SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o |
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. |
* | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. |
CUSIP No.: 89686D 105 (for American Depositary Shares, each representing one Class A Share) | |||
1. | Name of Reporting Person: Peter Vinnemeier | ||
2. | Check the Appropriate Box if a Member of Group (See Instructions): (a) ☐ (b) ☐ | ||
3. | SEC Use Only: | ||
4. | Source of Funds: PF | ||
5. | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e): ☐ | ||
6. | Citizenship or Place of Organization: Federal Republic of Germany | ||
Number of Shares Beneficially Owned By Each Reporting Person With: | 7. | Sole Voting Power: 38,610,793(1) | |
8. | Shared Voting Power: 0 | ||
9. | Sole Dispositive Power: 38,610,793(1) | ||
10. | Shared Dispositive Power: 0 | ||
11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 38,610,793(1) | ||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares: ☐ | ||
13. | Percent of Class Represented By Amount In Row (11): 11.0% (1) (2) | ||
14. | Type of Reporting Person: IN |
(1) | Pursuant to the articles of association of the Issuer, each Class B share is convertible into one Class A share of the Issuer at any time by the holder thereof, while Class A shares are not convertible into Class B shares under any circumstances. Class A shares are entitled to one vote per share and Class B shares are entitled to ten votes per share. |
(2) | Based upon the total of 350,845,069 of the Issuer’s Class A and Class B shares outstanding as of September 30, 2018. |
Exhibit No. | Description |
99.6 | Rule 10b5-1 Trading Plan of Peter Vinnemeier, dated November 15, 2018 |
Dated: November 23, 2018 | ||||
/s/ Peter Vinnemeier | ||||
Peter Vinnemeier |
Document | To Be Signed By | |||
Part I | Account and Plan Information | N/A | ||
Part II | Trade Schedule A | Notice and Authorization of Exercise of Stock Options and Sale of Underlying ADS | N/A | |
Part II | Trade Schedule B | Sale of Clean Stock/Control Stock/Restricted Stock Awards or Units or ESPP Stock | N/A | |
Part III | Sales Plan Disclosures and Representations | Seller and MSSB | ||
Part IV | Exhibit A | Issuer Representation Letter | Issuer | |
Part IV | Exhibit B | Seller Representation Letter | Seller, if applicable |
For Internal Use Only: Drop-Ins No-Sales Periods M S P Entered___________ Uploaded_________ Sent to Branch ________ Additional Notes: | Received________ Entered________ Checked___________ Additional Notes: |
To the Seller: Name: Peter Vinnemeier ** | |
To Issuer: Name: trivago N.V. Address: Attn. Legal Kesselstraße 5 – 7, 40221 Düsseldorf Telephone: +49 211 387 684 4392 E-Mail: legal@trivago.com |
To: MSSB 10b5-1 Preset Diversification Program Department Primary Contact: Valerie Rivera Alternate Contact: Denise Ramoutar Alternate Contact: Roger Krubiner Address: 1 New York Plaza, 38th Floor New York, NY 10004 Telephone: 646-536-0480/0451/0456 Fax: 646-291-3639 E-mail: valerie.g.rivera@ms.com denise.ramoutar@ms.com roger.krubiner@ms.com | Copies to: MSSB Financial Advisor Primary Contact: Julie Love Alternate Contact: Jessica LaBarbera Ops Manager: Lisa Fiorentino Address: 101 Park Avenue 24th Floor New York, NY 10021 Telephone: 212-503-1156/1695/2323 Fax: 212-704-8309 E-mail: Julie.L.Love@ms.com Jessica.Labarbera@ms.com Lisa.Fiorentino@ms.com |
Name of Seller: | Name of Issuer: trivago N.V. |
(a) Date of Grant | (b) Grant ID | (c) Strike Price | (d) Option Vest Date | (e) Option Expiration Date | (f) Sale Period(s) | (g) Number of ADS to be Sold | (h) Limit Price | |
Start Date | End Date | |||||||
“No Sale” Periods (if any) | |
Start Date | End Date |
1. | I hereby irrevocably authorize the Issuer to deliver ADS through the Depository Trust Company (DTC) to Morgan Stanley Smith Barney LLC - DTC#: 015 |
2. | I hereby authorize MSSB or its affiliates, as applicable, to wire a cash amount sufficient to cover the cost of the exercise and any withholding taxes due to either the Issuer or, if applicable, the Issuer’s outside stock option plan administrator upon the exercise of any Options exercised and underlying ADS sold pursuant to this Plan. |
• | Please list all Options to be exercised and sold in the order of proposed exercise and sale. If a specific grant is not attributed to each individual Sale Period, Options will be exercised in the order that the grants are listed above. |
• | In columns (a) through (e) please provide the details of the Option grants to be exercised and sold. |
• | In column (f), state the first and last date on which the ADS are authorized to be sold during the Sale Period (Share sales may occur on or between these dates). If, during any Sale Period the stated price is not reached for some or all of these ADS, they will not be carried over into any subsequent Sale Period unless explicitly indicated. |
