Not Applicable
(Translation of Registrant’s Name into English)
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The Netherlands
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4700
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Not Applicable
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(State or other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer Identification
Number)
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David C. Boles
Latham & Watkins (London) LLP
99 Bishopsgate
London EC2M 3XF
United Kingdom
+44 (20) 7710-1000
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Marc D. Jaffe
Marcus C. Funke
Latham & Watkins LLP
885 Third Avenue
New York, NY 10017
(212) 906-1200
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CALCULATION OF REGISTRATION
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Title of each class of
securities to be registered
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Amount
to be
registered
(2)
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Proposed
maximum
aggregate offering
price per share
(3)
|
Proposed
maximum
aggregate
offering price
(4)
|
Amount of
registration fee
(4)
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Primary Offering:
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|
|
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Class A shares, nominal value of €0.06 per share, underlying American depositary shares ("ADSs")
(1)
|
|
|
|
(1)
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Debt Securities
|
|
|
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(1)
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Warrants
|
|
|
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(1)
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Purchase Contracts
|
|
|
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(1)
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Units
|
|
|
|
(1)
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Subtotal
|
$ 500,000,000
|
|
$ 500,000,000
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$ 62,250
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Secondary Offering:
|
|
|
|
|
Class A shares, nominal value of €0.06 per share, underlying ADSs
(1)
|
110,791,879
|
|
$762,802,087
|
$94,969
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Total
|
|
|
$1,262,802,087
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$157,219
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(1)
|
Each ADS represents one Class A share. ADSs issuable upon deposit of the Class A shares registered hereby have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-214914).
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(2)
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There are being registered hereunder such indeterminate number of the securities of each identified class being registered as may be sold by the registrant from time to time at indeterminate prices, with the maximum aggregate public offering price not to exceed $500,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed $500,000,000, less the aggregate dollar amount of all securities previously issued hereunder. In addition, up to 110,791,879 Class A shares underlying ADSs may be sold by selling shareholders who are identified in the prospectus forming part of this registration statement.
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(3)
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The proposed maximum aggregate price per unit of each class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of securities pursuant to the General Instruction II.C. of Form F-3 under the Securities Act of 1933, as amended.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended with respect to the securities to be sold by the registrant and pursuant to Rule 457(c) with respect to the 110,791,879 Class A shares underlying ADSs that may be sold by the selling shareholders. Pursuant to Rule 457(p) under the Securities Act of 1933, as amended, the registrant is offsetting the registration fee due under this registration statement by $4,832.31, which represents the portion of the registration fee previously paid with respect to $41,693,760.00 of unsold securities for a completed offering previously registered on the registration statement on Form F-1 (File No. 333-214591), initially filed on November 14, 2016. The proposed maximum aggregate offering price of the 110,791,879 Class A shares underlying ADSs to be sold by the selling shareholders is based on the average of the high and low sale prices per share of the ADSs on the Nasdaq Global Select Market on April 2, 2018. In no event will the aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement exceed $500,000,000.
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•
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our future financial performance, including our revenue, cost of revenue, operating expenses and our ability to achieve and maintain profitability;
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•
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our ability to generate positive cash flow and the sufficiency of our operating cash flow to meet our liquidity needs;
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•
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our expectations regarding the development of our industry and the competitive environment in which we operate;
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•
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our development of new products and services;
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•
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our ability to increase the number of visits to our hotel search platform and qualified referrals to our advertisers;
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•
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changes in the bidding dynamics on our marketplace, including advertiser testing of bidding strategies and responses to changes made to our marketplace;
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•
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the emergence of alternative business models and new competitors;
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•
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our ability to increase advertiser diversity on our marketplace;
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•
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the positive effects of our strategic initiatives on our profitability, including those aimed at maximizing the lifetime value of our users;
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•
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our ability to maintain and increase our brand awareness;
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•
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the potential development and impact on us of legal and regulatory proceedings to which we are or may become subject;
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•
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our ability to attract and maintain relationships with advertisers and increase the number of hotels on our marketplace; and
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•
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the growth in the usage of mobile devices and our ability to successfully monetize this usage.
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•
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a transfer of the business or virtually the entire business to a third party;
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•
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the entry into or termination of a long-term cooperation of the company or a subsidiary with another legal entity or company or as a fully liable partner in a limited partnership or general partnership, if such cooperation or termination is of a far-reaching significance for the company; and
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•
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the acquisition or divestment by the company or a subsidiary of a participating interest in the capital of a company having a value of at least one third of the amount of its assets according to its balance sheet and explanatory notes or, if the company prepares a consolidated balance sheet, according to its consolidated balance sheet and explanatory notes in the last adopted annual accounts of the company.
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The Netherlands
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Delaware
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Pursuant to Dutch law, one or more shareholders or others entitled to attend general meetings, who jointly represent at least one-tenth of the issued share capital may request convocation of an extraordinary general meeting with an agenda as requested by them. If our management board or our supervisory board does not in response to such a request call an extraordinary general meeting to be held within six weeks from the date of our receipt of the request, the persons requesting the meeting may be authorized upon their request by a Dutch court in summary proceedings to convene an extraordinary general meeting with the agenda requested by them. The agenda shall also include such items requested by one or more shareholders, and others entitled to attend general meetings of shareholders, representing at least 3% of the issued share capital. Requests must be made in writing or electronically and received by the management board at least 60 days before the day of the meeting.
The DCGC recommends that, before exercising the rights described above, the management board should first be consulted. If the envisaged exercise of such rights might result in a change to the company’s strategy, such as by dismissing one or more management board members or supervisory board members, the management board should be given the opportunity to invoke a reasonable period, not to exceed 180 days from the moment the management board receives notice of the intention to exercise the rights as described above, to respond to such intention. If invoked, the management board should use the response period for further deliberation and constructive consultation and should explore available alternatives. At the end of the response period, the management board should report on this consultation and exploration to the general meeting. This should be monitored by the supervisory board. Shareholders and others entitled to attend a general meeting of shareholders are expected to observe the response period, if invoked by the management board. The response period may be invoked only once for any given general meeting of shareholders and shall not apply (a) in respect of a matter for which a response period has been previously invoked; or (b) if a shareholder holds at least seventy-five percent (75%) of our issued share capital as a consequence of a successful public bid.
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Action by written consent
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Under Dutch law, shareholders’ resolutions may be adopted in writing without holding a meeting of shareholders, provided (a) the articles of association
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Although permitted by Delaware law, publicly listed companies do not typically permit shareholders of a corporation to take action by written consent.
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expressly so allow, (b) no bearer shares or (with the company’s cooperation) depository receipts are issued, (c) there are no persons entitled to the same rights as holders of depository receipts issued with the company’s cooperation, (d) the management board and supervisory board members have been given the opportunity to give their advice on the resolution, and (e) the resolution is adopted unanimously by all shareholders that are entitled to vote. The requirement of unanimity renders the adoption of shareholder resolutions without a meeting not feasible for publicly traded companies.
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Service
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Fees
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• To any person to which ADSs are issued or to any person to which a distribution is made in respect of ADS distributions pursuant to stock dividends or other free distributions of stock, bonus distributions, stock splits or other distributions (except where converted to cash)
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Up to US$0.05 per ADS issued
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• Cancellation of ADSs, including the case of termination of the deposit agreement
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Up to US$0.05 per ADS cancelled
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• Distribution of cash dividends
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Up to US$0.02 per ADS held
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• Distribution of cash entitlements (other than cash dividends) and/or cash proceeds from the sale of rights, securities and other entitlements
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Up to US$0.02 per ADS held
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• Distribution of ADSs pursuant to exercise of rights.
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Up to US$0.02 per ADS held
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• Distribution of securities other than ADSs or rights to purchase additional ADSs
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Up to US$0.02 per ADS held
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• Depositary services
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Up to US$0.02 per ADS held on the applicable record date(s) established by the depositary bank
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•
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Fees for the transfer and registration of Class A shares charged by the registrar and transfer agent for the Class A shares in the Netherlands (i.e., upon deposit and withdrawal of Class A shares).
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•
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Expenses incurred for converting foreign currency into U.S. dollars.
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Expenses for cable, telex and fax transmissions and for delivery of securities.
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•
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Taxes and duties upon the transfer of securities, including any applicable stamp duties, any stock transfer charges or withholding taxes (i.e., when Class A shares are deposited or withdrawn from deposit).
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•
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Fees and expenses incurred in connection with the delivery or servicing of Class A shares on deposit.
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Fees and expenses incurred in connection with complying with exchange control regulations and other regulatory requirements applicable to Class A shares, deposited securities, ADSs and ADRs.
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•
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Any applicable fees and penalties thereon.
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If we:
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Then:
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Change the nominal or par value of our Class A shares
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The cash, shares or other securities received by the depositary will become deposited securities.
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Reclassify, split up or consolidate any of the deposited securities
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Each ADS will automatically represent its equal share of the new deposited securities.
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Distribute securities on the Class A shares that are not distributed to you, or
Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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The depositary may distribute some or all of the cash, shares or other securities it received. It may also deliver new ADSs or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities.
