
recoverable amounts.
15. Restricted cash and other non-current assets
Restricted cash
Lease deposits and guarantees
Other
Other non-current assets
16. Trade and other receivables
Trade receivables
Less: allowance for expected credit losses
Trade receivables – net
Other
2020
2019
(in € millions)
48
1
29
78
2020
2019
(in € millions)
323
(4)
319
145
464
54
1
14
69
302
(5)
297
105
402
Trade receivables are non-interest bearing and generally have 30-day payment terms. Due to their comparatively short maturities, the carrying value
of trade and other receivables approximate their fair value.
The aging of the Group’s net trade receivables is as follows:
Current
Overdue 1 – 30 days
Overdue 31 – 60 days
Overdue 60 – 90 days
Overdue more than 90 days
The movements in the Group’s allowance for expected credit losses are as follows:
At January 1
Provision for expected credit losses
Reversal of unutilized provisions
Receivables written off
At December 31
F-36
2020
2019
(in € millions)
218
62
26
8
5
319
2020
2019
(in € millions)
5
7
(5)
(3)
4
209
51
19
10
8
297
8
12
(12)
(3)
5
Table of Contents
The maximum exposure to credit risk at the reporting date is the carrying value of each class of receivables mentioned above. The Group does not
hold any collateral as security.
17. Other current assets
Content assets
Prepaid expenses and other
Derivative assets
2020
2019
(in € millions)
92
47
12
151
24
36
8
68
Content asset amortization of €48 million, €20 million, and €8 million is included in cost of revenue in the consolidated statement of operations for
the year ended December 31, 2020, 2019, and 2018, respectively.
18. Issued share capital and other reserves
As at each of December 31, 2020, 2019, and 2018, the authorized and subscribed share capital was comprised of 403,032,520 shares, at a par value
€0.000625 each. As at December 31, 2020, 2019, and 2018, the Company had 193,614,910, 187,492,667, and 183,901,040 ordinary shares issued and fully paid,
respectively.
The Group has incentive stock plans under which options and restricted stock to subscribe to the Company’s share capital have been granted to
executives and certain employees. Options exercised or restricted stock vesting under these plans are settled via either the issuance of new shares or issuance of
shares from treasury.
On October 17, 2016, the Group issued, for €27 million in cash, warrants to acquire 5,120,000 ordinary shares to certain members of key
management. The exercise price of each warrant was US$50.61, which was equal to 1.2 times the fair market value of ordinary shares on the date of issuance. On
October 4, 2019, the Company issued 1,600,000 ordinary shares upon the exercise of 1,600,000 of these warrants, for cash of €74 million. On October 17, 2019,
the Company issued 1,991,627 shares upon the effective net settlement of the remaining 3,520,000 warrants.
On July 13, 2017, the Group issued, for €9 million in cash, a warrant to acquire 1,600,000 ordinary shares to a holder that is an employee and a
member of management of the Group. The exercise price of each warrant is US$89.73, which was equal to 1.3 times the fair market value of ordinary shares on the
date of issuance. On July 13, 2020, the Company issued 1,084,043 ordinary shares and 10,840,430 beneficiary certificates upon the effective net settlement of all
1,600,000 outstanding warrants that were granted on July 13, 2017.
On December 15, 2017, the Group issued 8,552,440 ordinary shares in exchange for a non-controlling equity interest in TME valued at €910 million.
For further details, please see Note 24. The ordinary shares issued are subject to certain transfer restrictions for a period of up to three years from December 15,
2017, subject to limited exceptions, including transfers with the Group’s prior consent; transfers to certain permitted transferees; transfers pursuant to a tender offer
or exchange offer recommended by the Group’s board of directors for a majority of the Group’s issued and outstanding securities; transfers pursuant to mergers,
consolidations, or other business combination transactions approved by the Group’s board of directors; transfers to the Group or any of its subsidiaries; or transfers
that are necessary to avoid regulation as an “investment company” under the U.S. Investment Company Act of 1940, as amended.
On December 15 and 29, 2017, the Group entered into exchange agreements with holders of a portion of its Convertible Notes, pursuant to which the
Group exchanged an aggregate of US$411 million in principal of Convertible Notes, plus accrued interest of US$37 million, for an aggregate of 6,554,960
ordinary shares.
In January 2018, the Group entered into an exchange agreement with holders of the remaining balance of its Convertible Notes, pursuant to which the
Group exchanged the remaining of US$628 million of Convertible Notes, plus accrued interest, for 9,431,960 ordinary shares.
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Table of Contents
On February 16, 2018, the Company issued 10 beneficiary certificates per ordinary share held of record to entities beneficially owned by the Group’s
founders, Daniel Ek and Martin Lorentzon. The beneficiary certificates carry no economic rights and are issued to provide the holders of such beneficiary
certificates with additional voting rights. The beneficiary certificates, subject to certain exceptions, are non-transferable and shall be automatically canceled for no
consideration in the case of sale or transfer of the ordinary share to which they are linked. The Company may issue additional beneficiary certificates under the
total authorized amount at the discretion of its Board of Directors, of which the Group’s founders are members.
On April 3, 2018, the Group completed a direct listing of the Company’s ordinary shares on the NYSE. Upon the direct listing, the option for the
Convertible Noteholders to unwind the January 2018 exchange transaction expired and, as a result, the Company reclassified the Convertible Notes balance of €1.1
billion to Other paid in capital within Equity.
On November 5, 2018, the Company announced that it would commence a share repurchase program beginning in the fourth quarter of 2018.
Repurchases of up to 10,000,000 of the Company’s ordinary shares have been authorized by the Company’s general meeting of shareholders and the Board of
Directors approved such repurchase up to the amount of US$1.0 billion. The authorization to repurchase will expire on April 21, 2021 unless renewed by decision
of a general meeting of shareholders of the Company. Through December 31, 2020, there have been 4,366,427 shares repurchased for €510 million under this
program.
On July 1, 2019, the Group issued, for €15 million in cash, a warrant to acquire 800,000 ordinary shares to a holder that is an employee and a
member of management of the Group. The exercise price of each warrant is US$190.09, which was equal to 1.3 times the fair market value of ordinary shares on
the date of issuance. The warrants are exercisable at any time through July 1, 2022.
No dividends were paid during the year or are proposed.
All outstanding shares have equal rights to vote at general meetings.
For the year ended December 31, 2020 and 2019, the Company repurchased, in total, 5,038,200 and 3,679,156 of its own ordinary shares,
respectively, and reissued 4,802,847 and 3,557,405 treasury shares, respectively, upon the exercise of stock options, restricted stock units, and contingently
issuable shares. As of December 31, 2020 and 2019, the Company had 3,402,063 and 3,166,710 ordinary shares held as treasury shares, respectively.
As of December 31, 2020 and 2019, the Group’s founders held 365,014,840 and 378,201,910 beneficiary certificates, respectively.
F-38
Table of Contents
Other reserves
Currency translation
At January 1
Currency translation
Gains reclassified to consolidated statement of operations
At December 31
Short term investments
At January 1
Gains/(losses) on fair value that may be subsequently reclassified
to consolidated statement of operations
(Gains)/losses reclassified to consolidated statement of operations
Deferred tax
At December 31
Long term investments
At January 1
Gains/(losses) on fair value not to be subsequently reclassified
to consolidated statement of operations
Deferred tax
At December 31
Cash flow hedges
At January 1
Gains/(losses) on fair value that may be subsequently reclassified
to consolidated statement of operations
(Gains)/losses reclassified to revenue
Losses/(gains) reclassified to cost of revenue
Deferred tax
At December 31
Share-based compensation
At January 1
Share-based compensation (Note 19)
Income tax impact associated with share-based
payments (Note 10)
Issuance of share-based compensation in conjunction
with business combinations (Note 5)
Restricted stock units withheld for employee taxes
At December 31
Other reserves at December 31
2020
2019
(in € millions)
2018
(11)
(43)
—
(54)
1
8
(3)
(1)
5
444
777
(162)
1,059
(4)
5
(15)
11
—
(3)
494
181
34
—
(29)
680
1,687
(15)
4
—
(11)
(4)
7
—
(2)
1
561
(149)
32
444
(1)
(7)
10
(7)
1
(4)
334
127
26
13
(6)
494
924
(7)
(6)
(2)
(15)
(5)
(2)
2
1
(4)
(11)
720
(148)
561
—
1
(5)
3
—
(1)
200
88
48
—
(2)
334
875
Currency translation reserve comprises foreign exchange differences arising from the translation of the financial statements of foreign operations into
the reporting currency.
Short term investment reserve recognizes the unrealized fair value gains and losses on debt instruments held at fair value through Other
Comprehensive Income (“OCI”).
Long term investment reserve recognizes the unrealized fair value gains and losses on equity instruments held at fair value through OCI.
Cash flow hedge reserve recognizes the unrealized gains and losses on the effective portion of foreign exchange forward contracts designated for
hedging.
F-39
Table of Contents
Share-based compensation reserve recognizes the grant date fair value of equity-settled awards provided to employees as part of their remuneration.
For further details, please see Note 19.
19. Share-based compensation
Employee Stock Option Plans
Under the Employee Stock Option Plans (“ESOP”), stock options of the Company are granted to executives and certain employees of the Group. For
options granted prior to January 1, 2016, the exercise price is equal to the fair value of the shares on grant date for employees in the United States and for U.S.
citizens and fair value less 30% for the rest of the world. The value of the discount is included in the grant date fair value of the award. For options granted
thereafter and through December 31, 2018 under these ESOP plans, the exercise price of the options is equal to the fair value of the shares on grant date for all
employees. Generally, the first vesting period (13.5% – 25% of the initial grant) is up to one year from the grant date and subsequently vests at a rate of 6.25%
each quarter until fully vested. The exercise price for options is payable in the EUR value of a fixed USD amount; therefore, the Group considers these awards to
be USD-denominated. The options are generally granted with a term of five years.
During 2019 and 2020, the Company implemented new Employee Stock Option Plans and Director Stock Option Plans (together, the “2019 and 2020
Stock Option Plans”), under which stock options of the Company are granted to executives and employees of the Group and to members of the Company’s Board
of Directors, respectively. For options granted under the 2019 and 2020 Stock Option Plans, the exercise price is equal to the fair value of the ordinary shares on
grant date or equal to 150% of the fair value of the ordinary shares on grant date. The exercise price is included in the grant date fair value of the award. The
options granted to participants under the 2019 and 2020 Stock Option Plans have a first vesting period of three or eight months from date of grant and vest monthly
or annually thereafter until fully vested. The options are granted with a term of five years.
Restricted Stock Unit Program
During 2019 and 2020, the Company implemented new restricted stock unit (“RSU”) programs for employees and for members of its Board of
Directors (together, the “2019 and 2020 RSU Plans”). Both are accounted for as equity-settled share-based compensation transactions. The RSUs are measured
based on the fair market value of the underlying ordinary shares on the date of grant. The RSUs granted to participants under the 2020 RSU Plans have a first
vesting period of three or eight months from date of grant and vest monthly or annually thereafter until fully vested four years from date of grant. The valuation of
the RSUs was consistent with the fair value of the ordinary shares.
Restricted Stock Awards and Other
In connection with an acquisition during 2017, the Group issued 61,880 restricted stock awards (“RSAs”) to certain employees of the aquiree.
Vesting of the RSAs is contingent on continued employment of these employees. The awards are accounted for as equity-settled share-based compensation
transactions. The RSAs vest over a two- and three-year period from the acquisition date. The valuation of the RSAs was consistent with the fair value of the
ordinary shares. As of December 31, 2020, there are no longer any RSAs outstanding.
In connection with the acquisition of Anchor during 2019 and The Ringer during 2020, the Company granted 162,320 and 34,450 equity instruments
to certain employees of Anchor and The Ringer, respectively. Each instrument effectively represents one ordinary share of the Company, which will be issued to
the holder upon vesting. The instruments vest annually over a four-year and five-year period, respectively, from the acquisition date, and vesting of the instruments
is contingent on continued employment. The instruments are accounted for as equity-settled share-based compensation transactions and are measured based on the
fair market value of the underlying ordinary shares on the date of grant. The grant date fair value of each equity instrument granted to certain employees of Anchor
and The Ringer was US$145.21 and US$145.14, respectively.
F-40
Table of Contents
Activity in the RSUs, RSAs, and other contingently issuable shares outstanding and related information is as follows:
Outstanding at January 1, 2018
Granted
Forfeited
Released
Outstanding at December 31, 2018
Granted
Forfeited
Released
Outstanding at December 31, 2019
Granted
Forfeited
Released
Outstanding at December 31, 2020
RSUs
RSAs
Other
Number of
RSUs
Weighted
average
grant date
fair value
US$
Number of
Awards
Weighted
average
grant date
fair value
US$
Number of
Awards
Weighted
average
grant date
fair value
US$
195,937
14,383
(15,991)
(93,946)
100,383
715,224
(48,754)
(128,503)
638,350
1,127,149
(91,613)
(353,693)
1,320,193
42.46
168.24
34.93
40.12
63.87
137.15
118.96
98.52
134.79
161.50
143.13
138.66
155.98
61,880
—
—
—
61,880
—
—
(20,600)
41,280
—
—
(41,280)
—
90.65
—
—
—
90.65
—
—
90.65
90.65
—
—
90.65
—
—
—
—
—
—
162,320
—
—
162,320
34,450
—
(40,580)
156,190
—
—
—
—
—
145.21
—
—
145.21
145.14
—
145.21
145.19
In the table above, the number of RSUs released include ordinary shares that the Group has withheld for settlement of employees’ tax obligations due
upon the vesting of RSUs.
Activity in the stock options outstanding and related information is as follows:
Outstanding at January 1, 2018
Granted
Forfeited
Exercised
Expired
Outstanding at December 31, 2018
Granted
Forfeited
Exercised
Expired
Outstanding at December 31, 2019
Granted
Forfeited
Exercised
Expired
Outstanding at December 31, 2020
Exercisable at December 31, 2018
Exercisable at December 31, 2019
Exercisable at December 31, 2020
Options
Number of
options
Weighted
average
exercise price
US$
14,646,720
3,578,000
(1,220,508)
(4,736,555)
(24,131)
12,243,526
4,152,565
(719,860)
(3,478,660)
(43,799)
12,153,772
2,356,040
(855,051)
(4,556,908)
(56,565)
9,041,288
5,162,876
5,553,650
4,022,751
48.73
142.20
62.82
40.97
54.98
77.63
147.11
105.01
49.41
117.79
107.68
180.12
131.30
78.87
146.69
138.60
58.25
84.18
113.91
The weighted-average contractual life for the stock options outstanding at December 31, 2020, 2019, and 2018 is 2.9 years, 2.9 years, and 2.9 years,
respectively. The weighted-average share price at exercise for options exercised during
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Table of Contents
2020, 2019, and 2018 was US$198.10, US$141.82, and US$152.33, respectively. The weighted-average fair value of options granted during the year ended at
December 31, 2020, 2019, and 2018 was US$36.82 per option, US$34.63 per option, and US$39.23 per option, and, respectively.
The stock options outstanding December 31, 2020, 2019, and 2018 are comprised of the following:
Range of exercise prices (US$)
45.00
1.65
90.00
45.01
135.00
90.01
180.00
135.01
437.63
180.01
to
to
to
to
to
2020
2019
2018
Number of
options
195,207
1,243,833
2,234,257
3,671,417
1,696,574
9,041,288
Weighted
average
remaining
contractual
life (years)
Number of
options
2,130,161
2,482,270
2,946,838
3,318,423
1,276,080
12,153,772
0.3
1.2
2.7
3.5
3.6
2.9
Weighted
average
remaining
contractual
life (years)
Number of
options
4,753,052
3,337,414
2,695,890
749,360
707,810
12,243,526
0.9
2.2
3.4
4.1
3.7
2.9
Weighted
average
remaining
contractual
life (years)
1.8
3.2
3.9
4.3
4.2
2.9
In determining the fair value of the employee share-based awards, the Group uses the Black-Scholes option-pricing model. The Company does not
anticipate paying any cash dividends in the near future and therefore uses an expected dividend yield of zero in the option valuation model. The expected volatility
is based on the historical volatility of public companies that are comparable to the Group over the expected term of the award. The risk-free rate is based on U.S.
Treasury zero-coupon rates as the exercise price is based on a fixed USD amount. The expected life of the stock options is based on historical data and current
expectations.
The following table lists the inputs to the Black-Scholes option-pricing models used for employee share-based compensation for the years ended
December 31, 2020, 2019, and 2018:
Expected volatility (%)
Risk-free interest rate (%)
Expected life of stock options (years)
Weighted-average share price (US$)
2020
30.0 – 42.8
0.1 – 1.7
2.6 – 4.8
162.82
2019
30.1 – 35.2
1.4 – 2.6
2.5 – 4.8
136.09
2018
32.0 – 34.7
2.4 – 2.9
2.4 – 4.4
142.20
Valuation assumptions are determined at each grant date and, as a result, are likely to change for share-based awards granted in future periods.
Changes to the input assumptions could materially affect the estimated fair value of share-based compensation awards.
The sensitivity analysis below shows the impact of increasing and decreasing expected volatility by 10% as well as the impact of increasing and
decreasing the expected life by one year. This analysis was performed on stock options granted in 2020. The following table shows the impact of these changes on
stock option expense for the options granted in 2020:
Actual stock option expense
Stock option expense increase (decrease) under the following
assumption changes
Volatility decreased by 10%
Volatility increase by 10%
Expected life decrease by 1 year
Expected life increase by 1 year
F-42
2020
(in € millions)
30
(9)
9
(6)
5
Table of Contents
The expense recognized in the consolidated statement of operations for employee share-based compensation is as follows:
Cost of revenue
Research and development
Sales and marketing
General and administrative
20. Convertible notes and borrowings
Convertible Notes
2020
2019
(in € millions)
2018
8
84
34
50
176
4
61
27
30
122
3
40
19
26
88
On April 1, 2016, the Group issued US$1,000 million principal amount of Convertible Notes due in 2021. The notes were issued at par and bore
interest of 5.0% payment-in-kind interest increasing by 100 basis points every six months after two years. Upon a specified conversion event occurring, the
Convertible Notes would convert into ordinary shares at a conversion rate reflecting a conversion price equal to the lesser of a price cap per share or a discount of
20.00% to the per share price of the Company’s ordinary shares. If a specified conversion event did not occur within twelve months, the discount would increase
by 250 basis points and then again, every six months thereafter until a specified conversion event did occur. A direct listing was not considered a specified
conversion event. The terms also included change of control clauses where the notes holders had the option to convert into ordinary shares. At maturity, if the notes
had not yet been converted or repaid, note holders would receive cash in an amount equal to the original principal amount plus 10% annualized return.
The transaction costs of approximately US$20 million were effectively immediately expensed in finance costs.
The Convertible Note agreements included certain affirmative covenants, including the delivery of audited consolidated financial statements to the
holders.
On December 15, 2017, holders of a portion of the Group’s Convertible Notes exchanged US$301 million in principal of Convertible Notes, plus
accrued interest of US$27 million, for 4,800,000 ordinary shares. The Convertible Notes were recorded at fair value on the date of exchange, which was
reclassified to equity upon issuance of the ordinary shares. The fair value at exchange was based on secondary market transactions of US$600 million between note
holders and a third party.
On December 27, 2017, the Group entered into an exchange agreement with holders of a portion of its Convertible Notes, pursuant to which the
Group exchanged an aggregate of US$110 million in principal of Convertible Notes, plus accrued interest of US$10 million, for an aggregate of 1,754,960
ordinary shares as of December 29, 2017. The Convertible Notes were recorded at fair value on the date of exchange, which was reclassified to equity upon
issuance of the ordinary shares. The fair value at exchange of US$211 million was based on the ordinary share fair value as at December 31, 2017.
In January 2018, the Group entered into an exchange agreement with holders of the remaining balance of its Convertible Notes, pursuant to which the
Group exchanged the remaining of US$628 million of Convertible Notes, plus accrued interest, for 9,431,960 ordinary shares. Pursuant to this exchange
agreement, subject to certain conditions, if the Company failed to list its ordinary shares on or prior to July 2, 2018, the Group had agreed to offer to each
noteholder the option to unwind the transaction such that the Group purchases back the shares that were issued to such noteholder pursuant to the exchange and
would have issued such noteholder a new note that is materially identical to its note prior to the exchange. The option to unwind the exchange if a listing did not
occur by July 2, 2018 met the definition of a contingent settlement event, and resulted in the issued equity shares (“Converted Notes”) being classified as a
financial liability in the statement of financial position until the option to unwind expired due to a direct listing or the passage of time.
On April 3, 2018, the Group completed a direct listing of the Company’s ordinary shares on the NYSE. Upon the direct listing, the option for the
Convertible Noteholders to unwind the January 2018 exchange transaction expired and, as a result, the Group recorded an expense of €123 million within finance
costs to mark to market the Convertible Notes to the fair value based on the closing price of the Company’s ordinary shares on April 3, 2018. The Company then
reclassified the Convertible Notes balance of €1.1 billion to Other paid in capital within Equity.
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Table of Contents
21. Trade and other payables
Trade payables
Value added tax and sales taxes payable
Other current liabilities
2020
2019
(in € millions)
434
181
23
638
377
148
24
549
Trade payables generally have a 30-day term and are recognized and carried at their invoiced value, inclusive of any value added tax that may be
applicable.
22. Accrued expenses and other liabilities
Non-current
Other accrued liabilities
Current
Accrued fees to rights holders
Accrued salaries, vacation, and related taxes
Accrued social costs for options and RSUs
Other accrued expenses
2020
2019
(in € millions)
42
42
1,265
65
169
249
1,748
20
20
1,153
54
64
167
1,438
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Table of Contents
23. Provisions
Carrying amount at January 1, 2019
Charged/(credited) to the consolidated statement of operations:
Additional provisions
Reversal of unutilized amounts
Exchange differences
Utilized
Carrying amount at December 31, 2019
Charged/(credited) to the consolidated statement of operations:
Additional provisions
Reversal of unutilized amounts
Exchange differences
Utilized
Carrying amount at December 31, 2020
As at December 31, 2019
Current portion
Non-current portion
As at December 31, 2020
Current portion
Non-current portion
Legal contingencies
Legal
contingencies
Indirect tax
Other
Total
39
11
—
2
(47)
5
2
(1)
—
(2)
4
5
—
4
—
(in € millions)
2
2
—
—
—
4
9
(2)
—
—
11
4
—
11
—
7
3
(2)
—
(2)
6
9
(6)
—
(2)
7
4
2
5
2
48
16
(2)
2
(49)
15
20
(9)
—
(4)
22
13
2
20
2
Various legal actions, proceedings, and claims are pending or may be instituted or asserted against the Group. The results of such legal proceedings
are difficult to predict and the extent of the Group’s financial exposure is difficult to estimate. The Group records a provision for contingent losses when it is both
probable that a liability has been incurred, and the amount of the loss can be reasonably estimated.
Between December 2015 and January 2016, two putative class action lawsuits were filed against Spotify USA Inc. in the U.S. District Court for the
Central District of California, alleging that the Group unlawfully reproduced and distributed musical compositions without obtaining licenses. These cases were
subsequently consolidated in May 2016 and transferred to the U.S. District Court for the Southern District of New York in October 2016, as Ferrick et al. v. Spotify
USA Inc., No. 1:16-cv-8412-AJN (S.D.N.Y.). In May 2017, the parties reached a signed class action settlement agreement pursuant to which the Group will be
responsible for (i) a US$43 million cash payment to a fund for the class, (ii) all settlement administration and notice costs, expected to be between US$1 million
and US$2 million, (iii) a direct payment of class counsel’s attorneys’ fees of up to US$5 million dollars, (iv) future royalties for any tracks identified by claimants,
as well as other class members who provide proof of ownership following the settlement, and (v) reserving future royalties for unmatched tracks. On May 22,
2018, the court granted final approval of the settlement. All appeals of the court’s final approval have been dismissed, and the April 15, 2019 deadline for
appellants to appeal to the U.S. Supreme Court has passed, and thus the settlement is now effective.
Even with the effectiveness of the settlement, we may still be subject to claims of copyright infringement by rights holders who have purported to opt
out of the settlement or who may not otherwise be covered by its terms. Between July 2017 and December 2017, six lawsuits alleging unlawful reproduction and
distribution of musical compositions have been filed against the Group in (i) the U.S. District Court for the Middle District of Tennessee (Bluewater Music
Services Corporation v. Spotify USA Inc., No. 3:17-cv-1051; Gaudio et al. v. Spotify USA Inc., No. 3:17-cv-1052; Robertson et al. v. Spotify USA Inc., No. 3:17-cv-
1616; and A4V Digital, Inc. et al. v. Spotify USA Inc., 3:17-cv-1256), (ii) in the U.S. District Court for the Southern District of Florida (Watson Music Group, LLC
v. Spotify USA Inc., No. 0:17-cv-62374), and (iii) the U.S. District Court for the Central District of California (Wixen Music Publishing Inc. v. Spotify USA, Inc.,
2:17-cv-9288). The complaints sought an award of damages, including the maximum statutory damages allowed under U.S. copyright law of US$150,000 per work
infringed. The Wixen v. Spotify lawsuit was voluntarily dismissed on December 20, 2018 after the parties reached a mutual settlement. The Watson v. Spotify
lawsuit was voluntarily dismissed on April 24, 2019 following the resolution of all appeals of the Ferrick class action settlement. As of December 31, 2020, the
Robertson v. Spotify, Bluewater v. Spotify, Gaudio v. Spotify, and A4V v. Spotify lawsuits have all been dismissed.
F-45
Table of Contents
The Music Modernization Act of 2018 contains a limitation of liability with respect to such lawsuits filed on or after January 1, 2018. Rights holders
may nevertheless file lawsuits, and may argue that they should not be bound by this limitation of liability. For example, in August 2019, the Eight Mile Style, LLC
et al v. Spotify USA Inc., No. 3:19-cv-00736-AAT, lawsuit was filed against us in the U.S. District Court for the Middle District of Tennessee, alleging both that
the Group does not qualify for the limitation of liability in the Music Modernization Act and that the limitation of liability is unconstitutional and thus not valid
law. The Group intends to vigorously defend this lawsuit, including plaintiffs’ challenges to the limitation of liability in the Music Modernization Act.
Indirect tax
The Group has indirect tax provisions which relate primarily to potential non-income tax obligations in various jurisdictions. The Group recognizes
provisions for claims or indirect taxes when it determines that an unfavorable outcome is probable and the amount of loss can be reasonably estimated.
Other
The Group has obligations under lease agreements to return the leased assets to their original condition. An obligation to return the leased asset to
their original condition upon expiration of the lease is accounted for as asset retirement obligations. The obligations are expected to be settled at the end of the
lease terms.
24. Financial risk management and financial instruments
Financial risk management
The Group’s operations are exposed to financial risks. To manage these risks efficiently, the Group has established guidelines in the form of a
treasury policy that serves as a framework for the daily financial operations. The treasury policy stipulates the rules and limitations for the management of financial
risks.
Financial risk management is centralized within Treasury who are responsible for the management of financial risks. Treasury manages and executes
the financial management activities, including monitoring the exposure of financial risks, cash management, and maintaining a liquidity reserve. Treasury operates
within the limits and policies authorized by the Board of Directors.
Capital management
The Group’s objectives when managing capital (cash and cash equivalents, short term investments, and equity) is to safeguard the Group’s ability to
continue as a going concern in order to provide returns for shareholders and to maintain an optimal capital structure to reduce the cost of capital. The Group’s
capital structure and dividend policy is decided by the Board of Directors. Treasury continuously reviews the Group’s capital structure considering, amongst other
things, market conditions, financial flexibility, business risk, and growth rate. We have never declared or paid any cash dividends on our share capital, and we do
not expect to pay dividends or other distributions on our ordinary shares in the foreseeable future.
On November 5, 2018, Spotify Technology S.A. announced that it would commence a share repurchase program beginning in the fourth quarter of
2018. Repurchases of up to 10,000,000 of the Company’s ordinary shares have been authorized by the Company’s general meeting of shareholders and the Board
of Directors approved such repurchase up to the amount of US$1.0 billion. An aggregate of 4,366,427 ordinary shares for €510 million has been repurchased since
the commencement of the share repurchase program. All repurchases were conducted during 2018 and 2019. The authorization to repurchase program will expire
on April 21, 2021 unless renewed by decision of a general meeting of shareholders. The timing and actual number of shares repurchased depends on a variety of
factors, including price, general business and market conditions, and alternative investment opportunities. The repurchase program is executed consistent with the
Group’s capital allocation strategy of prioritizing investment to grow the business over the long term. Under the repurchase program, repurchases can be made
from time to time using a variety of methods, including open market purchases, all in compliance with the rules of the Commission and other applicable legal
requirements. The repurchase program does not obligate the Company to acquire any particular amount of ordinary shares, and the repurchase program may be
suspended or discontinued at any time at the Company’s discretion. The Group uses current cash and cash equivalents and the cash flow it generates from
operations to fund the share repurchase program.
The Group is not subject to any externally imposed capital requirements.
F-46
Table of Contents
Credit risk management
Financial assets with respect to cash and cash equivalents and short term investments carry an element of risk that counterparties may be unable to
fulfill their obligations. This exposure arises from the investments in liquid funds of banks and other counterparties. The Group mitigates this risk by adopting a
risk averse approach in relation to the investment of surplus cash. The main objectives for investments are first, to preserve principal and secondarily, to maximize
return given the rules and limitations of the treasury policy. Surplus cash is invested in counterparties and instruments considered to carry low credit risk.
