|TRIVAGO N.V. filed this Form 20-F on 03/06/2018|
WHEREAS, Expedia is the sole holder of paid-up class B shares in the share capital of HoldCo, each with a nominal value of EUR 0.60, holding two hundred and nine million eight thousand eighty-eight (209,008,088) B-Shares, numbered B1 up to and including B209,008,088 (the “B-Shares”);
WHEREAS, each party has determined that it is in its respective best interests that Expedia, as shareholder of HoldCo, makes an informal capital contribution (informele kapitaalstorting) on the B-Shares in cash, which will be attributed to the share premium reserve (agioreserve) attached to the B-Shares of HoldCo in the amount of the additional tax liability incurred by the Company as a result of the Cost Assumption (as defined below) upon the consummation of the Merger, and that such undertaking according to the parties’ mutual understanding will cause a Ruling Event to occur with respect to the Company Ruling Request; and
WHEREAS, the parties hereto acknowledge and agree that each transaction contemplated by this Agreement, in itself, is fair and balanced in all commercial and economic aspects, including by taking into account all other agreements concluded by the parties (including the IPOSA and the TFARA) and that no party intends to convey any pecuniary benefit to the respective other party or the public shareholders under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth below, the parties hereto, intending to be legally bound, do hereby agree as follows:
1.1 Agreement to Make Whole.
(a) Subject to the occurrence of a final, non-appealable and unchangeable tax assessment notice issued to the Company and/or HoldCo (as legal successor of the Company) confirming that the assumption by Expedia of costs of the Founders in connection with the Founder Ruling Requests pursuant to Section 2.1(b) of the IPOSA (the “Cost Assumption”) constitutes Consideration (“Notice”), Expedia as shareholder of HoldCo hereby undertakes to make an informal capital contribution (informele kapitaalstorting) on the B-Shares in cash in the amount of any (x) German Corporate Income Tax (Körperschaftsteuer), (y) German solidarity surcharge (Solidaritätszuschlag) thereon, and (z) German Trade Tax (Gewerbesteuer) (the amounts described in clauses (x), (y) and (z) “Corporate Taxes”) triggered to the Company in respect of such Consideration in such Notice (such amount the “Contribution Amount” and such informal capital contribution the “Contribution”). HoldCo hereby accepts the Contribution if and when made. The Contribution will not be made in exchange for any shares issued by HoldCo. In accordance with the terms and conditions of this Agreement, HoldCo and Expedia acknowledge that the Contribution shall be treated as share premium (agio) attached to the B-Shares and that the Contribution Amount will be attributed to the share premium reserve (agioreserve) of HoldCo attached to the B-Shares. HoldCo shall administer the Contribution in its books and accounts, taking into account the above. HoldCo and Expedia acknowledge and