Exhibit 1
Dated: 2 December 2004
CENDANT CORPORATION
CENDANT UK ACQUISITION CORPORATION
-and-
EBOOKERS PLC
_______________________
MERGER AGREEMENT
_______________________
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
THIS AGREEMENT is made the 2nd day of December 2004.
BETWEEN:
(1) CENDANT CORPORATION, a Delaware corporation whose address is at ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ("Cendant");
(2) CENDANT UK ACQUISITION CORPORATION, a Delaware corporation whose
address is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ of New Castle ("Cendant Bidco"); and
(3) EBOOKERS PLC, a public limited company registered in England and
Wales with company number 3818962 and whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("ebookers").
WHEREAS:
(A) The parties each desire the acquisition of ebookers by Cendant Bidco,
which is a wholly-owned, indirect subsidiary of Cendant.
(B) The parties intend to effect such acquisition by means of a scheme of
arrangement under Section 425 of the Act to be proposed by ebookers
to the Scheme Shareholders under which all of the Scheme Shares will
be cancelled, New ebookers Shares will be issued to Cendant Bidco and
Cendant Bidco will pay the Cash Consideration to Scheme Shareholders.
IT IS AGREED:
1. Interpretation
1.1 In this Agreement, its Recitals and Schedules, unless the context
requires otherwise, each of the following expressions shall have the
meaning set opposite it:
"Acquisition" the proposed acquisition by Cendant Bidco of
ebookers by means of the Scheme or, should
Cendant Bidco so elect, by means of the
Offer;
"Act" the Companies ▇▇▇ ▇▇▇▇, as amended;
"Advisers" in relation to Cendant means Citigroup and
▇▇▇▇▇▇▇ ▇▇▇▇ Slate ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP,
and in relation to ebookers means CSFB and
Shearman & Sterling (London) LLP, including
(unless the context requires otherwise)
partners in and directors and employees of
such advisers;
"Affiliate" in relation to a party, any person that
directly or indirectly, through one or more
intermediaries, controls, is controlled by,
or is under common control with, the party,
and for these purposes a party shall be
deemed to control a person if such party
owns, directly or indirectly, 50% or more of
the voting rights of such person;
"Agreed Form" in relation to the documents listed in
Schedule I hereto, such documents in the
terms agreed between the parties as at the
date of this Agreement, subject to any
further changes as Cendant and ebookers may
agree;
"Announcement" the joint press announcement relating to the
Acquisition in accordance with Rule 2.5 of
the City Code in the Agreed Form;
"Announcement Date" 2 December 2004;
"Board" the board of directors of any relevant person;
"Business Day" a day (other than Saturday, Sunday or a
public holiday in London), on which banks in
the City of London are open for business
generally;
"Cash Consideration" the sum of 320 ▇▇▇▇▇ for each Scheme Share
held by Scheme Shareholders;
"Cendant Bidco" Cendant UK Acquisition Corporation, a wholly
owned subsidiary of Cendant;
"Circular" the circular to be issued by ebookers to
Scheme Shareholders containing an explanatory
statement and the Scheme regarding, inter
alia, the cancellation of the Scheme Shares,
the allotment of the New ebookers Shares to
Cendant Bidco pursuant to the Scheme and the
payment of the Cash Consideration;
"City Code" the City Code on Takeovers and Mergers;
"Clearances" all consents, clearances, permissions and
waivers as may be necessary, and all filings
and waiting periods as may be necessary, from
or under the laws, regulations or practices
applied by any Relevant Authority in
connection with the implementation of the
Acquisition, the Scheme or the Offer and
references to Clearances having been
satisfied shall be construed as meaning that
the foregoing have been obtained on terms
reasonably satisfactory to Cendant or, where
appropriate, made or expired;
"Cochrane Option" the options granted to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on 25
October 1999 on terms equivalent to those
under the ebookers Share Option Scheme;
"Conditions" the conditions to the Acquisition set out in
Appendix 1 to the Announcement;