Investments are subject to credit rating thresholds and at the time of investment, no more than 10% of surplus cash can be invested in any one issuer (excluding
certain government bonds and investments in cash management banks). The weighted-average maturity of the portfolio shall not be greater than 2 years, and the
final maturity of any investment is not to exceed 5 years. The Group shall maintain the ability to liquidate the majority of all investments (classified as cash and
cash equivalents and short term investments) within 90 days. At December 31, 2020 and 2019, the financial credit risk was equal to the consolidated statement of
financial position value of cash and cash equivalents and short term investments of €1,747 million and €1,757 million, respectively. No credit losses were incurred
during 2020 or 2019 on these investments.
The credit risk with respect to the Group’s trade receivables is diversified geographically and among a large number of customers, private
individuals, as well as companies in various industries, both public and private. The majority of the Group’s revenue is paid monthly in advance significantly
lowering the credit risk incurred for these specific counterparties. Solvency information is generally required for credit sales within the Ad sales and Partner
subscription business to minimize the risk of bad debt losses and is based on information provided by credit and business information from external sources.
Liquidity risk management
Liquidity risk is the Group’s risk of not being able to meet the short term payment obligations due to insufficient funds. The Group has internal
control processes and contingency plans for managing liquidity risk. A centralized cash pooling process enables the Group to manage liquidity surpluses and
deficits according to the actual needs at the group and subsidiary level. The liquidity management takes into account the maturities of financial assets and financial
liabilities and estimates of cash flows from operations.
The Group’s policy is to have a strong liquidity position in terms of available cash and cash equivalents, and short term investments.
Liquidity
Short term investments
Cash equivalents
Cash at bank and on hand
Liquidity position
2020
2019
(in € millions)
596
685
466
1,747
692
585
480
1,757
Cash equivalents include investments in money market funds measured at fair value and classified as level 1 financial instruments in the fair value hierarchy.
Currency risk management
Transaction exposure relates to business transactions denominated in foreign currency required by operations (purchasing and selling) and/or
financing (interest and amortization). The Group’s general policy is to hedge a portion of its transaction exposure on a case-by-case basis under the Group’s cash-
flow hedging program by entering into multiple foreign exchange forward contracts. The Group does not enter into foreign exchange forward contracts greater than
one year. The Group’s currency pairs used for cash flow hedges are Euro / U.S. dollar, Euro / Australian dollar, Euro / British pound, Euro / Swedish krona, Euro /
Canadian dollar, and Euro / Norwegian krone. Translation exposure relates to net investments in foreign operations. The Group does not conduct translation risk
hedging.
(i)
Transaction exposure sensitivity
In most cases, the Group’s customers are billed in their respective local currency. Major payments, such as salaries, consultancy fees, and rental fees
are settled in local currencies. Royalty payments are primarily in EUR and USD. Hence, the operational need to net purchase foreign currency is due
primarily to a deficit from such settlements.
F-47
Table of Contents
The table below shows the immediate impact on net loss before tax of a 10% strengthening in the closing exchange rate of significant currencies to
which the Group had exposure, at December 31, 2020 and 2019. The impact on net loss is due primarily to monetary assets and liabilities in a
transactional currency other than the functional currency of a subsidiary within the Group. The sensitivity associated with a 10% weakening of a
particular currency would be equal and opposite. This assumes that each currency moves in isolation.
2020
(Increase)/decrease in loss before tax
2019
(Increase)/decrease in loss before tax
SEK
USD
(in € millions)
(13)
SEK
USD
(in € millions)
(13)
67
121
(ii)
Translation exposure sensitivity
Translation exposure exists due to the translation of the results and financial position of all of the Group entities that have a functional currency
different from the presentation currency of Euro. The impact on the Group’s equity would be approximately €105 million and €50 million if the EUR
weakened by 10% against all translation exposure currencies, based on the exposure at December 31, 2020 and 2019, respectively.
Interest rate risk management
Interest rate risk is the risk that changes in interest rates will have a negative impact on the Group’s earnings and cash flow. The Group’s exposure to
interest rate risk is related to its interest-bearing assets, primarily its debt securities held at fair value through other comprehensive income. Fluctuations in interest
rates impact the yield of the investment. The sensitivity analysis considered the historical volatility of short term interest rates and determined that it was
reasonably possible that a change of 100 basis points could be experienced in the near term. A hypothetical 100 basis points increase in interest rates would have
impacted interest income by €6 million for both the years ended December 31, 2020 and 2019.
Financing risk management
The Group finances its operations through external borrowings, equity, and cash flow from operations. The funding strategy has been to diversify
funding sources. Historically, the external debt consisted of the Convertible Notes and finance leases.
Share price risk management
Share price risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate due to changes in the fair value of the
Company’s ordinary share price. The Group’s exposure to this risk relates primarily to the outstanding warrants.
The warrants are re-measured at each reporting date using valuation models using input data based on the Company’s share price. Changes in the fair
value of these instruments are recognized in finance income or cost. An increase of share price will increase the value of the warrants. The Group has not entered
into any hedging arrangement to mitigate these fluctuations.
Other share price risk
Social costs are payroll taxes associated with employee salaries and benefits, including share-based compensation that the Group is subject to in
various countries in which the Group operates. Social costs are accrued at each reporting period based on the number of vested stock options and awards
outstanding, the exercise price, and the Company's share price. Changes in the accrual are recognized in operating expenses. An increase in share price will
increase the accrued expense for social costs, and when the share price decreases, the accrued expense will become a reduction in social costs expense, all other
things being equal, including the number of vested stock options and exercise price remaining constant. The impact on the accrual for social costs on outstanding
share based payment awards of an increase or decrease in the Company’s ordinary share price of 10% would result in a change of €27 million and €14 million at
December 31, 2020 and December 31, 2019, respectively.
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Table of Contents
Investment risk
The Group is exposed to investment risk as it relates to changes in the market value of its long term investments, due primarily to volatility in the
share price used to measure the investment and exchange rates. The majority of the Group’s long term investments relate to TME.
Insurance risk management
Insurance coverage is governed by corporate guidelines and includes a common package of different property and liability insurance programs. The
business is responsible for assessing the risks to decide the extent of actual coverage. Treasury manages the common Group insurance programs.
Financial instruments
Foreign exchange forward contracts
Cash flow hedges
The notional principal of the foreign exchange contracts was approximately €1,695 million and €1,538 million as of December 31, 2020 and 2019,
respectively. The following table summarizes the notional principal of the foreign currency exchange contracts by hedged line item in the statement of operations
as of December 31, 2020:
Australian dollar
(AUD)
British pound
(GBP)
Canadian dollar
(CAD)
Norwegian krone
(NOK)
Swedish krona
(SEK)
U.S. dollar
(USD)
Notional amount in foreign currency
(in millions)
Hedged line item in
consolidated statement of
operations
Revenue
Cost of revenue
Total
274
199
473
379
274
653
239
166
405
809
543
1,352
1,384
938
2,322
32
24
56
The following table summarizes the notional principal of the foreign currency exchange contracts by hedged line item in the statement of operations
as of December 31, 2019:
Hedged line item in
consolidated statement of
operations
Revenue
Cost of revenue
Total
Fair values
Australian dollar
(AUD)
British pound
(GBP)
Canadian dollar
(CAD)
Norwegian krone
(NOK)
Swedish krona
(SEK)
U.S. dollar
(USD)
Notional amount in foreign currency
(in millions)
226
176
402
328
242
570
194
141
335
739
499
1,238
1,221
832
2,053
38
29
67
The carrying amounts of certain financial instruments, including cash and cash equivalents, trade and other receivables, restricted cash, trade and
other payables, and accrued expenses and other liabilities approximate fair value due to their relatively short maturities. The Group measures its lease liabilities as
described in Note 2. All other financial assets and liabilities are accounted for at fair value.
F-49
Table of Contents
The following tables summarize, by major security type, the Group’s financial assets and liabilities that are measured at fair value on a recurring
basis, and the category using the fair value hierarchy. The different levels have been defined in Note 2.
Financial assets and liabilities by fair value hierarchy level
Level 1
Level 2
Level 3
December 31, 2020
(in € millions)
Financial assets at fair value
Cash equivalents:
Money market funds
Short term investments:
Money market funds
Government securities
Agency securities
Corporate notes
Collateralized reverse purchase agreements
Derivatives (designated for hedging):
Foreign exchange forwards
Long term investments
Total financial assets at fair value by level
Financial liabilities at fair value
Derivatives (not designated for hedging):
Warrants
Derivatives (designated for hedging):
Foreign exchange forwards
Contingent consideration
Total financial liabilities at fair value by level
685
25
198
—
—
—
—
2,228
3,136
—
—
—
—
—
—
31
4
276
62
12
—
385
—
16
—
16
—
—
—
—
—
—
—
49
49
89
—
30
119
685
25
229
4
276
62
12
2,277
3,570
89
16
30
135
Financial assets and liabilities by fair value hierarchy level
Level 1
Level 2
Level 3
December 31, 2019
(in € millions)
Financial assets at fair value
Cash equivalents
Money market funds
Short term investments:
Government securities
Agency securities
Corporate notes
Collateralized reverse purchase agreements
Derivatives (designated for hedging):
Foreign exchange forwards
Long term investments
Total financial assets at fair value by level
Financial liabilities at fair value
Derivatives (not designated for hedging):
Warrants
Derivatives (designated for hedging):
Foreign exchange forwards
Contingent consideration
Total financial liabilities at fair value by level
585
229
—
—
—
—
1,481
2,295
—
—
—
—
—
39
5
263
156
8
—
471
—
13
—
13
—
—
—
—
—
—
16
16
98
—
27
125
585
268
5
263
156
8
1,497
2,782
98
13
27
138
The Group’s policy is to recognize transfers into and transfers out of fair value hierarchy levels at the end of each reporting period. During the years
ended December 31, 2020 and 2019 there were no transfers between levels in the fair value hierarchy.
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Table of Contents
Recurring fair value measurements
Long term investment – Tencent Music Entertainment Group
The Group’s approximate 8% investment in TME is carried at fair value through other comprehensive income. Prior to December 12, 2018, the fair
value of unquoted ordinary shares of TME had been estimated using unquoted TME market transactions, the latest fair value per ordinary share disclosed within
TME’s initial registration statement on Form F-1 filed with the SEC and other unobservable inputs. Subsequent to December 12, 2018, the fair value of ordinary
shares of TME is based on the ending NYSE American depository share price. Accordingly, the entire balance of the Group’s investment in TME of €1,630
million was transferred from level 3 to level 1 within the fair value hierarchy in accordance with IFRS 7. The fair value of the long term investments may vary over
time and is subject to a variety of risks including: company performance, macro-economic, regulatory, industry, USD to Euro exchange rate, and systemic risks of
the equity markets overall.
The table below presents the changes in the investment in TME:
At January 1
Changes in fair value recorded in other comprehensive loss
At December 31
2020
2019
(in € millions)
2018
1,481
747
2,228
1,630
(149)
1,481
910
720
1,630
The impact on the fair value of the Group’s long term investment in TME using reasonably possible alternative assumptions with an increase or a
decrease of TME’s share price used to value its equity interests of 10% results in a range of €2,005 million to €2,451 million at December 31, 2020 and €1,333
million to €1,629 million at December 31, 2019.
The following sections describe the valuation methodologies the Group uses to measure its Level 3 financial instruments at fair value on a recurring
basis.
Fair value of ordinary shares
On April 3, 2018, the Group completed a direct listing of the Company’s ordinary shares on the NYSE. The fair value of the Company’s ordinary
shares subsequent to the direct listing is based on the NYSE closing ordinary share price of the Group.
The valuation of certain items in the consolidated financial statements prior to the direct listing was consistent with the Group’s use of the Probability
Weighted Expected Return Method (“PWERM”) to value the Company’s ordinary shares.
The fair value of the ordinary shares prior to the direct listing was determined using recent secondary market transactions in the Company’s ordinary
shares and the PWERM, which is one of the recommended valuation methods to measure fair value in privately held companies with complex equity structures in
the American Institute of Certified Public Accountants Practice Guide, Valuation of Privately-Held-Company Equity Securities Issued as Compensation. Under
this method, discrete future outcomes, including as a public company, non-public company scenarios, and a merger or sale, are weighted based on estimates of the
probability of each scenario. In the Group’s application of this method, five different future scenarios are identified (high and low case public company, high and
low case transaction, and private company). For each scenario, an equity value is calculated based on revenue multiples, derived from listed peer companies, which
are applied on different (scenario-dependent) forecasted revenue. For the private company scenario, a discounted cash flow method also is considered in
determining the equity value. Ordinary share values are weighted by the probability of each scenario in the valuation model. In addition, an appropriate discount
adjustment is incorporated to recognize the lack of marketability due to being a closely held entity. Finally, the impact on the share value of recent financing and
secondary trading is considered.
The following weightings, up until the Group’s direct listing, were applied to each valuation method:
PWERM
Secondary market transactions
2018
50 %
50 %
F-51
Table of Contents
The PWERM valuations, up until the Group’s direct listing, weighted the different scenarios as follows:
Market Approach – High Case Public Company
Market Approach – Low Case Public Company
Market Approach – High Case Transaction
Market Approach – Low Case Transaction
Private Case – Income and Market Approaches
2018
55 – 70%
28 – 35%
0 – 3%
0 – 2%
2 – 5%
The key assumptions used to estimate the fair value of the ordinary shares and contingent options using the PWERM, up until the Group’s direct
listing, were as follows:
Revenue multiple used to estimate enterprise value
Discount rate (%)
Volatility (%)
Warrants
2018
3.0
13
32.5 – 35.0
On October 17, 2016, the Company sold, for €27 million, warrants to acquire 5,120,000 ordinary shares to certain holders that are employees and
management of the Group. The exercise price of each warrant is US$50.61, which was equal to 1.2 times the fair market value of ordinary shares on the date of
issuance.
On July 13, 2017, the Company sold, for €9 million, a warrant to acquire 1,600,000 ordinary shares to certain holders that are employees and
management of the Group. The exercise price of each warrant is US$89.73, which was equal to 1.3 times the fair market value of ordinary shares on date of
issuance. The warrants are exercisable at any time through July 2020.
On July 1, 2019, the Company sold, for €15 million, warrants to acquire 800,000 ordinary shares to Mr. Ek, through D.G.E. Investments Limited, an
entity indirectly wholly owned by him. The exercise price of each warrant is US$190.09, which was equal to 1.3 times the fair market value of ordinary shares on
the date of issuance. The warrants are exercisable at any time through July 1, 2022.
On October 4, 2019, the Company issued 1,600,000 ordinary shares upon the exercise of 1,600,000 warrants that were granted on October 17, 2016,
for cash of €74 million. On October 17, 2019, the Company issued 1,991,627 shares upon the effective net settlement of the remaining 3,520,000 warrants that
were granted on October 17, 2016. Refer to Note 26.
On July 13, 2020, the Company issued 1,084,043 ordinary shares to Mr. Ek, through D.G.E. Investments Limited, upon the effective net settlement
of the 1,600,000 warrants that were granted on July 13, 2017. Refer to Note 26.
The outstanding warrants are measured on a recurring basis in the consolidated statement of financial position and are Level 3 financial instruments
recognized at fair value through the consolidated statement of operations. The warrants are valued using a Black-Scholes option-pricing model, which includes
inputs determined from models that include the value of the Company’s ordinary shares, as determined above and additional assumptions used to estimate the fair
value of the warrants in the option pricing model as follows:
Expected term (years)
Risk free rate (%)
Volatility (%)
Share price (US$)
2020
2019
2018
1.5
0.11
50.0 %
314.66
0.5 – 2.5
1.58 – 1.59
32.5 %
149.55
0.8 – 1.5
2.55 – 2.58
40.0 %
113.50
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Table of Contents
The table below presents the changes in the warrants liability:
January 1
Issuance of warrant for cash
Issuance of shares upon exercise of, or net settlement of, warrants
Non cash changes recognized in profit or loss
Changes in fair value
Effect of changes in foreign exchange rates
At December 31
2020
2019
(in € millions)
2018
98
—
(267)
263
(5)
89
333
15
(303)
35
18
98
346
—
—
(39)
26
333
The warrant liability is included in derivative liabilities on the consolidated statement of financial position. The change in estimated fair value is
recognized within finance income or costs in the consolidated statement of operations.
The impact on the fair value of the warrants with an increase or decrease in the Company’s ordinary share price of 10% results in a range of €72
million to €106 million at December 31, 2020 and €75 million to €127 million at December 31, 2019.
Long term investments – Other
The Group has interests in certain long term investments. The majority of these investments are in unlisted equity securities carried at fair value
through other comprehensive income. The fair value of these equity investments are generally determined by (i) applying market multiples to the projected
financial performance and (ii) discounting the future value to its present value equivalent. The key assumptions used to estimate the fair value of these equity
investments include the exit multiple used to estimate business enterprise value and discount rate.
The fair value of the long term investments may vary over time and is subject to a variety of risks including: company performance, macro-
economic, regulatory, industry, USD to Euro exchange rate, and systemic risks of the equity markets overall.
The table below presents the changes in the other long term investments:
At January 1
Initial recognition of long term investment
Changes in fair value recorded in other comprehensive income
Changes in fair value recognized in profit or loss
At December 31
Contingent consideration
2020
2019
(in € millions)
2018
16
9
29
(5)
49
16
—
—
—
16
—
16
—
—
16
On April 1, 2019, the Group acquired Cutler Media, LLC ("Parcast"), a premier storytelling podcast studio. Included in the purchase price was €13
million related to the estimated fair value of contingent consideration. The contingent consideration is valued by the Group using a simulation of user engagement
outcomes. The change in the fair value of the contingent consideration is recognized within general and administrative expenses in the consolidated statement of
operations.
The table below presents the changes in the contingent consideration liability:
F-53
Table of Contents
At January 1
Initial recognition of contingent consideration included in
purchase consideration of acquisition
Contingent consideration payments
Changes in fair value recognized in profit or loss
Effect of changes in foreign exchange rates
At December 31
2020
2019
(in € millions)
27
—
(7)
13
(3)
30
—
13
—
14
—
27
As of December 31, 2020, the remaining maximum potential contingent consideration payout is €33 million over the next two years.
Convertible Notes
On April 3, 2018, the Group completed a direct listing of the Company’s ordinary shares on the NYSE, and the option for the Convertible
Noteholders to unwind the January 2018 exchange transaction expired. As a result, the Group recorded an expense of €123 million within finance costs to mark to
market the Convertible Notes to the fair value based on the closing price of the Company’s ordinary shares on April 3, 2018. The Company then reclassified the
Convertible Notes balance of €1.1 billion to Other paid in capital within Equity. Refer to Note 20.
The table below presents the changes in the Convertible Notes:
At January 1
Non cash changes recognized in consolidated
statement of operations
Changes in fair value
Effect of changes in foreign exchange rates
Issuance of shares upon exchange of Convertible Notes
At December 31
The change in estimated fair value is recognized within finance costs in the consolidated statement of operations.
2018
(in € millions)
944
221
(20)
(1,145)
—
25. Commitments and contingencies
Obligations under leases
See Note 12 for lease obligations.
Commitments
The Group is subject to the following minimum guarantees relating to the content on its service, the majority of which relate to minimum royalty
payments associated with its license agreements for the use of licensed content, as at December 31:
Not later than one year
Later than one year but not more than 5 years
2020
2019
(in € millions)
2018
317
3,259
3,576
657
383
1,040
548
152
700
F-54
Table of Contents
In addition to the minimum guarantees listed above, the Group is subject to various non-cancelable purchase obligations and service agreements with
minimum spend commitments, including a service agreement with Google for the use of Google Cloud Platform and certain podcast commitments as at December
31:
Not later than one year
Later than one year but not more than 5 years
Contingencies
2020
2019
(in € millions)
2018
279
619
898
56
144
200
22
271
293
Various legal actions, proceedings, and claims are pending or may be instituted or asserted against the Group. These may include but are not limited
to matters arising out of alleged infringement of intellectual property; alleged violations of consumer regulations; employment-related matters; and disputes arising
out of supplier and other contractual relationships. As a general matter, the music and other content made available on the Group’s service are licensed to the
Group by various third parties. Many of these licenses allow rights holders to audit the Group’s royalty payments, and any such audit could result in disputes over
whether the Group has paid the proper royalties. If such a dispute were to occur, the Group could be required to pay additional royalties, and the amounts involved
could be material. The Group expenses legal fees as incurred. The Group records a provision for contingent losses when it is both probable that a liability has been
incurred and the amount of the loss can be reasonably estimated. An unfavorable outcome to any legal matter, if material, could have an adverse effect on the
Group’s operations or its financial position, liquidity, or results of operations.
On February 25, 2019, Warner/Chappell Music Limited (“WCM”) filed a lawsuit against the Group in the High Court of Bombay, India, alleging that
the Group sought to exploit WCM's copyrights in musical compositions in India without obtaining a license. On January 13, 2020, WCM and the Group resolved
the dispute, and on January 14, 2020, the High Court of Bombay, India, disposed of the lawsuit. On April 22, 2019, Saregama India Limited (“Saregama”) filed a
lawsuit against us in the High Court of Delhi, India, alleging copyright infringement, and has sought injunctive relief. Saregama and the Group resolved the dispute
via an agreement dated March 30, 2020.
On August 11, 2020, the United States Court of Appeals for the D.C. Circuit issued an opinion which, as of the issuance of the formal “mandate” on
October 26, 2020, vacated the Copyright Royalty Board’s determination of the royalty rates for applicable mechanical rights in the United States for calendar years
2018 to 2022. These rates apply both to compositions that we license under compulsory license pursuant to Section 115 of the Copyright Act of 1976 and to a
number of direct licenses that we have with music publishers. Until the final rates are determined, our recorded royalty costs, both retrospectively and
prospectively, will be based on management estimates of the rates that will apply. When the rates are determined anew, these could either benefit or adversely
affect our results of operations and financial condition.
26. Related party transactions
Key management compensation
Key management includes members of the Company’s senior management and the board of directors. The compensation paid or payable to key
management for Board and employee services includes their participation in share-based compensation arrangements. The disclosure amounts are based on the
expense recognized in the consolidated statement of operations in the respective year.
Key management compensation
Short term employee benefits
Share-based compensation
Termination benefits
2020
2019
(in € millions)
2018
5
30
—
35
5
22
—
27
4
19
1
24
On July 1, 2019, the Company issued, for €15 million, warrants to acquire 800,000 ordinary shares to Mr. Ek, through D.G.E. Investments Limited.
The exercise price of each warrant is US$190.09, which was equal to 1.3 times the fair market value of ordinary shares on the date of issuance. The warrants are
exercisable at any time through July 1, 2022.
F-55
Table of Contents
On October 4, 2019, the Company issued 1,600,000 ordinary shares and 16,000,000 beneficiary certificates to Mr. Ek, through D.G.E. Investments
Limited, upon the exercise of 1,600,000 warrants that were granted on October 17, 2016, for cash of €74 million.
On October 17, 2019, the Company issued 905,285 ordinary shares and 9,052,850 beneficiary certificates to Mr. Ek, through D.G.E. Investments
Limited, upon the effective net settlement of the remaining 1,600,000 warrants that were granted on October 17, 2016.
On October 17, 2019, the Company issued 1,086,342 ordinary shares and 10,863,420 beneficiary certificates to Martin Lorentzon, a member of the
Board of Directors of the Company, through Rosello Company Limited, an entity indirectly wholly owned by him, upon the effective net settlement of 1,920,000
warrants that were granted on October 17, 2016.
On July 13, 2020, the Company issued 1,084,043 ordinary shares and 10,840,430 beneficiary certificates to Mr. Ek, through D.G.E. Investments
Limited, upon the effective net settlement of the 1,600,000 warrants that were granted on July 13, 2017.
During the year ended December 31, 2020, the Company issued 5,038,200 ordinary shares to its Netherlands subsidiary at par value and subsequently
repurchased those shares at the same price. These shares are held in treasury in order to facilitate the fulfillment of option exercises and restricted stock unit
releases under the Company’s stock option and restricted stock unit plans. There were no such transactions during the year ended December 31, 2019.
27. Group information
The Company’s principal subsidiaries as at December 31, 2020 are as follows:
Name
Spotify AB
Spotify USA Inc.
Spotify Ltd
Spotify Spain S.L.
Spotify GmbH
Spotify France SAS
Spotify Netherlands B.V.
Spotify Canada Inc.
Spotify Australia Pty Ltd
Spotify Brasil Serviços De Música LTDA
Spotify Japan K.K
Spotify India LLP
S Servicios de Música México, S.A. de C.V.
Spotify Singapore Pte Ltd.
Principal activities
Main operating company
USA operating company
Sales, marketing, contract research
and development, and customer
support
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Sales and marketing
Marketing
Proportion of
voting rights
and shares
held (directly
or indirectly)
Country of
incorporation
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
100 %
Sweden
USA
UK
Spain
Germany
France
Netherlands
Canada
Australia
Brazil
Japan
India
Mexico
Singapore
There are no restrictions on the net assets of the Group companies.
F-56
Exhibit 1.1
« SPOTIFY TECHNOLOGY S.A. »
société anonyme
L-1610 Luxembourg, 42-44, Avenue de la Gare
R.C.S. Luxembourg, section B numéro 123 052
***************************************************************************
STATUTS COORDONNES à la date du 20 janvier 2021
***************************************************************************
Page 1
CHAPTER I. FORM, NAME, REGISTERED OFFICE, OBJECT, DURATION
Article 1.- Form, Name
The company is formed as a “société anonyme”, governed by the laws of the Grand Duchy of Luxembourg,
especially the law of August 10 , 1915 on commercial companies (the “Law”), as amended, and by the present
articles of association (the “Articles of Association”) (the “Company”).
th
The Company exists under the name of “SPOTIFY TECHNOLOGY S.A.”.
Article 2.- Registered Office
2.1.
2.2.
The registered office of the Company is established in the City of Luxembourg.
The registered office may be transferred to any other place within the City of Luxembourg or to any
other municipality in the Grand Duchy of Luxembourg by a resolution of the Board of Directors. Branches or other
offices may be established either in the Grand Duchy of Luxembourg or abroad by resolution of the Board of
Directors. Subsequently, the Board of Directors is authorized to amend the Articles of Association to reflect the
change of municipality of the registered office of the Company and to record it in front of a notary.
2.3.
In the event that in the view of the Board of Directors extraordinary political, economic or social
developments occur or are imminent that would interfere with the normal activities of the Company at its registered
office or with the ease of communications with such office or between such office and persons abroad, it may
temporarily transfer the registered office abroad, until the complete cessation of these abnormal circumstances.
Such temporary measures will have no effect on the nationality of the Company, which, notwithstanding the
temporary transfer of the registered office, will remain a company governed by the laws of the Grand Duchy of
Luxembourg.
Article 3.- Object
3.1.
The object of the Company is the acquisition and holding of direct or indirect interests in
Luxembourg and/or in foreign undertakings, as well as the administration, development and management of its
holdings.
3.2.
The Company may provide any financial assistance to subsidiaries, affiliated companies or other
companies forming part of the group of which the Company belongs, such as, among others, the providing of
loans and the granting of guarantees or securities in any kind or form.
3.3.
The Company may also use its funds to invest in real estate, in intellectual property rights or any
other movable or immovable assets in any kind or form.
3.4.
3.5.
The Company may borrow in any kind or form and privately issue bonds or notes.
In a general fashion the Company may carry out any commercial, industrial or financial operation,
which it may deem useful in the accomplishment and development of its purposes.
Article 4.- Duration
The Company is established for an unlimited duration. It may be dissolved by a decision of the sole
shareholder or by a general meeting of shareholders voting with the quorum and majority rules provided by law
and the present Articles of Association.
CHAPTER II. CAPITAL, SHARES
Page 2
Article 5.- Capital
5.1.
The corporate subscribed share capital is set at one hundred twenty-one thousand nine euro point
three one eight seven five (EUR 121,009.31875) divided into one hundred and ninety-three million six hundred
and fourteen thousand nine hundred and ten (193,614,910) shares having a nominal value of zero point zero zero
zero six hundred twenty-five euro (0.000625 EUR) each.
5.2.
The company's authorized share capital is fixed at one hundred thirty thousand eight hundred
eighty-six euro point zero zero six two five (EUR 130,886.00625) divided into two hundred and nine million four
hundred and seventeen thousand six hundred and ten (209,417,610) shares with a nominal value of zero point
zero zero zero six hundred twenty-five euro (0.000625 EUR) each.
5.3.
The Board of Directors is authorized to sub-delegate to one of the Company’s Directors or officer of
the Company or to any other duly authorized person, during a period ending five (5) years after the date of
publication of the minutes of the extraordinary general meeting of shareholders held on 14 March 2018, in the
RESA, Recueil Electronique des Sociétés et Associations, (i) to realise any increase of the corporate capital within
the limits of the authorized capital in one or several successive tranches, by the issue of new ordinary shares, with
or without share premium, in consideration for a payment in cash or in kind (a) following the exercise of
subscription rights and/or (b) following the exercise of conversion rights granted by the Board of Directors under
the terms of warrants (which may be separate or attached to ordinary shares, notes or similar instruments),
convertible notes or similar instruments issued from time to time by the Company, (c) by conversion of claims or
(d) in any other manner; (ii) to determine the place and date of the issue, the issue price, the terms and conditions
of the subscription and the payment of the newly issued ordinary shares; and (iii) to withdraw or restrict the
preferential subscription right of the shareholders.
5.4.
The ordinary shares may be issued above, at, or below market value, but in any event not below
the nominal value or below the accounting par value per ordinary share.
Article 6.- Shares
6.1.
6.2.
The ordinary shares are and shall remain in registered form only.
No fractional ordinary share shall be issued or exist at any time. The Board of Directors shall
however be authorized to provide at its discretion for the payment in cash in lieu of any fraction of an ordinary
share of the Company.
6.3.
6.4.