• | In column (g), state the maximum number of ADS to be sold pursuant to the Option exercise. Do not aggregate with amounts authorized to be sold at a different price during the same Sale Period. |
• | In column (h), write a dollar price which is the minimum price per Share (the “Limit Price”) at which the ADS are authorized to be sold during the Sale Period. All limit orders will be treated as “limit not held” orders. Note: Option exercises and sales must be at a Limit Price, not at a “Market” price. |
• | In the grid labeled “No Sale” Periods, list the time period(s), if any, during which no sales may be made, notwithstanding their inclusion in this Trade Schedule A. These periods are independent of any suspension that may occur pursuant to this Plan. |
Name of Seller: Peter Vinnemeier____________ | Name of Issuer: trivago N.V |
(a) Type (Clean (CLN), Control (CTRL), Restricted (RST), Restricted Stock Awards (RSA) or Units (RSU) or Employee Stock Purchase Plan shares (ESPP) ) | (b) Grant ID (If applicable) | (c) Date shares underlying ADS Acquired / Vest Date (If applicable) | (d) Sale Period(s) | (e) Authorized Number of Owned ADSs to be Sold | (f) Limit Price (“Market” if a Market Order) | |
Start Date | End Date | |||||
CLN | Merger of trivago GmbH with trivago NV | September 7, 2017 | ** | ** | ** | ** |
CLN | Merger of trivago GmbH with trivago NV | September 7, 2017 | ** | ** | ** | ** |
CLN | Merger of trivago GmbH with trivago NV | September 7, 2017 | ** | ** | ** | ** |
CLN | Merger of trivago GmbH with trivago NV | September 7, 2017 | ** | ** | ** | ** |
CLN | Merger of trivago GmbH with trivago NV | September 7, 2017 | ** | ** | ** | ** |
“No Sale” Periods (if any) | |
Start Date | End Date |
• | ADSs should be listed in chronological order of proposed sales. |
• | In column (a), indicate the type of stock to be sold. |
• | In column (b), for Restricted Stock Awards/units or ESPP Shares, please state the Grant ID, if applicable. |
• | In column (c), state the date the shares underlying the ADSs to be sold were acquired or vested. If the such shares were acquired/vested in more than one lot, state the acquisition/vest date for each lot. If performance based Restricted Stock Awards or Units and vest date is unknown at this time, indicate “TBD” in the grid above. |
• | In column (d), state the first and last date on which the ADSs are authorized to be sold during the designated Sale Period (ADS sales may occur on or between these dates). If, during any Sale Period the stated price is not reached for some or all of these ADSs, they will not be carried over into any subsequent Sale Period, unless explicitly indicated. |
• | In column (e), state the maximum number of ADSs authorized to be sold at the price during the designated Sale Period. Do not aggregate with amounts authorized to be sold at a lower price during the same designated Sale Period. |
• | In column (f), write either: (i) a dollar price, which is the minimum price (the “Limit” Price) at which ADSs are authorized to be sold, or (ii) the word “market” if ADSs are to be sold at the then-prevailing market price per ADS during the Sale Period. All market orders will be treated as “market not held” orders. All limit orders will be treated as “limit not held” orders. |
• | In the grid labeled “No Sale” Periods, list the period(s), if any, during which no sales may be made pursuant to this Trade Schedule B, stated Sale Periods, notwithstanding. These periods are independent of any suspension that may occur pursuant to this Plan. |
1. | I hereby represent to MSSB that, as of the date of my signature below: |
a. | I am not in possession, and am not aware, of any material nonpublic information about the securities which are the subject of this Plan or the Issuer of such securities; |
b. | I am entering into this Plan in good faith and not as part of a plan or scheme to evade any law, including, without limitation, the U.S. federal securities laws or any law governing insider trading; |
c. | I understand that the protections of the Rules may not apply if I alter this Plan or deviate from the instructions in any way, other than in accordance with the modification provisions of this Plan and applicable law; |
d. | I own the securities which are the subject of this Plan free and clear and I acknowledge and confirm that: |