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•
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are only obligated to take the actions specifically set forth in the deposit agreement without gross negligence or willful misconduct;
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•
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are not liable if any of us or our respective controlling persons or agents are prevented or forbidden from, or subjected to any civil or criminal penalty or restraint on account of, or delayed in, doing or performing any act or thing required by the terms of the deposit agreement and any ADR, by reason of any provision of any present or future law or regulation of the United States or any state thereof, the Netherlands or any other country, or of any other governmental authority or regulatory authority or stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of any provision, present or future, of our memorandum and articles of association or any provision of or governing any deposited securities, or by reason of any act of God or war or other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions, explosions and computer failure);
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•
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are not liable by reason of any exercise of, or failure to exercise, any discretion provided for in the deposit agreement or in our memorandum and articles of association or provisions of or governing deposited securities;
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•
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are not liable for any action or inaction of the depositary, the custodian or us or their or our respective controlling persons or agents in reliance upon the advice of or information from legal counsel, any person presenting Class A shares for deposit or any other person believed by it in good faith to be competent to give such advice or information;
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•
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are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available to holders of ADSs under the terms of the deposit agreement;
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•
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are not liable for any special, consequential, indirect or punitive damages for any breach of the terms of the deposit agreement, or otherwise;
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•
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may rely upon any documents we believe in good faith to be genuine and to have been signed or presented by the proper party;
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•
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•
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disclaim any liability for any action or inaction or inaction of any of us or our respective controlling persons or agents in reliance upon the advice of or information from legal counsel, accountants, any person presenting Class A shares for deposit, holders and beneficial owners (or authorized representatives) of ADSs, or any person believed in good faith to be competent to give such advice or information; and
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•
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disclaim any liability for inability of any holder to benefit from any distribution, offering, right or other benefit made available to holders of deposited securities but not made available to holders of ADS.
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•
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payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any Class A shares or other deposited securities and payment of the applicable fees, expenses and charges of the depositary;
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•
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satisfactory proof of the identity and genuineness of any signature or any other matters contemplated in the deposit agreement; and
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•
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compliance with (A) any laws or governmental regulations relating to the execution and delivery of ADRs or ADSs or to the withdrawal or delivery of deposited securities and (B) such reasonable regulations and procedures as the depositary may establish, from time to time, consistent with the deposit agreement and applicable laws, including presentation of transfer documents.
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•
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when temporary delays arise because: (1) the depositary has closed its transfer books or we have closed our transfer books; (2) the transfer of Class A shares is blocked to permit voting at a shareholders’ meeting; or (3) we are paying a dividend on our Class A shares;
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•
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when you owe money to pay fees, taxes and similar charges;
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•
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when it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to the withdrawal of Class A shares or other deposited securities, or
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•
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other circumstances specifically contemplated by Section I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time); or
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•
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for any other reason if the depositary or we determine, in good faith, that it is necessary or advisable to prohibit withdrawals.
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made;
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•
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if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
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•
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any provisions relating to any security provided for the debt securities;
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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•
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange;
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•
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees.
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we are the surviving corporation or the successor person (if other than trivago) is a corporation organized and validly existing under the laws the Netherlands and expressly assumes our obligations on the debt securities and under the indenture; and
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•
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
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•
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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•
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or trivago and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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•
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of trivago;
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•
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement.
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•
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and
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•
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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to cure any ambiguity, defect or inconsistency;
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•
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
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•
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to provide for uncertificated securities in addition to or in place of certificated securities;
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•
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to add guarantees with respect to debt securities of any series or secure debt securities of any series;
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•
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to surrender any of our rights or powers under the indenture;
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•
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to add covenants or events of default for the benefit of the holders of debt securities of any series;
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•
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to comply with the applicable procedures of the applicable depositary;
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•
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to make any change that does not adversely affect the rights of any holder of debt securities;
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•
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
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•
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or
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•
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act.
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•
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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•
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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•
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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•
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waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
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•
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
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•
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or
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•
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waive a redemption payment with respect to any debt security.
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•
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
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•
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
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•
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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•
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delivering to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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•
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the title of the warrants;
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•
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the aggregate number of warrants offered;
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•
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the designation, number and terms of the debt securities, ADSs or other securities purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted;
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•
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the exercise price of the warrants;
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•
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security will be separately transferable;
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•
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated;
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•
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any minimum or maximum amount of warrants that may be exercised at any one time;
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•
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any terms relating to the modification of the warrants;
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•
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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•
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any other specific terms of the warrants.
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•
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the terms of the units and of the ADSs, debt securities, warrants and/ or purchase contracts comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
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•
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a description of the terms of any unit agreement governing the units; and
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•
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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•
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through underwriters or dealers;
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•
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directly to a limited number of purchasers or to a single purchaser;
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•
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in “at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise;
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•
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through agents; or
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•
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through any other method permitted by applicable law and described in the applicable prospectus supplement.
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•
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the name or names of any underwriters, dealers or agents;
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•
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the purchase price of such securities and the proceeds to be received by us, if any;
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•
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
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•
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any public offering price;
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•
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any discounts or concessions allowed or reallowed or paid to dealers; and
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•
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any securities exchanges on which the securities may be listed.
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•
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negotiated transactions;
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•
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at a fixed public offering price or prices, which may be changed;
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•
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at market prices prevailing at the time of sale;
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•
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at prices related to prevailing market prices; or
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•
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at negotiated prices.
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Amount
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SEC registration fee
|
$ 157,219
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FINRA filing fee
|
$ 225,500
|
Printing and engraving expenses
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*
|
Legal fees and expenses
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*
|
Accounting fees and expenses
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*
|
Miscellaneous costs
|
*
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Total
|
*
|
PROSPECTUS
|
a.
|
the reasonable costs of conducting a defense against a claim based on acts or failures to act in the exercise of their statutory duties or any other duties currently or previously performed by them at our request;
|
b.
|
any damages, fines or other financial losses incurred by them as a result of an act or failure to act as referred to under a; and
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c.
|
any expense reasonably paid or incurred by them in connection with any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative or other nature, formal or informal, in which he becomes involved, with the exception of proceedings primarily aimed at pursuing a claim on their own behalf.
|
a.
|
a Dutch court or, in the event of arbitration, an arbitrator has established in a final and conclusive decision that the act or failure to act of the person concerned can be characterized as willful, intentionally reckless or seriously culpable conduct, unless Dutch law provides otherwise or this would, in view of the circumstances of the case, be unacceptable according to standards of reasonableness and fairness;
|
b.
|
the costs or financial loss of the person concerned are covered by an insurance and the insurer has paid out the costs or financial loss (or indicated to do so); or
|
c.
|
in relation to proceedings brought by a former management and supervisory board member against us, except for proceedings brought to enforce indemnification to which he is entitled pursuant to the articles of association or an agreement between him and us which has been approved by the management board.
|
trivago N.V.
|
||
|
|
|
By:
|
/s/ Rolf Schrömgens
|
|
|
Name:
|
Rolf Schrömgens
|
|
Title:
|
Chief Executive Officer
|
|
|
|
By:
|
/s/ Axel Hefer
|
|
|
Name:
|
Axel Hefer
|
|
Title:
|
Chief Financial Officer
|
Name
|
Title
|
||||
|
|
|
|||
/s/ Rolf Schrömgens
|
|
|
|||
Rolf Schrömgens
|
Managing Director (principal executive officer)
|
||||
/s/ Axel Hefer
|
|
|
|||
Axel Hefer
|
Managing Director (principal financial and accounting officer)
|
||||
/s/ Andrej Lehnert
|
|
|
|||
Andrej Lehnert
|
Managing Director
|
||||
/s/ Malte Siewert
|
|
|
|||
Malte Siewert
|
Managing Director
|
||||
/s/ Johannes Thomas
|
|
|
|||
Johannes Thomas
|
Managing Director
|
||||
/s/ Peter Vinnemeier
|
|
|
|||
Peter Vinnemeier
|
Managing Director
|
Cogency Global Inc.
|
||
|
|
|
By:
|
/s/ Colleen A. Devries
|
|
|
Name:
|
Colleen A. Devries
|
|
Title:
|
SVP on behalf of Cogency Global Inc.
|
|
|
Incorporated by reference
|
Filed herewith
|
||
|
|
Form
|
Exhibit
|
Filing Date
|
|
1.1*
|
Form of Underwriting Agreement.
|
|
|
|
|
|
|
|
|
|
|
2.1
|
|
|
|
#
|
|
|
|
|
|
|
|
2.2
|
|
|
|
#
|
|
|
|
|
|
|
|
2.3
|
|
|
|
#
|
|
|
|
|
|
|
|
3.1
|
F-1
|
3.3
|
11/14/2016
|
|
|
|
|
|
|
|
|
3.2
|
|
|
|
#
|
|
|
|
|
|
|
|
3.3
|
|
|
|
#
|
|
|
|
|
|
|
|
4.1
|
|
|
|
#
|
|
|
|
|
|
|
|
4.1(a)
|
20-F
|
2.2
|
3/6/2018
|
|
|
|
|
|
|
|
|
4.2
|
|
|
|
#
|
|
|
|
|
|
|
|
4.2(a)
|
20-F
|
2.4
|
3/6/2018
|
|
|
|
|
|
|
|
|
4.3
|
20-F
|
2.5
|
3/6/2018
|
|
|
|
|
|
|
|
|
4.4
|
|
|
|
#
|
|
|
|
|
|
|
|
4.5
|
|
|
|
#
|
|
|
|
|
|
|
|
4.6
|
|
|
|
#
|
|
|
|
|
|
|
|
4.7*
|
Form of Note.
|
|
|
|
|
|
|
|
|
|
|
4.8*
|
Form of Warrant Agreement.
|
|
|
|
|
|
|
|
|
|
|
4.9*
|
Form of Purchase Contract.
|
|
|
|
|
|
|
Incorporated by reference
|
Filed herewith
|
||
|
|
Form
|
Exhibit
|
Filing Date
|
|
|
|
|
|
|
|
4.10*
|
Form of Unit Agreement.