Ordinary shares may be held in trust by one or several shareholders.
A register of shareholders will be kept by the Company at its registered office, where it will be
available for inspection by any shareholder. This register will contain the precise designation of each shareholder
and the indication of the number of ordinary shares held, the indication of the payments made on the ordinary
shares as well as the transfers of ordinary shares and the dates thereof. Ownership of ordinary shares will be
established by inscription in the said register or in the event separate registrars have been appointed pursuant to
Article 6.5, in such separate register(s). Without prejudice to the conditions for transfer by book entries provided
for in Article 6.7 of these Articles of Association, a transfer of ordinary shares shall be
Page 3
carried out by means of a declaration of transfer entered in the relevant register, dated and signed by the
transferor and the transferee or by their duly authorized representatives or by the Company upon notification of
the transfer or acceptance of the transfer by the Company. The Company may accept and enter in the relevant
register a transfer on the basis of correspondence or other documents recording the agreement between the
transferor and the transferee.
6.5.
The Company may appoint registrars in different jurisdictions who may each maintain a separate
register for the ordinary shares entered therein. Shareholders may elect to be entered into one of these registers
and to transfer their ordinary shares to another register so maintained. The Board of Directors may however
impose transfer restrictions for ordinary shares that are registered, listed, quoted, dealt in or have been placed in
certain jurisdictions in compliance with the requirements applicable therein. A transfer to the register kept at the
Company's registered office may always be requested.
6.6.
Subject to the provisions of these Article 6.7 and Article 6.9, the Company may consider the person
in whose name the ordinary shares are registered in the register of shareholders as the full owner of such shares.
In the event that a holder of ordinary shares does not provide an address in writing to which all notices or
announcements from the Company may be sent, the Company may permit a notice to this effect to be entered into
the register of shareholders and such holder’s address will be deemed to be at the registered office of the
Company or such other address as may be so entered by the Company from time to time, until a different address
shall be provided to the Company by such holder in writing. The holder may, at any time, change his address as
entered in the register of shareholders by means of written notification to the Company.
6.7.
The ordinary shares may be held by a holder (the “Holder”) through a securities settlement system
or a Depositary (as this term is defined below). The Holder of ordinary shares held in such fungible securities
accounts has the same rights and obligations as if such Holder held the ordinary shares directly. The ordinary
shares held through a securities settlement system or a Depositary shall be recorded in an account opened in the
name of the Holder and may be transferred from one account to another in accordance with customary
procedures for the transfer of securities in book-entry form. However, the Company will make dividend payments,
if any, and any other payments in cash, ordinary shares or other securities, if any, only to the securities settlement
system or Depositary recorded in the register of shareholders or in accordance with the instructions of such
securities settlement system or Depositary. Such payment will grant full discharge of the Company’s obligations in
this respect.
6.8.
In connection with a general meeting of shareholders, the Board of Directors may decide that no
entry shall be made in the register of shareholders and no notice of a transfer shall be recognized by the Company
and the registrar(s) during the period starting on the Record Date (as hereinafter defined) and ending on the
closing of such general meeting.
6.9.
All communications and notices to be given to a registered shareholder shall be deemed validly
made if made to the latest address communicated by the shareholder to the Company in accordance with Article
6.5 or, if no address has been communicated by the shareholder, the registered office of the Company or such
other address as may be so entered by the Company in the register from time to time according to Article 6.7.
Page 4
6.10. Where ordinary shares are recorded in the register of shareholders in the name of or on behalf of a
securities settlement system or the operator of such system and recorded as book-entry interests in the accounts
of a professional depositary or any sub-depositary (any depositary and any sub-depositary being referred to
hereinafter as a “Depositary”), the Company - subject to having received from the Depositary a certificate in
proper form - will permit the Depositary of such book-entry interests to exercise the rights attaching to the ordinary
shares corresponding to the book-entry interests of the relevant Holder, including receiving notices of general
meetings, admission to and voting at general meetings, and shall consider the Depositary to be the holder of the
ordinary shares corresponding to the book-entry interests for purposes of this Article 6 of the present Articles of
Association. The Board of Directors may determine the formal requirements with which such certificates must
comply.
Article 7.- Increase and Reduction of Capital
7.1.
The authorized capital and the subscribed capital of the Company may be increased or reduced in
one or several times by a resolution of the shareholders voting with the quorum and majority rules set by these
Articles of Association or, as the case may be, by the law for any amendment of these Articles of Association.
7.2.
The subscribed capital of the Company may also be increased in one or several times by a
resolution of the Board of Directors within the limits of the authorized capital.
7.3.
The new ordinary shares to be subscribed for by contribution in cash will be offered by preference
to the existing shareholders in proportion to the part of the capital which those shareholders are holding. The
Board of Directors shall determine the period within which the preferred subscription right shall be exercised. This
period may not be less than fourteen days from the date of dispatch of a registered mail or any other means of
communication individually accepted by the addressees and ensuring access to the information sent to the
shareholders announcing the opening of the subscription period.
7.4.
Notwithstanding the above, the general meeting, voting with the quorum and majority rules required
for any amendment of the Articles of Association, may suppress, waive or limit the preferential subscription right or
authorize the Board of Directors to do so, to the extent that the Board of Directors deems such suppression,
waiver or limitation advisable for any issuance or issuances of shares within the scope of the authorized share
capital.
7.5.
If after the end of the subscription period not all of the preferential subscription rights offered to the
existing shareholder(s) have been subscribed by the latter, third parties may be allowed to participate in the share
capital increase, except if the Board of Directors decides that the preferential subscription rights shall be offered to
the existing shareholders who have already exercised their rights during the subscription period, in proportion to
the portion their ordinary shares represent in the share capital; the modalities for the subscription are determined
by the Board of Directors. The Board of Directors may also decide in such case that the share capital shall only be
increased by the amount of subscriptions received by the shareholder(s) of the Company.
Article 8.- Acquisition of own shares
Page 5
The Company may acquire or repurchase its own ordinary shares. The acquisition and holding of its own
ordinary shares will be in compliance with the conditions and limits established by the law.
Article 9.- Beneficiary Certificates
9.1.
The Company may issue, from time to time, beneficiary certificates (“parts bénéficiaires”) having the
rights set forth in these Articles of Association (the “Beneficiary Certificates”). The Board of Directors is hereby
authorized to issue up to one billion four hundred million (1,400,000,000) Beneficiary Certificates without reserving
to the existing shareholders a pre-emptive right to subscribe for the Beneficiary Certificates issued. The
Beneficiary Certificates may only be issued to shareholders of the Company. The Board of Directors shall
determine, in its absolute discretion, to which shareholders such Beneficiary Certificates shall be issued. At the
time of their issuance, the Board of Directors shall link the Beneficiary Certificates to one or more ordinary shares
of the Company held by the shareholder(s) to whom they are being issued based on a specific ratio applicable to
such shareholder as determined by the Board of Directors at time of issuance, with such ratio to be between 1:1
and 20:1 of Beneficiary Certificates to ordinary shares.
9.2.
There are currently three hundred and sixty-five million fourteen thousand eight hundred and forty
(365,014,840) Beneficiary Certificates outstanding out of the four hundred and eight million nine hundred and fifty-
seven thousand four hundred and seventy (408,957,470) Beneficiary Certificates issued.
9.3.
In the event that the Board of Directors proceeds to an issue of Beneficiary Certificates in
accordance with the provisions of this Article 9, it shall take, or cause to be taken, all steps necessary to amend
the Articles of Association to reflect such issuance.
9.4.
The Beneficiary Certificates shall be issued in registered form only and the ownership of each
Beneficiary Certificate shall be established by an entry in a register of Beneficiary Certificates (the “BC Register”).
The BC Register shall constitute evidence of ownership of the Beneficiary Certificates and the person whose
name appears in the BC Register as a holder shall be treated as the owner of the Beneficiary Certificates
registered in his name.
9.5.
The BC Register may be maintained by the Company at its registered office or may be entrusted by
the Company to a transfer agent. The BC Register shall contain the identity of the holders, the number of
Beneficiary Certificates held by each of them as well as their address and the date of entry. In case of transfer,
redemption or cancellation in accordance with the provisions of these Articles of Association, appropriate entries
shall be made.
The Company shall recognize only one single owner per Beneficiary Certificate. If one or more Beneficiary
Certificates are jointly owned, or if fractions of a Beneficiary Certificate are held by several holders or if the
ownership of such Beneficiary Certificate(s) is disputed, all persons claiming a right to such Beneficiary
Certificate(s), or holding a fraction of a Beneficiary Certificate respectively, have to appoint one single attorney to
represent such Beneficiary Certificate(s) towards the Company. The failure to appoint such attorney implies a
suspension of the voting right(s) attached to such Beneficiary Certificate(s).
9.6.
The Beneficiary Certificates shall not carry any right to participate in any dividend, share premium
repayment or any other kind of distributions, including the distribution of any liquidation proceeds, made by the
Company.
Page 6
9.7.
Each Beneficiary Certificate shall carry one (1) vote at any general meeting of the Company and
each Beneficiary Certificate will be taken into consideration for the calculation of quorum and majority required for
any such general meeting of the Company.
9.8.
The Beneficiary Certificates may not be transferred and shall automatically be cancelled in case of
sale or transfer of the share(s) to which they are linked, provided that exceptions to transfers of Beneficiary
Certificates or to their cancellation upon sale or transfer of the respective underlying ordinary shares to which they
are linked may be made by the Board of Directors on a case-by-case basis and in its absolute discretion, at which
time the Board may also recalculate the ratio and, if applicable, re-allocate any such non-cancelled Beneficiary
Certificates to the remaining applicable ordinary shares (which are already linked to other Beneficiary Certificates)
on a pro rata basis. In case of any permitted recalculation of ordinary shares as a result of a share split, bonus
issue of ordinary shares, subdivision or split of shares or a combination of shares through a reverse split or similar
actions, the Beneficiary Certificates shall be treated in the same manner as the ordinary shares to which they are
linked.
9.9.
In the same manner, all the Beneficiary Certificates shall automatically be cancelled in case the
number of ordinary shares held by Rosello Company Limited and D.G.E Investments Ltd, including their
respective successors, in the aggregate, falls under seven million five hundred sixty-four thousand six hundred
(7,564,600) ordinary shares.
9.10. Any amendment to the rights of the holders of Beneficiary Certificates set out in the Articles of
Association shall require a decision of the general meeting of shareholders adopted with the quorum and majority
required for an amendment to the Articles of Association. In addition, the same quorum and majority shall also be
reached in a meeting of the holders of Beneficiary Certificates as if the same were voting as a separate class.
CHAPTER III. BOARD OF DIRECTORS, STATUTORY AUDITORS
Article 10.- Board of Directors
1.
The Company will be managed and administered by a board of directors (the "Board of Directors")
composed of class A directors (the "A Directors") and B Directors (the "B Directors") who need not be
shareholders (the "Directors"). The Board of Directors shall always be composed of at least three (3) Directors.
2.
The Directors will be elected by the shareholders’ meeting which will determine the duration of their
mandate, and they will hold office until their successors are elected. They may be re-elected for successive terms
and they may be removed at any time, with or without cause, by a resolution of the shareholders’ meeting.
Article 11.- Vacancy in the office of the Board of Directors
In the event of a vacancy in the office of a member of the Board of Directors because of death, legal
incapacity, bankruptcy, resignation or otherwise, this vacancy may be filled on a temporary basis and for a period
of time not exceeding the initial mandate of the replaced member of the Board of Directors by the remaining
members of the Board of Directors until the next general meetings of the shareholders of the Company which shall
resolve on the permanent appointment in compliance with the applicable legal provisions and present Articles of
Association.
Article 12.- Meetings of the Board of Directors
i. The Board of Directors may appoint from among its members a chairman (the “Chairman”). It may also
appoint a secretary, who need not be
Page 7
a Director and who will be responsible for keeping the minutes of the meetings of the Board of Directors and of the
shareholders.
ii. The Board of Directors will meet upon call by the Chairman. A meeting of the Board of Directors must be
convened if any of two Directors so require.
iii. The Chairman will preside at all meetings of the Board of Directors and of the shareholders (if required),
except that in his absence the Board of Directors may appoint another Director and the general meeting of
shareholders may appoint any other person as chairman pro tempore by vote of the majority present or
represented at such meeting.
iv. Except in cases of urgency or with the prior consent of all those entitled to attend, at least twenty-four
hours’ written notice of board meetings shall be given in writing, by fax, by mail, by e-mail or by any other mean of
written communication. Any such notice shall specify the time and place of the meeting as well as the agenda and
the nature of the business to be transacted. The notice may be waived by the consent in writing, by fax, by mail or
by e-mail of each Director. No separate notice is required for meetings held at times and places specified in a
schedule previously adopted by resolution of the Board of Directors.
v. Every Board meeting shall be held in Luxembourg or such other place as the Board of Directors may from
time to time determine.
vi. Any Director may act at any meeting of the Board of Directors by appointing in writing, by fax, by email or
by mail another Director as his proxy.
vii. A quorum of the Board of Directors shall be one (1) A Director and one (1) B Director present at the
meeting or, in the event that no category A or category B director have been appointed, three (3) Directors holding
office. When the Section 303A.03 of the New York Stock Exchange Listed Company Manual requires that, at least
once a year, only independent directors of the Company may hold a meeting, the quorum required for a meeting
of the Board of Directors can be disregarded and the independent directors must all be present or represented at
this meeting.
viii. All business arising at any meeting of the Board of Directors shall be determined by resolution passed by a
majority of votes cast. In the case of an equality of votes, the Chairman shall have the right to cast the deciding
vote (the “Casting Vote”). The Casting Vote shall be personal to the Chairman and will not transfer to any other
Director acting as a chairman of a meeting of the Board of Directors in the Chairman’s absence.
ix. One or more Directors may participate in a meeting by means of a conference call, by videoconference or
by any similar means of communication enabling thus several persons participating therein to simultaneously
communicate with each other. Such participation shall be deemed equivalent to a physical presence at the
meeting.
x. A written decision, signed by all the Directors, is proper and valid as though it had been adopted at a
meeting of the Board of Directors which was duly convened and held. Such a decision can be documented in a
single document or in several separate documents having the same content and each of them signed by one or
several Directors.
Article 13.- Minutes of Meetings of the Board of Directors
1.
The minutes of any meeting of the Board of Directors will be signed by the Chairman of the meeting
and by the secretary (if any). Any proxies will remain attached thereto.
2.
Copies or extracts of such minutes which may be produced in judicial proceedings or otherwise will
be signed by the Chairman and by the secretary (if any) or by any two members of the Board of Directors.
Page 8
Article 14.- Powers of the Board of Directors
The Board of Directors is vested with the broadest powers (except for those powers which are expressly
reserved by law to the sole shareholder or the general meeting of shareholders) to perform all acts necessary or
useful for accomplishing the Company’s object. All powers not expressly reserved by law or by the Articles of
Association to the sole shareholder or the general meeting of shareholders are in the competence of the Board of
Directors.
Article 15.- Delegation of Powers
According to article 441-10 of the Law, the daily management of the Company as well as the
representation of the Company in relation with this management may be delegated to one or more Directors (the
“Managing Director(s)”), officers, managers or other agents, associate or not, acting alone or jointly. Their
nomination, revocation and powers shall be settled by a resolution of the Board of Directors. The delegation to a
member of the Board of Directors shall entail the obligation for the Board of Directors to report each year to the
ordinary general meeting on the salary, fees and any advantages granted to the delegate. The Company may also
grant special powers by authentic proxy or power of attorney by private instrument.
Article 16.- Conflict of Interests
16.1. Save as otherwise provided by the Law, any member of the Board of Directors who has, directly or
indirectly, a financial interest conflicting with the interest of the Company in connection with a transaction falling
within the competence of the Board of Directors, must inform the Board of Directors of such conflict of interest and
must have his declaration recorded in the minutes of the meeting of the Board of Directors. The relevant member
of the Board of Directors may not take part in the discussions relating to such transaction nor vote on such
transaction. Any such conflict of interest must be reported to the next general meeting of shareholders of the
Company prior to such meeting taking any resolution on any other item.
16.2. Where, by reason of conflicting interests, the number of members of the Board of Directors required
in order to validly deliberate is not met, the Board of Directors may decide to submit the decision on this specific
item to the general meeting of shareholders.
16.3. The conflict of interest rules shall not apply where the decision of the Board of Directors relates to
day-to-day transactions entered into under normal conditions.
16.4. The daily manager(s) of the Company, if any, are subject to articles 16.1 to 16.3 of these Articles of
Association provided that if only one daily manager has been appointed and is in a situation of conflicting
interests, the relevant decision shall be adopted by the Board of Directors.
Article 17.- Committees of the board of directors
The Board of Directors may establish one or more committees, including without limitation, an audit
committee and a remuneration committee, and for which it shall, if one or more of such committees are set up,
appoint the members who may be but do not need to be members of the Board of Directors (subject always, if the
ordinary shares of the Company are listed on a foreign stock exchange, to the requirements of such foreign stock
exchange applicable to the Company and/or of such regulatory authority competent in relation to such listing),
determine the purpose, powers and authorities as well as the procedures and such other rules as may be
applicable thereto.
Article 18.- Indemnification
18.1. The members of the Board of Directors are not held personally liable for the indebtedness or other
obligations of the Company. As agents of
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the Company, they are responsible for the performance of their duties. Subject to the exceptions and limitations
listed in Article 18.2 and mandatory provisions of law, every person who is, or has been, a member of the Board of
Directors or officer of the Company shall be indemnified by the Company to the fullest extent permitted by law
against liability and against all expenses reasonably incurred or paid by him in connection with any claim, action,
suit or proceeding which he becomes involved as a party or otherwise by virtue of his or her being or having been
a director or officer and against amounts paid or incurred by him or her in the settlement thereof. The words
“claim”, “action”, “suit” or “proceeding” shall apply to all claims, actions, suits or proceedings (civil, criminal or
otherwise including appeals) actual or threatened and the words “liability” and “expenses” shall include without
limitation attorneys’ fees, costs, judgments, amounts paid in settlement and other liabilities.
18.2. No indemnification shall be provided to any director, officer or shareholder (i) against any liability by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office (ii) with respect to any matter as to which he or she shall have been finally adjudicated
to have acted in bad faith and not in the interest of the Company or (iii) in the event of a settlement, unless the
settlement has been approved by a court of competent jurisdiction or by the Board of Directors.
18.3. The right of indemnification herein provided shall be severable, shall not affect any other rights to
which any director or officer may now or hereafter be entitled, shall continue as to a person who has ceased to be
such director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
Nothing contained herein shall affect or limit any rights to indemnification to which corporate personnel, including
directors and officers, may be entitled by contract or otherwise under law. The Company shall specifically be
entitled to provide contractual indemnification to and may purchase and maintain insurance for any corporate
personnel, including directors and officers of the Company, as the Company may decide upon from time to time.
Article 19.- Representation of the Company
The Company will be bound towards third parties by the joint signature of any A Director and any B Director
or by the sole signature of the person to whom the daily management of the Company has been delegated, within
such daily management or by the joint signatures or sole signature of any persons to whom such signatory power
has been delegated by the Board of Directors, but only within the limits of such power.
Article 20.- Statutory Auditors
20.1. The transactions of the Company shall be supervised by one or several statutory auditors
(commissaires). The general meeting of shareholders shall appoint the statutory auditor(s) and shall determine
their term of office, which may not exceed six (6) years.
20.2. A statutory auditor may be removed at any time, without notice and with or without cause by the
general meeting of shareholders.
20.3. The statutory auditor(s) have an unlimited right of permanent supervision and control of all
transactions of the Company.
20.4.
If the general meeting of shareholders of the Company appoints one or more independent auditors
(réviseurs d’entreprises agréés) in accordance with Article 69 of the law of 19 December 2002 regarding the trade
and companies register and the accounting and annual accounts of undertakings, as amended, the institution of
statutory auditors is no longer required.
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20.5. An independent auditor may only be removed by the general meeting of shareholders for cause or
with his approval.
CHAPTER IV. MEETING OF SHAREHOLDERS
Article 21.- Powers of the Meeting of Shareholders
The general meeting of shareholders and holders of Beneficiary Certificates shall represent all the
shareholders and all the holders of Beneficiary Certificates of the Company (the “General Meeting”). It has the
powers conferred upon it by law.
Article 22.- Annual General Meeting
The annual General Meeting shall be held within six (6) months of the end of each financial year in the
Grand Duchy of Luxembourg at the registered office of the Company or at such other place in the Grand Duchy of
Luxembourg as may be specified in the convening notice of such meeting. Other General Meetings may be held at
such place and time as may be specified in the respective convening notices. Holders of bonds are not entitled to
attend General Meetings.
Article 23.- Other General Meetings
23.1. The Board of Directors may convene other General Meetings. Such meetings must be convened if
shareholders representing at least ten percent (10%) of the Company’s capital so require.
23.2. General Meetings, including the annual General Meeting, may be held abroad if, in judgment of the
Board of Directors, which is final, circumstances of force majeure so require.
23.3. General Meetings shall be convened in accordance with the provisions of the law and if the ordinary
shares of the Company are listed on a foreign stock exchange, in accordance with the requirements of such
foreign stock exchange applicable to the Company.
23.4.
If the ordinary shares of the Company are listed on a foreign stock exchange, all shareholders
recorded in any register of shareholders of the Company, the Holder or the Depositary as case may be, and the
holders of Beneficiary Certificates, are entitled to be admitted to the General Meeting; provided, however, that the
Board of Directors may determine a date and time preceding the General Meeting as the record date for
admission to the general meeting of shareholders (the “Record Date”), which may not be less than five (5) days
before the date of such meeting.
23.5. Any shareholder of the Company, Holder or Depositary, as the case may be, and any holder of
Beneficiary Certificates may attend the General Meeting by appointing another person as his or her proxy, the
appointment of which shall be in writing, in a manner to be determined by the Board of Directors in the convening
notice. In case of ordinary shares held through the operator of a securities settlement system or with a Depositary
designated by such Depositary, a holder of ordinary shares wishing to attend a General Meeting should receive
from such operator or Depositary a certificate certifying the number of ordinary shares recorded in the relevant
account on the Record Date and that such ordinary shares are blocked until the closing of the General Meeting to
which it relates. The certificate should be submitted to the Company no later than three (3) business days prior to
the date of such general meeting. If the shareholder or holder of Beneficiary Certificates votes by means of a
proxy, the proxy shall be deposited at the registered office of the Company or with any agent of the Company, duly
authorized to receive such proxies, at the same time. The Board of Directors may set a shorter period for the
submission of the certificate or the proxy.
Article 24.- Procedure, Vote
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1.
Shareholders and holders of Beneficiary Certificates will meet upon call by the Board of Directors or
the auditor(s) made in compliance with Luxembourg law. The notice sent to the shareholders and to the holders of
Beneficiary Certificates in accordance with the law will specify the time and place of the meeting as well as the
agenda and the nature of the business to be transacted.
2.
If all the shareholders and holders of Beneficiary Certificates are present or represented at a
General Meeting and if they state that they have been informed of the agenda of the meeting, the General Meeting
may be held without prior notice.
3.
Shareholders and holders of Beneficiary Certificates may act at any General Meeting by appointing
in writing, by fax, mail, email or by any other mean of written communication, as his proxy another person who
need not be a shareholder nor a holder of Beneficiary Certificates.
4.
Each shareholder and each holder of Beneficiary Certificates may vote at a General Meeting
through a signed voting form sent by mail or facsimile or by any other means of communication authorized by the
Board of Directors and delivered to the Company’s registered office or to the address specified in the convening
notice. The shareholders and holders of Beneficiary Certificates may only use voting forms provided by the
Company which contain at least the place, date and time of the meeting, the agenda of the meeting, the proposals
submitted to the resolution of the General Meeting, as well as for each proposal three boxes allowing the
shareholder and holder of Beneficiary Certificates to vote in favor of or against the proposed resolution or to
abstain from voting thereon by ticking the appropriate boxes. The Company will only take into account voting
forms received no later than three (3) business days prior to the date of the General Meeting to which they relate.
The Board of Directors may set a shorter period for the submission of the voting forms.
5.
The Board of Directors may determine all other conditions that must be fulfilled in order to take part
in General Meeting.
6.
Except as otherwise required by law or by the present Articles of Association, resolutions will be
taken by a simple majority of votes irrespective of the number of shareholders and holders of Beneficiary
Certificates present or represented at the General Meeting.
7.
One vote is attached to each outstanding ordinary share. Each Beneficiary Certificate entitles its
holder to one vote.
8.
Copies of extracts of the minutes of the meeting to be produced in judicial proceedings or otherwise
will be signed by any two members of the Board of Directors or by the Chairman of the Board of Directors.
CHAPTER V. FINANCIAL YEAR, DISTRIBUTION OF PROFITS
Article 25.- Financial Year
The Company’s financial year begins on the first day of January and ends on the last day of December in
every year. The Board of Directors shall prepare annual accounts in accordance with the requirements of
Luxembourg law and accounting practice.
Article 26.- Appropriation of Profits
i. From the annual net profits of the Company, five per cent (5%) shall be allocated to the reserve required by
law. That allocation will cease to be required as soon and as long as such reserve amounts to ten per cent (10%)
of the subscribed capital of the Company.
ii. The General Meeting shall determine how the remainder of the annual net profits will be disposed of. It
may decide to allocate the whole or part of the
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remainder to a reserve or to a provision reserve, to carry it forward to the next following financial year or to
distribute it to the shareholders as dividend.
iii. Subject to the conditions fixed by law, the Board of Directors may pay out an advance payment on
dividends. The Board of Directors fixes the amount and the date of payment of any such advance payment.
CHAPTER VI. DISSOLUTION, LIQUIDATION
Article 27.- Dissolution, Liquidation
27.1. The Company may be dissolved by a decision of the General Meeting voting with the same quorum
and majority as for the amendment of these Articles of Association, unless otherwise provided by law.
27.2. Should the Company be dissolved, the liquidation will be carried out by one or more liquidators
appointed by the General Meeting, which will determine their powers and their compensation.
27.3. After payment of all the debts of and charges against the Company and of the expenses of
liquidation, the net assets shall be distributed equally to the holders of the ordinary shares pro rata to the number
of the ordinary shares held by them.
CHAPTER VII. AMENDMENT OF THE ARTICLES OF ASSOCIATION
Article 28.- Amendments of the Articles of Association
These Articles of Association may be amended by a resolution of the General Meeting adopted under a
quorum of fifty per cent (50%) of the share capital of the Company and a majority of two thirds of the votes of the
shareholders and holders of Beneficiary Certificates of the Company, provided that the agenda of the General
Meeting indicates the proposed amendments and that a copy of the coordinated articles of association is made
available at the registered office of the Company at least eight (8) days prior to the general meeting of
shareholders and holders of Beneficiary Certificates.
Article 29.- Change of nationality
The shareholders may change the nationality of the Company by a resolution of the General Meeting
adopted in the manner required for an amendment of these Articles of Association.
CHAPTER VIII. APPLICABLE LAW
Article 30.- Applicable Law
All matters not governed by these Articles of Association shall be determined in accordance with the Law.
Where any matter contained in these Articles of Association conflicts with the provisions of a shareholders'
agreement as may be concluded from time to time by the shareholders of the Company, the terms of such
shareholders' agreement shall prevail inter partes and to the extent permitted by Luxembourg law.”
Suit la traduction en français du texte qui précède :
CHAPITRE Ier. FORME, DÉNOMINATION, SIÈGE, OBJET, DURÉE
Article 1er. Forme, Dénomination
La société est constituée sous la forme d’une société anonyme, régie par les lois du GrandDuché de
Luxembourg et notamment la loi du 10 aout 1915 sur les sociétés commerciales (la « Loi »), telle que modifiée,
ainsi que par les présents statuts (les « Statuts ») (la « Société »).
La Société adopte la dénomination « SPOTIFY TECHNOLOGY S.A. ».
Article 2. Siège Social
2.1 Le siège social de la Société est établi à Luxembourg-Ville.
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2.2 Le siège social peut être transféré à tout autre endroit de la Ville de Luxembourg ou dans toute autre
commune du Grand-Duché de Luxembourg par décision du Conseil d'Administration. Des succursales ou autres
bureaux peuvent être établis soit au Grand-Duché de Luxembourg, soit à l’étranger par une décision du Conseil
d'Administration. Par la suite, le Conseil d’Administration est autorisé à modifier les Statuts afin de refléter le
changement de commune du siège social de la Société et d’acter cette modification devant un notaire.
2.3 Dans l’hypothèse où le Conseil de d’Administration estimerait que des événements exceptionnels
d'ordre politique, économique ou social ou des catastrophes naturelles se sont produits ou seraient imminents, de
nature à interférer avec l'activité normale de la Société à son siège social, il pourra transférer provisoirement le
siège social à l'étranger jusqu'à la cessation complète de ces circonstances exceptionnelles. Ces mesures
provisoires n'auront toutefois aucun effet sur la nationalité de la Société, laquelle, nonobstant ce transfert
provisoire du siège social, restera une société régie par les lois du GrandDuché de Luxembourg.
Article 3. Objet
3.1 La Société a pour objet la prise de participations et la détention de participations directes ou
indirectes dans des entreprises luxembourgeoises et/ou étrangères ainsi que l'administration, la gestion et la mise
en valeur de ces participations.
3.2 La Société peut accorder toute assistance financière à des filiales, des sociétés affiliées ou à d'autres
sociétés appartenant au même groupe de sociétés que la Société, notamment des prêts, garanties ou sûretés
sous quelque forme que ce soit.
3.3 La Société peut employer ses fonds en investissant dans l'immobilier ou les droits de propriété
intellectuelle ou tout autre actif mobilier ou immobilier sous quelque forme que ce soit.
