424B3 1 nt10016123x22_424b3.htm FORM 424B3

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Filed Pursuant to Rule 424(b)(3)
Registration No.: 333-255540

12 May 2021
TRANSACTION PROPOSED—YOUR VOTE IS VERY IMPORTANT
Dear Grubhub Stockholders:
As previously announced, Grubhub Inc. (“Grubhub”) entered into an Agreement and Plan of Merger with Just Eat Takeaway.com N.V. (“Just Eat Takeaway.com”), Checkers Merger Sub I, Inc. and Checkers Merger Sub II, Inc. on 10 June 2020 (as amended on 4 September 2020 and 12 March 2021) (the “Merger Agreement”), whereby Just Eat Takeaway.com will acquire Grubhub in an all-share combination in accordance with the Merger Agreement (the “Transaction”).
If the Transaction is completed, holders of shares of Grubhub common stock (“Grubhub Shares” and, the holders of such Grubhub Shares, “Grubhub Stockholders”) immediately prior to the Transaction will receive, for each Grubhub Share held, newly issued American depositary shares of Just Eat Takeaway.com (“New Just Eat Takeaway.com ADSs”) representing 0.6710 shares of the share capital of Just Eat Takeaway.com (“Just Eat Takeaway.com Shares”) (the “merger consideration”). Each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. Based on the estimated number of Grubhub Shares and Just Eat Takeaway.com Shares (excluding treasury shares) that will be outstanding immediately prior to the completion of the Transaction (“Completion”), it is expected that, immediately after Completion, Grubhub Stockholders will own approximately 30% of Just Eat Takeaway.com’s outstanding share capital.
The value of the merger consideration will fluctuate with the market value of Just Eat Takeaway.com Shares until the Transaction is completed. Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €98.60 and the Euro-Dollar exchange rate of 1.13585, in each case, on 9 June 2020, the last trading day of the Just Eat Takeaway.com Shares before the public announcement of the Merger Agreement, the merger consideration represented approximately $75.15 in implied value per Grubhub Share, which represented a premium of approximately 30% over the closing price of a Grubhub Share on 9 June 2020. Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €92.08 and the Euro-Dollar exchange rate of 1.2036, in each case, on 20 April 2021, the last practicable trading day before the date of the accompanying proxy statement/prospectus, the implied value of the merger consideration is $74.37. The Grubhub Shares are currently listed on the New York Stock Exchange (the “NYSE”) under the trading symbol “GRUB,” the Just Eat Takeaway.com Shares are currently listed on Euronext Amsterdam under the trading symbol “TKWY” and on the London Stock Exchange under the trading symbol “JET” and, at or prior to Completion, the New Just Eat Takeaway.com ADSs will be listed on the Nasdaq Global Select Market (“Nasdaq”) for trading under the symbol “GRUB.”
The Transaction will be accomplished through a series of transactions, subject to the terms and conditions of the Merger Agreement, which are described in more detail in the accompanying proxy statement/prospectus.
Grubhub will hold a special meeting of its stockholders (the “Grubhub Stockholder Meeting”) to vote on a proposal to adopt the Merger Agreement and approve related matters as described in the accompanying proxy statement/prospectus. Due to health and safety concerns resulting from the COVID-19 pandemic, the Grubhub Stockholder Meeting will be held exclusively in a virtual format on 10 June 2021 at 8 a.m. (Central Time). You are entitled to attend and participate in the Grubhub Stockholder Meeting only if you were a Grubhub Stockholder of record as of the close of business on 27 April 2021, the record date for the Grubhub Stockholder Meeting (the “Grubhub record date”), or hold a valid proxy of such a Grubhub Stockholder for the Grubhub Stockholder Meeting. To be admitted to the stockholders’ portion of the Grubhub Stockholder Meeting at www.virtualshareholdermeeting.com/GRUB2021SM, you must enter the 16-digit control number found on your proxy card or voting instruction form. Please note that you will not be able to attend the Grubhub Stockholder Meeting in person.
At the Grubhub Stockholder Meeting, Grubhub Stockholders will be asked to consider and vote on:

a proposal to adopt the Merger Agreement,

a proposal to approve, by a non-binding, advisory vote, certain compensation that may be paid or become payable to named executive officers of Grubhub in connection with the transactions contemplated by the Merger Agreement, and

a proposal to adjourn the Grubhub Stockholder Meeting from time to time, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Grubhub Stockholder Meeting to adopt the Merger Agreement.
The Grubhub board of directors has approved the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Transaction, and recommends that Grubhub Stockholders vote “FOR” each proposal.
YOUR VOTE IS VERY IMPORTANT REGARDLESS OF THE NUMBER OF GRUBHUB SHARES THAT YOU OWN. Whether or not you expect to attend the Grubhub Stockholder Meeting, we urge you to submit a proxy to have your Grubhub Shares voted as promptly as possible by either: (1) logging onto the website shown on your enclosed proxy card and following the instructions to vote online; (2) dialing the toll-free number shown on your enclosed proxy card and following the instructions to vote by phone; or (3) signing, dating and returning the enclosed proxy card in the postage-paid envelope provided, so that your Grubhub Shares may be represented and voted at the Grubhub Stockholder Meeting. If your Grubhub Shares are held in a Grubhub plan or in the name of a broker, bank, trustee or other nominee, please follow the instructions on the enclosed voting instruction form furnished by the plan trustee or administrator, or such broker, bank, trustee or other nominee.
The accompanying proxy statement/prospectus provides important information regarding the Grubhub Stockholder Meeting and a detailed description of the Merger Agreement, the transactions contemplated by the Merger Agreement, including the Transaction, and the matters to be presented at the Grubhub Stockholder Meeting. A copy of the Merger Agreement is attached as Annexes A-1, A-2 and A-3 to the accompanying proxy statement/prospectus, and is incorporated by reference therein. We urge you to read the accompanying proxy statement/prospectus, including all documents incorporated by reference into the accompanying proxy statement/prospectus, and its annexes carefully and in their entirety. Please pay particular attention to “Risk Factors” beginning on page 34 of the accompanying proxy statement/prospectus.
We hope you join the Grubhub Stockholder Meeting and look forward to the successful completion of the Transaction.
Sincerely,

Matthew Maloney
Founder and Chief Executive Officer
Grubhub Inc.
Neither the Securities and Exchange Commission, nor any state securities commission has approved or disapproved of the Transaction or the securities to be issued in connection with the Transaction, passed upon the merits or fairness of the Transaction or determined that the accompanying proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
The accompanying proxy statement/prospectus is dated 12 May 2021, and is first being mailed to Grubhub Stockholders on or about 12 May 2021.

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Grubhub Inc.
111 W. Washington Street, Suite 2100
Chicago, Illinois 60602

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON 10 JUNE 2021
12 May 2021
To the Stockholders of Grubhub Inc.:
A special meeting of Grubhub Inc. Stockholders (the “Grubhub Stockholder Meeting”), will be held at 8 a.m. (Central Time), on 10 June 2021, exclusively via the Internet at www.virtualshareholdermeeting.com/GRUB2021SM. The Grubhub Stockholder Meeting is being held to consider and vote on the following proposals:

to adopt the Agreement and Plan of Merger, dated as of 10 June 2020, as amended by the First Amendment to the Agreement and Plan and Merger, dated as of 4 September 2020, as further amended by the Second Amendment to the Agreement and Plan of Merger, dated as of 12 March 2021, and as it may be further amended from time to time (the “Merger Agreement”), by and among Grubhub Inc. (“Grubhub”), Just Eat Takeaway.com N.V., Checkers Merger Sub I, Inc. and Checkers Merger Sub II, Inc., a copy of which is attached as Annexes A-1, A-2 and A-3 to the proxy statement/prospectus accompanying this notice (such proposal, the “Merger Agreement proposal”, and the all-share combination of Just Eat Takeaway.com N.V. with Grubhub in accordance with the Merger Agreement, the “Transaction”);

to approve, by a non-binding, advisory vote, certain compensation that may be paid or become payable to named executive officers of Grubhub in connection with the transactions contemplated by the Merger Agreement (such proposal, the “non-binding compensation proposal”); and

to adjourn the Grubhub Stockholder Meeting from time to time, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Grubhub Stockholder Meeting to approve the Merger Agreement proposal (such proposal, the “adjournment proposal”).
Grubhub will transact no other business at the Grubhub Stockholder Meeting, except for such business as may properly be brought before the Grubhub Stockholder Meeting or any adjournment or postponement thereof. Please refer to the accompanying proxy statement/prospectus for further information with respect to the business to be transacted at the Grubhub Stockholder Meeting.
The Grubhub board of directors (the “Grubhub Board”) has fixed the close of business on 27 April 2021 as the record date for the Grubhub Stockholder Meeting (the “Grubhub record date”). Only holders of shares of Grubhub common stock (“Grubhub Shares” and, the holders of such Grubhub Shares, “Grubhub Stockholders”) as of the Grubhub record date are entitled to notice of, and to vote at, the Grubhub Stockholder Meeting and any adjournment or postponement thereof. Any Grubhub Stockholder entitled to attend and vote at the Grubhub Stockholder Meeting is entitled to appoint a proxy to attend and vote on such Grubhub Stockholder’s behalf. Such proxy need not be a Grubhub Stockholder.
Your vote is very important regardless of the number of Grubhub Shares that you own. The transactions contemplated by the Merger Agreement, including the Transaction, cannot be completed without the approval of the Merger Agreement proposal by the affirmative vote of the holders of a majority of the outstanding Grubhub Shares entitled to vote thereon as of the Grubhub record date. To ensure you are represented at the Grubhub Stockholder Meeting, please submit your proxy by telephone or through the Internet following the instructions on the enclosed proxy card or complete, sign, date and return the enclosed proxy card by mail in the postage-paid envelope provided. Please vote promptly whether or not you expect to attend the Grubhub Stockholder Meeting. Submitting a proxy now will not prevent you from being able to vote during the Grubhub Stockholder Meeting.

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The Grubhub Board has approved the Merger Agreement and the transactions contemplated by the Merger Agreement, and recommends that you vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal.
By Order of the Grubhub Board of Directors,

Margo Drucker
Chief Legal Officer and Secretary

Chicago, IL
12 May 2021
PLEASE VOTE YOUR GRUBHUB SHARES PROMPTLY. YOU CAN FIND INSTRUCTIONS FOR VOTING ON THE ENCLOSED PROXY CARD. IF YOU HAVE QUESTIONS ABOUT THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, THE MERGER AGREEMENT PROPOSAL, THE NON-BINDING COMPENSATION PROPOSAL, THE ADJOURNMENT PROPOSAL, OR VOTING YOUR GRUBHUB SHARES, PLEASE CONTACT:

Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
Stockholders May Call Toll-Free: (877) 717-3936
Banks & Brokers May Call Collect: (212) 750-5833

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ADDITIONAL INFORMATION
The accompanying proxy statement/prospectus incorporates important business and financial information about Grubhub from documents that are not included in or delivered with the accompanying proxy statement/prospectus. This information is available to you without charge upon your written or oral request. You can obtain documents incorporated by reference into the accompanying proxy statement/prospectus (other than certain exhibits or schedules to these documents) by requesting them in writing, or by telephone, from Grubhub at the following address and telephone number:
Grubhub Inc.
111 W. Washington Street, Suite 2100
Chicago, Illinois 60602
(877) 585-7878
Attn: Secretary
In addition, if you have any questions concerning the Transaction, the Merger Agreement, the Grubhub Stockholder Meeting or the accompanying proxy statement/prospectus, or if you would like additional copies of the accompanying proxy statement/prospectus (at no charge) or need help submitting a proxy to have your Grubhub Shares voted, please contact Innisfree M&A Incorporated, Grubhub’s proxy solicitor. Grubhub Stockholders may call toll-free at (877) 717-3936; banks and brokers may call collect at (212) 750-5833. You will not be charged for any of these documents.
If you would like to request documents, please do so no later than five business days before the date of the Grubhub Stockholder Meeting (which is 10 June 2021) to receive them before the Grubhub Stockholder Meeting.
See “Where You Can Find More Information” beginning on page 320 of the accompanying proxy statement/prospectus for further information.
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ABOUT THIS PROXY STATEMENT/PROSPECTUS
This proxy statement/prospectus, which forms part of the registration statement on Form F-4 filed by Just Eat Takeaway.com with the U.S. Securities and Exchange Commission, constitutes a prospectus of Just Eat Takeaway.com under Section 5 of the U.S. Securities Act of 1933, as amended, with respect to the New Just Eat Takeaway.com Shares (which will be represented by the New Just Eat Takeaway.com ADSs) to be issued to Grubhub Stockholders as the merger consideration. This proxy statement/prospectus also constitutes a proxy statement for Grubhub under Section 14(a) of the U.S. Securities Exchange Act of 1934, as amended. In addition, it constitutes a notice of meeting with respect to the Grubhub Stockholder Meeting.
You should rely only on the information contained in or incorporated by reference into this proxy statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this proxy statement/prospectus. This proxy statement/prospectus is dated 12 May 2021. You should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than that date. You should not assume that the information incorporated by reference into this proxy statement/prospectus is accurate as of any date other than the date of such information. The mailing of this proxy statement/prospectus to Grubhub Stockholders shall not create any implication to the contrary.
This proxy statement/prospectus shall not constitute an offer to sell, or the solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction to or from any person to whom it is unlawful to make any such offer or solicitation. Information contained in this proxy statement/prospectus regarding Just Eat Takeaway.com has been provided by Just Eat Takeaway.com and information contained in this proxy statement/prospectus regarding Grubhub has been provided by Grubhub.
A prospectus will be approved by the Dutch Authority for the Financial Markets (Stichting Autoriteit Financiële Markten, the “AFM”), as competent authority under the EU Prospectus Regulation (as defined herein) and, separately, by the Financial Conduct Authority of the United Kingdom (the “FCA”), as competent authority under the UK Prospectus Regulation (as defined herein ) (the “European Prospectus”). The European Prospectus will be issued solely in connection with the admission to listing and trading of the New Just Eat Takeaway.com Shares on Euronext Amsterdam (the “NL Admission”) and the admission to listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities of the New Just Eat Takeaway.com Shares (the “UK Admission”). The European Prospectus does not constitute or form part of an offer or invitation to sell or issue, or any solicitation of an offer to purchase or subscribe for, any securities by any person. No New Just Eat Takeaway.com Shares nor any other securities in Just Eat Takeaway.com have been marketed to, nor are available for purchase, in whole or in part, by the public in the part of the Kingdom of the Netherlands located in Europe (“the Netherlands”) or the United Kingdom of Great Britain and Northern Ireland (“United Kingdom” or “UK”) or elsewhere in connection with the UK Admission or the NL Admission, save for the holders of all issued and outstanding Grubhub Shares.
Just Eat Takeaway.com is required to obtain the approval of the General Meeting (as defined herein) for the Transaction pursuant to Dutch law and Rule 10 of the Listing Rules. On 25 August 2020, Just Eat Takeaway.com published an FCA-approved shareholder circular (the “Circular”). The Circular contained material information in connection with the Transaction and the resolutions set out in the notice of Extraordinary General Meeting of Just Eat Takeaway.com (the “Resolutions”). On 7 October 2020, Just Eat Takeaway.com held the Extraordinary General Meeting (as defined herein) and obtained the Just Eat Takeaway.com Shareholder Approval (as defined herein).
The web address of Just Eat Takeaway.com has been included as an inactive textual reference only. The European Prospectus, Circular and Just Eat Takeaway.com website are not incorporated by reference into, and do not form a part of, this proxy statement/prospectus.
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Unless otherwise indicated or as the context otherwise requires, as used in this proxy statement/prospectus:
“Acquired German Businesses” refer to the German business of Delivery Hero acquired on 1 April 2019, consisting of Delivery Hero Germany GmbH and Foodora GmbH, which operated the Lieferheld, Pizza.de and Foodora brands in Germany;
“Active Markets” refer to the United Kingdom, Germany, Canada, the Netherlands, Australia, Austria, Belgium, Bulgaria, Denmark, France, Ireland, Israel, Italy, Luxembourg, New Zealand, Norway, Poland, Portugal, Romania, Spain and Switzerland;
“ADRs” refer to American depositary receipts that evidence American depositary shares;
“ADS ratio” refers to 0.20;
“AFM” refers to the Dutch Authority for the Financial Markets (Stichting Autoriteit Financiële Markten);
“Articles” refer to the articles of association of Just Eat Takeaway.com;
“BofA Securities” refers to Bank of America Europe DAC, Amsterdam Branch (f/k/a Bank of America Merrill Lynch International DAC, Amsterdam Branch), a subsidiary of Bank of America Corporation, acting as one of Just Eat Takeaway.com’s financial advisors;
“Business Day” shall mean a day except a Saturday, a Sunday or other day on which the SEC or banks in any of the City of New York, United States, London, United Kingdom or Amsterdam, the Netherlands are authorized or required by law to be closed;
“BW” refers to the Dutch Civil Code (Burgerlijk Wetboek);
“CFIUS” refers to the Committee on Foreign Investment in the United States;
“CGU” refers to a cash-generating unit;
“CIDOR” refers to the Canada Three Month Interbank Rate;
“Circular” refers to the FCA-approved shareholder circular published by Just Eat Takeaway.com on 25 August 2020;
“CMA” refers to the UK Competition and Markets Authority;
“Code” refers to the U.S. Internal Revenue Code of 1986, as amended;
“CODM” refers to a chief operating decision maker;
“Completion” refers to the completion of the Transaction pursuant to the Merger Agreement;
“Conditions” refer to the conditions to Completion as set out in the Merger Agreement;
“Convertible Bonds” refer, collectively, to the Convertible Bonds 2019, the Convertible Bonds 2020 and the Convertible Bonds 2021;
“Convertible Bonds 2019” refer to the €250 million aggregate principal amount of 2.25% convertible bonds due 2024 issued by Just Eat Takeaway.com on 25 January 2019;
“Convertible Bonds 2020” refer to the €300 million aggregate principal amount of 1.25% convertible bonds due 2026 issued by Just Eat Takeaway.com on 30 April 2020;
“Convertible Bonds 2021” refer to the €1,100 million aggregate principal amount of convertible bonds, consisting of two tranches with an aggregate principal amount of €600 million of zero coupon convertible bonds due 2025 (the “Tranche A Convertible Bonds 2021”) and an aggregate principal amount of €500 million of 0.625% convertible bonds due 2028 (the “Tranche B Convertible Bonds 2021”), issued by Just Eat Takeaway.com on 9 February 2021;
“core-based statistical areas” refer to the U.S. geographic areas designated as such by the U.S. Office of Management and Budget, in each case consisting of the county or counties or equivalent entities
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associated with at least one core (urbanized area or urban cluster) of at least 10,000 population, plus adjacent counties having a high degree of social and economic integration with the core as measured through commuting ties with the counties associated with the core;
“counterparty financial projections” refer to the financial projections regarding Just Eat Takeaway.com’s potential future performance developed by Grubhub management based on publicly available equity analyst forecasts, subject to certain adjustments based on Grubhub management’s assumptions and due diligence review, in connection with the Transaction;
“CREST” refers to the system of paperless settlement of trades in securities and the holding of uncertificated securities operated by Euroclear in accordance with Uncertificated Securities Regulations 2001 (SI 2001/3755);
“DCGC” refers to the Dutch Corporate Governance Code;
“Delivery” refers to delivery services provided by the Just Eat Takeaway.com Group’s own logistical food delivery services for Orders from restaurants that do not deliver themselves;
“Delivery Hero” refers to Delivery Hero S.E.;
“deposit agreement” refers to the deposit agreement dated 4 May 2021, among Just Eat Takeaway.com, Deutsche Bank Trust Company Americas, as depositary bank, and all holders and beneficial owners of Just Eat Takeaway.com ADSs evidenced by ADRs issued thereunder;
“depositary bank” refers to Deutsche Bank Trust Company Americas, as depositary bank for the New Just Eat Takeaway.com ADSs;
“DGCL” refers to the General Corporation Law of the State of Delaware;
“Disclosure Guidance and Transparency Rules” refer to the disclosure guidance and transparency rules made by the FCA under Part VI of FSMA (as set out in the FCA Handbook), as amended;
“DOJ” refers to the U.S. Department of Justice;
“Dutch Competition Authority” refers to the Netherlands Authority for Consumers and Markets (Autoriteit Consument & Markt);
“ECAC” refers to El Cocinero a Cuerda SL;
“Enlarged Group” refers to the Just Eat Takeaway.com Group, as enlarged by the Transaction with effect from Completion;
“EU” refers to the European Union;
“EU Prospectus Regulation” refers to Regulation (EU) 2017/1129 of the European Parliament and Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market and repealing Directive 2003/71/EC, including any delegated regulations supplementing Regulation (EU) 2017/1129;
“EURIBOR” refers to Euro Interbank Offered Rate;
“Euronext Amsterdam” refers to Euronext in Amsterdam, a regulated market operated by Euronext Amsterdam N.V.;
“European Prospectus” refers to a prospectus to be prepared by Just Eat Takeaway.com pursuant to the EU Prospectus Regulation in respect of the NL Admission and the UK Prospectus Regulation in respect of the UK Admission;
“EUWA” refers to the European Union (Withdrawal) Act 2018, as amended;
“Evercore” refers to Evercore Group L.L.C., acting as one of Grubhub’s financial advisors;
“Exchange Act” refers to the U.S. Securities Exchange Act of 1934, as amended;
“exchange agent” refers to Deutsche Bank Trust Company Americas, as exchange agent for the Transaction;
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“exchange ratio” refers to 0.6710;
“Extraordinary General Meeting” refers to the extraordinary general meeting of Just Eat Takeaway.com Shareholders;
“FCA” refers to the Financial Conduct Authority of the United Kingdom;
“FCA Handbook” refers to the FCA’s Handbook of Rules and Guidance, as amended from time to time;
“final surviving company” refers to Merger Sub II as the surviving company in the subsequent merger;
“financial projections” refers to the Grubhub financial projections and the counterparty financial projections;
“first effective time” refers to the effective time of the initial merger;
“foreign private issuer” refers to a foreign company that qualifies as a “foreign private issuer” as defined in Rule 3b-4(c) of the Exchange Act and Rule 405 of the Securities Act;
“FSMA” refers to the UK Financial Services and Markets Act 2000, as amended;
“FTC” refers to the U.S. Federal Trade Commission;
“FTSE” refers to Financial Times Stock Exchange;
“GAAP” refers to U.S. Generally Accepted Accounting Principles;
“General Meeting” refers to the general meeting of Just Eat Takeaway.com (the corporate body) or the meeting in which Just Eat Takeaway.com Shareholders and all other persons entitled to attend general meetings of Just Eat Takeaway.com assemble, as the context requires;
“German Businesses Acquisition” refers to the Just Eat Takeaway.com Group’s acquisition of the German businesses of Delivery Hero, consisting of Delivery Hero Germany GmbH and Foodora GmbH, which operated the Lieferheld, Pizza.de and Foodora brands in Germany, which was completed on 1 April 2019;
“GMV” refers to gross merchandise value of food ordered through an online food delivery marketplace;
“Goldman Sachs” refers to Goldman Sachs International, acting as one of Just Eat Takeaway’s financial advisors;
“Grubhub” refers to Grubhub Inc., a Delaware corporation;
“Grubhub Board” refers to the board of directors of Grubhub;
“Grubhub bylaws” refer to the Amended and Restated Bylaws of Grubhub, effective as of 4 April 2014;
“Grubhub certificate of incorporation” refers to the Amended and Restated Certificate of Incorporation of Grubhub, effective as of 9 April 2014;
“Grubhub financial projections” refer to the non-public, internal financial projections regarding Grubhub’s potential future performance prepared by Grubhub management in connection with the Transaction;
“Grubhub Group” refers collectively to Grubhub and its subsidiaries from time to time;
“Grubhub record date” refers to the close of business on 27 April 2021;
“Grubhub Senior Notes” refer to the $500 million aggregate principal amount of 5.500% senior notes due 2027 issued by Grubhub Holdings Inc., a wholly owned subsidiary of Grubhub, on 10 June 2019;
“Grubhub Shares” refer to all shares of common stock, with a par value $0.0001 per share, of Grubhub issued and outstanding from time to time;
“Grubhub Stockholder” refers to a holder of Grubhub Shares from time to time;
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“Grubhub Stockholder Meeting” refers to a meeting of Grubhub Stockholders to consider and vote upon the adoption of the Merger Agreement and such other matters as may be legally required;
“HSR Act” refers to the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended;
“IAS” refers to International Accounting Standards as issued by the IASB;
“IASB” refers to the International Accounting Standards Board;
“iFood” refers to iFood Holdings B.V.;
“IFRS” refers to International Financial Reporting Standards as issued by the IASB;
“IFRS (EU)” refers to International Financial Reporting Standards as adopted by the EU;
“initial merger” refers to the merger of Merger Sub I with and into Grubhub in accordance with the Merger Agreement;
“initial surviving company” refers to Grubhub as the surviving company in the initial merger;
“IRS” refers to the U.S. Internal Revenue Service;
“IT” refers to information technology;
“Just Eat” refers to Just Eat Limited (formerly Just Eat plc), a limited company incorporated in England and Wales with registered number 06947854;
“Just Eat Acquisition” refers to the acquisition by Just Eat Takeaway.com of the entire issued share capital of Just Eat plc, which became unconditional in all respects on 31 January 2020;
“Just Eat Facility” refers to that certain multi-currency revolving loan facility entered into by Just Eat on 2 November 2017, as amended and restated on 9 March 2020;
“Just Eat Group” refers to Just Eat Limited and its subsidiaries;
“Just Eat Takeaway.com” refers to Just Eat Takeaway.com N.V. (formerly Takeaway.com N.V.), a public company with limited liability (naamloze vennootschap) incorporated under the laws of the Netherlands;
“Just Eat Takeaway.com ADSs” refer to American depositary shares representing Just Eat Takeaway.com Shares;
“Just Eat Takeaway.com Boards” refer to the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board together;
“Just Eat Takeaway.com CDI” refers to a CREST depositary interest, issued by CREST Depositary Limited whereby CREST Depositary Limited will hold overseas securities on bare trust for the CREST member to whom it has issued a depositary interest, in respect of a Just Eat Takeaway.com Share;
“Just Eat Takeaway.com Group” refers collectively to Just Eat Takeaway.com and its subsidiaries;
“Just Eat Takeaway.com Management Board” refers to the members of the management board of the Just Eat Takeaway.com as described in “Information about the Management and Compensation of Just Eat Takeaway.com—Composition of the Just Eat Takeaway.com Management Board beginning on page 249 of this proxy statement/prospectus;
“Just Eat Takeaway.com Managing Director” refers to a member of the Just Eat Takeaway.com Management Board;
“Just Eat Takeaway.com Shareholder” refers to a holder of Just Eat Takeaway.com Shares from time to time;
“Just Eat Takeaway.com Shareholder Resolutions” refer to the resolutions set out in the notice of the Extraordinary General Meeting held on 7 October 2020;
“Just Eat Takeaway.com Shares” refer to the ordinary shares with a nominal value of €0.04 each in the share capital of Just Eat Takeaway.com from time to time;
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“Just Eat Takeaway.com Supervisory Board” refers to the members of the supervisory board of Just Eat Takeaway.com as described in “Information about the Management and Compensation of Just Eat Takeaway.com—Composition of the Just Eat Takeaway.com Supervisory Board” beginning on page 250 of this proxy statement/prospectus;
“Just Eat Takeaway.com Supervisory Director” refers to a member of the Just Eat Takeaway.com Supervisory Board;
“LIBOR” refers to London Interbank Offered Rate;
“Listing Rules” refer to the listing rules made by the FCA under Part VI of FSMA (as set out in the FCA Handbook), as amended, governing, inter alia, the admission of securities to the UK Official List;
“London Stock Exchange” or “LSE” refers to London Stock Exchange plc;
“Merger Agreement” refers to the Agreement and Plan of Merger, dated as of 10 June 2020, among Just Eat Takeaway.com, Grubhub, Merger Sub I and Merger Sub II, as amended by the First Amendment to the Merger Agreement, dated as of 4 September 2020, among Just Eat Takeaway.com, Grubhub, Merger Sub I and Merger Sub II, and the Second Amendment to the Merger Agreement, dated as of 12 March 2021, among Just Eat Takeaway.com, Grubhub, Merger Sub I and Merger Sub II, providing for the all-share combination of Just Eat Takeaway.com with Grubhub, copies of which are attached as Annexes A-1, A-2 and A-3 to this proxy statement/prospectus;
“Merger Sub I” refers to Checkers Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Just Eat Takeaway.com;
“Merger Sub II” refers to Checkers Merger Sub II, Inc., a Delaware corporation and a wholly owned subsidiary of Just Eat Takeaway.com;
“Merger Subs” refer to Merger Sub I and Merger Sub II;
“mergers” refer to the initial merger and the subsequent merger;
“NA,” “N.A.” or “n.a.” refer to not applicable;
“Nasdaq” refers to the Nasdaq Global Select Market;
“New Just Eat Takeaway.com ADSs” refer to the American depositary shares representing Just Eat Takeaway.com Shares that are to be issued to Grubhub Stockholders in connection with the Transaction;
“New Just Eat Takeaway.com Shares” refer to the Just Eat Takeaway.com Shares underlying the New Just Eat Takeaway.com ADSs;
“NYSE” refers to the New York Stock Exchange;
“online food delivery business” refers to a business operating online food ordering that receives orders predominantly for delivery (and, to a much lesser extent, for pick-up);
“online food delivery marketplace” refers to an online food delivery business not being a food chain or restaurant;
“online food ordering” refers to online food ordering for delivery or pick-up;
“PCAOB” refers to the U.S. Public Company Accounting Oversight Board;
“PFIC” refers to a passive foreign investment company for U.S. federal income tax purposes;
“SEC” refers to the U.S. Securities and Exchange Commission;
“second effective time” refers to the effective time of the subsequent merger;
“Securities Act” refers to the U.S. Securities Act of 1933, as amended;
“STAK” refers to Stichting Administratiekantoor Takeaway.com.;
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“subsequent merger” refers to the merger of the initial surviving company with and into Merger Sub II in accordance with the Merger Agreement;
“Takeaway.com” refers to the legacy business of Takeaway.com N.V. as it existed prior to the Just Eat Acquisition;
“the Netherlands” refers to the part of the Kingdom of Netherlands located in Europe;
“Transaction” refers to the all-share combination of Just Eat Takeaway.com with Grubhub in accordance with the Merger Agreement;
“Treasury” refers to the U.S. Department of the Treasury;
“Treasury Regulations” refer to the Treasury regulations promulgated under the Code;
“UK Official List” refers to the Official List maintained by the FCA pursuant to FSMA;
“UK Prospectus Regulation” refers to the EU Prospectus Regulation as it forms part of UK domestic law by virtue of the EUWA;
“United Kingdom” or “UK” refers to the United Kingdom of Great Britain and Northern Ireland;
“United States” or “U.S.” refers to the United States of America;
“Voting and Support Agreement” refers to the voting and support agreement dated 10 June 2020 and made between Jitse Groen and Grubhub; and
“Wge” refers to the Dutch Act on Securities Transactions by Giro (Wet giraal effectenverkeer).
All brands, unless otherwise noted, referred to herein are trademarks owned or licensed by the Just Eat Takeaway.com Group or the Grubhub Group, as applicable.
Presentation of Financial and Other Information
This proxy statement/prospectus contains or incorporates by reference:
the audited consolidated financial statements of the Just Eat Takeaway.com Group as of 31 December 2020 and 2019 and for each of the years in the three-year period ended 31 December 2020, prepared in accordance with IFRS (the “Just Eat Takeaway.com Group’s consolidated financial statements”);
the audited consolidated financial statements of the Just Eat Group as of 31 December 2019 and 2018 and for each of the years in the two-year period ended 31 December 2019, prepared in accordance with IFRS (the “historical Just Eat Group’s consolidated financial statements”); and
the audited consolidated financial statements of the Grubhub Group as of 31 December 2020 and 2019 and for each of the years in the three-year period ended 31 December 2020, prepared on the basis of GAAP (the “Grubhub Group’s consolidated financial statements”).
Unless indicated otherwise, financial data presented in this proxy statement/prospectus have been taken from Just Eat Takeaway.com Group’s consolidated financial statements, the historical Just Eat Group’s consolidated financial statements and the Grubhub Group’s consolidated financial statements included in or incorporated by reference into this proxy statement/prospectus.
This proxy statement/prospectus also contains the unaudited pro forma condensed combined financial information of the Just Eat Takeaway.com Group as of and for the year ended 31 December 2020 after giving effect to the Just Eat Acquisition and the Transaction (the “Pro Forma Financial Information”). See “Just Eat Takeaway.com Group Unaudited Pro Forma Condensed Combined Financial Information” beginning on page 255 of this proxy statement/prospectus.
For additional information on the presentation of financial information in this proxy statement/prospectus, see the Just Eat Takeaway.com Group’s consolidated financial statements beginning on page F-5 of this proxy statement/prospectus, the historical Just Eat Group’s consolidated financial statements beginning on page F-72 of this proxy statement/prospectus and the Grubhub Group’s consolidated financial statements incorporated by reference into this proxy statement/prospectus.
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Key Non-IFRS Measures of the Just Eat Takeaway.com Group
Certain parts of this proxy statement/prospectus contain non-IFRS financial measures and ratios, including adjusted EBITDA and adjusted EBITDA margin as used by the Just Eat Takeaway.com Group (the “non-IFRS financial measures”). These are not recognized measures of financial performance or liquidity under IFRS. They are presented as the Just Eat Takeaway.com Group believes that they and similar measures are used in the industry in which the Just Eat Takeaway.com Group operates as a means of evaluating a company’s operating performance and liquidity. However, the non-IFRS financial measures presented herein may not be comparable to other similarly titled measures of other companies and are not measurements under IFRS or other generally accepted accounting principles. Accordingly, undue reliance should not be placed on the non-IFRS financial measures contained in this proxy statement/prospectus and they should not be considered in isolation or as a substitute for operating profit or loss, profit or loss for the year, cash flow or other financial measures computed in accordance with IFRS. Although certain of these data have been extracted or derived from the Just Eat Takeaway.com Group’s consolidated financial statements, these data have not been audited or reviewed by the Just Eat Takeaway.com Group’s independent auditors.
Adjusted EBITDA and Adjusted EBITDA Margin
Adjusted EBITDA, as used by the Just Eat Takeaway.com Group, is defined as profit or loss for the period before depreciation and amortization, finance income and expense, share-based payments, share of results of associates and joint ventures, acquisition and integration related expenses, income tax expense and other gains and losses, and, when presented at the segment level, which represents the Just Eat Takeaway.com Group’s measure of segment performance under IFRS 8, Operating Segments, also excludes Head Office costs, which are not allocated to the segments. The Just Eat Takeaway.com Group believes adjusted EBITDA is a useful measure for investors as it is the main measure used by its CODM to assess the performance of the business and segments and to allocate resources. Adjusted EBITDA is used internally for forecasting and budgeting and measuring its operating performance because it excludes depreciation, amortization, finance income and expenses, share-based payments, share of results of associates and joint ventures, acquisition and integration related expenses, income tax expense and other gains or losses, which do not reflect the day-to-day commercial performance of the business and, as a result, enables assessment of the underlying operational performance per segment and effectiveness of the strategy applied and the Just Eat Takeaway.com Group believes it enhances the comparability of profit or loss across segments and across periods for the Just Eat Takeaway.com Group as a whole. Adjusted EBITDA is derived from the Just Eat Takeaway.com Group’s consolidated financial statements, however, it is not a measure calculated in accordance with IFRS and may not be comparable to similar measures presented by other companies. Adjusted EBITDA has limitations as a financial measure, should be considered as supplemental in nature, and is not meant as a substitute for the related financial information prepared in accordance with IFRS. Limitations include the following:
adjusted EBITDA excludes certain recurring, non-cash charges, such as depreciation of property and equipment and amortization of intangible assets, and although these are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and adjusted EBITDA does not reflect all cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
adjusted EBITDA excludes share-based payments, which have been, and will continue to be for the foreseeable future, a recurring expense in the Just Eat Takeaway.com Group’s business and a relevant component of its compensation strategy;
adjusted EBITDA does not reflect period to period changes in tax rates or income tax expense;
adjusted EBITDA does not reflect acquisition-related transaction and integration costs, which have been a material cost in the Just Eat Takeaway.com Group’s business during the periods under review;
adjusted EBITDA excludes legal, tax, and regulatory reserves and settlements that may reduce available cash;
adjusted EBITDA does not reflect the impact of earnings or charges resulting from certain matters the Just Eat Takeaway.com Group considers not to be indicative of ongoing operations;
adjusted EBITDA does not reflect changes in or cash requirements in working capital needs; and
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certain adjustments made in calculating adjusted EBITDA contain estimates that the Just Eat Takeaway.com management believes reflect the underlying results of operations and therefore are subjective in nature.
Accordingly, adjusted EBITDA should not be considered as an alternative to profit or loss for the period. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations of the Just Eat Takeaway.com Group—Results of Operations” beginning on page 214 of this proxy statement/prospectus for a reconciliation of adjusted EBITDA for the Just Eat Takeaway.com Group to loss for the period as measured pursuant to IFRS.
Adjusted EBITDA margin, as used by the Just Eat Takeaway.com Group, is defined as adjusted EBITDA as a percentage of revenue (as defined in the statement of profit or loss and other comprehensive income or loss) for the relevant period. The Just Eat Takeaway.com Group believes adjusted EBITDA margin is a useful measure for investors as it is used by the Just Eat Takeaway.com Group and its CODM, together with adjusted EBITDA, to assess the underlying operational performance of the businesses, adjusting for non-cash and non-operating items. Adjusted EBITDA margin is used internally for purposes of forecasting, budgeting and measuring its operating performance because it excludes items that are either non-cash, relate to the Just Eat Takeaway.com Group’s investments in associates and joint ventures and gains or losses on disposal, or do not reflect the day-to-day commercial performance of the business and, as a result, provides a measure of the underlying performance of the business and the Just Eat Takeaway.com Group believes adjusted EBITDA margin enhances the comparability of profit or loss across segments and across periods for the Just Eat Takeaway.com Group as a whole while controlling for variance in revenue across such segments or periods. Adjusted EBITDA margin has limitations as a financial measure (including the limitations identified above with respect to adjusted EBITDA), should be considered as supplemental in nature, and is not meant as a substitute for the related financial information prepared in accordance with IFRS.
Unless explicitly stated otherwise, references to adjusted EBITDA and adjusted EBITDA margin in this proxy statement/prospectus are references to adjusted EBITDA and adjusted EBITDA margin as used by the Just Eat Takeaway.com Group. However, references to adjusted EBITDA in documents filed by Grubhub with the SEC which are incorporated by reference into this proxy statement/prospectus shall refer to adjusted EBITDA as used by the Grubhub Group unless stated otherwise (see “—Presentation of Financial and Other Information—Key Non-GAAP Measures of the Grubhub Group—Adjusted EBITDA” beginning on page x of this proxy statement/prospectus).
Key Non-GAAP Measures of the Grubhub Group
Certain parts of this proxy statement/prospectus contain non-GAAP financial measures and ratios, including adjusted EBITDA as used by the Grubhub Group (the “non-GAAP financial measures”). These are not recognized measures of financial performance or liquidity under GAAP. They are presented as Grubhub believes that they and similar measures are used in the industry in which the Grubhub Group operates as a means of evaluating a company’s operating performance and liquidity. However, the non-GAAP financial measures presented herein may not be comparable to other similarly titled measures of other companies and are not measurements under GAAP or other generally accepted accounting principles. Accordingly, undue reliance should not be placed on the non-GAAP financial measures contained in this proxy statement/prospectus and they should not be considered in isolation or as a substitute for financial measures computed in accordance with GAAP. Although certain of these data have been extracted or derived from the Grubhub Group’s consolidated financial statements, these data have not been audited or reviewed by the Grubhub Group’s independent auditors.
Adjusted EBITDA
Adjusted EBITDA, as used by the Grubhub Group, is defined as net income (loss) adjusted to exclude acquisition, restructuring and certain legal costs, income taxes, net interest expense, depreciation and amortization and stock-based compensation expense. Adjusted EBITDA should not be considered as an alternative to net income (loss) or any other measure of financial performance calculated and presented in accordance with GAAP. The Grubhub Group’s adjusted EBITDA may not be comparable to similarly titled measures of other organizations because other organizations may not calculate adjusted EBITDA in the same manner.
Grubhub believes adjusted EBITDA is an important measure upon which management assesses the Grubhub Group’s operating performance. Grubhub uses adjusted EBITDA as a key performance measure because Grubhub
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management believes it facilitates operating performance comparisons from period to period by excluding potential differences primarily caused by variations in capital structures, tax positions, the impact of acquisitions and restructuring, the impact of depreciation and amortization expense on the Grubhub Group’s fixed assets and the impact of stock-based compensation expense. Because adjusted EBITDA facilitates internal comparisons of the Grubhub Group’s historical operating performance on a more consistent basis, Grubhub also uses adjusted EBITDA for business planning purposes and in evaluating business opportunities and determining incentive compensation for certain employees. In addition, Grubhub management believes adjusted EBITDA and similar measures are widely used by investors, securities analysts, ratings agencies and other parties in evaluating companies in the industry as a measure of financial performance and debt-service capabilities.
The Grubhub Group’s use of adjusted EBITDA has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of the Grubhub Group’s results as reported under GAAP. Some of these limitations are:
adjusted EBITDA does not reflect the Grubhub Group’s cash expenditures for capital equipment or other contractual commitments;
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and adjusted EBITDA does not reflect capital expenditure requirements for such replacements;
adjusted EBITDA does not reflect changes in, or cash requirements for, the Grubhub Group’s working capital needs; and
other companies, including companies in the same industry, may calculate adjusted EBITDA differently, which reduces its usefulness as a comparative measure.
In evaluating adjusted EBITDA as presented by the Grubhub Group, you should be aware that in the future the Grubhub Group will incur expenses similar to some of the adjustments used in the calculation of adjusted EBITDA. The presentation of adjusted EBITDA should not be construed as indicating that the Grubhub Group’s future results will be unaffected by these expenses or by any unusual items. When evaluating the Grubhub Group’s performance, you should consider adjusted EBITDA alongside other financial performance measures, including net income (loss) and other GAAP results.
References to adjusted EBITDA (i) in this proxy statement/prospectus shall refer to adjusted EBITDA as used by the Grubhub Group only when explicitly identified as such and (ii) in documents filed by Grubhub with the SEC which are incorporated by reference into this proxy statement/prospectus shall refer to adjusted EBITDA as used by the Grubhub Group unless stated otherwise.
Key Non-IFRS Measures of the Just Eat Group
Certain parts of this proxy statement/prospectus contain reference to the non-IFRS financial measure underlying EBITDA as used by the Just Eat Group (the “JE non-IFRS financial measure”). This is not a recognized measure of financial performance or liquidity under IFRS. It is presented as Just Eat Takeaway.com believes that it and similar measures are used in the industry in which the Just Eat Group operated prior to the Just Eat Acquisition as a means of evaluating a company’s operating performance and liquidity. However, the JE non-IFRS financial measure presented herein may not be comparable to other similarly titled measures of other companies and is not a measurement under IFRS or other generally accepted accounting principles. Accordingly, undue reliance should not be placed on the JE non-IFRS financial measure contained in this proxy statement/prospectus and it should not be considered in isolation or as a substitute for profit or loss for the year, cash flow or other financial measures computed in accordance with IFRS. Although certain of these data have been extracted or derived from the historical Just Eat Group’s consolidated financial statements, these data have not been audited or reviewed by the Just Eat Group’s independent auditors. Except as otherwise provided, underlying EBITDA, as used by the Just Eat Group, is defined as profit or loss for the period before investment revenue and finance costs, taxation, depreciation, amortization and asset impairment charges, share-based payment charges, acquisition transaction and integration costs, foreign exchange gains and losses, share of results of associates and joint ventures and other gains and losses. Underlying EBITDA was used by the Just Eat Group’s CODM to assess internal performance, as it excludes items that are either non-cash, relate to investment, or do not reflect the day-to-day commercial performance of the business, and therefore provides a measure of the underlying performance of the business and is considered to enhance the comparability of profit or loss across
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segments. Underlying EBITDA is derived from the historical Just Eat Group’s consolidated financial statements, however, it is not a measure calculated in accordance with IFRS and may not be comparable to similar measures presented by other companies. Underlying EBITDA has limitations as a financial measure, should be considered as supplemental in nature, and is not meant as a substitute for the related financial information prepared in accordance with IFRS. Limitations include:
underlying EBITDA excludes certain recurring, non-cash charges, such as depreciation of property and equipment and amortization of intangible assets, and although these are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and underlying EBITDA does not reflect all cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
underlying EBITDA excludes share-based payment charges, which have been a recurring expense in the Just Eat Group’s business and a relevant component of its compensation strategy;
underlying EBITDA does not reflect period to period changes in tax rates or income tax expense;
certain adjustments made in calculating underlying EBITDA contain estimates that the Just Eat Takeaway.com management believes reflect the underlying results of operations and therefore are subjective in nature; and
underlying EBITDA may be calculated differently by other companies, which reduces its usefulness as a comparative measure.
Accordingly, underlying EBITDA should not be considered as an alternative to profit or loss for the period. Unless explicitly stated otherwise, references to underlying EBITDA in this proxy statement/prospectus are references to underlying EBITDA as used by the Just Eat Group.
Reportable Segments
Just Eat Takeaway.com Group
The Just Eat Takeaway.com Group is organized on a country level for the purpose of conducting its activities and each country is identified as an operating segment. Four of the operating segments meet the quantitative criteria pursuant to IFRS 8, Operating Segments for reportable segments (United Kingdom, Germany, Canada and the Netherlands) following the Just Eat Acquisition and consolidation of the Just Eat Group into the Just Eat Takeaway.com Group from 15 April 2020, prior to which there were two reportable segments (Germany and the Netherlands) that met the quantitative thresholds. This increase from two to four reportable segments became effective in the year ended 31 December 2020.
The other countries have been combined into an “all other segments” category which is named “Rest of the World,” and was referred to as “Other Leading Markets” prior to the Just Eat Acquisition. The Rest of the World comprises: Australia, Austria, Belgium, Bulgaria, Denmark, France, Ireland, Israel, Italy, Luxembourg, New Zealand, Norway, Poland, Portugal, Romania, Spain and Switzerland. With respect to the countries included in the Rest of the World during the periods under review, (i) the Just Eat Takeaway.com Group did not have operations in Australia, Denmark, Ireland, Italy, New Zealand, Norway and Spain during the years ended 31 December 2019 and 2018, such periods being prior to consolidation of the Just Eat Group into the Just Eat Takeaway.com Group from 15 April 2020, (ii) the Just Eat Takeaway.com Group did not have operations in France during the year ended 31 December 2019, such period being after the Just Eat Takeaway.com Group previously discontinued operations in France in February 2018 and prior to consolidation of the Just Eat Group into the Just Eat Takeaway.com Group from 15 April 2020 and (iii) as a result of acquisitions, the Just Eat Takeaway.com Group entered Israel in September 2018, Switzerland in June 2018 and Bulgaria and Romania in February 2018. Just Eat Takeaway.com has non-controlling interests in businesses in Brazil (iFood) and Mexico (ECAC). iFood is classified as an associate for accounting purposes, while Just Eat Takeaway.com’s participation in ECAC is classified as a joint venture, therefore neither business is consolidated. ECAC operations ceased on 4 December 2020 and, as per 31 December 2020, the business has been closed down. As the operating segments serve only external consumers, there is no revenue from transactions with other operating segments. See Note 10 to the Just Eat Takeaway.com Group’s consolidated financial statements beginning on page F-34 of this proxy statement/prospectus for additional detail.
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The Just Eat Group was consolidated into the Just Eat Takeaway.com Group from 15 April 2020. As a result, the Just Eat Takeaway.com Group did not have operations in the United Kingdom or Canada during the years ended 31 December 2019 and 2018.
Until 31 December 2019, Head Office was allocated to the segments. Beginning in the year ended 31 December 2020, Head Office is no longer allocated to the segments. The segment data in the Just Eat Takeaway.com Group’s consolidated financial statements have been recast accordingly. Head Office relates to non-allocated expenses and includes all central operating expenses such as staff costs and project expenses for global support teams like legal, finance, business intelligence, human resources, the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board. Not included in Head Office are costs of global IT and product functions, which are allocated to countries and therefore included in each segment’s adjusted EBITDA.
Grubhub
Grubhub has one reportable segment, which has been identified based on how the CODM of Grubhub manages the business, makes operating decisions and evaluates operating performance.
Exchange Rates
Just Eat Takeaway.com publishes its consolidated financial statements in euro, while Grubhub publishes its consolidated financial statements in U.S. dollars. In this proxy statement/prospectus, references to “€,” “euro.” “Euro,” or “EUR” are to the single currency adopted by participating member states of the European Union (the “EU”) relating to Economic and Monetary Union, references to “$,” “U.S. dollars,” “Dollars” or “USD” are to the lawful currency of the United States, references to “£,” “pounds sterling,” “British pounds sterling” or “GBP” are to the lawful currency of the United Kingdom, references to “Cdn$” or “Canadian dollars” are to the lawful currency of Canada, references to “Swiss franc” or “CHF” are to the lawful currency of Switzerland, references to “Polish Zloty” or “PLN” are to the lawful currency of Poland, references to “Israeli New Shekel” or “ILS” are to the lawful currency of Israel, references to “Bulgarian Lev” or “BGN” are to the lawful currency of Bulgaria, references to “Romanian Leu” or “RON” are to the lawful currency of Romania, references to “Australian dollar” are to the lawful currency of Australia and references to “Danish Krone” are to the lawful currency of Denmark.
References to the “Euro-Dollar exchange rate” refer to the Euro—U.S. dollar exchange rate as quoted by the Bloomberg Composite Rate on such date at the time of LSE market close, except where another time is specified, in which case it refers to the Euro—U.S. dollar exchange rate as quoted by the Bloomberg Composite Rate on such date at such specified time.
Rounding
The financial information set forth in this proxy statement/prospectus has been rounded for ease of presentation. In addition, percentages in tables may be calculated on the basis of such financial information prior to such rounding. As a result, percentages in tables may differ from the percentage that would be calculated based upon the rounded financial information presented or may not add up to 100% and the totals of other numerical figures, including certain financial data, shown as totals in some tables may not be an arithmetic aggregation of the figures that precede them. Financial information has been rounded to the nearest million in all cases, unless otherwise stated.
Industry Data
References to market share are Just Eat Takeaway.com’s estimates based on the latest available data from a number of internal and external sources. Sources used by Just Takeaway.com include: data and web traffic monitoring (Google Trends), app download and use data (App Annie), credit card use data and email receipt analysis (Fox Intelligence).
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CAUTIONARY INFORMATION REGARDING FORWARD-LOOKING STATEMENTS AND RISK FACTOR SUMMARY
Statements included in this proxy statement/prospectus and in documents incorporated by reference into this proxy statement/prospectus regarding the Transaction, the expected timetable for the Transaction, the benefits of the Transaction, future opportunities for the Enlarged Group and any other statements regarding Just Eat Takeaway.com’s, Grubhub’s or the Enlarged Group’s future expectations, beliefs, plans, objectives, financial conditions, assumptions or future events or performance that are not historical facts are forward-looking statements. These statements are often, but not always, made through the use of words or phrases such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “outlook,” “plan,” “positioned,” “possible,” “potential,” “predict,” “project,” “provide,” “should,” “strategy,” “will,” “would” and similar expressions. All such forward-looking statements involve estimates and assumptions that are subject to risks, uncertainties and other factors that could cause actual future financial condition, performance and results to differ materially from the plans, goals, expectations and results expressed in the forward-looking statements and other financial and/or statistical data within this proxy statement/prospectus.
Key factors that could cause the failure of the Transaction to be completed or, if completed, that could have an adverse effect on the results of operations, cash flows and financial position of the Enlarged Group and any anticipated benefits of the Transaction, and that could cause actual results to differ materially from those projected in the forward-looking statements include, but are not limited to, the following:
conditions to Completion, including the failure to obtain necessary shareholder approvals from Grubhub Stockholders;
challenges inherent in the merger of two businesses of the size and geographical diversity and scope of Just Eat Takeaway.com and Grubhub, including the risk that integration costs may be higher than foreseen or the process could take longer than anticipated and may disrupt their existing businesses;
uncertainties associated with the Transaction which may cause a loss of key Grubhub Group employees or disrupt existing business relationships;
restrictions in the Merger Agreement on the conduct of the business activities of the parties, including restrictions on the ability to pursue alternatives to the Transaction;
uncertainty of the value of the merger consideration that Grubhub Stockholders will receive due to a fixed exchange ratio and fluctuations in the price of Just Eat Takeaway.com Shares;
that certain Grubhub directors and executive officers have interests in the Transaction that are different from, or in addition to, the interests of Grubhub Stockholders generally;
significant transaction-related costs that the Just Eat Takeaway.com Group and the Grubhub Group will incur in connection with the Transaction;
the possibility that the actual results of operations, cash flows and financial position of the Enlarged Group will materially differ from the Pro Forma Financial Information;
risks relating to Just Eat Takeaway.com becoming subject to, and complying with, U.S. regulations, which are different from the regulations to which Just Eat Takeaway.com is currently subject;
the possibility that holders of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs in the U.S. may not be able to enforce civil liabilities against Just Eat Takeaway.com, the Just Eat Takeaway.com Managing Directors or the Just Eat Takeaway.com Supervisory Directors;
limited recourse for holders of New Just Eat Takeaway.com ADSs if Just Eat Takeaway.com or the depositary bank fails to meet its obligations under the deposit agreement;
the ability of Just Eat Takeaway.com, as a foreign private issuer, to file less information with the SEC than issuers that are not foreign private issuers;
the possibility of not being able to establish, maintain or expand leadership position and establish, maintain or increase profitability in some or all jurisdictions, including as a result of competition;
failure to continue to innovate or otherwise meet consumer expectations;
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risks to reputation due to negative publicity and media coverage;
disruptions to IT systems and related infrastructure, including system outage or supply chain failures affecting telecommunications, internet service providers, payment service providers or technology manufacturers;
compromised security measures due to hacking, viruses, fraud and other malicious attacks, resulting in performance failures or failure to protect personal information provided by consumers;
potential software failures in restaurant management systems which facilitate the receiving and processing of online orders;
payment-related risks due to both the use of payment processors and collection of cash payments;
public health issues such as a major pandemic or epidemic, including the long-term continuation or escalation of the COVID-19 outbreak;
the potential continued incurrence of substantial net losses in the future by the Just Eat Takeaway.com Group;
inability to continue to grow at historical rates or realize the benefits of growth initiatives and to retain existing restaurants and consumers or to acquire new restaurants and consumers in a cost-effective manner;
reliance on restaurants on the platforms maintaining their service levels to consumers;
risks associated with operating with joint venture and other partners;
changes in internet search engines’ algorithms or terms of service causing the Just Eat Takeaway.com Group’s or the Grubhub Group’s websites to be excluded from or ranked lower in organic search results;
weather conditions and seasonal fluctuations resulting in fluctuations in demand;
changes in, including interpretation or application of, the laws and regulations of each of the jurisdictions in which operations take place, particularly with respect to regulation of the Internet and e-commerce;
failure to maintain adequate protection for intellectual property rights and infringement of intellectual property;
potential increasing dependence of growth strategies on external sources of capital;
impact of economic conditions, including the resulting effect on consumer spending; and
fluctuations in currency exchange rates.
For a further discussion of these and other risks, contingencies and uncertainties applicable to the Just Eat Takeaway.com Group, the Grubhub Group and the Enlarged Group, see “Risk Factors” beginning on page 34 of this proxy statement/prospectus and the discussion of risks in Grubhub’s Annual Report on Form 10-K for the year ended 31 December 2020 and in Grubhub’s other filings with the SEC incorporated by reference into this proxy statement/prospectus.
Due to these risks, contingencies and other uncertainties, you are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this proxy statement/prospectus or the date of a document incorporated by reference, as applicable. All subsequent written or oral forward-looking statements attributable to Just Eat Takeaway.com or Grubhub or any person acting on its or their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section of the proxy statement/prospectus. Just Eat Takeaway.com and Grubhub are not required to and do not undertake any obligation to update or revise publicly any forward-looking statements or other data or statements contained within this proxy statement/prospectus, whether as a result of new information, future events or otherwise, except as may be required under applicable federal securities law.
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ANNEXES
 
