Implementation and Documentation. 2.1 The parties undertake to implement the Scheme in accordance with, and subject to the terms and conditions of, the Announcement and, so far as possible, the Timetable, with the overall intention that all Clearances are satisfied prior to the Court Hearing. Accordingly, without prejudice to the preceding sentence, each party agrees to use all reasonable endeavours to, and to procure that its Group and its directors and its relevant professional advisers assist it to, prepare all such documents and take all such steps as are necessary or desirable: (a) in connection with the Acquisition, the Scheme and the Offer (if made); and (b) for the purposes of obtaining all Clearances. 2.2 ebookers shall not seek to amend the Scheme or the EGM Resolutions after despatch of the Circular without the prior written consent of Cendant, which consent shall not be unreasonably delayed or withheld. 2.3 Cendant Bidco will instruct Counsel to appear on its behalf at the hearing of the petition to sanction the Scheme and will undertake to the Court to be bound by the terms of the Scheme insofar as it relates to Cendant Bidco, including as to discharge of the Cash Consideration for the Acquisition. 2.4 ebookers will, save as otherwise agreed with Cendant, take or cause to be taken all such steps as are necessary or desirable to implement the Scheme in accordance with the Timetable and, in particular, but without limitation: (a) ebookers will, as soon as reasonably practicable after the date of this Agreement, issue a Part 8 claim form in order to seek the Court's permission to convene the Court Meeting and file such documents as may be necessary in connection therewith; (b) upon: (i) the necessary documents being settled with the Court and, where required, approved by Cendant under Clause 2.8; and (ii) the Court making the order necessary for the purpose of convening the Court Meeting, ebookers shall as soon as reasonably practicable, publish the requisite documents, including the Circular together with appropriate forms of proxy for use at the Meetings, and thereafter in a timely manner, publish and/or post such other documents and information as the Court, the Panel, the UK Listing Authority, NASDAQ or the SEC may approve or require from time to time in connection with the proper implementation of the Scheme according to the Timetable; (c) ebookers will convene the Extraordinary General Meeting to be held immediately following the Court Meeting to consider and, if thought fit, approve the EGM Resolutions; (d) following the Court Meeting and the Extraordinary General Meeting, and assuming the resolutions to be proposed at such meeting have been passed by the requisite majorities, ebookers shall, as contemplated by the Timetable but in consultation with Cendant and always with the overall intention that all Clearances are satisfied prior to the Court Hearing, seek the sanction of the Court to the Scheme at the Court Hearing and take all other action necessary or desirable to make the Scheme effective; (e) if the Court so requires or indicates, or if it is necessary or desirable to implement the Scheme, ebookers shall reconvene the Court Meeting and any other necessary shareholder meeting; (f) as soon as practicable after the sanction of the Court of the Scheme (including the capital reduction) at the Court Hearing, and in any event within one Business Day thereof, ebookers shall cause an office copy of the Court Order to be filed with the Registrar and registered by him; (g) ebookers will not allot or issue any ebookers Shares between the Scheme Record Time and the time at which the Scheme becomes effective; (h) ebookers will use all reasonable endeavours to ensure that the steps to be taken between the posting of the Circular and the Effective Date are undertaken in accordance with a process agreed with Cendant and always with the overall intention that all Clearances are satisfied prior to the Court Hearing; (i) as soon as permissible in accordance with, and to comply with the applicable requirements of, the Rules, the terms of the ▇▇▇▇▇▇▇ Option Agreement and the terms of the ▇▇▇▇▇▇ Option Agreement as the case may be, ebookers shall give notice to: (A) the holders of ebookers Options in accordance with the Rules that all unexercised ebookers Options will lapse at the end of the relevant exercise period, as defined in the Rules; (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇▇ Option Agreement that the unexercised options issued to ▇▇ ▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇▇ Option Agreement; (C) ▇▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇ Option Agreement, that the unexercised options issued to ▇▇ ▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇ Option Agreement; (D) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in accordance with the Rules that all unexercised options granted to ▇▇ ▇▇▇▇▇▇▇▇ pursuant to the Cochrane Option will lapse at the end of the relevant exercise period, as defined in the Rules; and (E) ▇▇▇▇▇▇▇ Sampler in accordance with the Rules that all unexercised options granted to Mr Sampler pursuant to the Sampler Option will lapse at the end of the relevant exercise period, as defined in the Rules; (j) if the Scheme becomes effective or the Offer, if made, becomes unconditional in all respects, ebookers shall procure that the ebookers Directors approve the appointment as directors of ebookers of anyone nominated by Cendant and procure the resignations of any ebookers Director if required by Cendant. 2.5 ebookers agrees that the Circular shall incorporate a unanimous and unqualified recommendation of the ebookers Directors to Scheme Shareholders to vote in favour of the Scheme and the EGM Resolutions except if, and only to the extent that, the ebookers Directors conclude, in good faith, after consultation with, and based upon the advice of, their legal and financial advisers at a meeting of the Board of ebookers Directors, that such recommendation should not be given or should be withdrawn, modified or qualified in order to comply with the fiduciary duties of the ebookers Directors and on the basis that an extract from the relevant Board minute (certified as a true extract by the Company Secretary of ebookers) evidencing the conclusion of the ebookers Directors and referring to the legal and financial advice provided to the ebookers Directors is promptly delivered to Cendant by ebookers. 