3.4 La Société peut emprunter sous toutes formes et procéder à l’émission d’obligations.
3.5 D'une manière générale, la Société peut effectuer toute opération commerciale, industrielle ou
financière qu'elle jugera utile à l'accomplissement et au développement de son objet social.
Article 4. Durée
La Société est établie pour une durée illimitée. Elle peut être dissoute par décision de l’associé unique ou
par une assemblée générale des actionnaires votant avec le quorum et la majorité prévus par la loi et les présents
Statuts.
CHAPITRE II. CAPITAL, ACTIONS
Article 5. Capital Social
5.1 Le capital social souscrit émis est fixé à cent vingt et un mille neuf virgule trois un huit sept cinq euros
(EUR 121.009,31875) divisé en cent quatre-vingt-treize millions six cent quatorze mille neuf cent dix
(193.614.910) actions d'une valeur nominale de zéro virgule zéro zéro six cent vingt-cinq euros (0,00625 EUR)
chacune.
5.2 Le capital autorisé de la Société est fixé à cent trente mille huit cent quatre-vingt-six virgule zéro zéro
six deux cinq euros (EUR 130.886,00625) divisé en deux cent neuf millions quatre cent dix-sept mille six cent dix
(209.417.610) actions d'une valeur nominale de zéro virgule zéro zéro zéro six cent vingt-cinq euros (0,000625
EUR) chacune.
5.3 Le Conseil d’Administration est autorisé à sous-déléguer à un des Administrateurs de la Société,
fondé de pouvoir de la Société, ou toute
Page 14
autre personne dûment autorisée, pendant une période se terminant cinq (5) ans après la date de publication du
procès-verbal de l’assemblée générale extraordinaire des actionnaires tenue le 14 mars 2018, au RESA, Recueil
Electronique des Sociétés et Association, de (i) réaliser toute augmentation du capital social dans les limites du
capital autorisé en une ou plusieurs tranches successives par l’émission de nouvelles actions ordinaires avec ou
sans prime d’émission, en contrepartie d’un paiement en espèces ou en nature, (a) suivant l’exercice des droits
de souscription et/ou (b) suivant l’exercice des droits de conversion accordés par le Conseil d’Administration sous
les conditions de bons de souscription (pouvant être attachés ou séparés d’actions ordinaires, d’obligations ou
autres instruments similaires), d’obligations convertibles ou d’autres instruments similaires émis de temps en
temps par la Société, (c) par la conversion de créances ou (d) de toute autre manière, (ii) déterminer le lieu et la
date d’émission, le prix d’émission, les conditions générales de souscription et de libération des nouvelles actions
ordinaires et (iii) supprimer ou limiter le droit préférentiel de souscription des actionnaires.
5.4 Les actions ordinaires peuvent être émises à une valeur supérieure, égale ou inférieure à leur valeur
de marché, mais en aucun cas à une valeur inférieure à leur valeur nominale ou à la valeur nette comptable d’une
action ordinaire.
Article 6. Actions
6.1 Les actions ordinaires sont et devront être uniquement sous forme nominative.
6.2 Aucune fraction d’action ordinaire ne peut exister ou être émise. Le Conseil d'Administration est
cependant autorisé à organiser de façon discrétionnaire le paiement en espèces au lieu de toute fraction d'action
ordinaire de la Société.
6.3 Les actions ordinaires peuvent être détenues en fiducie par un ou plusieurs actionnaires.
6.4 Un registre des actionnaires sera tenu par la Société à son siège social où il sera mis à disposition
aux fins de vérifications par tout actionnaire. Ce registre contiendra la désignation précise de chaque actionnaire
et l’indication du nombre de ses actions ordinaires, l’indication des paiements effectués sur ses actions ordinaires
ainsi que les transferts des actions ordinaires avec leur date. La propriété des actions ordinaires sera établie par
l’inscription sur ledit registre ou dans le cas ou des teneurs de registres séparés ont été nommés conformément à
l’Article 6.5 des Statuts, dans ce(s) registre(s) séparé(s). Sans préjudice des conditions de transfert par
inscriptions prévues à l’Article 6.7 des Statuts, un transfert d’actions ordinaires devra être effectué au moyen
d’une déclaration de transfert inscrite dans le registre concerné, datée et signée par le cédant et le cessionnaire
ou par leurs représentants dûment autorisés ou par la Société suite à la notification de la cession ou de
l’acceptation de la cession par la Société. La Société peut accepter et inscrire un transfert dans le registre
approprié sur la base d’une correspondance ou de tout autre document actant un accord entre le cédant et le
cessionnaire.
6.5 La Société peut nommer des teneurs de registre dans différentes juridictions qui pourront tenir
chacun un registre séparé pour les actions ordinaires qui y seront inscrites. Les actionnaires pourront choisir
d'être inscrits dans l'un des registres et de transférer leurs actions ordinaires dans un autre registre tenu de cette
façon. Le Conseil d'Administration peut toutefois imposer des restrictions au transfert pour les actions ordinaires
Page 15
inscrites, cotées, traitées ou placées dans certaines juridictions conformément aux exigences applicables dans
ces juridictions. Un transfert dans le registre tenu au siège social de la Société peut toujours être demandé.
6.6 Sous réserve des dispositions de l'Article 6.7 et l'Article 6.9, la Société peut considérer la personne
au nom de laquelle les actions ordinaires sont inscrites dans le registre des actionnaires comme étant le
propriétaire unique desdites actions ordinaires. Dans le cas où un détenteur d'actions ordinaires n’ai pas fourni
par voie écrite d'adresse à laquelle toutes les notifications et communications de la Société pourront être
envoyées, la Société pourra permettre l’inscription de cette information dans le registre des actionnaires et
l'adresse de ce détenteur sera considérée comme étant au siège social de la Société ou à tout autre adresse que
la Société pourra inscrire au fil du temps jusqu'à ce que ce détenteur ait fourni par écrit une adresse différente à la
Société. Le détenteur peut modifier à tout moment son adresse figurant au registre des actionnaires au moyen
d'une notification écrite faite à la Société.
6.7 Les actions ordinaires peuvent être tenues par un porteur (le «Porteur») au travers d’un système de
compensation ou d'un Dépositaire (tel que ce terme est défini ci-dessous). Le Porteur d'actions ordinaires
détenues dans ces comptes de titres fongibles a les mêmes droits et obligations que si ce Porteur détenait
directement les actions ordinaires. Les actions ordinaires détenues au travers d’un système de compensation ou
d'un Dépositaire doivent être consignées dans un compte ouvert au nom du Porteur et peuvent être transférées
d'un compte à un autre, conformément aux procédures habituelles pour le transfert de titres sous forme
d'inscription en compte. Toutefois, la Société versera les dividendes, s’il y en a, ainsi que tout autre paiement en
espèces, actions ordinaires ou autres titres, s’il y en a, uniquement au profit du système de compensation ou du
Dépositaire inscrits dans le registre des actionnaires ou conformément aux instructions de ce système de
compensation ou du Dépositaire. Ce paiement déchargera complètement la Société de ses obligations à cet
égard.
6.8 Dans le cadre d'une assemblée générale des actionnaires, le Conseil d'Administration peut décider
qu’aucune inscription ne soit faite dans le registre des actionnaires et qu’aucun avis de transfert ne soit reconnu
par la Société et le(s) teneur(s) de registre durant la période commençant à la Date d’Inscription (telle que définie
ci-après) et se terminant à la clôture de cette assemblée générale.
6.9 Toutes les communications et avis à donner à un actionnaire inscrit sont réputés valablement faits
s’ils sont faits à la dernière adresse communiquée par l'actionnaire à la Société conformément à l'Article 6.5 ou, si
aucune adresse n'a été communiquée par l'actionnaire, au siège social de la Société ou à toute autre adresse que
la Société pourra inscrire dans le registre au fil du temps conformément à l'Article 6.7.
6.10 Lorsque les actions ordinaires sont enregistrées dans le registre des actionnaires au nom ou pour
le compte d’un système de compensation ou de l’opérateur d’un tel système et enregistrées comme des entrées
dans les comptes d’un dépositaire professionnel ou de tout sous-dépositaire (tout dépositaire et tout sous-
dépositaire sera désigné ci-après comme un «Dépositaire»), la Société – sous réserve d'avoir reçu du
Dépositaire un certificat en bonne et due forme – permettra au Dépositaire de telles entrées en compte d'exercer
les droits attachés aux actions ordinaires correspondant aux entrées en compte du Porteur concerné, y compris
de recevoir les convocations aux assemblées générales, l'admission et le vote
Page 16
aux assemblées générales et devra considérer le Dépositaire comme étant le porteur des actions ordinaires
correspondant aux entrées en compte aux fins du présent Article 6 des présents Statuts. Le Conseil
d'Administration peut déterminer les conditions de forme auxquelles devront répondre ces certificats.
Article 7. Augmentation et Réduction du Capital Social
7.1 Le capital autorisé et le capital émis de la Société peut être augmenté ou réduit, en une ou en
plusieurs fois, par une résolution de l’assemblée générale des actionnaires, selon le cas, adoptée aux conditions
de quorum et de majorité exigées par les présents Statuts ou, le cas échéant, par la loi pour toute modification
des Statuts.
7.2 Le capital souscrit de la Société peut également être augmenté à une ou plusieurs reprises par une
résolution du Conseil d’Administration, dans les limites du capital autorisé.
7.3 Les nouvelles actions ordinaires à souscrire par apport en numéraire seront offertes par préférence
aux actionnaires existants proportionnellement à la part du capital qu’ils détiennent. Le Conseil d'Administration
fixera le délai pendant lequel le droit préférentiel de souscription devra être exercé. Ce délai ne pourra pas être
inférieur à quatorze jours à compter de la date d'envoi d'une lettre recommandée ou de tout autre moyen de
communication accepté individuellement par les destinataires et garantissant l'accès aux informations transmises
aux actionnaires annonçant l'ouverture de la période de souscription.
7.4 Par dérogation à ce que est dit ci-dessus, l'assemblée générale, délibérant aux mêmes conditions de
quorum et de majorité que celles exigées pour toute modification des Statuts, peut supprimer, renoncer ou limiter
le droit préférentiel de souscription ou autoriser le Conseil d’Administration à le faire, dans la mesure où le Conseil
d'Administration jugera cette suppression, renonciation ou limitation opportune pour toute émission ou émissions
d'actions dans la cadre du capital autorisé.
7.5 Si après la fin de la période de souscription, tous les droits préférentiels de souscription offerts aux
actionnaires existants n'ont pas été exercés par ces derniers, des tiers peuvent être autorisés à participer à
l'augmentation du capital social, sauf si le Conseil d'Administration décide que les droits préférentiels de
souscription seront offerts aux actionnaires existants qui ont déjà exercé leurs droits pendant la période de
souscription, proportionnellement à la part de leurs actions ordinaires dans le capital social; les modalités de
souscription sont déterminées par le Conseil d'Administration. Le Conseil d'Administration peut également décider
dans ce cas que le capital social ne sera augmenté qu’à concurrence du montant des souscriptions reçues par
le(s) actionnaire(s) de la Société
Article 8. Rachat d’actions
La Société peut acquérir ou racheter ses propres actions ordinaires.
L’acquisition et la détention de ses propres actions ordinaires se fera conformément aux conditions et dans
les limites fixées par la loi.
Article 9. Parts Bénéficiaires
9.1 La Société peut émettre à tout moment des parts bénéficiaires disposant de droits fixés par les
Statuts (les “Parts Bénéficiaires”). Le Conseil d'Administration est autorisé à émettre jusqu’à un milliard quatre
cent millions (1.400.000.000) de Parts Bénéficiaires sans qu’un droit préférentiel de souscription soit réservé aux
actionnaires existants pour les Parts Bénéficiaires émises. Les Parts Bénéficiaires ne pourront être émises qu’aux
actionnaires de la Société. La décision d’émettre des Parts Bénéficiaires à un
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actionnaire relève de l’entière discrétion du Conseil d'Administration. Au moment de leur émission, le Conseil
d'Administration devra lier les Parts Bénéficiaires à une ou plusieurs actions ordinaires de la Société détenues par
l' (les) actionnaire(s) en faveur duquel (desquels) elles ont été émises, sur base d’un ratio applicable à cet
actionnaire tel que fixé par le Conseil d'Administration au moment de l'émission, ce ratio devant se situer entre 1:1
et 20:1 des Parts Bénéficiaires aux actions ordinaires.
9.2 Il y a actuellement trois cent soixante-cinq millions quatorze mille huit cent quarante (365.014.840)
Parts Bénéficiaires en circulation sur les quatre cent huit millions neuf cent cinquante-sept mille quatre cent
soixante-dix (408.957.470) Parts Bénéficiaires émises.
9.3 Dans l'hypothèse où le Conseil d'Administration procède à une émission des Parts Bénéficiaires
conformément aux dispositions du présent Article 9, il prend, ou fait prendre, tous les étapes nécessaires à la
modification des Statuts afin qu’ils reflètent cette émission.
9.4 Les Parts Bénéficiaires seront émises uniquement sous forme nominative et la propriété de chaque
Part Bénéficiaire s'établit par inscription au registre des Parts Bénéficiaires (le “Registre PB”). Le Registre PB
constitue la preuve de la propriété des Parts Bénéficiaires et toute personne dont le nom figure au Registre PB
comme titulaire est considérée propriétaire des Parts Bénéficiaires enregistrées à son nom.
9.5 Le Registre PB pourra être tenu par la Société à son siège social ou pourra être confié par la Société
à un agent de transfert. Le Registre PB doit contenir l'identité des détenteurs de Parts Bénéficiaires, le nombre
des Parts Bénéficiaires détenues par chacun d'eux ainsi que leur adresse et date d'entrée. En cas de transfert,
rachat ou annulation effectués conformément aux dispositions des Statuts, les écritures correspondantes devront
être inscrites au registre.
La Société ne reconnaît qu'un seul propriétaire par Part Bénéficiaire. Si la propriété de la Part Bénéficiaire
est indivise, ou si des fractions d’une Part Bénéficiaire sont détenues par plusieurs détenteurs de Parts
Bénéficiaires ou si la propriété de ces Parts Bénéficiaires est contestée, l’ensemble des personnes invoquant un
droit sur cette (ces) Part(s) Bénéficiaire(s), ou disposant d'une fraction d’une Part Bénéficiaire respectivement,
doivent nommer un mandataire spécial pour représenter cette (ces) Part(s) Bénéficiaire(s) envers la Société. Le
manquement à cette obligation de nomination pourra entraîner la suspension du (des) droit(s) de vote rattaché(s)
à de telle(s) Part(s) Bénéficiaire(s).
9.6 Les Parts Bénéficiaires ne donnent pas le droit aux dividendes, remboursement de primes d'émission
ou à des distributions de quelque type que ce soit, y compris la distribution du boni de liquidation réalisée par la
Société.
9.7 Chaque Part Bénéficiaire donne droit à une (1) voix à toute assemblée générale des actionnaires de
la Société et chaque Part Bénéficiaire sera prise en considération dans le calcul du quorum et de la majorité
requis pour les assemblées générales de la Société.
9.8 Les Parts Bénéficiaires ne peuvent pas être transférées et devront être automatiquement annulées
en cas de cession ou de transfert de(s) l’action(s) à laquelle (auxquelles) elles sont liées, étant donné que les
exceptions aux transferts des Parts Bénéficiaires ou à leur annulation lors de la cession ou du transfert des
actions ordinaires sous-jacentes auxquelles elles sont liées seront décidées par le Conseil d'Administration au cas
par cas et relèveront de son entière discrétion, à cette occasion, le Conseil
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d’Administration pourra aussi recalculer le ratio et, le cas échéant, répartir les Parts Bénéficiaires non annulées
aux actions ordinaires éligibles restantes (déjà liées à d’autres Parts Bénéficiaires) au prorata. En cas d'un calcul
autorisé d’actions ordinaires résultant d’un fractionnement d’actions, d’attribution d'actions ordinaires gratuites,
d’une subdivision ou division des actions ou combinaison d’actions à travers une consolidation ou action similaire,
les Parts Bénéficiaires sont traitées de la même manière que les actions ordinaires auxquelles elles sont liées.
9.9 De la même façon, toutes les Parts Bénéficiaires seront automatiquement annulées dans l'hypothèse
où le nombre d'actions ordinaires total détenu par Rosello Company Limited et D.G.E Investments Ltd, et leurs
successeurs, descendrait en dessous de sept millions cinq cent soixante-quatre mille six cents (7.564.600)
actions ordinaires.
9.10 Toute modification affectant les droits des détenteurs de Parts Bénéficiaires fixés dans les Statuts
requiert une décision de l'assemblée générale des actionnaires prise aux conditions de quorum et de majorité
requises pour une modification des Statuts. En outre, les mêmes quorum et majorité devront également être
atteints à une assemblée des titulaires des Parts Bénéficiaires comme s’ils votaient en tant que catégorie
distincte.
CHAPITRE III. ADMINISTRATEURS, COMMISSAIRE AUX COMPTES
Article 10. Conseil d’Administration
10.1 La Société est gérée et administrée par un conseil d'administration (le "Conseil d'Administration")
composé de membres de catégorie A (les "Administrateurs A") et de membres de catégorie B (les
"Administrateurs B"), associés ou non (les "Administrateurs"). Le Conseil d’Administration doit toujours être
composé au minimum de trois (3) Administrateurs.
10.2 Les Administrateurs seront nommés par l’assemblée générale qui détermine la durée de leur
mandat, et ils resteront en fonction jusqu’à ce que leurs successeurs soient élus. Ils peuvent être réélus pour des
mandats successifs et ils peuvent être révoqués à tout moment, avec ou sans motif par décision de l’assemblée
générale.
Article 11. Vacance d’un poste de membre du Conseil d’Administration
En cas de vacance d'un membre du Conseil d'administration en raison d'un décès, d'une incapacité légale,
d'une faillite, d'une démission ou autre, ce poste peut être pourvu de manière temporaire et pour une durée
n'excédant pas le mandat initial du membre remplacé du Conseil d'Administration, par les autres membres du
Conseil d'Administration jusqu'à la prochaine assemblée générale des actionnaires de la Société qui se
prononcera sur la nomination permanente dans le respect des dispositions légales applicables et des présents
Statuts.
Article 12. Réunions du Conseil d’Administration
12.1 Le Conseil d’Administration peut choisir parmi ses membres un président (le « Président »). Il
pourra également nommer un secrétaire qui n’a pas besoin d’être membre du Conseil d’Administration et qui sera
responsable de la tenue des procès-verbaux des réunions du Conseil d’Administration et des actionnaires.
12.2 Le Conseil d’Administration se réunira sur convocation du Président. Une réunion du Conseil
d’Administration doit être convoquée si deux Administrateurs le demandent.
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12.3 Le Président présidera toutes les réunions du Conseil d’Administration et les assemblées générales
des actionnaires (si nécessaires), mais en son absence le Conseil d’Administration pourra désigner un autre
membre du Conseil d’Administration et l’assemblée générale des actionnaires pourra désigner toute autre
personne comme président pro tempore à la majorité des membres présents ou représentés.
12.4 Sauf en cas d’urgence ou avec l’accord écrit préalable de tous ceux qui ont le droit d’y assister, une
convocation écrite de toute réunion du Conseil d’Administration devra être transmise, vingt-quatre heures au
moins avant la date prévue pour la réunion, par télécopie, par courrier, par courriel ou tout autre moyen de
communication. La convocation indiquera la date, l’heure et le lieu de la réunion ainsi que l’ordre du jour et la
nature des affaires à traiter. Il pourra être passé outre cette convocation avec l’accord écrit transmis par télécopie,
par courrier ou par courriel de chaque membre du conseil d’Administration. Une convocation spéciale ne sera pas
requise pour les réunions se tenant à une date et à un endroit déterminés dans une résolution préalablement
adoptée par le Conseil d’Administration.
12.5 Toute réunion du Conseil d’ Administration se tiendra à Luxembourg ou tout autre endroit que le
Conseil d’Administration pourra déterminer d’un temps à l’autre.
12.6 Tout membre du Conseil d’Administration pourra se faire représenter aux réunions du Conseil d’
Administration en désignant par écrit, par télécopie, par couriel ou par courrier un autre membre du Conseil d’
Administration comme son mandataire.
12.7 Le quorum du Conseil d’Administration est d’un (1) Administrateur A et d’un (1) Administrateur B
présent à la réunion ou, dans l’hypothèse où aucun administrateur de catégorie A ou de catégorie B n’ait été
nommé, trois (3) Administrateurs en fonction. Dans le cas où, la Section 303A.03 du manuel des sociétés cotées
de la bourse de New-York (New-York Stock Exchange Listed Company Manual), exige qu’une réunion des
administrateurs indépendants prenne place au moins une fois par an, le quorum requis pour une réunion du
Conseil d’Administration pourra être ignoré et tous les administrateurs indépendants devront alors être présents
ou représentés à cette réunion.
12.8 Toutes les affaires à l’ordre du jour de toute réunion du Conseil d’Administration seront déterminées
par une résolution passée à la majorité des voix en faveur de la résolution. Dans le cas d’une égalité de voix, le
Président aura une voix prépondérante (la « Voix Prépondérante»). La Voix Prépondérante sera personnelle au
Président et ne pourra être transférée à un Administrateur agissant comme président de la réunion du Conseil
d’Administration, en l’absence du Président.
12.9 Un ou plusieurs Administrateurs peuvent participer à une réunion par conférence téléphonique,
visioconférence ou par tout autre moyen de communication similaire permettant ainsi à plusieurs personnes y
participant de communiquer simultanément l’une avec l’autre. Une telle participation sera considérée équivalente
à une présence physique à la réunion.
12.10 Une décision écrite signée par tous les Administrateurs est régulière et valable comme si elle avait
été adoptée à une réunion du Conseil d’Administration, dûment convoquée et tenue. Une telle décision pourra
être consignée dans un seul ou plusieurs écrits séparés ayant le même contenu et signé par un ou plusieurs
Administrateurs.
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Article 13. Procès-verbaux des Réunions du Conseil d’Administration
13.1 Les procès-verbaux de toute réunion du Conseil d'Administration seront signés par le Président de
la réunion et par le secrétaire (s’il y a un). Les procurations resteront annexées aux procès-verbaux.
13.2 Les copies ou extraits de ces procès-verbaux, destinés à servir en justice ou ailleurs, seront signés
par le Président et le secrétaire (s’il y en a) ou par deux membres du Conseil d’Administration.
Article 14. Pouvoirs du Conseil d’Administration
Le Conseil d’Administration est investi de tous les pouvoirs (à l’exception de ceux qui sont expressément
réservés par la loi à l’associé unique ou à l’assemblée générale des actionnaires) pour accomplir tout acte
nécessaire pour accomplir l’objet social de la Société. Tous pouvoirs qui ne sont pas expressément réservés par
la loi ou par les Statuts à l’associé unique ou à l’assemblée générale des actionnaires sont dans la compétence
du Conseil d’Administration.
Article 15. Délégation de Pouvoirs
La gestion journalière de la Société ainsi que la représentation de la Société en ce qui concerne cette
gestion pourront, conformément à l'article 441-10 de la Loi, être déléguées à un ou plusieurs Administrateurs
(le(s) « Administrateur(s) Délégué(s) », directeurs, gérants et autres agents, associés ou non, agissant seuls ou
conjointement. Leur nomination, leur révocation et leurs attributions seront réglées par une décision du Conseil
d'Administration. La délégation à un membre du Conseil d'Administration impose au conseil d’Administration
l’obligation de rendre annuellement compte à l’assemblée générale ordinaire, des traitements, émoluments et
avantages quelconques alloués au délégué. La Société peut également conférer tous mandats spéciaux par
procuration authentique ou sous seing privé.
Article 16. Conflit d'Intérêts
16.1 Sauf dispositions contraires de la Loi, tout membre du Conseil d’Administration qui a, directement
ou indirectement, un intérêt de nature patrimoniale opposé à celui de la Société à l’occasion d’une opération
relevant du Conseil d’Administration est tenu d’en prévenir le Conseil d’Administration et de faire mentionner cette
déclaration dans le procès-verbal de la séance. L’administrateur concerné ne peut prendre part ni aux discussions
relatives à cette opération, ni au vote y afférent. Ce conflit d’intérêts doit également faire l’objet d’un rapport aux
actionnaires, lors de la prochaine assemblée générale des actionnaires, et avant toute prise de décision de
l’assemblée générale des actionnaires sur tout autre point à l’ordre du jour.
16.2 Lorsque, en raison d’un conflit d’intérêts, le nombre d’administrateurs requis afin de délibérer
valablement n’est pas atteint, le Conseil d’Administration peut décider de déférer la décision sur ce point
spécifique à l’assemblée générale des actionnaires.
16.3 Les règles relatives aux conflits d'intérêts ne s'appliquent pas lorsque la décision du Conseil
d'Administration se rapporte à des opérations courantes conclues dans des conditions normales.
16.4 Le(s) délégués à la gestion journalière de la Société le cas échéant, sont soumis aux articles 16.1 à
16.3 des présents Statuts à condition qu’un seul délégué à la gestion journalière de la Société ait été désigné et
se trouve en situation conflit d'intérêts, la décision visée devant être adoptée par le Conseil d'Administration.
Article 17. Comité du Conseil d’Administration
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Le Conseil d’Administration peut créer un ou plusieurs comités, incluant sans limitation, un comité d’audit
et un comité de rémunération, et pour lesquels il doit, si un ou plusieurs de ces comités sont mis en place,
nommer les membres qui peuvent, mais ne doivent pas nécessairement, être des membres du Conseil
d'Administration (si les actions ordinaires de la Société sont cotées à une bourse étrangère toujours sous réserve
des exigences de cette bourse étrangère applicables à la Société et/ou de l’autorité de régulation compétente en
relation avec cette cotation), déterminer le but, les pouvoirs et compétences ainsi que les procédures et les autres
règles pour autant que de besoin.
Article 18. Indemnisation
18.1 Les membres du Conseil d'Administration ne sont pas tenus personnellement responsables des
dettes ou des autres obligations de la Société. En tant que mandataires de la Société, ils sont responsables de
l’exercice de leurs fonctions. Sous réserve des exceptions et limites prévues à l'Article 18.2 ainsi que des
dispositions impératives de la loi, toute personne qui est, ou a été, membre du Conseil d'Administration ou
dirigeant de la Société devra être indemnisé par la Société, dans toute la mesure permise par la loi, pour toute
responsabilité et toute dépense raisonnablement engagées ou payées par lui en rapport avec toute réclamation,
action, poursuite ou procédure dans lesquelles il est impliqué en tant que partie ou pour être ou avoir été un
administrateur ou un dirigeant, et pour les sommes payées ou engagées par lui dans le règlement de celles-ci.
Les mots «demande», «action », «poursuite» ou «procédure» s'appliqueront à toutes les demandes, actions,
poursuites ou procédures (civiles, pénales ou autres, y compris les appels) actuelles ou menacées et les mots «
responsabilité » et «dépenses» comprennent, sans limitation les frais d'avocat, les coûts, les jugements, les
montants payés en transaction et autres passifs.
18.2 Aucune indemnisation ne sera due à tout administrateur, dirigeant ou actionnaire (i) contre toute
responsabilité en raison de fautes intentionnelles, de mauvaise foi, de négligence grave ou d’une imprudence
flagrante des tâches concernées dans l’exercice de sa fonction (ii) à l'égard de toute affaire dans laquelle il/elle
aura été finalement condamné pour avoir agi de mauvaise foi et non contre l'intérêt de la Société ou (iii) dans le
cas d'une transaction, à moins que la transaction ait été approuvée par un tribunal d’une juridiction compétente,
ou par le Conseil d'Administration.
18.3 Le droit à indemnisation prévu ici est divisible, ne doit pas porter atteinte à tout autre droit auquel
tout administrateur ou dirigeant peut présentement ou postérieurement avoir droit et doit continuer pour une
personne qui a cessé d'être un tel administrateur ou dirigeant et bénéficiera aux héritiers, exécuteurs
testamentaires et administrateurs d’une telle personne. Aucune de ces dispositions ne peut affecter ou limiter les
droits à indemnisation dont le personnel de l’entreprise, y compris les administrateurs et dirigeants, peuvent avoir
droit par contrat ou autrement en vertu de la loi. La Société est expressément habilitée à fournir une indemnisation
contractuelle et peut souscrire et maintenir une assurance pour tout membre du personnel de l’entreprise, y
compris les administrateurs et dirigeants de la Société, à tout moment.
Article 19. Représentation de la Société
Vis-à-vis des tiers, la Société sera engagée par la signature conjointe d’un Administrateur A et d’un
Administrateur B, ou par la signature individuelle de la personne à laquelle la gestion journalière de la Société a
été déléguée dans les limites d’une telle délégation, ou par la signature conjointe ou par la
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signature individuelle de toutes personnes à qui un tel pouvoir de signature aura été délégué par le Conseil
d’Administration, mais seulement dans les limites de ce pouvoir.
Article 20. Commissaires aux Comptes
20.1 Les transactions de la Société devront être contrôlées par un ou plusieurs commissaires aux
comptes. L'assemblée générale des actionnaires devra nommer le(s) commissaire(s) aux comptes et devra
déterminer leur mandat, lequel ne peut excéder six (6) ans.
20.2 Un commissaire aux comptes peut être révoqué à tout moment, sans préavis et avec ou sans motif,
par l'assemblée générale des actionnaires.
20.3. Le(s) commissaire(s) aux comptes dispose(nt) d'un droit de regard et de contrôle permanent et
illimité sur toutes les opérations de la Société.
20.4. Si l'assemblée générale des actionnaires de la Société nomme un ou plusieurs réviseurs
d'entreprises agréés conformément à l'article 69 de la loi du 19 décembre 2002 relative au registre du commerce
et des sociétés et à la comptabilité et aux comptes annuels des entreprises, telle que modifiée, la nomination des
commissaires aux comptes n'est plus requise.