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QUESTIONS AND ANSWERS
The following questions and answers are intended to address briefly some commonly asked questions regarding the Transaction and matters to be addressed at the Grubhub Stockholder Meeting. These questions and answers may not address all questions that may be important to Grubhub Stockholders. To better understand these matters, and for a description of the legal terms governing the Transaction, you should carefully read this entire proxy statement/prospectus, including the attached annexes, as well as the documents that have been incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 320 of this proxy statement/prospectus.
Q:
Why am I receiving this proxy statement/prospectus?
A:
Just Eat Takeaway.com and Grubhub have agreed to an all-share combination of Just Eat Takeaway.com with Grubhub in accordance with the Merger Agreement (the “Transaction”), pursuant to which Grubhub will become a wholly owned subsidiary of Just Eat Takeaway.com and will no longer be an independent, U.S. publicly-traded corporation. If the Transaction is completed, each issued and outstanding Grubhub Share (other than any Grubhub Shares owned by Grubhub, Just Eat Takeaway.com, Merger Sub I, Merger Sub II or any other direct or indirect wholly owned subsidiary of Just Eat Takeaway.com) will be converted into one 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 an amount of newly issued American depositary shares of Just Eat Takeaway.com (each, a “New Just Eat Takeaway.com ADS”) representing 0.6710 Just Eat Takeaway.com Shares. Each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. No fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs.
Grubhub is holding the Grubhub Stockholder Meeting to obtain the Grubhub Stockholder approval necessary to adopt the Merger Agreement (the “Merger Agreement proposal”). In addition, Grubhub Stockholders will also be asked to approve, on a non-binding, advisory basis, certain compensation that may be paid or become payable to named executive officers of Grubhub in connection with the transactions contemplated by the Merger Agreement (the “non-binding compensation proposal”) and to approve the adjournment of the Grubhub Stockholder Meeting from time to time, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement proposal (the “adjournment proposal”).
This proxy statement/prospectus serves as both a proxy statement of Grubhub and a prospectus of Just Eat Takeaway.com in connection with the Transaction.
It is important that your Grubhub Shares be represented and voted regardless of the size of your holdings. Whether or not you plan to attend the Grubhub Stockholder Meeting, we urge you to submit a proxy to have your Grubhub Shares voted in advance of the Grubhub Stockholder Meeting by using one of the methods described in this proxy statement/prospectus.
Q:
What are Grubhub Stockholders being asked to vote on?
A:
Grubhub Stockholders are being asked to vote on the following proposals:
the Merger Agreement proposal;
the non-binding compensation proposal; and
the adjournment proposal.
Q:
How does the Grubhub Board recommend that Grubhub Stockholders vote?
A:
The Grubhub Board has evaluated the Merger Agreement and the transactions contemplated thereby, including the Transaction, and (i) determined that it was fair to and in the best interest of Grubhub and the Grubhub Stockholders, and declared it advisable, that Grubhub enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Transaction; (ii) adopted the Merger Agreement and approved the execution, delivery and performance by Grubhub of the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Transaction; (iii) resolved to
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recommend that the Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal; and (iv) directed that the Merger Agreement be submitted to the Grubhub Stockholders for adoption.
The Grubhub Board recommends that Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal. See “Grubhub Proposal I: Adoption of the Merger Agreement—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board,” “Grubhub Proposal II: Non-Binding, Advisory Vote on Transaction-Related Named Executive Officer Compensation” and “Grubhub Proposal III: Adjournment of the Special Meeting” beginning on pages 88, 253 and 254, respectively, of this proxy statement/prospectus.
In considering the recommendation of the Grubhub Board, you should be aware that certain directors and executive officers of Grubhub have interests in the proposed transactions that are in addition to, or different from, any interests they might have as Grubhub Stockholders. See “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus.
Q:
How do Grubhub’s directors and executive officers intend to vote?
A:
Grubhub currently expects that Grubhub’s directors and executive officers will vote their Grubhub Shares “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal.
Q:
Are there any risks related to the Transaction or the Just Eat Takeaway.com Group’s business that I should consider in deciding whether to vote for approval of the Merger Agreement proposal?
A:
Yes. Before making any decision on whether and how to vote, you are urged to read carefully and in its entirety “Risk Factors” beginning on page 34 of this proxy statement/prospectus. You also should read and carefully consider the risk factors with respect to Grubhub that are contained in the documents that are incorporated by reference into this proxy statement/prospectus.
Q:
What uncertainties and risks did the Grubhub Board consider in connection with the Transaction?
A:
The Grubhub Board carefully considered certain uncertainties and risks in its deliberations concerning the Transaction, including:
the possibility that the Transaction or the other transactions contemplated by the Merger Agreement may not be completed, or that their completion may be delayed for reasons that are beyond the control of Grubhub or Just Eat Takeaway.com, including the failure of Grubhub Stockholders to adopt the Merger Agreement or the failure of the Just Eat Takeaway.com Shareholders to approve the Just Eat Takeaway.com Shareholder Resolutions, including the share issuance and binding nominations, or the failure of Grubhub or Just Eat Takeaway.com to satisfy other requirements, including the receipt of regulatory approvals and clearances, that are conditions to closing the Transaction, and the materially adverse impact that such failure or delay could have on Grubhub’s financial or business condition, results of operations or stock price;
the possibility that, because the merger consideration is based on a fixed exchange ratio and does not provide Grubhub with a price-based termination right or adjustment for fluctuations in the trading price of Just Eat Takeaway.com Shares, Grubhub Stockholders would be exposed to adverse developments in Just Eat Takeaway.com’s business, operations, financial condition, earnings and prospects, and that, as a result, if there is a decrease in the trading price of Just Eat Takeaway.com Shares without a corresponding decrease in the trading price of Grubhub Shares, there would be a potential decrease in the implied value of the merger consideration;
the challenges inherent in the merger of two businesses of the size and geographical diversity and scope of Grubhub and Just Eat Takeaway.com, including the possible diversion of management attention for an extended period of time;
the risk that the Enlarged Group may not be able to successfully integrate the businesses of Grubhub and Just Eat Takeaway.com or that the costs of integration may be greater than anticipated and therefore the Enlarged Group may not be able to fully realize the anticipated benefits of the Transaction;
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the execution risks associated with the implementation of the Enlarged Group’s long-term business plan and strategy, which may be different from the execution risks related to Grubhub’s stand-alone business plan;
the lack of opportunity for Grubhub Stockholders to participate in Grubhub’s potential upside as a standalone company, other than indirectly as part of the Enlarged Group;
Just Eat Takeaway.com’s right to respond to and negotiate with respect to unsolicited alternative proposals from third parties in certain circumstances and to terminate the Merger Agreement if a superior proposal were to become available, subject to Just Eat Takeaway.com being obligated to pay Grubhub a termination fee of $144 million, as more fully described under the section entitled “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” beginning on page 156 of this proxy statement/prospectus;
the Just Eat Takeaway.com Boards’ right to change their recommendation to the Just Eat Takeaway.com Shareholders to vote in favor of the Just Eat Takeaway.com Shareholder Resolutions, including the share issuance and binding nominations, if a superior proposal were to become available or in response to an intervening event, subject to Just Eat Takeaway.com being obligated to pay Grubhub a termination fee of $144 million in certain circumstances, as more fully described under the section entitled “The Merger Agreement—Recommendation of the Just Eat Takeaway.com Boards” beginning on page 160 of this proxy statement/prospectus;
the restrictions in the Merger Agreement on the conduct of Grubhub’s business during the period between execution of the Merger Agreement and Completion, as more fully described under the section entitled “The Merger Agreement—Conduct of Business” beginning on page 153 of this proxy statement/prospectus, which may delay or prevent Grubhub from undertaking business opportunities that may arise or may negatively affect Grubhub’s ability to attract and retain key personnel;
the risk that the pendency of the Transaction or announcement of Completion could adversely affect Grubhub’s relationships with any persons with whom Grubhub has a business relationship, including its consumers and restaurant partners;
the risk that, despite the efforts of Grubhub and Just Eat Takeaway.com prior to Completion, the Enlarged Group may have difficulties in attracting and retaining key employees;
the transaction costs and retention costs to be incurred in connection with the Transaction, regardless of whether the Transaction is completed;
the fact that the Merger Agreement prohibits Grubhub from soliciting or engaging in discussions regarding alternative transactions during the pendency of the Transaction, subject to limited exceptions, as more fully described under the section entitled “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” beginning on page 156 of this proxy statement/prospectus;
Grubhub’s obligation to pay Just Eat Takeaway.com a termination fee of $144 million in certain circumstances, as more fully described under the section entitled “The Merger Agreement—Expenses and Termination Fees” beginning on page 169 of this proxy statement/prospectus, and the risk that such termination fee may discourage third parties that might otherwise have an interest in a business combination with Grubhub from making alternative proposals;
the fact that some of Grubhub’s directors and executive officers have interests in the Transaction that are different from, or in addition to, the interests of Grubhub Stockholders generally, as more fully described under the section entitled “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus; and
the risks of the type and nature described under “Risk Factors” beginning on page 34 of this proxy statement/prospectus and the matters described under “Cautionary Information Regarding Forward-Looking Statements and Risk Factor Summary” beginning on page xiv of this proxy statement/prospectus.
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For a more detailed discussion of the factors, including the negative factors, that the Grubhub Board considered in its deliberations concerning the Transaction, see “Grubhub Proposal I: Adoption of the Merger Agreement—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board” beginning on page 88 of this proxy statement/prospectus.
Q:
Do any of the directors or executive officers of Grubhub have interests in the Transaction that may be different from or in addition to the interests of other Grubhub Stockholders?
A:
Yes, certain Grubhub directors and executive officers have interests in the Transaction that are different from, or in addition to, those of Grubhub Stockholders generally. For a detailed discussion of these interests, see “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus.
Q:
When do you expect to complete the Transaction?
A:
Assuming the satisfaction (or, to the extent legally permissible, waiver) of the conditions to Just Eat Takeaway.com’s and Grubhub’s obligations to complete the Transaction, Just Eat Takeaway.com and Grubhub expect the Transaction to be completed by the end of the second quarter of 2021. However, the Transaction is subject to various conditions, and it is possible that factors outside the control of Just Eat Takeaway.com and Grubhub could result in the Transaction being completed at a later time, or not at all. An end date of 31 December 2021 has been set for the first effective time.
Q:
What will Grubhub Stockholders receive in the Transaction?
A:
If the Transaction is completed, each Grubhub Share (other than any Grubhub Shares owned by Grubhub, Just Eat Takeaway.com, Merger Sub I, Merger Sub II or any other direct or indirect wholly owned subsidiary of Just Eat Takeaway.com) automatically will be converted into the right to receive consideration consisting of (1) New Just Eat Takeaway.com ADSs representing 0.6710 Just Eat Takeaway.com Shares (the “merger consideration”), plus (2) cash in lieu of fractional New Just Eat Takeaway.com ADSs, plus (3) any dividends or other distributions to which such holder is entitled pursuant to the Merger Agreement, and otherwise subject to adjustments to prevent dilution in accordance with the Merger Agreement. Each New Just Eat Takeaway.com ADS will represent one-fifth of one New Just Eat Takeaway.com Share. For the avoidance of doubt, no fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs.
Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €98.60 and the Euro-Dollar exchange rate of 1.13585, in each case, on 9 June 2020, the last trading day of the Just Eat Takeaway.com Shares before the public announcement of the Merger Agreement, the merger consideration represented approximately $75.15 in value per Grubhub Share. Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €92.08 and the Euro-Dollar exchange rate of 1.2036, in each case, on 20 April 2021, the most recent practicable trading day prior to the date of this proxy statement/prospectus, the merger consideration represented approximately $74.37 in value for each Grubhub Share. Because the Merger Agreement provides for a fixed number of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares underlying those New Just Eat Takeaway.com ADSs to be issued as part of the consideration payable in exchange for each Grubhub Share, the value of the merger consideration that Grubhub Stockholders will receive will depend on the market price of New Just Eat Takeaway.com Shares underlying such New Just Eat Takeaway.com ADSs and the Euro-Dollar exchange rate at the time the Transaction is completed. As a result, the value of the merger consideration that Grubhub Stockholders will receive upon Completion could be greater than, less than or the same as the value of the merger consideration on the date of this proxy statement/prospectus or at the time of the Grubhub Stockholder Meeting.
Q:
What is an American depositary share?
A:
An American depositary share, or ADS, represents a specified number of securities of a non-U.S. company deposited with a custodian bank. Each New Just Eat Takeaway.com ADS will represent one-fifth of one
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New Just Eat Takeaway.com Share. New Just Eat Takeaway.com ADSs will be issued in book-entry form or will be issued in certificated form, in which case they will be evidenced by American depositary receipts, or ADRs. The New Just Eat Takeaway.com ADSs will be issued pursuant to the terms of the deposit agreement.
Q:
What are the important differences between a Just Eat Takeaway.com Share and a New Just Eat Takeaway.com ADS?
A:
While each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share, there are some differences between these two securities. These differences include:
New Just Eat Takeaway.com ADSs will trade in U.S. dollars, while Just Eat Takeaway.com Shares trade in euro on Euronext Amsterdam and Just Eat Takeaway.com CDIs trade in pounds sterling on the London Stock Exchange;
dividends paid in respect of New Just Eat Takeaway.com ADSs will be paid in U.S. dollars following conversion from euro by the depositary bank, while dividends paid in respect of Just Eat Takeaway.com Shares listed on Euronext Amsterdam will be paid in euro and dividends paid in respect of Just Eat Takeaway.com Shares listed on the London Stock Exchange will be paid in pounds sterling, and as a result certain dividends will be subject to currency fluctuations;
cash dividends paid in respect of New Just Eat Takeaway.com ADSs will be subject to a fee of up to $0.05 per New Just Eat Takeaway.com ADS while no such fee is payable by Just Eat Takeaway.com Shareholders;
prior to or at Completion, all New Just Eat Takeaway.com ADSs will be listed on Nasdaq while Just Eat Takeaway.com Shares are listed on Euronext Amsterdam and the London Stock Exchange;
holders of New Just Eat Takeaway.com ADSs vote the underlying New Just Eat Takeaway.com Shares by instructing the depositary bank how to vote the corresponding New Just Eat Takeaway.com Shares, while Just Eat Takeaway.com Shareholders vote directly at any General Meeting;
certain shareholders’ rights, such as the right to propose resolutions or the right to convene a General Meeting, may not be exercised by New Just Eat Takeaway.com ADS holders unless they first convert their New Just Eat Takeaway.com ADSs into Just Eat Takeaway.com Shares; and
Just Eat Takeaway.com Shareholders are entitled to receive mailed copies of proxy materials and documents from Just Eat Takeaway.com, while, in lieu of distributing such materials, the depositary bank may distribute to holders of New Just Eat Takeaway.com ADSs instructions on how to retrieve such materials upon request.
A holder of a New Just Eat Takeaway.com ADS may at any time exchange such holder’s New Just Eat Takeaway.com ADS for Just Eat Takeaway.com Shares, subject to certain limitations. See “—Can I elect to receive Just Eat Takeaway.com Shares instead of New Just Eat Takeaway.com ADSs?” beginning on page 6 of this proxy statement/prospectus.
For a more detailed discussion about Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs, see “Description of Just Eat Takeaway.com Shares” and “Description of Just Eat Takeaway.com American Depositary Shares” beginning on pages 271 and 278, respectively, of this proxy statement/prospectus.
Q:
Will the New Just Eat Takeaway.com ADSs issued to Grubhub Stockholders at the time of Completion be listed on an exchange?
A:
Yes. It is a condition to Completion that the New Just Eat Takeaway.com ADSs to be issued to Grubhub Stockholders in the Transaction be approved for listing on the NYSE or Nasdaq, subject to official notice of issuance. It is also a condition to Completion that the New Just Eat Takeaway.com Shares underlying such New Just Eat Takeaway.com ADSs be approved for (i) admission to the premium listing segment of the Official List of the FCA and to trading on the London Stock Exchange’s main market for listed securities and (ii) listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange, subject only to the issuance of such New Just Eat Takeaway.com Shares upon Completion.
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Q:
Can I sell the New Just Eat Takeaway.com ADSs that I receive in the Transaction?
A:
Yes, so long as there is sufficient market demand for the New Just Eat Takeaway.com ADSs. The New Just Eat Takeaway.com ADSs being issued in the Transaction will be transferable (subject to applicable restrictions under the U.S. securities laws) and will be registered with the SEC. It is a condition to Completion that the New Just Eat Takeaway.com ADSs being issued in the Transaction be approved for listing on the NYSE or Nasdaq, subject to official notice of issuance. However, following Completion, there can be no assurance that the New Just Eat Takeaway.com ADSs will continue to satisfy the listing requirements of Nasdaq or that a trading market in the New Just Eat Takeaway.com ADSs will develop or exist at any time. Further, no prediction can be made regarding the liquidity of any such market or the prices at which the New Just Eat Takeaway.com ADSs may trade at any point in time.
Q:
Can I elect to receive Just Eat Takeaway.com Shares instead of New Just Eat Takeaway.com ADSs?
A:
No. The merger consideration only consists of New Just Eat Takeaway.com ADSs. In connection with Completion, all Grubhub Stockholders will only be entitled to receive New Just Eat Takeaway.com ADSs and may not elect to receive Just Eat Takeaway.com Shares in lieu of New Just Eat Takeaway.com ADSs. However, once New Just Eat Takeaway.com ADSs are issued to you, you will have the right to convert those New Just Eat Takeaway.com ADSs into Just Eat Takeaway.com Shares, subject to the payment of any fees charged by the depositary bank relating to such conversion of New Just Eat Takeaway.com ADSs into Just Eat Takeaway.com Shares. Once you hold Just Eat Takeaway.com Shares, you may continue to hold Just Eat Takeaway.com Shares or you may sell those Just Eat Takeaway.com Shares on the London Stock Exchange or Euronext Amsterdam.
Upon Just Eat Takeaway.com’s reasonable determination Just Eat Takeaway.com may, or upon Grubhub’s reasonable request to the extent reasonably practicable, Just Eat Takeaway.com will permit (but not obligate) Grubhub Stockholders to elect to receive a number of Just Eat Takeaway.com Shares (or Just Eat Takeaway.com CDIs) equal to the exchange ratio for each outstanding Grubhub Share in lieu of New Just Eat Takeaway.com ADSs issuable as the merger consideration.
For a more detailed discussion about the conversion of New Just Eat Takeaway.com ADSs into Just Eat Takeaway.com Shares and the fees and charges that may be charged by the depositary bank in relation to the New Just Eat Takeaway.com ADSs, see “Description of Just Eat Takeaway.com American Depositary Shares—Deposit, Withdrawal and Cancellation” and “Description of Just Eat Takeaway.com American Depositary Shares—Fees and Expenses” beginning on pages 279 and 283, respectively, of this proxy statement/prospectus.
Q:
If I am a Grubhub Stockholder, how will I receive the merger consideration to which I am entitled?
A:
After receiving any requisite documentation from you, following Completion, the exchange agent will mail to you (1) a statement reflecting the whole number of New Just Eat Takeaway.com ADSs you have the right to receive as merger consideration and (2) a check for the cash portion of any cash in lieu of fractional New Just Eat Takeaway.com ADSs and dividends to which you are entitled. If you hold your Grubhub Shares in certificated form, you will need to surrender your certificates for such Grubhub Shares to the exchange agent to receive the merger consideration which you are entitled to receive. For additional information about the exchange of Grubhub Shares for the merger consideration, see “Grubhub Proposal I: Adoption of the Merger Agreement—Exchange of Shares in the Mergers” beginning on page 118 of this proxy statement/prospectus.
Q:
Is the obligation of each of Just Eat Takeaway.com and Grubhub to complete the Transaction subject to any conditions?
A:
Yes. The obligation of each of Just Eat Takeaway.com and Grubhub to complete the Transaction is subject to the satisfaction or, to the extent legally permissible, waiver on or prior to the first effective time of the following Conditions:
receipt of (i) the approval by the Grubhub Stockholders of the Merger Agreement proposal (the “Grubhub Stockholder Approval”) and (ii) Just Eat Takeaway.com Shareholder approval of (a) the resolution to pursue the transactions contemplated by the Merger Agreement under Section 2:107a of the Dutch Civil Code, (b) delegation of authority to the Just Eat Takeaway.com Management Board to
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issue the New Just Eat Takeaway.com Shares and (c) the terms of the Merger Agreement, in each case, by a majority of the votes validly cast by Just Eat Takeaway.com Shareholders at a General Meeting of Just Eat Takeaway.com (clauses (a), (b) and (c) together, the “Just Eat Takeaway.com Transaction Approvals”) (On 7 October 2020, Just Eat Takeaway.com held an Extraordinary General Meeting and obtained the Just Eat Takeaway.com Transaction Approvals.);
binding nominations for the appointment of the Grubhub Management Board nominee and the Grubhub Supervisory Board nominees not having been overruled by more than half of the votes validly cast, such number of votes representing more than one-third of Just Eat Takeaway.com’s issued share capital, at a General Meeting of the Just Eat Takeaway.com Shareholders (the “Just Eat Takeaway.com Board Nominee Approval” and, together with the Just Eat Takeaway.com Transaction Approvals, the “Just Eat Takeaway.com Shareholder Approval”) (On 7 October 2020, Just Eat Takeaway.com held an Extraordinary General Meeting and obtained the Just Eat Takeaway.com Board Nominee Approval.);
the expiration or termination of the applicable waiting period under the HSR Act (the “HSR Condition”), satisfaction of the condition relating to the UK Competition and Markets Authority (the “CMA”) (the “CMA Condition”) and receipt of written notification from CFIUS indicating the Transaction is not subject to review or such review has concluded without unresolved national security concerns or, if CFIUS has referred review of the Transaction to the President of the United States, receipt of notice from the President of the United States of their determination not to suspend or prohibit the Transaction or expiration of the applicable waiting period without any determination by the President of the United States (Pursuant to the requirements of the HSR Act, Just Eat Takeaway.com and Grubhub filed Notification and Report Forms with respect to the Transaction with the FTC and DOJ on 24 June 2020 and requested early termination of the HSR Act waiting period. The FTC granted early termination of the HSR Act waiting period on 7 July 2020, thereby satisfying the HSR Condition. On 24 June 2020, Just Eat Takeaway.com filed a briefing paper with the CMA. On 2 July 2020, in response to the briefing paper, the CMA indicated that it had no further questions as of such date regarding the Transaction, thereby satisfying the CMA Condition. On 21 July 2020, Just Eat Takeaway.com and Grubhub filed the joint voluntary notice with CFIUS. Approval from CFIUS was received on 3 September 2020. As a result of the foregoing, all regulatory approvals required for Completion have been obtained.);
the absence of any legal restraints that prevent, make illegal or prohibit Completion;
the approval for listing of the New Just Eat Takeaway.com ADSs issuable as the merger consideration on the NYSE or Nasdaq (subject to official notice of issuance);
the approval for admission of the New Just Eat Takeaway.com Shares to (1) listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities and (2) listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange;
effectiveness (1) declared by the SEC of the registration statement filed on Form F-4 of which this proxy statement/prospectus forms a part, (2) declared by the SEC of the registration statement on Form F-6 and (3) of the registration statement on Form 8-A (and the absence of any stop order suspending the effectiveness of such registration statements or any proceedings seeking such a stop order);
the approval of the European Prospectus by the AFM and the FCA, in each case if then applicable, and if then applicable, the AFM’s approval of such European Prospectus having been notified to the FCA in accordance with applicable rules and regulations;
accuracy of the representations and warranties made in the Merger Agreement by the other parties, subject to certain exceptions;
performance by the other parties in all material respects of all obligations required to be performed by them under the Merger Agreement that are required to be performed on or prior to Completion; and
the absence of a material adverse effect on Just Eat Takeaway.com or Grubhub, respectively, since the date of the Merger Agreement.
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For a more complete summary of the conditions that must be satisfied (or, to the extent legally permissible, waived) prior to Completion, see “The Merger Agreement—Conditions to the Mergers” beginning on page 166 of this proxy statement/prospectus.
Q:
What will happen if the Merger Agreement is not adopted at the Grubhub Stockholder Meeting or the other proposals to be considered at the Grubhub Stockholder Meeting are not approved?
A:
As a condition to Completion, the Merger Agreement must be adopted by holders of a majority of the Grubhub Shares entitled to vote as of the Grubhub record date. The Transaction will not be completed if the Merger Agreement is not adopted at the Grubhub Stockholder Meeting.
Completion is not conditioned or dependent upon the approval of the non-binding compensation proposal or the approval of the adjournment proposal.
Q:
What happens if the Transaction is not completed?
A:
If the Transaction is not completed for any reason, Grubhub Stockholders will not receive consideration for their Grubhub Shares under the Merger Agreement and Grubhub will remain an independent public company with Grubhub Shares being listed on the NYSE. Upon a termination of the Merger Agreement, under certain circumstances, a termination fee of $144 million may be payable to either Grubhub or Just Eat Takeaway.com. For more information on the fee that may be payable upon termination of the Merger Agreement, see “The Merger Agreement—Expenses and Termination Fees” beginning on page 169 of this proxy statement/prospectus.
Q:
Are Grubhub Stockholders entitled to seek appraisal rights if they do not vote in favor of the adoption of the Merger Agreement?
A:
No. In accordance with the DGCL, which governs the Transaction, as well as under the Grubhub certificate of incorporation and Grubhub bylaws, no appraisal rights are available to Grubhub Stockholders in connection with the Transaction.
Q:
Is the Transaction expected to be taxable to Grubhub Stockholders?
A:
Grubhub has received an opinion from Kirkland & Ellis LLP to the effect that the Transaction (1) will qualify as a “reorganization” within the meaning of Section 368(a)(1)(A) and Section 368(a)(2)(D) of the Code and (2) will not result in gain being recognized under Section 367(a)(1) of the Code (other than for any Grubhub Stockholder that would be a “five-percent transferee shareholder” (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Just Eat Takeaway.com following the Transaction that does not enter into a five year gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8(c)). If the Transaction so qualifies, and provided, as described below, that the fair market value of Just Eat Takeaway.com, at the time of the Transaction, equals or exceeds the fair market value of Grubhub, as specially determined for purposes of Section 367(a) of the Code, then the Transaction will have the following U.S. federal income tax consequences to you if you are a U.S. holder:
The exchange of Grubhub Shares for New Just Eat Takeaway.com ADSs in the Transaction will not result in the recognition of any gain or loss with respect to your Grubhub Shares (except with respect to cash received in lieu of a fractional New Just Eat Takeaway.com ADS, as discussed below).
The aggregate tax basis of the New Just Eat Takeaway.com ADSs (including any fractional New Just Eat Takeaway.com ADS deemed received and redeemed or sold as discussed below) received by you in the Transaction will be the same as the aggregate tax basis of the Grubhub Shares surrendered in exchange therefor.
The holding period for New Just Eat Takeaway.com ADSs (including a fractional New Just Eat Takeaway.com ADS deemed received and redeemed or sold as discussed below) that you receive in the Transaction will include the holding period of the Grubhub Shares you exchanged for such New Just Eat Takeaway.com ADSs.
Because Just Eat Takeaway.com will not issue any fractional New Just Eat Takeaway.com ADSs in the Transaction (for avoidance of doubt, other than any fractional shares deemed to be issued and then
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redeemed or sold), if you exchange Grubhub Shares in the Transaction and would otherwise have received a fraction of a New Just Eat Takeaway.com ADS, you will receive cash. In such a case, you will be treated as having received a fractional share and having received such cash in redemption of the fractional share. The amount of any capital gain or loss you recognize will equal the amount of cash received with respect to the fractional share less the ratable portion of the tax basis of the Grubhub Shares surrendered that is allocated to the fractional share. Capital gain or loss will generally be long-term capital gain or loss if your holding period in the Grubhub Shares is more than one year on the date of Completion. The deductibility of capital losses is subject to limitations.
If you have differing bases or holding periods in respect of your Grubhub Shares, you must determine the bases and holding periods in the New Just Eat Takeaway.com ADSs received in the Transaction separately for each identifiable block (that is, stock of the same class acquired at the same time for the same price) of Grubhub Shares you exchange.
A Grubhub Stockholder will not be subject to Dutch dividend withholding tax with respect to the exchange of Grubhub Shares for New Just Eat Takeaway.com ADSs pursuant to the mergers and cash payments in lieu of fractional entitlements to New Just Eat Takeaway.com ADSs received as part of the mergers. Any dividends or other distributions declared or made by Just Eat Takeaway.com to Grubhub Stockholders pursuant to the Merger Agreement or following the exchange of Grubhub Shares for New Just Eat Takeaway.com ADSs may be subject to Dutch dividend withholding tax.
Please carefully review the information under “Grubhub Proposal I: Adoption of the Merger Agreement—Material U.S. Federal Income Tax Consequences” and “Grubhub Proposal I: Adoption of the Merger Agreement—Material Dutch Tax Consequences” beginning on pages 107 and 112, respectively, of this proxy statement/prospectus for a discussion of the material U.S. federal income tax and material Dutch tax consequences for Grubhub Stockholders of the Transaction and the material U.S. federal income tax and material Dutch tax consequences of the holding and disposal of the New Just Eat Takeaway.com ADSs and Just Eat Takeaway.com Shares following the mergers. The tax consequences to you will depend on your own situation. We urge you to consult your tax advisors as to the specific tax consequences to you of the Transaction and your receipt of the merger consideration, including the application and effect of any local, income and other tax laws of the ownership and disposition of New Just Eat Takeaway.com ADSs and Just Eat Takeaway.com Shares.
Q:
What will happen to outstanding Grubhub equity awards in the Transaction?
A:
In connection with the Transaction, each option that represents the right to acquire Grubhub Shares (each, a “Grubhub option”) that is outstanding immediately prior to the first effective time, whether or not then vested or exercisable, will, at the first effective time, be converted into an option to acquire Just Eat Takeaway.com ADSs (each, an “assumed option”). The number of Just Eat Takeaway.com ADSs underlying each assumed option will equal the product of (i) the number of Grubhub Shares subject to such Grubhub option as of immediately prior to the first effective time and (ii) the exchange ratio divided by the ADS ratio, rounded down to the nearest number of whole Just Eat Takeaway.com ADSs. The exercise price per share of each assumed option will be equal to (x) the exercise price per share of the corresponding Grubhub option divided by (y) the exchange ratio divided by the ADS ratio, rounded up to the nearest whole cent. Each assumed option will otherwise be subject to the other terms and conditions that applied to the corresponding Grubhub option immediately prior to the first effective time.
In addition, each restricted stock unit award with respect to Grubhub Shares (each, a “Grubhub RSU”) that is outstanding immediately prior to the first effective time, will, at the first effective time, be converted into a restricted stock unit with respect to a number of Just Eat Takeaway.com ADSs (each, an “assumed RSU”) equal to the product of (i) the number of Grubhub Shares subject to such Grubhub RSU immediately prior to the first effective time and (ii) the exchange ratio divided by the ADS ratio, rounded to the nearest number of whole Just Eat Takeaway.com ADSs. Each assumed RSU will otherwise be subject to other same terms and conditions that applied to the corresponding Grubhub RSU immediately prior to the first effective time.
Just Eat Takeaway.com may substitute Just Eat Takeaway.com Shares for Just Eat Takeaway.com ADSs as the security underlying the assumed options or assumed RSUs. In such case, the number of Just Eat
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Takeaway.com Shares underlying such assumed options or assumed RSUs will equal the product of (i) the number of Grubhub Shares subject to such Grubhub option or Gruhhub RSU as of immediately prior to the first effective time and (ii) the exchange ratio, rounded down to the nearest number of whole Just Eat Takeaway.com Shares in the case of assumed options or rounded to the nearest number of whole Just Eat Takeaway.com Shares in the case of assumed RSUs, and the exercise price per share of each assumed option will be equal to (x) the exercise price per share of the corresponding Grubhub option divided by (y) the exchange ratio, rounded up to the nearest whole cent. Upon the exercise of an assumed option or settlement of an assumed RSU, the Just Eat Takeaway.com Shares underlying such assumed options or assumed RSUs, as applicable, may be deposited in Stichting Administratiekantoor Takeaway.com (the “STAK”). The STAK will hold such Just Eat Takeaway.com Shares on behalf of the former holder of the assumed option or assumed RSU, as applicable, and will exercise all voting rights with respect to such Just Eat Takeaway.com Shares. The former holder will receive one depository receipt of the STAK (a “STAK depository receipt”), for each deposited Just Eat Takeaway.com Share. Each STAK depository receipt will entitle the holder thereof to all economic benefits of the underlying Just Eat Takeaway.com Shares and, subject to any blackout or restrictions under applicable law, entitle such holder to direct the STAK to sell the underlying Just Eat Takeaway.com Shares and transfer the proceeds to such holder. If Just Eat Takeaway.com does not elect to deposit the underlying Just Eat Takeaway.com Shares into the STAK, such awards will be settled in Just Eat Takeaway.com Shares. The determination of whether to settle the assumed awards in Just Eat Takeaway.com Shares or STAK depository receipts will be made by Just Eat Takeaway.com in its sole discretion, provided that Just Eat Takeaway.com acts reasonably in making such determination. As of the date of this proxy statement/prospectus, Just Eat Takeaway.com intends on settling Grubhub assumed awards in STAK depository receipts.
See “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards” beginning on page 119 of this proxy statement/prospectus.
Q:
When and where will the Grubhub Stockholder Meeting be held?
A:
Due to health and safety concerns resulting from the COVID-19 pandemic, the Grubhub Stockholder Meeting will be held exclusively in a virtual format on 10 June 2021 at 8 a.m. (Central Time). Grubhub has adopted a virtual format for the Grubhub Stockholder Meeting to make participation accessible for Grubhub Stockholders from any geographic location with Internet connectivity. Grubhub Stockholders who attend the Grubhub Stockholder Meeting will be afforded the same rights and opportunities to participate as they would at an in-person meeting. You are entitled to attend and participate in the Grubhub Stockholder Meeting only if you were a Grubhub Stockholder of record as of the close of business on 27 April 2021, the record date for the Grubhub Stockholder Meeting (the “Grubhub record date”), or hold a valid proxy of such Grubhub Stockholder for the Grubhub Stockholder Meeting. To be admitted to the stockholder portion of the Grubhub Stockholder Meeting at www.virtualshareholdermeeting.com/GRUB2021SM, you must enter the 16-digit control number found on your proxy card or voting instruction form. Please note that you will not be able to attend the Grubhub Stockholder Meeting in person.
Q:
Who is entitled to vote at the Grubhub Stockholder Meeting?
A:
Only Grubhub Stockholders of record as of the Grubhub record date, the close of business on 27 April 2021, or those holding a valid proxy of such a Grubhub Stockholder for the Grubhub Stockholder Meeting, are entitled to vote at the Grubhub Stockholder Meeting and any adjournment thereof. As of the close of business on the Grubhub record date, there were 93,347,555 Grubhub Shares outstanding, held by 19 holders of record. Each Grubhub Share is entitled to one vote.
A complete list of Grubhub Stockholders of record entitled to vote at the Grubhub Stockholder Meeting will be available for inspection at the principal place of business of Grubhub at 111 W. Washington Street, Suite 2100, Chicago, Illinois 60602 during regular business hours for a period of no less than 10 days before the Grubhub Stockholder Meeting. If Grubhub’s headquarters are closed for health and safety reasons related to COVID-19 during such period, the list of Grubhub Stockholders will be made available for inspection upon request via e-mail to IR@grubhub.com, subject to Grubhub’s satisfactory verification of stockholder status. The list of Grubhub Stockholders will also be made available online during the Grubhub Stockholder Meeting at the Grubhub meeting website.
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Q:
What is the deadline for voting my Grubhub Shares?
A:
If you hold Grubhub Shares as the Grubhub Stockholder of record, your vote by written proxy must be received before the polls close at the Grubhub Stockholder Meeting. The Internet and telephone voting facilities for eligible Grubhub Stockholders of record will close at 11:59 p.m. (Eastern Time), on 9 June 2021. Proxies that are mailed must be received prior to the Grubhub Stockholder Meeting. If you hold shares beneficially in “street name” with a broker, bank, trustee or other nominee, please follow the voting instructions provided by your broker, bank, trustee or other nominee.
Q:
Who may attend the Grubhub Stockholder Meeting?
A:
Attendance at the Grubhub Stockholder Meeting will be limited to those persons who were Grubhub Stockholders of record as of the Grubhub record date or hold a valid proxy for the Grubhub Stockholder Meeting. To attend online and participate in the Grubhub Stockholder Meeting, you will need to use the 16-digit control number found on your proxy card or voting instruction form to log into www.virtualshareholdermeeting.com/GRUB2021SM. You cannot attend the Grubhub Stockholder Meeting physically.
The Grubhub Stockholder Meeting will begin on 10 June 2021 at 8 a.m. (Central Time). Grubhub encourages you to access the Grubhub Stockholder Meeting shortly prior to the start time to allow time for online check-in. Grubhub has worked to offer the same participation opportunities as would be provided at an in-person meeting while further enhancing the online experience available to all Grubhub Stockholders regardless of their location. However, please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies. If you experience technical difficulties during the Grubhub Stockholder Meeting, you should call the technical support phone number provided when you log in to the Grubhub Stockholder Meeting.
Q:
What constitutes a quorum for the Grubhub Stockholder Meeting?
A:
A quorum of Grubhub Stockholders is necessary to hold a valid meeting. A majority of the Grubhub Shares outstanding on the Grubhub record date and entitled to vote on each matter considered at the Grubhub Stockholder Meeting, present via the Grubhub meeting website or represented by proxy, will constitute a quorum. If a quorum is not present, no business can be transacted at that time, and the meeting will be continued, adjourned or postponed to a later date.
A Grubhub Stockholder’s instruction to vote “against” a proposal or “abstain” from a proposal will be counted as present for purposes of determining quorum. Grubhub Shares held in “street name” will be counted as present for the purpose of determining the existing of quorum so long as the holder of such Grubhub Share has given their broker, bank, trustee or other nominee voting instructions on at least one of the proposals to be brought before the Grubhub Stockholder Meeting. The proposals for consideration at the Grubhub Stockholder Meeting are considered “non-routine” matters under NYSE rules, and, therefore, brokers, banks, trustees or other nominees are not permitted to vote on any of the matters to be considered at the Grubhub Stockholder Meeting if they have not received instructions from the applicable Grubhub Stockholder. As a result, a Grubhub Stockholder’s Grubhub Shares will not be counted as present for the purpose of determining the existence of a quorum if no instructions have been provided on how to vote on any such proposals. See “—What is a ‘broker non-vote’?” and “—What is an abstention and how will abstentions be treated?” each beginning on page 14 of this proxy/statement prospectus for an explanation of broker non-votes and abstentions. Grubhub Shares with respect to which the beneficial owner otherwise fails to vote will not be deemed present at the Grubhub Stockholder Meeting for the purpose of determining the presence of a quorum.
Subject to the provisions of the DGCL, at any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the original meeting. The Grubhub Stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Grubhub Stockholders to leave less than a quorum.
Q:
Who will bear the cost of soliciting votes for the Grubhub Stockholder Meeting?
A:
Just Eat Takeaway.com and Grubhub will each bear their own costs related to the Transaction, the retention of any information agent or other service provider in connection with the Transaction and the fulfillment of
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their obligations pursuant to the Merger Agreement in connection with this proxy statement/prospectus, including the obligation of Grubhub to cause the printing and mailing of this document. This proxy solicitation is being made by Grubhub on behalf of the Grubhub Board. Grubhub has hired Innisfree M&A Incorporated, a proxy solicitation firm, to assist in the solicitation of proxies, and will pay Innisfree M&A Incorporated a fee of approximately $30,000, plus certain costs associated with additional services, if required. In addition to this mailing, proxies may be solicited by Innisfree M&A Incorporated, directors, officers or employees of Just Eat Takeaway.com or Grubhub or their respective affiliates in person, by mail, by telephone or by electronic transmission. None of the directors, officers or employees of Just Eat Takeaway.com or Grubhub will be directly compensated for such services.
Q:
What is the difference between a “stockholder of record” and a “street name” holder?
A:
If your Grubhub Shares are registered directly in your name with Grubhub’s transfer agent, American Stock Transfer & Trust Company, LLC, then you are considered, with respect to those Grubhub Shares, a “stockholder of record.” If your Grubhub Shares are held in an account at a brokerage firm, bank, broker-dealer, trust or other similar organization, you are considered the beneficial owner of Grubhub Shares held in “street name.”
Q:
How do I vote if I am a Grubhub Stockholder of record?
A:
Grubhub Stockholders of record as of the Grubhub record date may have their Grubhub Shares voted by submitting a proxy or may vote at the Grubhub Stockholder Meeting by following the instructions and entering the control number provided on their proxy card. Grubhub recommends that Grubhub Stockholders entitled to vote submit a proxy by 11:59 p.m. (Eastern Time), on 9 June 2021, even if they plan to attend the Grubhub Stockholder Meeting.
If you are a Grubhub Stockholder of record, there are three ways to vote by proxy or you may vote at the Grubhub Stockholder Meeting:
By Internet: Grubhub Stockholders of record may submit their proxy over the Internet by following the instructions on the enclosed proxy card. Internet voting is available 24 hours a day and will be accessible until 11:59 p.m. (Eastern Time), on 9 June 2021. Grubhub Stockholders of record who submit a proxy via the Internet should NOT send in their proxy card by mail.
By Telephone: Grubhub Stockholders of record may submit their proxy by calling the toll-free number listed on the enclosed proxy card. Telephone voting is available 24 hours a day and will be accessible until 11:59 p.m. (Eastern Time), on 9 June 2021. Grubhub Stockholders of record who submit a proxy by telephone should NOT send in their proxy card by mail.
By Mail: Grubhub Stockholders of record may submit their proxy by properly completing, signing, dating and mailing the enclosed proxy card in the postage-paid envelope (if mailed in the United States) provided. Grubhub Stockholders of record who vote this way should mail the proxy card early enough so that it is received before the date of the Grubhub Stockholder Meeting.
At the Virtual Special Meeting: All Grubhub Stockholders of record may vote online during the Grubhub Stockholder Meeting via the Internet at www.virtualshareholdermeeting.com/GRUB2021SM. You may cast your vote electronically during the Grubhub Stockholder Meeting using the 16-digit control number found on your proxy card.
The Internet and telephone voting facilities for eligible Grubhub Stockholders of record will close at 11:59 p.m. (Eastern Time) on 9 June 2021. Proxies that are mailed must be received prior to the Grubhub Stockholder Meeting. The giving of a telephonic or Internet proxy will not affect your right to vote at the Grubhub Stockholder Meeting should you choose to attend. If you choose to attend the Grubhub Stockholder Meeting, you will have the ability to change your vote.
Q:
How do I vote if my Grubhub Shares are held in “street name”?
A:
If your Grubhub Shares are held in “street name” through a broker, bank, trustee or nominee, you will receive instructions on how to vote from your broker, bank, trustee or nominee. You must follow those instructions in order for your Grubhub Shares to be voted. If you hold your Grubhub Shares in “street name” and you have not received a voting instruction form, please contact the broker, bank, trustee or other
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nominee that holds your Grubhub Shares of record as soon as possible so that you can be provided with a voting instruction form. If your Grubhub Shares are not registered in your own name and you would like to vote your Grubhub Shares online at the Grubhub Stockholder Meeting, you must receive a voting instruction form with a 16-digit control number and obtain a valid “legal proxy” from the broker, bank, trustee or nominee that holds your Grubhub Shares giving you the right to vote the Grubhub Shares at the Grubhub Stockholder Meeting. If you do not have a control number, please contact your broker, bank, trustee or other nominee so that you can be provided with a control number.
Q:
Can I change my vote or revoke my proxy?
A:
If you are a Grubhub Stockholder of record, you may change your vote or revoke your proxy at any time prior to the final vote at the Grubhub Stockholder Meeting by:
granting a new proxy bearing a later date (which automatically revokes the earlier proxy) using any of the methods described above (and until the applicable deadline for each method);
providing written notice of revocation to Grubhub’s Secretary at Grubhub Inc., 111 W. Washington Street, Suite 2100, Chicago, Illinois 60602, prior to your proxy being exercised at the Grubhub Stockholder Meeting; or
attending and voting at the virtual Grubhub Stockholder Meeting.
Your most recent vote submitted by proxy card, Internet or telephone, or your vote during the Grubhub Stockholder Meeting, is the one that will be counted. Your attendance at the Grubhub Stockholder Meeting by itself will not automatically change your vote or revoke your proxy.
For Grubhub Shares you hold beneficially in “street name,” you may change your vote by submitting new voting instructions to your broker, bank, trustee, or nominee following the instructions they provided, or, if you have obtained a “legal proxy” from your broker, bank, trustee, or nominee giving you the right to vote your Grubhub Shares, by attending and voting at the Grubhub Stockholder Meeting.
Q:
What will happen if I return my proxy card without indicating how to vote?
A:
If you submit a proxy but do not indicate any voting instructions, the persons named as proxies will vote your Grubhub Shares “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal, in accordance with the recommendations of the Grubhub Board.
Q:
What happens if I transfer my Grubhub Shares before the Grubhub Stockholder Meeting?
A:
The Grubhub record date is earlier than the date of the Grubhub Stockholder Meeting and the expected date of Completion. If you transfer your Grubhub Shares after the Grubhub record date but before the Grubhub Stockholder Meeting, you will retain your right to vote at the Grubhub Stockholder Meeting. However, you will have transferred the right to receive the merger consideration in the Transaction. In order to receive the merger consideration, you must hold your Grubhub Shares through Completion.
Q:
What Grubhub Stockholder vote is required for the adoption of the Merger Agreement, and what happens if I abstain?
A:
Under Delaware law, adoption of the Merger Agreement requires the affirmative vote, in person (which in this case means via virtual attendance at the Grubhub Stockholder Meeting) or by proxy, of the holders of a majority of the outstanding Grubhub Shares entitled to vote thereon as of the Grubhub record date. Accordingly, an abstention or a broker non-vote or any other failure of a Grubhub Stockholder to vote will have the same effect as a vote “AGAINST” the Merger Agreement proposal.
Q:
What Grubhub Stockholder vote is required to approve the other matters to be considered at the Grubhub Stockholder Meeting, and what happens if I abstain?
A:
The following are the vote requirements for the other matters to be considered at the Grubhub Stockholder Meeting:
Non-Binding, Advisory Approval of Transaction-Related Named Executive Officer Compensation: Approval of the non-binding compensation proposal requires the affirmative vote of the holders of a
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majority of the votes properly cast at the Grubhub Stockholder Meeting by Grubhub Stockholders present via the Grubhub meeting website or represented by proxy and entitled to vote thereon as of the Grubhub record date. For purposes of the non-binding compensation proposal, “votes properly cast” means votes “FOR” or “AGAINST.” Abstentions, broker non-votes and any other failures to vote will have no effect on the outcome of the vote on the non-binding compensation proposal, assuming a quorum is present at the Grubhub Stockholder Meeting.
Adjournment of the Grubhub Stockholder Meeting: Approval of the adjournment proposal requires the affirmative vote of the holders of a majority of the votes properly cast at the Grubhub Stockholder Meeting by Grubhub Stockholders present via the Grubhub meeting website or represented by proxy and entitled to vote thereon as of the Grubhub record date. For purposes of the adjournment proposal, “votes properly cast” means votes “FOR” or “AGAINST.” Abstentions, broker non-votes and any other failures to vote will have no effect on the outcome of the vote on the adjournment proposal.
Q:
What is a “broker non-vote”?
A:
If you are a beneficial owner whose Grubhub Shares are held of record by a broker, you must instruct the broker how to vote your Grubhub Shares. Brokers, banks, trustees and other nominees who hold Grubhub Shares in “street name” typically have the authority to vote in their discretion on “routine” proposals when they have not received instructions on how to vote from the beneficial owner. However, brokers, banks, trustees and other nominees typically are not allowed to exercise their voting discretion on matters that are “non-routine” without specific instructions on how to vote from the beneficial owner. Under the current rules of the NYSE, the Merger Agreement proposal, the non-binding compensation proposal and the adjournment proposal are non-routine. Therefore, brokers, banks, trustees and other nominees do not have discretionary authority to vote on the Merger Agreement proposal, the non-binding compensation proposal or the adjournment proposal.
A broker non-vote with respect to Grubhub Shares occurs when (i) a Grubhub Share held by a broker, bank, trustee or other nominee is present or represented at a meeting of Grubhub Stockholders, (ii) the beneficial owner of such Grubhub Share has not instructed his, her or its broker, bank, trustee or other nominee on how to vote on a particular proposal and (iii) the broker, bank, trustee or other nominee does not have discretionary voting power on such proposal. Brokers, banks, trustees and other nominees do not have discretionary voting authority with respect to the Merger Agreement proposal, the non-binding compensation proposal or the adjournment proposal; therefore, if a beneficial owner of Grubhub Shares held in “street name” does not give voting instructions to the broker, bank, trustee or other nominee, then those Grubhub Shares will not be present via the Grubhub meeting website or represented by proxy at the Grubhub Stockholder Meeting because, as stated above, broker non-votes will not count toward quorum requirements. As a result, there will not be any broker non-votes at the Grubhub Stockholder Meeting.
Q:
What is an abstention and how will abstentions be treated?
A:
An “abstention” represents a stockholder’s affirmative choice to decline to vote on a proposal. Abstentions, though counted for the purposes of determining a quorum, will not be counted as votes cast and will have the same effect as a vote “AGAINST” the Merger Agreement proposal. Abstentions will have no effect on the outcome of the vote on the non-binding compensation proposal (assuming a quorum is present at the Grubhub Stockholder Meeting) or the vote on the adjournment proposal (regardless of whether a quorum is present at the Grubhub Stockholder Meeting).
Q:
Is my vote important?
A:
Yes, your vote is very important regardless of the number of Grubhub Shares you own. If you do not submit a proxy or vote at the virtual Grubhub Stockholder Meeting, it will be more difficult for Grubhub to obtain the necessary quorum to hold the meeting. In addition, the Transaction cannot be completed without the adoption of the Merger Agreement by holders of a majority of the outstanding Grubhub Shares entitled to vote thereon as of the Grubhub record date.
Whether or not you expect to attend the virtual Grubhub Stockholder Meeting, we urge you to submit a proxy as promptly as possible by (1) accessing the Internet website specified on the enclosed proxy card, (2) calling the toll-free number specified on the enclosed proxy card or (3) marking, signing, dating and
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returning the enclosed proxy card in the postage-paid envelope provided, so that your Grubhub Shares may be represented and voted at the Grubhub Stockholder Meeting. If your Grubhub Shares are held in the name of a nominee or intermediary, please follow the instructions on the enclosed voting instruction form furnished by the record holder.
The Grubhub Board recommends that Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal. See “Grubhub Proposal I: Adoption of the Merger Agreement—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board,” “Grubhub Proposal II: Non-Binding, Advisory Vote on Transaction-Related Named Executive Officer Compensation” and “Grubhub Proposal III: Adjournment of the Special Meeting” beginning on pages 88, 253 and 254, respectively, of this proxy statement/prospectus.
Q:
What do I do if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus, the proxy card or the voting instruction form. This can occur if you hold your Grubhub Shares in more than one brokerage account, if you hold Grubhub Shares directly as a record holder and also in “street name,” or otherwise through another record holder, and in certain other circumstances. If you receive more than one set of voting materials, please vote or return each set separately in order to ensure that all of your Grubhub Shares are voted.
Q:
How do I obtain the voting results from the Grubhub Stockholder Meeting?
A:
Preliminary voting results will be announced at the Grubhub Stockholder Meeting, and will be set forth in a press release that Grubhub intends to issue after the Grubhub Stockholder Meeting. The press release will be available on Grubhub’s website at www.investors.grubhub.com. Final voting results for the Grubhub Stockholder Meeting are expected to be published in a Current Report on Form 8-K filed with the SEC within four business days after the Grubhub Stockholder Meeting. A copy of this Current Report on Form 8-K will be available on Grubhub’s website after its filing with the SEC. The web address of Grubhub has been included as an inactive textual reference only. Grubhub’s website and the information contained therein or connected thereto are not intended to be incorporated into this proxy statement/prospectus.
Q:
What do I need to do now?
A:
After carefully reading and considering the information contained in and incorporated by reference into this proxy statement/prospectus, including its annexes, please submit your proxy as promptly as possible, so that your Grubhub Shares may be represented and voted at the Grubhub Stockholder Meeting. To vote your Grubhub Shares:
submit your proxy via the Internet or by telephone by following the instructions included on your enclosed proxy card;
sign, date, mark and return the enclosed proxy card in the accompanying postage-paid return envelope; or
attend the virtual Grubhub Stockholder Meeting via the Grubhub meeting website and vote electronically.
The deadline for voting by proxy over the Internet or by telephone for the Grubhub Stockholder Meeting is 11:59 p.m. (Eastern Time), on 9 June 2021. Proxies that are mailed must be received prior to the Grubhub Stockholder Meeting. If you hold Grubhub Shares in “street name,” please instruct your nominee or intermediary to vote your Grubhub Shares by following the instructions that the nominee or intermediary provides to you with these materials. Your nominee or intermediary will vote your Grubhub Shares for you only if you provide instructions to it on how to vote. Please refer to the voting instruction card used by your nominee or intermediary to see if you may submit voting instructions using the telephone or Internet.
Q:
Should I send in my Grubhub stock certificates now?
A:
No. If you hold your Grubhub Shares in certificated form, you should not send in your stock certificates at this time. After Completion, the exchange agent will send you a letter of transmittal and instructions for
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exchanging your Grubhub Shares for the merger consideration. See “Grubhub Proposal I: Adoption of the Merger Agreement—Exchange of Shares in the Mergers” beginning on page 118 of this proxy statement/prospectus.
Q:
Whom should I call with questions?
A:
If you have any questions about the mergers, the Transaction or the Grubhub Stockholder Meeting, or desire additional copies of this proxy statement/prospectus, proxy cards or voting instruction forms, you should contact:

Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
Stockholders May Call Toll-Free: (877) 717-3936
Banks & Brokers May Call Collect: (212) 750-5833
Q:
Where can I find more information about Just Eat Takeaway.com and Grubhub?
A:
You can find more information about Just Eat Takeaway.com and Grubhub from the various sources described under “Where You Can Find More Information” beginning on page 320 of this proxy statement/prospectus.
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SUMMARY
This summary highlights selected information from this proxy statement/prospectus. It may not contain all of the information that is important to you. You are urged to read this entire proxy statement/prospectus and the other documents referred to or incorporated by reference into this proxy statement/prospectus in order to fully understand the Transaction and the Merger Agreement. See “Where You Can Find More Information” beginning on page 320 of this proxy statement/prospectus. Each item in this summary refers to the beginning page of this proxy statement/prospectus on which that subject is discussed in more detail.
The Companies (See page 139)
Just Eat Takeaway.com N.V.
Just Eat Takeaway.com N.V. (“Just Eat Takeaway.com”) is the parent company of the Just Eat Takeaway.com Group, a leading global online food delivery marketplace outside of China in terms of GMV, connecting millions of consumers in the United Kingdom, Germany, Canada, the Netherlands and the Rest of the World, composed of Australia, Austria, Belgium, Bulgaria, Denmark, France, Ireland, Israel, Italy, Luxembourg, New Zealand, Norway, Poland, Portugal, Romania, Spain and Switzerland, with approximately 244,000 local restaurants listed on its platforms as of 31 December 2020. While the Just Eat Takeaway.com Group’s core business model is to collaborate with restaurants that perform their own delivery, the Just Eat Takeaway.com Group also provides proprietary restaurant delivery services for restaurants that do not deliver themselves.
The Just Eat Takeaway.com Group’s operations commenced in 2000 with one of the world’s first online food delivery marketplaces, www.thuisbezorgd.nl, in the Netherlands and expanded into over 40 cities in the Netherlands by 2007. Beginning in 2007, the Just Eat Takeaway.com Group began to expand into new geographical markets through the organic growth of its then-existing services, entering the market for online food delivery in Belgium and Germany in that year, followed by additional markets including Austria (2008) and Switzerland (2014). In 2012, the Just Eat Takeaway.com Group engaged in its first external equity fundraising round primarily in order to finance this continued growth and strengthen its activities in the Netherlands and Belgium. In 2016, the Just Eat Takeaway.com Group started offering its own logistical food delivery services in select cities in strategic markets to target those restaurants that do not currently offer their own logistical food delivery services (“Delivery”).
In addition to organic geographical expansion and growth, acquisitions have facilitated the geographical expansion and enhanced the overall scale of the Just Eat Takeaway.com Group’s business, in particular the acquisition of Delivery Hero Germany GmbH and Foodora GmbH, which operated the Lieferheld, Pizza.de and Foodora brands in Germany, from Delivery Hero in 2019 and the combination with Just Eat in 2020. These transactions supported the strategic aims both in individual markets and by acquiring or enhancing positions in certain of the world’s largest markets in food delivery, which have been used to further support investment across the whole of the Just Eat Takeaway.com Group. The Just Eat Takeaway.com Group further believes in the rapid integration of its acquired businesses and their operations within the Just Eat Takeaway.com Group organization, implementing the “One Company, One Brand, One IT Platform” approach, which it believes is the most efficient and effective way to operate an online food delivery business.
Just Eat Takeaway.com Shares are listed on the LSE under the trading symbol “JET.” Just Eat Takeaway.com Shares also have a listing on Euronext Amsterdam under the trading symbol “TKWY.” In connection with the Just Eat Acquisition, Just Eat Takeaway.com previously announced its intention to apply for delisting of the Just Eat Takeaway.com Shares from Euronext Amsterdam, such delisting to become effective as soon as possible under applicable Dutch law and the rules, regulations and announcements of Euronext Amsterdam N.V. However, in light of the enlarged and more globalized investor base that Just Eat Takeaway.com will have following Completion, Just Eat Takeaway.com is conducting a review to determine the optimal listing venues for its long term future and intends to delay any decision on the structure of its listing venues whilst it completes this review. Therefore, Just Eat Takeaway.com no longer intends to delist the Just Eat Takeaway.com Shares from Euronext Amsterdam as soon as possible, and Just Eat Takeaway.com will remain listed on Euronext Amsterdam until a further decision has been made.
Just Eat Takeaway.com Shares trade in the form of unsponsored ADRs in the United States. The currently outstanding Just Eat Takeaway.com ADRs are traded over the counter with certain depositary banks. None of Just Eat Takeaway.com’s securities are currently listed on any U.S. securities exchange or registered pursuant to the securities laws of the United States.
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Just Eat Takeaway.com’s address is at Oosterdoksstraat 80, NL-1011 DK Amsterdam, the Netherlands, and its telephone number is +31 (0)20 210 7000. Just Eat Takeaway.com’s website address is justeattakeaway.com. The web address of Just Eat Takeaway.com has been included as an inactive textual reference only. Just Eat Takeaway.com’s website and the information contained therein or connected thereto are not intended to be incorporated by reference into this proxy statement/prospectus.
Checkers Merger Sub I, Inc.
Checkers Merger Sub I, Inc. (“Merger Sub I”) is a Delaware corporation and a wholly owned subsidiary of Just Eat Takeaway.com. Merger Sub I was incorporated on 9 June 2020, solely for the purpose of effecting the Transaction. It has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the transactions contemplated by the Merger Agreement. Merger Sub I’s principal executive offices, as well as its registered office in the State of Delaware, are located at 251 Little Falls Drive, Wilmington, DE 19808, County of New Castle, State of Delaware, United States.
Checkers Merger Sub II, Inc.
Checkers Merger Sub II, Inc. (“Merger Sub II”) is a Delaware corporation and a wholly owned subsidiary of Just Eat Takeaway.com. Merger Sub II was incorporated on 9 June 2020, solely for the purpose of effecting the Transaction. It has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the transactions contemplated by the Merger Agreement. Merger Sub II’s principal executive offices, as well as its registered office in the State of Delaware, are located at 251 Little Falls Drive, Wilmington, DE 19808, County of New Castle, State of Delaware, United States.
Grubhub Inc.
Grubhub Inc. (“Grubhub”) is the parent company of the Grubhub Group, a leading online and mobile platform for restaurant pick-up and delivery orders in the United States (as measured by the data analytics firm Second Measure), which Grubhub refers to collectively as takeout. Grubhub connects more than 300,000 restaurants, of which more than 265,000 are partnered restaurants, with hungry diners in thousands of cities across the United States and is focused on transforming the takeout experience. For restaurants, Grubhub generates higher margin takeout orders at full menu prices. The Grubhub platform empowers diners with a “direct line” into the kitchen, avoiding the inefficiencies, inaccuracies and frustrations associated with paper menus and phone orders. In many markets, Grubhub also provides delivery services to restaurants on its platform that do not have their own delivery options. As of 31 December 2020, Grubhub was providing delivery services in more than 460 core-based statistical areas, including some of the largest across the United States.
Grubhub was founded in 2004 and, on 8 August 2013, expanded through the merger of Grubhub with Seamless Holdings Corporation and Seamless North America, LLC, which enabled Grubhub to expand its marketplace, connecting diners in the geographies it serves with more restaurants, and also to eliminate duplicative expenses and take advantage of a complementary geographic footprint. Grubhub’s growth strategy has continued to include the pursuit of expansion opportunities in existing and new markets, as well as in core and adjacent categories, through strategic acquisitions and partnerships. Grubhub’s recent acquisitions include its 2017 acquisitions of Eat24, LLC, a provider of online and mobile food-ordering services for U.S. restaurants, and substantially all assets and certain specified liabilities of A&D Network Solutions, Inc. and Dashed, Inc., a food-ordering company headquartered in Boston, and its 2018 acquisitions of Tapingo Ltd., a platform for campus food ordering with direct integration into college meal plans and point of sale systems, SCVNGR, Inc. d/b/a LevelUp, a provider of mobile diner engagement and payment solutions for national and regional restaurant brands, and OrderUp, Inc., an online mobile food-ordering company.
Grubhub’s primary products and services include access to its platform through mobile applications and websites; a corporate program that helps businesses address inefficiencies in food ordering and associated billing; delivery services offered to restaurants in many of its markets; Grubhub for Restaurants, a responsive web application that allows restaurants to electronically receive and display orders and facilitates order management; technology and fulfillment services including order transmission, customer relationship management tools such as loyalty programs, fully integrated online and in-store ordering solutions, customer support, and functional analytics; point of sale integrations for restaurants and turnkey website and mobile application design and hosting services for restaurants in its network.
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Grubhub was incorporated in the state of Delaware on 20 May 2013, and its common stock is listed on the NYSE under the trading symbol “GRUB.” Grubhub’s principal executive offices are located at 111 W. Washington Street, Suite 2100, Chicago, Illinois, and its telephone number is (877) 585-7878. Grubhub’s website is www.grubhub.com. The web address of Grubhub has been included as an inactive textual reference only. Grubhub’s website and the information contained therein or connected thereto are not intended to be incorporated by reference into this proxy statement/prospectus.
Special Meeting (See page 141)
General
Due to health and safety concerns resulting from the COVID-19 pandemic, the Grubhub Stockholder Meeting will be held exclusively in a virtual format at www.virtualshareholdermeeting.com/GRUB2021SM, on 10 June 2021, at 8 a.m. (Central Time). At the Grubhub Stockholder Meeting, Grubhub Stockholders will be asked to vote on the approval of the Merger Agreement proposal. In addition, Grubhub Stockholders will be asked to vote on the approval of the non-binding compensation proposal and on the approval of the adjournment proposal.
The approval of the Merger Agreement proposal by Grubhub Stockholders is a condition to the obligations of Just Eat Takeaway.com and Grubhub to complete the Transaction. The approval of the non-binding compensation proposal is not a condition to the obligations of Just Eat Takeaway.com or Grubhub to complete the Transaction. The approval of the adjournment proposal also is not a condition to the obligations of Just Eat Takeaway.com or Grubhub to complete the Transaction.
Record Date
The Grubhub Board has fixed the close of business on 27 April 2021 (“the Grubhub record date”) for determination of the Grubhub Stockholders entitled to vote at the Grubhub Stockholder Meeting and any adjournment or postponement thereof. Only Grubhub Stockholders of record as of the Grubhub record date are entitled to receive notice of, and to vote at, the Grubhub Stockholder Meeting or any adjournment or postponement thereof.
As of the Grubhub record date, there were 93,347,555 Grubhub Shares outstanding and entitled to vote at the Grubhub Stockholder Meeting, held by 19 holders of record. No Grubhub Shares are owned, directly or indirectly, by the Just Eat Takeaway.com Group or any of Grubhub’s subsidiaries. Each Grubhub Share is entitled to one vote. The number of Grubhub Shares you own is reflected on your proxy card.
Quorum
A quorum of Grubhub Stockholders is necessary to hold a valid meeting. A majority of the Grubhub Shares outstanding on the Grubhub record date and entitled to vote at the Grubhub Stockholder Meeting, present via the Grubhub meeting website or represented by proxy at the Grubhub Stockholder Meeting, will constitute a quorum. Abstentions will be counted in determining the existence of a quorum. Grubhub Shares held in street name will be counted as present for the purpose of determining the existing of quorum so long as the holder of such Grubhub Share has given their broker, bank, trustee or other nominee voting instructions on at least one of the proposals to be brought before the Grubhub Stockholder Meeting. The proposals for consideration at the Grubhub Stockholder Meeting are considered “non-routine” matters under NYSE rules, and, therefore, brokers, banks, trustees or other nominees are not permitted to vote on any of the matters to be considered at the Grubhub Stockholder Meeting if they have not received instructions from the applicable Grubhub Stockholder. As a result, a Grubhub Stockholder’s Grubhub Shares will not be counted as present for the purposes of determining the existence of a quorum if no instructions have been provided on how to vote on any such proposals.
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Required Vote
Item
 
Vote Necessary*
Grubhub Proposal I
Adoption of the Merger Agreement
Approval requires the affirmative vote (in person (which in this case means via virtual attendance at the Grubhub Stockholder Meeting) or by proxy) of the holders of a majority of all of the outstanding Grubhub Shares entitled to vote thereon as of the Grubhub record date.
 
 
 
Grubhub Proposal II
Non-Binding, Advisory Vote on Transaction-Related Named Executive Officer Compensation
Approval requires the affirmative vote of the holders of a majority of the votes properly cast by Grubhub Stockholders present via the Grubhub meeting website or represented by proxy and entitled to vote thereon as of the Grubhub record date.
 
 
 
