GRUB GrubHub Inc

Merger Agreement

On June 10, 2020, Grubhub Inc., a Delaware corporation (“Grubhub” or the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Just Eat Takeaway.com N.V., a public company with limited liability (naamloze vennootschap) incorporated under the laws of the Netherlands (“Parent”), Checkers Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Checkers Merger Sub II, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub II” and together with Merger Sub, the “Merger Subs”). Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company (the “Initial Merger”), with the Company continuing as the surviving company in the Merger (the “Initial Surviving Company”). Immediately thereafter, the Initial Surviving Company will merge with and into Merger Sub II (the “Subsequent Merger” and, together with the Initial Merger, the “Mergers”), with Merger Sub II continuing as the surviving company.

On and subject to the terms and conditions set forth in the Merger Agreement, at the effective time of the Initial Merger (the “First Effective Time”), each issued and outstanding share of the Company’s common stock, par value $0.0001 per share (“Company Common Stock”) (other than any shares of Company Common Stock owned by the Company and any shares of Company Common Stock owned by Parent, Merger Sub, Merger Sub II or any other direct or indirect wholly owned subsidiary of Parent), will be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.0001 per share, of the Initial Surviving Company (the “Initial Surviving Company Stock”). Each such share of Initial Surviving Company Stock will immediately thereafter be automatically exchanged for 0.6710 (the “Exchange Ratio”) American depositary shares of Parent (“Parent ADS”), with each Parent ADS representing one ordinary share in the share capital of Parent with a nominal value of €0.04 per share (“Parent Ordinary Shares”) (the “Merger Consideration”).

In connection with the Merger Agreement, each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (the “Options”), whether or not then vested or exercisable, will at the First Effective Time be converted into an option (the “Assumed Options”) to purchase Parent ADSs (or, as determined by Parent, Parent Ordinary Shares) with respect to that number of Parent ADSs (or Parent Ordinary Shares) that is equal to the product of (a) the number of shares of Company Common Stock subject to such Option as of immediately prior to the First Effective Time and (b) the Exchange Ratio, rounded down to the nearest number of whole Parent ADSs (or Parent Ordinary Shares). The exercise price per share of each Assumed Option will be equal to the exercise price per share of the corresponding Option divided by the Exchange Ratio, rounded up to the nearest whole cent. Following the First Effective Time, each Assumed Option shall be subject to such other terms and conditions as applied to the corresponding Option immediately prior to the First Effective Time. In addition, each restricted stock unit award with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (the “Company RSUs”) will, at the First Effective Time, be converted into a restricted stock unit (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or, as determined by Parent, Parent Ordinary Shares) equal to the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time multiplied by the Exchange Ratio and rounded to the nearest number of whole Parent ADSs (or Parent Ordinary Shares), and otherwise will be subject to the same terms and conditions that applied to the corresponding Company RSU immediately prior to the First Effective Time. Upon the exercise of an Assumed Option or settlement of an Assumed RSU, the Parent Ordinary Shares underlying each such Assumed Option and each such Assumed RSU may be deposited in Stichting Administratiekantoor Takeaway.com (the “STAK”). The STAK will hold such shares on behalf of the former holder of the Assumed Option or Assumed RSU, as applicable, and exercise all voting rights with respect to such Parent Ordinary Shares. Such former holder will receive one depository receipt of the STAK for each deposited Parent Ordinary Share (each, a “STAK DR”). Each STAK DR will entitle the holder thereof to all economic benefits of the underlying Parent Ordinary Shares and, subject to any blackout or restrictions under applicable law, entitle such holder to direct the STAK to sell the underlying Parent Ordinary Shares and transfer the proceeds to such holder. If Parent does not elect to deposit the underlying Parent Ordinary Shares into the STAK, such awards will be settled in Parent ADSs or Parent Ordinary Shares, as applicable.

Pursuant to the terms of the Merger Agreement, Parent will increase the size of the Supervisory Board of Parent by two supervisory directors and the size of the Management Board of Parent by one director. Parent will also take such actions that are necessary to cause two individuals who currently serve on the Company’s board of directors to be appointed as supervisory directors of Parent (the “Supervisory Board Nominees”) and one individual who served as a director on the Company’s board of directors at the time of the designation by the Company to be appointed as a managing director of Parent (the “Management Board Nominee”). Parent’s obligations to take the foregoing obligations are subject to applicable law and obtaining the necessary approval by shareholders of Parent and the Supervisory Board Nominees’ and the Management Board Nominee’s continued service as directors on the Company’s board of directors until immediately prior to the First Effective Time. The Supervisory Board Nominees and the Management Board Nominee will be designated by the Company, following consultation between Parent and the Company.

The Company, Parent and the Merger Subs each have made customary representations, warranties and covenants in the Merger Agreement, in each case generally subject to customary materiality qualifiers. Among other things, each party has agreed, subject to certain exceptions, (i) to use reasonable best efforts to conduct its business in the ordinary course of business, from the date of the Merger Agreement until the First Effective Time, and not to take certain actions prior to the First Effective Time without the prior written consent of the other party, (ii) not to solicit alternative business combination transactions, and (iii) not to engage in discussions or negotiations regarding any alternative business combination transactions.