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
|
|
#
|
|
|
|
|
|
|
|
5.2
|
|
|
|
#
|
|
|
|
|
|
|
|
10.1
|
F-1/A
|
10.1
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.2
|
F-1/A
|
10.2
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.3
|
F-1/A
|
10.3
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.4
|
F-1/A
|
10.4
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.5
|
F-1/A
|
10.5
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.6
|
F-1/A
|
10.6
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.7
|
F-1/A
|
10.7
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.8
|
F-1/A
|
10.8
|
12/5/2016
|
|
|
|
|
|
|
|
|
10.9
|
|
|
|
#
|
|
|
|
|
|
|
|
10.11
|
F-1/A
|
10.11
|
12/5/2016
|
|
|
|
|
|
|
|
|
21.1
|
20-F
|
21.1
|
3/6/2018
|
|
|
|
|
|
|
|
|
23.1
|
|
|
|
#
|
|
|
Incorporated by reference
|
Filed herewith
|
||
|
|
Form
|
Exhibit
|
Filing Date
|
|
|
|
|
|
|
|
23.2
|
|
|
|
#
|
|
|
|
|
|
|
|
23.3
|
|
|
|
#
|
|
|
|
|
|
|
|
24.1
|
|
|
|
#
|
|
|
|
|
|
|
|
25.1*
|
Statement of Eligibility on Form T-1 for Indenture.
|
|
|
|
|
JOINT CROSS-BORDER
MERGER PLAN |
PREAMBLE
|
1.
Axel Peter Hefer, born on 7 June 1977 in Dortmund, Germany;
|
2.
Peter Vinnemeier, born on 10 September 1974 in Düsseldorf, Germany ("
Mr. Vinnemeier
");
|
3.
Andrej Gregor Lehnert, born on 28 February 1969 in Neustadt/Aisch, Germany;
|
4.
Malte Siewert, born on 8 December 1974 in Hamburg, Germany ("
Mr. Siewert
");
|
5.
Tobias Johannes Thomas, born on 10 June 1987 in Vechta, Germany; and
|
6.
Rolf Theo Johannes Schrömgens, born on 2 June 1976 in Mönchengladbach, Germany ("
Mr. Schrömgens
" and, together with Mr. Vinnemeier and Mr. Siewert, the "
Founders
"),
|
acting as the managing directors of:
|
a)
trivago N.V.
, a public limited liability company (
naamloze vennootschap
) under Dutch law, having its statutory seat (
Satzungssitz
) in Amsterdam, the Netherlands (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the Dutch Chamber of Commerce (
Kamer van Koophandel
) under number 67222927) (the "
Surviving Company
"); and
|
b)
trivago GmbH
, a private company with limited liability (
Gesellschaft mit beschränkter Haftung
) under German law, having its statutory seat (
Satzungssitz
) in Düsseldorf, Germany (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the lower court (
Amtsgericht
) of Düsseldorf under number HRB 51842) (the "
Disappearing Company
" and, together with the Surviving Company, the "
Merging Companies
"),
|
hereby establish the joint cross-border merger plan set out below (the "
Merger Plan
") and propose to enter into the Merger (as defined below).
|
RECITALS
|
A.
The Merging Companies wish to enter into and effect a cross-border merger within the meaning of (i) Sections 2:309 and 2:333b of the Dutch Civil Code ("
DCC
"), (ii) §§ 122a
et seqq
. of the German Transformation Act ("
UmwG
") and (iii) the Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (the "
Merger
"), pursuant to which, inter alia:
|
a)
the Disappearing Company, as transferring and disappearing company, will merge with and into the Surviving Company, as absorbing and surviving company;
|
b)
subject to applicable laws, all assets and liabilities of the Disappearing Company shall transfer to the Surviving Company by operation of law;
|
c)
the Surviving Company shall allot class B shares in its capital, having a nominal value of EUR 0.60 each (the "
Class B Shares
"), to the shareholders of the Disappearing Company as Merger compensation in accordance with the terms stipulated by this Merger Plan; and
|
d)
the Disappearing Company will be dissolved without the requirement of a liquidation.
|
B.
Neither of the Merging Companies has been dissolved, has been declared bankrupt or has been granted a suspension of payments.
|
C.
All shares in the capital of the Merging Companies are fully paid-up.
|
D.
No shares in the Disappearing Company's capital have been encumbered with a right of pledge or a right of usufruct or any similar encumbrance under German law.
|
E.
The Merger is intended to be treated for German corporate income tax and trade tax purposes as a tax neutral transaction in accordance with § 11 para. 2 of the German Reorganization Tax Act (
Umwandlungssteuergesetz
) to the maximum extent legally possible.
|
F.
The Disappearing Company does not own real estate.
|
|
MERGER PLAN
|
Article 1
Legal forms, company names and seats |
1.1
The Disappearing Company, trivago GmbH, is a private company with limited liability (
Gesellschaft mit beschränkter Haftung
) under German law with statutory seat (
Satzungssitz
) and actual place of management (
tatsächlicher Verwaltungssitz
) in Düsseldorf, Germany.
|
1.2
The Surviving Company, trivago N.V., is a public limited liability company (
naamloze vennootschap
) under Dutch law, with statutory seat in Amsterdam, the Netherlands, and actual place of management (
tatsächlicher Verwaltungssitz
) in Düsseldorf, Germany.
|
Article 2
Transfer of asset and liabilities |
Subject to applicable laws, all assets and liabilities of the Disappearing Company, as transferring and disappearing entity, with all related rights and obligations, shall be transferred to the Surviving Company, as absorbing and surviving entity, under dissolution without liquidation by way of Merger pursuant to Sections 2:309 and 2:333b of the DCC and §§ 122a
et seqq
., 2 no. 1, 46
et seqq
. UmwG, with effect from the moment that the Merger becomes effective from a legal perspective (the "
Legal Effective Time
").
|
Article 3
Exchange Ratios, Merger consideration and measures in connection with share ownership |
3.1
Subject to Article 3.2 of this Merger Plan, at the Legal Effective Time, for each A-share (
A-Geschäftsanteil
) in the Disappearing Company's capital, 8,510.66824 Class B Shares and for each B-share (
B-Geschäftsanteil
) in the Disappearing Company's capital, 8.51066824 Class B Shares shall be allotted to the shareholders of the Disappearing Company pursuant to the Merger (i.e., an exchange ratio of 1 : 8,510.66824 for A-shares (
A-Geschäftsanteile
) and an exchange ratio of 1 : 8.51066824 for B-shares (
B-Geschäftsanteile
)) (the "
Exchange Ratios
"). The total number of Class B Shares to be allotted to each shareholder of the Disappearing Company shall be rounded to the nearest whole number, with fractions equaling or exceeding 0.5 being rounded up and fractions below 0.5 being rounded down, in each case without compensation in cash or receivables in respect of such rounding differences.
|
3.2
No Class B Shares shall be allotted pursuant to the Merger as compensation for shares in the Disappearing Company's capital held by, or for the account of, either of the Merging Companies. The Merging Companies do not expect, and shall take no action to cause, B-shares (
B-Geschäftsanteile
) in the Disappearing Company's capital to be held by any party other than by the Surviving Company at the Legal Effective Time, so that no Class B Shares shall be allotted pursuant to the Merger as compensation for B-shares (
B-Geschäftsanteile
) in the Disappearing Company's capital.
|
3.3
At the time of the execution of this Merger Plan, (i) no shares in the capital of the Disappearing Company are held by third parties for the account of either of the Merging Companies and (ii) the Disappearing Company does not hold any shares in its own capital or in the Surviving Company's capital.
|
3.4
The allotment of Class B Shares to the shareholders of the Disappearing Company pursuant to the Merger (the "
Capital Increase
") shall lead, by operation of Dutch law, to an increase of the Surviving Company's issued share capital at the Legal Effective Time. The Capital Increase shall be recorded in the Surviving Company's shareholders' register and with the Dutch trade register promptly following the Legal Effective Time.
|
3.5
Each of the Class B Shares to be allotted to the shareholders of the Disappearing Company at the Legal Effective Time pursuant to the Merger shall carry the right to (i) participate in the Surviving Company's profits (irrespective of whether such profits were generated prior to or after the Legal Effective Time) in accordance with the Surviving Company's articles of association (the "
NV Articles
") and (ii) receive profit distributions declared by the Surviving Company which are payable upon or after the Legal Effective Time.
|
3.6
No cash contributions (
bare Zuzahlungen
) within the meaning of § 122c para. 2 no. 2 UmwG will be made.
|
Article 4
Expected effects of the Merger on employment |
4.1
As at March 31, 2017, the Disappearing Company employed 1,121 employees and the Surviving Company employed 14 employees. As at March 31, 2017, subsidiaries of the Disappearing Company employed 201 employees. There are no plans regarding a recruitment freeze. No domination agreements (
Beherrschungsverträge
) have been entered into between the Disappearing Company and any of its subsidiaries which employ personnel.
|
4.2
Employment relationships existing at the Surviving Company shall remain unaffected by the Merger and no modifications in such employment relationships are intended in connection with the Merger. Independent of the Merger, the Disappearing Company currently plans a carve-out of its sales department to a newly founded company.
|
4.3
At the Legal Effective Time:
|
a.