Grubhub Proposal III
Adjournment of the Special Meeting
Approval requires the affirmative vote of the holders of a majority of the votes properly cast by Grubhub Stockholders present via the Grubhub meeting website or represented by proxy and entitled to vote thereon as of the Grubhub record date.
*
Under the rules of the NYSE, if you hold your Grubhub Shares in street name, your nominee or intermediary may not vote your Grubhub Shares without instructions from you. Without your voting instructions, your Grubhub Shares will not be represented by proxy at the Grubhub Stockholder Meeting and, absent your virtual attendance at the Grubhub Stockholder Meeting, will have the same effect as a vote “AGAINST” Grubhub Proposal I. Abstentions from voting will also have the same effect as a vote “AGAINST” Grubhub Proposal I. A failure to provide voting instructions or abstentions will have no effect on Grubhub Proposal II or Grubhub Proposal III.
Share Ownership of and Voting by Grubhub Directors and Executive Officers
At the close of business on the Grubhub record date, Grubhub's directors and executive officers had the right to vote 196,720 Grubhub Shares at the Grubhub Stockholder Meeting, collectively representing approximately 0.2% of the Grubhub Shares entitled to vote at the Grubhub Stockholder Meeting. Grubhub currently expects that Grubhub's directors and executive officers will vote their Grubhub Shares “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal, although they have no obligation to do so.
The Mergers and the Merger Agreement (See pages 148 and 147)
The Merger Agreement provides that, on the terms and subject to the conditions in the Merger Agreement, and in accordance with the DGCL, Merger Sub I will be merged with and into Grubhub (the “initial merger”), with Grubhub continuing as the surviving company in the initial 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 in the subsequent merger (the “final surviving company”). The Transaction will not be completed without the adoption of the Merger Agreement by Grubhub Stockholders.
A copy of the Merger Agreement is attached as Annexes A-1, A-2 and A-3 to this proxy statement/prospectus. You are urged to read the Merger Agreement in its entirety because it is the legal document that governs the Transaction. See “Grubhub Proposal I: Adoption of the Merger Agreement” and “The Merger Agreement” beginning on pages 76 and 147, respectively, of this proxy statement/prospectus.
Assuming the satisfaction (or, to the extent legally permissible, waiver) of the conditions to Just Eat Takeaway.com’s and Grubhub’s obligations to complete the Transaction, Just Eat Takeaway.com and Grubhub expect the Transaction to be completed by the end of the second quarter of 2021. However, the Transaction is
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subject to various conditions, and it is possible that factors outside the control of Just Eat Takeaway.com and Grubhub could result in the Transaction being completed at a later time, or not at all. An end date of 31 December 2021, after which the parties may terminate the Merger Agreement, has been set for the first effective time.
What Grubhub Stockholders Will Receive in the Transaction (See page 4)
If the initial merger is completed, each Grubhub Share (other than any Grubhub Shares owned by Grubhub, Just Eat Takeaway.com, Merger Sub I, Merger Sub II or any other direct or indirect wholly owned subsidiary of Just Eat Takeaway.com) automatically will be canceled and converted into the right to receive consideration consisting of (1) New Just Eat Takeaway.com ADSs representing 0.6710 Just Eat Takeaway.com Shares (the “merger consideration”), plus (2) cash in lieu of fractional New Just Eat Takeaway.com ADSs, plus (3) any dividends or other distributions to which such holder is entitled pursuant to the Merger Agreement, and otherwise subject to adjustments to prevent dilution in accordance with the Merger Agreement. Each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. For the avoidance of doubt, no fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs.
Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €98.60 and the Euro-Dollar exchange rate of 1.13585, in each case, on 9 June 2020, the last trading day of the Just Eat Takeaway.com Shares before the public announcement of the Merger Agreement, the merger consideration represented approximately $75.15 in value per Grubhub Share. Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €92.08 and the Euro-Dollar exchange rate of 1.2036, in each case, on 20 April 2021, the most recent practicable trading day prior to the date of this proxy statement/prospectus, the merger consideration represented approximately $74.37 in value for each Grubhub Share. Because the Merger Agreement provides for a fixed number of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares underlying those New Just Eat Takeaway.com ADSs to be issued as part of the consideration payable in exchange for each Grubhub Share, the value of the merger consideration that Grubhub Stockholders will receive will depend on the market price of New Just Eat Takeaway.com Shares underlying such New Just Eat Takeaway.com ADSs and the Euro-Dollar exchange rate at the time the Transaction is completed. As a result, the value of the merger consideration that Grubhub Stockholders will receive upon Completion could be greater than, less than or the same as the value of the merger consideration on the date of this proxy statement/prospectus or at the time of the Grubhub Stockholder Meeting.
Just Eat Takeaway.com’s Purposes and Reasons for the Transaction (See page 87)
For the factors considered by the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board in approving the Merger Agreement, see “Grubhub Proposal I: Adoption of the Merger Agreement—Just Eat Takeaway.com’s Purposes and Reasons for the Transaction” beginning on page 87 of this proxy statement/prospectus.
Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board (See page 88)
At a meeting on 10 June 2020, with the assistance of its legal and financial advisors, the Grubhub Board evaluated the Merger Agreement and the transactions contemplated thereby, including the Transaction, and (i) determined that it was fair to and in the best interest of Grubhub and the Grubhub Stockholders, and declared it advisable, that Grubhub enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Transaction; (ii) adopted the Merger Agreement and approved the execution, delivery and performance by Grubhub of the Merger Agreement and the transactions contemplated thereby, including the Transaction; (iii) resolved to recommend that the Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal; and (iv) directed that the Merger Agreement be submitted to the Grubhub Stockholders for adoption.
The Grubhub Board recommends that Grubhub Stockholders vote “FOR” the Merger Agreement proposal. For the factors considered by the Grubhub Board in reaching this decision, see “Grubhub Proposal I: Adoption of the Merger Agreement—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board” beginning on page 88 of this proxy statement/prospectus for a more detailed discussion of the recommendation.
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In addition, the Grubhub Board recommends that Grubhub Stockholders vote “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal. See “Grubhub Proposal II: Non-Binding, Advisory Vote on Transaction-Related Named Executive Officer Compensation” and “Grubhub Proposal III: Adjournment of the Special Meeting” beginning on pages 253 and 254, respectively, of this proxy statement/prospectus for a more detailed discussion of the recommendation.
Opinion of Grubhub’s Financial Advisor (See page 94)
Grubhub retained Evercore as financial advisor to the Grubhub Board in connection with the Transaction. In connection with this engagement, the Grubhub Board requested that Evercore deliver the opinion described below.
Opinion of Grubhub’s Financial Advisor
In February 2020, Grubhub retained Evercore to act as financial advisor to Grubhub and the Grubhub Board in connection with Grubhub’s preparation for potential shareholder activism and to provide strategic and financial advice and assistance in connection with a potential merger or sale of all or a majority of the equity, business or assets of Grubhub. As part of this engagement, Grubhub requested that Evercore evaluate the fairness, from a financial point of view, of the exchange ratio pursuant to the Merger Agreement to the holders of Grubhub Shares, other than any Grubhub Shares owned by Grubhub as treasury stock and any Grubhub Shares owned by Just Eat Takeaway.com, Merger Sub I, Merger Sub II or any other direct or indirect wholly owned subsidiary of Just Eat Takeaway.com (“excluded shares”).
At a meeting of the Grubhub Board held on 10 June 2020, Evercore rendered to the Grubhub Board its opinion to the effect that, as of that date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the exchange ratio pursuant to the Merger Agreement was fair, from a financial point of view, to the holders of Grubhub Shares, other than excluded shares.
The full text of the written opinion of Evercore, dated 10 June 2020, which sets forth, among other things, the procedures followed, assumptions made, matters considered and qualifications and limitations on the scope of review undertaken in rendering its opinion, is attached as Annex C to this proxy statement/prospectus and is incorporated herein by reference. Grubhub encourages you to read Evercore’s opinion carefully and in its entirety. Evercore’s opinion was addressed to, and provided for the information and benefit of, the Grubhub Board (in its capacity as such) in connection with its evaluation of the Transaction. The opinion does not constitute a recommendation to the Grubhub Board or to any other persons in respect of the Transaction, including as to how any holder of Grubhub Shares should vote or act in respect of the Transaction. Evercore’s opinion does not address the relative merits of the Transaction as compared to other business or financial strategies that might be available to Grubhub, nor does it address the underlying business decision of Grubhub to engage in the Transaction.
Interests of Certain Grubhub Directors and Executive Officers in the Transaction (See page 120)
In considering the recommendation of the Grubhub Board with respect to the Merger Agreement and the Transaction, you should be aware that Grubhub’s directors and executive officers have economic interests in the Transaction that are different from, or in addition to, those of Grubhub Stockholders generally. These interests may create potential conflicts of interest. The Grubhub Board was aware of and considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and the Transaction, and in reaching both its determination that the Transaction is in the best interest of Grubhub and its stockholders, and its decision to approve and declare advisable the Merger Agreement and the Transaction. These material interests include:
the receipt of payments and benefits by executive officers under certain employment arrangements upon a termination without “cause” or for “good reason” (as such terms are defined in “Grubhub Proposal I: Adoption Of The Merger Agreement—Treatment of Grubhub Equity Awards—Potential Payments in Connection with the Transaction—Executive Severance Plan” beginning on page 122 of this proxy statement/prospectus) in connection with or following the Transaction;
the accelerated vesting of certain Grubhub equity awards upon a termination without “cause” or for “good reason” in connection with or following the Transaction;
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continued indemnification rights in favor of directors and officers of Grubhub; and
Just Eat Takeaway.com’s agreement to (i) nominate Messrs. Fisher and Frink for appointment to the Just Eat Takeaway.com Supervisory Board, (ii) nominate Mr. Maloney for appointment to the Just Eat Takeaway.com Management Board and (iii) propose the approval of a supplement to Just Eat Takeaway.com’s remuneration policy for the Just Eat Takeaway.com Management Board intended to enable Just Eat Takeaway.com to provide Mr. Maloney with a remuneration package generally consistent with his remuneration as chief executive officer of Grubhub (though this supplement was not approved by Just Eat Takeaway.com Shareholders at the Extraordinary General Meeting held on 7 October 2020; obtaining such approval is not a condition to Completion and, therefore, the failure to approve the supplement does not affect if and when Completion occurs).
See “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” and “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Outstanding Equity Awards for Grubhub’s Directors and Executive Officers” beginning on pages 120 and 121, respectively, of this proxy statement/prospectus.
Just Eat Takeaway.com Supervisory Board and Just Eat Takeaway.com Management Board Following the Transaction (See page 105)
Pursuant to the Merger Agreement, Just Eat Takeaway.com will take all actions necessary to cause (i) the size of the Just Eat Takeaway.com Supervisory Board to be increased by two Just Eat Takeaway.com Supervisory Directors, to be selected by Grubhub, to be appointed as members of the Just Eat Takeaway.com Supervisory Board upon the first effective time (the “Grubhub Supervisory Board nominees”) and (ii) the size of the Just Eat Takeaway.com Management Board to be increased by one Just Eat Takeaway.com Managing Director, selected by Grubhub, to be appointed as member of the Just Eat Takeaway.com Management Board upon the first effective time (the “Grubhub Management Board nominee”), in each case, subject to applicable law, obtaining the necessary approvals by the Just Eat Takeaway.com Shareholders of the nomination of the Grubhub Supervisory Board nominees or the Grubhub Management Board nominee, as applicable, and continued service of the Grubhub Supervisory Board nominees or the Grubhub Management Board nominee, as applicable, as directors on the Grubhub Board immediately prior to Completion, and provided that Just Eat Takeaway.com will not be required to take any actions that would result in the resignation of members from, or the appointment of any persons other than the Grubhub Supervisory Board nominees and the Grubhub Management Board nominee to, the Just Eat Takeaway.com Supervisory Board or the Just Eat Takeaway.com Management Board, as applicable. Grubhub has selected Matthew Maloney to be the Grubhub Management Board nominee and Lloyd Frink and David Fisher to be the Grubhub Supervisory Board nominees. On 7 October 2020, the Just Eat Takeaway.com Shareholders adopted the necessary resolutions for the appointment of the Grubhub Supervisory Board nominees to the Just Eat Takeaway.com Supervisory Board and the appointment of the Grubhub Management Board nominee to the Just Eat Takeaway.com Management Board, in each case effective upon Completion and for a term until the end of Just Eat Takeaway.com’s annual General Meeting held in 2021. At Just Eat Takeaway.com’s annual General Meeting for 2021, which is expected to be held on 12 May 2021, it is proposed that each of Messrs. Frink and Fisher be re-appointed as members of Just Eat Takeaway.com’s Supervisory Board and that Mr. Maloney be re-appointed as a member of Just Eat Takeaway.com’s Management Board, in each case effective upon Completion and for a term until the end of Just Eat Takeaway.com’s annual General Meeting to be held in 2022. See “Grubhub Proposal I: Adoption of the Merger Agreement—Just Eat Takeaway.com Supervisory Board and Just Eat Takeaway.com Management Board Following the Transaction” on page 105 of this proxy statement/prospectus.
Regulatory Approvals for the Mergers (See page 106)
Completion is conditioned upon the expiration or termination of the applicable waiting period under the HSR Act (the “HSR Condition”), satisfaction of the condition relating to the UK Competition and Markets Authority (“CMA”) (the “CMA Condition”) and receipt of written notification from CFIUS indicating the Transaction is not subject to review or such review has concluded without unresolved national security concerns or, if CFIUS has referred review of the Transaction to the President of the United States, receipt of notice from the President of the United States of their determination not to suspend or prohibit the Transaction or expiration of the applicable waiting period without any determination by the President of the United States.
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Pursuant to the requirements of the HSR Act, Just Eat Takeaway.com and Grubhub filed Notification and Report Forms with respect to the Transaction with the FTC and DOJ on 24 June 2020 and requested early termination of the HSR Act waiting period. The FTC granted early termination of the HSR Act waiting period on 7 July 2020, thereby satisfying the HSR Condition. On 24 June 2020, Just Eat Takeaway.com filed a briefing paper with the CMA. On 2 July 2020, in response to the briefing paper, the CMA indicated that it had no further questions as of such date regarding the Transaction, thereby satisfying the CMA Condition. On 21 July 2020, Just Eat Takeaway.com and Grubhub filed the joint voluntary notice with CFIUS. Approval from CFIUS was received on 3 September 2020. As a result of the foregoing, the Conditions related to antitrust and CFIUS approvals required as part of the Conditions have now been satisfied.
See “Grubhub Proposal I: Adoption of the Merger Agreement—Regulatory Approvals for the Mergers” beginning on page 106 of this proxy statement/prospectus.
Material U.S. Federal Income Tax Consequences (See page 107)
Grubhub has received an opinion from Kirkland & Ellis LLP to the effect that the Transaction (1) will qualify as a “reorganization” within the meaning of Section 368(a)(1)(A) and Section 368(a)(2)(D) of the Code and (2) will not result in gain being recognized under Section 367(a)(1) of the Code (other than for any Grubhub Stockholder that would be a “five-percent transferee shareholder” (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Just Eat Takeaway.com following the Transaction that does not enter into a five year gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8(c)). If the Transaction so qualifies, and provided, as described below, that the fair market value of Just Eat Takeaway.com, at the time of the Transaction, equals or exceeds the fair market value of Grubhub, as specially determined for purposes of Section 367(a) of the Code, then the Transaction will have the following U.S. federal income tax consequences to you if you are a U.S. holder:
The exchange of Grubhub Shares for New Just Eat Takeaway.com ADSs in the Transaction will not result in the recognition of any gain or loss with respect to your Grubhub Shares (except with respect to cash received in lieu of a fractional New Just Eat Takeaway.com ADS, as discussed below).
The aggregate tax basis of the New Just Eat Takeaway.com ADSs (including any fractional New Just Eat Takeaway.com ADS deemed received and redeemed or sold as discussed below) received by you in the Transaction will be the same as the aggregate tax basis of the Grubhub Shares surrendered in exchange therefor.
The holding period for New Just Eat Takeaway.com ADSs (including a fractional New Just Eat Takeaway.com ADS deemed received and redeemed or sold as discussed below) that you receive in the Transaction will include the holding period of the Grubhub Shares you exchanged for such New Just Eat Takeaway.com ADSs.
Because Just Eat Takeaway.com will not issue any fractional New Just Eat Takeaway.com ADSs in the Transaction (for avoidance of doubt, other than any fractional shares deemed to be issued and then redeemed or sold), if you exchange Grubhub Shares in the Transaction and would otherwise have received a fraction of a New Just Eat Takeaway.com ADS, you will receive cash. In such a case, you will be treated as having received a fractional share and having received such cash in redemption of the fractional share. The amount of any capital gain or loss you recognize will equal the amount of cash received with respect to the fractional share less the ratable portion of the tax basis of the Grubhub Shares surrendered that is allocated to the fractional share. Capital gain or loss will generally be long-term capital gain or loss if your holding period in the Grubhub Shares is more than one year on the date of Completion. The deductibility of capital losses is subject to limitations.
If you have differing bases or holding periods in respect of your Grubhub Shares, you must determine the bases and holding periods in the New Just Eat Takeaway.com ADSs received in the Transaction separately for each identifiable block (that is, stock of the same class acquired at the same time for the same price) of Grubhub Shares you exchange.
See “Grubhub Proposal I: Adoption of the Merger Agreement—Material U.S. Federal Income Tax Consequences” beginning on page 107 of this proxy statement/prospectus.
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Material Dutch Tax Consequences (See page 112)
Grubhub Stockholders who exchange their Grubhub Shares for New Just Eat Takeaway.com ADSs should read “Grubhub Proposal I: Adoption of the Merger Agreement—Material Dutch Tax Consequences” beginning on page 112 of this proxy statement/prospectus for a discussion of the material Dutch tax consequences of the Transaction and the holding and disposal of the New Just Eat Takeaway.com ADSs and Just Eat Takeaway.com Shares following the mergers. The holders of New Just Eat Takeaway.com ADSs should consult their own tax advisors to determine the tax consequences applicable to them (including the application and effect of any local, income and other tax laws) of the ownership and disposition of New Just Eat Takeaway.com ADSs and Just Eat Takeaway.com Shares.
Accounting Treatment (See page 118)
The Transaction will be accounted for as a business combination using the acquisition method of accounting in accordance with IFRS 3, Business Combinations (“IFRS 3”). IFRS requires that one of the two companies in the Transaction be designated as the acquirer for accounting purposes based on the evidence available. Just Eat Takeaway.com will be treated as the acquiring entity for accounting purposes. In identifying Just Eat Takeaway.com as the acquiring entity for accounting purposes, Just Eat Takeaway.com and Grubhub took into account (i) the background of the Transaction, (ii) the Merger Agreement, (iii) the anticipated share ownership and voting rights of the Enlarged Group, (iv) the intended corporate governance structure of the Enlarged Group, (v) the designation of certain senior management positions, and (vi) the relative market values, size, and profitability of the combining companies. In assessing the size of each of the companies, Just Eat Takeaway.com and Grubhub management evaluated various metrics, including, but not limited to, revenue, loss before taxation, total assets and market capitalization. No single factor was the sole determinant in the overall conclusion that Just Eat Takeaway.com is the acquirer for accounting purposes; rather, all factors were considered in arriving at such conclusion. Accordingly, Just Eat Takeaway.com will, in accordance with the fair value concepts defined in IFRS 13, Fair Value Measurement (“IFRS 13”), record assets acquired, including identifiable intangible assets, and liabilities assumed from the Grubhub Group at their respective fair values as of the acquisition date, with limited exceptions to this recognition and measurement principle. Any excess of the purchase consideration over the fair value of identifiable net assets acquired is recognized as goodwill. See “Grubhub Proposal I: Adoption of the Merger Agreement—Accounting Treatment” beginning on page 118 of this proxy statement/prospectus.
Treatment of Grubhub Equity Awards (See page 119)
In connection with the Transaction, each option that represents the right to acquire Grubhub Shares (each, a “Grubhub option”) that is outstanding immediately prior to the first effective time, whether or not then vested or exercisable, will, at the first effective time, be converted into an option to acquire Just Eat Takeaway.com ADSs (each, an “assumed option”). The number of Just Eat Takeaway.com ADSs underlying each assumed option will equal the product of (i) the number of Grubhub Shares subject to such Grubhub option as of immediately prior to the first effective time and (ii) the exchange ratio divided by the ADS ratio, rounded down to the nearest number of whole Just Eat Takeaway.com ADSs. The exercise price per share of each assumed option will be equal to (x) the exercise price per share of the corresponding Grubhub option divided by (y) the exchange ratio divided by the ADS ratio, rounded up to the nearest whole cent. Each assumed option will otherwise be subject to the other terms and conditions that applied to the corresponding Grubhub option immediately prior to the first effective time.
In addition, each restricted stock unit award with respect to Grubhub Shares (each, a “Grubhub RSU”) that is outstanding immediately prior to the first effective time, will, at the first effective time, be converted into a restricted stock unit with respect to a number of Just Eat Takeaway.com ADSs (each, an “assumed RSU”) equal to the product of (i) the number of Grubhub Shares subject to such Grubhub RSU immediately prior to the first effective time and (ii) the exchange ratio divided by the ADS ratio, rounded to the nearest number of whole Just Eat Takeaway.com ADSs. Each assumed RSU will otherwise be subject to the other terms and conditions that applied to the corresponding Grubhub RSU immediately prior to the first effective time.
Just Eat Takeaway.com may substitute Just Eat Takeaway.com Shares for Just Eat Takeaway.com ADSs as the security underlying the assumed options or assumed RSUs. In such case, the number of Just Eat Takeaway.com Shares underlying such assumed options or assumed RSUs will equal the product of (i) the number of Grubhub Shares subject to such Grubhub option or Gruhhub RSU as of immediately prior to the first
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effective time and (ii) the exchange ratio, rounded down to the nearest number of whole Just Eat Takeaway.com Shares in the case of assumed options or rounded to the nearest number of whole Just Eat Takeaway.com Shares in the case of assumed RSUs, and the exercise price per share of each assumed option will be equal to (x) the exercise price per share of the corresponding Grubhub option divided by (y) the exchange ratio, rounded up to the nearest whole cent. Upon the exercise of an assumed option or settlement of an assumed RSU, the Just Eat Takeaway.com Shares underlying such assumed options or assumed RSUs, as applicable, may be deposited in the STAK. The STAK will hold such Just Eat Takeaway.com Shares on behalf of the former holder of the assumed option or assumed RSU, as applicable, and will exercise all voting rights with respect to such Just Eat Takeaway.com Shares. The former holder will receive one STAK depository receipt for each deposited Just Eat Takeaway.com Share. Each STAK depository receipt will entitle the holder thereof to all economic benefits of the underlying Just Eat Takeaway.com Shares and, subject to any blackout or restrictions under applicable law, entitle such holder to direct the STAK to sell the underlying Just Eat Takeaway.com Shares and transfer the proceeds to such holder. If Just Eat Takeaway.com does not elect to deposit the underlying Just Eat Takeaway.com Shares into the STAK, such awards will be settled in Just Eat Takeaway.com Shares. The determination of whether to settle the assumed awards in Just Eat Takeaway.com Shares or STAK depository receipts will be made by Just Eat Takeaway.com in its sole discretion, provided that Just Eat Takeaway.com acts reasonably in making such determination. As of the date of this proxy statement/prospectus, Just Eat Takeaway.com intends on settling Grubhub assumed awards in STAK depository receipts.
See “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards” beginning on page 119 of this proxy statement/prospectus.
Listing of New Just Eat Takeaway.com Shares, Listing of New Just Eat Takeaway.com ADSs and Delisting and Deregistration of Grubhub Shares (See page 126)
Under the terms of the Merger Agreement, Just Eat Takeaway.com is required to cause (1) the New Just Eat Takeaway.com ADSs issuable as the merger consideration to be approved for listing on the NYSE or Nasdaq, subject to official notice of issuance, and (2) the New Just Eat Takeaway.com Shares to be approved for (a) admission to listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities and (b) admission to listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange. Accordingly, applications will be made to the FCA and the London Stock Exchange for the New Just Eat Takeaway.com Shares to be admitted to listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities, respectively, and to Euronext Amsterdam for the New Just Eat Takeaway.com Shares to be admitted to listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange. In connection with the Transaction, Just Eat Takeaway.com will also apply to list the New Just Eat Takeaway.com ADSs on Nasdaq.
As a result of the registration of the New Just Eat Takeaway.com Shares with the SEC pursuant to the registration statement of which this proxy statement/prospectus forms a part, Just Eat Takeaway.com will become subject to the periodic reporting requirements under the Exchange Act.
If the Transaction is completed, there will no longer be any publicly held Grubhub Shares. Accordingly, the Grubhub Shares will be delisted from the NYSE and will be deregistered under the Exchange Act as soon as practicable following Completion, and Grubhub will no longer be required to file periodic reports with the SEC in respect of Grubhub Shares.
Periodic Reporting under United States Securities Laws
Under the Exchange Act, for so long as Just Eat Takeaway.com continues to qualify as a foreign private issuer, Just Eat Takeaway.com will be required to publicly file with the SEC an annual report on Form 20-F within four months of the end of the financial year covered by the report. As a foreign private issuer, Just Eat Takeaway.com will also be required to publicly furnish to the SEC current reports on Form 6-K promptly after the occurrence of specified significant events, including material information that it makes or is required to make public pursuant to Dutch law, files or is required to file with any stock exchange on which Just Eat Takeaway.com Shares trade and which was made public by that exchange, or is otherwise distributed or required to be distributed to Just Eat Takeaway.com Shareholders. As a foreign private issuer listed on Nasdaq, Just Eat Takeaway.com will also be required to submit semi-annual financial statements on Form 6-K to the SEC within six months of the end of the relevant second quarter.
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If Just Eat Takeaway.com no longer qualified as a foreign private issuer, Just Eat Takeaway.com would be required to publicly file with the SEC an annual report on Form 10-K within 90, 75 or 60 days of the end of the financial year covered by the report, with the time period determined based on Just Eat Takeaway.com’s aggregate worldwide market value, the period of time for which it has been subject to SEC reporting requirements and certain other factors. In addition, Just Eat Takeaway.com would be required to publicly file with the SEC quarterly reports on Form 10-Q within 45 or 40 days (depending on the same factors) of the end of the applicable financial quarter. Just Eat Takeaway.com would also be required to publicly file with the SEC current reports on Form 8-K typically within four business days after the occurrence of specified significant events, and under Regulation FD, Just Eat Takeaway.com would be required to simultaneously or promptly make public disclosure of any material non-public information shared with securities market professionals or Just Eat Takeaway.com Shareholders who are reasonably likely to trade on the basis of the information. Further, Just Eat Takeaway.com would be subject to certain disclosure and procedural requirements applicable to proxy solicitations under Section 14 of the Exchange Act, and members of the Just Eat Takeaway.com Supervisory Board, the Just Eat Takeaway.com Management Board and principal shareholders of Just Eat Takeaway.com would be subject to the disclosure and other requirements of Section 16 of the Exchange Act in respect of their ownership of, and transactions in, Just Eat Takeaway.com securities.
Nasdaq Rules
For so long as the New Just Eat Takeaway.com ADSs will be listed on Nasdaq, Just Eat Takeaway.com will be required to meet certain requirements relating to ongoing communication and disclosure to holders of New Just Eat Takeaway.com ADSs, including a requirement to make any annual report filed with the SEC available to shareholders within a reasonable period of time following filing with the SEC by mailing the report to shareholders or by making the report available on or through Just Eat Takeaway.com’s website and to comply with the “prompt disclosure” policy of Nasdaq. Subject to certain exceptions, the rules of Nasdaq permit a foreign private issuer to follow its home country practice in lieu of the corporate governance requirements of Nasdaq, including, for example, certain board, committee and director independence requirements. Foreign private issuers are, however, required to comply with the audit committee independence requirements imposed by Section 10A-3 of the Exchange Act. Just Eat Takeaway.com will be required to disclose any significant ways in which its corporate governance practices differ from those followed by U.S. domestic companies under Nasdaq listing standards in its annual report on Form 20-F filed with the SEC or on its website.
Transaction Fees and Expenses (See page 169)
Generally, all fees and expenses incurred in connection with the Transaction will be paid by the party incurring such fees and expenses, whether or not the Transaction is completed. In certain circumstances, Just Eat Takeaway.com or Grubhub may be required to pay a termination fee to the other party. See “The Merger Agreement—Expenses and Termination Fees” beginning on page 169 of this proxy statement/prospectus.
Certain Effects of the Mergers (See page 148)
If the Conditions set forth in the Merger Agreement are either satisfied or, to the extent permitted by applicable law, waived (other than those Conditions that by their nature are to be satisfied at Completion, but subject to the satisfaction or waiver of those Conditions at such time), Merger Sub I will be merged with and into Grubhub. As a result of the initial merger, the separate corporate existence of Merger Sub I will cease, and Grubhub will continue as the surviving corporation in the initial merger and will become a wholly owned subsidiary of Just Eat Takeaway.com. Immediately thereafter, the initial surviving company will merge with and into Merger Sub II. As a result of the subsequent merger, the separate corporate existence of the initial surviving company will cease, and Merger Sub II will continue as the surviving company in the subsequent merger and will become a wholly owned subsidiary of Just Eat Takeaway.com.
At the first effective time, (1) each issued and outstanding share of capital stock of Merger Sub I will be converted into and become one validly issued, fully paid and non-assessable Grubhub Share, (2) each Grubhub Share held in treasury or owned by Just Eat Takeaway.com or any of its subsidiaries (including Merger Sub I and Merger Sub II) will be cancelled, be retired and cease to exist, and no merger consideration will be delivered in exchange therefor and (3) each issued and outstanding Grubhub Share will cease to be outstanding, be cancelled and cease to exist and will automatically be converted into one share of common stock, par value $0.0001 per share, of the initial surviving company (the “initial surviving company stock”), and each such share of initial
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surviving company stock will immediately thereafter be automatically exchanged for the right to receive (1) New Just Eat Takeaway.com ADSs representing 0.6710 Just Eat Takeaway.com Shares, plus (2) cash in lieu of fractional New Just Eat Takeaway.com ADSs (see “The Merger Agreement—Fractional ADSs” beginning on page 148 of this proxy statement/prospectus), plus (3) any dividends or other distributions to which such holder is entitled pursuant to the Merger Agreement, and otherwise subject to adjustments to prevent dilution in accordance with the Merger Agreement. At the second effective time, each share of initial surviving company stock issued and outstanding immediately prior to the second effective time will be cancelled and shall cease to exist and no consideration will be paid or payable in respect thereof.
Each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. No fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs. Following Completion, Grubhub Shares will no longer be publicly traded, and Grubhub Stockholders will cease to have any ownership interest in Grubhub.
No Solicitation of Takeover or Alternative Proposals (See page 156)
Each of Just Eat Takeaway.com and Grubhub agreed to cease and to cause their respective subsidiaries and their respective officers, directors and employees and to use reasonable best efforts to cause their respective other representatives, including outside advisors, to cease all existing discussions, negotiations and communications with any person with respect to any takeover proposal as defined under “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” beginning on page 156 of this proxy statement/prospectus. Each of Just Eat Takeaway.com and Grubhub have agreed, except as otherwise provided in the Merger Agreement, not to, and not to authorize or permit any of its subsidiaries or any of its or their respective officers, directors, employees or representatives to, directly or indirectly:
initiate, seek, solicit or knowingly encourage (including by way of furnishing any non-public information), knowingly induce or knowingly facilitate or take any other action which would reasonably be expected to lead to the making, submission or announcement of any takeover proposal, with respect to such party;
engage or participate in negotiations or discussions with, or provide any non-public information or non-public data to, any person (other than the parties to the Merger Agreement and their respective officers, directors, employees or representatives) relating to any takeover proposal or grant any waiver or release under any standstill or other agreement (except that if the Just Eat Takeaway.com Management Board and Just Eat Takeaway.com Supervisory Board or the Grubhub Board, as applicable, determine in good faith (after consultation with outside counsel) that the failure to grant any waiver or release would be inconsistent with such party’s directors’ fiduciary duties under applicable law, such party may waive any such standstill provision in order to permit a third party to make a takeover proposal); or
resolve to take any of the actions described in the preceding two bullet points.
Additionally, Grubhub agreed to (1) within 24 hours of the date of the Merger Agreement, terminate all physical and electronic data room access previously granted to any third party and (2) within five Business Days of the date of the Merger Agreement, request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements relating to a possible Grubhub takeover proposal with Grubhub or any of its subsidiaries.
Notwithstanding these restrictions, the Merger Agreement provides that at any time prior to obtaining each party’s shareholder or stockholder approvals, if such party receives a written takeover proposal from a third party, which was not initiated, sought, solicited or knowingly encouraged, induced or facilitated in material violation of the restrictions outlined above, and, with respect to the second and third bullets below, such party’s board or boards, as applicable, determines or determine in good faith (after consultation with its or their outside counsel and financial advisor) that such takeover proposal constitutes or would reasonably be expected to lead to a “superior proposal” as defined under “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” beginning on page 156 of this proxy statement/prospectus, then such party may:
contact the person who has made such takeover proposal and its representatives in order to clarify the terms of such takeover proposal so that such party’s board or boards, as applicable, may inform itself or themselves about such takeover proposal;
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furnish information concerning its business, properties or assets to the person who made such takeover proposal and its representatives pursuant to a confidentiality agreement that meets certain requirements set forth in the Merger Agreement (provided that all such information has previously been furnished to the other party to the Merger Agreement or is furnished to the other party prior to or substantially concurrently with the time it is furnished to such person); and
negotiate and participate in discussions and negotiations with the person who has made such takeover proposal and its representatives concerning such takeover proposal.
The Merger Agreement also requires each of Just Eat Takeaway.com and Grubhub to:
promptly (and in any case within one Business Day) provide the other party notice of (1) the receipt of any takeover proposal, including a copy of such takeover proposal, and (2) any inquiries, proposals or offers received by, any requests for non-public information from, or any discussions or negotiations sought to be initiated or continued concerning a takeover proposal or that would reasonably be expected to lead to a takeover proposal, and disclose the identity of the other party (or parties) and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of any such substantive materials;
promptly (and in any case within one Business Day) make available to the other party copies of all substantive written materials provided by such party to the third party but not previously made available to the other party; and
keep the other party informed on a reasonably prompt basis (and, in any case, within one Business Day of any significant development) of the status and material details (including amendments and proposed amendments) of any such takeover proposal or other inquiry, offer, proposal or request.
Completion of the Transaction is Subject to Certain Conditions (See page 166)
The obligations of each of Just Eat Takeaway.com, Merger Sub I, Merger Sub II and Grubhub to complete the Transaction is subject to the satisfaction or, to the extent legally permissible, waiver on or prior to the first effective time of the following Conditions:
receipt of the Grubhub Stockholder Approval;
receipt of Just Eat Takeaway.com Shareholder approval of (a) the resolution to pursue the transactions contemplated by the Merger Agreement under Section 2:107a of the Dutch Civil Code, (b) delegation of authority to the Just Eat Takeaway.com Management Board to issue the New Just Eat Takeaway.com Shares and (c) the terms of the Merger Agreement, in each case, by a majority of the votes validly cast by Just Eat Takeaway.com Shareholders at a General Meeting of Just Eat Takeaway.com (clauses (a), (b) and (c) together, the “Just Eat Takeaway.com Transactions Approvals”);
binding nominations for the appointment of the Grubhub Management Board nominee and the Grubhub Supervisory Board nominees not having been overruled by more than half of the votes validly cast, such number of votes representing more than one-third of Just Eat Takeaway.com’s issued share capital, at a General Meeting of the Just Eat Takeaway.com Shareholders (the “Just Eat Takeaway.com Board Nominee Approval” and, together with the Just Eat Takeaway.com Transactions Approvals,” the “Just Eat Takeaway.com Shareholder Approval”);
the expiration or termination of the applicable waiting period under the HSR Act (the “HSR Condition”), satisfaction of the condition relating to the UK Competition and Markets Authority (“CMA”) (the “CMA Condition”) and receipt of written notification from CFIUS indicating the Transaction is not subject to review or such review has concluded without unresolved national security concerns or, if CFIUS has referred review of the Transaction to the President of the United States, receipt of notice from the President of the United States of their determination not to suspend or prohibit the Transaction or expiration of the applicable waiting period without any determination by the President of the United States;
the absence of any legal restraints that prevent, make illegal or prohibit Completion;
the approval for listing of the New Just Eat Takeaway.com ADSs issuable as the merger consideration on the NYSE or Nasdaq (subject to official notice of issuance);
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the approval for admission of the New Just Eat Takeaway.com Shares to (1) listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities and (2) listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange;
effectiveness (1) declared by the SEC of the registration statement filed on Form F-4 of which this proxy statement/prospectus forms a part, (2) declared by the SEC of the registration statement on Form F-6 and (3) of the registration statement on Form 8-A (and the absence of any stop order suspending the effectiveness of such registration statements or any proceedings seeking such a stop order); and
the approval of the European Prospectus by the AFM and the FCA, in each case if then applicable, and if then applicable, the AFM’s approval of such European Prospectus having been notified to the FCA in accordance with applicable rules and regulations.
The obligations of each of Just Eat Takeaway.com, Merger Sub I and Merger Sub II to complete the Transaction are further subject to the satisfaction or, to the extent legally permissible, waiver on or prior to the first effective time of the following conditions:
the representations and warranties of Grubhub relating to organization, standing, corporate power, authority, noncontravention, opinion of financial advisor, brokers and Grubhub Stockholder Approval being true and correct in all material respects as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date);
the representation and warranty of Grubhub relating to capitalization being true and correct, except for any de minimis inaccuracies taking into account the size of such party, as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date);
each other representation and warranty of Grubhub being true and correct (disregarding any “materiality” or “material adverse effect” qualifiers) as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date), except where the failure of such representations and warranties to be so true and correct, individually and in the aggregate, has not had and would not reasonably be expected to have a material adverse effect;
Grubhub having performed in all material respects all obligations required to be performed by it under the Merger Agreement that are required to be performed on or prior to Completion;
the absence of a material adverse effect on Grubhub since the date of the Merger Agreement; and
receipt of an officer’s certificate executed by the chief executive officer, chief financial officer or the general counsel of Grubhub, certifying that the five preceding conditions have been satisfied.
The obligations of Grubhub to complete the Transaction are further subject to the satisfaction or, to the extent legally permissible, waiver on or prior to the first effective time of the following conditions:
the representations and warranties of Just Eat Takeaway.com, Merger Sub I and Merger Sub II relating to organization, standing, corporate power, authority, noncontravention, brokers and Just Eat Takeaway.com shareholder approvals being true and correct in all material respects as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date);
the representations and warranties of Just Eat Takeaway.com, Merger Sub I and Merger Sub II relating to capitalization being true and correct, except for any de minimis inaccuracies taking into account the size of such party, as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date);
each other representation and warranty of Just Eat Takeaway.com, Merger Sub I and Merger Sub II, respectively, being true and correct (disregarding any “materiality” or “material adverse effect” qualifiers) as of the date of the first effective time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date), except where the failure of such representations and warranties to be so true and correct, individually and in the aggregate, has not had and would not reasonably be expected to have a material adverse effect;
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each of Just Eat Takeaway.com, Merger Sub I and Merger Sub II having performed in all material respects all obligations required to be performed by such party under the Merger Agreement that are required to be performed on or prior to Completion;
the absence of a material adverse effect on Just Eat Takeaway.com since the date of the Merger Agreement; and
receipt of an officer’s certificate executed by the chief executive officer or chief financial officer of Just Eat Takeaway.com certifying that the five preceding conditions have been satisfied.
In addition, the obligations of Just Eat Takeaway.com, Merger Sub I, Merger Sub II and Grubhub to complete the Transaction are conditioned on the absence of any antitrust restriction, as defined under “The Merger Agreement—Efforts to Complete the Transaction” beginning on page 162 of this proxy statement/prospectus.
Pursuant to the requirements of the HSR Act, Just Eat Takeaway.com and Grubhub filed Notification and Report Forms with respect to the Transaction with the FTC and DOJ on 24 June 2020 and requested early termination of the HSR Act waiting period. The FTC granted early termination of the HSR Act waiting period on 7 July 2020, thereby satisfying the HSR Condition. On 24 June 2020, Just Eat Takeaway.com filed a briefing paper with the CMA. On 2 July 2020, in response to the briefing paper, the CMA indicated that it had no further questions as of such date regarding the Transaction, thereby satisfying the CMA Condition. On 21 July 2020, Just Eat Takeaway.com and Grubhub filed the joint voluntary notice with CFIUS. Approval from CFIUS was received on 3 September 2020. As a result of the foregoing, all regulatory approvals required for Completion have been obtained.
On 7 October 2020 Just Eat Takeaway.com held an Extraordinary General Meeting and obtained the required approvals from Just Eat Takeaway.com Shareholders. The Condition relating to the Just Eat Takeaway.com Shareholder Approval has now been satisfied.
Termination of the Merger Agreement (See page 168)
The Merger Agreement may be terminated at any time prior to the first effective time, whether before or after receipt of the Grubhub Stockholder Approval or the Just Eat Takeaway.com Shareholder Approval, under the following circumstances:
by mutual written consent of Just Eat Takeaway.com and Grubhub; or
by either Just Eat Takeaway.com or Grubhub in the event that:
the first effective time has not occurred on or before 31 December 2021 (the “end date”), however, no party may terminate the Merger Agreement if the first effective time has not occurred by the end date if the Transaction has not been completed due, in whole or part, to a breach by such party of its representations and warranties or failure to perform its obligations under the Merger Agreement;
a legal restraint that enjoins, restrains, prevents or prohibits Completion becomes final and unappealable, unless the legal restraint is due, in whole or in part, to such party’s failure to perform its obligations under the Merger Agreement, including its obligations to use its reasonable best efforts to complete the Transaction and the other transactions contemplated by the Merger Agreement as promptly as practicable (as described in “The Merger AgreementEfforts to Complete the Transaction” beginning on page 162 of this proxy statement/prospectus);
the Grubhub Stockholder Approval is not obtained at the Grubhub Stockholder Meeting;
the Just Eat Takeaway.com Shareholder Approval is not obtained at the Extraordinary General Meeting;
the other party breaches or fails to perform any of its covenants or agreements in the Merger Agreement, or if the other party’s representations or warranties fail to be true and correct, in either case, such that the applicable conditions to the terminating party’s obligations to complete the Transaction would not then be satisfied and such breach is not reasonably capable of being cured by the end date or, if reasonably capable of being cured, has not been cured within 30 days after
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giving written notice to the other party of such breach, except that no party may terminate the Merger Agreement for this reason if such party is then in material breach of any covenant or agreement in the Merger Agreement or if such party’s representations or warranties are not true and correct such that the applicable conditions to the other party’s obligations to complete the Transaction would not then be satisfied;
prior to obtaining the approval of the other party’s stockholders or shareholders required to complete the Transaction, the board or boards, as applicable, of the other party effects or effect an adverse recommendation change (as described in “The Merger AgreementRecommendation of the Grubhub Board” beginning on page 158 of this proxy statement/prospectus and “The Merger AgreementRecommendation of the Just Eat Takeaway.com Boards” beginning on page 160 of this proxy statement/prospectus); or
prior to obtaining approval of the party’s stockholders or shareholders required to complete the Transaction, in order to enter into an alternative acquisition agreement (as described in “The Merger AgreementRecommendation of the Grubhub Board” beginning on page 158 of this proxy statement/prospectus and “The Merger AgreementRecommendation of the Just Eat Takeaway.com Boards” beginning on page 160 of this proxy statement/prospectus).
If the Merger Agreement is terminated, the Merger Agreement will become null and void, without any liability or obligation on the part of any party, except in the case of fraud or a willful and material breach of the Merger Agreement (subject to certain limitations), and except that certain provisions of the Merger Agreement, including those relating to confidentiality, fees and expenses (including termination fees), effect of termination and certain other general provisions, will survive termination of the Merger Agreement.
Expenses and Termination Fees (See page 169)
Except as described below, each party will pay all fees and expenses incurred by it in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement.
If the Merger Agreement is terminated, Just Eat Takeaway.com will be entitled to receive a termination fee of $144 million from Grubhub in the event that:
Grubhub terminates the Merger Agreement in order to enter into a definitive agreement providing for a superior proposal;
the Grubhub Board, or any committee thereof, effects a Grubhub adverse recommendation change prior to obtaining the Grubhub Stockholder Approval and Just Eat Takeaway.com terminates the Merger Agreement as a result of such change in recommendation; or
(1) the Merger Agreement is terminated because the Transaction has not occurred by the end date, the Grubhub Stockholder Approval is not obtained at the Grubhub Stockholder Meeting or Grubhub breached its obligations under the Merger Agreement, (2) prior to such Grubhub Stockholder vote (in the case of a termination due to the failure to obtain the Grubhub Stockholder Approval) or termination (in all other cases) and after the date of the Merger Agreement, a Grubhub takeover proposal that contemplates acquiring a majority of the capital stock or assets of Grubhub was made known to Grubhub or the Grubhub Board or was publicly disclosed and has not been abandoned or withdrawn (which abandonment or withdrawal shall be public if such Grubhub takeover proposal has been publicly disclosed) prior to the Grubhub Stockholder Meeting or termination of the Merger Agreement and (3) within 12 months after such termination, Grubhub completes or enters into a definitive agreement with respect to and subsequently completes, any Grubhub takeover proposal of such type.
If the Merger Agreement is terminated, Grubhub will be entitled to receive a termination fee of $144 million from Just Eat Takeaway.com in the event that:
Just Eat Takeaway.com terminates the Merger Agreement in order to enter into a definitive agreement providing for a superior proposal;
the Just Eat Takeaway.com Management Board or the Just Eat Takeaway.com Supervisory Board, or any committee thereof, effects an adverse recommendation change prior to obtaining Just Eat Takeaway.com Shareholder Approval and Grubhub terminates the Merger Agreement as a result of such change in recommendation; or
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(1) the Merger Agreement is terminated because the Transaction has not occurred by the end date, the Just Eat Takeaway.com Shareholder Approval is not obtained at the Extraordinary General Meeting or Just Eat Takeaway.com breached its obligations under the Merger Agreement, (2) prior to such Just Eat Takeaway.com Shareholder vote (in the case of a termination due to the failure to obtain Just Eat Takeaway.com Shareholder Approval) or termination (in all other cases) and after the date of the Merger Agreement, a Just Eat Takeaway.com takeover proposal that contemplates acquiring a majority of the capital stock or assets of Just Eat Takeaway.com was made known to Just Eat Takeaway.com or the Just Eat Takeaway.com Management Board or the Just Eat Takeaway.com Supervisory Board or was publicly disclosed and has not been abandoned or withdrawn (which abandonment or withdrawal shall be public if such Just Eat Takeaway.com takeover proposal has been publicly disclosed) prior to the Extraordinary General Meeting or termination of the Merger Agreement and (3) within 12 months after such termination, Just Eat Takeaway.com completes or enters into a definitive agreement with respect to and subsequently completes, any Just Eat Takeaway.com takeover proposal of such type.
See “The Merger Agreement—Efforts to Complete the Transaction” beginning on page 162 of this proxy statement/prospectus for details on the efforts Just Eat Takeaway.com and Grubhub are required to use to complete the Transaction.
Comparison of Shareholder Rights (See page 289)
Grubhub Stockholders will have different rights once they become holders of New Just Eat Takeaway.com ADSs due to differences between the organizational documents of Grubhub and Just Eat Takeaway.com and differences between Delaware law, where Grubhub is incorporated, and the laws of the Netherlands, where Just Eat Takeaway.com is incorporated. See “Comparison of Shareholder Rights” beginning on page 289 of this proxy statement/prospectus.
Litigation Relating to the Transaction (See page 130)
Since the announcement of the Merger Agreement on 10 June 2020, six complaints have been filed in U.S. District Courts in connection with the Transaction. Five complaints have been filed in the U.S. District Court for the Southern District of New York against Grubhub and the members of the Grubhub Board and are captioned Elaine Wang v. Grubhub Inc., et al., Case No. 1:21-cv-03756 (filed 28 April 2021) (the “Wang Complaint”), Jermaine Dennis v. Grubhub Inc., et al., Case No. 1:21-cv-03983 (filed 4 May 2021) (the “Dennis Complaint”), Frank Ferreiro v. Grubhub Inc., et al., Case No. 1:21-cv-03945 (filed 4 May 2021) (the “Ferreiro Complaint”), Hardie Johnson v. Grubhub Inc., et al., Case No. 1:21-cv-04104 (filed 7 May 2021) (the “Johnson Complaint”) and Lemuel Brown III v. Grubhub Inc., et al., Case No. 1:21-cv-04118 (filed 7 May 2021) (the “Brown Complaint”). One complaint has been filed in the U.S. District Court for the Eastern District of New York against Grubhub and the members of the Grubhub Board and is captioned Christopher Carrier v. Grubhub Inc., et al., Case No. 1:21-cv-02508 (filed 5 May 2021) (the “Carrier Complaint” and, together with the Wang Complaint, the Dennis Complaint, the Ferreiro Complaint, the Johnson Complaint and the Brown Complaint, the “Transaction Litigation”). The plaintiffs in the Transaction Litigation, who each purport to be stockholders of Grubhub, generally allege that Grubhub’s preliminary proxy statement filed with the SEC on 27 April 2021 (the “Preliminary Proxy Statement”) omitted certain material information in connection with the Transaction resulting in the Preliminary Proxy Statement being materially false and misleading in violation of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. The plaintiff in the Ferreiro Complaint further alleges breaches of fiduciary duties by the members of the Grubhub Board as a result of an allegedly flawed and inadequate sales process and alleged potential conflicts of interest. The plaintiff in the Brown Complaint further alleges that the Merger Agreement’s “no solicitation” clause and “termination fee” are restrictive to Grubhub’s ability to consider other offers. The plaintiffs seek various remedies, including, among other things, injunctive relief to prevent the consummation of the Transaction unless certain allegedly material information is disclosed, a directive that defendants exercise their fiduciary duties to obtain an acquisition which is in the best interest of Grubhub Stockholders, an award of attorneys’ fees and expenses, rescission of the Transaction or an award of damages should the Transaction be consummated. Grubhub and Just Eat Takeaway.com believe the claims asserted in the Transaction Litigation are without merit.
Additional lawsuits arising out of the Transaction may be filed in the future. There can be no assurance that any of the defendants will be successful in the outcome of any pending or any potential future lawsuits.
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RISK FACTORS
In deciding whether to vote for the approval of the Merger Agreement proposal, you should carefully consider the following risk factors and all of the information contained in or incorporated by reference into this proxy statement/prospectus, including but not limited to, the matters addressed in “Cautionary Information Regarding Forward-Looking Statements and Risk Factor Summary” beginning on page xiv of this proxy statement/prospectus and the matters discussed under “Item 1A. Risk Factors” of Part I of Grubhub’s Annual Report on Form 10-K for the year ended 31 December 2020, as updated from time to time in Grubhub’s subsequent filings with the SEC, which are incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 320 of this proxy statement/prospectus. The risks associated with the business of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group are described under the caption “Risk Factors—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group,” beginning on page 41 of this proxy statement/prospectus.
Risks Relating to the Transaction
The implementation of the Transaction is subject to the satisfaction or waiver, where applicable, of a number of conditions.
Implementation of the Transaction is subject to, among other things:
(i)
the approval of the Merger Agreement proposal by holders of a majority of the outstanding Grubhub Shares entitled to vote as of the Grubhub record date;
(ii)
the approval for listing of the New Just Eat Takeaway.com ADSs on the NYSE or Nasdaq (subject to official notice of issuance);
(iii)
the approval for admission of New Just Eat Takeaway.com Shares to listing on the UK Official List and to trading on the London Stock Exchange’s main market for listed securities, and to listing and trading on Euronext Amsterdam, in each case to the extent any Just Eat Takeaway.com Shares are then listed on such exchange, subject in each case only to the issue of such New Just Eat Takeaway.com Shares upon Completion;
(iv)
the absence of a material adverse effect on Just Eat Takeaway.com or Grubhub, respectively, since the date of the Merger Agreement;
(v)
the absence of any legal restraints that prevent, make illegal or prohibit Completion or the issuance of the merger consideration;
(vi)
effectiveness (1) declared by the SEC of the registration statement on Form F-4, of which this proxy statement/prospectus forms a part, (2) declared by the SEC of the registration statement on Form F-6 relating to New Just Eat Takeaway.com ADSs and (3) of the registration statement on Form 8-A relating to the registration under the Exchange Act of the New Just Eat Takeaway.com ADSs to be issued as the merger consideration (and the absence of any stop order suspending the effectiveness of such registration statements or any proceedings seeking such a stop order);
(vii)
the approval of the European Prospectus by the AFM and FCA, in each case if then applicable, and if then applicable, the AFM’s approval of the European Prospectus having been notified to the FCA in accordance with applicable rules and regulations;
(viii)
accuracy of the representations and warranties made in the Merger Agreement by the other parties, subject to certain exceptions; and
(ix)
performance by the other parties in all material respects of all obligations required to be performed by them under the Merger Agreement that are required to be performed on or prior to Completion.
See “The Merger Agreement—Conditions to the Mergers” beginning on page 166 of this proxy statement/prospectus for a discussion of the conditions to Completion, and “The Merger Agreement—Termination of the Merger Agreement” beginning on page 168 of this proxy statement/prospectus for a discussion of the rights of each of Just Eat Takeaway.com and Grubhub to terminate the Merger Agreement.
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There can be no guarantee that the Conditions will be met in a timely way or waived, as applicable, on terms acceptable to both Just Eat Takeaway.com and Grubhub, or at all, or can be met only after undue diversion of financial resources or management time and attention. If this were the case, the Transaction may be delayed (which would prolong the period of uncertainty for both Just Eat Takeaway.com and Grubhub, and may result in additional costs to their businesses), or may not become effective at all, which would result in none of the anticipated benefits of the Transaction materializing. Each of these scenarios could have a material adverse effect on the business, results of operations, financial condition and/or prospects of the Just Eat Takeaway.com Group and the Grubhub Group and, if applicable, the Enlarged Group following Completion.
The Transaction subjects the Enlarged Group and its investors to potential significant risks as a result of the integration process, including adherence to additional regulatory requirements, and no assurance can be given that the integration process will deliver all or substantially all of the expected benefits.
Following Completion, the Enlarged Group’s future prospects will, in part, be dependent upon its ability to integrate the Just Eat Takeaway.com Group and the Grubhub Group successfully, without disruption to their respective existing businesses. Unanticipated events, liabilities, tax impacts or unknown pre-existing issues may arise or become apparent which could result in the costs of integration being higher than the realizable benefits, resulting in a material adverse effect on the business, results of operations, financial condition and/or prospects of the Enlarged Group following Completion and the value of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares. No assurance can be given that the integration process will deliver all or substantially all of the expected benefits. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be unable to integrate successfully or achieve the expected benefits of any prior or future acquisitions, or may be unable to identify and acquire suitable acquisition candidates” beginning on page 47 of this proxy statement/prospectus.