2.6 Cendant may elect at any time to implement the Acquisition by way of the Offer, whether or not the Circular has been despatched. Provided that the Offer is made in accordance with the terms and conditions set out in the Announcement (and with the consideration being equal to or greater than that specified in the Announcement), ebookers agrees that the related Offer Document shall incorporate a unanimous and unqualified recommendation of the ebookers Directors to the Scheme Shareholders to accept the Offer, except as specified in Clause 2.5 above. 2.7 The obligations of the parties to implement the Scheme, or if applicable the Offer, are subject to satisfaction or, where permissible, waiver of the Conditions. ebookers agrees that it shall only file the relevant Court Order with the Registrar if all of the Conditions are satisfied or, where permissible, waived by Cendant Bidco prior to the grant of the relevant Court Order. Except where required by the Panel, Cendant Bidco shall not be under any obligation to waive or treat as satisfied any of the Conditions in Appendix I to the Announcement. 2.8 ebookers agrees to co-ordinate the preparation and despatch of the Circular with Cendant and only to despatch the Circular, together with appropriate forms of proxy for use at the Meetings, with the consent of Cendant (which shall not be unreasonably withheld). Accordingly ebookers will submit drafts and revised drafts of the Circular and forms of proxy to Cendant for review and comment and shall discuss such comments with Cendant for the purposes of preparing revised drafts. Cendant undertakes to provide to ebookers for the purposes of inclusion in the Circular all such information about Cendant, its Group and their respective Personnel as may reasonably be required by ebookers (having regard to the City Code and applicable regulations) for inclusion in the Circular (including all information that would be required under the City Code or applicable regulations) and to provide all such other assistance as ebookers may reasonably require in connection with the preparation of the Circular including access to and ensuring the assistance of its management and that of relevant professional advisers. 2.9 Cendant agrees to co-ordinate the preparation and despatch of the Offer Document related to the Offer with ebookers unless any of the ebookers Directors have determined that the recommendation contemplated by Clause 2.6 shall not be given or should be withdrawn, modified or qualified in order to comply with their fiduciary duties. Subject thereto, Cendant will submit drafts and revised drafts of the Offer Document to ebookers for review and comment and shall discuss such comments with ebookers for the purposes of preparing revised drafts. (a) Cendant will procure that Cendant Bidco's directors accept responsibility for all of the information in the Circular relating to Cendant, its Group and its Personnel. (b) ebookers will procure that the ebookers Directors accept responsibility for all of the information in the Circular other than that relating to Cendant, its Group and their respective Personnel. 2.11 If Cendant elects to exercise the right to implement the Acquisition by way of the Offer: (a) Cendant will procure that Cendant Bidco's directors accept responsibility for all of the information in the related Offer Document other than that relating to ebookers, its Group and their respective Personnel; and (b) ebookers will procure that the Directors accept responsibility for the information in the Offer Document relating to ebookers, its Group and its Personnel. 2.12 ebookers undertakes to provide Cendant with all such information about ebookers, its Group and its Personnel as may reasonably be required for inclusion in the Offer Document and to provide all such other assistance as Cendant may reasonably require in connection with the preparation of the Offer Document, including access to, and ensuring the provision of assistance by, its management and relevant professional advisers. 2.13 ebookers undertakes to co-operate with and assist Cendant by providing Cendant and any Relevant Authority as promptly as is reasonably practicable upon request and in good faith any necessary information and documents for the purpose of making any submissions, filings and notifications to such Relevant Authority in relation to the Acquisition, including making any joint filings with Cendant where required by any such Relevant Authority. 2.14 Each party undertakes: (a) to keep the other informed reasonably promptly of developments which are material or potentially material to the obtaining of the Clearances; and (b) to disclose to each other as soon as reasonably practicable material correspondence with any Relevant Authority (subject to redaction of confidential information). 2.15 ebookers undertakes to enter into the ▇▇▇▇▇▇▇ Compromise Agreement prior to the Effective Date, such agreement to be conditional on the Scheme becoming effective. 2.16 The parties will consult with the Panel from time to time as necessary in order to keep the Panel informed, and where appropriate seek the consent of the Panel, as to the Timetable and the process to obtaining the Clearances. 2.17 ebookers will cooperate with any reasonable request of Cendant or Cendant Bidco in seeking a direction from the Panel to require any person rumoured to be interested in acquiring ebookers to make an announcement clarifying its intentions in accordance with the requirements of the City Code. 2.18 ebookers shall agree to any extension of time limits in the City Code which Cendant requests and which the Panel approves.