all employment relationships of the Disappearing Company existing at the Legal Effective Time (the "
Employment Relationships
"), including all rights and obligations under the Employment Relationships, shall be transferred to the Surviving Company pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 1 of the German Civil Code ("
BGB
"); and
|
b.
the Surviving Company, as new employer, shall accede to all rights and obligations under the Employment Relationships.
|
4.4
The service periods accrued by employees of the Disappearing Company shall not be affected by the Merger. Contractual duties arising from the Employment Relationships (including any works practices, general commitments and uniform rules) shall remain unaffected by the Merger, with the Surviving Company as new employer.
|
4.5
The Employment Relationships cannot be terminated by the Merging Companies in connection with the Merger pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 4 sentence 1 BGB. The right of termination for other reasons shall pass to the Surviving Company pursuant to the Merger, but shall otherwise remain unaffected by the Merger pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 4 sentence 2 BGB. No dismissals for operational reasons, reassignments or other measures affecting the employees of the Disappearing Company are intended in connection with the Merger.
|
4.6
As a consequence of the Merger, the Surviving Company shall, at the Legal Effective Time, accede to all obligations arising from occupational pensions commitments existing at the level of the Disappearing Company at the Legal Effective Time. Any regulations regarding company pensions applicable to the Disappearing Company at the Legal Effective Time shall – all acquired rights being safeguarded – as part of the individual contractual duties continue to apply to the Surviving Company following the Legal Effective Time. If the chosen manner of implementation of pension commitments granted to employees by the Disappearing Company cannot be maintained by the Surviving Company, the Surviving Company shall be obliged to provide the employees concerned with pension commitments under equal terms.
|
4.7
As of March 31, 2017, 12 employees of the Disappearing Company also have an employment relationship with the Surviving Company. With the exception of one such employee who has a dormant employment relationship with the Surviving Company and a dormant employment relationship with the Disappearing Company (due to being on parental leave), only the Employment Relationships between those employees and the Disappearing Company have been deactivated by individual agreements entered into with them, with the aim to reactivate their respective employment relationships with the Disappearing Company if the Merger finally does not take place or if the relevant employees are faced with serious economic damages caused by the premature transfer of their respective Employment Relationships to the Surviving Company. It is anticipated that the respective inactive Employment Relationships currently existing with the Disappearing Company be terminated at the Legal Effective Time or thereafter by individual agreements to be entered into between the Surviving Company and the relevant employees because the purpose of such deactivated Employment Relationships will cease to apply at the Legal Effective Time.
|
4.8
Neither of the Merging Companies has established co-determination bodies, any (central, group or company) works council or any other employee representative body, nor is any such body or works council in the process of being established. Therefore, no agreements have been entered into by either of the Merging Companies with any such body or works council.
|
4.9
Neither of the Merging Companies (i) is a member of an employers' association, (ii) is directly bound by any collective bargaining or works agreement or (iii) applies any collective bargaining or works agreement for other reasons (e.g., through employment contracts referring to collective bargaining or works agreements).
|
Article 5
Economic Effective Date |
5.1
From an economic and financial accounting perspective, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be deemed to have taken effect in the internal relationship between the Merging Companies as of 1 January 2017, 0:00 hours (Amsterdam time) (the "
Economic Effective Date
") (
Verschmelzungsstichtag
), § 122c para. 2 no. 6 UmwG.
|
5.2
As of the Economic Effective Date, all actions and business of the Disappearing Company shall be deemed to be performed for the account of the Surviving Company.
|
5.3
Subject to the applicable accounting method and policies, the financial information pertaining to the Disappearing Company shall be incorporated in the annual accounts and other financial reporting of the Surviving Company as of the Economic Effective Date.
|
Article 6
Special rights or compensation |
6.1
No rights within the meaning of § 122c para. 2 no. 7 UmwG or compensation for the loss of such rights are granted to any shareholder holding special rights or any holder of other securities, nor are there any other measures proposed with respect to such persons.
|
6.2
No special rights vis-à-vis the Disappearing Company are held by any party other than as shareholders of the Disappearing Company and, for that reason, no party is entitled pursuant to Section 2:320 DCC to receive an equivalent right in the Surviving Company or compensation for the loss of such right.
|
6.3
Because neither of the Merging Companies has issued shares which carry no voting or profit rights, no compensation can be requested pursuant to Section 2:330a DCC.
|
Article 7
No benefits conferred |
No benefits within the meaning of Section 2:312(1)(d) DCC and § 122c para. 2 no. 8 UmwG shall be conferred in connection with the Merger to the experts involved in examining this Merger Plan, to any of the Merging Companies' managing directors, to any of the Surviving Company's supervisory directors, to any other member of the administrative, management, supervisory or control bodies of the Merging Companies or to any other party involved in the Merger.
|
Article 8
Articles of association of the Surviving Company |
The NV Articles currently read as reflected in
Annex A
and will not be amended in connection with the Merger. No amendment to the NV Articles shall be required in connection with the Capital Increase.
|
Article 9
No procedure for employee participation |
9.1
The general meeting of shareholders of each of the Merging Companies has decided not to open negotiations on the establishment of rules concerning employee participation. Because neither of the Merging Companies is expected to be subject to employee participation arrangements upon the Merger becoming effective, as a matter of Dutch law, the Surviving Company does not need to implement employee participation arrangements as a consequence of the Merger.
|
9.2
Pursuant to both (i) the Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies and (ii) §§ 3
et seqq
. of the German Act on the CoDetermination of Employees in CrossBorder Mergers ("
MgVG
") transposing such Directive into German law, the MgVG, as follows from the residence principle, is not applicable to the Surviving Company, which has its statutory seat in the Netherlands. From a European and German law perspective, any requirement to initiate employee participation procedures is solely subject to Dutch law.
|
9.3
As a result, the level of co-determination currently existing at the Merging Companies – i.e., no corporate co-determination – shall be maintained upon the Merger becoming effective.
|
Article 10
Valuation of assets and liabilities |
For financial accounting purposes, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be accounted for by the Surviving Company consistent with the accounting principles applied by the Surviving Company on basis of book value as set out in the accounts of the Disappearing Company.
|
Article 11
Impact on goodwill and distributable reserves |
11.1
The Merger is not expected to have any impact on the Surviving Company's goodwill.
|
11.2
The Surviving Company's distributable reserves shall increase with an amount equal to the value for which the Disappearing Company's assets and liabilities will be incorporated in the annual accounts or other financial reporting of the Surviving Company, less (i) any increase pursuant to the Merger of the reserves that must be kept by the Surviving Company pursuant to Dutch law and (ii) the aggregate nominal amount of the Class B Shares to be allotted pursuant to the Merger.
|
Article 12
Date of balance sheets used |
The terms and conditions of the Merger are determined on the basis of the balance sheets of the Merging Companies as of December 31, 2016.
|
Article 13
No cash compensation offer, no claim for improvement of Exchange Ratios |
The Founders and the Surviving Company, who are the Disappearing Company's sole shareholders at the time of execution of this Merger Plan, already expressed their intention to waive their rights to
|
a.
file an objection to the minutes of the Disappearing Company's shareholders' meeting where the Merger shall be approved;
|
b.
claim a cash compensation offer pursuant to § 122i para. 1 in connection with §§ 29 et seqq. UmwG; as a result, a cash compensation offer pursuant to § 122i para. 1 in connection with §§ 29 et seqq. UmwG shall not be required in connection with the Merger; and
|
c.
claim an improvement of the Exchange Ratios pursuant to § 122h para. 1 in connection with §§ 14 para. 2, 15 UmwG.
|
Article 14
Composition of management board and supervisory board |
The Merger shall not affect the composition of the Surviving Company's management board or supervisory board.
|
Article 15
Activities |
The Surviving Company does not intend to discontinue any of its current (holding) activities and expects to continue the activities of the Disappearing Company following the Merger.
|
Article 16
Approval |
16.1
Pursuant to the NV Articles, the Surviving Company's general meeting of shareholders can only resolve to enter into the Merger at the proposal of the Surviving Company's management board, subject to the approval of the Surviving Company's supervisory board. However, the NV Articles do not preclude the Surviving Company's management board from resolving to enter into the Merger itself. For that reason, Dutch law allows the Surviving Company's management board to enter into the Merger, and the Surviving Company's management board intends to do so shortly before the Legal Effective Time. Such resolution shall be subject to the approval of the Surviving Company's supervisory board. By signing this Merger Plan, the Surviving Company's supervisory board approves this Merger Plan and the resolution to be passed by the Surviving Company's management board to enter into the Merger.
|
16.2
The resolution of the Disappearing Company's general meeting of shareholders to enter into the Merger does not need to be approved by any corporate body of the Disappearing Company. However, pursuant to § 8.1 in connection with § 8.1.2 of the Disappearing Company's articles of association, such resolution of the Disappearing Company's general meeting of shareholders shall require the consent of at least one of Founders (or any of their respective legal successors).
|
/s/ Axel Hefer
|
|
/s/ Peter Vinnemeier
|
Name: A.P. Hefer
|
|
Name: P. Vinnemeier
|
|
|
|
/s/ Andrej Lehnert
|
|
/s/ Malte Siewert
|
Name: A.G. Lehnert
|
|
Name: M. Siewert
|
|
|
|
/s/ Johannes Thomas
|
|
/s/ Rolf Schrömgens
|
Name: T.J. Thomas
|
|
Name: R.T.J. Schrömgens
|
/s/ David Schneider
|
|
/s/ Niklas Östberg
|
Name: D. Schneider
|
|
Name: L.N. Östberg
|
|
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/s/ Frederic Mazzella
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/s/ Mieke de Schepper
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Name: F.G. Mazzella
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Name: M.S. de Schepper
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/s/ Peter Kern
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/s/ Mark Okerstrom
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Name: P.M. Kern
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Name: M.D. Okerstrom
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/s/ Dara Khosrowshahi
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Name: D. Khosrowshahi
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JOINT EXPLANATORY REPORT (
SCHRIFTELIJKE TOELICHTING
) TO A
JOINT CROSS-BORDER MERGER PLAN |
PREAMBLE
|
1.