It is also possible that the process of integrating the existing businesses of the Just Eat Takeaway.com Group and the Grubhub Group takes longer or is more costly than anticipated, including as a result of increased regulatory and compliance burdens, or could result in the disruption of the respective businesses or inconsistencies in standards, controls, procedures and policies that adversely affect the ability of the Enlarged Group following Completion to maintain relationships with restaurants, consumers and employees, and adversely affect the current control environment of the Just Eat Takeaway.com Group and/or the Grubhub Group. See “—Risks Relating to the Transaction—The Just Eat Takeaway.com Group and the Grubhub Group will incur significant transaction-related costs in connection with the Transaction” and “—Risks Relating to the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs—Completion will result in the Just Eat Takeaway.com Group becoming subject to U.S. regulations which are different from the regulations to which the Just Eat Takeaway.com Group is currently subject. Current and future U.S. regulations could have an adverse effect on the results of operations, business and financial position of the Just Eat Takeaway.com Group following the Transaction” beginning on page 39 and 70, respectively, of this proxy statement/prospectus.
Furthermore, the due diligence conducted by Just Eat Takeaway.com and Grubhub in connection with the Transaction may not have revealed all relevant considerations, liabilities or regulatory issues in relation to each other, including the existence of facts that may otherwise have impacted the determination of the consideration per Grubhub Share or the formulation of a business strategy subsequent to the Transaction. In addition, information provided during the due diligence process may have been incomplete, inadequate or inaccurate, and there can be no assurance that all material issues that may be present inside the Just Eat Takeaway.com Group, the Grubhub Group or their respective businesses were identified in the course of the due diligence process, or that factors external to the Just Eat Takeaway.com Group, the Grubhub Group and their respective businesses and outside of their respective control will not arise later. As part of the due diligence process, Just Eat Takeaway.com and Grubhub each made subjective judgments regarding the results of operations, consolidated financial condition and prospects of the other party, including certain financial projections based on the due diligence conducted (including, in the case of Grubhub’s financial projections regarding Just Eat Takeaway.com’s potential future performance, publicly available equity analyst forecasts; see “Grubhub Proposal I: Adoption of the Merger Agreement—Certain Unaudited Prospective Financial Information Prepared by Grubhub” beginning on page 101 of this proxy statement/prospectus). If material issues arise that were not identified in the course of the due diligence process, or the process of integrating the existing businesses of the Just Eat Takeaway.com Group and the Grubhub Group takes longer or is more costly than anticipated or results in the disruption of the respective businesses, the Enlarged Group may not realize all of the expected benefits of the Transaction.
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The materialization of the risk described above following Completion could have a material adverse effect on the Enlarged Group’s businesses, results of operations, financial condition and/or prospects and the value of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares.
Uncertainties associated with the Transaction may cause a loss of the Grubhub Group’s senior management personnel and other key employees, which could have an adverse effect on the results of operations, business and financial position of the Grubhub Group and, following Completion, the Enlarged Group.
The Grubhub Group is dependent on the continued availability and service of senior management personnel. The Enlarged Group’s success in North America following Completion will depend in part upon its ability to retain executive officers and other key senior management personnel and employees of the Grubhub Group. In this context, it is noted that at the Extraordinary General Meeting of 7 October 2020, Just Eat Takeaway.com Shareholders did not adopt a supplement to Just Eat Takeaway.com's remuneration policy. As a result, Just Eat Takeaway.com will be unable to provide Mr. Maloney, in his capacity as member of the Management Board of Just Eat Takeaway.com, with a remuneration package generally consistent with his remuneration as chief executive officer of Grubhub, which may impact the ability of Just Eat Takeaway.com to retain Mr. Maloney if he remains subject to the existing remuneration policy. Furthermore, other employees of the Grubhub Group may believe there is uncertainty about their roles within the Enlarged Group following Completion, which uncertainty may inhibit the Enlarged Group's ability to retain those employees following Completion. In addition, certain of Grubhub’s equity incentive and other compensation arrangements contain change in control clauses providing for outstanding equity awards to vest or compensation or benefits to be provided to Grubhub’s executive officers in connection with certain terminations of employment on or following a change in control of Grubhub, including a termination by the executive officers for “good reason.” If completed, the Transaction would constitute a change in control of Grubhub for purposes of these equity incentives and other compensation arrangements, thereby giving rise to vesting of certain outstanding equity awards and other payments in the event of certain terminations of employment (including for “good reason”). See “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus. Such uncertainty, the potential early vesting of equity awards and availability of payments may inhibit the Enlarged Group’s ability to retain those executive officers and other key senior management personnel and employees following Completion.
Accordingly, there can be no assurance that executive officers and other key senior management personnel and employees can be retained either prior to or following Completion to the same extent that the Grubhub Group has previously been able to attract and retain its employees, which could have an adverse effect on the results of operations, business and financial position of the Grubhub Group and, following Completion, the Enlarged Group. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Each of the Just Eat Takeaway.com Group and the Grubhub Group relies on, and following Completion, the Enlarged Group will rely on, the skills and experience of its management and other key personnel, and the loss of any of these team members and qualified personnel could have a material adverse impact on business operations” beginning on page 44 of this proxy statement/prospectus.
The business relationships of the Just Eat Takeaway.com Group and the Grubhub Group, respectively, may be subject to disruption due to uncertainty associated with the Transaction, which could have an adverse effect on the results of operations, business and financial position of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group.
Parties with which the Just Eat Takeaway.com Group or the Grubhub Group does business may experience uncertainty associated with the Transaction, including with respect to current or future business relationships with the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group. The business relationships of the Just Eat Takeaway.com Group and the Grubhub Group may be subject to disruption as restaurants and suppliers may attempt to negotiate changes in existing business relationships or consider entering into business relationships with third parties. These disruptions could have an adverse effect on the businesses, financial condition, results of operations and/or prospects of the Enlarged Group following Completion, including an adverse effect on the Enlarged Group’s ability to realize the anticipated benefits of the Transaction. The risk and adverse effect of such disruptions could be exacerbated by a delay in Completion or termination of the Merger Agreement. Additionally, certain contracts entered into by the Just Eat Takeaway.com
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Group and the Grubhub Group contain change in control, anti-assignment, or certain other provisions that may be triggered as a result of the Transaction. If the counterparties to these agreements do not consent to the Transaction, the counterparties may have the ability to exercise certain rights (including termination rights), resulting in the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group incurring liabilities as a consequence of breaching such agreements, or causing the Enlarged Group, following Completion, to lose the benefit of such agreements or incur costs in seeking replacement agreements.
The Merger Agreement subjects the Just Eat Takeaway.com Group and the Grubhub Group to restrictions on their respective business activities prior to Completion. Furthermore, the Merger Agreement limits the ability of Grubhub to pursue alternatives to the Transaction and may discourage other companies from trying to acquire Grubhub prior to Completion.
The Merger Agreement subjects the Just Eat Takeaway.com Group and the Grubhub Group to restrictions on their respective business activities and obligates them to generally operate their businesses in the ordinary course prior to Completion. See “The Merger Agreement—Conduct of Business” beginning on page 153 of this proxy statement/prospectus for a discussion of these restrictions. These conduct of business restrictions could prevent the Just Eat Takeaway.com Group and the Grubhub Group from pursuing attractive business opportunities that arise prior to Completion and are outside the ordinary course of business, or otherwise have an adverse effect on the results of operations, business and financial position of the Just Eat Takeaway.com Group or the Grubhub Group and, consequently, following Completion, of the Enlarged Group.
The Merger Agreement contains provisions that make it more difficult for Grubhub to pursue alternatives to the Transaction and limit the ability of Grubhub to terminate the Merger Agreement prior to Completion. These provisions include a general prohibition on Grubhub from soliciting alternatives to the Transaction and, subject to certain exceptions, entering into discussions relating to an alternative to the Transaction. The Merger Agreement also contains provisions that make it more difficult for the Grubhub Board to withhold, withdraw or qualify the recommendation that Grubhub Stockholders approve the Merger Agreement proposal.
Subject to certain rights of Just Eat Takeaway.com to match the terms of proposed alternative transactions, the Grubhub Board may withhold or withdraw the recommendation or terminate the Merger Agreement in order to accept a superior proposal only if the Grubhub Board determines in good faith that the failure to withhold or withdraw the recommendation would be inconsistent with its fiduciary duties under applicable law. See “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” beginning on page 156 of this proxy statement/prospectus.
Following approval of the Merger Agreement proposal by the Grubhub Stockholders, Grubhub’s right to terminate the Merger Agreement in response to a superior proposal will be eliminated.
In certain cases, upon termination of the Merger Agreement following a withholding, withdrawal or qualification of the recommendation of the Grubhub Board, Grubhub will be required to pay to Just Eat Takeaway.com a termination fee of $144 million. If the Merger Agreement is terminated and Grubhub determines to seek another business combination, Grubhub may not be able to negotiate a transaction with another party on terms comparable to, or better than, the terms of the Transaction.
See “The Merger Agreement—Termination of the Merger Agreement” and “The Merger Agreement—Expenses and Termination Fees” beginning on pages 168 and 169, respectively, of this proxy statement/prospectus.
The Transaction is subject to litigation, which could result in substantial costs and may delay or prevent the Transaction from being completed.
Litigation in connection with the Transaction has been filed against Grubhub and the Grubhub Board, and Just Eat Takeaway.com and/or Grubhub may be subject to further legal proceedings in connection with the Transaction. The outcome of any litigation in connection with the Transaction is uncertain. Even if such legal proceedings are without merit, defending against these claims can result in substantial costs and divert management time and resources. An adverse judgment could result in monetary damages, which could have a negative impact on the Just Eat Takeaway.com Group’s or the Grubhub Group’s respective liquidity and financial condition. Additionally, if a plaintiff is successful in obtaining an injunction prohibiting Completion, such injunction may delay or prevent the Transaction from being completed, or from being completed within the
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expected timeframe, which may adversely affect the Just Eat Takeaway.com Group’s and the Grubhub Group’s business, financial position and results of operations. See “Grubhub Proposal I: Adoption of the Merger Agreement—Litigation Relating to the Transaction” beginning on page 130 of this proxy statement/prospectus.
The exchange ratio is fixed and will not be adjusted in the event of any change in the market price of Just Eat Takeaway.com Shares or Grubhub Shares. Because the market price of Just Eat Takeaway.com Shares may fluctuate, the value of the merger consideration that Grubhub Stockholders will receive in the Transaction is uncertain.
In the Transaction, each Grubhub Share will be converted into the right to receive New Just Eat Takeaway.com ADSs representing 0.6710 of a New Just Eat Takeaway.com Share (the “exchange ratio”). No fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs.
Because the exchange ratio is fixed and will only be adjusted in certain limited circumstances (including reclassifications, stock splits or combinations, exchanges or readjustments of shares, or stock dividends, reorganization, recapitalization or similar transactions involving Just Eat Takeaway.com or Grubhub), the value of the merger consideration will depend on the market price of Just Eat Takeaway.com Shares at Completion. The exchange ratio will not be adjusted for changes in the market price of Just Eat Takeaway.com Shares or Grubhub Shares or in currency exchange rates between the date of signing the Merger Agreement and Completion. In addition, there will be a lapse of time between the date on which Grubhub Stockholders vote on the Merger Agreement proposal at the Grubhub Stockholder Meeting and the date on which Grubhub Stockholders entitled to receive New Just Eat Takeaway.com ADSs actually receive such New Just Eat Takeaway.com ADSs.
The potential impact of a fixed exchange ratio on the value of the merger consideration has been evidenced, as the value of the merger consideration has fluctuated since the date of the announcement of Just Eat Takeaway.com’s proposal to merge with Grubhub and will continue to fluctuate from the date of this proxy statement/prospectus to Completion and thereafter. The closing price per share of Grubhub Shares on the NYSE as of 9 June 2020, the last trading day before the public announcement of Just Eat Takeaway.com’s proposal to merge with Grubhub, was $57.92, and the closing price per share has fluctuated as high as $84.34 and as low as $57.92 since that date and 20 April 2021. The closing price of Just Eat Takeaway.com Shares on Euronext Amsterdam and the London Stock Exchange as of 9 June 2020, the last trading day before the public announcement of Just Eat Takeaway.com’s proposal to merge with Grubhub, was €98.60 / £87.74, respectively, and the closing price per share has fluctuated as high as €109.65 / £99.80 and as low as €74.14 / £63.82, respectively, since that date and 20 April 2021.
Accordingly, at the time of the Grubhub Stockholder Meeting, the value of the merger consideration will not be known. Stock price changes may result from a variety of factors, including, among others, general market and economic conditions, changes in the Just Eat Takeaway.com Group’s and the Grubhub Group’s respective operations, prospects and financial position, foreign exchange fluctuations, any potential shareholder litigation related to the Transaction, market assessments of the likelihood of Completion, the timing of the Transaction, regulatory considerations and the anticipated dilution to holders of Just Eat Takeaway.com Shares and any unsponsored Just Eat Takeaway.com ADSs as a result of the issuance of the merger consideration.
Just Eat Takeaway.com Shareholders and Grubhub Stockholders are urged to obtain current market quotations for any unsponsored Just Eat Takeaway.com ADSs, Just Eat Takeaway.com Shares and Grubhub Shares. See “Comparative Per Share Market Price” beginning on page 138 of this proxy statement/prospectus for the implied value of the merger consideration proposed for each Grubhub Share as of 9 June 2020, the last trading day of Just Eat Takeaway.com Shares before the public announcement of the Merger Agreement.
Certain Grubhub directors and executive officers have interests in the Transaction that are different from, or in addition to, the interests of Grubhub Stockholders generally.
When considering the recommendation of the Grubhub Board that Grubhub Stockholders adopt the Merger Agreement, Grubhub Stockholders should be aware that directors and executive officers of Grubhub have certain interests in the Transaction that may be different from, or in addition to, the interests of Grubhub Stockholders generally. These interests include the treatment of Grubhub equity compensation awards in the Transaction; the receipt of payments and benefits upon a termination without cause or for good reason in connection with or following the Transaction, including the potential acceleration of certain equity awards, positions as directors,
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officers or employees of the Enlarged Group following Completion, severance benefits, accelerated payout of deferred compensation benefits and other rights held by Grubhub’s directors and executive officers, and the indemnification of former Grubhub directors and officers by Just Eat Takeaway.com. The Grubhub Board was aware of these interests and considered them, among other things, in evaluating and negotiating the Merger Agreement and the Transaction and in recommending that the Grubhub Stockholders adopt the Merger Agreement. For more information on the interests of Grubhub’s directors and executive officers in the Transaction, including the individual components of and the assumptions underlying such payments and benefits, see “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus.
Failure to complete the Transaction could negatively impact Grubhub’s stock price and have an adverse effect on its results of operations, business and financial position.
If the Transaction is not completed for any reason, including as a result of the Grubhub Stockholders failing to approve the applicable proposals, the ongoing business of the Grubhub Group may be adversely affected and, without realizing any of the benefits of having completed the Transaction, the Grubhub Group would be subject to a number of risks, including the following:
the Grubhub Group may experience negative reactions from the financial markets, its stockholders and its other stakeholders, including negative impacts on the market price of its securities;
the Grubhub Group may experience negative reactions from its consumers, restaurant partners and employees of the Grubhub Group;
the Grubhub Group will be required to pay its costs relating to the Transaction, whether or not Completion occurs;
the Grubhub Group may be required to pay the Just Eat Takeaway.com Group a cash termination fee of $144 million as prescribed by the Merger Agreement;
the Merger Agreement places certain restrictions on the conduct of the business of the Grubhub Group prior to Completion, which may have prevented the Grubhub Group from making certain acquisitions, taking certain other specified actions or otherwise pursuing business opportunities between the signing of the Merger Agreement and the abandonment of the Transaction;
matters relating to Transaction preparation (including integration planning) require substantial commitments of time and resources by Grubhub management, which may result in the distraction of Grubhub’s management from ongoing business operations between the signing of the Merger Agreement and the abandonment of the Transaction; and
the Grubhub Group may be subject to litigation related to any failure to complete the Transaction or related to any enforcement proceeding commenced against Grubhub to perform its obligations under the Merger Agreement.
If the Transaction is not completed, the risks described above may materialize and may have an adverse effect on the Grubhub Group’s results of operations, business, financial position and stock price.
The Just Eat Takeaway.com Group and the Grubhub Group will incur significant transaction-related costs in connection with the Transaction.
The Just Eat Takeaway.com Group and the Grubhub Group expect to incur significant costs associated with the Transaction and combining the operations of the two businesses. The significant costs associated with the Transaction include, among others, fees and expenses of financial advisors (certain of which are described under “Grubhub Proposal I: Adoption of the Merger Agreement—Opinion of Grubhub’s Financial Advisor” beginning on page 94 of this proxy statement/prospectus) and other advisors and representatives, retention, severance and change in control costs relating to employees of the Grubhub Group (which are described under “Grubhub Proposal I: Adoption of the Merger Agreement—Treatment of Grubhub Equity Awards—Interests of Grubhub’s Directors and Executive Officers in the Transaction” beginning on page 120 of this proxy statement/prospectus), costs of defending any potential shareholder litigation related to the Transaction, filing fees due in connection with filings required under the HSR Act and the joint voluntary notice filed with CFIUS, and filing fees and
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printing and mailing costs for this proxy statement/prospectus and the European Prospectus. See Note 5 to the Unaudited Pro Forma Condensed Combined Financial Information in “Just Eat Takeaway.com Group Unaudited Pro Forma Condensed Combined Financial Information” and “—Risks Relating to the Transaction—The Transaction may be subject to litigation, which could result in substantial costs and may delay or prevent the Transaction from being completed” beginning on page 255 and 37, respectively, of this proxy statement/prospectus. The Just Eat Takeaway.com Group and the Grubhub Group currently expect to incur approximately €67 million and €57 million, respectively, in non-recurring costs in connection with the Transaction, although actual costs may vary. Some of these costs have already been incurred or may be incurred regardless of whether the Transaction is completed, including a portion of the fees and expenses of financial advisors and other advisors and representatives and filing fees under the HSR Act and CFIUS and those related to this proxy statement/prospectus. The Just Eat Takeaway.com Group and the Grubhub Group also will incur fees and costs related to formulating and implementing integration plans with respect to the two companies, including systems integration costs. Just Eat Takeaway.com continues to assess the magnitude of these costs, and additional unanticipated costs may be incurred in the Transaction and the integration of the two companies’ businesses. The expected net benefits associated with these costs may not be achieved in the near term, or at all.
Grubhub may waive one or more conditions to the Transaction without resoliciting stockholder approval for the Transaction.
Certain conditions to Grubhub’s obligations to complete the Transaction, including the absence of events or circumstances having a material adverse effect on Just Eat Takeaway.com and its subsidiaries, the performance by Just Eat Takeaway.com, Merger Sub and Merger Sub II of their respective obligations under the Merger Agreement required to be performed on or prior to Completion, that the representations and warranties of Just Eat Takeaway.com, Merger Sub I and Merger Sub II are true and correct as of the first effective time (subject to certain materiality qualifications) and delivery by Just Eat Takeaway.com of an officer’s certificate certifying as to the foregoing conditions, may be waived, in whole or in part, either unilaterally or by agreement of Just Eat Takeaway.com and Grubhub (in each case, to the extent legally permissible). If one or more conditions to the Transaction are waived by Grubhub, Grubhub will evaluate whether waiver of such condition or conditions is material and amendment of this proxy statement/prospectus and resolicitation of proxies would be warranted. In the event that any such waiver does not require resolicitation of stockholders, the parties will have the discretion to complete the Transaction without seeking further stockholder approval.
The opinion of Grubhub’s financial advisor will not reflect changes in circumstances after the date of such opinion.
On 10 June 2020, at a meeting of the Grubhub Board, Evercore rendered its oral opinion, subsequently confirmed by delivery of a written opinion that, based upon and subject to the assumptions, qualifications and limitations and other matters set forth therein, as of such date, the exchange ratio pursuant to the Merger Agreement was fair, from a financial point of view, to the holders of Grubhub Shares, other than excluded shares. Grubhub has not obtained, and will not obtain, an updated opinion from Evercore. Evercore provided its opinion to the Grubhub Board (in its capacity as such) for the information and benefit of the Grubhub Board in connection with its evaluation of the Transaction. Changes in the operations and prospects of Grubhub and Just Eat Takeaway.com, general market and economic conditions and other factors, many of which are beyond the control of Grubhub and Just Eat Takeaway.com, may alter the value of Grubhub or Just Eat Takeaway.com or the prices of Grubhub Shares or Just Eat Takeaway.com Shares by Completion. See “—Risks Relating to the Transaction—The exchange ratio is fixed and will not be adjusted in the event of any change in the market price of Just Eat Takeaway.com Shares or Grubhub Shares. Because the market price of Just Eat Takeaway.com Shares may fluctuate, the value of the merger consideration that Grubhub Stockholders will receive in the Transaction is uncertain” beginning on page 38 of this proxy statement/prospectus. The opinion does not speak as of the time of Completion or as of any date other than the date of the opinion. For a description of the opinion rendered by Evercore, see “Grubhub Proposal I: Adoption of the Merger Agreement—Opinion of Grubhub’s Financial Advisor” beginning on page 94 of this proxy statement/prospectus.
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Grubhub Stockholders will have a reduced ownership and voting interest in Just Eat Takeaway.com immediately after Completion than they currently have in Grubhub. Therefore and regardless of any changes in governance, former Grubhub Stockholders will have significantly less influence over management of Just Eat Takeaway.com following the Transaction than they currently have over the management of Grubhub.
Following Completion, each Grubhub Stockholder will become a holder of New Just Eat Takeaway.com ADSs with a percentage ownership of Just Eat Takeaway.com after the Transaction that is significantly smaller than the Grubhub Stockholder’s percentage ownership of Grubhub prior to the Transaction. Based on the number of Grubhub Shares and Just Eat Takeaway.com Shares (excluding treasury shares) outstanding as of 20 April 2021, and the total number of Grubhub Shares issuable under outstanding Grubhub equity awards that are expected to be settled for New Just Eat Takeaway.com ADSs in connection with the Transaction, it is expected that, immediately after Completion, former Grubhub Stockholders will own approximately 30% of Just Eat Takeaway.com’s outstanding share capital. Consequently, former Grubhub Stockholders will have significantly less influence over the management and policies of the Just Eat Takeaway.com Group than they currently have over the management and policies of the Grubhub Group.
The Pro Forma Financial Information does not reflect the actual or forecast results of operations for the periods presented or for future periods, and the actual results of operations, business and financial position after the Transaction may differ materially.
The Pro Forma Financial Information is presented for informational purposes only and is not necessarily indicative of the combined financial position or results of operations that would have been realized had the Transaction and the Just Eat Acquisition occurred as of the dates indicated, nor is it meant to be indicative of any anticipated combined financial position or future results of operations that the Enlarged Group will experience after Completion. The unaudited pro forma adjustments are based upon the best available information and certain assumptions that Just Eat Takeaway.com believes to be reasonable. For example, the estimated purchase price allocation included in the Pro Forma Financial Information is provisional and based on information currently available. The actual fair values used in the purchase price allocation will be determined upon Completion and may vary materially from these provisional estimates. In addition, Just Eat Takeaway.com’s share price and exchange rates at the time of Completion would each have a material impact on the total acquisition price, and the accuracy of the Pro Forma Financial Information. The Pro Forma Financial Information does not reflect any adjustment for liabilities or related costs of any integration and similar activities, or benefits, including potential benefits that may be derived in future periods, from the Transaction. See “Just Eat Takeaway.com Group Unaudited Pro Forma Condensed Combined Financial Information” beginning on page 255 of this proxy statement/prospectus.
Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group
Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to establish, maintain or expand its leadership positions and establish, maintain or increase its profitability in some or all of the jurisdictions in which it currently operates, including as a result of competition.
Online food delivery services are highly competitive and prone to rapid changes. The Just Eat Takeaway.com Group and the Grubhub Group currently face and, following Completion, the Enlarged Group will continue to face competition in each of the jurisdictions in which they operate from other online food delivery marketplaces as well as independent restaurants and regional and national chain restaurants, including those that offer their own online ordering services, delivery services and/or their own mobile applications. For example, in the U.S., the Grubhub Group faces, and following Completion, the Enlarged Group will face, competition from DoorDash, Inc. (which completed its initial public offering (an “IPO”) on 9 December 2020), as well as the Uber Eats segment of Uber Technologies, Inc. and Postmates Inc., which was acquired by Uber Technologies, Inc. on 1 December 2020. In the UK and the EU, the Just Eat Takeaway.com Group principally faces, and following Completion, the Enlarged Group will principally face, competition from Deliveroo Holdings plc (which completed its IPO on 31 March 2021), the Uber Eats segment of Uber Technologies, Inc., Glovoapp23, S.L. and Wolt Enterprises Oy. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may face increased competition from DoorDash, Inc. and Deliveroo Holdings plc. The vast majority of restaurants that participate on the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s platforms can simultaneously work with or switch to one or more of their
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competitors or use their own online ordering services, delivery services and/or mobile applications, which may result in fewer consumers ordering from such restaurants via the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s platforms. The competitive landscape in each particular jurisdiction in which the Just Eat Takeaway.com Group and the Grubhub Group operate and, following Completion, the Enlarged Group will operate is likely to change over time, including due to consolidation among existing competitors or the emergence of new market entrants and technological developments and innovation by competitors. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—If the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group do not continue to innovate or otherwise meet consumer expectations, they may not remain competitive and their businesses and results of operations could suffer” beginning on page 43 of this proxy statement/prospectus.
Larger competitors, including those formed as a result of consolidation or new market entrants, particularly if they have greater financial resources, could undertake extensive marketing campaigns aimed at increasing consumers’ awareness, website visits, mobile application downloads and orders through such competitors’ online platforms, which may compel the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group to increase their own marketing expenditures in order to maintain their market share, or could lead to their losing market share (notwithstanding their efforts to maintain their market share). Increased competition by larger competitors could also adversely impact the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group to the extent that it results in downward pressure on the commission rates that they are able to charge restaurants and/or the fees that they are able to charge consumers.
In particular, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be forced to compete with companies with significantly greater financial resources or infrastructure. This may include large data or mobile services providers, such as Google, logistical, delivery or transportation companies, such as Amazon and Uber, or other large technology companies, retailers or supermarket chains, if and to the extent that such companies choose to compete actively in, or devote substantial additional financial resources to, the sectors and markets in which the Just Eat Takeaway.com Group and the Grubhub Group operate and, following Completion, the Enlarged Group will operate.
In addition to the risk of competition from new entrants or existing online food delivery marketplaces, the success of different business models in the food delivery and pick-up industry, such as logistics-focused food delivery companies (that is, companies that partner with restaurants to provide logistics and deliver food on their behalf) might attract and retain current or potential consumers of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s services. For example, in certain of the jurisdictions in which the Just Eat Takeaway.com Group and the Grubhub Group operate and, following Completion, the Enlarged Group will operate, on-demand delivery service companies are active, which can connect consumers to delivery personnel who are able to pick up and deliver a potentially broad range of food and other products and services as requested by the consumer.
Just Eat Takeaway.com believes that it operates in a “winner takes most” industry. Just Eat Takeaway.com believes that a single online food delivery marketplace that is able to achieve clear leadership (which Just Eat Takeaway.com defines as an online food delivery marketplace with a large consumer base that in absolute terms is multiple times larger than that of any other competitor) is thereby increasingly able to benefit from network effects (that is, more restaurant choices driving more consumer traffic and more consumer traffic driving more restaurant additions to the platform and hence more restaurant choices).
In a number of the markets in which the Just Eat Takeaway.com Group currently operates, a clear market leader has not yet emerged, even in certain jurisdictions in which it currently has a leading position in terms of GMV. In such jurisdictions, it is possible that the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s competitors will be able to achieve clear market leadership before they do, such as through significant marketing expenditure or by initiating other actions to strengthen their brands. Should a competitor in a particular market achieve clear market leadership with the network effects expected to arise from such a position, Just Eat Takeaway.com would expect the business and prospects of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group in that market to suffer. If this risk were to materialize, this could lead to a loss of, or failure to increase, market share or otherwise materially adversely affect the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
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If the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group do not continue to innovate or otherwise meet consumer expectations, they may not remain competitive and their businesses and results of operations could suffer.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s success each depends on, and following Completion, the Enlarged Group’s success will depend on, the quality and user-friendliness of their websites and mobile applications and the quality of their back-end technology infrastructure. To remain competitive, Just Eat Takeaway.com believes that each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group will need to continuously enhance and improve the functionality and features of their websites and mobile applications to maintain a convenient, efficient and reliable user experience for consumers, restaurants and drivers. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be unable to keep pace with developments in their websites and mobile applications or their back-end technology infrastructure and other trends or disruptive innovations in the e-commerce industry relative to their competitors, such as the development of predictive software or variants of artificial intelligence. For example, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not sufficiently develop or assess consumer behavior analysis or identify emerging consumer trends. Any such failure may lead to the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group losing market share to their competitors to the extent that their competitors roll out more popular websites and/or mobile applications and software more consistently, or more quickly, than the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group is able to do so. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to establish, maintain or expand its leadership positions and establish, maintain or increase its profitability in some or all of the jurisdictions in which it currently operates, including as a result of competition” beginning on page 41 of this proxy statement/prospectus.
In addition, the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group may fail to adequately manage and execute other opportunities for innovation. Any failure to keep pace with technological developments could affect the ability of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group to retain consumers, restaurants and drivers and have a material adverse effect on the pursuit of their strategic goals, as well as on their business, results of operations, financial condition and/or prospects.
The success of each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group depends on their reputation and the reputation and consumer awareness of their brands, which may be negatively impacted by negative publicity relating to them, any of their brands, the restaurants on their platforms or the food delivery industry in general.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s brands are, and following Completion, the Enlarged Group’s brands will continue to be, a key part of their value proposition relative to actual and potential competitors, and therefore, any failure to maintain brand appeal is a potential business threat. The threat is heightened by the fact that the Just Eat Takeaway.com Group generally focuses its platforms on a single brand in each market. Each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s brands could suffer as a result of a range of events beyond their control, such as a food poisoning incident (including as a result of food hygiene standards) or an allergic reaction involving one or more of the restaurants on its platforms (whether or not the food was ordered via its platforms), violation of food safety rules by restaurants on its platforms, failure by restaurants on their platforms to comply with the EU food information regulations, to the extent applicable (see “—Legal and Regulatory RisksThe Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group operate in certain countries with stringent food safety laws and laws related to the sales of alcohol, in each case, applicable to restaurants listed on their respective platforms and such laws may also apply to the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group, which could result in increased compliance costs as well as liability for, and material damage to their reputations as a result of, non-compliance with such laws” beginning on page 60 of this proxy statement/prospectus), other health scares involving restaurants generally, data breaches, traffic accidents caused by, or involving, drivers recognizably associated with any of the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s brands, whether or not employed or engaged by the Just Eat Takeaway.com Group, the Grubhub Group or,
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following Completion, the Enlarged Group, or other misconduct by persons associated with items or merchandise bearing the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s brands. The risk of reputational damage due to the misconduct of individuals is increased by the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s expansion of their own complementary logistical food delivery services.
In addition, the Just Eat Takeaway.com Group’s and the Grubhub Group’s operations depend on, and following Completion, the Enlarged Group’s operations will depend on, various third parties to provide services, in particular telecommunications, internet and cloud providers, as well as banks and payment service providers used by the Just Eat Takeaway.com Group or the Grubhub Group and their consumers (see “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Any disruptions to each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s IT systems and related infrastructure, including due to system outages or supply chain failures affecting telecommunications, internet service providers, payment service providers or technology manufacturers upon which they depend, may adversely affect their performance” beginning on page 45 of this proxy statement/prospectus). Notwithstanding the redundant architectures and resilience measures that have been designed into the Just Eat Takeaway.com Group’s and the Grubhub Group’s operational systems and, following Completion, will be designed into the Enlarged Group’s operational systems, there remains a risk that potential system outages or cyber-attacks may affect the operation of telecommunications, cloud or internet services, as well as any unannounced action by telecommunications, cloud or internet service providers. As consumers and restaurants may attribute any performance failure or payment problem relating to a food delivery order to the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group and their brands, regardless of the cause of the failure or problem, consumers may become dissatisfied with the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s value proposition. In addition, as the Just Eat Takeaway.com Group’s and the Grubhub Group’s hybrid business models are premised on connecting restaurants and consumers, in many cases they rely on restaurants to deliver food, rather than the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group performing this function directly or through third parties. Accordingly, delays in deliveries by restaurants, or the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s inability to offer a uniform food delivery experience, could adversely affect perceptions of their value proposition.
Negative publicity as a result of any of the foregoing could have a material adverse effect on the Just Eat Takeaway.com Group’s or, following Completion, the Enlarged Group’s reputation and the reputation of their brands. This risk is heightened by the fact that the Just Eat Takeaway.com Group operates, and following Completion, the Enlarged Group will operate, in an industry that is impacted by dynamic social change and public expectation, such as food safety, allergens and workers’ rights. The effect of negative publicity could be exacerbated to the extent dissatisfaction with the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group is disseminated via social media due to its immediacy and accessibility as a means of communication.
Each of the Just Eat Takeaway.com Group and the Grubhub Group relies on, and following Completion, the Enlarged Group will rely on, the skills and experience of its management and other key personnel, and the loss of any of these team members and qualified personnel could have a material adverse impact on business operations.
The Just Eat Takeaway.com Group’s performance, success and ability to fulfil its strategic objectives is substantially dependent on retaining its current executives, members of its management and key personnel, who are experienced in the markets and the businesses in which it operates. In particular, the Just Eat Takeaway.com Group is dependent on the skills and experience of Just Eat Takeaway.com’s founder and current chief executive officer (“CEO”), Jitse Groen, who plays a key role in setting the Just Eat Takeaway.com Group’s and, following Completion, will play a key role in the Enlarged Group’s strategic direction. The unexpected departure of Just Eat Takeaway.com’s chief financial officer (“CFO”), Brent Wissink, and chief operational officer (“COO”), Jörg Gerbig, or of Grubhub’s CEO and founder and, following Completion, the head of the Enlarged Group’s North American operations, Matt Maloney, could also have a material adverse effect on the Just Eat Takeaway.com
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Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business operations. Furthermore, the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s results of operations depend upon their personnel’s experience with, and knowledge of, local markets, IT trends and their own IT systems.
There can be no assurance that the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group will be able to retain their executives, members of management and other key personnel (see “—Risks Relating to the Transaction—Uncertainties associated with the Transaction may cause a loss of the Grubhub Group’s senior management personnel and other key employees, which could have an adverse effect on the results of operations, business and financial position of the Grubhub Group and, following Completion, the Enlarged Group” beginning on page 36 of this proxy statement/prospectus). If the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group are unable to find adequate replacements or to attract, retain and incentivize senior executives, other key employees or new qualified personnel, such inability could have a material adverse effect on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
Any disruptions to each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s IT systems and related infrastructure, including due to system outages or supply chain failures affecting telecommunications, internet service providers, payment service providers or technology manufacturers upon which they depend, may adversely affect their performance.
Despite the resilience and disaster recovery capabilities of the Just Eat Takeaway.com Group’s and the Grubhub Group’s IT systems and infrastructure, there is no assurance that the IT systems underlying the Just Eat Takeaway.com Group’s and the Grubhub Group’s platforms, or that will underlie the Enlarged Group’s platforms following Completion, will not temporarily fail. Any failure of, or disruptions to, such IT systems may adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s performance.
Although the Just Eat Takeaway.com Group operates two fully functional data centers (housed in external co-location facilities) in the Netherlands and Germany to support the historical Takeaway.com operating markets, thus ensuring near technical and geographical redundancy, any system outages affecting the operation of telecommunications or the internet may restrict the ability of consumers to access the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s platforms or restaurants and the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s ability to receive and process orders. In addition, the Just Eat Takeaway.com Group operates certain of its e-commerce workloads in the cloud to support the historical Just Eat operating markets, taking advantage of high availability infrastructure and software designs to provide a highly resilient service protecting its ability to receive, process and accept payment for orders. Any outages that affect the operation of the cloud may additionally therefore affect the efficiency of the service provided by the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group. Any such failures in services provided by the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group or third party telecommunications providers, co-location providers, internet service providers or cloud and payment services providers could adversely affect the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
The Grubhub Group relies on cloud providers to provide a reliable network backbone with the speed, data capacity, security and hardware necessary for reliable internet access and services. The Grubhub Group also relies on a third-party payment processor and encryption and authentication technology licensed from third parties that is designed to effect secure transmission of personal information provided by its consumers. If the Grubhub Group’s payment processor, a cloud provider or another third party, does not perform adequately, terminates its relationship with the Grubhub Group or refuses to renew its agreement with the Grubhub Group on commercially reasonable terms, the Grubhub Group and, following Completion, the Enlarged Group may have difficulty finding an alternate provider on similar terms and in an acceptable timeframe, its and, following Completion, the Enlarged Group’s costs may increase and its and, following Completion, the Enlarged Group’s, business and results of operations could be harmed.
The Just Eat Takeaway.com Group and the Grubhub Group rely on several commercial devices to connect restaurants to their platforms. These devices provide the interface for restaurants to receive, fulfill or reject orders. In the case of the Just Eat Takeaway.com Group, such devices are custom designed, sourced from specific suppliers and are distributed widely across their restaurant estates. Whilst the Just Eat Takeaway.com Group and
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the Grubhub Group continue to mitigate risks through a greater diversity in restaurant connectivity options, there remains a risk that a significant supply chain issue could impact business performance in the territories where those devices are deployed (see “— Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group may face certain risks in connection with the supply of their restaurant devices” beginning on page 54 of this proxy statement/prospectus). Should devices develop significant hardware or software-related issues or failures, this could similarly impact supply levels as inventories are consumed above forecast levels and, in the case of the Just Eat Takeaway.com Group, adjustment to demand requires several months lead-time. If information security controls were to be circumvented and the devices’ central management systems were subject to a security breach, a group population of restaurants could simultaneously be disrupted.
Compromised security measures and performance failures due to hacking, viruses, fraud and other malicious attacks could adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s reputation.
Like all online services, the Just Eat Takeaway.com Group’s and the Grubhub Group’s platforms are, and following Completion, the Enlarged Group’s platforms will be, vulnerable to computer viruses, break-ins, phishing attacks, ransomware attacks, attempts to overload their servers with distributed denial-of-service (“DDoS”) attacks, credential stuffing attacks, misappropriation of data through website scraping or other attacks or similar disruptions from unauthorized use of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s computer systems. Despite the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s resilience and disaster recovery procedures, the occurrence of any of the foregoing with respect to the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s platforms or any third-party service providers which the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group currently or in the future rely upon could lead to interruptions, delays or website shutdowns, potentially causing lost business, temporary inaccessibility of critical data, or account details, including personal data, being stolen or released. The coverage under the insurance policies of the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group may not be adequate to reimburse the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group for losses caused by security incidents, or other adverse consequences related to a security incident.
In the normal course of business, the Just Eat Takeaway.com Group and the Grubhub Group have discovered various security threats and incidents that may involve the information of its diners, delivery partners, restaurant partners, employees, vendors and/or contractors. For example, the Just Eat Takeaway.com Group experienced a potentially coordinated series of severe DDoS attacks in March 2020 affecting several hundred thousand orders. Likewise, the Grubhub Group has experienced various security threats and incidents, including, for example, malware identified on company systems or machines, phishing and social engineering efforts directed at its employees, and non-compliance with internal security requirements and procedures that have impacted data stored on its systems. In addition, the Grubhub Group has experienced incidents of fraud on its platform by unauthorized parties who log into Grubhub accounts. Although none of these threats and incidents resulted in regulatory inquiries, litigation, or a material impact on the reputation, business operations or financial performance of the Just Eat Takeaway.com Group or the Grubhub Group, respectively, any future security incident could have a material adverse impact on the respective reputation, business operations, or financial performance of the Just Eat Takeaway.com Group and the Grubhub Group. Each of the Just Eat Takeaway.com Group and the Grubhub Group has undertaken steps to enhance its respective data security programs, which include adding additional protective security layers around the data, improving security protocols that govern access to systems, and further reducing security risks through risk assessments and regular testing. The Just Eat Takeaway.com Group and the Grubhub Group have committed and, following Completion, the Enlarged Group will continue to commit, considerable resources to continually enhance the security of their systems, such efforts may not be sufficient.
Compromised security measures and performance or security failures of some of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s services or of third-party service providers’ services which the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group currently or in the future rely upon may adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s competitive position, relationships with
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restaurants, consumers and suppliers, and therefore, their businesses, results of operations, financial condition and/or prospects, as consumers and restaurants may lose confidence in their reliability, and consumers may be inclined to order food delivery through a competitor or alternative means. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Any disruptions to each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s IT systems and related infrastructure, including due to system outages or supply chain failures affecting telecommunications, internet service providers, payment service providers or technology manufacturers upon which they depend, may adversely affect their performance” beginning on page 45 of this proxy statement/prospectus.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s entry into new business areas or markets may not be successful and may expose the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group to additional risks and uncertainties.
The growth that the Just Eat Takeaway.com Group and the Grubhub Group have experienced, and any future growth that, following Completion, the Enlarged Group may experience, may pose various challenges to the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group, such as finding suitable personnel on every operational level, including qualified IT personnel, customer services employees and sales agents. Notwithstanding the degree of scalability built into the Just Eat Takeaway.com Group’s and the Grubhub Group’s platforms, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to scale and adapt their existing technology and network infrastructure as their businesses grow. Any failure by the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to expand their operations and staff successfully may have an adverse effect on their reputation, business and/or results of operations.
Where the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group grow their operations by expanding their businesses into new markets or offering new services, they may not be able to do this in a cost-effective and/or timely manner. New business endeavors launched or expanded by the Just Eat Takeaway.com Group, such as its Delivery services, which is intended to complement the main business activities of the Just Eat Takeaway.com Group, or the development of business-to-business food delivery services, such as City Pantry and Takeaway Pay, may not be favorably received by corporate customers, consumers or restaurants or by governments or regulators, or may not become profitable. In addition, entering into new geographical markets, such as the Just Eat Takeaway.com Group’s entry into the Israeli, Bulgarian and Romanian markets, or growing the business in existing markets may prove more costly or time-consuming than expected, and consumers and restaurants in such markets may be less receptive to the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s value proposition than anticipated based on their expectations from, and experience in, their other markets. The entry into new markets and geographical regions will also expose the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group to additional integrity, financial, compliance, currency and geopolitical risks, including corruption, nepotism, bribery, money laundering and terrorism financing, political instability, and conflicts with or between countries in certain regions.
Any such expansion of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s operations may also require significant additional investment, together with operations and resources, which may strain their management, personnel, financial and operational resources. The lack of market acceptance of such efforts or the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s inability to generate sufficient revenue from such expanded services, products or operations to offset their costs could have a material adverse effect on their business, results of operations, financial condition and/or prospects.
Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be unable to integrate successfully or achieve the expected benefits of any prior or future acquisitions, or may be unable to identify and acquire suitable acquisition candidates.
While the Just Eat Takeaway.com Group has historically established its market position in most of its largest markets predominantly through organic growth, it has undertaken acquisitions (in addition to the Transaction) and it, the Grubhub Group and, following Completion, the Enlarged Group may continue to do so in order to
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establish or maintain leading positions in terms of overall Orders in certain markets in the future. The integration of any prior or future acquisitions may not generate sufficient benefits for the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to justify the costs that they will incur in completing such acquisitions. The integration of local operations may place substantial demands on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s management and departments, may take longer or be more costly than anticipated, may result in material tax liabilities, the loss of key employees and may pose organizational challenges, including challenges to their operations, and IT-related challenges, any or all of which the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group may fail to address effectively, resulting in the disruption of their businesses, their inability to maintain relationships with restaurants, consumers and employees, and their ability to achieve the anticipated benefits of any prior or future acquisition or maintain quality standards.
In particular, Just Eat Takeaway.com recently completed the Just Eat Acquisition, which was a transformative transaction and for which the process of integrating the two businesses is ongoing. Just Eat Takeaway.com may encounter difficulties integrating Just Eat into its existing business. The failure to meet the challenges involved in integrating the historical Just Eat operations into the Just Eat Takeaway.com Group’s business may exacerbate the risks Just Eat Takeaway.com faces in integrating Grubhub or any future business it acquires and could cause an interruption of, or a loss of momentum in, the Just Eat Takeaway.com Group’s activities and could have a material adverse effect on its business, financial condition and results of operations.
In addition, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may fail to discover material liabilities prior to an acquisition for which they may be responsible, or they may not be able to retain acquired key staff members, restaurants or consumers. Any failure to efficiently and effectively integrate acquired businesses, including as a result of the Transaction or a prior acquisition, may result in less growth than the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group anticipated and may have an adverse material effect on their business, results of operations, financial condition and/or prospects. See “—Risks Relating to the Transaction—The Transaction subjects the Enlarged Group and its investors to potential significant risks as a result of the integration process, including adherence to additional regulatory requirements, and no assurance can be given that the integration process will deliver all or substantially all of the expected benefits” beginning on page 35 of this proxy statement/prospectus.
Any acquisition may also require substantial marketing efforts in order to raise restaurant and consumer awareness in the relevant market and to reach and broaden the addressable market. Despite such efforts and investments, consumer and restaurant awareness and acceptance for the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s platforms may not increase or increase at a slower pace than anticipated, which could adversely affect progress towards profitability and/or cash flows. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may also need to record impairment charges related to potential write-downs of acquired assets, goodwill or other intangible assets in relation to prior or future acquisitions.
The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group can also not be certain that they will be able to identify and acquire, on reasonable terms, if at all, suitable acquisition candidates. With consolidation being likely to continue as an industry trend, the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group could be faced with increasing competition for attractive acquisition candidates. Failure to identify and/or acquire suitable acquisition candidates or the acquisition of unsuitable candidates could impair the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to achieve their strategic goals. Compliance with antitrust or any other regulations may delay proposed acquisitions or prevent Just Eat Takeaway.com or, following Completion, the Enlarged Group from closing acquisitions, if at all. If this risk were to materialize, this could adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
Public health issues such as a major pandemic or epidemic, including the long-term continuation or escalation of the COVID-19 outbreak, may have an adverse impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business could be materially and adversely affected by the outbreak of a widespread epidemic or pandemic, including the long-term continuation or escalation of the COVID-19 outbreak. Such events could result in
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significant changes to the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s restaurant inventory, consumer behavior or cost of providing delivery services, any or all of which could have a material adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business, financial condition and results of operations.
In December 2019, an outbreak of a new strain of coronavirus, COVID-19, was identified in Wuhan, China, and has since spread globally, including in the United Kingdom, continental Europe and the United States, where the Just Eat Takeaway.com Group’s and the Grubhub Group’s operations are primarily concentrated. On 11 March 2020, the World Health Organization confirmed that its spread and severity had escalated to the level of a pandemic. Since the effects of the COVID-19 pandemic took hold internationally in the first quarter of 2020, the Just Eat Takeaway.com Group and the Grubhub Group observed initial downside as government lockdowns were announced, restaurants closed and consumers reacted with heightened caution. In addition, governments in certain of the markets where the Grubhub Group operates introduced emergency orders that limit the commission that the Grubhub Group can charge its restaurant partners during the pandemic in order to aid the restaurant sector. For example, in May 2020, the New York City Council passed legislation imposing a 20% cap on fees, consisting of a 15% cap on commissions for delivery services and an additional 5% cap on all other charges, including marketing charges, and in August 2020 extended the duration of such restrictions until 90 days after restaurants are allowed to operate at full indoor capacity. As such, emergency orders or legislation limiting the commission that the Grubhub Group can charge its restaurant partners remain in place in certain markets, and additional restrictions may be put in place limiting the commission that the Grubhub Group can charge its restaurant partners in the future. Within the Just Eat Takeaway.com Group’s markets, commission restrictions have been introduced in one market and may be introduced in additional markets—on 19 December 2020, a regulation came into effect in Ontario, Canada which caps fees charged to non-chain restaurants by third parties for food and beverage delivery services and related services while the restaurants are prohibited from offering indoor dining. The regulation provides caps of (i) 15% of the cost of the delivery order for food and beverage delivery services; (ii) 20% of the cost of the delivery order for food and beverage delivery services and related services; and (iii) 10% of the cost of the order for marketplace orders (including pickup and restaurant delivery orders). The Ontario regulation is unlikely to have an immediate material effect on SkipTheDishes (“Skip”), the Just Eat Takeaway.com Group’s Canadian business, because Skip has proactively and voluntarily been providing rebates on commissions for independent restaurants and select brands subject to indoor dining prohibitions in Ontario, at a level that would generally result in compliance by Skip under the regulation. However, there can be no assurance that further limits on commissions will not be enacted.