The closing of the Mergers is conditioned on certain conditions, including (i) the adoption of the Merger Agreement by the affirmative vote of the holders of a majority of all of the outstanding shares of Company Common Stock entitled to vote thereon, (ii) at a general meeting of shareholders of Parent, (a) the adoption of resolutions approving the transactions under the Merger Agreement, including authorizing the Management Board of Parent to issue Parent Ordinary Shares, by a majority of the votes validly cast by holders of Parent Ordinary Shares and (b) binding nominations for appointment of the Supervisory Board Nominees and the Management Board Nominee not having been overruled by more than half of the votes validly cast by holders of Parent Ordinary Shares, such number of votes representing more than one-third of Parent’s issued share capital, (iii) the Parent ADSs issuable as Merger Consideration being approved for listing on the New York Stock Exchange or Nasdaq Global Select Market, and the Parent Ordinary Shares underlying the Parent ADSs issuable as Merger Consideration being admitted to listing on the exchanges on which Parent Ordinary Shares are then traded, (iv) the effectiveness of applicable registration statements, (v) the expiration or termination of the applicable waiting periods under the Hart-Scott-Rodino Act (“HSR Clearance”), obtaining clearance from the United Kingdom Competition and Markets Authority (“CMA Clearance”) and obtaining approval from the Committee on Foreign Investment in the United States (“CFIUS Clearance”), in each case, without the imposition of any terms, conditions or consequences that would reasonably be excepted to result in a material adverse effect on the combined company, and (vi) other customary conditions for a transaction of this type, such as the absence of any legal restraint prohibiting the consummation of the transactions contemplated by the Merger Agreement and the absence of a material adverse effect on the Company or Parent.

The Merger Agreement contains certain termination rights for the Company and Parent, including (i) if the Mergers are not consummated on or before the “outside date” of June 10, 2021 (subject to extension to September 10, 2021 under certain circumstances), (ii) if the required approval of the Company stockholders or the Parent shareholders is not obtained, (iii) subject to compliance with certain terms of the Merger Agreement, in order to enter into a definitive agreement providing for a superior proposal, (iv) if the other party materially breaches its representations, warranties or covenants and fails to cure such breach, (v) if any law or order prohibiting the Mergers or the transactions contemplated by the Merger Agreement has become final and non-appealable or (vi) if the Company’s board of directors or the Supervisory Board and the Management Board of Parent, as applicable, changes its recommendation.

In the event of a termination of the Merger Agreement under certain specified circumstances, including termination by the Company to enter into an agreement providing for a superior proposal, or a termination by Parent following a change in recommendation by the Company’s board of directors, the Company may be required to pay Parent a termination fee equal to $144 million. In the event of a termination of the Merger Agreement under certain specified circumstances, including termination by Parent to enter into an agreement providing for a superior proposal, or a termination by the Company following a change in recommendation by the Supervisory Board and the Management Board of Parent, Parent may be required to pay the Company a termination fee equal to $144 million.

The foregoing description of the Merger Agreement is only a summary, does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is attached as Exhibit 2.1 to this report and incorporated by reference herein. The Merger Agreement and the above description have been included to provide investors and security holders with information regarding the terms of the Merger Agreement. They are not intended to provide any other factual information about the Company, Parent or their respective subsidiaries or affiliates or equityholders. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of that agreement and as of specific dates; were solely for the benefit of the parties to the Merger Agreement; and may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors. Investors should be aware that the representations, warranties and covenants or any description thereof may not reflect the actual state of facts or condition of the Company, Parent or any of their respective subsidiaries, affiliates, businesses, or equityholders. Moreover, information concerning the subject matter of the representations, warranties, and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company or Parent. Accordingly, investors should read the representations and warranties of the Company or Parent and their respective subsidiaries in the Merger Agreement not in isolation, but only in conjunction with the other information that the respective companies include in reports, statements and other filings they make with the Securities and Exchange Commission.

Voting and Support Agreement

Concurrently with the execution and delivery of the Merger Agreement, on June 10, 2020, the Company entered into a voting and support agreement (the “Voting Agreement”) with Mr. Jitse Groen (the “Shareholder”), who beneficially owns approximately 10% of the issued Parent Ordinary Shares. Pursuant and subject to the terms of the Voting Agreement, the Shareholder agreed, among other things, to vote the ordinary shares of Parent of which he is or becomes the beneficial owner (the “Covered Shares”), (i) in favor of the proposals to be brought before Parent’s shareholders pursuant to the terms of the Merger Agreement, and (ii) against proposals by third parties to acquire Parent. The Shareholder also agreed to take other actions in furtherance of the transactions contemplated by the Merger Agreement. Subject to certain exceptions, the Voting Agreement prohibits certain transfers by the Shareholder of any of the Covered Shares.

The Voting Agreement will terminate automatically on the first to occur of (i) the mutual agreement of the parties to terminate the Voting Agreement, (ii) immediately following the closing of the transactions contemplated by the Merger Agreement, (iii) the termination of the Merger Agreement in accordance with its terms, (iv) the occurrence of a change of the recommendation of the Supervisory Board and the Management Board of Parent with respect to the transactions contemplated by the Merger Agreement, and (v) a material amendment, supplement or waiver of any provisions of the Merger Agreement, without the Shareholder’s prior consent in a manner that materially increases the Merger Consideration (other than adjustments in accordance with the terms of the Merger Agreement) or that is materially adverse to the Shareholder relative to other shareholders of Parent (excluding, in all cases, any amendment, supplement or waiver affecting directors, officers or employees of Parent).

The foregoing description of the Voting Agreement is only a summary, does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Voting Agreement, which is attached as Exhibit 10.1 to this report and incorporated by reference herein.