Axel Peter Hefer, born on June 7, 1977 in Dortmund, Germany;
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2.
Peter Vinnemeier, born on September 10, 1974 in Düsseldorf, Germany ("
Mr. Vinnemeier
");
|
3.
Andrej Gregor Lehnert, born on February 28, 1969 in Neustadt/Aisch, Germany;
|
4.
Malte Siewert, born on December 8, 1974 in Hamburg, Germany ("
Mr. Siewert
");
|
5.
Tobias Johannes Thomas, born on June 10, 1987 in Vechta, Germany; and
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6.
Rolf Theo Johannes Schrömgens, born on June 2, 1976 in Mönchengladbach, Germany ("
Mr. Schrömgens
" and, together with Mr. Vinnemeier and Mr. Siewert, the "
Founders
"),
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acting as the managing directors of:
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a)
trivago N.V.
, a public limited liability company (
naamloze vennootschap
) under Dutch law, having its statutory seat (
Satzungssitz
) in Amsterdam, the Netherlands (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the Dutch Chamber of Commerce (
Kamer van Koophandel
) under number 67222927) (the "
Surviving Company
"); and
|
b)
trivago GmbH
, a private company with limited liability (
Gesellschaft mit beschränkter Haftung
) under German law, having its statutory seat (
Satzungssitz
) in Düsseldorf, Germany (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the lower court (
Amtsgericht
) of Düsseldorf under number HRB 51842) (the "
Disappearing Company
" and, together with the Surviving Company, the "
Merging Companies
").
|
RECITALS
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A.
The Merging Companies wish to enter into and effect a cross-border merger within the meaning of (i) Sections 2:309 and 2:333b
et seqq.
of the Dutch Civil Code ("
DCC
"), (ii) §§ 122a
et seqq.
of the German Transformation Act ("
UmwG
") and (iii) the Directive 2005/56/EC of the European Parliament and of the Council of October 26, 2005 on cross-border mergers of limited liability companies (the "
Merger
"), pursuant to which,
inter alia
:
|
a)
the Disappearing Company, as transferring and disappearing entity, will merge with and into the Surviving Company, as absorbing and surviving entity;
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b)
subject to applicable laws, all assets and liabilities of the Disappearing Company shall transfer to the Surviving Company by operation of law;
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c)
the Surviving Company shall allot class B shares in its capital, having a nominal value of EUR 0.60 each (the "
Class B Shares
"), to the Founders as Merger compensation in accordance with the terms stipulated by the draft joint cross-border merger plan (the "
Merger Plan
"); and
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d)
the Disappearing Company will be dissolved without the requirement of a liquidation.
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B.
The Merger is intended to be treated for German corporate income tax and trade tax purposes as a tax neutral transaction in accordance with § 11 para. 2 of the German Reorganization Tax Act ("
UmwStG
") to the maximum extent legally possible.
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C.
On June 12, 2017, the Merger Plan was filed by the Disappearing Company with the commercial register of the local court of Düsseldorf, Germany. The publication pursuant to § 122d sentence 2 UmwG in connection with § 10 German Commercial Code ("
HGB
") occurred on June 19, 2017.
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EXPLANATORY REPORT
( SCHRIFTELIJKE TOELICHTING ) |
Article 1
Reasons for the Merger |
1.1
The Merging Companies wish to optimize the Surviving Company's corporate structure by entering into the Merger.
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1.2
By notarial deed dated December 15/16, 2016 (deed roll no. Z 2820/2016 of notary public Prof. Dr. Norbert Zimmermann, Düsseldorf, Germany) the shareholders of the Disappearing Company at such time, the Founders and Expedia Lodging Partner Services S.à r.l., agreed to pursue an initial public offering of American Depositary Shares representing class A shares ("
Class A Shares
") in the capital of the Surviving Company (the "
IPO
"). The Surviving Company has been incorporated as a Dutch company because Dutch corporate law provides the parties the flexibility to implement their desired governance structure. However, all material business activities of the Merging Companies have been and are currently carried out by the Disappearing Company and its subsidiaries.
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1.3
The participation in the Disappearing Company is the only asset, other than a certain cash amount, directly held by the Surviving Company. In order to avoid duplication of maintenance and administrative costs, the Merging Companies wish to concentrate the relevant business activities at the level of the Surviving Company. Also, as a result of the Merger, the corporate structure and corporate governance of the Merging Companies will be simplified and public shareholders will hold a direct stake in the legal entity that owns the operating business.
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Article 2
Consequences for activities |
Following the Merger, the Surviving Company will no longer hold its current function as holding company of the Disappearing Company but will rather directly conduct the activities of the Disappearing Company (including acting as the parent company of the Disappearing Company's subsidiaries); otherwise the Surviving Company will continue its current activities.
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Article 3
Economic consequences |
3.1
The Merger shall be performed in such a manner that, subject to applicable law, all assets and liabilities of the Disappearing Company shall be transferred to the Surviving Company by operation of law. The transfer of the assets and liabilities of the Disappearing Company to the Surviving Company shall be effected at the time the Merger becomes effective from a legal perspective (the "
Legal Effective Time
").
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3.2
From an economic and, subject to applicable accounting methods and policies, financial accounting perspective, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be deemed to have taken effect in the internal relationship between the Merging Companies as of January 1, 2017, 0:00 (Amsterdam time) (the "
Economic Effective Date
").
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3.3
The Surviving Company and the Founders are the sole shareholders of the Disappearing Company. The aim of the Merger is to combine the activities of the Disappearing Company with those of the Surviving Company.
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3.4
It is anticipated that the Merger will avoid duplication of maintenance, administrative and compliance costs. Moreover, the Merging Companies also anticipate that the simplification of their corporate structure and corporate governance as a result of the Merger will be well perceived from a capital markets perspective, in particular since public shareholders will hold a direct stake in the legal entity that owns the operating business following the Merger.
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Article 4
Legal consequences |
4.1
The Merger will have the consequences described in recital A.
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4.2
At the Legal Effective Time, subject to applicable law, the assets and liabilities of the Disappearing Company shall automatically transfer to the Surviving Company, and the Surviving Company shall be subrogated to all rights and obligations of the Disappearing Company. This means that, as of the Legal Effective Time, the creditors of the Disappearing Company will be able to recover their claims from the Surviving Company.
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4.3
Creditors of the Disappearing Company are protected against potential risks with respect to the satisfaction of their claims resulting from the Merger by § 122j UmwG, which provides that the creditors of the Disappearing Company may demand security for their claims to the extent the creditors cannot claim satisfaction of such claims, provided that the relevant claims came into existence before or up to 15 days following the publication of the Merger Plan pursuant to § 122d sentence 2 UmwG. Security may, for example, be provided by way of cash deposits or the pledging of movable goods.
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In order to receive security as described above, the relevant creditor of the Disappearing Company is required to designate in writing the amount and the legal basis of the claim for which the creditor demands provision of security and provides prima facie evidence, that the Merger endangers the satisfaction of the claim.
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The creditors of the Disappearing Company, however, have no right to prohibit the Merger in accordance with German law.
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4.4
In addition, each creditor of either the Merging Companies has, in accordance with Section 2:316 DCC, the right to claim security from either of the Merging Companies for its claims, provided its claims are not otherwise sufficiently secured, or if the financial situation of the Surviving Company provides fewer safeguards for satisfaction of its claims. Within one month following the publication of the Merger Plan, in each case subject to applicable law, the creditors may file, in accordance with Dutch law, an objection requesting the provision of security with the competent District Court of Amsterdam. As long as such one-month-period has not expired, or if a timely filed objection has not been withdrawn by the creditor or lifted by the District Court, the merger deed to effect the Merger is not permitted to be executed under Dutch law.
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4.5
Unless a counterparty to the Merging Companies exercises the right provided for under Section 2:322 DCC, contracts concluded with the Merging Companies will remain in force unchanged following the Merger, except that the Surviving Company will replace, where applicable, the Disappearing Company as the contracting party.
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4.6
The articles of association of the Surviving Company will not be amended as a consequence of the Merger.
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Article 5
Tax consequences |
5.1
The Merging Companies and the Founders intend to treat the Merger to the maximum extent legally possible as a tax neutral transaction for German income taxation purposes. The Merging Companies and the Founders applied for binding rulings of the competent German tax authorities, requesting them to confirm the tax neutrality of the Merger, both for the Merging Companies and the Founders, in Germany. As of the date of this explanatory report, the binding rulings have not yet been issued. Based on informal feedback received from German tax authorities as of the date of this explanatory report, the Merging Companies expect that German tax authorities will confirm the tax neutrality of the Merger both for the Merging Companies and the Founders, except that they intend to treat certain reimbursement payments by Expedia Lodging Partner Services S.à r.l. to the Founders as a taxable event to the Founders and the Disappearing Company. The Merging Companies do not expect that the tax burden potentially triggered to the Disappearing Company will have an economically material impact compared to the economic benefits of the Merger.