Appears in 1 contract
Sources: Merger Agreement (Cendant Corp)
Implementation and Documentation. 2.1 The parties undertake to implement 5.1 If the Scheme in accordance with, and subject to the terms and conditions of, the Announcement and, so far as possible, the Timetable, with the overall intention that all Clearances are satisfied prior to the Court Hearing. Accordingly, without prejudice to the preceding sentence, each party agrees to use all reasonable endeavours to, and to procure that its Group and its directors and its relevant professional advisers assist it to, prepare all such documents and take all such steps as are necessary or desirableTransaction is carried out by way of Scheme:
(a) in connection Offeree shall consult with and obtain BidCo’s approval (not to be unreasonably withheld or delayed) prior to appointing counsel for the Acquisition, purposes of the Scheme and (including the Offer (if madeCourt Hearing(s); and);
(b) for each of the purposes directors of obtaining all Clearances.the Board of Offeree shall recommend that the Offeree Shareholders vote in favor of the Scheme, except that a director may withdraw, adversely modify or amend such recommendation if prior to the completion of the Transaction, the Board of Offeree determines in good faith, after consultation with, and based upon the advice of, its outside legal advisers, at a meeting of the Board of Offeree, that the failure to withdraw, modify or amend such recommendation would be reasonably likely to be in breach of the fiduciary duties of the directors of the Board of Offeree or their duties under the Code;
2.2 ebookers (c) except as required by a Legal Requirement and subject to Clause 5.1(b), the Offeree shall not seek to amend the Scheme or the EGM Resolutions in the form set out in the Circular after despatch dispatch of the Circular without the prior written consent of Cendant, which BidCo (such consent shall not to be unreasonably delayed withheld or withheld.delayed);
2.3 Cendant Bidco will instruct Counsel to appear on its behalf at the hearing of the petition to sanction the Scheme and (d) BidCo will undertake to the Court to be bound by the terms of the Scheme insofar as it relates to Cendant BidcoBidCo, including as to the discharge of the Cash Consideration for due to the Acquisition.Offeree Shareholders under the Scheme;
2.4 ebookers will, save (e) except as otherwise agreed with CendantBidCo in writing, and with the reasonable assistance and co-operation of BidCo, Offeree shall take or cause to be taken all such steps as are reasonably necessary or desirable to implement the Scheme in accordance with the Timetable and, in particular, but without limitation:
(ai) ebookers will, Offeree shall use its reasonable endeavours to cause the Circular to be mailed to the Offeree Shareholders as soon promptly as reasonably practicable after satisfaction of the Pre-Conditions and in any event within 28 days of the satisfaction of such Pre-Conditions, but provided that Offeror provides Offeree with reasonable assistance to allow Offeree to comply with such obligations and provided that Offeror notifies promptly the Board of Offeree when such Pre-Conditions have been satisfied;
(ii) Offeree will, by no later than 14 days from the date of this Agreementthat the Pre-Conditions are satisfied or waived, issue a Part 8 claim form in order to seek the Court's ’s permission to convene the Court Meeting and file such documents as may be necessary in connection therewith;; and
(biii) upon:
(i1) the necessary documents being settled with the Court and, where required, approved by Cendant under Clause 2.8Court; and
(ii2) the Court making the order necessary for the purpose of convening the Court Meeting, ebookers Offeree shall as soon as reasonably practicablepromptly, in accordance with an order being made by the Court in accordance with Clause 5.1(e)(iii)(2) above and, in any event within four days from such Court order, publish the requisite documents, including the Circular together with appropriate forms of proxy for use at the MeetingsCircular, and thereafter in a timely manner, manner publish and/or post such other documents and information as the Court, the Panel, the UK Listing Authority, NASDAQ Court or the SEC any other Governmental Entity may approve or require from time to time in connection with the proper implementation of the Scheme according to the Timetable, provided that Offeror provides Offeree with reasonable assistance;
(civ) ebookers Offeree will convene the Extraordinary General Meeting to be held immediately following the Court Meeting to consider and, if thought fit, approve the EGM Resolutions;
(dv) at the request of BidCo, and subject to not being in breach of any Legal Requirement, Offeree will take all necessary actions to seek to adjourn the Court Meeting and Extraordinary General Meeting to such time and date as BidCo may require (provided that the Effective Date shall be no later than the Long-stop Date) provided that such adjournment is reasonably considered necessary to implement the Scheme;
(vi) following the Court Meeting and the Extraordinary General Meeting, and assuming the resolutions Resolutions to be proposed at such meeting meetings have been passed by the requisite majorities, ebookers Offeree shall, as contemplated by the Timetable but in consultation with Cendant and always with the overall intention that all Clearances are satisfied prior to the Court HearingBidCo, seek the sanction of the Court to the Scheme at and the Court Hearing reduction of capital and take all other action necessary or desirable to make the Scheme effective;
(evii) if the Court so requires or indicates, or if it is necessary or desirable to implement the Scheme, ebookers Offeree shall reconvene the Court Meeting and any other necessary shareholder meeting;
(fviii) as soon as practicable after the sanction of the Court of the Scheme (including and the associated reduction of capital reduction) at the Court HearingHearing(s), and in any event within one Business Day thereofDay, ebookers Offeree shall cause an office copy of the relevant Court Order Order(s) to be filed with the Registrar and registered by him;