(i) | Neither I, nor the securities subject to this Plan are subject to any pledges, liens, security interests or other impediments to transfer (except for those which I have entered into with MSSB or limitations imposed by Rule 144, if applicable), nor is there any contractual restriction or litigation, arbitration or other proceeding pending, or to my knowledge threatened, that would prevent or interfere with the exercise of options (“Options”) to purchase American Depositary Shares, each representing a Class A share (“ADS”) of the Issuer or sale of ADS under this Plan; and |
(ii) | The execution and delivery of this Plan by me and the transactions contemplated by this Plan will not contravene applicable law or any agreement or other instrument binding on me or any of my affiliates or any judgment, order or decree of any governmental body, agency or court having jurisdiction over me or my affiliates. |
e. | While this Plan is in effect, I will not enter into any corresponding or hedging transaction or position with respect to the securities which are the subject of this Plan (including, without limitation, with respect to any securities convertible or exchangeable into common stock of the Issuer) and, unless this Plan is modified or terminated in accordance with the terms hereof, I agree not to alter or deviate from the terms of this Plan; |
f. | While this Plan is in effect I will not enter any other transactions, or other trading plans, with respect to the ADS, including any other plan intended to conform with the Rules; |
g. | I agree not to, directly or indirectly, communicate any information relating to the ADS or the Issuer to any employee of MSSB or its affiliates who are involved, directly or indirectly, in executing this Plan at any time while this Plan is in effect or attempt to exercise any influence over how, when or whether to effect any sales of ADS pursuant to this Plan; |
h. | I represent that this Plan conforms with the trading policies of the Issuer, and I acknowledge and confirm that I have provided MSSB with an Issuer Representation letter dated as of the date of this Plan signed by an authorized representative of the Issuer substantially in the form of Part IV - Exhibit A to this Plan; |
i. | I agree to notify MSSB in writing to the individuals set forth in Part I – Account and Plan Information as soon as practicable if I become aware of: |
(i) | any restriction that would prohibit any sale pursuant to this Plan (other than any such restriction relating to my possession or alleged possession of material nonpublic information about the Issuer or its securities). Such notice will indicate the anticipated duration of the restriction, but will not include any other information about the nature of the restriction or its applicability to me and will not in any way communicate any material nonpublic information about the Issuer or its securities to MSSB; |
(ii) | any change in the Issuer’s insider trading policies; |
(iii) | any change in the Issuer’s policies with regard to the timing or method of exercising options covered by this Plan; |
(iv) | any change that would cause the sales hereunder not to meet all applicable requirements of Rule 144, if applicable; and |
(v) | any stock split, stock dividend or other like distributions affecting the ADS (“Recapitalization”). |
i. | I acknowledge that MSSB is not acting as my fiduciary but is acting in a brokerage capacity in connection with the adoption and implementation of this Plan; |
j. | I represent that I was not solicited by either MSSB or its employees or financial advisors to enter into this Plan. I contacted MSSB and am entering into this plan of my own volition. Further, neither MSSB nor its employees or financial advisors have solicited or recommended a transaction or investment strategy involving a security or securities in connection with the Plan or the transactions contemplated by the Plan. I acknowledge that MSSB has not provided and will not provide me with any investment guidance, recommendations, advice or research, or any tax, accounting or legal advice with respect to this Plan; |
k. | I agree that until this Plan has been terminated in accordance with its terms, I will not, without providing prior written notice to MSSB: |
(i) | enter into a binding contract with respect to the purchase or sale of any securities of the Issuer with another broker, dealer or financial institution (each, a “Financial Institution”); |
(ii) | instruct another Financial Institution to purchase or sell any securities of the Issuer; or |
(iii) | adopt a plan for trading with respect to any securities of the Issuer other than this Plan. |
k. | If I am a director or executive officer of the Issuer, then I am not subject to any current pension fund blackout period applicable to such Issuer, and I have not received written notice of the imposition of, nor am I aware of, the actual or approximate beginning or ending dates of any such blackout period and I further acknowledge and agree that I may not modify or otherwise alter this Plan in such circumstances; |