"Confidentiality Undertaking" the confidentiality undertaking entered into
between Cendant Europe Limited and ebookers
dated 1 September 2004;
"Court" the High Court of Justice in England and Wales;
"Court Hearing Date" the date of commencement of the hearing by
the Court of the petition to sanction the
Scheme and confirm the reduction of capital
which forms part of it;
"Court Meeting" the meeting of Scheme Shareholders convened
by the Court, notice of which will be
contained in the Circular (or any adjournment
thereof);
"Court Order" the order of the Court sanctioning the
Scheme under Section 425 of the Act and
confirming the cancellation of ebookers'
share capital in connection therewith under
Section 137 of the Act;
"▇▇▇▇▇▇▇ Option Agreement" the option agreement dated 2 October 2002
between ▇▇ ▇▇▇▇▇▇▇ and ebookers;
"▇▇▇▇▇▇▇ Compromise Agreement" the agreement to be entered into between
ebookers and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ regarding the
cessation of his employment with the relevant
member of the ebookers Group in, or
substantially in, the form attached as
Schedule V;
"ebookers ADS" one American Depository Share of ebookers
representing two ordinary shares in the
capital of ebookers;
"ebookers Directors" the directors of ebookers from time to time;
"ebookers Options" options issued under the ebookers Share
Option Scheme, the Cochrane Option and the
Sampler Option;
"ebookers Shares" ordinary shares of 14 ▇▇▇▇▇ each in the
capital of ebookers;
"ebookers Share Option Scheme" the ebookers Executive Share Option Scheme
1999;
"Effective Date" the date upon which:
(A) the Scheme becomes effective in
accordance with its terms; or
(B) if Cendant elects to implement the
Acquisition by way of the Offer, the Offer
becomes or is declared unconditional in all
respects;
"EGM Resolutions" the resolutions to be proposed at the
Extraordinary General Meeting in connection
with the Scheme to approve the reduction of
capital and such other matters as may be
agreed between ebookers and Cendant as
necessary or desirable for the purposes of
implementing the Scheme;
"Encumbrance" any charge, mortgage, lien, hypothecation,
judgment, encumbrance, easement, security,
title retention, preferential right, trust
arrangement, or any other security interest
or any other agreement or arrangement having
a commercial effect analogous to the
conferring of security or similar right in
favour of any person;
"Exchange Act" the Securities Exchange Act of 1934, asamended;
"Exclusivity Period" the period between the date hereof and the
earliest to occur of: (i) the Effective Date,
(ii) the date of termination of this
Agreement pursuant to Clause 11;
"Extraordinary General Meeting" the extraordinary general meeting of
ebookers, notice of which will be contained
in the Circular, or any adjournment thereof;
"Group" in relation to any person, its subsidiaries,
subsidiary undertakings and holding companies
and the subsidiaries and subsidiary
undertakings of any such holding company;
"Higher Competing Offer" has the meaning set out in Clause 6.4;
"Meetings" the Court Meeting and the Extraordinary
General Meeting;
"NASDAQ" The NASDAQ Stock Market, Inc;
"New ebookers Shares" the ordinary shares of 14 ▇▇▇▇▇ each in the
capital of ebookers to be issued credited as
fully paid up to Cendant Bidco pursuant to
the Scheme;
"Offer" should Cendant elect to effect the
Acquisition by way of an offer, the offer to
be made (outside the US) by Citigroup for and
on behalf of Cendant or Cendant Bidco and (in
the US) by Cendant or Cendant Bidco, for all
of the ebookers Shares on the terms and
subject to the conditions to be set out in
the related Offer Document and form of
acceptance including, where the context
requires, any subsequent revision, variation,
extension or renewal thereof;
"Offer Document" the document to be despatched to (amongst
others) holders of ebookers Shares pursuant
to which the Offer would be made;
"Panel" the Panel on Takeovers and Mergers;
"Personnel" in relation to any person, its board of
directors, members of their immediate
families, related trusts and persons
connected with them, as such expressions are
construed in accordance with the City Code;