(gix) ebookers Offeree will not not, except to the extent required to do so on the exercise of options under the Employee Share Option Scheme, granted or made before the date of this Agreement, allot or issue any ebookers Shares of its shares between 6.00 pm (London time) on the Business Day before the Court Hearing of the petition to confirm the reduction of capital provided for by the Scheme Record Time under Section 137 of the Act and the time at which the Scheme becomes effective;
(hx) ebookers will use all reasonable endeavours Offeree shall apply to ensure that the steps London Stock Exchange for its shares to be taken between the posting of the Circular cease trading and the FSA to remove its shares from the Official List, in each case with effect from immediately after the Effective Date are undertaken in accordance with a process agreed with Cendant and always with the overall intention that all Clearances are satisfied prior to the Court Hearing;
(i) as soon as permissible in accordance with, and to comply with the applicable requirements of, the Rules, the terms of the ▇▇▇▇▇▇▇ Option Agreement and the terms of the ▇▇▇▇▇▇ Option Agreement as the case may be, ebookers shall give notice to:
(A) the holders of ebookers Options in accordance with the Rules that all unexercised ebookers Options will lapse at the end of the relevant exercise period, as defined in the Rules;
(B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇▇ Option Agreement that the unexercised options issued to ▇▇ ▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇▇ Option Agreement;
(C) ▇▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇ Option Agreement, that the unexercised options issued to ▇▇ ▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇ Option Agreement;
(D) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in accordance with the Rules that all unexercised options granted to ▇▇ ▇▇▇▇▇▇▇▇ pursuant to the Cochrane Option will lapse at the end of the relevant exercise period, as defined in the RulesTime; and
(Exi) ▇▇▇▇▇▇▇ Sampler in accordance with the Rules that all unexercised options granted to Mr Sampler pursuant to the Sampler Option will lapse at the end of the relevant exercise period, as defined in the Rules;
(j) if the Scheme becomes effective or the Offer, if made, becomes unconditional in all respects, ebookers shall procure that the ebookers Directors approve the appointment as directors of ebookers of anyone nominated by Cendant and procure the resignations of any ebookers Director if required by Cendant.
2.5 ebookers Offeree agrees that the Circular shall incorporate a unanimous and unqualified recommendation of the ebookers Directors directors of the Board of Offeree to Scheme Offeree Shareholders to vote in favour favor of the Scheme and the EGM Extraordinary General Meeting subject to Clause 5.1(b).
(f) Offeror and BidCo will each procure that its directors (or such other Persons connected with them as the Panel so require) accept responsibility for all of the information in the Circular relating to Offeror and BidCo, its Group and its Personnel to the extent required under applicable Legal Requirements or the Code;
(g) Offeree will procure that the directors of Offeree accept responsibility for all of the information in the Circular other than information for which responsibility is accepted by Offeror and BidCo under Clause 5.1(f) above to the extent required under applicable Legal Requirements or the Code;
(h) Offeree will submit drafts of the Circular to Offeror and BidCo for review and comment reasonably in advance of the deadline for dispatching the Circular and shall discuss such comments with Offeror and BidCo for the purposes of preparing revised drafts. Offeree agrees that the Circular, the Scheme and the Resolutions except ifshall be in a form consistent with the Announcement and otherwise in a form reasonably satisfactory to BidCo (subject to any Legal Requirements). Each Party undertakes to provide for the purposes of inclusion in the Circular, all such information about itself, its Group and their respective Personnel as may be required under the Code or under any other Legal Requirement for inclusion in the Circular. Offeree agrees to coordinate the preparation and dispatch of the Circular with Offeror and BidCo and only to dispatch the Circular once the Circular is in a form which is reasonably satisfactory to Offeror, BidCo and Offeree;
(i) upon the implementation of the Scheme, Offeror will pay the Consideration at the Effective Time; and
(j) subject to any Legal Requirement, Offeree shall provide all reasonable assistance requested by Offeror and BidCo, in order to (i) determine the extent to which (if any) the provision of information to, and/or consultation with, employees or their representatives is required in connection with the Transaction; (ii) assist with the provision of such information and/or consultation with employees or their representatives; and/or (iii) assist with any proposals, communications and/or or integration planning in relation to, or associated with, the Transaction, provided that, all information, communications with, or announcements to employees and/or their representatives pursuant to this paragraph (j) shall first be submitted to Offeror for Offeror’s review and approval. This obligation shall include, without limitation, the ebookers Directors concludetimely confirmation to Offeror and BidCo of whether any local or national level collective agreements with trade unions, works councils or any other employee representative bodies exist, and the provision to Offeror of copies of any such agreements to the extent that they may impact on Offeree’s obligations to inform and/or consult with employees and/or their representatives. Offeree shall, if appropriate, following release of the Announcement (or earlier if required by any applicable laws or agreements), arrange and facilitate or continue discussions with its employees and/or their representatives to enable Offeree to fully comply with its obligations in this regard.