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5.2
In addition, the Merger might cause adverse tax consequences (in particular the forfeiture of minor tax loss carry-forwards) for the direct and indirect subsidiaries of the Disappearing Company as a result of the change of ownership. The Merging Companies do not expect that the adverse tax consequences potentially triggered at the subsidiary level will have an economically material impact compared to the economic benefits of the Merger.
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Article 6
Social consequence |
6.1
As at March 31, 2017, the Disappearing Company employed 1,121 employees and the Surviving Company employed 14 employees. As at March 31, 2017, subsidiaries of the Disappearing Company employed 201 employees. There are and were no plans regarding a recruitment freeze. No domination agreements have been entered into between the Disappearing Company and any of its subsidiaries which employ personnel.
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6.2
Employment relationships existing at the Surviving Company shall remain unaffected by the Merger and no modifications in such employment relationships are intended in connection with the Merger.
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6.3
From the Legal Effective Time:
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a.
all employment relationships of the Disappearing Company existing at the Legal Effective Time (the "
Employment
Relationships
"), including all rights and obligations under the Employment Relationships, shall be transferred to the Surviving Company pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 1 of the German Civil Code ("
BGB
"); and
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b.
the Surviving Company, as new employer, shall accede to all rights and obligations under the Employment Relationships.
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6.4
The service periods accrued by employees of the Disappearing Company shall not be affected by the Merger. Contractual duties arising from the Employment Relationships (including any works practices, general commitments and uniform rules) shall remain unaffected by the Merger, with the Surviving Company as new employer.
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6.5
The Employment Relationships cannot be terminated by the Merging Companies in connection with the Merger pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 4 sentence 1 BGB. The right of termination for other reasons shall pass to the Surviving Company pursuant to the Merger, but shall otherwise remain unaffected by the Merger pursuant to a direct or an analogous application of § 324 UmwG in connection with § 613a para. 4 sentence 2 BGB. No dismissals for operational reasons, reassignments or other measures affecting the employees of the Disappearing Company are intended in connection with the Merger.
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6.6
Independent of the Merger, the Disappearing Company contemplates a carve-out of its sales department to a newly founded wholly owned subsidiary (the "
NewCo
"). This carve-out will, according to current plans, be implemented by way of a so-called "asset deal" between the Disappearing Company and the NewCo (the "
Carve-Out
"). If the Carve-Out is not implemented prior to the Legal Effective Time, the Carve-Out will be implemented by the Surviving Company instead of the Disappearing Company. The Carve-Out may be associated with a transfer of business within the meaning of § 613 a BGB. Dismissals for operational reasons are permissible pursuant to § 613a para. 4 sentence 2 BGB even if the Carve-Out is associated with a transfer of business within the meaning of § 613a BGB. This applies in particular to employees of the Disappearing Company's sales department who do not consent to or object to the transfer of their employment relationship to NewCo.
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6.7
As a consequence of the Merger, the Surviving Company shall, at the Legal Effective Time, accede to all obligations arising from occupational pension commitments existing at the level of the Disappearing Company at the Legal Effective Time. Any regulations regarding company pensions applicable to the Disappearing Company at the Legal Effective Time shall – all acquired rights being safeguarded – as part of the individual contractual duties continue to apply to the Surviving Company following the Legal Effective Time. If the chosen manner of implementation of pension commitments granted to employees by the Disappearing Company cannot be maintained by the Surviving Company, the Surviving Company shall be obliged to provide the employees concerned with pension commitments under equal terms.
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6.8
As at March 31, 2017, 12 employees of the Disappearing Company also have an employment relationship with the Surviving Company. One such employee, who is on parental leave, has a dormant employment relationship with both the Surviving Company and the Disappearing Company. In the case of the other 11 employees, the Employment Relationships with the Disappearing Company have each been deactivated by individual agreements entered into with them, pursuant to which the respective employment relationship with the Disappearing Company will be reactivated if the Merger finally does not take place or if the relevant employee is faced with serious economic damages as a result of his or her having entered into the employment relationship with the Surviving Company before the existing Employment Relationship with the Disappearing Company transferring to the Surviving Company by virtue of the Merger. It is anticipated that these inactive employment relationships with the Disappearing Company will be terminated at the Legal Effective Time or thereafter by individual agreements to be entered into between the Surviving Company and the relevant employees because the purpose of such deactivated Employment Relationships will cease to exist at the Legal Effective Time.
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6.9
Neither of the Merging Companies has established co-determination bodies, any (central, group or company) works council or any other employee representative body, nor is any such body or works council in the process of being established. Therefore, no agreements have been entered into by either of the Merging Companies with any such body or works council.
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6.10
Neither of the Merging Companies (i) is a member of an employers' association, (ii) is directly bound by any collective bargaining or works agreement or (iii) applies any collective bargaining or works agreement for other reasons (e.g., through employment contracts referring to collective bargaining or works agreements).
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6.11
The general meeting of shareholders of each of the Merging Companies has decided not to open negotiations on the establishment of rules concerning employee participation. Because neither of the Merging Companies is expected to be subject to employee participation arrangements upon the Merger becoming effective, as a matter of Dutch law, the Surviving Company does not need to implement employee participation arrangements as a consequence of the Merger.
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6.12
Pursuant to both (i) the Directive 2005/56/EC of the European Parliament and of the Council of October 26, 2005 on cross-border mergers of limited liability companies and (ii) §§ 3
et seqq.
of the German Act on the CoDetermination of Employees in CrossBorder Mergers ("
MgVG
") transposing such Directive into German law, the MgVG, as follows from the residence principle, is not applicable to the Surviving Company, which has its statutory seat in the Netherlands. From a European and German law perspective, any requirement to initiate employee participation procedures is solely subject to Dutch law.
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6.13
As a result, the level of co-determination currently existing at the Merging Companies – i.e., no corporate co-determination – shall be maintained upon the Merger becoming effective.
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Article 7
Description of the Merger Plan |
7.1
The reasons for and the effects of the Merger are set out above.
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7.2
The Merger will be effected against allotment of Class B Shares to the Founders. As provided for in § 122a para. 2 in connection with § 20 para. 1 no. 3 sentence 1, 2nd half-sentence UmwG, no Class B Shares shall be allotted pursuant to the Merger as compensation for shares in the Disappearing Company held by, or for the account of, either of the Merging Companies.
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The allotment of Class B Shares to the Founders pursuant to the Merger (the "
Capital Increase
") shall lead, by operation of Dutch law, to an increase of the Surviving Company's issued share capital at the Legal Effective Time. The Capital Increase shall be recorded in the Surviving Company's shareholders' register and with the Dutch trade register promptly following the Legal Effective Time.
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Each of the Class B Shares to be allotted to the Founders at the Legal Effective Time pursuant to the Merger shall carry the right to (i) participate in the Surviving Company's profits (irrespective of whether such profits were generated prior to or after the Legal Effective Time) in accordance with the Surviving Company's articles of association and (ii) receive profit distributions declared by the Surviving Company which are payable upon or after the Legal Effective Time.
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No cash contributions within the meaning of § 122c para. 2 no. 2 UmwG will be made.
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7.3
From an economic and, subject to applicable accounting methods and policies, a financial accounting perspective, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be deemed to have taken effect in the internal relationship between the Merging Companies as of the Economic Effective Date.
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As of the Economic Effective Date, all actions and business of the Disappearing Company shall be deemed to be performed for the account of the Surviving Company.
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Subject to applicable accounting methods and policies, the financial information pertaining to the Disappearing Company shall be incorporated in the annual accounts and other financial reporting of the Surviving Company as of the Economic Effective Date.
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7.4
As regards the expected effects of the Merger regarding employment within the meaning of § 122c para. 2 no. 4, reference is made to Article 6. For the avoidance of doubt, it has been decided not to open negotiations on the establishment of rules concerning employee participation and to set up a special negotiation body.
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As neither of the Merging Companies is expected to be subject to employee participation arrangements upon the Merger becoming effective, as a matter of Dutch law, the Surviving Company does not need to implement employee participation arrangements as a consequence of the Merger.
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From a European and German law perspective, any requirement to initiate employee participation procedures is solely subject to Dutch law as set out in Article 6.12.
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As a result, the level of co-determination currently existing at the Merging Companies – i.e., no corporate co-determination – shall be maintained upon the Merger becoming effective
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7.5
No rights within the meaning of § 122c para. 2 no. 7 UmwG or compensation for the loss of such rights are granted to any shareholder holding special rights or any holder of other securities, nor are there any other measures proposed with respect to such persons.
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No special rights vis-à-vis the Disappearing Company are held by any party other than as shareholders of the Disappearing Company and, for that reason, no party is entitled pursuant to Section 2:320 DCC to receive an equivalent right in the Surviving Company or compensation for the loss of such right.
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Because neither of the Merging Companies has issued shares which carry no voting or profit rights, no compensation can be requested pursuant to Section 2:330a DCC.
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7.6
No benefits within the meaning of Section 2:312(2)(d) DCC and § 122c para. 2 no. 8 UmwG shall be conferred in connection with the Merger to the experts involved in examining the Merger Plan, to any of the Merging Companies' managing directors, to any of the Surviving Company's supervisory directors, to any other member of the administrative, management, supervisory or control bodies of the Merging Companies or to any other party involved in the Merger.
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7.7
For financial accounting purposes, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be accounted for by the Surviving Company consistent with the accounting principles applied by the Surviving Company on basis of book value as set out in the accounts of the Disappearing Company.