l. | I represent that I am not entering into this Plan on behalf of, or with the assets of, an individual retirement account or individual retirement annuity, or any employee retirement or employee benefit plan (such as, for example, a Keogh or “HR-10” plan). [Explanatory Note: A plan involving the sale of stock acquired through the exercise of employee stock options would not be “on behalf of, or with the assets of’ any of the types of plans referred to in this paragraph.] |
m. | I represent that my account is not an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, or a “plan” as defined under Section 4975(e) of the Internal Revenue Code of 1986, as amended, or an entity whose underlying assets include the assets of any such plan by reason of such a plan's investment in such entity. |
1. | I understand that this Plan is applicable only as to securities that are freely-tradable and that are not subject to any restrictions against purchase or sale. If I am considered an “Affiliate” within the meaning of Rule 144, then I |
2. | I agree not to take nor to cause any person or entity with which I would be required to aggregate sales of stock pursuant to Rule 144 to take, any action that would cause the sales hereunder not to meet all applicable requirements of Rule 144, including volume limitations. |
3. | I instruct MSSB to conduct all sales pursuant to this Plan in accordance with the manner of sale under Rule 144(f) and current public information requirements of Rule 144(c). |
4. | I agree to timely provide completed and signed Rule 144 paperwork to MSSB (including, without limitation, a Seller Representation letter dated as of the date of this Plan substantially in the form of Part IV - Exhibit B to this Plan prior to the Adoption Date). I acknowledge that MSSB requires this paperwork to facilitate Rule 144 trades for my account. Consistent with Rule 144 filing requirements, MSSB hereby agrees to submit my completed Form144 – Notice of Proposed Sale to the Securities and Exchange Commission. In order for MSSB to complete this paperwork, I authorize MSSB to maintain my pre-signed Forms 144 in safekeeping and to complete these forms as necessary before submitting them to the SEC. I further agree to release, hold harmless and discharge MSSB and their affiliates, agents, officers, successors and insurers from any and all claims, demands, losses, liabilities, damages and other expenses which may be sustained at any time relating to its facilitating transactions and completing necessary paperwork on my behalf under Rule 144. |
1. | Implementation of Plan. |
a. | MSSB will sell the ADS subject to this Plan in accordance with the terms of this Plan for my account in accordance with the principles of best execution provided that MSSB may execute orders on a “not held” basis. MSSB considers several factors, including price, the available liquidity pool, execution speed, transaction costs, service and opportunities for price improvement in determining where to route customer orders for execution. A “not held” or “working order” permits MSSB to use reasonable brokerage judgment, exercising price and time discretion, as to when to execute the order. However, MSSB will not sell any ADS subject to this Plan at a price less than the Limit Price, if applicable. |
b. | MSSB may sell the ADS subject to this Plan on any national securities exchange, in the over-the-counter market, on an automated trading system or otherwise. I agree that if MSSB or its affiliates is a market maker or dealer in such ADS at the time that any sale is to be made under this Plan, MSSB or its affiliates may, at its sole discretion, purchase such ADS in its capacity as market maker or dealer. |
c. | I agree to deliver the ADS subject to this Plan to the extent I currently own such ADS into an account at MSSB in my name and for my benefit prior to the Selling Start Date. I understand that this Plan shall not be effective until I establish a valid account at MSSB to hold the ADS. |
2. | Modification of Plan. |
a. | I may not modify this Plan unless: |
(i) | such modification is accepted in writing by MSSB; |
(ii) | I provide MSSB with: |
(a) | an Issuer Representation Letter substantially in the form of Part IV - Exhibit A to this Plan; |
(c) | a modification letter and new trade schedule(s) in which I represent that, among other things, on the date of such modification that I am not aware of any material, non-public |
(iii) | such modification occurs only outside of any “blackout periods” set forth in the Issuer’s securities trading policy, as in effect from time to time. |