5.2 Takeover Offer
(a) Provided the Transaction has not, prior to such time, lapsed or been withdrawn by Offeror and provided the Pre-Conditions or Conditions to the Transaction have not already become incapable of satisfaction (other than pursuant to a waiver of the same by Offeror), Offeror may elect at any time to implement the Transaction by way of a Takeover Offer, whether or not the Circular has been dispatched, provided that Offeror will consult with Offeree before making that election and provided further that the Takeover Offer is made on terms and conditions that are at least as favorable to Offeree and its shareholders as the terms and conditions of the Scheme and with an acceptance condition of ninety percent (90%) (or such lesser number as Offeror may decide) of the shares to which the Takeover Offer relates.
(b) If Offeror elects to implement the Transaction by way of a Takeover Offer in accordance with Clause 5.2
(a) all the directors of Offeree shall recommend the Takeover Offer, except that a director may withdraw, adversely modify or amend such recommendation if, prior to the completion of the Transaction, the Board of Offeree determines in good faithfaith at a meeting of the Board of Offeree, after consultation with, and based upon the advice of, their its outside legal and financial advisers at a meeting of the Board of ebookers Directorsadvisers, that the failure to withdraw, modify or amend such recommendation should not would be given or should reasonably likely to be withdrawn, modified or qualified in order to comply with breach of the fiduciary duties of the ebookers Directors and on the basis that an extract from the relevant Board minute (certified as a true extract by the Company Secretary of ebookers) evidencing the conclusion directors of the ebookers Directors and referring to Board of Offeree or their duties under the legal and financial advice provided to the ebookers Directors is promptly delivered to Cendant by ebookersCode.
2.6 Cendant may elect at any time to implement (c) If the Acquisition Takeover Offer is recommended by way a majority of the Offerdirectors of Offeree’s Board, whether or not the Circular has been despatched. Provided that the Offer is made in accordance with the terms and conditions set out in the Announcement Offeree shall (and with the consideration being equal to or greater than that specified in the Announcement), ebookers agrees that the related Offer Document shall incorporate a unanimous and unqualified recommendation of the ebookers Directors to the Scheme Shareholders to accept the Offer, except as specified in Clause 2.5 above.
2.7 The obligations of the parties to implement the Scheme, or if applicable the Offer, are subject to satisfaction or, where permissible, waiver of the Conditions. ebookers agrees that it shall only file the relevant Court Order with the Registrar if all of the Conditions are satisfied or, where permissible, waived by Cendant Bidco prior to the grant of the relevant Court Order. Except where required by the Panel, Cendant Bidco shall not be under any obligation to waive or treat as satisfied any of the Conditions in Appendix I to the Announcement.
2.8 ebookers agrees to co-ordinate the preparation and despatch of the Circular with Cendant and only to despatch the Circular, together with appropriate forms of proxy for use at the Meetings, with the consent of Cendant (which shall not be unreasonably withheld). Accordingly ebookers will submit drafts and revised drafts of the Circular and forms of proxy to Cendant for review and comment and shall discuss such comments with Cendant for the purposes of preparing revised drafts. Cendant undertakes to i) promptly provide to ebookers for the purposes of inclusion in the Circular all such information about Cendant, its Group and their respective Personnel as may reasonably be required by ebookers (having regard to the City Code and applicable regulations) for inclusion in the Circular (including all information that would be required under the City Code or applicable regulations) and to provide all such other assistance as ebookers may reasonably require in connection with the preparation of the Circular including access to and ensuring the assistance of its management and that of relevant professional advisers.
2.9 Cendant agrees to co-ordinate the preparation and despatch of the Offer Document related to the Offer with ebookers unless any of the ebookers Directors have determined that the recommendation contemplated by Clause 2.6 shall not be given or should be withdrawn, modified or qualified in order to comply with their fiduciary duties. Subject thereto, Cendant will submit drafts and revised drafts of the Offer Document to ebookers for review and comment and shall discuss such comments with ebookers for the purposes of preparing revised drafts.