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7.8
The terms and conditions of the Merger are determined on the basis of the balance sheets of the Merging Companies as of December 31, 2016.
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Article 8
Exchange Ratios |
8.1
Subject to Article 3.2 of the Merger Plan, at the Legal Effective Time, for each A-share (
A-Geschäftsanteil
) in the Disappearing Company's capital, 8,510.66824 Class B Shares and for each B-share (
B-Geschäftsanteil
) in the Disappearing Company's capital, 8.51066824 Class B Shares shall be allotted to the shareholders of the Disappearing Company pursuant to the Merger (i.e., an exchange ratio of 1 : 8,510.66824 for A-shares (
A-Geschäftsanteile
) and an exchange ratio of 1 : 8.51066824 for B-shares (
B-Geschäftsanteile
)) (the "
Exchange Ratios
"). The total number of Class B Shares to be allotted to each shareholder of the Disappearing Company shall be rounded to the nearest whole number, with fractions equaling or exceeding 0.5 being rounded up and fractions below 0.5 being rounded down, in each case without compensation in cash or receivables in respect of such rounding differences.
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8.2
The balance sheet date used by the Merging Companies for the determination of the conditions of the Merger within the meaning of Section 2:333d(e) DCC and § 122c para. 2 no. 12 UmwG is in the case of both the Disappearing Company and the Surviving Company December 31, 2016.
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8.3
The Exchange Ratios are suitable and appropriate in the circumstances at hand. The Surviving Company was established as a holding company of the Disappearing Company, which was effected by the contribution to the Surviving Company by the then shareholders of the Disappearing Company of a portion of the shares of the Disappearing Company (namely those currently held by Surviving Company) (the "
Contribution
"). The ratio at which shares of the Surviving Company were issued for the Contribution of each share by such shareholders in the Disappearing Company was set in a way such that the total resulting number of shares of the Surviving Company would yield an appropriate value of the Surviving Company on a per-share basis (assumed value of the Surviving Company divided by such number). Such value per share was targeted to allow for the offer price under the IPO to be set in the range between $10 and $15 per share, as this was the amount most suitable for the placement of the new shares. The conversion ratios for the Contribution ultimately set on this basis were 8,510.66824 for each A-share and 8.51066824 for each B-share of the Disappearing Company (the "
Conversion Ratios
"). As the ratio of the values of the Merging Companies was the same at the time of the Contribution and at the Economic Effective Date (because at both times the Surviving Company did not hold any material assets or liabilities other than a certain cash amount referred to in Article 1.3 and the shares in the Disappearing Company), the Exchange Ratios for the Merger must be equal to the Conversion Ratios in order for those shareholders who have acquired shares in the Surviving Company as part of the IPO or otherwise and those shareholders who will "exchange" their shares in the Disappearing Company into shares in the Surviving Company by way of the Merger to be treated economically the same. Accordingly, all shareholders of the Disappearing Company immediately prior to the IPO (including both the under the Contribution and others) and the Surviving Company agreed in the context of the IPO that the Exchange Ratios would be equal to the Conversion Ratios when the Merger was to be ultimately effected.
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8.4
In order to assess whether the Conversion Ratios and the Exchange Ratios were suitable and appropriate, the Merging Companies conducted an analysis of these ratios on the basis of recent stock market prices of the American Depository Shares representing Class A Shares. On this basis, the value of the participation of the shareholders of the Disappearing Company was compared with the values of the future participation of the shareholders in the Surviving Company. Such analysis and comparison indicated that the Exchange Ratios are suitable and appropriate because the deviation between the values is significantly below 1.0%.
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8.5
Because only one method was applied to determine the Exchange Ratios (as described in Article 8.3), the relative weight of multiple methods does not need to be addressed in this explanatory memorandum.
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8.6
The values of both the Disappearing Company and the Surviving Company, used for determining the Exchange Ratios, have been derived from identical methods (i.e., derived from the Surviving Company's market capitalization on the basis of the analysis described in Article 8.4).
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8.7
Other than as described above in this Article 8, no particular difficulties arose as a result of the valuation described above or the determination of the Exchange Ratios.
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8.8
No offer pursuant to §§ 122i para. 1 in connection with 29
et seqq.
UmwG is required for the acquisition of shares against adequate consideration in cash to shareholders who record an objection against the merger resolution adopted by the shareholders' meeting of the Disappearing Company. All shareholders of the Disappearing Company intend not to record an objection against such resolution and to waive the assertion of potential claims for the payment of a cash compensation pursuant to §§ 122i para. 1 in connection with 29
et seqq.
UmwG.
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/s/ Axel Hefer
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/s/ Peter Vinnemeier
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Name: A.P. Hefer
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Name: P. Vinnemeier
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/s/ Andrej Lehnert
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/s/ Malte Siewert
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Name: A.G. Lehnert
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Name: M. Siewert
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/s/ Johannes Thomas
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/s/ Rolf Schrömgens
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Name: T.J. Thomas
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Name: R.T.J. Schrömgens
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1.
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trivago N.V.
, a public limited liability company (
naamloze vennootschap
) under Dutch law, having its statutory seat (
statutaire zetel
) in Amsterdam, the Netherlands (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the Dutch Chamber of Commerce (
Kamer van Koophandel
) under number 67222927) (the "
Surviving Company
"); and
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2.
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trivago GmbH
, a private company with limited liability (
Gesellschaft mit beschränkter Haftung
) under German law, having its statutory seat (
Satzungssitz
) in Düsseldorf, Ger-many (registered address: Bennigsen-Platz 1, 40474 Düsseldorf, Germany, registered with the commercial register of the lower court (
Amtsgericht
) of Düsseldorf under number HRB 51842) (the "
Disappearing Company
").
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A.
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The Merging Companies wish to enter into a cross-border merger within the meaning of (i) Sections 2:309 and 2:333b of the Dutch Civil Code ("
DCC
"), (ii) §§ 122a
et seqq
. of the German Transformation Act ("
UmwG
") and (iii) the Directive 2005/56 EC of the Eu-ropean Parliament and of the Council of 26 October 2005 on cross-border mergers of lim-ited liability companies (the "
Directive
"), pursuant to which the Disappearing Company, as disappearing company, will merge with and into the Surviving Company, as surviving company (the "
Merger
").
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B.
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Neither of the Merging Companies has been dissolved, has been declared bankrupt or has been granted a suspension of payments.
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C.
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No shares in the Disappearing Company's capital have been encumbered with a right of pledge or a right of usufruct or any similar encumbrance under German law.
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D.
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The Merger is intended to be treated for German corporate income tax and trade tax pur-poses as a tax neutral transaction in accordance with § 11 para. 2 German Reorganization Tax Act (
Umwandlungssteuergesetz
) to the maximum extent legally possible.
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E.
|
No works council has been established or is in the process of being established which would be entitled to render advice in respect of the Merger.
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F.
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The Merging Companies' general meetings have decided not to open negotiations on the establishment of rules concerning employee participation as referred to in Section 2:333k(12) DCC, as evidenced by (i) a written resolution of the Surviving Company's general meeting dated the sixteenth day of December two thousand and sixteen and (ii) an oral resolution of the Disappearing Company's general meeting dated the sixteenth day of December two thousand and sixteen laid down in minutes, copies of which shall be at-tached to this Deed.
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G.
|
The Merging Companies' management boards and the Surviving Company's supervisory board have drawn up a joint cross-border merger plan relating to the Merger (the "
Merger Plan
"). The managing directors of the Merging Companies and the supervisory directors of the Surviving Company have signed the Merger Plan.
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H.
|
In addition, the Merging Companies' management boards have drawn up a joint explana-tory report to the Merger Plan (the "
Explanatory Report
"). The managing directors of the Merging Companies have signed the Explanatory Report.
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I.
|
In connection with the Merger, an auditor as referred to in Section 2:393 DCC has issued the statements and the report referred to in Section 2:328 DCC.
|
J.
|
In connection with the Merger, an auditor has issued the report referred to in §§ 122f, 9
et seqq.
UmwG.
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K.
|
On the twelfth day of June two thousand and seventeen, the Disappearing Company filed the documents as referred to in § 122d UmwG, to the extent required, with the commercial register of the lower court (
Amtsgericht
) of Düsseldorf, Germany.
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L.
|
On the nineteenth day of June two thousand and seventeen, the commercial register of the lower court (
Amtsgericht
) of Düsseldorf, Germany, published the Merger Plan of the Merging Compa-nies by means of a notice stating the information as required pursuant to § 122d UmwG.
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M.
|
The Merger Plan was filed with the Dutch trade register on the thirtieth day of June two thousand and seventeen, together with the other relevant documents referred to in Sections 2:314(1) DCC and 2:328(1) DCC. On that same date, those documents were also filed at the Merging Companies' offices, together with the other relevant documents referred to in Sections 2:314(2) DCC and 2:328(2) DCC.
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N.
|
The Merging Companies announced the filings mentioned in recital M. in Trouw on the fifth day of July two thousand and seventeen, in accordance with Sections 2:314(3) DCC and 2:331(2) DCC.
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O.
|
The Merging Companies announced the Merger in the Dutch Gazette (
Staatscourant
) on the sixth day of July two thousand and seventeen, in accordance with Section 2:333e DCC.
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P.
|
The declaration from the clerk of the court of first instance of Amsterdam, the Nether-lands, a copy of which shall be attached to this Deed, evidences that no objection to the Merger Plan has been filed by a creditor of either or both of the Merging Companies.