b. | I further understand that the Issuer requires a 30 day period from the adoption of such modification to the date when trading may resume following such modification. The Issuer may impose additional requirements as a condition of allowing me to modify this Plan, including, but not limited to, an additional period of time which must elapse before trading may resume following such modification. I agree to comply with any such additional requirements imposed by Issuer and to advise MSSB of such requirements. I further agree that any such modification of this Plan shall be undertaken at my own risk without liability or consequence to MSSB. |
3. | Suspension of Plan. |
a. | I understand that trading under this Plan may be suspended if MSSB has received written notice from the Issuer or from me of a legal, regulatory or contractual restriction applicable to the Issuer or to me. Upon receipt of such written notice, I expressly authorize MSSB to suspend trading as soon as practicable and trading shall not resume until MSSB has received written notice of the lifting of such suspension or the resolution of the underlying restriction. If the events giving rise to a suspension of trading cannot be resolved (as determined by MSSB in its sole discretion), I understand and acknowledge that MSSB reserves the right, in its sole discretion, to terminate this Plan in accordance with the provisions contained herein. In the event of a suspension, if this Plan is not terminated prior thereto, MSSB will resume effecting trades in accordance with this Plan as soon as MSSB determines that it is reasonably practical to do so. |
b. | Upon the resumption of trading following a suspension, any trades having a Sales Period End Date scheduled to have occurred during such suspension period shall be deemed to have expired as of that scheduled Sales Period End Date as defined in Trade Schedule A or B, as applicable. Any trades having a Sales Period Start Date scheduled to have occurred during the period of suspension shall be placed as soon as practicable for the balance of time remaining until the Sales Period End Date applicable to such trade. All other trades shall be placed as originally indicated in this Plan. |
4. | Termination of Plan. |
a. | I understand that this Plan will terminate at market close on the Plan End Date or, if earlier, upon the completed sale of the maximum ADS subject to this Plan. In addition, this Plan shall terminate, regardless of whether the maximum ADS have been sold, upon any of the following events: |
(i) | MSSB receives written notice of my death; |
(ii) | MSSB receives written notice of the commencement or impending commencement of any proceedings in respect of or triggered by my bankruptcy or insolvency; |
(iii) | MSSB receives written notice of a valid instruction to transfer all or substantially all of the assets within my securities account at MSSB to another broker-dealer; |
(iv) | MSSB receives two days’ written notice from me terminating this Plan (which generally must be done outside of a black-out period and may be given for any reason) and concurrently or subsequently but prior to giving effect to any termination acknowledged by the Issuer. The Seller agrees to release and hold harmless MSSB from any and all liability arising from any delay in MSSB receiving such timely approval from the Issuer; |
(v) | I receive written notice from MSSB terminating this Plan (which may be given for any reason); |
(vi) | If I fail to comply in any material respect with any applicable law and/or any obligation under this Plan; and |
(vii) | Upon my or the Issuer’s demonstrating to MSSB that any of the following contingencies have occurred: |
(a) | A public announcement has been made of a tender offer involving the Issuer’s securities; |
(b) | A definitive agreement has been announced relating to a merger, reorganization, consolidation or similar transaction in which the securities covered by this Plan would be subject to a lock-up provision; |
(c) | A sale has been made of all or substantially all of the assets of the Issuer on a consolidated basis to an unrelated person or entity, or if a transaction affecting the Issuer occurs in which the owners of the Issuer’s outstanding voting power prior to the transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of the transaction; |
(d) | A dissolution or liquidation of the Issuer takes place or there is a commencement or impending commencement of any proceedings in respect of or triggered by the Issuer’s bankruptcy or insolvency; |
(e) | That this Plan or its attendant transactions may violate existing, new or revised federal or state laws or regulations, or may cause a breach of a contract or agreement to which the Issuer is a party or by which the Issuer is bound; or |