To the knowledge of the Just Eat Takeaway.com Group and the Grubhub Group, all of the current fee caps in the U.S. are expected to end as the impact of the COVID-19 pandemic wanes; however, the Just Eat Takeaway.com Group and the Grubhub Group cannot reasonably estimate the duration of any such restrictions. In addition, any permanent or long-term regulations that limit the commission the Just Eat Takeaway.com Group and the Grubhub Group can charge their restaurant partners could have a material adverse effect on their and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects. However, as a consequence of the COVID-19 pandemic, social distancing, government action and consumers’ desires for safer alternatives, an upside for the industry became apparent through increased consumer sign-ups and restaurant sign-ups, greater consumer order frequency and higher average order values (“AOV”). Although this has, in some respects, positively impacted, and continues in some respects to positively impact, performance across the majority of markets in which the Just Eat Takeaway.com Group and the Grubhub Group operate and indicates a degree of resilience enjoyed by the online takeaway industry, the performance to date has been dependent on government policy and there remain lockdown scenarios where such resilience and performance may not be possible. Therefore past performance and resiliency should be considered with caution.
In addition, epidemics or pandemics and disease outbreaks, including the COVID-19 pandemic, have resulted in, and may continue to result in, significant disruption of global financial markets, which could reduce the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to access capital and could negatively impact the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s liquidity in the future. As a result of such epidemics or pandemics, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s restaurant partners may also face difficulties accessing credit, which may increase liquidity problems and
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business closures, and consumer confidence may weaken, resulting in decreased spending and demand for credit, which could have a material adverse effect on the business, results of operations, financial condition and/or prospects of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group.
The Just Eat Takeaway.com Group has a history of net losses and the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group could continue to incur substantial net losses in the future, and may not become profitable in the future.
The Just Eat Takeaway.com Group has incurred net losses since its inception, including net losses of €170 million, €121 million and €7 million for the years ended 31 December 2020, 2019 and 2018, respectively. The Grubhub Group has incurred net losses in recent periods, including net losses of $156 million and $19 million for the years ended 31 December 2020 and 2019, respectively. In addition, the Just Eat Takeaway.com Group’s and the Grubhub Group’s operating expenses may increase over time, particularly as they make investments to scale and expand their businesses. These investments may not result in increased revenue or higher growth and may prove more expensive than the Just Eat Takeaway.com Group or the Grubhub Group currently anticipates.
In addition, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may encounter unforeseen or unpredictable factors, including unforeseen operating expenses, complications or delays. While each of the Just Eat Takeaway.com Group’s and the Grubhub Group’s respective revenue has grown in recent years, this growth rate may not be sustainable, and if their revenue declines or fails to grow at a rate faster than increases in their operating expenses, the Just Eat Takeaway.com Group and the Grubhub Group may not achieve or maintain profitability in future periods.
See, also, “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not continue to grow at historical rates and may not be able to achieve or maintain profitability across their businesses” beginning on page 50 of this proxy statement/prospectus.
To the extent that the Just Eat Takeaway.com Group’s and the Grubhub Group’s financial results have been positively impacted by the COVID-19 pandemic, such results may not be indicative of results for future periods.
As a result of the COVID-19 pandemic, the Just Eat Takeaway.com Group and the Grubhub Group have seen trends towards increasing Orders and the increasing adoption of online payments as the preferred method of payment of its consumers accelerate due to a shift of consumer behavior. Consequently, despite certain adverse impacts from the COVID-19 pandemic (see “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Public health issues such as a major pandemic or epidemic, including the long-term continuation or escalation of the COVID-19 outbreak, may have an adverse impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business” beginning on page 48 of this proxy statement/prospectus) the impact of the COVID-19 pandemic on the Just Eat Takeaway.com Group’s business and the Grubhub Group’s business has, in some respects, been positive. However, the Just Eat Takeaway.com Group cannot reasonably estimate the duration of the pandemic or future changes in consumer spending patterns as a result of the continuation or conclusion of the pandemic. To the extent that the Just Eat Takeaway.com Group’s and the Grubhub Group’s financial results for the year ended 31 December 2020 may have been positively impacted by COVID-19, such results may not be indicative of results for future periods.
The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not continue to grow at historical rates and may not be able to achieve or maintain profitability across their businesses.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s businesses have grown rapidly since their founding in 2000 and 1999, respectively. However, this historical rate of growth is likely to decline in the future. In some more mature markets, such as the Netherlands, the UK and Denmark, the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group could be confronted with saturating markets that result in declining growth rates of new consumers, even while the Just Eat Takeaway.com Group, the
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Grubhub Group and, following Completion, the Enlarged Group continue to add new consumers, which could adversely affect their growth and ability to achieve or maintain profitability across their businesses. In other markets where the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group will be focused on developing their market positions, their growth and ability to achieve or maintain profitability could be adversely affected, in particular, if they fail to establish or expand their market position either in absolute terms or relative to their competitors, or if increased marketing expenditures by their competitors in such markets, including in terms of more competitive and therefore more expensive bidding for pay-per-click/pay-per-order marketing initiatives, drive up their performance marketing costs. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to establish, maintain or expand its leadership positions and establish, maintain or increase its profitability in some or all of the jurisdictions in which it currently operates, including as a result of competition” beginning on page 41 of this proxy statement/prospectus. In addition, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s growth and ability to achieve or maintain profitability across their businesses could be adversely affected in such markets, if the shift from ordering food offline to ordering food online and via mobile devices occurs at a slower pace than anticipated.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s success will also depend, to a substantial extent, on the willingness of consumers to continue, and to increase, their use of online services and online food delivery marketplaces as a method of ordering food, rather than to use telephone-based and walk-in services, or other online options, provided by local restaurants and other competitors. The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s success also depends on the willingness of restaurants to utilize an online food marketplace. Independent restaurants and chains may opt to provide their own mobile and online ordering solutions, or to continue to rely on traditional offline ordering processes, primarily through the use of paper menus, advertisements and the placement of orders over the telephone. In addition, not all restaurants are willing to offer delivery services, thereby limiting the potential number of restaurants that may participate on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s platforms, although in certain cases such restaurants participate on the platforms on a pick-up basis. This could have a material impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to grow their consumer and restaurant network.
In all of their markets, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s growth and ability to achieve or maintain profitability across their businesses, may likewise be constrained by consumers’ failure to increase or maintain the frequency of Orders via their platforms. There may be limited uptake or slower adoption of online food delivery marketplaces, with early adopters already on the platform and other consumers potentially not following suit. As a result, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s value proposition may become less attractive to restaurants, which may result in fewer restaurants participating on the platform, leading to less consumer traffic and less restaurant choice.
Despite the Just Eat Takeaway.com Group’s positive adjusted EBITDA (as defined in “Management’s Discussion and Analysis of Financial Condition and Results of Operations of the Just Eat Takeaway.com Group—Key Non-IFRS Financial Measures” beginning on page 213 of this proxy statement/prospectus) for the year ended 31 December 2020, the Just Eat Takeaway.com Group recorded a net loss for the period, which was mainly driven by acquisition related transaction and integration expenses of €67 million and €35 million, respectively, finance expenses of €30 million, share-based payments of €23 million and share of losses of associates and joint ventures of €16 million (see “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—The Just Eat Takeaway.com Group has a history of net losses and the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group could continue to incur substantial net losses in the future, and may not become profitable in the future” beginning on page 50 of this proxy statement/prospectus).
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Similarly, the Grubhub Group’s significant growth in new consumers and Orders has been offset by investments to grow its business, including the expansion of its delivery network and increased marketing initiatives to generate organic growth. If the Grubhub Group’s performance is below forecast/expectation, this could consequently impact the ability and degree to which future investment can take place.
There can be no assurance that the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group will be able to successfully translate marketing expenditure into Orders, or that they will achieve profitability in markets where the Just Eat Takeaway.com Group and the Grubhub Group are currently not profitable (particularly to the extent they are unable to maintain Order volumes and commission rates that generate revenue exceeding marketing expenditure). Any failure to do so would have an impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects. Ultimately, as each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s markets has its own unique dynamics, success in any one market may not translate to success in other markets, and different approaches may be necessary in order to achieve or maintain profitability.
Any of the foregoing factors could impact the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to achieve or maintain profitability across their businesses and their financial or operational performance, and their ability to achieve or maintain profitability across their businesses, may be better or worse than currently anticipated. Moreover, the markets in which the Just Eat Takeaway.com Group and the Grubhub Group are active and, following Completion, the Enlarged Group will be active, may develop in a manner different from that anticipated by them. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group are subject to the risk that the assumptions underlying their growth strategy may not be accurate and that, consequently, their actual results may differ materially from current expectations or the financial and operational objectives set by them. Any failure by the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group to implement or continue their growth strategy successfully may have a material adverse effect on the business, results of operations, financial conditions and/or prospects of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group.
The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group face certain risks in connection with, and as a result of, their own logistical food delivery services.
In recent years, both the Just Eat Takeaway.com Group and the Grubhub Group have made substantial investments in their own logistical food delivery service businesses and the rollout of their technologies and processes and the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group plan to continue to invest in such businesses in the future.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s roll-out of their own logistical food delivery service businesses has necessitated greater investments in people-related costs, as a logistical food delivery service business model structurally has greater requirements than those associated with online food delivery platforms that are not responsible for making deliveries themselves. Such costs include those related to the acquisition of couriers, software that is used for order forecasting and the management of courier dispatching and, in the case of the Just Eat Takeaway.com Group training of and equipment for couriers, such as e-bikes, couriers’ jackets, delivery bags and other equipment. Although the Just Eat Takeaway.com Group and the Grubhub Group take, and following Completion, the Enlarged Group will take such costs into consideration when determining their delivery commission rates, commission rates are not substantial enough in themselves to cover all such costs without additional customer delivery charges. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to charge commission rates or customer delivery charges in all of their markets, in the future, at a level that would make the provision of their own logistical food delivery services profitable, particularly given increasing competition and the possibility of changing consumer preferences. Furthermore, it is also possible that the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to generate a sufficient number of Orders to optimize the utilization rates of couriers, which is necessary to make logistical food delivery services profitable.
Due to increasing online penetration and the pace of growth of online food ordering and courier churn, the Just Eat Takeaway.com Group and the Grubhub Group seek and following Completion, the Enlarged Group will seek to find enough potential couriers to ensure that they are able to respond to all online orders from their
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consumers in a timely manner. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to recruit a sufficient number of couriers for various reasons, including competition for the services of such couriers by other delivery services (which could be intensified by other cost-sensitive factors, such as the risk of monthly minimum hour requirements or an increase in the average tenure of couriers),growth in a perception that employment as a courier is unattractive due to the risk of involvement in traffic accidents which arises from operating in congested urban areas with intense traffic, as well as labor law-related restrictions applicable in certain jurisdictions (for example, on the number of hours that couriers can work in a single day or on consecutive days). In addition, irrespective of the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s efforts to maintain the satisfaction of their employees (including that of the Just Eat Takeaway.com Group’s couriers) and independent contractors, the risk of conflicts arising with employees and independent contractors and the emergence of other labor-related disputes has increased, since working conditions in the food industry, particularly in the food delivery business, have come to the attention of labor unions in recent times. For an overview of certain recent developments concerning the classification and working conditions of couriers employed in the food delivery sector, see “—Legal and Regulatory Risks—The Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion the Enlarged Group will face, risks associated with the independent contractor model, which is subject to evolving government regulation of, and judicial intervention in, the “gig economy”. Changes in government regulation of or successful challenges to the independent contractor model used by the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group in certain markets may require the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to change their existing business models and operations” beginning on page 57 of this proxy statement/prospectus.
A number of factors contribute to other uncertainties related to the logistical food delivery service businesses, which will continue to be relevant to the Enlarged Group following Completion. The factors which could impact overall profitability and sustainability of a logistical food delivery service business in a given market include: the extent to which consumers favor restaurants that deliver themselves, as opposed to restaurants for which the Just Eat Takeaway.com Group carries out the delivery, the degree to which logistical processes can be optimized, the extent to which efficiencies can be achieved in areas where restaurant, courier and customer demand densities are sub-optimal, external conditions affecting the pricing of couriers, restaurant commissions and delivery fees, and the need to develop solutions in new markets which exhibit different supply, demand and regulatory conditions.
Other operational risks, including potential accidents caused by or involving couriers or the failure to deliver products on time or at all (due to factors such as traffic or technology failure), may impact the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s appeal or result in liabilities, which in turn may negatively affect revenues and/or their reputation.
The materialization of the risks described above could have a material adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and/or, following Completion, the Enlarged Group’s business, reputation, financial condition, results of operations and/or prospects.
The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group may face certain risks in connection with potential software failures in their restaurant management systems which facilitate the receiving and processing of online orders.
The Just Eat Takeaway.com Group relies and, following Completion, the Enlarged Group will continue to rely upon certain restaurant management systems which facilitate the receiving and processing of online orders by restaurants on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s platforms. In the event of any software failure in any of these restaurant management systems, the ability of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group to service the restaurants in their existing networks and expand their networks of restaurants may be materially adversely affected. The Just Eat Takeaway.com Group is in the process of improving disaster recovery so as to reduce this risk, but there can be no guarantee that such efforts will reduce or eliminate the risk of software failures. The Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s risk profile around restaurant software will continue to evolve as they seek to grow their restaurant solutions business with investments such as Practi. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Any disruptions to each of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s IT systems and related infrastructure, including due to system
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outages or supply chain failures affecting telecommunications, internet service providers, payment service providers or technology manufacturers upon which they depend, may adversely affect their performance” and “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Compromised security measures and performance failures due to hacking, viruses, fraud and other malicious attacks could adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s reputation” beginning on pages 45 and 46, respectively, of this proxy statement/prospectus.
The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group may face certain risks in connection with the supply of their restaurant devices.
The Just Eat Takeaway.com Group relies, and following Completion, the Enlarged Group will continue to rely upon the suppliers of restaurant devices which facilitate the receiving and processing of online orders by restaurants on the Just Eat Takeaway.com Group’s platforms and, following Completion, the Enlarged Group’s platforms. If any of these suppliers were to terminate its supply relationship with the Just Eat Takeaway.com Group or, following Completion, the Enlarged Group or become unable for any reason to supply the Just Eat Takeaway.com Group or, following Completion, the Enlarged Group with the requisite numbers of restaurant devices, the ability of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group to service the restaurants in their existing networks and expand their network of restaurants may be materially adversely affected. Furthermore, in the event of product damage or failure in a particular delivery of restaurant devices, there may be consequential constraints upon the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s ability to supply such devices to restaurants that utilize them.
Any inability to overcome supply constraints to meet higher levels of demand from an expanding network of restaurants may have a material adverse effect on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s reputation, business, financial condition and/or results of operations. The Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s risk profile around restaurant devices will continue to evolve as they seek to grow their restaurant solutions business and expand their network of restaurants.
The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group are subject to risks associated with operating with joint venture and other partners.
The Just Eat Takeaway.com Group participates and, following Completion, the Enlarged Group will participate in and may expand through joint ventures and other collaborative activities with third parties, such as iFood in Brazil. Moreover, the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s strategy for entering a new country, particularly in developing markets, may require or be restricted to the purchase of a partial or a controlling interest in an existing entity, whilst retaining that entity’s management, in order to leverage local market knowledge.
There are certain risks associated with joint venture partners, including the risk that joint venture partners may: (i) have economic or business interests or goals that are inconsistent with those of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group; (ii) veto proposals in respect of joint venture operations; (iii) be unable or unwilling to fulfil their obligations under the joint venture or other agreements; or (iv) experience financial or other difficulties.
The materialization of the risk described above could have a material adverse effect on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s business, financial condition, results of operations and/or prospects.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s businesses may be adversely affected by changes in internet search engines’ algorithms or terms of service causing their websites to be excluded from or ranked lower in organic search results.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s successes depend on, and following Completion, the Enlarged Group’s success will also depend on, potential and existing consumers’ ability to search for and find their online platforms. Returning and new consumers often rely on online search engines, such as Google, Yahoo and Bing, when contemplating ordering food delivery online. Therefore, higher rankings in such search engines generally result in higher visibility, more visits to the Just Eat Takeaway.com Group’s, the
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Grubhub Group’s and, following Completion, the Enlarged Group’s websites and mobile application downloads, and consequently more Orders. Recognizing this trend, the Just Eat Takeaway.com Group and the Grubhub Group are undertaking, and following Completion, the Enlarged Group will undertake, significant marketing efforts to achieve and maintain prominent internet rankings in search engines to attract consumers to their websites, including by attempting to enhance the relevance of their websites to consumer search queries, which is known as search engine optimization (“SEO”). However, search engines often modify the algorithms and ranking criteria that produce search results and, as a result, may adversely affect the algorithmic placement of links, both purchased and otherwise, of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s websites. There can be no guarantee that the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s SEO initiatives will be successful. Any failure to appear prominently in search results, either due to a change of a search engine’s algorithms or their terms of service, which in turn affect the success of the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s SEO initiatives, could reduce the amount of traffic to their online food delivery marketplace and thereby harm their businesses and operations.
Furthermore, a large part of the Just Eat Takeaway.com Group’s and the Grubhub Group’s marketing budgets are, and following Completion, a large part of the Enlarged Group’s marketing budget will be, spent on search engine marketing or pay-per-click marketing. In general, pricing for pay-per-click marketing is dynamic and depends on bidding on a keyword-by-keyword, or keyword group, basis. The cost per acquisition for the Just Eat Takeaway.com Group and the Grubhub Group can be, and following Completion, the cost per acquisition for the Enlarged Group may be, influenced by competition or by changes to search engines’ terms of service with regard to pricing of pay-per-click campaigns. This will especially be the case if the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s competitors in a given market have greater financial resources and, hence, can outspend the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group in pay-per-click marketing. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may not be able to establish, maintain or expand its leadership positions and establish, maintain or increase its profitability in some or all of the jurisdictions in which it currently operates, including as a result of competition” beginning on page 41 of this proxy statement/prospectus.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s operations are, and following Completion, the Enlarged Group’s operations will be, affected by weather conditions, which cause fluctuations in demand.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s business depends, and following Completion, the Enlarged Group’s business will depend, to a high degree, on consumer behavior with regard to using online food delivery services. Unexpected weather patterns may affect demand for the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s food delivery services at any time throughout the year. While colder, rainy or otherwise more inclement weather typically increases Orders (although, particularly harsh weather may preclude the ability for delivery to take place), warmer or sunnier weather typically decreases Orders. If there are any material periods that are sunnier and/or warmer than historically normal for that period of the year, that could have a material adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business, results of operations and/or financial condition.
The Just Eat Takeaway.com Group and the Grubhub Group are exposed to, and following Completion, the Enlarged Group will be exposed to, risk relating to the receipt and processing of Online Payments and the collection of commissions arising from cash payments.
In the year ended 31 December 2020, 85% (pro forma for the Just Eat Acquisition) of all Orders through the Just Eat Takeaway.com Group’s websites or through its mobile application were paid for by means of debit or credit card or other forms of cashless payment (“Online Payments”) and 96% of all Orders through the Grubhub Group’s websites or through its mobile application were paid for by Online Payments in the same period. The Just Eat Takeaway.com Group and the Grubhub Group depend on and, following Completion, the Enlarged Group will depend on, third parties, in particular their payment service provider partners and their consumers’ and their own banks, in order to offer Online Payment options to consumers and to provide payment processing services. Any third party’s unwillingness or inability to provide payment processing services for debit
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or credit card payments may disrupt the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s operations and harm their reputation. In addition, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s results of operations may be adversely affected if banks or payment service providers introduce new terms and conditions that cannot be sustained, or costs that cannot be passed on to consumers.
With regard to credit card payments, the Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion, the Enlarged Group will face, an additional payment collection risk. As the Just Eat Takeaway.com Group and the Grubhub Group collect, and following Completion, the Enlarged Group will collect, the full merchandise value of each Order paid via an Online Payment on behalf of the relevant restaurant, they may have to bear financial risks related to credit card fraud. Any widespread occurrence of credit card fraud could materially impact the profitability of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group.
A small minority of the restaurants on the Just Eat Takeaway.com Group’s platforms only accept, and following Completion, on the Enlarged Group’s platforms are expected to only accept, cash payments, and for such restaurants, there can be no assurance that the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group will be able to collect all amounts due. The Just Eat Takeaway.com Group had a loss allowance for trade receivables of €6 million as at 31 December 2020 (increasing from €2 million as at 31 December 2019). To the extent that the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group fail to collect substantial amounts due from restaurants, this could have a material adverse effect on their business, results of operations, financial condition and/or prospects.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group is expected to be, affected by economic conditions across the various markets in which they operate or will operate.
A deterioration in economic conditions in any of the markets in which the Just Eat Takeaway.com Group or the Grubhub Group operate or, following Completion, the Enlarged Group will operate, may have an adverse effect on the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group (as applicable). For example, there is no certainty regarding the potential scale and severity of the economic effect of COVID-19. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Public health issues such as a major pandemic or epidemic, including the long-term continuation or escalation of the COVID-19 outbreak, may have an adverse impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business” beginning on page 48 of this proxy statement/prospectus.
In relation to the UK’s exit from the EU on 31 January 2020 (“Brexit”), the UK and the EU Commission announced on 24 December 2020 that they had reached agreement on a draft EU-UK Trade and Cooperation Agreement (“TCA”). The TCA covers a number of topics, including trade in goods and in services, digital trade, intellectual property, social security coordination, law enforcement and judicial cooperation in criminal matters, thematic cooperation and participation in EU programmes. On 29 December 2020, the Council of the EU (the “Council”) adopted, by written procedure, the decision on the signing of the TCA and its provisional application as of 1 January 2021, pending the formal approval of the European Parliament and the adoption of the decision on the conclusion of the TCA by the Council. The UK Parliament ratified the UK’s entry into, and implementation of, the TCA on 30 December 2020 pursuant to the European Union (Future Relationship) Act 2020. As at the date of this proxy statement/prospectus, the TCA remains subject to final approvals from the European Parliament and the Council. Uncertainty regarding the final terms and permanent application of the TCA will remain until the completion of the EU approval process.
As a result of the UK formally leaving the EU, and notwithstanding the agreement of the TCA, the UK has entered into a period of economic and market disruption and political and legal uncertainty. It is not possible to ascertain how long this period will last and the effect it will have on the UK or in the EU in general. None of the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group can predict when or if political stability will return. Since the decision by the UK electorate to leave the EU, there has been volatility and disruption of the capital, currency and credit markets, including the market for debt and equity securities. A further weakening of the pound sterling may, as a result of certain investments and expenditures of the Just Eat Takeaway.com Group not denominated in pound sterling, have a material adverse effect on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s results. In addition, the Just Eat
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Takeaway.com Group’s and, following Completion, the Enlarged Group’s restaurant partners may face difficulties accessing credit, which may increase liquidity problems and business closures. In addition, there has been an impact on consumer confidence, spending and demand for credit, which could have a material adverse effect on the business, results of operations, financial condition and/or prospects of the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group.
Such circumstances can be expected to influence consumers’ purchasing behavior and could, for example, cause consumers to cook at home rather than to purchase takeaway food (although consumers may also purchase takeaway food rather than eat out). These changes in consumer behavior could lead to lower overall Orders through the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s platforms. In addition, changes in economic conditions may lead to higher costs associated with the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s operations, such as in relation to food, labor and energy, which could affect consumer spending behavior and the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s results of operations. In addition, there can be no assurance that macroeconomic conditions will not impair the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to obtain financing in the future, and thereby impede the expansion of their operations.
Legal and Regulatory Risks
The Just Eat Takeaway.com Group’s and the Grubhub Group’s operations are and will be subject to, and following Completion, the Enlarged Group’s operations will be subject to, numerous legal and regulatory regimes and their businesses could be harmed by changes to, or interpretation or application of, the laws and regulations of each of the jurisdictions in which they operate.
The Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion, the Enlarged Group will face, certain inherent risks due to the geographic scope and the nature of their businesses. As at the date of this proxy statement/prospectus, the Just Eat Takeaway.com Group operates in seventeen countries in Europe (the Netherlands, the UK, Germany, France, Spain, Italy, Denmark, Ireland, Norway, Belgium, Austria, Poland, Switzerland, Bulgaria, Romania, Portugal and Luxembourg), Israel, Australia, New Zealand, Canada, Brazil and Colombia and the Grubhub Group operates throughout the United States. As a result, the Just Eat Takeaway.com Group and the Grubhub Group are exposed to laws and regulations which vary, and sometimes conflict, from one jurisdiction to another. The Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s ability to comply with existing laws and regulations applicable to their businesses across the multiple jurisdictions in which they operate and to predict and adapt to changes in those jurisdictions, is important to their success. Any uncertainty or changes in applicable laws or regulations, in particular in relation to payment services, competition, the internet, e-commerce, consumer protection, cookies, privacy, electronic marketing, platform regulation and legislation or rules relating to the right to be forgotten, or the takeaway restaurant industry specifically, in one or more of the markets in which the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group operate, could have a material adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s reputation, business, results of operations, financial condition and/or prospects.
The Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion the Enlarged Group will face, risks associated with the independent contractor model, which is subject to evolving government regulation of, and judicial intervention in, the “gig economy.” Changes in government regulation of or successful challenges to the independent contractor model used by the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group in certain markets may require the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to change their existing business models and operations.
Government regulation of the “gig economy” (a labor market characterized by the prevalence of short-term missions or freelance work as opposed to permanent jobs) has evolved considerably over the past few years and continues to do so. The Just Eat Takeaway.com Group, in certain of the historical Just Eat markets (the UK, Canada, Ireland, Italy, New Zealand and Australia), and the Grubhub Group have adopted and, following Completion, the Enlarged Group will adopt, an independent contractor model where they engage independent contractors directly as delivery drivers, such that their delivery drivers are not employees of the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group, which classification remains subject to evolving government regulation and judicial interpretation. As of 31 December 2020, the Just
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Eat Takeaway.com Group had a total network of over one hundred thousand independent couriers which it engaged as delivery couriers (almost all Orders in Canada and the majority of the Delivery Orders (as defined in “Management’s Discussion and Analysis of Financial Condition and Results of Operations of the Just Eat Takeaway.com Group—Key Performance Indicators” beginning on page 202 of this proxy statement/prospectus) in the United Kingdom are performed by independent contractors) and the Grubhub Group also engages hundreds of thousands of independent contractor delivery drivers.
Due to uncertainties in the interpretation of applicable law, as well as constant legislative evolution, this sector has been subject to scrutiny and, in some cases, the commencement of class actions with workers claiming they should have been treated as employees or workers rather than self-employed contractors. For example, in July 2018, a courier on the Skip network filed a putative class action case alleging that all couriers providing services on the Skip network in Canada are employees and not independent contractors. The relevant court has not yet determined if the claim will be accepted as a class action and, if so, which couriers would be included in any such class. In addition, in 2016, two private-hire drivers engaged by Uber in London filed claims in the UK Employment Tribunal arguing that they should be classified as workers rather than self-employed contractors while logged into the Uber smartphone application. Their claims were upheld and, consequently, the claimants were entitled to certain statutory rights, including the right to the national minimum wage, the right to receive paid annual leave and the benefit of certain statutory protections afforded to “whistleblowers.” Uber subsequently filed successive appeals to the UK Employment Appeal Tribunal and the UK Court of Appeal before finally appealing to the UK Supreme Court. In February 2021, the UK Supreme Court dismissed Uber’s final appeal and upheld the drivers’ classification as “workers.” It is possible that the UK Supreme Court’s decision may inform the outcome of subsequent proceedings involving similar claims by individuals active in the United Kingdom’s “gig economy,” which may include the delivery drivers engaged by the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group in the United Kingdom.
As an example of the changing regulatory landscape in the United States, on 1 January 2020, California Assembly Bill 5 (“AB5”) came into effect, which codifies a test to determine whether a worker is an employee or independent contractor under California law. In November 2020, a California ballot initiative was passed to supersede AB5. Specifically, Proposition 22 (“Prop 22”) exempts app-based workers, including delivery drivers, from being classified as employees and provides for certain minimum compensation levels, as well as certain other requirements. Prop 22 is now in effect, and therefore the Grubhub Group’s costs related to drivers have increased in California. This cost increase could lead the Grubhub Group and, following Completion, the Enlarged Group, to charge higher diner fees and higher restaurant commissions, which in turn could lower order volume. Other states where the Grubhub Group operates may consider legislation similar to Prop 22, which would be expected to increase the Grubhub Group’s and, following Completion, the Enlarged Group’s costs related to drivers in such jurisdictions and could similarly adversely impact results of operations.
In addition, in February 2021, the European Commission (the “EC”) launched the first phase of a consultation designed to address challenges experienced by those engaged in platform work within the EU. This includes the work carried out by drivers engaged by the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group in the EU. The consultation seeks social partners’ views on whether EU-wide measures are required to address, among other things, platform workers’ employment status, working conditions, access to social protection and access to collective representation and bargaining. The consultation may lead to EU-wide legislative reform which may affect the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s ability to operate its current independent contractor model within the EU.
In certain jurisdictions, the independent contractor model operated by the Just Eat Takeaway.com Group has been subject to direct regulatory challenge. For example, in Australia, Just Eat Takeaway.com’s subsidiary Menulog Pty. Ltd. (“Menulog”) received a position paper from the Australian Taxation Office (the “ATO”) on 11 September 2019 stating that the couriers engaged by Menulog should be considered employees rather than independent contractors. Menulog has challenged this based on the legislation and recent case law. The ATO provided Menulog in April 2021 with a Draft Decision Paper in which it reiterates its previous decision and stipulates that the guidance should be applied retrospectively. Menulog continues to evaluate its approach towards, and any potential objections to, the Draft Decision Paper. As a further example, in Italy, Just-Eat Italy S.r.l. (“Just-Eat Italy”) received orders from the public prosecutor and labor, social security and public insurance inspectors on 24 February 2021 that state that couriers engaged by Just-Eat Italy should be considered “workers”, known in Italy as ‘co.co.co.’, instead of independent contractors. In connection thereto, Just-Eat Italy was
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ordered to pay salaries and apply working conditions in line with applicable laws and regulations for co.co.co. in the logistics sector. On 1 April 2021 Just-Eat Italy received a further order with the calculation of the social security contributions for said couriers, amounting in total to €11 million, including fines for late payment. The Just Eat Takeaway.com Group continues to evaluate its approach towards, and any potential objections to, the orders. The Just Eat Takeaway.com Group’s business plans in Italy include discontinuation of delivery with independent contractors and the roll-out of an employed courier delivery model.
As a result of uncertainties surrounding the interpretation of applicable law and the evolving legislative and regulatory landscape concerning the “gig economy”, there is a risk that the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s independent contractor models in Australia, Canada, Ireland, Italy, New Zealand, the UK and the US may be subject to further challenge. Successful challenges may result in the couriers engaged by the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group being reclassified as employees or workers rather than self-employed contractors, and/or becoming entitled to additional employment-related benefits and protections. The Just Eat Takeaway.com Group and the Grubhub Group are growing and, following Completion, the Enlarged Group may continue to grow their delivery services. As a result, to the extent such growth involves engaging additional independent contractors, the effects of any such successful challenges may be material. It is also possible that the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group, may be subjected to fines and/or other sanctions in respect of their independent contractor models. Such events could have a material and adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s operations involve the processing of personal data of consumers, restaurant owners and contracted couriers, which processing is regulated under privacy and data protection laws and governmental regulations. Compliance with such laws and regulations could give rise to additional costs and failure to comply, including as the result of security breaches, could give rise to liabilities and could have a material and adverse effect on their reputation, business, financial condition, results of operations and/or prospects as a result of privacy and data protection laws and governmental regulations and risks of security breaches.
The Just Eat Takeaway.com Group’s and the Grubhub Group’s operations involve, and following Completion, the Enlarged Group’s operations will involve, the processing of personal data of consumers, restaurant owners and contracted couriers. In its capacity as an online food delivery marketplace and as a facilitator of Online Payments, such as PayPal or iDeal, the Just Eat Takeaway.com Group acts, and following Completion, the Enlarged Group will act, as an intermediary or agent, as applicable, between restaurants, consumers purchasing from these restaurants, and entities controlling the payment methods that the consumers choose to use (such as iDeal, PayPal or credit and debit card issuers). In furtherance of the services the Just Eat Takeaway.com Group and the Grubhub Group provide, and following Completion, the Enlarged Group will provide, the Just Eat Takeaway.com Group and the Grubhub Group receive, and following Completion, the Enlarged Group will receive, personal data of consumers, restaurant owners and contracted couriers.Such personal data includes identification data, location data, and payment transaction data that consumers supply when they wish to make a payment for an order (such as the consumer’s name and, in some cases, payment method details), or in the case of restaurant owners and contracted couriers, bank routing and account information so that they can hold a business account and receive payments from the Just Eat Takeaway.com Group and the Grubhub Group.
Consequently, the Just Eat Takeaway.com Group and the Grubhub Group are subject, and following Completion, the Enlarged Group will be subject, to the privacy rules of the countries in which they operate, including, in the EU, Regulation (EU)2016/679 (the “EU General Data Protection Regulation” or “EU GDPR”). Any failure to comply with applicable data protection and privacy laws may harm the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s reputation or lead to investigations, sanctions, penalties, proceedings or actions against the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group by governmental agencies or other persons, including class action litigation in certain jurisdictions. In addition, the Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion, the Enlarged Group will face, the possibility of security breaches, which themselves may result in a violation of applicable data protection and privacy laws (see “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Compromised security measures and performance failures due to hacking,
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viruses, fraud and other malicious attacks could adversely affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s reputation” beginning on page 46 of this proxy statement/prospectus). Any failure of each of the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group and their affiliated restaurants, partners, service providers or others to adequately protect personal or sensitive data could have a material and adverse effect on their reputation, business, financial condition, results of operations and/or prospects.
The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group operate in certain countries with stringent food safety laws and laws related to the sales of alcohol, in each case, applicable to restaurants listed on their respective platforms and such laws may also apply to the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group, which could result in increased compliance costs as well as liability for, and material damage to their reputations as a result of, non-compliance with such laws.
Stringent food safety laws and laws related to the sales of alcohol imposed by the countries where the Just Eat Takeaway.com Group and the Grubhub Group operate (including, in the EU, EU laws implemented in national legislation) apply to the restaurants that are listed on the Just Eat Takeaway.com Group’s and the Grubhub Group’s platforms and, following Completion, on the platforms to be operated by the Enlarged Group. This includes laws with respect to the identification of allergen-related information, additives and/or ingredients in the foods that are sold on, and age verification of customers who order alcoholic beverages on, the Just Eat Takeaway.com Group’s or the Grubhub Group’s platforms. Such laws may also apply to the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group, which could result in increased compliance costs, including as a result of non-compliance. In certain markets the Just Eat Takeaway.com Group and the Grubhub Group provide allergen-related food information to consumers on its platforms on behalf of restaurants. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group cannot rule out the possibility that they may be held liable for non-compliance with the laws and regulations relating to the provision of food information, or due to the provision of inaccurate information. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group cannot rule out that any non-compliance would result in material damage to their reputation, in particular if there should be a case of injury or death connected with any such non-compliance. See “Additional Information—Regulatory—Food Information Regulation” beginning on page 191 of this proxy statement/prospectus.
The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group are subject to extensive government regulation and oversight relating to the provision of payment and financial services. Failure to comply with, loss of privileges pursuant to or material modifications to applicable regulations could severely impact their ability to process payments or result in penalties or costly and time consuming remediation efforts.
The Just Eat Takeaway.com Group is and will continue to be affected by and, following Completion, the Enlarged Group will be affected by, the revised Payment Services Directive 2015/2366/EU (“PSD II”) and its implementation in the European countries in which they operate because they operate regulated payment services in multiple countries in the European Economic Area (“EEA”). PSD II was implemented in the Netherlands, entering into force on 19 February 2019. The Just Eat Takeaway.com Group relies on an intra-group licensed payment service provider for its payment services under PSD II in respect of all EEA countries (other than Bulgaria and Romania) where Takeaway.com historically operated prior to the Just Eat Acquisition. In the applicable EEA countries where Just Eat historically operated prior to being acquired by Takeaway.com (except for France, where the Just Eat Takeaway.com Group relies on a separate exemption), the Just Eat Takeaway.com Group relies on an exemption under PSD II, the so-called commercial agent exemption, and therefore the payment services it provides are not regulated and do not require a license. For the historical operations of Just Eat, the Just Eat Takeaway.com Group may continue to rely on this exemption because it receives payments as a commercial agent authorized via an agreement to negotiate or conclude the sale of goods on behalf of the restaurants and does not act as a commercial agent on behalf of the consumers. Takeaway.com Payments B.V. has obtained a license from the Dutch Central Bank (De Nederlandsche Bank N.V., the “DNB”) in accordance with PSD II and as payment institution falls under the supervision of the DNB. Should Takeaway.com Payments B.V.’s license be revoked by the DNB in the future, or other enforcement measures be taken by DNB, such as imposing penalties and/or forcing the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group to cease offering certain payment facilities, the Just Eat Takeaway.com Group’s and, following
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Completion, the Enlarged Group’s ability to process Online Payments in the manner and historical markets of Takeaway.com would be severely impacted and/or the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group may be forced to involve third-party payment service providers, or be subjected to a combination of the possible consequences referred to above.
In addition, the Just Eat Takeaway.com Group, in the countries where payments are not facilitated by Takeaway.com Payments B.V., and the Grubhub Group are, and, following Completion, the Enlarged Group will be, subject to the Payment Card Industry (“PCI”) and Data Security Standard (the “Standard”). The Standard is a comprehensive set of requirements for enhancing payment account data security that was developed by the PCI Security Standards Council to help facilitate the broad adoption of consistent data security measures. The Grubhub Group is, and, following Completion, the Enlarged Group will be, required by payment card network rules to comply with the Standard, and their failure to do so may result in fines or restrictions on their ability to accept payment cards. Under certain circumstances specified in the payment card network rules, the Grubhub Group or, following Completion, the Enlarged Group may be required to submit to periodic audits, self-assessments or other assessments of their compliance with the Standard. Such activities may reveal that the Grubhub Group or, following Completion, the Enlarged Group have failed to comply with the Standard. If an audit, self-assessment or other test determines that the Grubhub Group or, following Completion, the Enlarged Group need to take steps to remediate any deficiencies, such remediation efforts may distract their management teams and require costly and time consuming remediation efforts. In addition, even if the Grubhub Group and, following Completion, the Enlarged Group comply with the Standard, there is no assurance that they will be protected from a security breach.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to pricing and platform regulations and may become subject to related litigation or regulatory inquiries. Modifications to pricing and/or platform regulations or the outcome of related litigation or regulatory inquiries may, among other things, require changes to the pricing models of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group and may negatively impact financial results and/or increase their costs of doing business.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to pricing regulations in the jurisdictions in which they operate. The implementation of European Directive 2011/83/EU on consumer rights has in the past affected and may continue to affect the Just Eat Takeaway.com Group’s operations. For example, in 2018, the Just Eat Takeaway.com Group terminated its payment services fees in Belgium, and the overall impact on the Just Eat Takeaway.com Group’s revenue resulting from the elimination of this processing fee has only been partially offset by the Just Eat Takeaway.com Group’s introduction on 1 October 2018 of a €0.19 administration fee chargeable to restaurants in Belgium, regardless of method of payment.
Additionally, fees and commissions charged by online food delivery marketplaces and other business practices of online platforms are currently under increased scrutiny and are expected to continue to be subject to political and public debate in the jurisdictions in which the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group operate. This increased scrutiny may lead to changes in platform regulation or legislation, negative publicity or investigations or litigation commenced by governmental authorities or other parties. For example, in July 2019, the EC enacted Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (“Regulation (EU) 2019/1150”), which imposes certain transparency obligations on online intermediation services and online search engines by requiring marketplaces to disclose the main parameters, including paid ranking, if applicable, used to rank goods and services on their sites. Regulation (EU) 2019/1150 has in the past affected and may continue to affect the form and content of the Just Eat Takeaway.com Group’s terms and conditions. Moreover, as a result of discussions with the Dutch Competition Authority in 2020, the Just Eat Takeaway.com Group was required to provide disclosure to consumers relating to the “TopRank” service that allows restaurants to pay for higher search result positions in the Just Eat Takeaway.com Group’s platforms, which disclosure the Just Eat Takeaway.com Group has sought to provide through the explanation offered by the Just Eat Takeaway.com Group on a separate page on its platform describing how the ranking is constructed, including the role of sponsoring therein.
Further changes in platform regulation, legislation or related litigation resulting from such increased scrutiny may require changes to certain business practices of the Just Eat Takeaway.com Group, the Grubhub Group and,
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following Completion, the Enlarged Group, including changes to fees and commissions. Changes to fees and commissions may, among other things, negatively affect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to generate revenue or result in dissatisfaction or loss of consumers or restaurants on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s respective platforms. Similarly, in response to COVID-19, a number of jurisdictions in the United States have implemented or are considering implementing fee caps, fee disclosure requirements and similar measures that have negatively impacted the Grubhub Group’s financial results, and following Completion, could negatively impact the Enlarged Group’s financial results and/or increase its cost of doing business. See “—Risks Relating to the Business of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group—Public health issues such as a major pandemic or epidemic, including the long-term continuation or escalation of the COVID-19 outbreak, may have an adverse impact on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s business” beginning on page 48 of this proxy statement/prospectus.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to the competition laws of the countries they operate in and changes in, or their failure to comply with, competition laws could adversely affect their businesses, results of operations, financial condition and/or prospects.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to the competition laws of the countries they operate in and such laws may restrict the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s ability to agree with restaurants on a price guarantee (that is, the guarantee that restaurants do not charge consumers a lower price for the same food if ordered directly through the restaurant’s own online order channels, or if applicable via another online platform, as opposed to if ordered via the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s platforms). Competition authorities in a number of the markets in which the Just Eat Takeaway.com Group and the Grubhub Group are active and, following Completion, the Enlarged Group will be active have considered the impact of such price guarantees. For example, in 2015, the German competition authority found certain price clauses in a different industry to be in breach of the applicable competition rules. However, this decision was overturned by the Higher Regional Court of Düsseldorf in June 2019. The judgment is now being appealed by the German competition authority before the German Federal Court. Accordingly, there is a risk that the price guarantee clauses in agreements between certain restaurants and the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group, could be found to violate competition laws. Any such violations of competition law could result in fines, the relevant terms or the agreements themselves being unenforceable, consequential amendments to agreements, claims for damages and reputational damage, each of which could potentially have a material adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s business, results of operations, financial condition and/or prospects.
Further, in October 2019, the Grubhub Group announced a series of growth initiatives to drive diner acquisition and retention, including a significant expansion of non-partnered restaurants listed on the Grubhub Group’s platform in addition to restaurants that have entered into partnerships with the Grubhub Group. In 2020, non-partnered restaurants represented less than four percent (4%) of the Grubhub Group’s total revenue. However, non-partnered restaurants may not want to be included on the Grubhub Group’s or, following Completion, the Enlarged Group’s platforms and, if included, may request to be removed. In addition, there is a risk that, if included, non-partnered restaurants may bring legal claims against the Grubhub Group or, following Completion, the Enlarged Group relating to their inclusion on the Grubhub Group’s or, following Completion, the Enlarged Group’s platforms. There is also a risk that state or local law is enacted to prevent platforms like those of the Grubhub Group or, following Completion, the Enlarged Group from including non-partnered restaurants on their platforms. For example, the California Legislature passed legislation, California Assembly Bill 2149 (“AB 2149”), which became effective on 1 January 2021. AB 2149 prohibits, among other things, food delivery logistics platforms from facilitating deliveries from restaurants in California without the restaurants’ prior consent. Similar prohibitions have also been enacted in other jurisdictions within the United States. To the extent that the Grubhub Group or, following Completion, the Enlarged Group are required to remove non-partnered restaurants from their platforms for any reason, this may adversely affect their ability to attract and retain consumers and could directly and adversely affect the Grubhub Group’s or, following Completion, the Enlarged Group’s business, financial condition and results of operations.
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The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to the tax laws and regulations of different jurisdictions, changes to which could materially affect their businesses, results of operations, and financial condition.
The Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, subject to the tax laws and regulations of different jurisdictions. Given that tax laws and regulations are subject to frequent change and their meaning is not always clear-cut or definitive, the tax positions taken by the Just Eat Takeaway.com Group or the Grubhub Group are sometimes based on their interpretations of such laws and regulations. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group cannot guarantee that such interpretations will not be questioned or challenged by the relevant authorities. More generally, any failure to comply with the tax laws or regulations applicable to the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group may result in reassessments, late payment interest, fines and penalties. In addition, the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s effective average tax rate and tax costs from period to period will be affected by many factors, including changes in tax legislation, global mix of earnings, the tax characteristics of their income, the timing and recognition of impairments, acquisitions and dispositions, integration of businesses, including the Transaction, and intercompany transfers of intangibles, adjustments to their reserves related to uncertain tax positions, changes in valuation allowances and tax treatment of riders. Also, a material change in applicable laws and regulations, or in their interpretation or enforcement, may force the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to alter their business strategy, leading to additional costs or loss of revenue. As future developments, including initiatives relating to the taxation of the digital economy and taxation of self-employed individuals, are uncertain and partly beyond management’s control, assumptions are necessary to estimate future tax costs, taxable profits as well as the period in which deferred tax assets will recover. See “The Just Eat Takeaway.com Group and the Grubhub Group face, and following Completion the Enlarged Group will face, risks associated with the independent contractor model, which is subject to evolving government regulation of, and judicial intervention in, the “gig economy.” Changes in government regulation of or successful challenges to the independent contractor model used by the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group in certain markets may require the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group to change their existing business models and operations” beginning on page 57 of this proxy statement/prospectus. Any significant increase in the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s tax burden due to the factors described above is likely to have a material adverse effect on their results of operations, business, financial condition and/or prospects. In addition, the Just Eat Takeaway.com Group’s and the Grubhub Group’s tax returns are subject to regular review and examination. The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group cannot guarantee that any tax audit or tax dispute to which they may be subject in the future will result in a favorable outcome. There is a risk that any such audit or dispute could result in additional taxes payable by the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group. In any such case, substantial additional tax liabilities and ancillary charges could be imposed on the Just Eat Takeaway.com Group, the Grubhub Group or, following Completion, the Enlarged Group, which could increase their effective tax rate.