20.5. Un auditeur indépendant ne peut être révoqué que par l'assemblée générale des actionnaires pour
un motif valable ou avec son approbation.
CHAPITRE IV. ASSEMBLÉE GÉNÉRALE DES ACTIONNAIRES
Article 21. Pouvoirs de l'Assemblée Générale des Actionnaires
L’assemblée générale des actionnaires de la Société et les détenteurs de Parts Bénéficiaires représentent
l'ensemble des actionnaires et l’ensemble des détenteurs de Parts Bénéficiaires de la Société (l’ « Assemblée
Générale »). L’Assemblée Générale a tous les pouvoirs qui lui sont réservés par la loi.
Article 22. Assemblée Générale Annuelle
L'Assemblée Générale annuelle devra se tenir dans les six (6) mois suivant la fin de chaque exercice
social au Grand-Duché de Luxembourg, au siège social de la Société ou à tout autre endroit au Grand-Duché de
Luxembourg tel qu’indiqué dans la convocation de cette assemblée. D'autres Assemblées Générales peuvent être
tenues au lieu et à l'heure spécifiés dans leurs convocations respectives. Les porteurs d'obligations n'ont pas le
droit d'assister aux Assemblées Générales.
Article 23. Autres Assemblées Générales
23.1 Le Conseil d'Administration peut convoquer d’autres Assemblées Générales. De telles assemblées
doivent être convoquées à la demande des actionnaires représentant au moins dix pour cent (10%) du capital
social.
23.2 Les Assemblées Générales, y compris l'Assemblée Générale annuelle, peuvent se tenir à l'étranger
chaque fois que des circonstances de force majeure, appréciées souverainement par le Conseil d'Administration,
le requièrent.
23.3 Les Assemblées Générales sont convoquées conformément aux dispositions de la loi et si les
actions ordinaires de la Société sont cotées sur une bourse étrangère, conformément aux exigences de cette
bourse étrangère applicables à la Société.
23.4 Si les actions ordinaires de la Société sont cotées sur une bourse étrangère, tous les actionnaires
inscrits dans un registre des actionnaires de la Société, le Porteur ou le Dépositaire, selon le cas, et les
Page 23
détenteurs de Parts Bénéficiaires, ont le droit d'être admis à l'Assemblée Générale; cependant, le Conseil
d'Administration pourra déterminer une date et une heure antérieures à l'Assemblée Générale comme date de
référence pour l'admission à l'assemblée générale des actionnaires (la «Date d'Inscription »), qui ne pourra être
inférieure à cinq (5) jours avant la date de cette assemblée.
23.5 Tout actionnaire de la Société, Porteur ou Dépositaire, selon le cas, et tout détenteur de Parts
Bénéficiaires peut assister à l’Assemblée Générale en nommant une autre personne comme son mandataire, une
telle nomination doit être faite par écrit d’une manière devant être déterminée par le Conseil d'Administration dans
la convocation. Dans le cas d'actions ordinaires détenues par l'opérateur d'un système de compensation ou par
un Dépositaire désigné par un tel Dépositaire, un porteur d'actions ordinaires qui souhaite assister à une
Assemblée Générale doit recevoir de ces mêmes opérateurs ou Dépositaires un certificat attestant le nombre
d’actions ordinaires inscrites dans le compte correspondant à la Date d'Inscription et attestant que ces actions
ordinaires sont bloquées jusqu'à la clôture de l'Assemblée Générale en question. Le certificat devra être présenté
à la Société au plus tard trois (3) jours ouvrables avant la date de cette assemblée générale. Si l’actionnaire ou le
détenteur de Parts Bénéficiaires vote au moyen d'une procuration, la procuration doit être déposée au siège social
de la Société ou chez tout autre agent de la Société, dûment autorisé à recevoir ces procurations, dans le même
temps. Le Conseil d'Administration peut fixer un délai plus court pour le dépôt du certificat ou de la procuration.
Article 24. Procédure, Vote
24.1 Les actionnaires et les détenteurs de Parts Bénéficiaires se réunissent après convocation du
Conseil d’Administration ou des commissaires aux comptes, conformément aux conditions fixées par la loi. La
convocation envoyée aux actionnaires et détenteurs de Parts Bénéficiaires indiquera la date, l’heure et le lieu de
l’Assemblée Générale ainsi que l'ordre du jour et la nature des affaires à traiter lors de l’Assemblée Générale des
actionnaires.
24.2 Si tous les actionnaires et détenteurs de Parts Bénéficiaires sont présents ou représentés à une
Assemblée Générale et déclarent avoir eu connaissance de l'ordre du jour de l'Assemblée Générale, celle-ci peut
se tenir sans convocation préalable.
24.3 Un actionnaire et un détenteur de Parts Bénéficiaires peuvent agir à toute Assemblée Générale en
désignant par écrit, par télécopie, par courriel, par courrier ou tout autre moyen de communication écrit, un
mandataire qui ne doit pas obligatoirement être un actionnaire ou un détenteur de Parts Bénéficiaires.
24.4 Chaque actionnaire et chaque détenteur de Parts Bénéficiaires peut voter à une Assemblée
Générale par un formulaire de vote signé envoyé par courrier ou par télécopie ou par tout autre moyen de
communication autorisé par le Conseil d'Administration, et livré au siège social de la Société ou à l'adresse
figurant dans la convocation. Les actionnaires et détenteurs de Parts Bénéficiaires ne peuvent utiliser que les
formulaires de vote fournis par la Société qui contiennent au moins le lieu, la date et l'heure de la réunion, l'ordre
du jour de la réunion, les propositions soumises aux décisions de l'Assemblée Générale ainsi que pour chaque
proposition, trois cases permettant à l'actionnaire et au détenteur de Parts Bénéficiaires de voter en faveur ou
contre la résolution proposée ou de s'abstenir de voter en cochant les cases appropriées. La Société ne tiendra
compte que des formulaires de
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vote reçus au plus tard trois (3) jours ouvrables avant la date de l'Assemblée Générale à laquelle ils se rapportent.
Le Conseil d'Administration peut fixer une période plus courte pour la réception des formulaires de vote.
24.5. Le Conseil d'Administration peut déterminer toutes les autres conditions à remplir pour participer à
l'Assemblée Générale.
24.6. Sauf disposition contraire de la loi ou des présent Statuts, les décisions seront prises à la majorité
simple des voix, quel que soit le nombre d'actionnaires et de détenteurs de Parts Bénéficiaires présents ou
représentés à l'Assemblée Générale.
24.7. Un vote est attaché à chaque action ordinaire émise. Chaque Part Bénéficiaire donne droit à une voix
à son détenteur.
24.8. Des copies des extraits du procès-verbal de l'assemblée à produire en justice ou autrement seront
signées par deux Administrateurs ou par le Président du Conseil d'Administration.
CHAPITRE V. ANNÉE SOCIALE, RÉPARTITION DES BÉNÉFICES
Article 25. Année Sociale
L'année sociale de la Société commence le premier janvier de chaque année et finit le trente et un
décembre de la même année. Le Conseil d’Administration doit préparer les comptes annuels de la société
conformément à la loi luxembourgeoise et à la pratique comptable.
Article 26. Répartition des Bénéfices
26.1 Sur les bénéfices nets de la Société il sera prélevé cinq pour cent (5 %) pour la formation d'un fonds
de réserve légale. Ce prélèvement cesse d'être obligatoire lorsque et aussi longtemps que la Réserve Légale
atteindra dix pour cent (10%) du capital émis.
26.2 L'Assemblée Générale décide de l'affectation du solde des bénéfices annuels nets. Elle peut
décider de verser la totalité ou une partie du solde à un compte de réserve ou de provision, de le reporter à
nouveau ou de le distribuer aux actionnaires comme dividendes.
26.3 Dans les conditions établies par la loi, le Conseil d’Administration peut payer une avance sur les
dividendes. Le Conseil d’Administration détermine la date et le montant de tout payement d’acompte sur
dividendes.
CHAPITRE VI. DISSOLUTION, LIQUIDATION
Article 27. Dissolution, Liquidation
27.1 La Société peut être dissoute par une résolution de l'Assemblée Générale délibérant aux mêmes
conditions de quorum et de majorité que celles exigées pour toute modification des Statuts, sauf dispositions
contraires de la loi.
27.2 En cas de dissolution de la Société, la liquidation sera effectuée par un ou plusieurs liquidateurs
nommés par l'Assemblée Générale et qui fixera les pouvoirs et émoluments de chacun des liquidateurs.
27.2 Le surplus résultant de la réalisation de l’actif et du paiement de l’ensemble des dettes sera réparti
entre les actionnaires en proportion du nombre des actions ordinaires qu'ils détiennent dans la Société.
CHAPITRE VII. MODIFICATION DES STATUTS
Article 28. Modifications des Statuts
Les présents Statuts peuvent être modifiés par une résolution de l'Assemblée Générale adoptée à un
quorum de cinquante pour cent (50%) du capital social de la Société et une majorité des deux tiers des voix des
actionnaires et des détenteurs de Parts Bénéficiaires de la Société, à condition que l'ordre du jour de l'Assemblée
Générale indique les
Page 25
modifications proposées et qu'une copie des statuts coordonnés soit mise à disposition au siège social de la
Société au moins huit (8) jours avant l’assemblée générale des actionnaires et des détenteurs de Parts
Bénéficiaires.
Article 29. Changement de nationalité
Les actionnaires peuvent changer la nationalité de la Société par une résolution de l'Assemblée Générale
adoptée de la manière requise pour une modification des Statuts.
CHAPITRE VIII. LOI APPLICABLE
Article 30. Loi Applicable
Toutes les questions qui ne sont pas régies par les présents Statuts seront déterminées conformément à la
Loi. En cas de contradiction entre les dispositions d'un pacte d'actionnaires qui pourrait être conclu à tout moment
par les actionnaires de la Société, les termes de ce pacte prévaudront inter partes et dans la mesure permise par
loi luxembourgeoise.
STATUTS COORDONNES, délivrés à la société sur sa demande.
Belvaux, le 03 décembre 2020.
Page 26
Exhibit 4.4
1.
1.1
1.2
2.
2.1
2.2
3.
3.1
3.2
4.
4.2
4.3
TERMS AND CONDITIONS GOVERNING EMPLOYEE STOCK OPTIONS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
EMPLOYEE STOCK OPTION ISSUER AND HOLDER
Spotify Technology S.A., a Luxembourg société anonyme, with registered address at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with
the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”).
Employee of the Company or of any affiliate, subsidiary or other company controlled by the Company (collectively, the “Group,” each individually, a
“Group Company”) who has received an individual notice of grant (the “Holder”).
BACKGROUND
The Company’s board of directors (the “Board”) considers the existence of efficient share-related incentive programs for employees of the Group to
be of material importance for the development of the Group. By connecting employees’ economic interests to the Group’s results and value trend, a
long-term increase in value is promoted. Accordingly, the interests of participating employees and shareholders will coincide.
The foregoing notwithstanding, this employee stock option program 2021/2026 (the “Employee Stock Option Program”) shall not form part of the
Holders’ overall compensation and benefits under their contracts of employment with a Group Company, and, for the avoidance of doubt, shall not
entitle any Holder to any pension or other similar benefits. In addition, the existence of a contract of employment between a Holder and a Group
Company shall not give the Holder any right or expectation to be granted Employee Stock Options at any time under the Employee Stock Option
Program or otherwise. Moreover, the granting of an Employee Stock Option shall not give the Holder any right or expectation to be granted additional
Employee Stock Options at any time under the Employee Stock Option Program or otherwise.
OPTION; SHARES AVAILABLE
Subject to the terms and conditions set out herein, the Holder is entitled to delivery of one share in the Company (a “Share”) per employee stock
option (an “Employee Stock Option”) at the exercise price communicated to the Holder (the “Exercise Price”). The Exercise Price may be re-
calculated under certain circumstances pursuant to clause 8. Subject to the provisions of clauses 8 and 9.3.3, the maximum aggregate number of
Shares that may be subject to Employee Stock Options under the Pool is 31,850,000 Shares.
“Pool” means the Shares granted under the Employee Stock Option Program and the Terms and Conditions Governing Employee Restricted Stock
Units 2021/2026 in Spotify Technology S.A. (each, a “Pool Plan”).
Shares available for grant or sale under the Pool will be reduced by the net shares granted under any of the Pool Plans.
IMPLEMENTATION AND GRANT
The Employee Stock Option Program shall be effective as per 1 April 2021 (the “Implementation Date”).
Employee Stock Options may be granted to Holders during the period as from and including 1 April 2021 up to and including 31 March 2026. The
determination of the employees who will be granted Employee Stock Options, and the date or dates of grant of Employee Stock Options during such
period (each, a “Date of Grant”), shall be determined by the Board in its sole discretion.
2
5.
5.1
5.1.1
5.1.2
5.2
5.2.1
5.2.2
5.2.3
5.3
5.3.1
5.3.2
VESTING
General
Subject to continued employment with the Group, vesting of the granted Employee Stock Options shall occur on the same date in each relevant
calendar month as the Date of Grant in accordance with the following:
(a) initially, 3/48 shall vest on the third calendar month following the Date of Grant; and
(b) thereafter, 1/48 shall vest each calendar month.
Notwithstanding the foregoing, if there is no such date specified in (a) or (b) in the relevant calendar month, vesting shall occur on the last day of such
month. The vesting schedule set out in this clause 5.1.1 may be amended pursuant to clause 5.2, 5.3 and 9.
Notwithstanding the aforesaid, the Board shall be entitled, in its sole discretion, to resolve that some or all unvested Employee Stock Options shall
vest in advance.
Leave of absence
If the Holder goes on leave of absence, such Holder’s Employee Stock Options will not vest during the leave of absence, except as set forth below in
this clause 5.2. The Employee Stock Options that do not vest during the leave of absence as a consequence of the Holder’s leave of absence shall lapse
immediately, if not otherwise determined by the Board.
If the Holder is on leave of absence due to parental leave, sick leave, vacation leave or other paid time off, such Holder’s Employee Stock Options
shall continue to vest on the original vesting schedule during the leave of absence. The same shall apply for any other leave of absence during which
vesting on the original schedule must continue under applicable law.
If the Holder is on leave of absence due to any other reason (e.g. studying) than as set out in clause 5.2.2, or if the Holder otherwise reduces his/her
contractual working hours for the employer after the Date of Grant of the Holder’s Employee Stock Options, but the Holder still works part-time for
the employer, such Holder’s Employee Stock Options shall vest pro rata in relation to a full-time job. If the Holder’s contractual working hours prior
to leave of absence or reduction of contractual working hours did not amount to a full-time job, such Holder’s Employee Stock Options shall vest pro
rata in relation to the contractual working hours prior to such leave of absence or reduction of contractual working hours. The same shall apply for any
other leave of absence during which pro rata vesting must continue under applicable law. For the purpose of this clause 5.2.3, a full-time job shall
correspond to the number of working hours per week set out in the Holder’s employment agreement as the standard for a full-time job.
Termination of employment
If (i) the Holder resigns, or (ii) the employer terminates the employment of the Holder with the Group (for whatever reason), or (iii) the Holder retires
pursuant to the terms of his/her employment contract or regulatory requirements, all unvested Employee Stock Options shall cease vesting as of the
date of termination of employment and shall immediately lapse.
If (i) the Holder resigns, or (ii) the employer terminates the employment of the Holder with the Group, or (iii) the Holder is exempt from work in
connection with an anticipated termination of employment, or (iv) the Holder retires pursuant to the terms of his/her employment contract or
regulatory requirements, termination of employment for purposes of the Employee Stock Options shall be deemed to occur immediately after the end
of the last day of employment, taking into account any notice period (but, for the avoidance of doubt, not including any further period over which any
severance payment or consideration for non-compete restriction or similar is paid out).
3
Notwithstanding the foregoing, the Board shall be entitled, in its sole discretion, to resolve that termination of employment shall be deemed to occur at
a later point in time.
If a Holder changes the entity for which he or she is employed, but remains employed by the Group, such change will not be deemed a termination of
employment for purposes of his/her Employee Stock Options, provided that there is no other interruption or termination of the Holder’s employment,
unless the Board, in its sole discretion, determines that the entity to which the Holder transfers is not a qualified affiliate of the Group. If a Holder
changes the capacity in which he/she provides service to the Group from an employee to an independent contractor or consultant, such change will be
deemed a termination of employment for purposes of his/her Employee Stock Options.
If the Holder, when he/she commences his/her employment with the Group, is subject to a probationary or trial employment and, at the end of such
probationary or trial employment, the employment with the Group is terminated (for whatever reason), all vested and unvested Employee Stock
Options shall lapse on the date of termination of employment, meaning, for the avoidance of doubt, that the Holder will not be entitled to exercise any
Employee Stock Options.
EXERCISE
General
The Holder is entitled to exercise his/her rights under the Employee Stock Options to the extent the Employee Stock Options have vested pursuant to
these terms and conditions by requesting exercise at any time up to and including the fifth anniversary of the Date of Grant in the manner set forth
below (“Exercise”), provided such Employee Stock Options have not previously lapsed.
In the event the Holder has not requested Exercise on or before the fifth anniversary of the Date of Grant (such date, or an earlier date set for the
expiration of the term of the Employee Stock Options as provided for in clause 9, the “Expiration Date”), all rights under the Employee Stock
Options shall lapse.
Exercise may only be requested through an electronic platform and with no paper documentation to be executed by the Holder. To this effect, the
Holder will receive an individual username and an individual password from the Company, giving her/him access to a personal account on the
electronic platform. Once the Holder will have logged-in and accepted the terms and conditions of the Employee Stock Option Program applicable to
her/him, she/he will have the possibility (i) to place requests on the said electronic platform in order to exercise some or all of her/his vested Employee
Stock Options (the “Exercise Request”) and (ii) carry out any actions required to settle the Holder’s Payment Obligations (as defined in clause 7.1).
The Exercise Request placed by the Holder must be placed not later than on the Expiration Date and state the number of Employee Stock Options that
the Holder wishes to Exercise. An Exercise Request is binding and irrevocable.
If the Holder’s Employee Stock Options at Exercise entitle the Holder to subscribe for a number of Shares which is not an integer, the number of
Shares to which the entitlement relates shall be rounded down to the nearest integer.
Exercise may not take place in the event the Company is declared bankrupt. However, Exercise may take place in the event the bankruptcy order is
subsequently overturned on appeal.
The Expiration Date and the periods during which Exercise can take place may be amended pursuant to this clause 6, clause 9, or by other express
action of the Board as provided for in these terms and conditions.
5.3.3
5.3.4
6.
6.1
6.1.1
6.1.2
6.1.3
6.1.4
6.1.5
6.1.6
6.1.7
4
6.2
6.2.1
6.2.2
6.2.3
7.
7.1
7.2
Termination of employment
If the Holder resigns, the employer terminates the employment of the Holder with the Group or the Holder is exempt from work in connection with an
anticipated termination of employment, in any such case other than as a result of death or a physical disability and other than as a result of (i) the
Holder’s wilful failure to perform, or serious negligence or misconduct in the performance of his/her duties and responsibilities as an employee; or (ii)
any breach by the Holder of any material provision of these terms and conditions, and/or any breach of any material provision of his/her employment
agreement; or (iii) the Holder’s violation of any material policy of any Group Company or any other material external (e.g., professional) standards or
codes of conduct to which the Holder may be subject; or (iv) the Holder’s breach of any fiduciary duty or duty of loyalty owed to any Group Company
or the Holder’s commission of fraud, embezzlement, theft or other act of dishonesty with respect to any Group Company; or (v) the Holder’s
commission of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude or affecting any Group Company; or (vi) any
act or failure to act by the Holder that the Holder knows or reasonably should know is likely to be materially injurious to the business or reputation of
the Group or any Group Company; or (vii) any other circumstance constituting just cause for dismissal due to personal grounds (Sw. saklig grund för
uppsägning på grund av personliga skäl) under Swedish law or similar circumstances under other applicable law (each of (i) through (vii) a “Cause”),
or if the Holder retires pursuant to the terms of his/her employment contract or regulatory requirements, the new Expiration Date shall be the 90th
calendar day following the termination of employment (as determined pursuant to clause 5.3.2) or such later dates as determined by the Company (but
in no event later than the fifth anniversary of the Date of Grant or such date as follows pursuant to clause 9).
In the event that the Holder’s termination of employment occurs due to death or physical disability, the new Expiration Date shall be the 194th
calendar day following such event or such later dates as determined by the Company (but in no event later than the fifth anniversary of the Date of
Grant or such date as follows pursuant to clause 9). The Holder (or, in the event of the Holder’s death, the Holder’s estate (Sw. dödsbo)) shall up to
and including the new Expiration Date be entitled to Exercise any Employee Stock Options, which have vested in accordance with these terms and
conditions as of such event. Following the new Expiration Date, the Holder (or, in the event of the Holder’s death, the Holder’s estate) shall have no
rights pursuant to the Employee Stock Options and all rights under the Employee Stock Options which have not been subject to Exercise shall lapse.
In the event of the Holder’s death, the rights and obligations in accordance with these terms and conditions shall be binding upon and inure to the
Holder’s estate.
Notwithstanding the foregoing, should the Holder’s employment be terminated for Cause, all the Holder’s Employee Stock Options shall immediately
lapse and may not be subject to Exercise.
PAYMENT AND DELIVERY OF SHARES
Payment of the Exercise Price and, to the extent applicable, (i) any Withholding Obligation (as defined in clause 13.1 below) and (ii) Holder’s Tax
Liability (as defined in clause 13.2 below), in each case as and to the extent the Board requires in its sole discretion (Holder’s obligation to pay the
Exercise Price jointly with any such Withholding Obligation or Holder’s Tax Liability that the Board requires to be so settled, the “Holder’s Payment
Obligations”) shall, unless the Board determines otherwise, be satisfied by a “cash settlement” arrangement pursuant to which the Holder’s Payment
Obligations shall be satisfied with money that shall have been paid by the Holder to the Holder’s personal account on the electronic platform (“Cash
Settlement”).
To the extent the Board determines that Cash Settlement will not be used to satisfy a Holder’s Payment Obligations, the Board may require the Holder
to satisfy such Holder’s Payment Obligations by any other method or combination of methods determined in the Board’s sole discretion, including,
without limitation, by
5
(i) placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole Share)
then being distributed in respect of vested Employee Stock Options as are sufficient to satisfy such Holder’s Payment Obligations. The net proceeds of
such sale shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess proceeds resulting from
rounding up to the nearest whole Share shall be deposited into the Holder’s account on the electronic platform; or
(ii) a “net settlement” arrangement pursuant to which the Company will reduce the number of Shares deliverable to the Holder upon vesting or
settlement by the minimum number of Shares (rounded up to the nearest whole Share, without any consideration to the Holder for such rounding) as
are sufficient to satisfy Holder’s Payment Obligations.
If the Company receives a valid Exercise Request and all actions required by the Holder to settle the Holder’s Payment Obligation have been
completed, the Company shall deliver Shares to the Holder within 10 days on which banks are open for business generally (and not for internet
banking only) in Luxembourg and the U.S (a “Business Day”) (less any Shares reduced or sold pursuant to this clause 7).
As a condition to the exercise of an Employee Stock Option, the Holder shall make such arrangements as the Board may require for the satisfaction of
any Holder’s Payment Obligations that may arise in relation to the Employee Stock Options.
RE-CALCULATION OF EXERCISE PRICE
The Exercise Price and the number of Shares to which each Employee Stock Option entitles the Holder to subscribe for shall be re-calculated in the
event that there are changes in the Company’s share capital by way of a bonus issue of shares, share split, reverse share split, or a reduction of the
share capital (a “Re-calculation Event”), in order not to affect the value of the Employee Stock Options. The re-calculation shall be carried out by the
Board in accordance with the following formula:
7.3
7.4
8.
where:
n = number of shares issued in the Company prior to the Re-calculation Event
1
n = number of shares issued/reduced in the Re-calculation Event
2
n = number of Shares which each Employee Stock Option entitled the Holder to subscribe for immediately prior to the Re-calculation Event
3
n = number of Shares that each Employee Stock Option gives the right to subscribe for after the Re-calculation Event
4
Consequently, the Exercise Price for the Employee Stock Option shall be re-calculated in accordance with the following formula:
where (in addition to the above definitions):
p = Exercise Price per Share prior to the Re-calculation Event
1
p = Exercise Price per Share after the Re-calculation Event
2
6
9.
9.1
9.1.1
In the event that a Re-calculation Event would lead to an Exercise Price after the Re-calculation Event which is less than the par value of the
Company’s shares, the Exercise Price at Exercise shall instead equal the par value of the Company’s shares.
AMENDMENT OF VESTING SCHEDULE AND EXPIRATION DATE ETC.
Change in Control
In the event of a Change in Control the Board may, in its sole discretion, decide to (i) set a period during which the Holder may request Exercise (an
“Exercise Period”) and, if determined by the Board, a new Expiration Date, in accordance with the provisions of clause 9.1.2, (ii) have these terms
and conditions continue following the Change in Control in accordance with the provisions of clause 9.1.3, (iii) allow a grant of substantially
equivalent rights (i.e., among other things, that preserves the intrinsic value and vesting schedule of the Employee Stock Options) to acquire securities
in a new company as the Holder had in the Company immediately before the Change in Control in accordance with the provisions of clause 9.1.4, or
(iv) allow an amendment of the terms and conditions to the effect that, following the Change in Control, a new company assumes the Company’s
rights and obligations hereunder in accordance with the provisions of clause 9.1.5.
9.1.1.1
“Change in Control” shall mean and include each of the following:
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined
voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not
constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y)
any acquisition which complies with clauses 9.1.1.1(iii)(I)-(III); or (z) in respect of an Employee Stock Option held by a particular Holder, any
acquisition by the Holder or any group of persons including the Holder (or any entity controlled by the Holder or any group of persons including the
Holder);
(ii) the Incumbent Directors cease for any reason to constitute a majority of the Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more
intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the
Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case
other than a transaction: (I) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent
(either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to
the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting
power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (II) after which no person or group beneficially
owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group
shall be treated for purposes of this clause (II) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a
result of the voting power held in the Company prior to the consummation of the transaction; and (III) after which at least a majority of the members
of the board of directors (or the analogous governing body) of the Successor Entity were Board members
7
at the time of the Board's approval of the execution of the initial agreement providing for such transaction; or
(iv) the date which is 10 Business Days prior to the completion of a liquidation or dissolution of the Company.
9.1.1.2
9.1.2
9.1.3
9.1.4
9.1.5
“Incumbent Directors’ shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board
together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect
a transaction described in clause 9.1.1.1(i) or 9.1.1.1(iii)) whose election or nomination for election to the Board was approved by a vote of at least a
majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director
without objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose
election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies by or on
behalf of any person other than the Board shall be an Incumbent Director.
If the Board decides to set an Exercise Period, the Board shall notify the Holder in connection with the Change in Control of the Exercise Period and,
if the Board so decides, the new Expiration Date. 50 per cent of the Holder’s unvested Employee Stock Options shall vest as of the date of the Board’s
notice or on any other date set out in the Board’s notice. The notice will set forth the Exercise Period, which shall, to the extent possible taking into
account the circumstances and process related to the Change in Control, give the Holder reasonable time to decide whether to Exercise any vested
Employee Stock Options. The Holder shall during the Exercise Period be entitled to Exercise any Employee Stock Options which have vested in
accordance with these terms and conditions. The Board shall be entitled, in its sole discretion, to decide whether to adopt a new Expiration Date so
that, at the conclusion of such Exercise Period, any unvested Employee Stock Options shall lapse, or whether unvested Employee Stock Options will
continue to vest. If the Board decides that any unvested Employee Stock Options shall continue to vest, only 3/96 part of the Holder’s Employee Stock
Options shall vest at the first cliff vesting occasion set out in clause 5.1.1(a), if the Board’s notice is given prior to such date, and only 1/96 part of the
Holder’s Employee Stock Options shall vest on each subsequent regularly scheduled vesting occasion as set out in clause 5.1.1(b). The Board shall
also be entitled, in its sole discretion, to decide whether any vested Employee Stock Options which have not been subject to Exercise during an
Exercise Period shall be subject to a new Expiration Date and therefore lapse, or whether the vested Employee Stock Options will be exercisable
following the expiration of an Exercise Period. If the Board decides to establish a new Expiration Date so that any unvested, and/or any vested but
unexercised, Employee Stock Options shall lapse, the Holder shall have no further rights pursuant to the Employee Stock Options.
If the Board decides to have these terms and conditions continue following the effective date of the Change in Control, the vesting schedule and the
Expiration Date, as set forth in clause 5 and 6 respectively, shall remain unaffected by the Change in Control.
If the Board decides to allow a grant of substantially equivalent rights to acquire securities in a new company as the Holder had in the Company
immediately before the Change in Control, all vested and unvested Employee Stock Options shall lapse as of the closing of the Change in Control and,
subject to the grant of such substantially equivalent rights, the Holder shall have no further rights pursuant to the Employee Stock Options after the
closing of the Change in Control.
If the Board decides to allow an amendment of the terms and conditions to the effect that, following the Change in Control, a new company assumes
the Company’s rights and obligations hereunder, the Holder’s right to subscribe for Shares in accordance with clause 3 shall relate to shares in such
new company.
8
9.1.6
If the Group, or any successor thereto, in connection with or within a period of 6 months following the closing of a Change in Control, terminates the
employment of the Holder, other than for Cause, and if any Employee Stock Options are subject to continued vesting after the Change in Control in
accordance with this clause 9.1, all of the Holder’s unvested Employee Stock Options shall vest as of the date of his or her termination of
employment.