(f) | MSSB receives written notice from the Issuer that the Issuer has determined that a second trading plan exists in violation of the Issuer’s Securities trading policy. |
b. | In no event shall MSSB be deemed to have breached or failed to comply with this Plan if MSSB does not receive written notice from me or the Issuer of the above contingencies prior to the placement of a scheduled order under this Plan. |
c. | I may not terminate the Plan unless such termination occurs outside of any “blackout periods” set forth in the Issuer’s securities trading policy, as in effect from time to time (unless this Plan terminates upon the termination of my employment with the Issuer). |
1. | Additional Documents. I agree to complete, execute and deliver to MSSB any additional forms or other paperwork pursuant to this Plan at such times and in such form as MSSB may reasonably request. |
2. | My Obligation to Consult Legal Advisors. I agree that I will not enter into, modify, suspend or terminate this Plan except upon consultation with my own legal advisors. |
3. | Inconsistent Provisions. If any provision of this Plan is or becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed rescinded to the extent required in order to comply with the relevant law, rule or regulation. All other provisions of this Plan will continue and remain in full force and effect. |
4. | Market Disruptions and Other Unusual Situations. I understand that MSSB may not be able to effectuate a sale due to a market disruption or a legal, regulatory or contractual restriction to which it, its affiliates, me or my affiliates may be subject (as determined by MSSB in its sole discretion). If any transaction cannot be executed due to a market disruption, a legal, regulatory, or contractual restriction applicable to MSSB, or any other event, MSSB agrees to effectuate such sale as promptly as practical after the cessation or termination of such market disruption, applicable restriction or other event; provided that such date does not exceed the Sales Period End Date for that order or the Plan End Date, or falls within a No Sales Period as defined in Trade Schedule A and/or B of this Plan. |
5. | Non-Market Days and Trading Restrictions. If I have given instructions that require an order to be entered on a particular date, and the date that I have selected for a transaction falls on a day when the applicable primary market for the security is closed, then I direct that the transaction occur on the next regular business day on which such market is open following the original date indicated; provided that such date does not exceed the Sales Period End Date for that order or the Plan End Date or falls within a No Sales Period as defined in Trade Schedule A and/or B of this Plan. |
6. | State Insider Trading Laws. I understand that some states may have their own laws that relate to insider trading. I understand that MSSB makes no representation to me with respect to whether this Plan conforms to the laws of any particular state, and that I will seek the advice of my own counsel with respect to matters of state law. |
7. | Prices. All references in this Plan to per share prices will be before deducting any commission equivalent, mark-up or differential and other expenses of sale. |
8. | Other Shares. I may instruct MSSB to sell securities of the Issuer other than pursuant to this Plan. The parties hereto agree that any such sale transaction will not be deemed to modify this Plan unless in connection with such transaction this Plan is modified pursuant to the process set forth in subsection D.2 above. |
9. | Adjustments to Share and Dollar Amounts. The exercise and sale prices, and number of Options to be exercised and ADS to be sold, will be adjusted following such time as I or the Issuer notifies MSSB promptly of a Recapitalization, which shall be made by providing a new schedule reflecting the adjustment in ADS and prices after the Recapitalization. |
10. | Effect of Instructions on Other Agreements with MSSB. Subject to “Entire Agreement; Subsequent Plans” subsection below, nothing in this Plan changes any other terms or agreements that are already applicable to my account or accounts, or that otherwise exist between MSSB and me. |
11. | Entire Agreement; Subsequent Plans. This Plan constitutes the entire agreement between the parties with respect to this Plan and supersedes any prior agreements or understandings with respect to this Plan. I understand that if I enter into a subsequent 10b5-1 trading plan, that plan will not amend, suspend or terminate this Plan unless explicitly agreed to by MSSB in writing. Further, if I enter into a subsequent 10b5-1 trading plan, sales of ADS under such trading plan may not commence until at least 30 calendar days have elapsed since the termination of this plan. |