(a) Cendant will procure that Cendant Bidco's directors accept responsibility for all of the information in the Circular relating to CendantOfferee, its Group and its Personnel.
Personnel as may be reasonably required for inclusion in the Offer Document and in all events within ten Business Days; (bii) ebookers will procure that the ebookers Directors accept responsibility for all of the information in the Circular other than that relating to Cendant, its Group and their respective Personnel.
2.11 If Cendant elects to exercise the right to implement the Acquisition by way of the Offer:
(a) Cendant will procure that Cendant Bidco's directors accept responsibility for all of the information in the related Offer Document other than that relating to ebookers, its Group and their respective Personnel; and
(b) ebookers will procure that the Directors accept responsibility for the information in the Offer Document relating to ebookers, its Group and its Personnel.
2.12 ebookers undertakes to provide Cendant with all such information about ebookersOfferee, its Group and its Personnel as may reasonably be to the extent required for inclusion in the Offer Document by a Legal Requirement; and to (iii) provide all such other assistance as Cendant Offeror and BidCo may reasonably require in connection with the preparation of the Offer Document, including access to, and ensuring the provision of assistance by, its management and relevant professional advisers.
2.13 ebookers undertakes to co-operate with and assist Cendant by providing Cendant and any Relevant Authority as promptly as is reasonably practicable upon request and in good faith any necessary information and documents for the purpose of making any submissions, filings and notifications to such Relevant Authority in relation to the Acquisition, including making any joint filings with Cendant where required by any such Relevant Authority.
2.14 Each party undertakes:
(a) to keep the other informed reasonably promptly of developments which are material or potentially material to the obtaining of the Clearances; and
(b) to disclose to each other as soon as reasonably practicable material correspondence with any Relevant Authority (subject to redaction of confidential information).
2.15 ebookers undertakes to enter into the ▇▇▇▇▇▇▇ Compromise Agreement prior to the Effective Date, such agreement to be conditional on the Scheme becoming effective.
2.16 The parties will consult with the Panel from time to time as necessary in order to keep the Panel informed, and where appropriate seek the consent of the Panel, as to the Timetable and the process to obtaining the Clearances.
2.17 ebookers will cooperate with any reasonable request of Cendant or Cendant Bidco in seeking a direction from the Panel to require any person rumoured to be interested in acquiring ebookers to make an announcement clarifying its intentions in accordance with the requirements of the City Code.
2.18 ebookers shall agree to any extension of time limits in the City Code which Cendant requests and which the Panel approves.
Appears in 1 contract
Sources: Transaction Agreement (Websense Inc)
Implementation and Documentation. 2.1 3.1 The parties undertake to implement the Scheme in accordance with, and subject to the terms and conditions of, the Press Announcement and, so far as possible, the Timetable, Timetable with the overall intention that all Clearances are satisfied prior to the Court Hearing. Accordingly, without prejudice to the preceding sentence, each party agrees to use all reasonable endeavours to, and to procure that its Group and its directors and its relevant professional advisers assist it to, prepare all such documents and take all such steps as are necessary or desirable:
(aA) in connection with the Acquisition, the Scheme and the Offer (if made)Offer; and
(bB) for the purposes of obtaining all Clearances.
2.2 ebookers 3.2 The Company shall not seek to amend the Scheme or the EGM Resolutions after despatch of the Circular Scheme Document without the prior written consent of Cendant, which consent shall not be unreasonably delayed or withheldthe Offeror.
2.3 Cendant Bidco will instruct Counsel to appear on its behalf at the hearing of the petition to sanction the Scheme and 3.3 The Offeror will undertake to the Court to be bound by the terms of the Scheme insofar as it relates to Cendant Bidcothe Offeror, including as to discharge of the Cash Consideration consideration for the Acquisition.
