|TRIVAGO N.V. filed this Form 20-F on 03/06/2018|
This agreement (“Agreement”) is entered into on August 21, 2017, by and among Mr. Rolf Schrömgens, Mr. Peter Vinnemeier, Mr. Malte Siewert (Messrs. Schrömgens, Vinnemeier and Siewert, each, a “Founder,” and collectively, the “Founders”), trivago N.V., a public limited company (naamloze vennootschap) incorporated under the laws of The Netherlands with statutory seat in Amsterdam, The Netherlands (“HoldCo”), Expedia Lodging Partner Services S.à r.l., a limited liability company (société à responsabilité limitée) incorporated under the laws of Switzerland with statutory seat in Geneva, Switzerland (“Expedia”), Expedia, Inc., a corporation incorporated under the laws of the State of Washington, USA with registered address in Tumwater, Washington, USA (“Guarantor”), Expedia, Inc., a corporation incorporated under the laws of the State of Delaware, USA with registered address in Dover, Delaware, USA (“Parent Guarantor”) and trivago GmbH, a private company with limited liability (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany with statutory seat in Düsseldorf, Germany (irrespective of its legal form the “Company,” it being understood that such term shall be deemed to include any legal successors of such entity). Capitalized terms used but not defined in this Agreement will have the meanings given to such terms in the IPOSA (defined below).
WHEREAS, the Founders, HoldCo, Expedia, Guarantor, Parent Guarantor and the Company are parties to that certain IPO Structuring Agreement, dated as of December 15/16, 2016 (the “IPOSA”);
WHEREAS, the Founders, Expedia, Guarantor and Parent Guarantor are parties to that certain Tax Financing and Reimbursement Agreement, dated as of December 15/16, 2017 (the “TFARA”);
WHEREAS, on 14 July 2017, the tax office Düsseldorf-Nord issued a ruling with respect to the Company Ruling Request (the “Ruling”);
WHEREAS, such Ruling concluded that the Cost Assumption (as defined below) constituted consideration other than shares within the meaning of Section 11(2) no. 3 of the German Reorganization Tax Act (Umwandlungssteuergesetz) (“Consideration”) causing the Merger not to qualify as a Tax-Free Transaction to the Company, and therefore such Ruling resulted in an Adverse Ruling Determination with respect to the Company Ruling Request;
WHEREAS, Expedia has determined that the Merger should be consummated and is hereby notifying the parties to the IPOSA in writing of such determination;
WHEREAS, the Company, the Founders and Expedia seek to reach an agreement under which Expedia makes the Company whole for any liability for Corporate Taxes (as defined below) incurred by it as a result of the Merger for the purpose of causing a Ruling Event to occur with respect to the Company Ruling Request;