12. | Assignment. My rights and obligations under this Plan may not be assigned or delegated without the written permission of MSSB. MSSB may assign or delegate any or all of its rights or obligations under this Plan to a company affiliated with, or a successor to, MSSB or to any assignee to which MSSB determines to assign all or part of its business relating to sales plans of this kind. Any such assignment will not affect the status, or be deemed to be an amendment, of this Plan, the purpose of which is to provide me with an affirmative defense against charges of insider trading. |
13. | Choice of Law Regarding Interpretation of Instructions. This Plan shall be construed in accordance with the internal laws of the State of New York. |
14. | Enforceability in the Event of Bankruptcy. The parties acknowledge and agree that this Plan is a “securities contract” as defined in Section 741(7) of Title 11 of the United States Code (“Bankruptcy Code”) and shall be entitled to all of the protections afforded to such contracts under the Bankruptcy Code. |
15. | Headings. Headings used in this Plan are provided for convenience only and shall not be used to construe meaning or intent. |
16. | Counterparts. This Plan may be signed in any number of counterparts, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were placed upon the same instrument. |
Seller | Morgan Stanley Smith Barney LLC | |||||
By: /s/ Peter Vinnemeier | By: /s/ Rick Baker | |||||
Name: Peter Vinnemeier | Name: Rick Baker | |||||
Title: Consultant | Title: Executive Director | |||||
Adoption Date: November 15, 2018 | Date: November 15, 2018 |
1. | The Seller’s affiliate status at the Issuer is a (check the applicable boxes): |
By: | ||
Name: | ||
Title: | MD |
1. | The undersigned does not know or have any reason to believe that the Issuer has not complied with the reporting requirements contained in Rule 144(c)(1); |
2. | The Issuer is not, and has not been, a shell issuer as that term is defined in Rule 144(i)(1); |
3. | With respect to any shares underlying the ADSs that are restricted securities, as that term is defined in Rule 144(a)(3), a minimum of 6 months has elapsed since the date of acquisition of the Stock from the Issuer or an affiliate of the Issuer, and payment of the full purchase price, by the undersigned; |
4. | At the time of any sale of the ADS for the account of the undersigned, the number of ADS of the Issuer sold by the undersigned or for the undersigned’s account and by or for the account of any person whose sales are required by paragraph (a)(2) and paragraph (e)(3) of Rule 144 to be aggregated with sales by or for the undersigned (other than shares sold pursuant to a registration statement under the Act, an exemption provided by Regulation A under the Act, or an exemption contained in Section 4 of the Act) will not exceed the amounts permitted by Rule 144(e); |
5. | The undersigned has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, orders to buy the ADS in anticipation of or in connection with such proposed sale, and such sale shall be made in accordance with Rule 144(f); |
1. | The undersigned has not made, and will not make, any payment in connection with the offering or sale of the ADS to any person other than the usual and customary compensation to MSSB; |
2. | No share of the ADS is subject to any agreement granting any pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance, other than those which may have been entered into between the undersigned and MSSB; |
3. | The undersigned authorizes MSSB to complete the Form 144 (“Form 144”) and this Seller’s Representation Letter (this “Letter”), including, but not limited to, completing the number of ADS to be sold and any dates, as may be necessary to reflect my instructions, which may be written or oral, and the facts of the transaction as effected, and to use Form 144 and this Letter as appropriate to comply with Rule 144 and to effect settlement of any sale made in conjunction herewith; and |
4. | The undersigned agrees to notify MSSB promptly if there are any changes to the facts or representations set forth in this Letter or in the accompanying Form 144 (if applicable) and hereby authorizes MSSB, if MSSB deems it necessary, to contact the Issuer, its counsel, its transfer agent, and their agents and representatives concerning this transaction. MSSB and its agents and representatives, the Issuer, its transfer agent and their agents and representatives may rely on the accuracy of the information contained in this Letter. |