2.4 ebookers 3.4 The Company will, save as otherwise agreed with Cendantthe Offeror, take or cause to be taken all such steps as are necessary or desirable to implement the Scheme in accordance with the Timetable and, in particular, but without limitation:
(aA) ebookers the Company will, as soon as reasonably practicable no later than sixteen days after the date of this Agreement, issue a Part 8 claim form in order to seek the Court's permission to convene the Court Meeting and file such documents as may be necessary in connection therewith;
(bB) upon:
(i) the necessary documents being settled with the Court and, where required, approved by Cendant the Offeror under Clause 2.8clause 3.8; and
(ii) the Court making the order necessary for the purpose of convening the Court Meeting, ebookers the Company shall as soon as reasonably practicablepromptly, and in any event within fourteen days, publish the requisite documents, including the Circular together with appropriate forms of proxy for use at the MeetingsScheme Document, and thereafter in a timely manner, publish and/or post such other documents and information as the Court, the Panel, Court or the UK Listing Authority, NASDAQ or the SEC Authority may approve or require from time to time in connection with the proper implementation of the Scheme according to the Timetable;
(cC) ebookers the Company will convene the Extraordinary General Meeting to be held immediately following the Court Meeting to consider and, if thought fit, approve the EGM Resolutions;
(dD) following the Court Meeting and the Extraordinary General Meeting, and assuming the resolutions to be proposed at such meeting have been passed by the requisite majorities, ebookers the Company shall, as contemplated by the Timetable Schedule 2 but in consultation with Cendant the Offeror and always with the overall intention that all Clearances are satisfied prior to the Court Hearing, seek the sanction of the Court to the Scheme at the Court Hearing and take all other action necessary or desirable to make the Scheme effective;
(eE) if the Court so requires or indicates, or if it is necessary or desirable to implement the Scheme, ebookers the Company shall reconvene the Court Meeting and any other necessary shareholder meeting;
(fF) as soon as practicable after the sanction of the Court of the Scheme (including the capital reduction) at the Court Hearing, and in any event within one Business Day thereofDay, ebookers the Company shall cause an office copy of the relevant Court Order to be filed with the Registrar and registered by him;
(gG) ebookers the Company will not allot or issue any ebookers Bromo Shares between 6.00 p.m. on the Scheme Record Time Business Day before the Court Hearing and the time at which the Scheme becomes effective;; and
(hH) ebookers the Company will use all reasonable endeavours to ensure that the steps to be taken between the posting of the Circular Scheme Document and the Effective Date are undertaken in accordance with a process agreed with Cendant the Offeror and always with the overall intention that all Clearances are satisfied prior to the Court Hearing;
(i) as soon as permissible in accordance with, and to comply with the applicable requirements of, the Rules, the terms of the ▇▇▇▇▇▇▇ Option Agreement and the terms of the ▇▇▇▇▇▇ Option Agreement as the case may be, ebookers shall give notice to:
(A) the holders of ebookers Options in accordance with the Rules that all unexercised ebookers Options will lapse at the end of the relevant exercise period, as defined in the Rules;
(B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇▇ Option Agreement that the unexercised options issued to ▇▇ ▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇▇ Option Agreement;
(C) ▇▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with the terms of the ▇▇▇▇▇▇ Option Agreement, that the unexercised options issued to ▇▇ ▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ Option Agreement will lapse at the end of the relevant exercise period, as defined in the ▇▇▇▇▇▇ Option Agreement;
(D) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in accordance with the Rules that all unexercised options granted to ▇▇ ▇▇▇▇▇▇▇▇ pursuant to the Cochrane Option will lapse at the end of the relevant exercise period, as defined in the Rules; and
(E) ▇▇▇▇▇▇▇ Sampler in accordance with the Rules that all unexercised options granted to Mr Sampler pursuant to the Sampler Option will lapse at the end of the relevant exercise period, as defined in the Rules;
(j) if the Scheme becomes effective or the Offer, if made, becomes unconditional in all respects, ebookers shall procure that the ebookers Directors approve the appointment as directors of ebookers of anyone nominated by Cendant and procure the resignations of any ebookers Director if required by Cendant.
2.5 ebookers 3.5 The Company agrees that the Circular Scheme Document shall incorporate a unanimous and unqualified recommendation of the ebookers Directors to Scheme Bromo Shareholders to vote in favour of the Scheme and the EGM Resolutions except if, and only to the extent that, that the ebookers Directors conclude, have determined in good faith, after consultation with, and based upon faith with the advice of, their benefit of legal and financial advisers at a meeting of the Board of ebookers Directors, advice that such recommendation should not be given or should be withdrawn, modified or qualified in order to comply with the their fiduciary duties of the ebookers Directors and on the basis that an extract from the relevant Board minute (certified as a true extract by the Company Secretary of ebookers) evidencing the conclusion of the ebookers Directors and referring to the legal and financial advice provided to the ebookers Directors is promptly delivered to Cendant by ebookersduties.
2.6 Cendant 3.6 The Offeror may elect at any time to implement the Acquisition by way of the Offer, whether or not the Circular Scheme Document has been despatched. Provided that the Offer is made in accordance with the terms and conditions set out in the Press Announcement (and with the consideration being equal to or greater than that specified in the Press Announcement), ebookers the Company agrees that the related Offer Document shall incorporate a unanimous and unqualified recommendation of the ebookers Directors to the Scheme Bromo Shareholders to accept the Offer, except as specified to the extent that the Directors have determined in Clause 2.5 abovegood faith with the benefit of legal and financial advice that such recommendation should not be given or should be withdrawn, modified or qualified in order to comply with their fiduciary duties.