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Q.
|
The joint declaration of the Merging Companies' management boards, of which a copy shall be attached to this Deed, evidences that no material changes have occurred in the as-sets and liabilities of the Merging Companies after the date of the Merger Plan that have affected the statements in the Merger Plan or in the Explanatory Report.
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R.
|
On the third day of August two thousand and seventeen, the Surviving Company's super-visory board resolved to approve the intended resolution of the Surviving Company's management board to enter into the Merger. A copy of the minutes of the meeting of the Surviving Company's supervisory board evidencing this resolution shall be attached to this Deed.
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S.
|
On the twenty-first day of August two thousand and seventeen, the Surviving Company's management board resolved to enter into the Merger. A copy of the written resolution evidencing this resolution shall be attached to this Deed. No request as referred to in Section 2:331(3) DCC has been received by the Surviving Company.
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T.
|
On the twenty-second day of August two thousand and seventeen, the Disappearing Com-pany's general meeting resolved to enter into the Merger. A copy of the minutes of the meeting of the Disappearing Company's general meeting shall be attached to this Deed.
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U.
|
As evidenced by a notarial certificate issued by Prof. Dr. Norbert Zimmermann, German notary, duly admitted and sworn in with official residence in Düsseldorf, Germany, on the fifth day of September two thousand and seventeen, a copy of which is attached to this Deed, the notification issued by the Local Court (
Amtsgericht
) of Düsseldorf, Germany on the thirtieth day of August two thousand and seventeen and re-issued after correction on the fifth day of September two thousand and seventeen, a copy of which is attached to this Deed, constitutes the pre-merger certificate within the meaning of Section 10 of the Di-
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V.
|
On the fourth day of September two thousand and seventeen, the undersigned civil law notary has issued a pre-merger certificate with regard to the Surviving Company, within the meaning of Section 10 of the Directive and Section 2:333i(3) DCC, attesting that (i) the procedural formalities (
vormvoorschrift-en
) regarding all resolutions required by Chapters 2, 3 and 3A of Title 7 of Book 2 DCC and by the Surviving Company's articles of association for the Surviving Company's participation in the Merger have been observed, and (ii) all other formalities (
voorschriften
) stipulated by Chapters 2, 3 and 3A of Title 7 of Book 2 DCC in relation to the Merger have been observed. A copy of the pre-merger certificate for the Surviving Company shall be attached to this Deed.
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Article 1
|
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Article 2
|
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2.1
|
From an economic and financial accounting perspective, the transfer of the Disappearing Company's assets and liabilities to the Surviving Company pursuant to the Merger shall be deemed to have taken effect in the internal relationship between the Merging Companies as of the first day of January two thousand and seventeen, zero hours and zero minutes (Amsterdam time) (the "
Economic Effective Date
") (
Verschmelzungsstichtag
) in accord-ance with § 122c para. 2 no. 6 UmwG.
|
2.2
|
As of the Economic Effective Date, all actions and business of the Disappearing Company shall be deemed to be performed for the account of the Surviving Company.
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2.3
|
Subject to the applicable accounting method and policies, the financial information per-taining to the Disappearing Company shall be incorporated in the annual accounts and other financial reporting of the Surviving Company as of the Economic Effective Date.
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A.
|
pursuant to the Merger and the application of the Exchange Ratios (as defined in the Merger Plan), a total of one hundred ten million seven hundred ninety-one thousand eight hundred seventy-nine (110,791,879) class B shares in the Surviving Company's capital, each share having a nominal value of sixty eurocents (EUR 0.60), shall be allotted to shareholders of the Disappearing Company (except for the Surviving Company) upon the Merger becoming effective, in accordance with the provisions of the Merger Plan and the Explanatory Report (the "
Merger Shares
"); and
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B.
|
consequently, upon the Merger becoming effective, the Surviving Company's issued share capital shall amount to one hundred ninety-three million seven hundred thirty-four thousand four hundred six euro and ninety-eight eurocents (EUR 193,734,406.98) and consist of thirty million nine hundred seven thousand one hundred and thirteen (30,907,113) class A shares, each class A share having a nominal value of six eurocents (EUR 0.06) and three hundred nineteen million seven hundred ninety-nine thousand nine hundred sixty-seven (319,799,967) class B shares, each class B share having a nominal
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Amended and Restated Shareholders' Agreement
|
The Amended and Restated Shareholders' Agreement among the Company and certain of its shareholders, dated December 15, 2016, as amended, supplemented or otherwise modified from time to time.
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Annual Business Plan
|
The Company's annual business plan prepared by the Management Board and approved by the Supervisory Board.
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Appendix
|
The appendix to these rules.
|
Article
|
An article of these rules.
|
Articles of Association
|
The Company's articles of association.
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Audit Committee
|
The audit committee established by the Supervisory Board.
|
Board Meeting
|
A meeting of the Management Board.
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CEO
|
The Company's chief executive officer.
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CFO
|
The Company's chief financial officer.
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Class A share
|
A class A share in the Company's capital.
|
Class B share
|
A class B share in the Company's capital.
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Company
|
trivago N.V.
|
Conflict of Interests
|
A direct or indirect personal interest of a Managing Director which conflicts with the interests of the Company and of the business connected with it.
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Founder
|
Any of Messrs. Rolf Schrömgens, Malte Siewert or Peter Vinnemeier.
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General Meeting
|
The Company's general meeting of shareholders.
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Incentive Plan
|
The Company's 2016 Omnibus Incentive Plan, any successor incentive plan, and any predecessor phantom option and profit sharing bonus agreements in existence as of the date hereof or amended pursuant to forms of amendment approved by the General Meeting, in each case as amended, supplemented or otherwise modified from time to time.
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Management Board
|
The Company's management board.
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Managing Director
|
A member of the Management Board.
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Simple Majority
|
More than half of the votes cast.
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Subsidiary
|
A subsidiary of the Company within the meaning of Section 2:24a DCC, including:
a.
an entity in whose general meeting the Company or one or more of its Subsidiaries can exercise, whether or not by virtue of an agreement with other parties with voting rights, individually or collectively, more than half of the voting rights; and
b.
an entity of which the Company or one or more of its Subsidiaries are members or shareholders and can appoint or dismiss, whether or not by virtue of an agreement with other parties with voting rights, individually or collectively, more than half of the managing directors or of the supervisory directors, even if all parties with voting rights cast their votes.
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Supervisory Board
|
The Company's supervisory board.
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Website
|
The Company's website.
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Amended and Restated Shareholders' Agreement
|
The Amended and Restated Shareholders' Agreement among the Company and certain of its shareholders, dated December 15, 2016, as amended, supplemented or otherwise modified from time to time.
|
Article
|
An article of these rules.
|
Articles of Association
|
The Company's articles of association.
|
Audit Committee
|
The audit committee established by the Supervisory Board.
|
Chairman
|
The chairman of the Supervisory Board.
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Committee
|
The Audit Committee, the Compensation Committee and any other permanent or ad hoc committee established by the Supervisory Board.
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Committee Charter
|
The charter governing the organisation, decision-making and other internal matters of the relevant Committee.
|
Company
|
trivago N.V.
|
Compensation Committee
|
The compensation committee established by the Supervisory Board.
|
Conflict of Interests
|
A direct or indirect personal interest of a Supervisory Director which conflicts with the interests of the Company and of the business connected with it.
|
General Meeting
|
The Company's general meeting of shareholders.
|
Management Board
|
The Company's management board.
|
Managing Director
|
A member of the Management Board.
|
Simple Majority
|
More than half of the votes cast.
|
Supervisory Board
|
The Company's supervisory board.
|
Supervisory Board Meeting
|
A meeting of the Supervisory Board.
|
Supervisory Director
|
A member of the Supervisory Board.
|
Vice-Chairman
|
The vice-chairman of the Supervisory Board.
|
Website
|
The Company's website.
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Section 1.1
|
Definitions
1
|
Section 1.2
|
Other Interpretation Provisions
10
|
Section 2.1
|
Supervisory Board and Management Board Composition
10
|
Section 2.2
|
Supervisory Board Committees
15
|
Section 2.3
|
Rules of Procedure
15
|
Section 2.4
|
Bad Leaver Call
15
|
Section 2.5
|
Good Leaver Put/Withdrawal
15
|
Section 2.6
|
Closing of Put/Call Transactions
16
|
Section 2.7
|
Alternative Consideration
17
|
Section 3.1
|
Annual Financial Statements
18
|
Section 3.2
|
Information and Reporting Requirements
18
|
Section 4.1
|
U.S. Tax Elections/Information Covenants
19
|
Section 4.2
|
Confidentiality
20
|
Section 5.1
|
Demand Registration Rights
22
|
Section 5.2
|
Piggyback Registration Rights
25
|
Section 5.3
|
Indemnification; Contribution.
28
|
Section 5.4
|
Copies of Registration Statements
31
|
Section 5.5
|
Expenses
31
|
Section 5.6
|
No Inconsistent Agreements
31
|
Section 6.1
|
Transfer of Shares
31
|
Section 6.2
|
Right of First Offer
32
|
Section 6.3
|
Tag-Along
33
|
Section 6.4
|
Drag-Along
34
|
Section 7.1
|
General Voting Agreement
34
|
Section 7.2
|
Share Cancellation Voting Agreement
35
|
Section 8.1
|
Non-Managing Shareholder Exemption
35
|
Section 8.2
|
Managing Shareholder Non-Compete
35
|
Section 8.3
|
Managing Shareholder Non-Solicit
36
|