In addition, the Grubhub Group is and, following Completion, the Enlarged Group will be subject to varying state tax laws in the United States. If the Grubhub Group or, following Completion, the Enlarged Group is deemed an agent for the restaurants in its network under state tax law, the Grubhub Group or, following Completion, the Enlarged Group may be deemed responsible for collecting and remitting sales taxes directly to certain states. It is possible that one or more states could seek to impose sales, use or other tax collection obligations on the Grubhub Group or, following Completion, the Enlarged Group with regard to such food sales. These taxes may be applicable to past sales. A successful assertion that the Grubhub Group or, following Completion, the Enlarged Group should be collecting additional sales, use or other taxes or remitting such taxes directly to states could result in substantial tax liabilities for past sales and additional administrative expenses, which would harm the business and results of operations of the Grubhub Group and, following Completion, the Enlarged Group.
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The Just Eat Takeaway.com Group and, following Completion, the Enlarged Group’s financial position may be adversely affected by the results of an ongoing dispute with the Danish Tax Authority.
In 2012, the Just Eat transfer pricing arrangements were updated, in line with the OECD Transfer Pricing Guidelines, to reflect the commercial and economic reality of its headquarters being established in the UK, whereas previously Just Eat was headquartered in Denmark. An Advanced Pricing Agreement (“APA”) was submitted to the Danish and UK competent authorities to obtain certainty over the position taken. Subsequently, the Danish Tax Authority opened a local transfer pricing audit into the periods covered by the APA and in January 2018 issued a formal notice of assessment from their findings, making a claim that the taxable income for fiscal year 2013 should be increased in relation to intellectual property income, equaling an additional tax payment of £126 million, including penalties and interest (which have continued to accrue since then). The Just Eat Takeaway.com Group strongly disagrees with the claim made by the Danish Tax Authority and has appealed the assessment through the Mutual Agreement Process (the “MAP”) between Her Majesty’s Revenue and Customs and the Danish Tax Authority. During the MAP, the two tax authorities enter into discussions with the intention of resolving the transfer pricing dispute. Just Eat’s case was formally accepted into the MAP in April 2018. Under the MAP, the tax authorities have two years to reach a resolution. As a resolution has not been reached, the Just Eat Takeaway.com Group is able to refer the case to an independent arbitration panel which will consider the facts and reach its own conclusion. As the tax authorities appear to be making progress regarding Just Eat’s case, the Just Eat Takeaway.com Group has not yet requested that the matter be referred to arbitration but reserves the right to do so should the tax authorities not make progress with the matter within a reasonable timeframe. The Just Eat Takeaway.com Group expects the outcome to be a full elimination of the potential double taxation, but there is no guarantee of such outcome. Such an outcome may result in a reallocation of income between the UK and Denmark with different tax rates applying over a different period, with net interest charges. The net interest charges may be substantial and may adversely affect the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s financial position.
The Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be adversely affected if they fail to obtain or maintain adequate protection for their intellectual property rights.
The Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s intellectual property rights, whether developed organically or acquired as a result of an acquisition (in particular, website domain names and trademarks), are crucial for the operation of their businesses. These intellectual property rights protect the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s brands and are and will be at the core of their efforts to raise consumer awareness for their services and are thus directly related to their reputation. Each of the Just Eat Takeaway.com Group and the Grubhub Group are, and following Completion, the Enlarged Group will be, dependent on their ability to protect and promote their intellectual property rights, specifically their trademarks.
The Just Eat Takeaway.com Group and the Grubhub Group cannot guarantee that third parties will not infringe upon the Just Eat Takeaway.com Group’s, the Grubhub Group’s or, following Completion, the Enlarged Group’s trademark rights, or that a third party will not purchase domain names that are identical to the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s domain names, with the exception of its extension. In addition, each of the Just Eat Takeaway.com Group, the Grubhub Group and, following Completion, the Enlarged Group may be unable to adequately register and protect its trademarks or purchase at a reasonable price relevant domain names as it enters new markets.
Should the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s trademarks be challenged or infringed upon, or should they be unable to adequately register and protect trademarks or purchase domain names when entering new markets, this may have an adverse effect on the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s brands and, as a result, on their businesses, results of operations and/or financial condition.
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Risks Relating to the Just Eat Takeaway.com Group’s, the Grubhub Group’s and, following Completion, the Enlarged Group’s Capital Structure
To the extent that the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s cash flow demands may change in executing their growth strategies in the medium to long-term, they will be more dependent on external sources of capital, and access to such additional sources could be restricted for a variety of reasons.
While the Just Eat Takeaway.com Group relies and, following Completion, the Enlarged Group is expected to rely, primarily on cash flow from operations and, where required, existing cash reserves to fund its business and financial obligations (for example, interest payments), it may not always generate sufficient cash flow to finance acquisitions and major transitional projects in the medium to long-term. Consequently, the execution of the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s growth strategy may require access to external sources of capital. For example, Just Eat Takeaway.com issued the Convertible Bonds 2019 in 2019, the Convertible Bonds 2020 in 2020 and the Convertible Bonds 2021 in 2021, respectively. Any limitations on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s access to capital on satisfactory terms, or at all, could impair their ability to execute their growth strategy in the future and could reduce their liquidity and ability to make dividend distributions.
No assurance can be given that financing will continue to be available to the Just Eat Takeaway.com Group and, following Completion, the Enlarged Group on acceptable terms, or at all. Limitations on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s access to capital, including on their ability to issue debt and equity, could result from events or causes beyond their control, such as significant increases in interest rates, increases in the risk premium generally required by investors, decreases in the availability of credit or the tightening of terms required by lenders. Any limitations on the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s ability to secure additional capital, continue their existing finance arrangements or refinance existing obligations could limit their liquidity, financial flexibility or cash flows and affect their ability to execute their strategic plans, which could have a material adverse effect on their businesses, results of operations, financial condition and/or prospects.
Failure of Just Eat Takeaway.com to comply with the covenants and other obligations contained in the Just Eat Facility, the Convertible Bonds or, following Completion, the Grubhub Senior Notes could result in an event of default. Any failure to repay or refinance the outstanding debt under the Just Eat Facility, the Convertible Bonds or the Grubhub Senior Notes when due could have a material adverse effect on Just Eat Takeaway.com’s and, following Completion, the Enlarged Group’s business.
Just Eat Takeaway.com is currently in compliance with all covenants under the Just Eat Facility and the Convertible Bonds, and Grubhub is currently in compliance with all covenants under the Grubhub Senior Notes. However, an event of default under any of the Just Eat Facility, the Convertible Bonds or, following Completion, the Grubhub Senior Notes that is not cured or waived in accordance with its terms could result in lenders representing 66.6% of commitments accelerating the Just Eat Facility, the acceleration of the Convertible Bonds and/or, following Completion, the acceleration of the Grubhub Senior Notes. An acceleration of any of the foregoing would cause the outstanding amount owed under the Just Eat Facility (nil as at 31 December 2020), the Convertible Bonds (€250 million and €300 million aggregate principal amount of the Convertible Bonds 2019 and the Convertible Bonds 2020, respectively, as at 31 December 2020 and €1,100 million aggregate principal amount of the Convertible Bonds 2021 issued on 9 February 2021) or the Grubhub Senior Notes ($500 million as at 31 December 2020), as applicable, to become immediately due and payable. There may not be sufficient cash flow available to fully repay Just Eat Takeaway.com’s or, following Completion, the Enlarged Group’s outstanding debt under the Just Eat Facility, the Convertible Bonds or the Grubhub Senior Notes when due upon an acceleration or on the maturity date. Just Eat Takeaway.com and, following Completion, the Enlarged Group may not be able to secure additional capital or refinance on satisfactory terms, or at all, which could limit their liquidity, financial flexibility or cash flows and affect their ability to execute their strategic plans, which could have a material adverse effect on their businesses, results of operations, financial condition and/or prospects.
Fluctuations in currency exchange rates may significantly impact the presentation of the Enlarged Group’s financial results following Completion.
Following Completion, a substantial portion of the Enlarged Group’s consolidated revenue will be denominated in euro, pounds sterling and U.S. dollars, with the remainder denominated in the local currencies of
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the other countries in which the Enlarged Group will operate. Following Completion, the Enlarged Group generally will seek to match the currency of its revenue and expenses for its operations in each jurisdiction to reduce the exposure to currency fluctuations but, in limited circumstances, the revenue and expenses may be in different currencies and, therefore, subject to foreign exchange risk due to related gains and losses from the conversion into functional currency (the currency of the jurisdiction in which the operation operates) of any foreign currency denominated assets and liabilities (“Transaction Effects”).
If the Transaction is completed, Grubhub Shares will be exchanged for New Just Eat Takeaway.com ADSs. Unlike Grubhub Shares, as a consequence of the listing of the New Just Eat Takeaway.com Shares on the LSE and Euronext Amsterdam and the listing of Just Eat Takeaway.com ADSs on Nasdaq, Just Eat Takeaway.com Shares are quoted in pounds sterling on the LSE and in euro on Euronext Amsterdam, while New Just Eat Takeaway.com ADSs will be quoted in U.S. dollars on Nasdaq. Dividends (if any) in respect of New Just Eat Takeaway.com Shares underlying New Just Eat Takeaway.com ADSs will be declared in euro (or pounds sterling for holders of Just Eat Takeaway.com CDIs) and converted into U.S. dollars by the depositary bank for New Just Eat Takeaway.com ADSs. Fluctuations in the exchange rate between euro and U.S. dollars will affect, among other matters, the U.S. dollar value of New Just Eat Takeaway.com Shares and of any dividends in respect of such shares, including any such shares represented by New Just Eat Takeaway.com ADSs. In addition, the Just Eat Takeaway.com Group presents, and following Completion, the Enlarged Group will present, their consolidated financial statements in euro. Consequently, the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s financial results in any given period may be materially affected by both Transaction Effects and the effect of translation of its foreign operations’ respective functional currencies to euro, the presentation currency of the Just Eat Takeaway.com Group’s consolidated financial statements.
A potential future delisting of the Just Eat Takeaway.com Shares from Euronext Amsterdam may result in non-compliance with the terms and conditions of the Convertible Bonds 2019 and in Just Eat Takeaway.com Shareholders not being able to hold Just Eat Takeaway.com Shares.
Just Eat Takeaway.com is conducting a review to determine the optimal listing venues for its long term future. As part of this assessment, Just Eat Takeaway.com is considering, among other things, liquidity and trading volumes across the listings it has in Amsterdam and London and, following Completion, on Nasdaq. Therefore, Just Eat Takeaway.com no longer intends to delist the Just Eat Takeaway.com Shares from Euronext Amsterdam as soon as possible, and Just Eat Takeaway.com will remain listed on Euronext Amsterdam until a further decision has been made. Following completion of its review of listing venues, Just Eat Takeaway.com may determine to delist the Just Eat Takeaway.com Shares from Euronext Amsterdam.
The Convertible Bonds 2019 currently in issue are listed on Euronext Amsterdam. Under the terms and conditions of the Convertible Bonds 2019, a delisting of the Just Eat Takeaway.com Shares from Euronext Amsterdam would trigger an event of default (if not cured for a period of 30 days after receipt of written notice from the Trustee (as defined in the terms and conditions of the Convertible Bonds 2019) specifying the default and that such default be remedied). Should a future delisting of the Just Eat Takeaway.com Shares from Euronext Amsterdam occur, Just Eat Takeaway.com will take such action as may be necessary to ensure compliance with the terms and conditions of the Convertible Bonds 2019. In order to ensure compliance with the terms and conditions of the Convertible Bonds 2019, before delisting from Euronext Amsterdam, Just Eat Takeaway.com would be required to either (i) obtain the approval of an Extraordinary Resolution by persons who are registered as the owners of the Convertible Bonds 2019 on the register of the Convertible Bonds 2019 maintained by ABN AMRO Bank N.V. (acting as Registrar) (the “2019 Bondholders”) representing not less than 75% of the aggregate principal amount of outstanding Convertible Bonds 2019 or (ii) obtain the prior written approval of Stichting Trustee Takeaway.com (which approval can be given if, in the opinion of Stichting Trustee Takeaway.com, it is not materially prejudicial to the interest of the 2019 Bondholders).
If Just Eat Takeaway.com determines to delist the Just Eat Takeaway.com Shares from Euronext Amsterdam, Just Eat Takeaway.com expects it will take the necessary steps when appropriate. However, there can be no assurance that Just Eat Takeaway.com will be able to ensure compliance with such terms and conditions in a timely manner or at all. In addition, in the event of a future delisting of the Just Eat Takeaway.com Shares from Euronext Amsterdam, such delisting may result in Just Eat Takeaway.com Shareholders whose Just Eat Takeaway.com Shares trade on Euronext Amsterdam concluding that to continue to hold Just Eat Takeaway.com Shares that trade solely on the London Stock Exchange or in the form of ADSs on Nasdaq is impractical or difficult due to listing, tax or other considerations or—in the case of index funds—Just Eat Takeaway.com not
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being a participant in the index in which they are investing, which would in effect result in such Just Eat Takeaway.com Shareholders being forced to sell their Just Eat Takeaway.com Shares at a disadvantageous moment.
Risks Relating to the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs
Future issuances of Just Eat Takeaway.com Shares, Just Eat Takeaway.com ADSs or debt securities convertible into Just Eat Takeaway.com Shares, or the perceived likelihood thereof, could lower the market price of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs and adversely affect Just Eat Takeaway.com’s ability to raise capital in the future. Conversion of the Convertible Bonds or further share issuances could also dilute the interests of holders of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs.
Just Eat Takeaway.com has issued the Convertible Bonds, which may during their lifetime convert into new Just Eat Takeaway.com Shares. The Convertible Bonds may be converted into, in aggregate, 13,934,536 Just Eat Takeaway.com Shares, which would result in Just Eat Takeaway.com’s issued share capital increasing by approximately 9% relative to the number of existing Just Eat Takeaway.com Shares in issue as at 20 April 2021, the last practicable trading day before the date of this proxy statement/prospectus. Any time that any Convertible Bonds are converted into Just Eat Takeaway.com Shares, holders of existing Just Eat Takeaway.com Shares (who are not also converting holders of such Convertible Bonds) will suffer an immediate dilution as a result of such conversions. Just Eat Takeaway.com may in the future again seek to raise capital through public or private debt, or equity financings, which may involve the issuance of Just Eat Takeaway.com Shares or debt securities convertible into Just Eat Takeaway.com Shares or rights to acquire these securities. In addition, Just Eat Takeaway.com may in the future seek to issue additional Just Eat Takeaway.com Shares or Just Eat Takeaway.com ADSs as consideration for, or otherwise in connection with, the acquisition of new businesses. Furthermore, Just Eat Takeaway.com may issue new Just Eat Takeaway.com Shares in the context of any new arrangements involving employees and/or Just Eat Takeaway.com Management Board nominees.
In the case of a future issuance of Just Eat Takeaway.com Shares for cash, the then-existing Just Eat Takeaway.com Shareholders are generally entitled to full statutory preemption rights under Dutch law. By virtue of Just Eat Takeaway.com’s listing on the premium listing segment of the UK Official List, Just Eat Takeaway.com Shareholders are also entitled to the benefit of preemption rights as provided for under the Listing Rules. Subject to the Listing Rules, these rights may be limited or excluded either by virtue of Dutch law, the Articles, a resolution of the General Meeting upon the proposal of the Just Eat Takeaway.com Management Board, which proposal has been approved by the Just Eat Takeaway.com Supervisory Board or by a resolution of the Just Eat Takeaway.com Management Board subject to the approval of the Just Eat Takeaway.com Supervisory Board if the Just Eat Takeaway.com Management Board has been designated by the General Meeting as the corporate body authorized to limit or exclude preemption rights. Any such issuance of additional Just Eat Takeaway.com Shares may dilute a Just Eat Takeaway.com Shareholder’s interest in Just Eat Takeaway.com if such investor does not participate, or is not eligible to participate, in any such issuances on a basis pro rata to their then-existing shareholdings.
Furthermore, any additional debt or equity financing which the Just Eat Takeaway.com Group may need may not be available on terms favorable to it or at all, which could adversely affect the Just Eat Takeaway.com Group’s and, following Completion, the Enlarged Group’s future plans and the market price of the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs. Any additional offering or issuance of Just Eat Takeaway.com Shares or Just Eat Takeaway.com ADSs or the perception that an offering or issuance may occur could also have a negative impact on the market price of the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs and could increase the volatility in the trading price of the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs.
Future sales of a substantial number of Just Eat Takeaway.com ADSs or Just Eat Takeaway.com Shares, or the market’s anticipation or consideration thereof, may adversely affect the market price of New Just Eat Takeaway.com ADSs or New Just Eat Takeaway.com Shares following Completion.
The market price of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares could decline if a substantial number of either Just Eat Takeaway.com ADSs or Just Eat Takeaway.com Shares is sold by Just Eat Takeaway.com or significant Just Eat Takeaway.com Shareholders in the public market, or if there is an anticipation in the market that such sales could occur. Any sale of Just Eat Takeaway.com ADSs or Just Eat
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Takeaway.com Shares by any or all of the Just Eat Takeaway.com Managing Directors could be considered as a lack of confidence in the performance and prospects of the Just Eat Takeaway.com Group and could cause the market price of New Just Eat Takeaway.com ADSs or New Just Eat Takeaway.com Shares to decline.
Grubhub Stockholders receiving New Just Eat Takeaway.com ADSs in connection with the Transaction may sell those New Just Eat Takeaway.com ADSs immediately in the public market. It is likely that some Grubhub Stockholders, including some of its larger shareholders, will sell their New Just Eat Takeaway.com ADSs, for reasons such as the Enlarged Group’s business profile or market capitalization no longer fitting their investment objectives, or they consider holding New Just Eat Takeaway.com ADSs to be impractical or difficult due to listing, tax or other considerations. The sales of significant numbers of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares, or the perception in the market that this will occur, may decrease the market price of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares.
Just Eat Takeaway.com Shareholders outside the Netherlands may suffer dilution if they are unable to exercise preemptive rights in future offerings.
In the event of an increase in Just Eat Takeaway.com’s share capital, Just Eat Takeaway.com Shareholders are generally entitled to full preemptive rights, unless these rights are limited or excluded either by virtue of Dutch law, the Articles, a resolution of the General Meeting upon the proposal of the Just Eat Takeaway.com Management Board, which is subject to the approval of the Just Eat Takeaway.com Supervisory Board, or by a resolution of the Just Eat Takeaway.com Management Board subject to the approval of the Just Eat Takeaway.com Supervisory Board if the Just Eat Takeaway.com Management Board has been designated by the General Meeting as the corporate body authorized to limit or exclude preemption rights. In addition, certain Just Eat Takeaway.com Shareholders outside the Netherlands may not be able to exercise preemptive rights, and therefore suffer dilution, unless local securities laws have been complied with.
In particular, any Just Eat Takeaway.com Shareholders that are U.S. persons may not be able to exercise their preemptive rights or participate in a rights offer, as the case may be, unless a registration statement under the Securities Act is effective with respect to such rights or an exemption from the registration requirements is available. Just Eat Takeaway.com cannot assure investors that any registration statement would be filed so as to enable the exercise of such holders’ preemptive rights or participation in a rights offer.
Just Eat Takeaway.com’s ability to pay any future dividends will depend on a number of factors, principally, Completion, its financial condition and results of operations, and the receipt of sufficient dividends from its subsidiaries.
Just Eat Takeaway.com intends to retain any profits to expand its growth and development and, following Completion, the Enlarged Group’s business and, therefore, does not anticipate paying dividends to the Just Eat Takeaway.com Shareholders in the foreseeable future. See “Description of Just Eat Takeaway.com Shares—Dividends and Other Distributions—Dividend Policy” beginning on page 275 of this proxy statement/prospectus.
Distribution of dividends may only take place after the adoption of the annual accounts referred to in Section 2:391 BW (the “Annual Accounts”) by the General Meeting, which show that the distribution is allowed. Just Eat Takeaway.com may only make distributions to the Just Eat Takeaway.com Shareholders insofar as Just Eat Takeaway.com’s equity exceeds the sum of the paid-in and called-up share capital increased by the reserves as required to be maintained by Dutch law or by the Articles. The Just Eat Takeaway.com Management Board determines, with the approval of the Just Eat Takeaway.com Supervisory Board, whether all or part of the profit shall be added to the reserve, and any profit remaining thereafter shall be at the disposal of the General Meeting.
Just Eat Takeaway.com is a holding company with no material, direct business operations that conducts its business mainly through its subsidiaries. As a result, Just Eat Takeaway.com is dependent on loans, dividends and other payments from these subsidiaries to generate the funds necessary to meet its financial obligations, including the payment of dividends. Just Eat Takeaway.com’s ability to pay dividends will depend directly on Just Eat Takeaway.com’s subsidiaries’ distributions to it. The amount and timing of such distributions will depend on the laws of such subsidiaries’ respective jurisdictions. The distribution by Just Eat Takeaway.com of an interim dividend and the distribution of dividends in the form of Just Eat Takeaway.com Shares are subject to the prior approval of the Just Eat Takeaway.com Supervisory Board. See “Description of Just Eat Takeaway.com
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Shares—Dividends and Other Distributions” beginning on page 274 of this proxy statement/prospectus. Any of these factors, individually or in combination, could restrict Just Eat Takeaway.com’s ability to pay dividends.
The rights and responsibilities of a Just Eat Takeaway.com Shareholder are governed by Dutch law and will differ in some respects from the rights and obligations of shareholders under the laws of other jurisdictions.
Just Eat Takeaway.com is, and following the Transaction will remain, incorporated under the laws of the Netherlands. Accordingly, Just Eat Takeaway.com’s corporate structure, as well as the rights and obligations of the Just Eat Takeaway.com Shareholders, may be different from the rights and obligations of shareholders of companies organized under the laws of other jurisdictions. The exercise of certain shareholders’ rights by Just Eat Takeaway.com Shareholders outside the Netherlands may be more difficult and costly to pursue than the exercise of rights in a company organized under the laws of other jurisdictions. Resolutions of the General Meeting may be adopted with majorities different from the majorities required for adoption of equivalent resolutions in companies organized under the laws of other jurisdictions. Any action to contest any of Just Eat Takeaway.com’s corporate actions must be filed with, and will be reviewed by, a Dutch court, in accordance with Dutch law. See “Comparison of Shareholder Rights” beginning on page 289 of this proxy statement/prospectus for a discussion of the different rights associated with Just Eat Takeaway.com Shares and Grubhub Shares.
In addition, holders of New Just Eat Takeaway.com ADSs will be able to exercise the shareholder rights for the New Just Eat Takeaway.com Shares represented by such New Just Eat Takeaway.com ADSs through the depositary bank, but only to the extent contemplated by the deposit agreement. Only registered holders of Just Eat Takeaway.com Shares are afforded the rights of shareholders under Dutch law and the Articles. The depositary bank holds New Just Eat Takeaway.com Shares represented by New Just Eat Takeaway.com ADSs through a custodian. As such custodian is a participant in the Euroclear Nederland securities settlement system, Euroclear Nederland (or its nominee) is the registered holder of the New Just Eat Takeaway.com Shares represented by New Just Eat Takeaway.com ADSs. Consequently, the holders of New Just Eat Takeaway.com ADSs must rely on the depositary bank to exercise the rights of a shareholder via its custodian and Euroclear Nederland.
Holders of New Just Eat Takeaway.com ADSs are entitled to present New Just Eat Takeaway.com ADSs to the depositary bank for cancellation and withdraw the corresponding number of underlying New Just Eat Takeaway.com Shares (to the extent contemplated by the deposit agreement), but would be responsible for fees relating to such exchange. Fees and charges are also payable by New Just Eat Takeaway.com ADS holders in relation to certain other depositary services. See “Description of Just Eat Takeaway.com American Depositary Shares” beginning on page 278 of this proxy statement/prospectus for a discussion of the terms of New Just Eat Takeaway.com ADSs and the material rights of owners of New Just Eat Takeaway.com ADSs.
The market price of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares after Completion will continue to fluctuate and may be affected by factors different from those affecting the market price of Grubhub Shares or those affecting any unsponsored Just Eat Takeaway.com ADSs and Just Eat Takeaway.com Shares currently.
Upon Completion, Grubhub Stockholders will become holders of New Just Eat Takeaway.com ADSs or, if such holders elect to convert their New Just Eat Takeaway.com ADSs into New Just Eat Takeaway.com Shares, New Just Eat Takeaway.com Shares. The Just Eat Takeaway.com Group’s business differs from that of the Grubhub Group, and the Just Eat Takeaway.com Group’s results of operations, as well as the market price of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs, may be affected by factors different from those affecting the Grubhub Group’s results of operations and the market price of Grubhub Shares. In addition, the market price of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares may fluctuate significantly following Completion and holders of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares could lose the value of their investment in such Just Eat Takeaway.com securities. General fluctuations in stock markets could have a material adverse effect on the market for, or liquidity of, New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares, regardless of the Just Eat Takeaway.com Group’s actual operating performance.
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Completion will result in the Just Eat Takeaway.com Group becoming subject to U.S. regulations which are different from the regulations to which the Just Eat Takeaway.com Group is currently subject. Current and future U.S. regulations could have an adverse effect on the results of operations, business and financial position of the Just Eat Takeaway.com Group following the Transaction.
Following Completion, as a result of the registration of New Just Eat Takeaway.com Shares with the SEC, the Just Eat Takeaway.com Group will be subject to U.S. securities laws and other U.S. federal, state and local laws and regulations (including tax laws), including the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”), with respect to the Just Eat Takeaway.com Group’s worldwide activities and the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) as a foreign private issuer. These regulations are different from the regulations to which the Just Eat Takeaway.com Group is currently subject and therefore pose an increased compliance burden on the Just Eat Takeaway.com Group and, particularly where supplemented by new regulations, could lead to higher costs and greater complexity, and potential reputational damage, regulatory sanctions or fines in connection with inadvertent breach. The enactment of unduly onerous and restrictive regulation may adversely affect Just Eat Takeaway.com’s share price and could have a material adverse effect on the results of operations, business and/or financial condition of the Just Eat Takeaway.com Group. While the Just Eat Takeaway.com Group continuously seeks to improve its systems of internal controls and to remedy any weaknesses identified, there can be no assurance that the policies and procedures will be followed at all times or effectively detect and prevent violations of applicable laws.
Dividends distributed by Just Eat Takeaway.com on Just Eat Takeaway.com Shares and/or New Just Eat Takeaway.com ADSs to certain related parties in low-tax jurisdictions might in the future become subject to an alternative Dutch withholding tax on dividends.
Under current Dutch tax law, dividends paid on Just Eat Takeaway.com Shares and/or New Just Eat Takeaway.com ADSs are in principle subject to Dutch dividend withholding tax at a rate of 15% under the Dutch Dividend Withholding Tax Act (“Regular Dividend Withholding Tax”), unless a domestic or treaty exemption or reduction applies. On 25 March 2021, the Dutch State Secretary for Finance submitted a proposal of law to the Dutch parliament pursuant to which an alternative withholding tax (“Alternative Withholding Tax”) will be imposed on dividends paid to related entities in low-tax jurisdictions, effective 1 January 2024. An entity is related if (i) it holds, directly or indirectly, a qualifying interest in Just Eat Takeaway.com, (ii) Just Eat Takeaway.com directly or indirectly holds a qualifying interest in the entity or (iii) it is an entity in which a third party holds a direct or indirect qualifying interest while that third party also holds a qualifying interest in Just Eat Takeaway.com. An entity is also considered related to Just Eat Takeaway.com if the entity is part of a collaborating group (samenwerkende groep) of entities that jointly directly or indirectly holds a qualifying interest in Just Eat Takeaway.com. The term qualifying interest means a directly or indirectly held interest - either by an entity individually or jointly if an entity is part of a collaborating group - that enables such entity or such collaborating group to exercise a definite influence over another entity’s decisions, such as Just Eat Takeaway.com, and allows it to determine the other entity’s activities. The Alternative Withholding Tax will be imposed at the highest Dutch corporate income tax rate in effect at the time of the distribution (currently 25%). The Alternative Withholding Tax will be reduced, but not below zero, with any Regular Dividend Withholding Tax imposed on distributions. As such, based on currently applicable rates, the overall effective rate of withholding of Regular Dividend Withholding Tax and Alternative Withholding Tax will not exceed the highest corporate income tax rate in effect at the time of the distribution (currently 25%). The proposal of law is subject to amendment during the course of the legislative process and it needs to be approved by both chambers of the Dutch parliament before it can enter into force.
Just Eat Takeaway.com has identified material weaknesses in its internal control over financial reporting. If Just Eat Takeaway.com is unable to remediate these material weaknesses, or if Just Eat Takeaway.com identifies additional material weaknesses in the future or otherwise fails to maintain an effective system of internal controls, Just Eat Takeaway.com may not be able to accurately or timely report its financial condition or results of operations, which may adversely affect the business of the Just Eat Takeaway.com Group, and its stock price.
Just Eat Takeaway.com is not currently required to comply with the rules of the SEC implementing Section 404 of Sarbanes-Oxley, and therefore is not required to make a formal assessment of the effectiveness of its internal control over financial reporting for that purpose. Following Completion, however, Just Eat Takeaway.com will be required to comply with the SEC’s rules implementing Section 404 of Sarbanes-Oxley,
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which will require Just Eat Takeaway.com to provide in its annual reports filed with the SEC an annual management report on the effectiveness of the Just Eat Takeaway.com Group’s internal control over financial reporting and Just Eat Takeaway.com’s independent registered public accounting firm to attest to the effectiveness of the Just Eat Takeaway.com Group’s internal controls over financial reporting. Section 302 of Sarbanes-Oxley will also require the management of Just Eat Takeaway.com to make certifications as to the effectiveness of the Just Eat Takeaway.com Group’s internal controls over financial reporting. The first management report, attestation and certification in respect of internal controls over financial reporting will be required for the year following the Just Eat Takeaway.com Group’s first annual report required to be filed with the SEC, which is expected to be the year ending 31 December 2022.
In connection with the preparation of this proxy statement/prospectus, Just Eat Takeaway.com has identified material weaknesses in the design and operating effectiveness of its internal control over financial reporting. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of annual or interim financial statements will not be prevented or detected on a timely basis.
Material weaknesses were identified by Just Eat Takeaway.com with respect to Internal Control—Integrated Framework (2013 Framework) issued by the COSO, particularly regarding the documentation required to evidence the existence and effectiveness of the associated controls, as follows: (i) control environment, as Just Eat Takeaway.com did not maintain evidence of an effective control environment to enable the identification and mitigation of risks of accounting errors, (ii) risk assessment, as Just Eat Takeaway.com did not design and implement an effective risk assessment to identify and communicate appropriate objectives and fraud, and to identify and assess changes in the business that could affect the Just Eat Takeaway.com Group’s system of internal controls, (iii) control activities, as Just Eat Takeaway.com did not design and implement effective control activities across substantially all financial statement account balances and disclosures, (iv) information and communication, as Just Eat Takeaway.com did not have sufficient documentation to evidence the processes and controls in place to ensure the adequate review over financial reporting as well as the identification and evaluation of the severity of internal control deficiencies, including material weaknesses and (v) monitoring activities, as Just Eat Takeaway.com did not have the evidence to support the effectiveness of monitoring controls to ascertain whether the components of internal control are present and functioning.
As a consequence of these material weaknesses, errors were identified in the Just Eat Takeaway.com Group’s consolidated financial statements, which have been amended as included in this proxy statement (the errors do not lead to retroactive adjustments of the Just Eat Takeaway.com Group’s previously published statutory consolidated accounts under applicable accounting standards). Although Just Eat Takeaway.com does have oversight and compliance processes in place, these processes are currently not sufficiently formalized. If Just Eat Takeaway.com is unable to remediate these material weaknesses, or if Just Eat Takeaway.com identifies additional material weaknesses in the future or otherwise fails to maintain an effective system of internal controls, Just Eat Takeaway.com may not be able to accurately or timely report its financial condition or results of operations, which may adversely affect investor confidence in Just Eat Takeaway.com and, as a result, Just Eat Takeaway.com’s stock price and ability to access the capital markets in the future.
Just Eat Takeaway.com is in the process of implementing measures designed to improve its internal control over financial reporting and remediate the control deficiencies that led to these material weaknesses. In particular, Just Eat Takeaway.com has engaged an external advisor to assist with Just Eat Takeaway.com’s design and execution of its Sarbanes-Oxley compliance program, including with respect to (i) performing its risk assessment and scoping to identify relevant controls that will be designed, implemented, and tested by management with the assistance of outside advisors, (ii) establishing compliant risk and control matrices for applicable processes across the Just Eat Takeaway.com Group markets (including process flow diagrams and process narratives) and (iii) designing or reassessing existing entity-level controls and, as necessary, implementing enhancements to such controls.
Just Eat Takeaway.com cannot assure you that the measures taken to date by Just Eat Takeaway.com, and actions that Just Eat Takeaway.com may take in the future, will be sufficient to remediate the control deficiencies that led to these material weaknesses in its internal control over financial reporting or that they will prevent or avoid potential future material weaknesses. In addition, neither the Just Eat Takeaway.com Management Board nor an independent registered public accounting firm has performed an evaluation of its internal control over financial reporting in accordance with the provisions of Sarbanes-Oxley. Had Just Eat Takeaway.com or its
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independent registered public accounting firm performed an evaluation of the Just Eat Takeaway.com Group’s internal control over financial reporting in accordance with the provisions of Sarbanes-Oxley, additional significant deficiencies or material weaknesses may have been identified.
Holders of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs in the United States may not be able to enforce civil liabilities against Just Eat Takeaway.com, the Just Eat Takeaway.com Managing Directors or the Just Eat Takeaway.com Supervisory Directors.
A substantial portion of the Just Eat Takeaway.com Group’s assets are located outside the United States. In addition, a majority of the Just Eat Takeaway.com Managing Directors and the Just Eat Takeaway.com Supervisory Directors are not residents of the United States and the assets of such persons may be located outside of the United States. As a result, it may be difficult or impossible for holders of New Just Eat Takeaway.com Shares or New Just Eat Takeaway.com ADSs to effect service of process within the United States upon Just Eat Takeaway.com, the Just Eat Takeaway.com Managing Directors or the Just Eat Takeaway.com Supervisory Directors or to enforce judgments obtained in U.S. courts against Just Eat Takeaway.com or such persons either inside or outside of the United States, or to enforce in U.S. courts judgments obtained against Just Eat Takeaway.com or such persons in courts in jurisdictions outside the United States.
There is doubt as to whether certain non-U.S. courts (including the courts of the Netherlands) would accept jurisdiction and impose civil liability if proceedings were commenced in such non-U.S. jurisdictions (including the Netherlands) predicated solely upon U.S. securities laws. Also, there can be no assurance that civil liabilities predicated upon federal or state securities laws of the United States will be enforceable in the Netherlands or any other jurisdiction. In addition, punitive damages awards in actions brought in the United States or elsewhere may be unenforceable in the Netherlands. See “Service of Process and Enforceability of Civil Liabilities” beginning on page 318 of this proxy statement/prospectus.
Due to delays in notification to and by the depositary bank, the holders of New Just Eat Takeaway.com ADSs may not be able to give voting instructions to the depositary bank or to withdraw New Just Eat Takeaway.com Shares underlying its New Just Eat Takeaway.com ADSs to vote such shares in person or by proxy.
Despite Just Eat Takeaway.com’s efforts, the depositary bank may not receive voting materials for the New Just Eat Takeaway.com Shares represented by New Just Eat Takeaway.com ADSs in time to ensure that holders of such New Just Eat Takeaway.com ADSs can either instruct the depositary bank to vote New Just Eat Takeaway.com Shares underlying their New Just Eat Takeaway.com ADSs or withdraw such shares to vote them in person or by proxy. In addition, the depositary bank’s liability to holders of New Just Eat Takeaway.com ADSs for failing to execute voting instructions, or for the manner in which voting instructions are executed, will be limited by the deposit agreement. As a result, holders of New Just Eat Takeaway.com ADSs may not be able to exercise their rights to give voting instructions, or to vote in person or by proxy, and may not have any recourse against the depositary bank or Just Eat Takeaway.com if New Just Eat Takeaway.com Shares underlying their New Just Eat Takeaway.com ADSs are not voted as they have requested or if New Just Eat Takeaway.com Shares underlying their New Just Eat Takeaway.com ADSs cannot be voted.
Holders of New Just Eat Takeaway.com ADSs will have limited recourse if Just Eat Takeaway.com or the depositary bank fails to meet its respective obligations under the deposit agreement for New Just Eat Takeaway.com ADSs or if they wish to involve Just Eat Takeaway.com or the depositary bank in a legal proceeding.
The deposit agreement expressly limits the obligations and liability of Just Eat Takeaway.com and the depositary bank. Neither Just Eat Takeaway.com nor the depositary bank will be liable to the extent that it performs its respective obligations specifically set out in the deposit agreement or the applicable New Just Eat Takeaway.com ADSs without negligence or bad faith.
In addition, the terms of the deposit agreement do not independently impose any obligation on either Just Eat Takeaway.com or the depositary bank to participate in any action, suit or other proceeding in respect of any of the New Just Eat Takeaway.com Shares or New Just Eat Takeaway.com ADSs, which in its opinion may involve it in expense or liability, unless it is indemnified to its satisfaction. Notwithstanding the foregoing, U.S. federal securities and other applicable laws may otherwise obligate Just Eat Takeaway.com or the depositary bank to participate in any such action, suit or other proceeding and no disclaimer of liability under U.S. federal
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securities laws is intended by any provision of the deposit agreement. For further description of these and other risks relating to New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares, see “Description of Just Eat Takeaway.com Shares” and “Description of Just Eat Takeaway.com American Depositary Shares” beginning on pages 271 and 278, respectively, of this proxy statement/prospectus.
Holders of New Just Eat Takeaway.com ADSs will have limited choice of forum, which could limit their ability to obtain a favorable judicial forum for complaints against Just Eat Takeaway.com, the depositary bank or their respective directors, officers or employees.
The deposit agreement provides that, subject to the depositary bank’s right to require a claim to be submitted to arbitration, as an owner of New Just Eat Takeaway.com ADSs, holders of New Just Eat Takeaway.com ADSs irrevocably agree that the United States District Court for the Southern District of New York (or, if the United States District Court for the Southern District of New York lacks subject matter jurisdiction over a particular dispute, the state courts in New York County, New York) shall have exclusive jurisdiction to hear and determine any dispute arising from or related to the deposit agreement, including claims under the Securities Act. Any person or entity purchasing or otherwise acquiring any New Just Eat Takeaway.com ADSs, whether by transfer, sale, operation of law or otherwise, shall be deemed to have notice of and have irrevocably agreed and consented to such provisions. While Just Eat Takeaway.com believes that this choice of forum provision is enforceable, the enforceability of similar federal court choice of forum provisions has been challenged in legal proceedings in the United States, and it is possible that a court could find the provision to be inapplicable, unenforceable, or inconsistent with other documents that are relevant to the filing of such lawsuits. If a court were to find the choice of forum provision contained in the deposit agreement to be inapplicable or unenforceable in an action, Just Eat Takeaway.com may incur additional costs associated with resolving such action in other jurisdictions. If upheld, this choice of forum provision may increase the cost to and limit the ability of holders of New Just Eat Takeaway.com ADSs to bring a claim in a judicial forum that they find favorable for disputes with Just Eat Takeaway.com, the depositary bank or their respective directors, officers or employees, which may discourage such lawsuits against Just Eat Takeaway.com, the depositary and their respective directors, officers or employees.
In addition, the depositary bank may, in its sole discretion, require that any dispute or difference arising from the relationship created by the deposit agreement, New Just Eat Takeaway.com Shares, New Just Eat Takeaway.com ADSs or the transactions contemplated thereby be referred to and finally settled by an arbitration conducted under the terms described in the deposit agreement, although the arbitration provisions of the deposit agreement do not preclude holders of New Just Eat Takeaway.com ADSs from pursuing claims under the Securities Act or the Exchange Act in federal courts.
Holders of New Just Eat Takeaway.com ADSs will not be deemed to have waived Just Eat Takeaway.com’s compliance with the federal securities laws and the regulations promulgated thereunder.
Holders of New Just Eat Takeaway.com ADSs may not be entitled to a jury trial with respect to claims arising under the deposit agreement, which could result in less favorable outcomes to the plaintiff(s) in any such action.
The deposit agreement governing the New Just Eat Takeaway.com ADSs representing the New Just Eat Takeaway.com Shares provides that, subject to the depositary’s right to require a claim be submitted to arbitration, the United States District Court for the Southern District of New York (or, if the United States District Court for the Southern District of New York lacks subject matter jurisdiction over a particular dispute, the state courts in New York County, New York) shall have exclusive jurisdiction to hear and determine any dispute arising from or relating in any way to the deposit agreement and in that regard, to the fullest extent permitted by applicable law, holders of New Just Eat Takeaway.com ADSs irrevocably waive the right to a jury trial in any lawsuit or proceeding against Just Eat Takeaway.com or the depositary bank arising out of or relating to the New Just Eat Takeaway.com Shares or other deposited securities, the New Just Eat Takeaway.com ADSs or Just Eat Takeaway.com ADRs issued in connection thereto, the deposit agreement or any transaction contemplated therein, including any claim under U.S. federal securities laws. However, no condition, stipulation or provision of the deposit agreement or New Just Eat Takeaway.com ADSs shall relieve Just Eat Takeaway.com or the depositary bank from their respective obligations to comply with the Securities Act and Exchange Act.
If Just Eat Takeaway.com or the depositary bank were to oppose a demand for jury trial based on such jury trial waiver, the court would determine whether the waiver was enforceable based on the facts and circumstances
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of that case in accordance with the applicable state and federal law. To the knowledge of Just Eat Takeaway.com, the enforceability of a contractual pre-dispute jury trial waiver in connection with claims arising under the federal securities laws has not been finally adjudicated by the United States Supreme Court. However, Just Eat Takeaway.com believes that a contractual pre-dispute jury trial waiver provision is generally enforceable under the laws of the State of New York, which govern the deposit agreement. Nevertheless, if this jury trial waiver provision is not enforced, to the extent a court action proceeds, it would proceed under the terms of the deposit agreement with a jury trial. It is advisable to consult legal counsel regarding the jury waiver provision before investing in the New Just Eat Takeaway.com ADSs.
If holders or beneficial owners of New Just Eat Takeaway.com ADSs, including purchasers of New Just Eat Takeaway.com ADSs in secondary market transactions, bring a claim against Just Eat Takeaway.com or the depositary bank in connection with matters arising under the deposit agreement or the New Just Eat Takeaway.com ADSs, including claims under federal securities laws, such holders or beneficial owners may not be entitled to a jury trial with respect to such claims, which may have the effect of limiting or discouraging lawsuits against Just Eat Takeaway.com or the depositary bank. If a lawsuit is brought against Just Eat Takeaway.com or the depositary bank under the deposit agreement, it may be heard only by a judge or justice of the applicable trial court, which would be conducted according to different civil procedures and may result in different outcomes compared to that of a jury trial, including results that could be less favorable to the plaintiff(s) in any such action.
As a foreign private issuer, Just Eat Takeaway.com will be exempt from a number of rules under the Exchange Act and will be permitted to file less information with the SEC than issuers that are not foreign private issuers and Just Eat Takeaway.com, as a foreign private issuer, will be permitted to follow home country practice in lieu of the listing requirements of Nasdaq, subject to certain exceptions.
As a foreign private issuer under the Exchange Act, Just Eat Takeaway.com will be exempt from certain rules under the Exchange Act, and will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as companies whose securities are registered under the Exchange Act but are not foreign private issuers. In addition, Just Eat Takeaway.com will not be required to comply with Regulation FD, which restricts the selective disclosure of material non-public information, and will be exempt from certain disclosure and procedural requirements applicable to proxy solicitations under Section 14 of the Exchange Act. The members of the Just Eat Takeaway.com Management Board and Just Eat Takeaway.com Supervisory Board, officers and principal shareholders will also be exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act. Accordingly, there may be less publicly available information concerning Just Eat Takeaway.com than there is for companies whose securities are registered under the Exchange Act but are not foreign private issuers, and such information may not be provided as promptly as it is provided by such companies. In addition, certain information may be provided by Just Eat Takeaway.com in accordance with Dutch law, which may differ in substance or timing from such disclosure requirements under the Exchange Act.
Further, as a foreign private issuer, under the applicable exchange rules Just Eat Takeaway.com will be subject to less stringent corporate governance requirements. Subject to certain exceptions, the rules of Nasdaq permit a foreign private issuer to follow its home country practice in lieu of certain Nasdaq listing requirements, including, for example, certain internal governance controls as well as board, committee and director independence requirements. Just Eat Takeaway.com will be required to disclose any significant ways in which its corporate governance practices differ from those followed by U.S. domestic companies under Nasdaq listing standards in its annual report on Form 20-F filed with the SEC or on its website. As a Dutch corporation expected to be listed on Nasdaq, Just Eat Takeaway.com is expected to follow its home country practice with respect to executive sessions, quorum and the code of conduct. Unlike the requirements of Nasdaq, the corporate governance practices and requirements in the Netherlands do not require Just Eat Takeaway.com to hold regular executive sessions where only independent directors shall be present, prescribe a quorum requirement in its articles of association or adopt a code of conduct containing specific items outlined by the Nasdaq Listing Rules. Accordingly, holders of New Just Eat Takeaway.com ADSs may not have the same protections afforded to shareholders of companies that are required to comply with all of the Nasdaq corporate governance requirements. For further description of the home country practices that Just Eat Takeaway.com intends to follow in lieu of Nasdaq corporate governance requirements, see “Grubhub Proposal I: Adoption Of The Merger Agreement — Listing of New Just Eat Takeaway.com Shares, Listing of New Just Eat Takeaway.com ADSs and Delisting and Deregistration of Grubhub Shares — Nasdaq Rules” beginning on page 127 of this proxy statement/prospectus.
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An active trading market for New Just Eat Takeaway.com ADSs may not develop, which would adversely affect the liquidity and price of New Just Eat Takeaway.com ADSs, and there is no guarantee that Just Eat Takeaway.com will be able to maintain its eligibility on the FTSE UK Index Series.
Prior to the Transaction, the existing unsponsored Just Eat Takeaway.com ADSs are not listed on any U.S. stock exchange. Just Eat Takeaway.com has applied to list the New Just Eat Takeaway.com ADSs on Nasdaq. The price of the New Just Eat Takeaway.com ADSs may fluctuate significantly due to general market or economic conditions. Furthermore, an active trading market for the New Just Eat Takeaway.com ADSs may never develop or, if developed, it may not be sustained. If an active public market for New Just Eat Takeaway.com ADSs does not develop, the market price and liquidity of New Just Eat Takeaway.com ADSs may be adversely affected. Grubhub Stockholders may be unable to sell their New Just Eat Takeaway.com ADSs unless a market can be established and sustained.
While Just Eat Takeaway.com Shares are included in the Financial Times Stock Exchange Group (the “FTSE”) FTSE 100 Index and the FTSE All-Share Index, there is no guarantee that FTSE will not publish new guidance in the future regarding non-UK incorporated companies. In addition, new laws and regulations, or amendments to existing laws and regulations, that could result in the removal of the Just Eat Takeaway.com Shares from the FTSE UK Index Series, may be introduced. If these or other circumstances were to arise, such that the Just Eat Takeaway.com Shares were no longer included in the FTSE 100 Index and the FTSE All-Share Index, this could have a negative impact on the market price of New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs. As announced in the Just Eat Takeaway.com press release dated 12 January 2021, following discussions with FTSE Russell, Just Eat Takeaway.com expects that its assigned nationality for the purpose of inclusion of the Just Eat Takeaway.com Shares in the FTSE UK Index Series will be reviewed in FTSE Russell’s semi-annual review to be announced in August 2021.
Risks Relating to the Grubhub Group
You should read and consider risk factors specific to the Grubhub Group’s business that will also affect the Enlarged Group following Completion. These risks are described in Part I, Item 1A of Grubhub’s Annual Report on Form 10-K for the fiscal year ended 31 December 2020, as updated from time to time in subsequent filings with the SEC, and in other documents that are incorporated by reference into this proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 320 of this proxy statement/prospectus for the location of information incorporated by reference in this proxy statement/prospectus.
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GRUBHUB PROPOSAL I: ADOPTION OF THE MERGER AGREEMENT
General
This proxy statement/prospectus is being provided to Grubhub Stockholders in connection with the solicitation of proxies by the Grubhub Board to be voted at the Grubhub Stockholder Meeting and at any adjournments or postponements of the Grubhub Stockholder Meeting. At the Grubhub Stockholder Meeting, Grubhub will ask the Grubhub Stockholders to vote on the adoption of the Merger Agreement. Adoption of the Merger Agreement is a condition to the obligations of Just Eat Takeaway.com and Grubhub to complete the Transaction and requires the affirmative vote (in person (which in this case means via virtual attendance at the Grubhub Stockholder Meeting) or by proxy) of the holders of a majority of all of the Grubhub Shares entitled to vote thereon as of the Grubhub record date.
The Merger Agreement provides that, on the terms and subject to the conditions in the Merger Agreement, and in accordance with the DGCL, Merger Sub I will be merged with and into Grubhub (the “initial merger”), with Grubhub continuing as the surviving company in the initial 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 in the subsequent merger (the “final surviving company”). A copy of the Merger Agreement is attached as Annexes A-1, A-2 and A-3 to this proxy statement/prospectus. You are urged to read the Merger Agreement in its entirety because it is the legal document that governs the Transaction. For a summary of the Merger Agreement, see “The Merger Agreement” beginning on page 147 of this proxy statement/prospectus.
At the first effective time, each issued and outstanding Grubhub Share (other than any Grubhub Shares owned by Grubhub, Just Eat Takeaway.com, Merger Sub I, Merger Sub II or any other direct or indirect wholly owned subsidiary of Just Eat Takeaway.com), will be converted into one 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 the right to receive (1) New Just Eat Takeaway.com ADSs representing 0.6710 Just Eat Takeaway.com Shares, plus (2) cash in lieu of fractional New Just Eat Takeaway.com ADSs, plus (3) any dividends or other distributions to which such holder is entitled pursuant to the Merger Agreement, and otherwise subject to adjustments to prevent dilution in accordance with the Merger Agreement. At the second effective time, each share of initial surviving company stock issued and outstanding immediately prior to the second effective time will be cancelled and shall cease to exist and no consideration will be paid or payable in respect thereof. Each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. For the avoidance of doubt, no fractional New Just Eat Takeaway.com ADSs will be issued in the Transaction, and Grubhub Stockholders will receive cash in lieu of fractional New Just Eat Takeaway.com ADSs.
Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €98.60 and the Euro-Dollar exchange rate of 1.13585, in each case, on 9 June 2020, the last trading day of the Just Eat Takeaway.com Shares before the public announcement of the Merger Agreement, the merger consideration represented approximately $75.15 in value per Grubhub Share. Based on the closing price of a Just Eat Takeaway.com Share on Euronext Amsterdam of €92.08 and the Euro-Dollar exchange rate of 1.2036, in each case, on 20 April 2021, the most recent practicable trading day prior to the date of this proxy statement/prospectus, the merger consideration represented approximately $74.37 in value for each Grubhub Share. Because the Merger Agreement provides for a fixed number of New Just Eat Takeaway.com ADSs and New Just Eat Takeaway.com Shares underlying those New Just Eat Takeaway.com ADSs to be issued as part of the consideration payable in exchange for each Grubhub Share, the value of the merger consideration that Grubhub Stockholders will receive will depend on the market price of New Just Eat Takeaway.com Shares underlying such New Just Eat Takeaway.com ADSs and the Euro-Dollar exchange rate at the time the Transaction is completed. As a result, the value of the merger consideration that Grubhub Stockholders will receive upon Completion could be greater than, less than or the same as the value of the merger consideration on the date of this proxy statement/prospectus or at the time of the Grubhub Stockholder Meeting.
Background of the Merger
In the ordinary course of business, and from time to time, the Grubhub Board and Grubhub management have evaluated and considered a variety of financial and strategic opportunities for Grubhub as part of their
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long-term strategy to enhance value for Grubhub Stockholders, including potential acquisitions, divestitures, business combinations and other transactions. As part of these reviews in recent years, Grubhub engaged in exploratory discussions regarding potential strategic transactions with Just Eat (before the Just Eat Acquisition) and another party with a large online food delivery business, referred to as “Company A.” In addition, Mr. Matthew Maloney, Grubhub’s chief executive officer, and Mr. Jitse Groen, Just Eat Takeaway.com’s chief executive officer, had been in contact from time to time over a number of years with respect to strategic opportunities and growth of their respective businesses; however, these discussions did not focus on a potential strategic transaction between the two companies.
In March 2019, at the initiative of Just Eat’s then-chief financial officer, members of Grubhub management and members of Just Eat management engaged in preliminary discussions regarding a potential strategic transaction between the two companies. In connection with these discussions, Grubhub and Just Eat entered into a mutual confidentiality agreement (which included a customary standstill provision) on 29 March 2019 to enable the sharing of limited, initial due diligence materials between the companies. However, following these exploratory conversations and before commencing more comprehensive due diligence, in May 2019 the parties mutually agreed to end the discussions. In July 2019, Takeaway.com N.V. announced a proposal to acquire Just Eat, which was ultimately completed on 31 January 2020.
In June 2019, a representative of Company A reached out to members of Grubhub management to have a preliminary conversation regarding a potential strategic transaction between the two companies. On 8 July 2019, Grubhub and Company A entered into a mutual confidentiality agreement, which contained a customary mutual standstill provision, with a customary “fall away” provision providing that a party’s standstill obligations would terminate in certain circumstances, including upon the other party entering into a binding agreement related to a change of control of such company.
Following entry into the confidentiality agreement, Grubhub management engaged in a number of discussions with Company A regarding a potential strategic transaction. These discussions continued intermittently until early November 2019 and included meetings among members of the respective management teams of Grubhub and Company A and the exchange of preliminary due diligence information necessary to analyze both a potential strategic transaction and the likelihood of securing regulatory approvals required for a transaction between Grubhub and Company A. Discussions between representatives of Grubhub and Company A were on hold between November 2019 and February 2020, at which time discussions started again as described below.
In November 2019, Grubhub engaged Evercore to act as financial advisor to Grubhub and the Grubhub Board in connection with Grubhub assessing and preparing for potential shareholder activism and, if relevant, a potential strategic transaction. An engagement letter between Grubhub and Evercore was subsequently signed on 11 February 2020. The Grubhub Board selected Evercore based on its understanding of Grubhub’s business, industry knowledge and relevant experience.
On 8 January 2020, a Wall Street Journal article reported that Grubhub was considering strategic alternatives, including engaging in a process to sell the company. The following day, Grubhub responded to the report by issuing a public statement denying that it was engaged in a process to sell the company.