9.2
Merger and de-merger
In the event of a merger through which the Company is absorbed into another company (other than a Change in Control) or a de-merger through
which the Company is divided into two or more new entities (other than a Change in Control), the Board shall, before the adoption of any resolution in
the aforementioned respects, determine an Exercise Period, the first day of which shall fall at least 20 calendar days after the date of the notice by the
Board to the Holder of such Exercise Period. During such Exercise Period the Holder shall be entitled to Exercise any Employee Stock Options which
have vested in accordance with these terms and conditions. At the conclusion of such Exercise Period, all Employee Stock Options which have not
been subject to Exercise during the Exercise Period shall lapse and the Holder shall have no rights pursuant to the Employee Stock Options.
Share for share exchange etc.
If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new
company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use
reasonable efforts to either: (a) ensure that the Holder receives substantially equivalent rights to acquire securities in the new holding company as the
Holder had in the Company immediately before such transaction, provided that the Holder in writing waives any rights under the Employee Stock
Options, which shall lapse as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding company assumes the
Company’s rights and obligations hereunder and that the Holder’s right to subscribe for Shares in accordance with clause 3 shall relate to shares in the
new holding company.
In the event of a transaction as described in clause 9.3.1, the Holder shall always be obliged upon the Board’s request to, in case of (a) in clause 9.3.1,
waive any rights under the Employee Stock Options provided that the Holder receives substantially equivalent rights in the new holding company as
the Holder had in the Company immediately before such transaction or, in case of (b) in clause 9.3.1, approve any such amendment to these terms and
conditions. No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 9.3.2, provided that the
Employee Stock Options preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of
the Employee Stock Option as of immediately prior to such transaction.
If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class
of securities subject to the Employee Stock Options. The Board will make such adjustments, and its determination will be final, binding and
conclusive.
CANCELLATION OF EMPLOYEE STOCK OPTIONS IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach of any of its obligations under these terms and conditions, and the breach has not been rectified within 15
calendar days from the date the Holder receives a written demand for rectification, the Company shall be entitled to cancel the Holder’s unexercised
Employee Stock Options (vested as well as unvested) which as a consequence thereof shall lapse.
9.3
9.3.1
9.3.2
9.3.3
10.
10.1
9
10.2
11.
11.1
11.2
11.3
12.
12.1
12.2
13.
13.1
13.2
A material breach for purposes of clause 10 and 11 shall mean a breach by the Holder of the provisions in clauses 7.2, 9.3, 12, 13, 15.1 or 15.5 or any
other breach by the Holder of these terms and conditions that is reasonably likely to have a material adverse effect on the Company.
LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach in accordance with clause 10.2 and the breach has not been rectified within 15 calendar days from the date the
Holder receives a written demand for rectification, the Holder shall upon written request by the Company pay liquidated damages in an amount
corresponding to 50 per cent of the aggregate then-current fair market value of the Shares represented by, or delivered upon exercise of, the Employee
Stock Options. The Company shall not be entitled to demand liquidated damages if the Company has cancelled the Holder’s Employee Stock Options
pursuant to clause 10.1.
If the Holder commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any
liquidated damages in accordance with the provisions of clause 11.1, to claim damages in an amount corresponding to the difference between the
actual damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any).
The payment by the Holder of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the
Company may have against the Holder as a result of a breach.
Appointment of agent etc.
The Holder hereby irrevocably authorises the Board, with full power of substitution, to endorse such documents on behalf of the Holder and to take
any other action reasonably necessary to effect any of the Holder’s obligations under these terms and conditions, including but not limited to,
execution of a transfer of Shares owned by the Holder. The Board shall hold any payment received for the benefit of the Holder under this clause 12
on behalf of the Holder and separated from any other funds. A withdrawal of the authorisation as provided for in this clause 12 constitutes a material
breach of these terms and conditions for purposes of clause 10 and 11.
The Holder hereby undertakes to sign, execute and deliver such documents, and to take any other actions, as reasonably required by the Board in order
to ensure compliance with or observation of the Holder’s obligations under these terms and conditions.
PAYMENT OF CERTAIN TAXES
The Group will perform withholding of taxes in relation to the Employee Stock Options and the Shares acquired at Exercise if and to the extent
required by law or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Group to perform
such withholding of taxes (any such withholding tax obligation of the Holder, “Withholding Obligation”). For the avoidance of doubt, this
clause 13.1 shall not affect the Holder’s liabilities and undertakings pursuant to the remainder of this clause 13.
The Holder is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, social security
contributions as well as any tax penalties thereon) for which he/she may be liable in relation to the Employee Stock Options and any Shares acquired
at Exercise (“Holder’s Tax Liability”). For the avoidance of doubt, any Withholding Obligation (whether preliminary or deducted at source) on
employment income, dividends and capital gains will always be considered as Holder’s Tax Liability.
10
13.3
13.4
The calculation of any Withholding Obligation or Holder’s Tax Liability, as applicable, will be subject to applicable rules and regulations and based
on the applicable tax rates, as determined by the Board in its sole discretion in connection with determining the Holder’s Payment Obligations.
The Group assumes no responsibility for any Holder’s Tax Liability. The Holder represents that the Holder is not relying on the Group for any tax
advice and explicitly agrees not to demand any compensation from the Group to cover any Holder’s Tax Liability.
14.
DATA PROTECTION
15.
15.1
15.2
15.3
15.4
15.5
For the purposes of implementing, managing and administering the Employee Stock Option Program, and for the Holder to participate in the
Employee Stock Option Program, it is necessary for the Company, acting as a data controller, and other companies in the Group to process the
Holder’s personal data. For more information regarding the processing of the Holder’s personal data, see the Company’s separate privacy notice
which can be found in the ESOP Portal, that can be reached through the Internal Services webpage.
MISCELLANEOUS
The Employee Stock Options may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security.
The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by
public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons,
and provided in all of the aforementioned cases that the Holder’s rights are in no material respects adversely affected. If the Holder’s rights would be
materially adversely affected, the Holder’s written consent shall be necessary for such amendment.
Nothing in these terms and conditions or in any right or Employee Stock Option granted under these terms and conditions shall confer upon the Holder
the right to continue in employment for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Group or of
the Holder, which rights are hereby expressly reserved by each, to terminate his or her employment at any time.
The Holder has no right to compensation or damages for any loss in respect of the Employee Stock Option where such loss arises (or is claimed to
arise), in whole or in part, from the termination of the Holder’s employment; or notice to terminate employment given by or to the Holder. However,
this exclusion of liability shall not apply however to termination of employment, or the giving of notice, where a competent tribunal or court, from
which there can be no appeal (or which the relevant employing company has decided not to appeal), has found that the cessation of the Holder’s
employment amounted to unfair or constructive dismissal of the Holder.
The Holder undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or
other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or
performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to
any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the
Holder may disclose the terms and conditions of his or her Employee Stock Options to the Holder’s spouse, personal attorney and/or tax preparer. If a
Holder becomes required, in circumstances contemplated by (i) to disclose any information, the disclosing Holder shall use its best efforts to consult
with the Company prior to any such disclosure.
15.6
Shares will not be issued or delivered under this Employee Stock Option Program unless the issuance and delivery of such Shares comply with (or are
exempt from) all applicable requirements
11
of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws
and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded. In
addition to the terms and conditions provided herein, the Board may require that a Holder make such reasonable covenants, agreements and
representations as the Board, in its sole discretion, deems advisable in order to comply with applicable law. The Board shall have the right to require
any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise of any Employee Stock Option,
including a window-period limitation, as may be imposed in the sole discretion of the Board.
16.
TERM AND TERMINATION
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on 31 March 2031.
The parties shall, however, after such date continue to be bound by the provisions set out in clause 15.5 and 17.
17.
17.1
17.2
17.3
17.4
GOVERNING LAW AND JURISDICTION
These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of
laws).
The Company and the Holder undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between
them or any two or more of them through discussions and mutual agreement.
Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless
otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be
Stockholm and the language to be used in the arbitral proceedings shall be English.
The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any
applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the
Company and the Holder in writing.
TO TERMS AND CONDITIONS GOVERNING EMPLOYEE RESTRICTED
STOCK UNITS 2021/2026 IN SPOTIFY TECHNOLOGY S.A., TERMS AND CONDITIONS
GOVERNING EMPLOYEE STOCK OPTIONS 2021/2026 IN SPOTIFY TECHNOLOGY S.A. AND TERMS AND CONDITIONS GOVERNING
EMPLOYEE RETENTION COMPENSATION PROGRAM 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
APPENDIX 1 (a)
This Appendix 1(a) to the Terms and Conditions Governing Employee Restricted Stock Units 2021/2026 in Spotify Technology S.A. (the “RSU Plan”), Terms and
Conditions Governing Employee Stock Options 2021/2026 in Spotify Technology S.A. (the “ESOP”) and Terms and Conditions Governing Employee Retention
1
Compensation Program 2021/2026 in Spotify Technology S.A. (the “Retention Program”) (together, the “Rules”) shall apply only to [NAME] .
1
Include Holder name
APPENDIX 1(a)
Capitalized terms contained herein shall have the same meanings given to them in the applicable Rules, unless otherwise provided by Appendix 1(a). Further, any
reference to “Holder” in clauses 1 and 2 below shall be read as “Employee” in respect of the Retention Program.
The Rules and this Appendix 1(a) shall be read together. In any case of an irreconcilable contradiction (as determined by the Board) between the provisions of this
Appendix 1(a) and the Rules, the provisions of the Rules shall govern unless expressly stated otherwise in this Appendix 1(a).
This Appendix 1(a) is effective as of the Implementation Date.
1.
VESTING
1.1
Each of the Rules shall be amended such that, with respect to [NAME], clause 5.3.1 of each of the Rules shall instead have the following wording:
“Notwithstanding anything set forth in these terms and conditions to the contrary, if (i) the employer terminates the employment of the Holder with the
Group for any other reason than for Cause (as defined below); or (ii) the Holder resigns due to the employer’s material breach of the Holder’s
employment contract, then (x) such number or portion of the Holder’s unvested awards granted hereunder (each, an “Award”) shall fully and non-
contingently vest as of the date of termination of employment as would have vested had termination of employment occurred six months after the actual
date of termination of employment; and (y) any remaining unvested Awards shall immediately lapse. A termination of employment described in clause
7.1.5 or 7.1.9 of the RSU Plan, 9.1.6 or 9.1.7 of the ESOP or 6.1.4 or 6.1.5 of the Retention Plan will not receive acceleration under this paragraph, and
will instead be treated in accordance with such applicable clause.
If Holder’s employment terminates for any reason other than the specific exceptions specified in the previous paragraph, then all unvested Awards shall
cease vesting as of the date of termination of employment and shall immediately lapse (in the case of the Retention Compensation, at the time set out in
the table below).”
2.
2.1
CHANGE IN CONTROL
The Rules shall be amended such that, with respect to [NAME], a new clause 7.1.9 of the RSU Plan, a new clause 9.1.7 of the ESOP and a new clause
6.1.5 of the Retention Plan shall be added and shall have the following wording:
“Notwithstanding anything set forth herein to the contrary, if there is a Change in Control and, in connection with or within a period of six months
following the closing of the Change in Control, (a) the Holder is required to perform duties that are materially inconsistent with those normally performed
by a [TITLE] or is not [TITLE] of the entity resulting from the Change in Control, and the Holder elects to resign as a result of such requirement, or (b)
the Holder otherwise experiences a constructive termination, and if any Awards are subject to continued vesting after the Change in Control, then all of
the Holder’s unvested Awards shall fully vest as of the date of his or her termination of employment.”
2
2
To include Holder’s title.
Exhibit 4.5
FIRST AMENDMENT TO
SPOTIFY TECHNOLOGY S.A.
TERMS AND CONDITIONS GOVERNING EMPLOYEE STOCK OPTIONS 2020/2025
TERMS AND CONDITIONS GOVERNING EMPLOYEE RESTRICTED STOCK UNITS 2020/2025
TERMS AND CONDITIONS GOVERNING EMPLOYEE RETENTION COMPENSATION PROGRAM 2020/2025
THIS FIRST AMENDMENT (this “Amendment”) to the Terms and Conditions Governing Employee Stock Options 2020/2025 (the “ESOP”), the Terms
and Conditions Governing Employee Restricted Stock Units 2020/2025 (the “RSU Plan”) and the Terms and Conditions Governing Employee Retention
Compensation Program 2020/2025 (the “Cash Plan”, and collectively with the ESOP and the RSU Plan, the “Employee Incentive Plans”) is made and adopted by
the Board of Directors (the “Board”) of Spotify Technology S.A., a Luxembourg société anonyme (the “Company”).
WHEREAS, the Company maintains the Employee Incentive Plans;
RECITALS
WHEREAS, pursuant to Section 15.2 of the ESOP, Section 13.2 of the RSU Plan and Section 12.3 of the Cash Plan, the Board has the authority to amend
the Employee Incentive Plans from time to time; and
WHEREAS, the Board believes it is necessary for practical reasons to amend the Employee Incentive Plans as set forth herein.
NOW, THEREFORE, BE IT RESOLVED, that the Employee Incentive Plans are hereby amended as follows:
1.
Section 4.2 of the ESOP is hereby deleted and replaced in its entirety with the following:
AMENDMENT
Employee Stock Options may be granted to Holders during the period as from and including 1 January 2020 up to and including 31 March 2021. The
determination of the employees who will be granted Employee Stock Options, and the date or dates of grant of Employee Stock Options during such
period (each, a “Date of Grant”), shall be determined by the Board in its sole discretion.
2.
Section 4.2 of the RSU Plan is hereby deleted and replaced in its entirety with the following:
Restricted Stock Units may be granted to Holders during the period as from and including 1 January 2020 up to and including 31 March 2021. The
determination of the employees who will be granted Restricted Stock Units, and the date or dates of grant of Restricted Stock Units during such period
(each, a “Date of Grant”), shall be determined by the Board in its sole discretion.
3.
Section 4.2 of the Cash Plan is hereby deleted and replaced in its entirety with the following:
Participation in the Retention Compensation Program may be granted to Employees during the period as from and including 1 January 2020 up to and
including 31 March 2021. The determination of the employees who will be granted Retention Compensation, and the date or dates of grants of Retention
Compensation Program participation during such period (each, a “Date of Grant”) shall be determined by the Board in its sole discretion.
4.
This Amendment shall be and is hereby, in applicable part, incorporated into and forms a part of the ESOP, RSU Plan and Cash Plan.
5.
Except as expressly provided herein, all terms and conditions of the ESOP, RSU Plan and Cash Plan shall remain in full force and effect.
2
Exhibit 4.14
1.
1.1
1.2
2.
2.1
2.2
3.
3.1
3.2
4.
4.1
4.2
TERMS AND CONDITIONS GOVERNING EMPLOYEE RESTRICTED STOCK UNITS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
RESTRICTED STOCK UNIT ISSUER AND HOLDER
Spotify Technology S.A., a Luxembourg société anonyme, with registered address at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with
the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”).
Employee of the Company or of any affiliate, subsidiary or other company controlled by the Company (collectively, the “Group,” each individually, a
“Group Company”) who has received an individual notice of grant (the “Holder”).
BACKGROUND
The Company’s board of directors (the “Board”) considers the existence of efficient share-related incentive programs for employees of the Group to
be of material importance for the development of the Group. By connecting employees’ economic interests to the Group’s results and value trend, a
long-term increase in value is promoted. Accordingly, the interests of participating employees and shareholders will coincide.
The foregoing notwithstanding, this restricted stock unit program (the “Restricted Stock Unit Program”) shall not form part of the Holders’ overall
compensation and benefits under their contracts of employment with a Group Company, and if applicable, for the avoidance of doubt, shall not entitle
any Holder to any pension or other similar benefits. In addition, the existence of a contract of employment between a Holder and a Group Company
shall not give the Holder any right or expectation to be granted Restricted Stock Units at any time under the Restricted Stock Unit Program or
otherwise. Moreover, the granting of a Restricted Stock Unit shall not give the Holder any right or expectation to be granted additional Restricted
Stock Units at any time under the Restricted Stock Unit Program or otherwise.
RESTRICTED STOCK UNIT; SHARES AVAILABLE
Subject to the terms and conditions set out herein, the Holder is entitled to delivery of one share in the Company (a “Share”) per restricted stock unit
(a “Restricted Stock Unit”). Subject to the provisions of clauses 7.1.6 and 7.2.3, the maximum aggregate number of Shares that may be subject to
Restricted Stock Units under the Pool is 31,850,000 Shares.
“Pool” means the Shares granted under the Restricted Stock Unit Program and the Terms and Conditions Governing Employee Stock Options
2021/2026 in Spotify Technology S.A. (each, a “Pool Plan”).
Shares available for grant or sale under the Pool will be reduced by the net Shares granted under any of the Pool Plans.
IMPLEMENTATION AND GRANT
The Restricted Stock Unit Program shall be effective as per April 1, 2021 (the “Implementation Date”).
Restricted Stock Units may be granted to the Holder during the period as from and including April 1, 2021 up to and including March 31, 2026. The
determination of the employees who will be granted Restricted Stock Units, and the date or dates of grants of Restricted Stock Units during such
period (each, a “Date of Grant”), shall be determined by the Board in its sole discretion.
2
5.
5.1
5.1.1
5.1.2
5.2
5.2.1
5.2.2
5.2.3
5.3
5.3.1
5.3.2
EMPLOYEE VESTING
Employee vesting general
Subject to continued employment with the Group, vesting of the Restricted Stock Units shall occur on the same date in each relevant calendar month
as the Date of Grant in accordance with the following:
(a) initially, 3/48 shall vest in the third calendar month following the Date of Grant; and
(b) thereafter, 1/48 shall vest each calendar month.
Notwithstanding the foregoing, if there is no such date specified in (a) or (b) in the relevant calendar month, vesting shall occur on the last day of such
month. The vesting schedule set out in this clause 5.1.1 may be amended pursuant to clause 5.1.2, 5.2 and 5.3.
Notwithstanding the aforesaid, the Board shall be entitled, in its sole discretion, to grant Restricted Stock Units that are subject to a different vesting
schedule.
Employee leave of absence
If the Holder goes on leave of absence, such Holder’s Restricted Stock Units will not vest during the leave of absence, except as set forth below in this
clause 5.2. The Restricted Stock Units that do not vest during the leave of absence as a consequence of the Holder’s leave of absence shall lapse
immediately, if not otherwise determined by the Board.
If the Holder is on leave of absence due to parental leave (including maternity or paternity leave), sick leave, vacation leave or other paid time off or
legally protected leave, such Holder’s Restricted Stock Units shall continue to vest on the original vesting schedule during the leave of absence. The
same shall apply for any other leave of absence during which vesting on the original schedule must continue under applicable law.
If the Holder is on leave of absence due to any other reason (e.g. studying) than as set out in clause 5.2.2, or if the Holder otherwise reduces his/her
contractual working hours for the employer after the Date of Grant of the Holder’s Restricted Stock Units, but the Holder still works part-time for the
employer, such Holder’s Restricted Stock Units shall vest pro rata in relation to a full-time job. If the Holder’s contractual working hours prior to
leave of absence or reduction of contractual working hours did not amount to a full-time job, such Holder’s Restricted Stock Units shall vest pro rata
in relation to the contractual working hours prior to such leave of absence or reduction of contractual working hours. The same shall apply for any
other leave of absence during which pro rata vesting must continue under applicable law. For the purpose of this clause 5.2.3, a full-time job shall
correspond to the number of working hours per week set out in the Holder’s employment agreement as the standard for a full-time job.
Employee termination of employment
If (i) the Holder resigns for any reason, including by reason of Holder retiring pursuant to the terms of his/her employment contract or regulatory
requirements or (ii) the employer terminates the employment of the Holder with the Group for any reason, all unvested Restricted Stock Units shall
cease vesting as of the date of termination of employment and shall immediately lapse.
If (i) the Holder resigns, or (ii) the employer terminates the employment of the Holder with the Group, or (iii) the Holder is exempt from work in
connection with an anticipated termination of employment, or (iv) the Holder retires pursuant to the terms of his/her employment contract or
regulatory requirements, termination of employment for purposes of the Restricted Stock Units shall be deemed to occur immediately after the end of
the last day of employment, taking into account
3
5.3.3
5.3.4
6.
6.1
6.2
6.3
any notice period (but, for the avoidance of doubt, not including any further period over which any severance payment or consideration for non-
compete restriction or similar is paid out). Notwithstanding the foregoing, the Board shall be entitled, in its sole discretion, to resolve that termination
of employment shall be deemed to occur at a later point in time.
If a Holder changes the entity for which he or she is employed, but remains employed by the Group, such change will not be deemed a termination of
employment for purposes of his/her Restricted Stock Units, provided that there is no other interruption or termination of the Holder’s employment,
unless the Board, in its sole discretion, determines that the entity to which the Holder transfers is not a qualified affiliate of the Group. If a Holder
changes the capacity in which he/she provides service to the Group from an employee to an independent contractor or consultant, such change will be
deemed a termination of employment for purposes of his/her Restricted Stock Units.
If the Holder, when he/she commences his/her employment with the Group, is subject to a probationary or trial employment and, at the end of such
probationary or trial employment, the employment with the Group is terminated (for whatever reason), all Restricted Stock Units shall lapse and be
forfeited on the date of termination of employment.
SETTLEMENT
Settlement will occur through an electronic platform and with no paper documentation to be executed by the Holder. To this effect, the Holder will
receive an individual username and an individual password from the Company, giving her/him access to a personal account on the electronic platform.
Once the Holder will have logged-in and accepted the terms and conditions of the Restricted Stock Unit Program applicable to her/him, she/he will be
able to carry out any actions required to settle (i) any Withholding Obligation (as defined in clause 11.1 below) and (ii) Holder’s Tax Liability (as
defined in clause 11.2 below), in each case as and to the extent the Board requires in its sole discretion (any such Withholding Obligations or Holder’s
Tax Liability that the Board requires to be so settled, the “Holder’s Payment Obligations”).
Without limiting the foregoing, unless the Board determines otherwise, Holder’s Payment Obligations will be satisfied by a “net settlement”
arrangement pursuant to which the Company will reduce the number of Shares issuable upon vesting or settlement by the minimum number of Shares
(rounded up to the nearest whole Share, without any consideration to the Holder for such rounding) as are sufficient to satisfy Holder’s Payment
Obligations (“Net Settlement”).
To the extent the Board determines that Net Settlement will not be used to satisfy a Holder’s Payment Obligations, the Board may require the Holder
to satisfy such Holder’s Payment Obligations by any other method or combination of methods determined in the Board’s sole discretion, including,
without limitation, by:
i.
placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole
Share) then being distributed in respect of vested Restricted Stock Units as are sufficient to satisfy Holder’s Payment Obligations. The net
proceeds of such sale shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess
proceeds resulting from rounding up to the nearest whole Share shall be deposited into the Holder’s account on the electronic platform; or
ii.
a “cash settlement” arrangement pursuant to which the Holder’s Payment Obligations shall be satisfied with money that shall have been paid
by the Holder to the Holder’s personal account on the electronic platform.
6.4
As soon as reasonably practicable (but no later than 30 days) following the completion of all actions required by the Holder to settle the Holder’s
Payment Obligations with respect to any Restricted Stock Units that become vested (or if no such actions are required, within 30 days following the
4
6.5
7.
7.1
7.1.1
7.1.2
7.1.3
7.1.4
7.1.5
vesting date), the Company shall issue the number of Shares subject to the Restricted Stock Units that become vested in the name of the Holder (or if
deceased, the Holder’s legal representative) (less any Shares reduced or sold pursuant to this clause 6). The Shares will be issued as fully paid and
nonassessable Shares and may be authorized but previously unissued shares, treasury shares or shares purchased in the open market.
If the Holder does not complete any required actions to settle the Holder’s Payment Obligations with respect to any Restricted Stock Units that vested
within 30 days following the applicable vesting date, then such Restricted Stock Units will be cancelled with respect to those Shares that would
otherwise have become issuable therefor, unless otherwise decided by the Board.
AMENDMENT OF THE RESTRICTED STOCK UNITS; ADJUSTMENT
Change in Control
With respect to any Restricted Stock Units that remain unvested as of the date immediately following the date of the Change in Control, the Board
may, in its sole discretion, decide to (i) have these terms and conditions continue following the effective date of the Change in Control in accordance
with the provisions of clause 7.1.2, (ii) allow a grant of substantially equivalent rights (i.e., among other things, that preserves the intrinsic value and
vesting schedule of the Restricted Stock Units) with respect to securities in a new company to the rights the Holder had in the Company immediately
before the Change in Control in accordance with the provisions of clause 7.1.3 or (iii) allow an amendment of the terms and conditions to the effect
that, following the Change in Control, a new company assumes the Company’s rights and obligations hereunder in accordance with the provisions of
clause 7.1.4.
If the Board decides to have these terms and conditions continue following the effective date of the Change in Control, the vesting and settlement
schedule as set forth in clauses 5 and 6 shall remain unaffected by the Change in Control.
If the Board decides to allow a grant of substantially equivalent rights with respect to securities in a new company to the rights the Holder had in the
Company immediately before the Change in Control, all unvested Restricted Stock Units shall lapse and be cancelled as of the closing and, subject to
the grant of such substantially equivalent rights, the Holder shall have no further rights pursuant to the Restricted Stock Units after the closing.
If the Board decides to allow an amendment of the terms and conditions to the effect that, following the Change in Control, a new company assumes
the Company’s rights and obligations hereunder, the Holder’s vested and unsettled Restricted Stock Units and unvested Restricted Stock Units shall
relate to shares in such new company.
If the Group, or any successor thereto, in connection with or within a period of 6 months following the closing of a Change in Control, terminates the
employment of the Holder, other than for (i) the Holder’s willful failure to perform, or serious negligence or misconduct in the performance of his/her
duties and responsibilities as an employee; or (ii) any breach by the Holder of any material provision of these terms and conditions and/or any breach
of any material provision of his/her employment agreement; or (iii) the Holder’s violation of any material policy of any Group Company or any other
material external (e.g., professional) standards or codes of conduct to which the Holder may be subject; or (iv) the Holder’s breach of any fiduciary
duty or duty of loyalty owed to any Group Company or the Holder’s commission of fraud, embezzlement, theft or other act of dishonesty with respect
to any Group Company; or (v) the Holder’s commission of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude
or affecting any Group Company; or (vi) any act or failure to act by the Holder that the Holder knows or reasonably should know is likely to be
materially injurious to the business or reputation of the Group or any Group Company; or (vii) any other circumstances constituting just cause for
dismissal due to personal grounds (Sw. saklig grund för uppsägning på grund av personliga skäl) under Swedish law or
5
similar circumstances under other applicable law (each of (i) through (vii) a “Cause”), and if any Restricted Stock Units are subject to continued
vesting after the Change in Control in accordance with this clause 7.1, all of the Holder’s unvested Restricted Stock Units shall vest as of the date of
his or her termination of employment.
7.1.6
If any share split, reverse share split, share dividend, recapitalization, combination, reclassification or other distribution of the Company’s Shares
without the receipt of consideration by the Company occurs, the Board will adjust the number and class of Shares that may be delivered under the
number and class of Shares covered by each outstanding Restricted Stock Unit and in a manner that complies with all applicable laws to prevent
diminution or enlargement of the benefits or potential benefits intended to be made available with respect to any grant of any Restricted Stock Unit.
7.1.7
“Change in Control” shall mean and include each of the following:
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined
voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not
constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y)
any acquisition which complies with clauses 7.1.7 (iii)(I)-(III); or (z) in respect of an Restricted Stock Unit held by a particular Holder, any
acquisition by the Holder or any group of persons including the Holder (or any entity controlled by the Holder or any group of persons including the
Holder);
(ii) the Incumbent Directors cease for any reason to constitute a majority of the Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more
intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the
Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case
other than a transaction: (I) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent
(either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to
the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting
power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (II) after which no person or group beneficially
owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group
shall be treated for purposes of this clause (II) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a
result of the voting power held in the Company prior to the consummation of the transaction; and (III) after which at least a majority of the members
of the board of directors (or the analogous governing body) of the Successor Entity were Board members at the time of the Board's approval of the
execution of the initial agreement providing for such transaction; or (iv) the date which is 10 days on which banks are open for business generally
(and not for internet banking only) in Luxembourg and the U.S. prior to the completion of a liquidation or dissolution of the Company.
7.1.8
“Incumbent Directors” shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board
together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to
6
effect a transaction described in clause 7.1.7(i) or 7.1.7(iii)) whose election or nomination for election to the Board was approved by a vote of at least
a majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director
without objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose
election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies by or on
behalf of any person other than the Board shall be an Incumbent Director.
7.2
7.2.1
7.2.2
Share for share exchange etc.
If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new
company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use
reasonable efforts to either: (a) ensure that the Holder receives substantially equivalent rights with respect to securities in the new holding company as
the Holder had in the Company immediately before such transaction, provided that the Holder in writing waives any rights under the Restricted Stock
Units, which shall lapse and be cancelled as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding
company assumes the Company’s rights and obligations hereunder and that the Holder’s vested and unsettled Restricted Stock Units and unvested
Restricted Stock Units shall relate to shares in such new company.
In the event of a transaction as described in clause 7.2.1, the Holder shall always be obliged upon the Board’s request to, in case of (a) in clause 7.2.1,
waive any rights under the Restricted Stock Units provided that the Holder receives substantially equivalent rights in the new holding company as the
Holder had in the Company immediately before such transaction or, in case of (b) in clause 7.2.1, approve any such amendment to these terms and
conditions. No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 7.2, provided that the
Restricted Stock Units preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of the
Restricted Stock Unit as of immediately prior to such transaction.