2.7 3.7 The obligations of the parties to implement the Scheme, or if applicable the Offer, are subject to satisfaction or, where permissible, waiver of the Conditions. ebookers The Company agrees that it shall only file the relevant Court Order with the Registrar if all of the Conditions are satisfied or, where permissible, waived by Cendant Bidco the Offeror prior to the grant of the relevant Court Order. Except where required by the Panel, Cendant Bidco The Offeror shall not be under any obligation to waive or treat as satisfied any of the Conditions conditions in paragraph (b), (c), (e) or (f) of Appendix I to the AnnouncementPress Announcement until the Clearances are satisfied.
2.8 ebookers 3.8 The Company agrees to co-ordinate the preparation and despatch of the Circular Scheme Document with Cendant the Offeror and only to despatch the Circular, together with appropriate forms of proxy for use at the Meetings, Scheme Document with the consent of Cendant the Offeror (which shall not be unreasonably withheld). Accordingly ebookers the Company will submit drafts and revised drafts of the Circular and forms of proxy Scheme Document to Cendant the Offeror for review and comment and shall discuss such comments with Cendant the Offeror for the purposes of preparing revised drafts. Cendant The Offeror undertakes to provide to ebookers the Company for the purposes of inclusion in the Circular Scheme Document all such information about Cendantthe Offeror, its Group and their respective Personnel as may reasonably be required by ebookers the Company (having regard to the City Code and applicable regulations) for inclusion in the Circular Scheme Document (including all information that would be required under the City Code or applicable regulations) and to provide all such other assistance as ebookers the Company may reasonably require in connection with the preparation of the Circular Scheme Document including access to and ensuring the assistance of its management and that of Omega and relevant professional advisers.
2.9 Cendant 3.9 The Offeror agrees to co-ordinate the preparation and despatch of the Offer Document related to with the Offer with ebookers Company unless any of the ebookers Directors have determined that the recommendation contemplated by Clause 2.6 sub-clause 3.6 shall not be given or should be withdrawn, modified or qualified in order to comply with their fiduciary duties. Subject thereto, Cendant the Offeror will submit drafts and revised drafts of the Offer Document to ebookers the Company for review and comment and shall discuss such comments with ebookers the Company for the purposes of preparing revised drafts.
(aA) Cendant The Offeror will procure that Cendant Bidco's directors its directors, and those of Omega, accept responsibility for all of the information in the Circular Scheme Document relating to Cendantthe Offeror, its Group and its Personnel.
(bB) ebookers The Company will procure that the ebookers Directors accept responsibility for all of the information in the Circular Scheme Document other than that relating to Cendantthe Offeror, its Group and their respective Personnel.
2.11 3.11 If Cendant the Offeror elects to exercise the right described in Part A of Appendix I to the Press Announcement to implement the Acquisition by way of the Offer:
(aA) Cendant the Offeror will procure that Cendant Bidco's directors its directors, and those of Omega, accept responsibility for all of the information in the related Offer Document other than that relating to ebookersthe Company, its Group and their respective Personnel; and
(bB) ebookers the Company will procure that the Directors accept responsibility for the information in the Offer Document relating to ebookersthe Company, its Group and its Personnel.
2.12 ebookers 3.12 The Company undertakes to provide Cendant the Offeror with all such information about ebookersthe Company, its Group and its Personnel as may reasonably be required for inclusion in the Offer Document and to provide all such other assistance as Cendant the Offeror may reasonably require in connection with the preparation of the Offer Document, including access to, and ensuring the provision of assistance by, its management and relevant professional advisers.
2.13 ebookers 3.13 The Company undertakes to co-operate with and assist Cendant the Offeror by providing Cendant the Offeror and any Relevant relevant Competition Authority as promptly as is reasonably practicable upon request and in good faith any necessary information and documents for the purpose of making any submissions, filings and notifications to such Relevant Competition Authority in relation to the Acquisition, including making any joint filings with Cendant the Offeror where required by any such Relevant Competition Authority.
2.14 3.14 Each party undertakes:
(aA) to keep the other informed reasonably promptly of developments which are material or potentially material to the obtaining of the ClearancesClearances within 81 days of the posting of the Scheme Document; and
(bB) to disclose to each other as soon as reasonably practicable material correspondence with any Relevant relevant Competition Authority (subject to redaction of confidential information).
2.15 ebookers undertakes to enter into the ▇▇▇▇▇▇▇ Compromise Agreement prior to the Effective Date, such agreement to be conditional on the Scheme becoming effective.
2.16 3.15 The parties will consult with the Panel from time to time as necessary in order to keep the Panel informed, and where appropriate seek the consent of the Panel, as to the Timetable and the process to obtaining the Clearances.
2.17 ebookers will cooperate with any reasonable request of Cendant or Cendant Bidco in seeking a direction from the Panel to require any person rumoured to be interested in acquiring ebookers to make an announcement clarifying its intentions in accordance with the requirements of the City Code.
2.18 ebookers shall agree to any extension of time limits in the City Code which Cendant requests and which the Panel approves.
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