On 7 February 2020, the chief executive officer of Company A met, at his request, with Mr. Maloney and orally conveyed Company A’s nonbinding proposal to acquire Grubhub in an all-stock transaction with an implied value of $60 per Grubhub Share based on Company A’s then-current trading price per share (“Company A’s 7 February proposal”). The closing price per Grubhub Share on the NYSE on 6 February 2020, the last full trading day prior to Company A’s 7 February proposal, was $54.62. Mr. Maloney informed the chief executive officer of Company A that he would discuss Company A’s 7 February proposal with the Grubhub Board.
On 13 February 2020, the Grubhub Board met, together with Grubhub management and representatives from Evercore and Kirkland & Ellis LLP (“K&E”), outside legal counsel to Grubhub, to discuss Company A’s 7 February proposal. One Grubhub director, Mr. Arthur Francis Starrs III, recused himself from all discussions and decisions of the Grubhub Board regarding potential strategic alternatives involving Grubhub at the 13 February meeting and for all subsequent meetings of the Grubhub Board on this topic due to potential confidential information sharing considerations in light of his role as chief executive officer of Pizza Hut, a division of Yum! Brands. At the meeting, the Grubhub Board decided to form an ad hoc advisory committee (the “M&A Committee”) consisting of Messrs. David Fisher, Lloyd Frink and Brian McAndrews, to assist the Grubhub Board in its evaluation of a potential strategic transaction. Representatives of K&E reviewed with the
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Grubhub Board its fiduciary duties in connection with its consideration of potential strategic alternatives. Members of Grubhub management reviewed with the Grubhub Board management’s preliminary financial projections for Grubhub. Representatives of Evercore reviewed with the Grubhub Board certain preliminary financial analyses with respect to a potential all-stock transaction involving Company A. Following discussion, including regarding potential synergies resulting from a combination with Company A and recent industry activity and trends, the Grubhub Board concluded that Company A’s 7 February proposal did not provide sufficient value to Grubhub Stockholders to form a basis for further discussion with Company A at that time, and directed Mr. Maloney to communicate to Company A this response to Company A’s 7 February proposal.
Later on 13 February 2020, Mr. Maloney conveyed to Company A’s chief executive officer the Grubhub Board’s determination that Company A’s 7 February proposal was insufficient to form a basis for further discussion with Company A at that time.
On 15 February 2020, Company A’s chief executive officer delivered to Mr. Maloney a letter restating Company A’s 7 February proposal to acquire Grubhub in an all-stock, fixed-exchange ratio transaction having an implied value of $60 per Grubhub Share based on Company A’s then-current trading price per share. There were no substantive differences between Company A’s 7 February proposal and the offer contained in the 15 February letter.
On 19 February 2020, Mr. Maloney delivered to Company A’s chief executive officer a letter reviewed by the Chairman of the Grubhub Board reiterating the Grubhub Board’s determination that Company A’s 7 February proposal was insufficient.
On 25 February 2020, Company A’s chief executive officer discussed Grubhub’s rejection of Company A’s 7 February proposal with Mr. Maloney and conveyed that Company A would submit a proposal with a revised range.
On 28 February 2020, in the ordinary course of reviewing strategic opportunities unrelated to the discussions with Company A, members of Grubhub management met with members of Just Eat Takeaway.com management to discuss the possibility of a strategic transaction between the parties. On 1 March 2020, Grubhub sent a draft confidentiality agreement (which included a customary standstill provision) to Just Eat Takeaway.com.
On 6 March 2020, Company A’s chief executive officer told Mr. Maloney that, due to COVID-19 and market dynamics, Company A was pausing discussions with Grubhub regarding a potential strategic transaction.
On 3 April 2020, Company A’s chief executive officer contacted Mr. Maloney to discuss the impact of COVID-19 on their respective businesses and inform him that Company A was interested in restarting discussions regarding a potential strategic transaction between Company A and Grubhub.
On 5 April 2020, Grubhub and Company A extended the term of their mutual confidentiality agreement, including the mutual standstill provision, in order to continue discussions regarding a potential strategic transaction. Following the execution of the extension to the mutual confidentiality agreement, members of management of Company A and Grubhub discussed updates to their respective businesses following the impact of COVID-19, and Company A resumed its preliminary due diligence of Grubhub.
On 15 April 2020, management of Company A delivered to management of Grubhub a verbal offer (“Company A’s 15 April proposal”), to acquire Grubhub in an all-stock transaction at a fixed exchange ratio that implied a value of $46.60 per Grubhub Share based on Company A’s then-current trading price per share, but reflected an increase to the implied exchange ratio, which would result in an improved pro forma fully-diluted ownership of Company A for Grubhub Stockholders as compared to Company A’s 7 February proposal. The closing price per Grubhub Share on the NYSE on 14 April 2020, the last full trading day prior to Company A’s 15 April proposal, was $41.80. A formal written offer letter reiterating Company A’s 15 April proposal was delivered to Grubhub by Company A on 16 April 2020.
On 21 April 2020, the M&A Committee met, together with representatives of Grubhub management, K&E and Evercore, to discuss Company A’s 15 April proposal. Representatives of Evercore reviewed with the M&A Committee certain preliminary financial analyses with respect to the terms of Company A’s 15 April proposal. Representatives of K&E also provided an overview of regulatory considerations associated with a potential combination with Company A. Following discussion, including regarding the implied values of Company A’s
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15 April proposal and Company A’s 7 February proposal, the value of potential synergies resulting from a combination with Company A and the overall business outlook for Company A, the M&A Committee determined to recommend to the Grubhub Board that Grubhub management continue discussions with Company A to seek to improve the terms of Company A’s 15 April proposal.
On 22 April 2020, the Grubhub Board met, together with representatives of Grubhub management, to, among other things, discuss Company A’s 15 April proposal. At this meeting, members of Grubhub management reviewed with the Grubhub Board the non-public, internal financial projections regarding Grubhub’s potential future performance prepared by Grubhub management in connection with the Transaction (the “Grubhub financial projections”) (see the section entitled “—Certain Unaudited Prospective Financial Information Prepared by Grubhub” beginning on page 101 of this proxy statement/prospectus). Following the M&A Committee’s recommendation, the Grubhub Board instructed Grubhub management to conduct due diligence on Company A’s business while negotiating for additional value and closing certainty relating to regulatory considerations. The Grubhub Board also discussed at this meeting other potential strategic transactions, including a potential transaction with Just Eat Takeaway.com, which, at that time, had not entered into a confidentiality agreement with Grubhub. The Grubhub Board directed management to progress the confidentiality agreement with Just Eat Takeaway.com and, once executed, engage in preliminary discussions regarding a potential transaction.
Following the 22 April 2020 Grubhub Board meeting, members of Grubhub and Company A management, together with representatives of K&E and Company A’s legal counsel, conducted several due diligence calls focusing on regulatory review of a potential strategic transaction between the two parties. The parties also discussed Company A’s liquidity and business in the context of COVID-19, as well as potential synergies in a transaction between Grubhub and Company A.
On 29 April 2020, the M&A Committee met, together with Grubhub management and representatives from K&E and Evercore. At the meeting, members of management provided an update on the status of due diligence into Company A’s liquidity and business in the context of COVID-19. Representatives of Evercore provided an update on the status of discussions with Company A as well as interactions with Just Eat Takeaway.com and reviewed with the Grubhub Board certain preliminary financial analyses with respect to Company A. Following discussions regarding the potential merits and downsides of a transaction, the M&A Committee determined that, in order for the proposed transaction with Company A to be more attractive than Grubhub executing on its standalone plan, the offer would need to deliver increased value to Grubhub Stockholders and obtain for Grubhub Stockholders a greater share of the synergies that would be generated by a combined company. The M&A Committee directed Grubhub management to make a counterproposal to Company A for an all-stock transaction at a fixed exchange ratio that implied a price per Grubhub Share of $64.76, based on Company A’s then-current trading price per share. The closing price per Grubhub Share on the NYSE on 28 April 2020, the last full trading day prior to this M&A Committee meeting, was $46.33.
Also on 29 April 2020, Grubhub and Just Eat Takeaway.com entered into a mutual confidentiality agreement, which contained a customary standstill provision and a related “fall away” provision providing that the standstill obligations would terminate in certain circumstances, including Grubhub entering into a binding agreement related to a change of control of Grubhub.
On 30 April 2020, a representative of Grubhub management conveyed to a representative of Company A’s management the terms of Grubhub’s counterproposal reflecting a higher exchange ratio, consistent with the M&A Committee’s recommendation.
On 4 May 2020, Mr. Maloney spoke with Mr. Groen regarding a potential strategic transaction involving Grubhub and Just Eat Takeaway.com. Mr. Maloney indicated to Mr. Groen that Grubhub had received interest regarding a potential strategic transaction involving Grubhub and, given similarities between the Grubhub and Just Eat Takeaway.com business models and potential strong strategic fit, encouraged Just Eat Takeaway.com to submit an initial indication of interest.
On 6 May 2020, at Grubhub’s direction, representatives of Evercore provided to Company A’s financial advisor certain financial information regarding Grubhub, including the Grubhub financial projections, which had been reviewed by the Grubhub Board at the 22 April meeting.
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On 9 May 2020, a representative of Company A’s management spoke to a representative of Grubhub management to convey Company A’s revised proposal (“Company A’s 9 May proposal”). Company A’s 9 May proposal reflected an all-stock transaction at a fixed exchange ratio that implied a value of $60.66 per Grubhub Share based on Company A’s then-current trading price per share. The closing price per Grubhub Share on the NYSE on 8 May 2020, the last full trading day prior to Company A’s 9 May proposal, was $46.82.
On 12 May 2020, financial media reported that Grubhub had received a takeover proposal from a publicly traded competitor in the online food delivery industry. Throughout the course of the subsequent negotiations described below, there were various media reports regarding potential transactions involving Grubhub and a number of third parties. Grubhub did not comment on any of these reports.
On the same day, the Grubhub Board met, together with representatives of Grubhub management, K&E and Evercore, to discuss Company A’s 9 May proposal and the status of discussions with Just Eat Takeaway.com. Representatives of Evercore reviewed with the Grubhub Board certain preliminary financial analyses with respect to Company A and Company A’s 9 May proposal, and representatives of K&E provided an overview of regulatory considerations associated with a potential combination with Company A. Following discussions regarding the potential growth of Company A and sharing of synergies, the Grubhub Board directed Grubhub management to make a counterproposal (“Grubhub’s 12 May counterproposal”) at a fixed exchange ratio that implied a value of $65.58 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE on 11 May 2020 of $46.79) based on Company A’s then-current stock price. As part of Grubhub’s 12 May counterproposal, the Grubhub Board instructed Grubhub management to negotiate for better value than presented by Company A’s 9 May proposal and to request contract terms with respect to Company A’s commitments to obtain regulatory approvals that would give Grubhub certainty with respect to Company A’s obligation to close a transaction and would also provide appropriate remedies for Grubhub in the event a transaction was not consummated.
On the same day, members of Grubhub management discussed Grubhub’s 12 May counterproposal with members of Company A’s management. Following these discussions, representatives of each of Grubhub and Company A conducted further due diligence and engaged in several discussions regarding regulatory matters.
On 13 May 2020, representatives of Grubhub and Just Eat Takeaway.com, as well as BofA Securities, financial advisor to Just Eat Takeaway.com, held a due diligence call regarding Grubhub’s financial and operational metrics, including the impact of COVID-19 on Grubhub’s business.
On 15 May 2020, representatives of Company B, a party with a large online food delivery business, contacted Evercore to express an interest in a potential transaction with Grubhub.
Also on 15 May 2020, a representative of Company A’s management spoke to a representative of Grubhub’s management to convey Company A’s revised proposal (“Company A’s 15 May proposal”). Company A’s 15 May proposal reflected a fixed exchange ratio that implied a value of $61.69 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE on 14 May 2020 of $54.72) based on Company A’s then-current stock price, as well as a high-level outline of regulatory covenants, including an obligation for Company A to use its “best efforts” to obtain regulatory approvals, subject to to-be-defined caps on certain divestiture and other remedies that Company A would be required to accept in order to obtain regulatory approvals, and a reverse termination fee in the event the transaction did not close because of a failure to obtain regulatory approvals.
On 17 May 2020, Mr. Maloney conveyed to Company A’s chief executive officer that, based on the Grubhub Board’s prior discussions of Company A’s 9 May proposal, Company A’s 15 May proposal did not deliver sufficient value or certainty to Grubhub Stockholders. During this discussion, Company A’s chief executive officer verbally communicated an improved indication of interest (“Company A’s 17 May proposal”) for an all-stock transaction at a fixed exchange ratio that implied a value of $62.50 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE on 15 May 2020 of $54.97) based on Company A’s then-current trading price per share as of 15 May 2020. However, the remainder of Company A’s 17 May proposal (including, notably, terms relating to regulatory certainty) was unchanged from Company A’s 15 May proposal. Company A’s chief executive officer presented Company A’s 17 May proposal as Company A’s “best and final” proposal.
On 18 May 2020, Mr. Groen delivered to Mr. Maloney a letter containing Just Eat Takeaway.com’s nonbinding proposal (“Just Eat Takeaway.com’s 18 May proposal”) to acquire Grubhub in an all-stock
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transaction with an implied value between $65 and $70 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE on 15 May 2020 of $54.97), which represented an implied pro forma fully-diluted ownership of the combined company for the Grubhub Stockholders between 28.2% and 29.8% of the combined company based on Just Eat Takeaway.com’s then-current trading price per share. In its letter, Just Eat Takeaway.com also underscored some of the compelling strategic benefits of a combination with Grubhub, including acquiring a strategic position in one of the world’s largest markets in food delivery, a cohesive, sustainable global approach to food delivery, and the ability to share global knowledge from experienced management teams to compete more effectively on a local basis.
On 19 May 2020, at a regularly scheduled meeting, the Grubhub Board received an update from representatives of Grubhub management, K&E and Evercore regarding the indications of interests received from Just Eat Takeaway.com and Company A, as well as Company B’s potential interest in a strategic transaction with Grubhub. Representatives of Evercore reviewed with the Grubhub Board certain preliminary financial analyses with respect to Just Eat Takeaway.com and Company A. Following discussion regarding the intrinsic value of the respective parties’ stock and conditionality involved in a transaction with either party, the Grubhub Board directed Grubhub management and representatives of Evercore to seek an indication of interest from Company B and to improve and clarify the terms of Just Eat Takeaway.com’s 18 May proposal, in particular with respect to the governance of a combined company and listing of the stock to be issued as merger consideration. In addition, the Grubhub Board directed Grubhub management to continue negotiations with Company A regarding the potential regulatory framework of a transaction.
On the same day, a member of Company A’s management conveyed to Grubhub management that Company A’s 17 May proposal continued to be Company A’s “best and final” proposal with respect to the implied value per Grubhub Share. In the following days, representatives of Grubhub and Company A engaged in discussions regarding the potential regulatory framework of a transaction between Grubhub and Company A.
On 20 May 2020, representatives of Grubhub and Just Eat Takeaway.com, as well as Evercore, financial advisor to Grubhub, and BofA Securities and Goldman Sachs, financial advisors to Just Eat Takeaway.com, held a due diligence call regarding Grubhub’s financial and operational metrics.
On the same day, Grubhub and Company B entered into a mutual confidentiality agreement, which contained a customary standstill provision and a related “fall away” provision providing that the standstill obligations would terminate in certain circumstances, including upon Grubhub entering into a binding agreement related to a change of control. On the following day, Grubhub provided Company B initial preliminary due diligence materials.
On 21 May 2020, consistent with the direction provided by the Grubhub Board on 19 May 2020 and at the direction of Grubhub management, representatives of Evercore conveyed Grubhub’s counterproposal (“Grubhub’s 21 May counterproposal”) on value to representatives of BofA Securities and Goldman Sachs, Just Eat Takeaway.com’s financial advisors, reflecting an all-stock transaction at a fixed exchange ratio having an implied value of $77.50 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE on 20 May 2020 of $57.52). Representatives of Evercore also conveyed Grubhub’s requests for (i) appropriate representation on the Just Eat Takeaway.com Supervisory Board and the Just Eat Takeaway.com Management Board following a potential transaction; (ii) stock consideration in the form of American depositary shares (“ADSs”) listed in the United States; (iii) closing certainty related to the vote of the Just Eat Takeaway.com Shareholders on a potential transaction, including a reverse termination fee payable by Just Eat Takeaway.com in the event of a failure to obtain shareholder approval and a voting and support agreement to be entered into by Mr. Groen’s affiliates; and (iv) an obligation to use “best efforts” to obtain regulatory approvals, coupled with a reverse termination fee payable by Just Eat Takeaway.com in the event of a failure to obtain necessary regulatory approvals.
On 22 May 2020, Mr. Maloney had a conversation with Mr. Groen to further discuss Grubhub’s 21 May counterproposal, with Mr. Maloney reiterating the competitive nature of the transaction process. Later that day, Mr. Groen verbally communicated to Mr. Maloney an improved offer for an all-stock transaction at a fixed exchange ratio with an implied value of $70 per Grubhub Share (compared to the closing price per Grubhub Share on the NYSE of 22 May 2020 of $57.35).
On 24 May 2020, Mr. Groen reaffirmed via email to Mr. Maloney the terms verbally communicated on 22 May 2020. In his email (“Just Eat Takeaway.com’s 24 May proposal”), Mr. Groen also responded to the other elements of Grubhub’s 21 May counterproposal, offered to add two Grubhub representatives to the Just Eat
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Takeaway.com Supervisory Board and one Grubhub representative to the Just Eat Takeaway.com Management Board and confirmed Just Eat Takeaway.com’s willingness to have the stock consideration be in the form of ADSs listed in the United States. Mr. Groen also indicated Just Eat Takeaway.com’s intention to hold a shareholders’ meeting to approve a transaction as soon as practicable and indicated his readiness to support the transaction with his beneficial holdings of Just Eat Takeaway.com Shares, which represented approximately 10.3% of the then-outstanding Just Eat Takeaway.com Shares.
On the same day, at the direction of the Grubhub Board, representatives of Evercore contacted Company B’s financial advisor to discuss Company B’s due diligence of Grubhub and request an initial indication of value as a precursor to engaging in more detailed discussions.
On 25 May 2020, the M&A Committee met, together with representatives of Grubhub management, K&E and Evercore, to discuss the status of the ongoing discussions with Just Eat Takeaway.com, Company A and Company B. Representatives of Evercore reviewed with the M&A Committee certain preliminary financial analyses with respect to Company A’s 17 May proposal and Just Eat Takeaway.com’s 24 May proposal. Members of the M&A Committee discussed the relative certainty of transactions between Grubhub and each of Company A and Just Eat Takeaway.com, as well as the relative strategic values of the two potential transactions (including the relative synergies implied by each proposal). Among other things, the M&A Committee noted the benefits of a potential combination with Just Eat Takeaway.com due to its having a similar operating strategy to Grubhub, including focusing on long-term profitable growth and connecting restaurants and diners through their respective online marketplaces. The M&A Committee supported continued engagement by Grubhub management and Evercore with each of Company A and Just Eat Takeaway.com.
On the same day, at the direction of the M&A Committee, representatives of Evercore conveyed to BofA Securities and Goldman Sachs, Just Eat Takeaway.com’s financial advisors, Grubhub’s willingness to engage in further discussions based on the terms of Just Eat Takeaway.com’s 24 May proposal.
On 26 May 2020, at the direction of the M&A Committee, representatives of Evercore conveyed to Company A’s financial advisor Grubhub’s willingness to engage in further discussions based on Company A’s 17 May proposal, subject to the parties reaching agreement on an appropriate contractual framework to address the regulatory considerations. Company A indicated its readiness to engage in due diligence and further discussions regarding the appropriate regulatory framework.
On the same day, at the direction of the M&A Committee, Evercore delivered a draft Merger Agreement prepared by K&E to BofA Securities and Goldman Sachs, Just Eat Takeaway.com’s financial advisors. K&E’s initial draft of the Merger Agreement contemplated terms consistent with Just Eat Takeaway.com’s 24 May proposal, including a voting and support agreement to be entered into by affiliates of Mr. Groen in support of the proposed transaction.
On 27 May 2020, representatives of Grubhub and Just Eat Takeaway.com held a due diligence call to review Just Eat Takeaway.com’s business, strategy, market positioning and financial outlook.
On 28 May 2020, the Grubhub Board met, together with representatives of Grubhub management, K&E and Evercore, to discuss the status of the ongoing negotiations with Just Eat Takeaway.com, Company A and Company B. Representatives of Evercore reviewed with the Grubhub Board certain preliminary financial analyses with respect to Company A’s 17 May proposal and Just Eat Takeaway.com’s 24 May proposal. Representatives of K&E also provided an overview of regulatory and other considerations regarding closing certainty (including the need for Just Eat Takeaway.com shareholder approval of the transaction) associated with a potential combination with each of Just Eat Takeaway.com and Company A. Following discussion, including regarding the financial terms of each proposal relative to Grubhub’s standalone plan as reflected in the Grubhub financial projections, the Grubhub Board directed Grubhub management to continue the ongoing discussions with both Just Eat Takeaway.com and Company A, while continuing to encourage Company B to submit an indication of interest.
On 28 May and 29 May, respectively, at the direction of Grubhub management, representatives of Evercore granted Company A and Just Eat Takeaway.com access to an electronic data room maintained by Grubhub containing financial and business information to facilitate each party’s due diligence review of Grubhub. Included in the electronic data room were the Grubhub financial projections (which had previously been provided to Company A).
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Later on 28 May 2020, Grubhub entered into an engagement letter with Centerview Partners LLC pursuant to which Centerview agreed to provide certain advisory services in connection with the Transaction, which did not include an opinion regarding the fairness of the Transaction.
Over the course of the following days, representatives of Grubhub, K&E, Wilson Sonsini Goodrich & Rosati (“WSGR”), outside legal counsel to Grubhub, and Grubhub’s economic advisors continued to engage with representatives of Company A and its legal and economic advisors regarding a framework to address regulatory considerations.
On 1 June 2020, representatives of Grubhub and Company A held a due diligence call regarding tax and accounting matters. On the same day, Just Eat Takeaway.com granted Grubhub access to an electronic data room maintained by Just Eat Takeaway.com containing financial and business information to facilitate Grubhub’s due diligence review of Just Eat Takeaway.com.
Also on 1 June 2020, the chief executive officer of Company B reached out to Mr. Maloney to request additional highly sensitive due diligence materials, which Grubhub determined not to provide both because Company B had not provided an indication of value despite repeated requests to do so and because those additional materials had not been provided to Company A or Just Eat Takeaway.com.
On 3 June 2020, Grubhub management delivered to a representative of Company A a draft contractual regulatory covenant that outlined the efforts it expected Company A to undertake to obtain regulatory approvals as well as an increased reverse termination fee that would be payable to Grubhub in the event approvals were not obtained.
Also on 3 June 2020, the M&A Committee met, together with representatives of Grubhub management, K&E, WSGR and Evercore, to discuss the status of discussions with Just Eat Takeaway.com, Company A and Company B. Representatives of Evercore reviewed with the M&A Committee certain preliminary financial analyses with respect to Company A’s 17 May proposal and Just Eat Takeaway.com’s 24 May proposal. A representative of WSGR provided an update to the M&A Committee on negotiations over a potential regulatory framework with Company A. Following discussion, including regarding the financial terms of each proposal relative to Grubhub’s standalone plan as reflected in the Grubhub financial projections, and the need to risk-adjust the implied value of Company A’s 17 May proposal to account for the heightened regulatory risk and future business prospects associated with a transaction involving Company A, the M&A Committee directed Grubhub management to work towards a transaction with Just Eat Takeaway.com on improved financial terms, while continuing discussions with Company A to see if an acceptable regulatory contractual framework could be agreed.
On the same day, Mr. Maloney spoke with Mr. Groen to inform him that the Grubhub Board was interested in the strategic opportunity presented by a combination with Just Eat Takeaway.com, but urged him to improve the financial terms of Just Eat Takeaway.com’s 24 May proposal. During this discussion, Mr. Groen informed Mr. Maloney that, given Mr. Maloney’s familiarity with Grubhub’s business and the food delivery market in the United States generally, Mr. Maloney would be well suited to join the Just Eat Takeaway.com Management Board and to run the combined company’s operations in North America, including the United States and Canada.
Also on 3 June and 4 June 2020, representatives of Grubhub and Just Eat Takeaway.com held due diligence calls.
On 4 June 2020, Company A’s legal advisors delivered to K&E a draft merger agreement, which, among other things, provided for an alternative regulatory framework that differed substantially from the draft Grubhub management provided to Company A on 3 June and that in Grubhub’s view, did not sufficiently protect Grubhub against regulatory risk. The proposal also included, among other things, limitations on Company A’s obligations to obtain regulatory approvals that were unacceptable to Grubhub.
Also on 4 June 2020, representatives of BofA Securities and Goldman Sachs, financial advisors to Just Eat Takeaway.com, communicated to representatives of Evercore, financial advisor to Grubhub, Just Eat Takeaway.com’s revised proposal (“Just Eat Takeaway.com’s 4 June proposal”) which implied that Grubhub Stockholders would own approximately 29.6% of the pro forma fully-diluted equity of a combined company.
Later that day, Just Eat Takeaway.com’s legal counsel, Cravath, Swaine & Moore LLP (“Cravath”), delivered a markup of the draft Merger Agreement to K&E. Cravath’s markup of the draft Merger Agreement contemplated, among other things, a mutual “force the vote” provision whereby neither Grubhub nor Just Eat
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Takeaway.com could terminate the Merger Agreement in the event of an alternative superior proposal. The draft Merger Agreement also contemplated a mutual termination fee equal to 1% of Just Eat Takeaway.com’s market capitalization, being the highest amount of a termination fee that Just Eat Takeaway.com could pay without shareholder approval under applicable legal requirements, and representing approximately 2% of Grubhub’s equity value based on Just Eat Takeaway.com’s 4 June proposal.
On 5 June 2020, representatives of Grubhub management met with the Just Eat Takeaway.com Supervisory Board to conduct additional due diligence.
Later that same day, the Grubhub Board met, together with representatives of Grubhub management, K&E and Evercore, to discuss the status of negotiations with Just Eat Takeaway.com, Company A and Company B. Representatives of Evercore reviewed with the Grubhub Board certain preliminary financial analyses with respect to Company A’s 17 May proposal and Just Eat Takeaway.com’s 4 June proposal. Representatives of Evercore reported that Company B had not yet provided an initial indication of value and continued to insist upon reviewing highly sensitive diligence materials that had not been shared with Just Eat Takeaway.com or Company A before providing any indication on value. The Grubhub Board also reviewed and discussed Grubhub’s standalone plan and reaffirmed that the Grubhub financial projections continued to represent their best estimates of Grubhub’s likely performance on a standalone basis. The Grubhub Board discussed the implied value of the proposals from each of Company A and Just Eat Takeaway.com as well as the implied values of each transaction based on the synergy estimates and discounted cash flow analysis on a risk-adjusted basis to account for the heightened regulatory risk associated with a transaction involving Company A. Representatives of Evercore and Grubhub management also discussed with the Grubhub Board that negotiations of definitive agreements with Just Eat Takeaway.com were progressing more quickly than those with Company A and that a signed agreement could be reached in the coming days, thereby minimizing the likelihood of further leaks and the negative impact of any such leaks on a potential transaction with either counterparty. Members of the Grubhub Board noted the higher implied value, the more favorable regulatory profile, overall greater deal certainty and the fact that a combination with Just Eat Takeaway.com would be a compelling strategy for global success as among the reasons that a transaction with Just Eat Takeaway.com was a preferable transaction. As part of its consideration of the proposals, the Grubhub Board discussed whether they could respond to an unsolicited transaction proposal received after announcing a transaction with Just Eat Takeaway.com as well as certain governance terms of Just Eat Takeaway.com’s 4 June proposal, including representation on the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board. Following consideration of the terms of each proposal and likely timing for entering into a definitive agreement for each transaction, the Grubhub Board expressed support for pursuing a transaction with Just Eat Takeaway.com. After the discussion, the Grubhub Board directed Grubhub management to continue to work toward signing a definitive agreement with Just Eat Takeaway.com while continuing to engage in discussions with Company A in an effort to obtain the best possible terms from each counterparty and to maintain competitive tensions.
On the same day, K&E delivered to Cravath a markup of the draft Merger Agreement and a voting and support agreement to be entered into by affiliates of Mr. Groen in support of the proposed transaction. K&E’s markup of the draft Merger Agreement contemplated a unilateral “force the vote” provision whereby Just Eat Takeaway.com could not terminate the Merger Agreement in the event of an alternative superior proposal and a “reverse” termination fee equal to 1% of Just Eat Takeaway.com’s market capitalization payable by Just Eat Takeaway.com in the event the Just Eat Takeaway.com Shareholders voted against the transaction.
On the same day, K&E delivered to Company A’s legal advisors an issues list laying out the key differences between the regulatory framework proposed by Grubhub in its draft regulatory contractual covenant delivered to Company A on 3 June 2020 and the regulatory framework proposed by Company A in its draft merger agreement dated 4 June 2020.
On 6 June 2020, K&E delivered to Company A’s legal advisors an issues list regarding the draft merger agreement (other than the regulatory framework) that Company A delivered on 4 June.
On 7 June 2020, the Grubhub Board met, together with representatives of Grubhub management, K&E and Evercore, to discuss the status of negotiations with Just Eat Takeaway.com and Company A. Representatives of Evercore updated the Grubhub Board that Grubhub management was continuing to engage with Company A on a proposed transaction to obtain the best possible terms from each counterparty and to maintain competitive tensions while expeditiously progressing discussions with Just Eat Takeaway.com as discussed at the 5 June
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meeting. Representatives of Evercore informed the Board that while discussions with Company A were ongoing, meaningful gaps in the deal terms continued to exist, including with respect to the contractual terms of the proposed regulatory framework. Representatives of Evercore then reviewed with the Grubhub Board certain preliminary financial analyses with respect to a transaction with Just Eat Takeaway.com, noting that Just Eat Takeaway.com was proposing an exchange ratio that would result in the Grubhub Stockholders owning approximately 29.6% of the pro forma fully-diluted equity of a combined company, while Grubhub was proposing an exchange ratio resulting in Grubhub Stockholders owning at least 30% of the pro forma fully-diluted equity. Representatives of K&E reviewed with the Grubhub Board its fiduciary duties as well as key terms in the draft Merger Agreement that had been delivered to Cravath by K&E, including the extent to which the customary “no shop” provisions in the draft Merger Agreement allowed the Grubhub Board to respond to unsolicited alternative transaction proposals following the execution of a definitive agreement with Just Eat Takeaway.com. Following discussion, including regarding the financial terms of Just Eat Takeaway.com’s 4 June proposal relative to Grubhub’s standalone plan as reflected in the Grubhub financial projections and relative to Company A’s 17 May proposal, the Grubhub Board noted that a transaction with Just Eat Takeaway.com was preferable over a transaction with Company A for the reasons discussed at the meeting of the Grubhub Board held on 5 June 2020. The Grubhub Board then directed representatives of Grubhub management, Evercore and K&E to continue negotiating a transaction with Just Eat Takeaway.com in an effort to enter into and announce a transaction with Just Eat Takeaway.com in the coming days. The Grubhub Board also directed representatives of Grubhub management, Evercore and K&E to focus on discussions with Just Eat Takeaway.com while continuing discussions with Company A in an effort to obtain the best possible terms from each counterparty and to maintain competitive tensions.
Later that day, Cravath delivered a markup of the draft Merger Agreement to K&E. Cravath’s markup of the draft Merger Agreement contemplated, among other things, the removal of the unilateral “force the vote” provision applicable to Just Eat Takeaway.com and the removal of the “reverse” termination fee payable by Just Eat Takeaway.com in the event the Just Eat Takeaway.com Shareholders voted against the transaction.
On 8 June 2020, K&E delivered a markup of the draft Merger Agreement to Cravath, which reinserted a 1% fee payable by Just Eat Takeaway.com in the event Just Eat Takeaway.com Shareholders failed to approve the transaction in the absence of an alternative proposal or a change in the Just Eat Takeaway.com Boards’ recommendation, among other fee triggers, but accepted that each of Grubhub and Just Eat Takeaway.com would be permitted to terminate the Merger Agreement to enter into an alternative superior proposal, subject to payment of the termination fee.
On 8 June 2020, K&E discussed Company A’s draft merger agreement with Company A’s legal counsel. Later that day, Company A’s legal counsel provided a revised proposal in response to Grubhub’s issues list dated 3 June regarding the regulatory framework for a transaction with Company A. The following day, K&E delivered a markup of the draft merger agreement to Company A.
On 9 June 2020, members of management of each of Grubhub and Just Eat Takeaway.com discussed the unresolved issues with respect to a transaction, including with respect to the exchange ratio and closing conditions relating to regulatory approvals and circumstances under which a termination fee would be payable by Just Eat Takeaway.com. On the same day, Just Eat Takeaway.com proposed an exchange ratio of ADSs representing 0.6710 Just Eat Takeaway.com Shares for each Grubhub Share, which would result in Grubhub Stockholders owning approximately 30.0% of the pro forma fully-diluted equity of the combined company and an implied value of $75.15 per Grubhub Share based on Just Eat Takeaway.com’s then-current trading price per share (compared to the closing price per Grubhub Share on the NYSE on 9 May 2020 of $57.92). Over the remainder of 9 June and 10 June 2020, Grubhub management, Just Eat Takeaway.com management, K&E and Cravath negotiated the final terms of the Merger Agreement, the Voting and Support Agreement and other ancillary documents.
On 10 June 2020, the Grubhub Board met, together with representatives of Grubhub management, K&E and Evercore, to consider the approval of a potential transaction with Just Eat Takeaway.com pursuant to which Just Eat Takeaway.com would acquire Grubhub in an all-stock transaction with a fixed exchange ratio of 0.6710 New Just Eat Takeaway.com ADSs for each Grubhub Share that would result in Grubhub Stockholders owning approximately 30.0% of the pro forma fully-diluted equity of the combined company. Representatives of K&E also reviewed with the Grubhub Board the letter that had been provided by representatives of Evercore that both disclosed certain relationships between Evercore and Grubhub and between Evercore and Just Eat Takeaway.com
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and confirmed that nothing would limit Evercore’s ability to fulfill its responsibilities as financial advisor to Grubhub in connection with its engagement. Representatives of Evercore reviewed with the Grubhub Board its financial analysis of the exchange ratio pursuant to the Merger Agreement and rendered its oral opinion, which was subsequently confirmed in writing, to the effect that, as of that date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the exchange ratio pursuant to the Merger Agreement was fair, from a financial point of view, to the holders of Grubhub Shares, other than excluded shares. For more information about Evercore’s opinion, see “—Opinion of Grubhub’s Financial Advisor” beginning on page 94 of this proxy statement/prospectus. After discussing potential factors in favor of and against the proposed transaction, and after reviewing the key terms of the Merger Agreement with K&E, the members of the Grubhub Board (other than Mr. Starrs who was recused from discussions) unanimously determined that the Merger Agreement was fair to, advisable and in the best interest of Grubhub and its stockholders, resolved to recommend that the Grubhub Stockholders adopt the Merger Agreement and directed that the Merger Agreement be submitted to the Grubhub Stockholders for adoption. For more information about the Grubhub Board’s reasons for recommending in favor of the adoption of the Merger Agreement, see “—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board” beginning on page 88 of this proxy statement/prospectus. Following its determination to enter into a transaction with Just Eat Takeaway.com, the Board determined not to pursue a transaction with Company A for the reasons discussed at the 5 June 2020 and 7 June 2020 meetings.
On the same day, the Wall Street Journal reported that Just Eat Takeaway.com was nearing an agreement to acquire Grubhub and Just Eat Takeaway.com confirmed that it was in advanced discussions regarding a transaction.
Later in the day, the parties exchanged executed copies of the Merger Agreement and the Voting and Support Agreement, and the parties announced the Transaction.
On 2 July 2020, the CMA indicated in a response to a briefing paper submitted by Just Eat Takeaway.com in relation to the Transaction that it had no further questions.
On 7 July 2020, the FTC granted early termination of the waiting period under the HSR Act with respect to the Transaction.
On 25 August 2020, Just Eat Takeaway.com made available to Just Eat Takeaway.com Shareholders the Circular relating to the Transaction and convocation of an Extraordinary General Meeting to be held on 7 October 2020.
Over the course of July and August 2020, Grubhub and Just Eat Takeaway.com discussed the anticipated timing of the filing of the draft registration statement on Form F-4 to register the New Just Eat Takeaway.com Shares to be issued as the merger consideration under the Securities Act, as well as the anticipated timing of Completion. On 2 September 2020, the parties agreed to amend the Merger Agreement to extend the End Date (as defined in the Merger Agreement) from 10 June 2021 to 31 December 2021 to provide additional certainty for the parties regarding the timing of the necessary steps to Completion, including the registration of the New Just Eat Takeaway.com Shares and New Just Eat Takeaway.com ADSs under the Securities Act. In approving this amendment, the Grubhub Board further determined that this first amendment to the Merger Agreement (the “first Merger Agreement amendment”) was fair to, advisable and in the best interest of Grubhub and its stockholders; resolved to recommend that the Grubhub Stockholders adopt the Merger Agreement (as amended by the first Merger Agreement amendment); and directed that the Merger Agreement (as amended by the first Merger Agreement amendment) be submitted to the Grubhub Stockholders for adoption.
On 3 September 2020, CFIUS informed Grubhub and Just Eat Takeaway.com that it had concluded its review of the Transaction and had determined that there were no unresolved national security concerns with respect to the Transaction.
On 4 September 2020, Grubhub, Just Eat Takeaway.com and the Merger Subs executed and delivered the first Merger Agreement amendment, a copy of which is attached as Annex A-2 to this proxy statement/prospectus.
On 7 October 2020, Just Eat Takeaway.com held the Extraordinary General Meeting and obtained the Just Eat Takeaway.com Shareholder Approval.
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On 12 March 2021, the parties agreed to amend the Merger Agreement to provide that each New Just Eat Takeaway.com ADS will represent one-fifth of one Just Eat Takeaway.com Share. In approving this amendment, the Grubhub Board further determined that the second amendment to the Merger Agreement (the “second Merger Agreement amendment”) was fair to, advisable and in the best interest of Grubhub and its stockholders; resolved to recommend that the Grubhub Stockholders adopt the Merger Agreement (as amended by the first Merger Agreement amendment and the second Merger Agreement amendment); and directed that the Merger Agreement (as amended by the first Merger Agreement amendment and the second Merger Agreement amendment) be submitted to the Grubhub Stockholders for adoption.
On 12 March 2021, Grubhub, Just Eat Takeaway.com and the Merger Subs executed and delivered the second Merger Agreement amendment, a copy of which is attached as Annex A-3 to this proxy statement/prospectus.
Just Eat Takeaway.com’s Purposes and Reasons for the Transaction
The Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board carefully evaluated the Merger Agreement and the transactions contemplated thereby. On 10 June 2020, the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board each adopted resolutions approving the terms of, and the transactions contemplated by, the Merger Agreement and resolved to unanimously recommend the Transaction for approval by the Just Eat Takeaway.com Shareholders.
In the course of reaching their respective decisions on 10 June 2020, the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board consulted with Just Eat Takeaway.com’s management and its financial and legal advisors and considered a variety of substantive factors, both positive and negative, and the potential benefits and detriments of the Transaction to Just Eat Takeaway.com, Just Eat Takeaway.com’s stakeholders and the Just Eat Takeaway.com Shareholders. The Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board believed that, taken as a whole, the following factors supported their respective decisions to approve the Merger Agreement (not necessarily in order of relative importance):
Strategic factors considered by the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board:
Creation of one of the world’s largest online food delivery companies. The Transaction will create one of the world’s largest online food delivery companies, measured by GMV and revenue, with strong brands connecting restaurant partners with their consumers in 25 countries. The Enlarged Group processed almost 600 million orders in fiscal year 2019 worth a GMV of nearly €14 billion, generating revenues of €2,727 million on a pro forma basis giving effect to the Just Eat Acquisition and the Transaction as if such transactions had been completed on 1 January 2019, exceeding competitors such as Uber Eats, Delivery Hero, Doordash and Postmates.
Creating a company built around strong positions in four of the world’s most attractive markets in food delivery. The Transaction will create a platform built around strong positions in four of the world’s most attractive markets in food delivery: the United States, the United Kingdom, Germany and the Netherlands, increasing the Enlarged Group’s ability to deploy capital and resources and strengthen its competitive positions in all its markets. These markets show substantial further opportunities for growth, significant penetration upside and longer-term profitability improvements.
The combination of Grubhub and SkipTheDishes to create a North American leader. Grubhub will be much stronger as part of the Just Eat Takeaway.com Group. The combination with the Just Eat Takeaway.com Group’s Canadian business, SkipTheDishes, as well as the increased scale and resources of the Enlarged Group will provide greater flexibility to make strategic, long-term investment decisions.
Grubhub’s advantage in the U.S. market. In the U.S., where the market is competitive and fragmented across local regions and cities, Grubhub’s differentiated offering provides it with unique advantages. Grubhub’s offering includes its large marketplace business, which operates through a hybrid model that combines logistics with its marketplace; its Seamless corporate business; its large geographic footprint; its extensive consumer and restaurant relationships; and its consumer relationship management tools, including loyalty programs.
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Enhanced scale and leading positions increases ability to invest and leverage best practices globally. The enhanced scale and leading positions of the Enlarged Group provide an opportunity to leverage best practices from the Just Eat Takeaway.com Group and the Grubhub Group and create the broadest possible offering to both restaurant partners and consumers. The Enlarged Group will have a greater ability to leverage investments, in particular in technology, marketing and restaurant delivery services across the combined business.
Founder-led management team, with a proven track record of building leading positions based on GMV in markets of scale. The Enlarged Group will have a founder-led management team that has over 55 years of combined experience in food delivery, with a proven track record in building leading positions (based on GMV) in markets of scale, the successful execution of mergers and acquisitions, integration programs and capital markets.
Other factors considered by the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board:
Business Climate. The current and prospective business climate in the food delivery industry, including the regulatory and litigation environment, and the position of current and likely competitors, including as a result of other business combinations.
Earnings Impact. The positive impact that the Transaction is expected to have on the earnings of the Just Eat Takeaway.com Group following Completion.
Due Diligence. The results of the due diligence review of the Grubhub Group and its businesses conducted by Just Eat Takeaway.com and its financial advisors and outside legal counsel.
Merger Agreement. The view that the terms and conditions of the Merger Agreement and the Transaction, including the covenants, closing conditions and termination provisions, are favorable to completing the Transaction.
Alternatives Available. Potential strategic alternatives that might be available to Just Eat Takeaway.com relative to the Transaction, including remaining a standalone entity or other acquisition opportunities and the belief of the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board that the Transaction is in the best interests of the Just Eat Takeaway.com Group, its enterprises, stakeholders and its shareholders as a whole given the potential risks, rewards and uncertainties associated with each alternative, including execution and regulatory risks and achievement of anticipated synergies.
The foregoing discussion of information and factors considered by the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board is not exhaustive, but the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board believe it includes the material factors considered by the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board. In view of the wide variety of factors considered in connection with their evaluation of the Transaction and the complexity of these matters, the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board did not consider it practicable to, and did not attempt to, quantify or otherwise assign relative or specific weight or values to any of these factors. Rather, the Just Eat Takeaway.com Management Board and the Just Eat Takeaway.com Supervisory Board viewed their position and recommendation as being based on an overall analysis and on the totality of the information presented to and factors considered by them. In addition, in considering the factors described above, individual directors may have given different weights to different factors.
The factors contained in this explanation of Just Eat Takeaway.com’s reasons for the Transaction and other information presented in this section of the proxy statement/prospectus contain information that is forward-looking in nature and, therefore, should be read in light of the factors discussed in “Cautionary Information Regarding Forward-Looking Statements and Risk Factor Summary” beginning on page xiv of this proxy statement/prospectus.
Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board
At a meeting on 10 June 2020, with the assistance of its legal and financial advisors, the Grubhub Board evaluated the Merger Agreement and the transactions contemplated thereby, including the Transaction, and
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(i) determined that it was fair to and in the best interest of Grubhub and the Grubhub Stockholders, and declared it advisable, that Grubhub enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Transaction; (ii) adopted the Merger Agreement and approved the execution, delivery and performance by Grubhub of the Merger Agreement and the transactions contemplated thereby, including the Transaction; (iii) resolved to recommend that the Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal; and (iv) directed that the Merger Agreement be submitted to the Grubhub Stockholders for adoption.
Throughout the process of considering the Transaction, in reaching its decision to approve the Merger Agreement and the transactions contemplated thereby, including the Transaction, and in forming its recommendation to Grubhub Stockholders that Grubhub Stockholders vote “FOR” the Merger Agreement proposal, “FOR” the non-binding compensation proposal and “FOR” the adjournment proposal, the Grubhub Board consulted with Grubhub’s senior management and legal and financial advisors and considered a number of factors, including, but not limited to the strategic and other factors outlined below.
Strategic Factors Considered by the Grubhub Board. The Grubhub Board considered that the Transaction would create a number of significant strategic opportunities, including, but not limited to, the following:
the Transaction would combine two strong players in the online food delivery space to create one of the world’s largest online food delivery companies, with enhanced scale and a diversified revenue mix across geographies, restaurant partners and diners, resulting in improved opportunities for growth, investment, cost savings and innovation relative to what Grubhub could achieve on a standalone basis;
following the Transaction, the Enlarged Group would have a greater ability to leverage investments, in particular in technology, marketing and restaurant delivery services across the Enlarged Group;
the Enlarged Group would bring together a compelling, highly complementary global portfolio of strong brands, connecting restaurant partners with diners in 25 countries, resulting in improved opportunities for growth in both the United States and globally relative to what Grubhub could achieve on a standalone basis;
following the Transaction, the Enlarged Group would be focused around four of the world’s most attractive markets in food delivery: the United States, United Kingdom, the Netherlands and Germany, increasing the Enlarged Group’s ability to deploy capital and resources to strengthen its competitive positions in all its markets;
the Transaction would enable the Enlarged Group to create the broadest possible offering to both restaurant partners and diners;
the Transaction would bring together two founder-led management teams with proven track records of building leading positions (based on GMV) in markets of scale, and Grubhub’s chief executive officer would be in a position to continue to build and execute Grubhub’s successful strategy by leading the Enlarged Group’s business in North America, including Canada;
the Enlarged Group would generate various benefits, including through the sharing of best practices in technology, marketing, logistics, sales and procurement across its markets, which is expected to result in the Enlarged Group having greater potential to achieve further earnings growth, enhance unit economics, generate more substantial cash flow and bottom-line impact than what Grubhub could achieve on a standalone basis; and
two Grubhub directors would be appointed to the Just Eat Takeaway.com Supervisory Board and one Grubhub director would be appointed to the Just Eat Takeaway.com Management Board, as more fully described under the section entitled “The Merger Agreement —Just Eat Takeaway.com Supervisory Board and Just Eat Takeaway.com Management Board Following the Transaction” beginning on page 166 of this proxy statement/prospectus, thereby providing a voice for Grubhub’s existing leadership in the Enlarged Group and enhancing the likelihood of obtaining the strategic benefits expected from the Transaction.
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Financial Factors Considered by the Grubhub Board. In addition to considering the strategic factors described above, the Grubhub Board considered a number of factors related to the financial rationale for the Transaction, which it viewed as supporting its decision to approve the Merger Agreement, including, but not limited to, the following:
the current and historical market prices of Grubhub Shares and Just Eat Takeaway.com Shares, including the market performance of Grubhub Shares and Just Eat Takeaway.com Shares relative to those of other participants in the online food delivery industry and applicable general market indices;
the value of the merger consideration which, based on the closing price of a Just Eat Takeaway.com Share and the Euro-Dollar exchange rate, in each case, as at market close on 9 June 2020, represented a compelling premium to Grubhub Stockholders of approximately 29.7% to the closing price of a Grubhub Share on 9 June 2020 (the last trading day before the announcement of the Transaction), and approximately 60.6% to the closing price of a Grubhub Share on 11 May 2020 (the last trading day before market rumors of a potential transaction involving Grubhub);
the merger consideration would be paid in New Just Eat Takeaway.com ADSs pursuant to a fixed exchange ratio that is expected to result in Grubhub Stockholders owning approximately 30% of the Enlarged Group, and, that no adjustment will be made to the exchange ratio as a result of possible increases or decreases in the trading price of the Grubhub Shares and/or Just Eat Takeaway.com Shares following the announcement of the Transaction;
the merger consideration would provide Grubhub Stockholders with the opportunity to participate meaningfully in any potential growth in the earnings and cash flows of a larger, more diversified company, in any benefits achieved by the Enlarged Group and in any potential future appreciation in the value of the New Just Eat Takeaway.com ADSs following the Transaction;
the Grubhub Board’s conclusion that the merger consideration reflected the best value that Just Eat Takeaway.com would be willing to offer at that time;
the Grubhub Board’s knowledge of Grubhub’s business, operations, financial condition, earnings and prospects, and its knowledge of Just Eat Takeaway.com’s business, operations, financial condition, earnings and prospects;
the risk that Grubhub’s management’s internal financial projections on a standalone basis, including the forecasts described in the section titled “—Certain Unaudited Prospective Financial Information Prepared by Grubhub” beginning on page 101 of this proxy statement/prospectus may not be achieved, in which case the value of Grubhub Shares on a standalone basis could be lower than the implied value of the merger consideration, especially in light of competitive conditions in the U.S. market; and
Grubhub’s and Just Eat Takeaway.com’s intent for the Transaction to qualify as a tax-free reorganization for U.S. federal income tax purposes.
Terms of the Merger Agreement considered by the Grubhub Board. The Grubhub Board considered the terms of the Merger Agreement, including the representations, warranties, covenants, agreements and rights of the parties under the Merger Agreement, the conditions to each party’s obligation to complete the Transaction, and the circumstances under which each party may terminate the Merger Agreement. See the section entitled The Merger Agreement beginning on page 147 of this proxy statement/prospectus. The Grubhub Board considered a number of factors relating to the terms of the Merger Agreement, including, but not limited to, the following:
the Transaction is subject to the approval of Grubhub Stockholders;
the requirement that both Grubhub and Just Eat Takeaway.com obtain certain regulatory approvals and clearances to complete the Transaction and undertake significant commitments to obtain such approvals and clearances, in each case as more fully described under the section entitled “The Merger Agreement —Efforts to Complete the Transaction” beginning on page 162 of this proxy statement/prospectus;
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the Grubhub Board’s view, after consultation with its legal counsel, that regulatory approvals and clearances would be obtained on a timely basis and the end date (as it may be extended) specified in the Merger Agreement (after which Grubhub or Just Eat Takeaway.com, subject to certain exceptions, may terminate the Merger Agreement) provides the parties with sufficient time to obtain all required regulatory approvals;
the Grubhub Board’s right to respond to and negotiate with respect to unsolicited alternative proposals from third parties in certain circumstances; to change its recommendation to the Grubhub Stockholders to vote “FOR” the adoption of the Merger Agreement if a superior proposal is available or in response to an intervening event; and to terminate the Merger Agreement in the event of a superior proposal, subject to payment to Just Eat Takeaway.com of a termination fee of $144 million, as more fully described under the sections entitled “The Merger Agreement—No Solicitation of Takeover or Alternative Proposals” and “—Grubhub’s Purposes and Reasons for the Transaction; Recommendation of the Grubhub Board” and beginning on pages 156 and 88 of this proxy statement/prospectus, respectively;
the Grubhub Board’s view that the $144 million termination fee that could become payable by Grubhub pursuant to the Merger Agreement in certain circumstances was reasonable and would not likely deter alternative acquisition proposals that would be more favorable to the Grubhub Stockholders than the transactions contemplated by the Merger Agreement, including the Transaction;
Just Eat Takeaway.com’s obligation to pay Grubhub a termination fee of $144 million in certain circumstances, as more fully described under the section entitled “The Merger Agreement—Expenses and Termination Fees” beginning on page 169 of this proxy statement/prospectus; and
the right of each of Grubhub and Just Eat Takeaway.com to specific performance to prevent breaches and to enforce the terms of the Merger Agreement, as more fully described under the section entitled “The Merger Agreement—Enforcement” beginning on page 171 of this proxy statement/prospectus.
Other Factors Considered by the Grubhub Board in Favor of the Transaction. The Grubhub Board also considered a number of other factors weighing in favor of the Transaction and the other transactions contemplated by the Merger Agreement, including, but not limited to, the following:
the review and analysis of Grubhub’s and Just Eat Takeaway.com’s respective businesses, historical financial performance and condition, operations, properties, assets, regulatory issues, competitive positions, prospects and management provided to the Grubhub Board by Grubhub’s management and Grubhub’s financial advisors;
the recommendation of Grubhub’s management in favor of the Transaction;
the opinion of Evercore, dated 10 June 2020, to the Grubhub Board to the effect that, as of that date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the exchange ratio pursuant to the Merger Agreement was fair, from a financial point of view, to the holders of Grubhub Shares, other than excluded shares, as more fully described below in the section titled “—Opinion of Grubhub’s Financial Advisor” beginning on page 94 of this proxy statement/prospectus;
the nature of alternatives reasonably available to Grubhub, including: (i) remaining a standalone entity and pursuing other strategic alternatives, and (ii) potential transactions with other industry participants, which the Grubhub Board evaluated with the assistance of its financial and legal advisors;
the Grubhub Board’s belief that the Transaction with Just Eat Takeaway.com would create the best reasonably available opportunity to maximize value for Grubhub Stockholders at that time given the potential risks, rewards and uncertainties associated with remaining a standalone entity and pursuing other strategic alternatives or potential transactions with other industry participants;
the reputation, business practices and experience of Just Eat Takeaway.com and its management, including Just Eat Takeaway.com’s success in integrating previously acquired businesses;
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the fact that Mr. Jitse Groen, a significant shareholder of Just Eat Takeaway.com in addition to its chief executive officer, would enter into the Voting and Support Agreement, pursuant to which Mr. Groen would agree, among other things, to vote his Just Eat Takeaway.com Shares in favor of the proposals requiring approval by Just Eat Takeaway.com Shareholders to consummate the Transaction; and
the fact that market rumors became public that Grubhub was in discussions involving a potential sale transaction generally, and specifically that Just Eat Takeaway.com was engaging in discussions to acquire Grubhub, which provided any third party wishing to engage in discussions with Grubhub an opportunity to put forward a compelling proposal, and the fact that, although the Grubhub Board had not granted Just Eat Takeaway.com exclusivity and was free to consider indications from any other party, no potential acquirer had made a proposal that was more favorable to Grubhub Stockholders than Just Eat Takeaway.com’s proposal.
Risks, Uncertainties and Other Factors Weighing Negatively Against the Transaction. The Grubhub Board weighed the above advantages and opportunities against a number of potential risks, uncertainties and other factors identified in its deliberations as weighing negatively against the Transaction, including, but not limited to, the following:
the possibility that the Transaction or the other transactions contemplated by the Merger Agreement may not be completed, or that their completion may be delayed for reasons that are beyond the control of Grubhub or Just Eat Takeaway.com, including the failure of Grubhub Stockholders to adopt the Merger Agreement or the failure of the Just Eat Takeaway.com Shareholders to approve the Just Eat Takeaway.com Shareholder Resolutions, including the share issuance and binding nominations, or the failure of Grubhub or Just Eat Takeaway.com to satisfy other requirements, including the receipt of regulatory approvals and clearances, that are conditions to closing the Transaction, and the materially adverse impact that such failure or delay could have on Grubhub’s financial or business condition, results of operations or stock price;
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