7.2.3
If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class
of securities subject to the Restricted Stock Units. The Board will make such adjustments, and its determination will be final, binding and conclusive.
8.
8.1
8.2
9.
9.1
CANCELLATION OF RESTRICTED STOCK UNITS IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach of any of its obligations under these terms and conditions and the breach has not been rectified within 15
calendar days from the date the Holder receives a written demand for rectification, the Company shall be entitled to cancel the Holder’s Restricted
Stock Units, which as a consequence thereof shall lapse.
A material breach for purposes of clause 8 and 9 shall mean a breach by the Holder of the provisions in clauses 6.3, 7.2, 10, 11, 13.1 or 13.5 or any
other breach by the Holder of these terms and conditions that is reasonably likely to have a material adverse effect on the Company.
LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach in accordance with clause 8.2 and the breach has not been rectified within 15 calendar days from the date the
Holder receives a written demand for rectification, the Holder shall upon written request by the Company pay liquidated damages in an amount
corresponding to 50 percent of the aggregate then-current fair market value of the Shares represented by or delivered upon settlement of the Restricted
Stock Units. The Company shall not
7
9.2
9.3
10.
10.1
10.2
11.
11.1
11.2
11.3
11.4
12.
12.1
be entitled to demand liquidated damages if the Company has cancelled the Holder’s Restricted Stock Units pursuant to clause 8.1.
If the Holder commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any
liquidated damages in accordance with the provisions of clause 9.1, to claim damages in an amount corresponding to the difference between the actual
damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any).
The payment by the Holder of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the
Company may have against the Holder as a result of a breach.
APPOINTMENT OF AGENT ETC.
The Holder hereby irrevocably authorizes the Board, with full power of substitution, to endorse such documents on behalf of the Holder and to take
any other action reasonably necessary to effect any of the Holder’s obligations under these terms and conditions, including but not limited to,
execution of a transfer of Shares owned by the Holder. The Board shall hold any payment received for the benefit of the Holder under this clause 10.1
on behalf of the Holder and separated from any other funds. A withdrawal of the authorization as provided for in this clause 10.1 constitutes a material
breach of these terms and conditions for purposes of clause 8 and 9.
The Holder hereby undertakes to sign, execute and deliver such documents (including without limitation any subscription form), and to take any other
actions, as reasonably required by the Board in order to ensure compliance with or observation of the Holder’s obligations under these terms and
conditions.
PAYMENT OF CERTAIN TAXES
The Group will perform withholding of taxes in relation to the Restricted Stock Units and the Shares delivered upon settlement if and to the extent
required by law or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Group to perform
such withholding of taxes (any such withholding tax obligation of the Holder, “Withholding Obligation”). For the avoidance of doubt, this clause
11.1 shall not affect the Holder’s liabilities and undertakings pursuant to the remainder of this clause 11.
The Holder is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, self-employment
taxes, social security contributions as well as any tax penalties thereon) for which he/she may be liable in relation to the Restricted Stock Units and
any Shares issued at settlement (“Holder’s Tax Liability”). For the avoidance of doubt, any Withholding Obligation (whether preliminary or
deducted at source) on employment income, dividends and capital gains will always be considered as Holder’s Tax Liability.
The calculation of any Withholding Obligation or Holder’s Tax Liability, as applicable, will be subject to applicable rules and regulations and based
on the applicable tax rates, as determined by the Board in its sole discretion in connection with determining the Holder’s Payment Obligations.
The Group assumes no responsibility for any Holder’s Tax Liability. The Holder represents that the Holder is not relying on the Group for any tax
advice and explicitly agrees not to demand any compensation from the Group to cover any Holder’s Tax Liability.
DATA PROTECTION
For the purposes of implementing, managing and administering the Restricted Stock Unit Program, and for the Holder to participate in the Restricted
Stock Unit Program, it is necessary for the
8
13.
13.1
13.2
13.3
13.4
13.5
13.6
Company, acting as data controller, and other companies in the Group to process the Holder’s personal data. For more information regarding the
processing of the Holder’s personal data, see the Company’s separate privacy notice which can be found in the ESOP Portal, that can be reached
through the Internal Services webpage.
MISCELLANEOUS
The Restricted Stock Units may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security.
The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by
public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons,
and provided in all of the aforementioned cases that the Holder’s rights are in no material respects adversely affected. If the Holder’s rights would be
materially adversely affected, the Holder’s written consent shall be necessary for such amendment.
Nothing in these terms and conditions or in any right or Restricted Stock Unit granted under these terms and conditions shall confer upon the Holder
the right to continue in employment or service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the
Group or of the Holder, which rights are hereby expressly reserved by each, to terminate the Holder’s employment or service at any time.
The Holder has no right to compensation or damages for any loss in respect of the Restricted Stock Unit where such loss arises (or is claimed to arise),
in whole or in part, from the termination of the Holder’s employment or service; or notice to terminate employment or service given by or to the
Holder. However, this exclusion of liability shall not apply to termination of employment or service, or the giving of notice, where a competent
tribunal or court, from which there can be no appeal (or which the relevant employing company has decided not to appeal), has found that the
cessation of the Holder’s employment or service amounted to unfair or constructive dismissal of the Holder.
The Holder undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or
other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or
performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to
any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the
Holder may disclose the terms and conditions of his or her Restricted Stock Units to the Holder’s spouse, personal attorney and/or tax preparer. If a
Holder becomes required, in circumstances contemplated by (i) to disclose any information, the disclosing Holder shall use its best efforts to consult
with the Company prior to any such disclosure.
Shares will not be issued or delivered under this Restricted Stock Unit Program unless the issuance and delivery of such Shares comply with (or are
exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations
promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the
Company’s securities may then be traded. In addition to the terms and conditions provided herein, the Board may require that a Holder make such
reasonable covenants, agreements and representations as the Board, in its sole discretion, deems advisable in order to comply with applicable law. The
Board shall have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise
of any Restricted Stock Unit, including a window-period limitation, as may be imposed in the sole discretion of the Board.
9
14.
TERM AND TERMINATION
15.
15.1
15.2
15.3
15.4
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on March 31,
2031. The parties shall, however, after such date continue to be bound by the provisions set out in clause 13.5 and 15.
GOVERNING LAW AND JURISDICTION
These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of
laws).
The Company and the Holder undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between
them or any two or more of them through discussions and mutual agreement.
Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless
otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be
Stockholm and the language to be used in the arbitral proceedings shall be English.
The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any
applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the
Company and the Holder in writing.
TO TERMS AND CONDITIONS GOVERNING EMPLOYEE RESTRICTED
STOCK UNITS 2021/2026 IN SPOTIFY TECHNOLOGY S.A., TERMS AND CONDITIONS GOVERNING EMPLOYEE STOCK OPTIONS 2021/2026
IN SPOTIFY TECHNOLOGY S.A. AND TERMS AND CONDITIONS GOVERNING EMPLOYEE RETENTION COMPENSATION PROGRAM
2021/2026 IN SPOTIFY TECHNOLOGY S.A.
APPENDIX 1 (a)
This Appendix 1(a) to the Terms and Conditions Governing Employee Restricted
Stock Units 2021/2026 in Spotify Technology S.A. (the “RSU Plan”), Terms and Conditions Governing Employee Stock Options 2021/2026 in Spotify
Technology S.A. (the “ESOP”) and Terms and Conditions Governing Employee Retention Compensation Program 2021/2026 in Spotify Technology S.A. (the
1
“Retention Program”) (together, the “Rules”) shall apply only to [NAME] .
Capitalized terms contained herein shall have the same meanings given to them in the applicable Rules, unless otherwise provided by Appendix 1(a). Further, any
reference to “Holder” in clauses 1 and 2 below shall be read as “Employee” in respect of the Retention Program.
The Rules and this Appendix 1(a) shall be read together. In any case of an irreconcilable contradiction (as determined by the Board) between the provisions of this
Appendix 1(a) and the Rules, the provisions of the Rules shall govern unless expressly stated otherwise in this Appendix 1(a).
This Appendix 1(a) is effective as of the Implementation Date.
1
Include Holder name
APPENDIX 1(a)
1.
VESTING
1.1
Each of the Rules shall be amended such that, with respect to [NAME], clause 5.3.1 of each of the Rules shall instead have the following wording:
“Notwithstanding anything set forth in these terms and conditions to the contrary, if (i) the employer terminates the employment of the Holder with the
Group for any other reason than for Cause (as defined below); or (ii) the Holder resigns due to the employer’s material breach of the Holder’s
employment contract, then (x) such number or portion of the Holder’s unvested awards granted hereunder (each, an “Award”) shall fully and non-
contingently vest as of the date of termination of employment as would have vested had termination of employment occurred six months after the actual
date of termination of employment; and (y) any remaining unvested Awards shall immediately lapse. A termination of employment described in clause
7.1.5 or 7.1.9 of the RSU Plan, 9.1.6 or 9.1.7 of the ESOP or 6.1.4 or 6.1.5 of the Retention Plan will not receive acceleration under this paragraph, and
will instead be treated in accordance with such applicable clause.
If Holder’s employment terminates for any reason other than the specific exceptions specified in the previous paragraph, then all unvested Awards shall
cease vesting as of the date of termination of employment and shall immediately lapse (in the case of the Retention Compensation, at the time set out in
the table below).”
2.
2.1
CHANGE IN CONTROL
The Rules shall be amended such that, with respect to [NAME], a new clause 7.1.9 of the RSU Plan, a new clause 9.1.7 of the ESOP and a new clause
6.1.5 of the Retention Plan shall be added and shall have the following wording:
“Notwithstanding anything set forth herein to the contrary, if there is a Change in Control and, in connection with or within a period of six months
following the closing of the Change in Control, (a) the Holder is required to perform duties that are materially inconsistent with those normally performed
by a [TITLE] or is not [TITLE] of the entity resulting from the Change in Control, and the Holder elects to resign as a result of such requirement, or (b)
the Holder otherwise experiences a constructive termination, and if any Awards are subject to continued vesting after the Change in Control, then all of
the Holder’s unvested Awards shall fully vest as of the date of his or her termination of employment.”
2
2
To include Holder’s title.
Exhibit 4.31
TERMS AND CONDITIONS GOVERNING CONSULTANT STOCK OPTIONS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
STOCK OPTION ISSUER AND HOLDER
Spotify Technology S.A., a Luxembourg société anonyme, with registered address at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with
the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”).
Consultant to the Company or of any affiliate, subsidiary or other company controlled by the Company (collectively, the “Group”, each individually,
a “Group Company”) who has received an individual notice of grant (the “Holder”) (the “Notice of Grant”).
“Consultant” shall mean (a) any natural person engaged to provide consulting services for the Group or (b) any entity of which any such natural
person is the sole owner, in each case who qualifies as a consultant or advisor under the applicable rules of the Securities and Exchange Commission
for registration of shares on a Form S-8 Registration Statement.
BACKGROUND
The Company’s board of directors (the “Board”) considers the existence of efficient share-related incentive programs for Consultants to be of material
importance for the development of the Group. By connecting Consultants’ economic interests to the Group’s results and value trend, a long-term
increase in value is promoted. Accordingly, the interests of participating Consultants and shareholders will coincide.
The existence of a contract of service between a Consultant and a Group Company shall not give the Consultant any right or expectation to be granted
Stock Options at any time under this stock option program (the “Stock Option Program”) or otherwise. Moreover, the granting of a Stock Option
shall not give the Holder any right or expectation to be granted additional Stock Options at any time under the Stock Option Program or otherwise.
OPTION; SHARES AVAILABLE
Subject to the terms and conditions set out herein, the Holder is entitled to delivery of one share in the Company (a “Share”) per stock option (a
“Stock Option”) at the exercise price communicated to the Holder (the “Exercise Price”). The Exercise Price may be re-calculated under certain
circumstances pursuant to clause 8. Subject to the provisions of clauses 8 and 9.3.3, the maximum aggregate number of Shares that may be subject to
Stock Options under the Pool is 50,000 Shares.
“Pool” means the Shares granted under the Stock Option Program and the Terms and Conditions governing Consultant Restricted Stock Units
2021/2026 in Spotify Technology S.A. (each, a “Pool Plan”).
Shares available for grant or sale under the Pool will be reduced by the net Shares granted under any of the Pool Plans.
IMPLEMENTATION AND GRANT
The Stock Option Program shall be effective as per 1 April 2021 (the “Implementation Date”).
Stock Options may be granted to Holders during the period as from and including 1 April 2021 up to and including 31 March 2022. The determination
of the Consultants who will be granted Stock Options, and the date or dates of grants of Stock Options during such period (each, a “Date of Grant”),
shall be determined by the Board in its sole discretion.
1.
1.1
1.2
1.3
2.
2.1
2.2
3.
3.1
3.2
4.
4.1
4.2
1
2
VESTING
General
Vesting of the granted Stock Options shall occur on the dates set out in the Notice of Grant, subject to the Holder’s continued service with the Group.
The vesting schedule set out in the Notice of Grant may be amended pursuant to clause 5.2 and 9.
Consultant termination of services
If there is a Termination of Services for any reason, all unvested Stock Options shall cease vesting as of the date of Termination of Services and shall
immediately lapse. The new Expiration Date shall be the 90th calendar day following the Termination of Services or such later dates as determined by
the Company (but in no event later than the fifth anniversary of the Date of Grant or such date as follows pursuant to clause 9).
”Services” means the services the Holder (or, in case of any entity Holder, the services of the sole owner of such entity) provides to a Group Company
under a services or consulting agreement.
“Termination” means (i) that the Holder is no longer providing Services to any Group Company as a Consultant or (ii) in the case of a Holder that is
an entity, the sole owner of such entity on the Date of Grant ceases to be the sole owner of such entity.
If a Holder changes the entity for which he or she provides Services, but continues to provide Services to the Group, such change will not be deemed a
Termination of Services for purposes of the Consultant’s Stock Options, provided that there is no other interruption or termination of the Holder’s
Services, unless the Board, in its sole discretion, determines that the entity to which the Holder transfers is not a qualified affiliate of the Group. If a
Holder changes the capacity in which the Holder provides service to the Group from a Consultant to an employee, such change will not be deemed a
Termination of Services for purposes of his/her Stock Options; provided, however, that the Stock Options will thereafter be subject to the Terms and
Conditions governing Employee Stock Options 2021/2026 in the Company, to the extent determined by the Board.
EXERCISE
General
The Holder is entitled to exercise his/her rights under the Stock Options to the extent the Stock Options have vested pursuant to these terms and
conditions by requesting exercise at any time up to and including the fifth anniversary of the Date of Grant, in the manner set forth below
(“Exercise”), provided such Stock Options have not previously lapsed.
In the event the Holder has not requested Exercise on or before the fifth anniversary of the Date of Grant (such date, or an earlier date set for the
expiration of the term of the Stock Options as provided for in clause 9, the “Expiration Date”), all rights under the Stock Options shall lapse.
Exercise may only be requested through an electronic platform where the Holder may (i) place requests on the said electronic platform in order to
exercise some or all of her/his vested Stock Options (the “Exercise Request”) and (ii) carry out any actions required to settle the Holder’s Payment
Obligations (as defined in clause 7.1).
The Exercise Request placed by the Holder must be placed not later than on the Expiration Date and state the number of Stock Options that the Holder
wishes to Exercise. An Exercise Request is binding and irrevocable.
5.
5.1
5.2
5.2.1
5.2.2
5.2.3
5.2.4
6.
6.1
6.1.1
6.1.2
6.1.3
6.1.4
2
3
If the Holder’s Stock Options at Exercise entitle the Holder to subscribe for a number of Shares which is not an integer, the number of Shares to which
the entitlement relates shall be rounded down to the nearest integer.
Exercise may not take place in the event the Company is declared bankrupt. However, Exercise may take place in the event the bankruptcy order is
subsequently overturned on appeal.
The Expiration Date and the periods during which Exercise can take place may be amended pursuant to this clause 6, clause 9, or by other express
action of the Board as provided for in these terms and conditions.
In the event that the Holder’s Termination of Services occurs due to death or physical disability, the new Expiration Date shall be the 194 calendar
day following such event or such later dates as determined by the Company (but in no event later than the Expiration Date or such date as follows
pursuant to clause 9). The Holder (or, in the event of the Holder’s death, the Holder’s estate (Sw. dödsbo)) shall up to and including the new
Expiration Date be entitled to Exercise any Stock Options, which have vested in accordance with these terms and conditions as of such event.
Following the new Expiration Date, the Holder (or, in the event of the Holder’s death, the Holder’s estate) shall have no rights pursuant to the Stock
Options and all rights under the Stock Options which have not been subject to Exercise shall lapse. In the event of the Holder’s death, the rights and
obligations in accordance with these terms and conditions shall be binding upon and inure to the Holder’s estate.
th
PAYMENT AND DELIVERY OF SHARES
Payment of the Exercise Price and, to the extent applicable, any Withholding Obligation (as defined in clause 13.1 below), in each case as and to the
extent the Board requires in its sole discretion (Holder’s obligation to pay the Exercise Price jointly with any such Withholding Obligation that the
Board requires to be so settled, the “Holder’s Payment Obligations”) shall, unless the Board determines otherwise, be satisfied by a “cash
settlement” arrangement pursuant to which the Holder’s Payment Obligations shall be satisfied with money that shall have been paid by the Holder to
the Holder’s personal account on the electronic platform (“Cash Settlement”).
To the extent the Board determines that Cash Settlement will not be used to satisfy a Holder’s Payment Obligations, the Board may require the Holder
to satisfy such Holder’s Payment Obligations by any other method or combination of methods determined in the Board’s sole discretion, including,
without limitation, by:
(i) placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole Share)
then being distributed in respect of vested Stock Options as are sufficient to satisfy such Holder’s Payment Obligations. The net proceeds of such sale
shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess proceeds resulting from rounding up to
the nearest whole Share shall be deposited into the Holder’s account on the electronic platform; or
(ii) a “net settlement” arrangement pursuant to which the Company will reduce the number of Shares deliverable to the Holder upon vesting or
settlement by the minimum number of Shares (rounded up to the nearest whole Share, without any consideration to the Holder for such rounding) as
are sufficient to satisfy Holder’s Payment Obligations.
If the Company receives a valid Exercise Request and all actions required by the Holder to settle the Holder’s Payment Obligation have been
completed, the Company shall deliver Shares to the Holder within 10 days on which banks are open for business generally (and not for internet
banking only) in
6.1.5
6.1.6
6.1.7
6.1.8
7.
7.1
7.2
7.3
3
4
Luxembourg and the U.S (a “Business Day”) (less any Shares reduced or sold pursuant to this clause 7).
As a condition to the exercise of a Stock Option, the Holder shall make such arrangements as the Board may require for the satisfaction of any
Holder’s Payment Obligations that may arise in relation to the Stock Options.
RE-CALCULATION OF EXERCISE PRICE ETC.
The Exercise Price and the number of Shares to which each Stock Option entitles the Holder to subscribe for shall be re-calculated in the event that
there are changes in the Company’s share capital by way of a bonus issue of shares, share split, reverse share split, or a reduction of the share capital
(a “Re-calculation Event”), in order not to affect the value of the Stock Options. The re-calculation shall be carried out by the Board in accordance
with the following formula:
where:
n = number of shares issued in the Company prior to the Re-calculation Event
1
n = number of shares issued/reduced in the Re-calculation Event
2
n = number of Shares which each Stock Option entitled the Holder to subscribe for immediately prior to the Re-calculation Event
3
n = number of Shares that each Stock Option gives the right to subscribe for after the Re-calculation Event
4
Consequently, the Exercise Price for the Stock Option shall be re-calculated in accordance with the following formula:
where (in addition to the above definitions):
p = Exercise Price per Share prior to the Re-calculation Event
1
p = Exercise Price per Share after the Re-calculation Event
2
In the event that a Re-calculation Event would lead to an Exercise Price after the Re-calculation Event which is less than the par value of the
Company’s shares, the Exercise Price at Exercise shall instead equal the par value of the Company’s shares.
AMENDMENT OF VESTING SCHEDULE AND EXPIRATION DATE ETC.
Change in Control
In the event of a Change in Control the Board may, in its sole discretion, decide to (i) set a period during which the Holder may request Exercise (an
“Exercise Period”) and, if determined by the Board, a new Expiration Date, in accordance with the provisions of clause 9.1.2, (ii) have these terms
and conditions continue following the Change in Control in accordance with the provisions of clause 9.1.3, (iii) allow a grant of substantially
equivalent rights (i.e., among other things, that preserves the intrinsic value and vesting schedule of the Stock Options) to acquire securities in a new
company as the Holder had in the Company immediately before the Change in Control in accordance with the provisions of clause 9.1.4, or (iv) allow
an amendment of the terms and
7.4
8.
9.
9.1
9.1.1
4
5
conditions to the effect that, following the Change in Control, a new company assumes the Company’s rights and obligations hereunder in accordance
with the provisions of clause 9.1.5.
9.1.1.1
“Change in Control” shall mean and include each of the following:
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined
voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not
constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y)
any acquisition which complies with clauses 9.1.1.1(iii)(I)-(III); or (z) in respect of a Stock Option held by a particular Holder, any acquisition by the
Holder or any group of persons including the Holder (or any entity controlled by the Holder or any group of persons including the Holder);
(ii) the Incumbent Directors cease for any reason to constitute a majority of the Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more
intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the
Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case
other than a transaction: (I) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent
(either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to
the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting
power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (II) after which no person or group beneficially
owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group
shall be treated for purposes of this clause (II) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a
result of the voting power held in the Company prior to the consummation of the transaction; and (III) after which at least a majority of the members
of the board of directors (or the analogous governing body) of the Successor Entity were Board members at the time of the Board's approval of the
execution of the initial agreement providing for such transaction; or
(iv) the date which is 10 Business Days prior to the completion of a liquidation or dissolution of the Company.
“Incumbent Directors’ shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board
together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect
a transaction described in clause 9.1.1.1(i) or 9.1.1.1(iii)) whose election or nomination for election to the Board was approved by a vote of at least a
majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director
without objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose
election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or as a result of any
9.1.1.2
5
6
other actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director.
9.1.2
9.1.3
9.1.4
9.1.5
If the Board decides to set an Exercise Period, the Board shall notify the Holder in connection with the Change in Control of the Exercise Period and,
if the Board so decides, the new Expiration Date. The notice will set forth the Exercise Period, which shall, to the extent possible taking into account
the circumstances and process related to the Change in Control, give the Holder reasonable time to decide whether to Exercise any vested Stock
Options. The Holder shall during the Exercise Period be entitled to Exercise any Stock Options which have vested in accordance with these terms and
conditions. The Board shall be entitled, in its sole discretion, to decide whether to adopt a new Expiration Date so that, at the conclusion of such
Exercise Period, any unvested Stock Options shall lapse, or whether unvested Stock Options will continue to vest. The Board shall also be entitled, in
its sole discretion, to decide whether any vested Stock Options which have not been subject to Exercise during an Exercise Period shall be subject to a
new Expiration Date and therefore lapse, or whether the vested Stock Options will be exercisable following the expiration of an Exercise Period. If the
Board decides to establish a new Expiration Date so that any unvested, and/or any vested but unexercised, Stock Options shall lapse, the Holder shall
have no further rights pursuant to the Stock Options.
If the Board decides to have these terms and conditions continue following the effective date of the Change in Control, the vesting schedule and the
Expiration Date, as set forth in the Notice of Grant and clause 6 respectively, shall remain unaffected by the Change in Control.
If the Board decides to allow a grant of substantially equivalent rights to acquire securities in a new company as the Holder had in the Company
immediately before the Change in Control, all vested and unvested Stock Options shall lapse as of the closing of the Change in Control and, subject to
the grant of such substantially equivalent rights, the Holder shall have no further rights pursuant to the Stock Options after the closing of the Change
in Control.
If the Board decides to allow an amendment of the terms and conditions to the effect that, following the Change in Control, a new company assumes
the Company’s rights and obligations hereunder, the Holder’s right to subscribe for Shares in accordance with clause 3 shall relate to shares in such
new company.
9.2
Merger and de-merger
In the event of a merger through which the Company is absorbed into another company (other than a Change in Control) or a de-merger through
which the Company is divided into two or more new entities (other than a Change in Control), the Board shall, before the adoption of any resolution in
the aforementioned respects, determine an Exercise Period, the first day of which shall fall at least 20 calendar days after the date of the notice by the
Board to the Holder of such Exercise Period. During such Exercise Period the Holder shall be entitled to Exercise any Stock Options which have
vested in accordance with these terms and conditions. At the conclusion of such Exercise Period, all Stock Options which have not been subject to
Exercise during the Exercise Period shall lapse and the Holder shall have no rights pursuant to the Stock Options.
Share for share exchange etc.
If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new
company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use
reasonable efforts to either: (a) ensure that the Holder receives substantially equivalent rights to acquire securities in the new holding company as the
Holder had in the Company immediately before such transaction, provided that the Holder in writing waives any rights under the Stock Options,
which shall lapse as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding company assumes the
Company’s rights and obligations hereunder and
9.3
9.3.1
6
7
that the Holder’s right to subscribe for Shares in accordance with clause 3 shall relate to shares in the new holding company.
In the event of a transaction as described in clause 9.3.1, the Holder shall always be obliged upon the Board’s request to, in case of (a) in clause 9.3.1,
waive any rights under the Stock Options provided that the Holder receives substantially equivalent rights in the new holding company as the Holder
had in the Company immediately before such transaction or, in case of (b) in clause 9.3.1, approve any such amendment to these terms and conditions.
No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 9.3.2, provided that the Stock Options
preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of the Stock Option as of
immediately prior to such transaction.
If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class
of securities subject to the Stock Options. The Board will make such adjustments, and its determination will be final, binding and conclusive.
CANCELLATION OF STOCK OPTIONS IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach of any of its obligations under these terms and conditions, and the breach has not been rectified within 15
calendar days from the date the Holder receives a written demand for rectification, the Company shall be entitled to cancel the Holder’s unexercised
Stock Options (vested as well as unvested) which as a consequence thereof shall lapse.
A material breach for purposes of clause 10 and 11 shall mean a breach by the Holder of the provisions in clauses 7.2, 9.3, 12, 13, 15.1 or 15.5 or any
other breach by the Holder of these terms and conditions that is reasonably likely to have a material adverse effect on the Company.
LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach in accordance with clause 10.2 and the breach has not been rectified within 15 calendar days from the date the
Holder receives a written demand for rectification, the Holder shall upon written request by the Company pay liquidated damages in an amount
corresponding to 50 per cent of the aggregate then-current fair market value of the Shares represented by, or delivered upon exercise of, the Stock
Options. The Company shall not be entitled to demand liquidated damages if the Company has cancelled the Holder’s Stock Options pursuant to
clause 10.1.
If the Holder commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any
liquidated damages in accordance with the provisions of clause 11.1, to claim damages in an amount corresponding to the difference between the
actual damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any).
The payment by the Holder of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the
Company may have against the Holder as a result of a breach.
APPOINTMENT OF AGENT ETC.
The Holder hereby irrevocably authorises the Board, with full power of substitution, to endorse such documents on behalf of the Holder and to take
any other action reasonably necessary to effect any of the Holder’s obligations under these terms and conditions, including but not limited to,
execution of a transfer of Shares owned by the Holder. The Board shall hold any payment received for the benefit of the Holder under this clause 12
on behalf of the Holder and separated from any other funds. A
9.3.2
9.3.3
10.
10.1
10.2
11.
11.1
11.2
11.3
12.
12.1
7
8
withdrawal of the authorisation as provided for in this clause 12 constitutes a material breach of these terms and conditions for purposes of clause 10
and 11.
The Holder hereby undertakes to sign, execute and deliver such documents, and to take any other actions, as reasonably required by the Board in order
to ensure compliance with or observation of the Holder’s obligations under these terms and conditions.
PAYMENT OF CERTAIN TAXES
The Group will perform withholding of taxes in relation to the Stock Options and the Shares acquired at Exercise if and to the extent required by law
or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Group to perform such withholding
of taxes (any such withholding tax obligation of the Holder, “Withholding Obligation”). For the avoidance of doubt, this clause 13.1 shall not affect
the Holder’s liabilities and undertakings pursuant to the remainder of this clause 13.
The Holder is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, self-employment
taxes, social security contributions as well as any tax penalties thereon) for which the Holder may be liable in relation to the Stock Options and any
Shares acquired at Exercise (“Holder’s Tax Liability”). For the avoidance of doubt, any Withholding Obligation (whether preliminary or deducted at
source) on employment income, dividends and capital gains will always be considered as Holder’s Tax Liability.
The calculation of any Withholding Obligation will be subject to applicable rules and regulations based on the applicable tax rates, as determined by
the Board in its sole discretion in connection with determining the Holder’s Payment Obligations.
The Group assumes no responsibility for any Holder’s Tax Liability. The Holder represents that the Holder is not relying on the Group for any tax
advice and explicitly agrees not to demand any compensation from the Group to cover any Holder’s Tax Liability.
12.2
13.
13.1
13.2
13.3
13.4
14.
DATA PROTECTION
For the purposes of implementing, managing and administering the Stock Option Program, and for the Holder to participate in the Stock Option
Program, it is necessary for the Company, acting as data controller, and other companies in the Group to process the Holder’s personal data (and, in
the case of an entity Holder, the personal data of the entity’s sole owner). For more information regarding the processing of the Holder’s personal
data, see the Privacy Notice attached as Appendix 1.
MISCELLANEOUS
The Stock Options may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security.
The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by
public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons,
and provided in all of the aforementioned cases that the Holder’s rights are in no material respects adversely affected. If the Holder’s rights would be
materially adversely affected, the Holder’s written consent shall be necessary for such amendment.
Nothing in these terms and conditions or in any right or Stock Option granted under these terms and conditions shall confer upon the Holder the right
to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Group or of the Holder,
which rights are hereby expressly reserved by each, to terminate the Holder’s service at any time.
15.
15.1
15.2
15.3
8
9
15.4
15.5
15.6
The Holder has no right to compensation or damages for any loss in respect of the Stock Option where such loss arises (or is claimed to arise), in
whole or in part, from the termination of the Holder’s service; or notice to terminate service given by or to the Holder.
The Holder undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or
other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or
performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to
any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the
Holder may disclose the terms and conditions of the Holder’s Stock Options to the Holder’s spouse, personal attorney and/or tax preparer or, in the
case of Holders that are entities, the owner thereof (who may, for the avoidance of doubt, subsequently disclose this information to his/her spouse,
personal attorney and/or tax preparer). If a Holder becomes required, in circumstances contemplated by (i) to disclose any information, the disclosing
Holder shall use its best efforts to consult with the Company prior to any such disclosure.
Shares will not be issued or delivered under this Stock Option Program unless the issuance and delivery of such Shares comply with (or are exempt
from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s
securities may then be traded. In addition to the terms and conditions provided herein, the Board may require that a Holder make such reasonable
covenants, agreements and representations as the Board, in its sole discretion, deems advisable in order to comply with applicable law. The Board
shall have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise of any
Stock Option, including a window-period limitation, as may be imposed in the sole discretion of the Board.
16.
TERM AND TERMINATION
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on 31 March 2032.
The parties shall, however, after such date continue to be bound by the provisions set out in clause 15.5 and 17.
GOVERNING LAW AND JURISDICTION
These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of
laws).
The Company and the Holder undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between
them or any two or more of them through discussions and mutual agreement.
Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless
otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be
Stockholm and the language to be used in the arbitral proceedings shall be English.
The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any
applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the
Company and the Holder in writing.
17.
17.1
17.2
17.3
17.5
9
Exhibit 4.32
FIRST AMENDMENT TO
SPOTIFY TECHNOLOGY S.A.
TERMS AND CONDITIONS GOVERNING CONSULTANT STOCK OPTIONS 2020/2025
TERMS AND CONDITIONS GOVERNING CONSULTANT RESTRICTED STOCK UNITS 2020/2025
THIS FIRST AMENDMENT (this “Amendment”) to the Terms and Conditions Governing Consultant Stock Options 2020/2025 (the “Consultant Stock
Option Plan”) and the Terms and Conditions Governing Consultant Restricted Stock Units 2020/2025 (the “Consultant RSU Plan”, and collectively with the
Consultant Stock Option Plan, the “Consultant Incentive Plans”) is made and adopted by the Board of Directors (the “Board”) of Spotify Technology S.A., a
Luxembourg société anonyme (the “Company”).
WHEREAS, the Company maintains the Consultant Incentive Plans;
RECITALS
WHEREAS, pursuant to Section 15.2 of the Consultant Stock Option Plan and Section 13.1.2 of the Consultant RSU Plan, the Board has the authority to
amend the Consultant Incentive Plans from time to time; and
WHEREAS, the Board believes it is necessary for practical reasons to amend the Consultant Incentive Plans as set forth herein.
NOW, THEREFORE, BE IT RESOLVED, that the Consultant Incentive Plans are hereby amended as follows:
1. Section 4.2 of the Consultant Stock Option Plan is hereby deleted and replaced in its entirety with the following:
AMENDMENT
Stock Options may be granted to Holders during the period as from and including 1 January 2020 up to and including 31 March 2021. The determination
of the Consultants who will be granted Stock Options, and the date or dates of grant of Stock Options during such period (each, a “Date of Grant”), shall
be determined by the Board in its sole discretion.
2. Section 4.1.2 of the Consultant RSU Plan is hereby deleted and replaced in its entirety with the following:
Restricted Stock Units may be granted to Holders during the period as from and including 1 January 2020 up to and including 31 March 2021. The
determination of the Consultants who will be granted Restricted Stock Units, and the date or dates of grant of Restricted Stock Units during such period
(each, a “Date of Grant”), shall be determined by the Board in its sole discretion.
3. This Amendment shall be and is hereby, in applicable part, incorporated into and forms a part of the Consultant Stock Option Plan and Consultant RSU
Plan.
4. Except as expressly provided herein, all terms and conditions of the Consultant Stock Option Plan and Consultant RSU Plan shall remain in full force and
effect.
Exhibit 4.34
1.
1.1
1.2
1.3
2.
2.1
2.2
3.
3.1
3.2
4.
4.1
4.
TERMS AND CONDITIONS GOVERNING CONSULTANT RESTRICTED STOCK UNITS 2021/2026 IN SPOTIFY TECHNOLOGY S.A.
RESTRICTED STOCK UNIT ISSUER AND HOLDER
Spotify Technology S.A., a Luxembourg société anonyme, with registered address at 42-44, avenue de la Gare, L-1610 Luxembourg, registered with
the Luxembourg Trade and Companies’ Register under number B 123.052 (the “Company”).
Consultant to the Company or of any affiliate, subsidiary or other company controlled by the Company (collectively, the “Group,” each individually, a
“Group Company”) who has received an individual notice of grant (the “Holder”) (the “Notice of Grant”).
“Consultant” shall mean (a) any natural person engaged to provide consulting services for the Group or (b) any entity of which any such natural
person is the sole owner, in each case who qualifies as a consultant or advisor under the applicable rules of the Securities and Exchange Commission
for registration of shares on a Form S-8 Registration Statement.
BACKGROUND
The Company’s board of directors (the “Board”) considers the existence of efficient share-related incentive programs for Consultants to be of
material importance for the development of the Group. By connecting Consultants’ economic interests to the Group’s results and value trend, a long-
term increase in value is promoted. Accordingly, the interests of participating Consultants and shareholders will coincide.
The existence of a contract of service between a Consultant and a Group Company shall not give the Consultant any right or expectation to be granted
Restricted Stock Units at any time under this restricted stock unit program (the “Restricted Stock Unit Program”) or otherwise. Moreover, the
granting of a Restricted Stock Unit shall not give the Holder any right or expectation to be granted additional Restricted Stock Units at any time under
the Restricted Stock Unit Program or otherwise.
RESTRICTED STOCK UNIT; SHARES AVAILABLE
Subject to the terms and conditions set out herein, the Holder is entitled to delivery of one share in the Company (a “Share”) per restricted stock unit
(a “Restricted Stock Unit”). Subject to the provisions of clauses 7.1.5 and 7.2.3, the maximum aggregate number of Shares that may be subject to
Restricted Stock Units under the Pool is 50,000 Shares.
“Pool” means the Shares granted under the Restricted Stock Unit Program and the Terms and Conditions Governing Consultant Stock Options
2021/2026 in Spotify Technology, S.A (each, a “Pool Plan”).
Shares available for grant or sale under the Pool will be reduced by the net Shares granted under any of the Pool Plans.
IMPLEMENTATION AND GRANT
The Restricted Stock Unit Program shall be effective as per April 1, 2021 (the “Implementation Date”).
Restricted Stock Units may be granted to the Holder during the period as from and including April 1, 2021 up to and including March 31, 2022. The
determination of the Consultants who will be
2
5.
5.1
5.1.1
5.2
5.2.1
5.2.2
5.2.3
5.2.4
6.
6.1.1
6.1.2
6.1.3
granted Restricted Stock Units, and the date or dates of grants of Restricted Stock Units during such period (each, a “Date of Grant”), shall be
determined by the Board in its sole discretion.
VESTING
Vesting general
Vesting of the Restricted Stock Units shall occur on the dates set out in the Notice of Grant, subject to the Holders’s continued service with the Group.
The vesting schedule set out in the Notice of Grant may be amended pursuant to clause 5.2.
Consultant termination of services
If there is a Termination of Services for any reason, all unvested Restricted Stock Units shall cease vesting as of the date of Termination of Services
and shall immediately lapse.
“Services” means the services the Holder (or, in the case of any entity Holder, the services of the sole owner of such entity) provides to a Group
Company under a services or consulting agreement.
“Termination” means (i) that the Holder is no longer providing Services to any Group Company as a Consultant or (ii) in the case of a Holder that is
an entity, the sole owner of such entity on the Date of Grant ceases to be the sole owner of such entity.
If a Holder changes the entity for which he or she provides Services, but continues to provide Services to the Group, such change will not be deemed a
Termination of Services for purposes of the Consultant’s Restricted Stock Units, provided that there is no other interruption or termination of the
Holder’s Services, unless the Board, in its sole discretion, determines that the entity to which the Holder transfers is not a qualified affiliate of the
Group. If a Holder changes the capacity in which the Holder provides service to the Group from a Consultant to an employee, such change will not be
deemed a Termination of Services for purposes of his/her Restricted Stock Units; provided, however, that the Restricted Stock Units will thereafter be
subject to the terms of the Terms and Conditions Governing Employee Restricted Stock Units 2021/2026 in the Company, to the extent determined by
the Board.
SETTLEMENT
Settlement will occur through an electronic platform, where the Holder will be able to carry out any actions required to settle any Withholding
Obligation (as defined in clause 11.1 below) (any such Withholding Obligations that the Board requires to be so settled, the “Holder’s Payment
Obligations”).
Without limiting the foregoing, unless the Board determines otherwise, Holder’s Payment Obligations will be satisfied by a “cash settlement”
arrangement pursuant to which the Holder’s Payment Obligations shall be satisfied with money that shall have been paid by the Holder to the Holder’s
personal account on the electronic platform (“Cash Settlement”).
To the extent the Board determines that Cash Settlement will not be used to satisfy a Holder’s Payment Obligations, the Board may require the Holder
to satisfy such Holder’s Payment Obligations by any other method or combination of methods determined in the Board’s sole discretion, including,
without limitation, by:
i.
placing a market sell order with a broker acceptable to the Board covering the minimum number of Shares (rounded up to the nearest whole
Share) then being distributed in respect of vested Restricted Stock Units as are sufficient to satisfy such Holder’s Payment Obligations. The
net proceeds of such sale shall be delivered to the Company or its applicable Subsidiary upon the settlement of such sale, and any excess
proceeds resulting
3
from rounding up to the nearest whole Share shall be deposited into the Holder’s account on the electronic platform; or
ii.
a “net settlement” arrangement pursuant to which the Company will reduce the number of Shares issuable upon vesting or settlement by the
minimum number of Shares (rounded up to the nearest whole Share, without any consideration to the Holder for such rounding) as are
sufficient to satisfy Holder’s Payment Obligations.
As soon as reasonably practicable (but no later than 30 days) following the completion of all actions required by the Holder to settle the Holder’s
Payment Obligations with respect to any Restricted Stock Units that become vested (or if no such actions are required, within 30 days following the
vesting date), the Company shall issue the number of Shares subject to the Restricted Stock Units that become vested in the name of the Holder (or if
deceased, the Holder’s legal representative) (less any Shares reduced or sold pursuant to this clause 6). The Shares will be issued as fully paid and
nonassessable Shares and may be authorized but previously unissued shares, treasury shares or shares purchased in the open market.
If the Holder does not complete any required actions to settle the Holder’s Payment Obligations with respect to any Restricted Stock Units that vested
within 30 days following the applicable vesting date, then such Restricted Stock Units will be cancelled with respect to those Shares that would
otherwise have become issuable therefor, unless otherwise decided by the Board.
AMENDMENT OF THE RESTRICTED STOCK UNITS; ADJUSTMENT
Change in Control
With respect to any Restricted Stock Units that remain unvested as of the date immediately following the date of the Change in Control, the Board
may, in its sole discretion, decide to (i) have these terms and conditions continue following the effective date of the Change in Control in accordance
with the provisions of clause 7.1.2, (ii) allow a grant of substantially equivalent rights (i.e., among other things, that preserves the intrinsic value and
vesting schedule of the Restricted Stock Units) with respect to securities in a new company to the rights the Holder had in the Company immediately
before the Change in Control in accordance with the provisions of clause 7.1.3 or (iii) allow an amendment of the terms and conditions to the effect
that, following the Change in Control, a new company assumes the Company’s rights and obligations hereunder in accordance with the provisions of
clause 7.1.4.
If the Board decides to have these terms and conditions continue following the effective date of the Change in Control, the vesting and settlement
schedule as set forth in the Notice of Grant and 6 shall remain unaffected by the Change in Control.
If the Board decides to allow a grant of substantially equivalent rights with respect to securities in a new company to the rights the Holder had in the
Company immediately before the Change in Control, all unvested Restricted Stock Units shall lapse and be cancelled as of the closing and, subject to
the grant of such substantially equivalent rights, the Holder shall have no further rights pursuant to the Restricted Stock Units after the closing.
If the Board decides to allow an amendment of the terms and conditions to the effect that, following the Change in Control, a new company assumes
the Company’s rights and obligations hereunder, the Holder’s vested and unsettled Restricted Stock Units and unvested Restricted Stock Units shall
relate to shares in such new company.
If any share split, reverse share split, share dividend, recapitalization, combination, reclassification or other distribution of the Company’s Shares
without the receipt of consideration by the Company occurs, the Board will adjust the number and class of Shares that may be delivered under the
number and class of Shares covered by each outstanding Restricted Stock Unit and in a manner that
6.1.4
6.1.5
7.
7.1
7.1.1
7.1.2
7.1.3
7.1.4
7.1.5
4
complies with all applicable laws to prevent diminution or enlargement of the benefits or potential benefits intended to be made available with respect
to any grant of any Restricted Stock Unit.
7.1.6
“Change in Control” shall mean and include each of the following:
(i) a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) directly or indirectly acquires beneficial ownership
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined
voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not
constitute a Change in Control: (w) any acquisition by the Company; (x) any acquisition by an employee benefit plan maintained by the Company, (y)
any acquisition which complies with clauses 7.1.6 (iii)(I)-(III); or (z) in respect of an Restricted Stock Unit held by a particular Holder, any acquisition
by the Holder or any group of persons including the Holder (or any entity controlled by the Holder or any group of persons including the Holder); (ii)
the Incumbent Directors cease for any reason to constitute a majority of the Board; (iii) the consummation by the Company (whether directly
involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or
business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related
transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (I) which results in the Company’s voting
securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting
securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly,
all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor
Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately
after the transaction, and (II) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting
power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (II) as beneficially owning 50%
or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation
of the transaction; and (III) after which at least a majority of the members of the board of directors (or the analogous governing body) of the Successor
Entity were Board members at the time of the Board's approval of the execution of the initial agreement providing for such transaction; or (iv) the date
which is 10 days on which banks are open for business generally (and not for internet banking only) in Luxembourg and the U.S. prior to the
completion of a liquidation or dissolution of the Company.
7.1.7
“Incumbent Directors” shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board
together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a
transaction described in clause 7.1.66(i) or 6(iii)) whose election or nomination for election to the Board was approved by a vote of at least a majority
(either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director without
objection to such nomination) of the directors then still in office who either were directors at the beginning of the 12-month period or whose election
or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result of an
actual or threatened election contest with respect to directors or as a result of any other actual or
5
7.2
7.2.1
7.2.2
7.2.3
8.
8.1.1
8.1.2
9.
9.1.1
9.1.2
threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director.
Share for share exchange etc.
If the Company’s shareholders perform a share for share exchange for the purpose of creating a new holding company to the Company, or if a new
company otherwise replaces the Company as the holding company in the Group, and such transaction is not a Change in Control, the Board shall use
reasonable efforts to either: (a) ensure that the Holder receives substantially equivalent rights with respect to securities in the new holding company as
the Holder had in the Company immediately before such transaction, provided that the Holder in writing waives any rights under the Restricted Stock
Units, which shall lapse and be cancelled as a consequence thereof; or (b) amend these terms and conditions to the effect that the new holding
company assumes the Company’s rights and obligations hereunder and that the Holder’s vested and unsettled Restricted Stock Units and unvested
Restricted Stock Units shall relate to shares in such new company.
In the event of a transaction as described in clause 7.2.1, the Holder shall always be obliged upon the Board’s request to, in case of (a) in clause 7.2.1,
waive any rights under the Restricted Stock Units provided that the Holder receives substantially equivalent rights in the new holding company as the
Holder had in the Company immediately before such transaction or, in case of (b) in clause 7.2.1, approve any such amendment to these terms and
conditions. No waiver shall be requested or required, and the Company may act unilaterally in accordance with this clause 7.2, provided that the
Restricted Stock Units preserve the material terms and conditions of the underlying rights, including the vesting schedule and the intrinsic value of the
Restricted Stock Unit as of immediately prior to such transaction.
If the Company effects a change of the classes of outstanding Company securities, the Board shall, appropriately and proportionately adjust the class
of securities subject to the Restricted Stock Units. The Board will make such adjustments, and its determination will be final, binding and conclusive.
CANCELLATION OF RESTRICTED STOCK UNITS IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach of any of its obligations under these terms and conditions and the breach has not been rectified within 15
calendar days from the date the Holder receives a written demand for rectification, the Company shall be entitled to cancel the Holder’s Restricted
Stock Units, which as a consequence thereof shall lapse.
A material breach for purposes of clause 8 and 9 shall mean a breach by the Holder of the provisions in clauses 6.3, 7.2, 10, 11, 13.1 or 13.5 or any
other breach by the Holder of these terms and conditions that is reasonably likely to have a material adverse effect on the Company.
LIQUIDATED DAMAGES IN CASE OF A MATERIAL BREACH
If the Holder commits a material breach in accordance with clause 8.1.2 and the breach has not been rectified within 15 calendar days from the date
the Holder receives a written demand for rectification, the Holder shall upon written request by the Company pay liquidated damages in an amount
corresponding to 50 percent of the aggregate then-current fair market value of the Shares represented by or delivered upon settlement of the Restricted
Stock Units. The Company shall not be entitled to demand liquidated damages if the Company has cancelled the Holder’s Restricted Stock Units
pursuant to clause 8.1.1.
If the Holder commits a material breach of any of its obligations under these terms and conditions, the Company is entitled, in addition to any
liquidated damages in accordance with the provisions of clause 9.1.1, to claim damages in an amount corresponding to the difference between the
actual
6
damage suffered and the liquidated damages (if any), if such damage exceeds the amount of the liquidated damages (if any).
9.1.3
The payment by the Holder of any liquidated damages and regular damages shall not affect the Company’s right to pursue other remedies that the
Company may have against the Holder as a result of a breach.
10.
APPOINTMENT OF AGENT ETC.
10.1.1
The Holder hereby irrevocably authorizes the Board, with full power of substitution, to endorse such documents on behalf of the Holder and to take
any other action reasonably necessary to effect any of the Holder’s obligations under these terms and conditions, including but not limited to,
execution of a transfer of Shares owned by the Holder. The Board shall hold any payment received for the benefit of the Holder under this clause 10.1
on behalf of the Holder and separated from any other funds. A withdrawal of the authorization as provided for in this clause 10.1 constitutes a material
breach of these terms and conditions for purposes of clause 8 and 9.
10.1.2
The Holder hereby undertakes to sign, execute and deliver such documents (including without limitation any subscription form), and to take any other
actions, as reasonably required by the Board in order to ensure compliance with or observation of the Holder’s obligations under these terms and
conditions.
11.
PAYMENT OF CERTAIN TAXES
11.1.1
11.1.2
11.1.3
11.1.4
12.
12.1
The Group will perform withholding of taxes in relation to the Restricted Stock Units and the Shares delivered upon settlement if and to the extent
required by law or decisions by governmental authorities or if the Board in its reasonable opinion considers it appropriate for the Group to perform
such withholding of taxes (any such withholding tax obligation of the Holder, “Withholding Obligation”). For the avoidance of doubt, this clause
11.1.1 shall not affect the Holder’s liabilities and undertakings pursuant to the remainder of this clause 11.
The Holder is liable for and undertakes to pay any taxes (including but not limited to income taxes, capital taxes, employment taxes, self-employment
taxes, social security contributions as well as any tax penalties thereon) for which the Holder may be liable in relation to the Restricted Stock Units
and any Shares issued at settlement (“Holder’s Tax Liability”). For the avoidance of doubt, any Withholding Obligation (whether preliminary or
deducted at source) on employment income, dividends and capital gains will always be considered as Holder’s Tax Liability.
The calculation of any Withholding Obligation will be subject to applicable rules and regulations based on the applicable tax rates, as determined by
the Board in its sole discretion in connection with determining the Holder’s Payment Obligations.
The Group assumes no responsibility for any Holder’s Tax Liability. The Holder represents that the Holder is not relying on the Group for any tax
advice and explicitly agrees not to demand any compensation from the Group to cover any Holder’s Tax Liability.
DATA PROTECTION
For the purposes of implementing, managing and administering the Restricted Stock Unit Program, and for the Holder to participate in the Restricted
Stock Unit Program, it is necessary for the Company, acting as data controller, and other companies in the Group to process the Holder’s personal data
(and, in the case of an entity Holder, the personal data of the entity’s sole owner). For more information regarding the processing of the Holder’s
personal data, see the Privacy Notice attached as Appendix 1.
7
13.
MISCELLANEOUS
13.1.1
The Restricted Stock Units may not be transferred, otherwise disposed, pledged, borrowed against or used as any form of security.
13.1.2
13.1.3
13.1.4
13.1.5
13.1.6
The Company shall be entitled to amend these terms and conditions to the extent required by legislation, regulations, court decisions, decisions by
public authorities or agreements, or if such amendments, in the reasonable judgment of the Company, are otherwise necessary for practical reasons,
and provided in all of the aforementioned cases that the Holder’s rights are in no material respects adversely affected. If the Holder’s rights would be
materially adversely affected, the Holder’s written consent shall be necessary for such amendment.
Nothing in these terms and conditions or in any right or Restricted Stock Unit granted under these terms and conditions shall confer upon the Holder
the right to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Group or of the
Holder, which rights are hereby expressly reserved by each, to terminate the Holder’s service at any time.
The Holder has no right to compensation or damages for any loss in respect of the Restricted Stock Unit where such loss arises (or is claimed to arise),
in whole or in part, from the termination of the Holder’s service; or notice to terminate service given by or to the Holder.
The Holder undertakes not to use or disclose the contents of these terms and conditions, or any financial information, trade secrets, customer lists or
other information which it may from time to time receive or obtain (orally or in writing or in disc or electronic form) as a result of entering into or
performing its obligations pursuant to these terms and conditions or otherwise, relating to the Group unless: (i) required to do so by law or pursuant to
any order of court or other competent authority or tribunal; or (ii) such disclosure has been consented to by the Company, provided, however, that the
Holder may disclose the terms and conditions of the Holder’s Restricted Stock Units to the Holder’s spouse, personal attorney and/or tax preparer or,
in the case of Holders that are entities, the owner thereof (who may, for the avoidance of doubt, subsequently disclose this information to his/her
spouse, personal attorney and/or tax preparer). If a Holder becomes required, in circumstances contemplated by (i) to disclose any information, the
disclosing Holder shall use its best efforts to consult with the Company prior to any such disclosure.
Shares will not be issued or delivered under this Restricted Stock Unit Program unless the issuance and delivery of such Shares comply with (or are
exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations
promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the
Company’s securities may then be traded. In addition to the terms and conditions provided herein, the Board may require that a Holder make such
reasonable covenants, agreements and representations as the Board, in its sole discretion, deems advisable in order to comply with applicable law. The
Board shall have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise
of any Restricted Stock Unit, including a window-period limitation, as may be imposed in the sole discretion of the Board.
14.
TERM AND TERMINATION
These terms and conditions shall enter into force on the Implementation Date and remain in force until close of business in Sweden on March 31,
2032. The parties shall, however, after such date continue to be bound by the provisions set out in clause 13.1.5 and 15.
8
15.
GOVERNING LAW AND JURISDICTION
15.1.1
15.1.2
15.1.3
15.1.4
These terms and conditions shall be governed by and construed in accordance with the substantive law of Sweden (excluding its rules on conflict of
laws).
The Company and the Holder undertake to use their best efforts to resolve any disagreements or disputes regarding these terms and conditions between
them or any two or more of them through discussions and mutual agreement.
Any dispute, controversy or claim arising out of or in connection with these terms and conditions, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless
otherwise agreed between the parties to such arbitration, the Arbitral Tribunal shall be composed of a sole arbitrator, the seat of arbitration shall be
Stockholm and the language to be used in the arbitral proceedings shall be English.
The arbitral proceedings and all information and documentation related thereto shall be confidential, unless a disclosure is required under any
applicable law, relevant stock exchange regulations or order of court, other tribunal or competition authority or as otherwise agreed between the
Company and the Holder in writing.
Exhibit 8.1
The following is a list of subsidiaries of Spotify Technology S.A. as of December 31, 2020:
LIST OF SUBSIDIARIES
Name of Subsidiary
Jurisdiction of Incorporation or Organization
Spotify AB
Spotify USA Inc.
Spotify Ltd
Spotify Spain S.L.
Spotify GmbH
Spotify France SAS
Spotify Netherlands B.V.
Spotify Canada Inc.
Spotify Australia Pty Ltd
Spotify Brasil Serviços De Música LTDA
Spotify Japan K.K
Spotify India LLP
Sweden
Delaware, United States of America
United Kingdom
Spain
Germany
France
Netherlands
Canada
Australia
Brazil
Japan
India
S Servicios de Música México, S.A. de C.V.
Mexico
Spotify Singapore Pte Ltd.
Singapore
Exhibit 12.1
I, Daniel Ek, certify that:
1. I have reviewed this annual report on Form 20-F of Spotify Technology S.A.;
CERTIFICATIONS
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about
covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period
5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s
internal control over financial reporting.
Date: February 5, 2021
/s/ Daniel Ek
Daniel Ek
Chief Executive Officer
Exhibit 12.2
I, Paul Vogel, certify that:
1. I have reviewed this annual report on Form 20-F of Spotify Technology S.A.;
CERTIFICATIONS
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about
covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period
5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s
internal control over financial reporting.
Date: February 5, 2021
/s/ Paul Vogel
Paul Vogel
Chief Financial Officer
Exhibit 13.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
UNDER SECTION 906 OF THE SARBANES-OXLEY
ACT OF 2002, 18 U.S.C. SECTION 1350
I, Daniel Ek, Chief Executive Officer of Spotify Technology S.A. (the “Company”), do hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(a) The Annual Report on Form 20-F of the Company for the year ended December 31, 2020, as filed with the Securities and Exchange Commission
(the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(b) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 5, 2021
/s/ Daniel Ek
Daniel Ek
Chief Executive Officer
1
Exhibit 13.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
UNDER SECTION 906 OF THE SARBANES-OXLEY
ACT OF 2002, 18 U.S.C. SECTION 1350
I, Paul Vogel, Chief Financial Officer of Spotify Technology S.A. (the “Company”), do hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(a) The Annual Report on Form 20-F of the Company for the year ended December 31, 2020, as filed with the Securities and Exchange Commission
(the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(b) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 5, 2021
/s/ Paul Vogel
Paul Vogel
Chief Financial Officer
1
Exhibit 15.1
We consent to the incorporation by reference in the following Registration Statements:
Consent of Independent Registered Public Accounting Firm
(1) Registration Statement (Form S-8 No. 333-237908) pertaining to the Terms and Conditions Governing Director Stock Options 2020/2025 in Spotify
Technology S.A., and Terms and Conditions Governing Director Restricted Stock Units 2020/2025 in Spotify Technology S.A.,
(2) Registration Statement (Form S-8 No. 333-235746) pertaining to the Terms and Conditions Governing Employee Stock Options 2020/2025 in Spotify
Technology S.A., Terms and Conditions Governing Employee Restricted Stock Units 2020/2025 in Spotify Technology S.A., Terms and Conditions
Governing Stock Options for Consultants 2020/2025 in Spotify Technology S.A., and Terms and Conditions Governing Restricted Stock Units for
Consultants 2020/2025 in Spotify Technology S.A.,
(3) Registration Statement (Form S-8 No. 333-231102) pertaining to the Terms and Conditions Governing Director Stock Options 2019/2023 in Spotify
Technology S.A. and Terms and Conditions Governing Director Restricted Stock Units 2019/2023 in Spotify Technology S.A.,
(4) Registration Statement (Form S-8 No. 333-229623) pertaining to the Terms and Conditions Governing Employee Stock Options 2019/2024 in Spotify
Technology S.A., Terms and Conditions Governing Employee Stock Options 2019/2024 Interim in Spotify Technology S.A., and Terms and Conditions
Governing Restricted Stock Units 2019/2024 in Spotify Technology S.A., and
(5) Registration Statement (Form S-8 No. 333-223908) pertaining to the Terms and Conditions Governing Employee Stock Options 2014/2019 in Spotify
Technology S.A., Terms and Conditions Governing Employee Stock Options 2015/2020 in Spotify Technology S.A., Terms and Conditions Governing
Employee Stock Options 2016/2021 in Spotify Technology S.A., Terms and Conditions Governing Employee Stock Options 2017/2022 in Spotify
Technology S.A., Terms and Conditions Governing Employee Stock Options 2018/2023 in Spotify Technology S.A., Terms and Conditions Governing
Restricted Stock Units 2018/2023 in Spotify Technology S.A., Terms and Conditions Governing Director Restricted Stock Units 2018/2022 in Spotify
Technology S.A., and The Echo Nest Corporation 2007 Stock Option and Grant Plan;
of our reports dated February 5, 2021, with respect to the consolidated financial statements of Spotify Technology S.A. and the effectiveness of internal control
over financial reporting of Spotify Technology S.A. included in this Annual Report (Form 20-F) of Spotify Technology S.A. for the year ended December 31,
2020.
/s/ Ernst & Young AB
Stockholm, Sweden
February 5, 2021