"Proceedings" has the meaning set out in Clause 17;
"Registrar" the registrar of companies for England and
Wales;
"Relevant Authority" any government or governmental,
quasi-governmental, supranational, statutory,
regulatory, environmental or investigative
body, court, trade or regulatory agency,
association or institution or any
competition, antitrust or supervisory body,
in each case in any jurisdiction;
"Representatives" in relation to each party, the directors,
employees, agents, consultants of, and any
individuals seconded to work for, such party
(including persons who, at the relevant time,
occupied such position);
"Resolutions" the resolutions to be proposed at the Meetings;
"Restricted Actions" the actions listed in Schedule III;
"Rules" the Rules of the ebookers Share Option Scheme;
"Sampler Option" the options granted to ▇▇▇▇▇▇▇ Sampler on 1
January 2001 on terms equivalent to those
under the ebookers Share Option Scheme;
"Scheme" the scheme of arrangement under Section 425
of the Act to be contained in the Circular,
the principal terms of which are set out in
the Announcement;
"Scheme Record Time" 6.00 p.m. on the Business Day immediately
preceding the day upon which the Scheme
becomes effective in accordance with its
terms;
"Scheme Shareholders" holders of Scheme Shares;
"Scheme Shares" the ebookers Shares in issue on the date of
the Circular (including those represented by
ebookers ADSs) together with any further
ebookers Shares:
(a) issued after the date of the Circular
and prior to the Voting Record Time;
and
(b) issued after the Voting Record Time
and prior to the Scheme Record Time
either on terms that the original or
any subsequent holder thereof shall be
bound by the Scheme or, in respect of
which the holder thereof shall have
agreed in writing to be bound by the
Scheme;
"SEC" US Securities and Exchange Commission;
"Service Documents" has the meaning set out in Clause 17;
"Substantial Interest" a direct or indirect interest in 20 per cent
or more of the voting equity capital of an
undertaking;
"Takeover Proposal" means any proposal or offer by any third
party (other than a proposal or offer by or
on behalf of Cendant or any subsidiary
thereof) for 50 per cent or more of the
voting share capital of ebookers whether by
offer, merger, scheme of arrangement or other
means and any partnership, joint venture or
other business combination involving a change
of control of ebookers, or contribution,
disposal or purchase of 50 per cent or more
of the assets, businesses, revenues or
undertaking of ebookers or of ebookers' Group
or other similar transaction that is
inconsistent with the implementation of the
Acquisition;
"▇▇▇▇▇▇ Option Agreement" the option agreement dated 21 October 1999
between ▇▇. ▇▇▇▇▇▇ and ebookers;
"Timetable" the timetable for the Acquisition set forth in
Schedule IV;
"UK GAAP" generally accepted accounting principles in
the United Kingdom;
"UK Listing Authority" the Financial Services Authority acting in
its capacity as the competent authority for
the purposes of Part VI of the Financial
Services and Markets ▇▇▇ ▇▇▇▇;
"Voting Record Time" 6.00 p.m. on the day prior to the day
immediately before the Meetings or any
adjournment thereof;
"$" or "dollars" denotes United States dollars; and
"(pound)" or "pounds" or "▇▇▇▇▇" denotes the lawful currency of the United
Kingdom.
1.2 In this Agreement:
(a) the Recitals and Schedules form an integral part of this
Agreement;
(b) the headings are for convenience only and shall not affect its
interpretation;
(c) expressions defined in the Act (excluding its Schedules) shall
have the same meanings in this Agreement, unless the context
requires otherwise or they are otherwise defined in this
Agreement;
(d) a reference to the provisions of law includes a reference to any
provisions which from time to time amends, extends, consolidates
or replaces that provision (other than any such provision with
retrospective effect, to the extent that it is retrospective)
and any subordinate legislation made under any such provisions;
(e) words denoting the singular number shall include the plural, the
masculine gender shall include the feminine gender and neuter,
and vice versa;
(f) references to Clauses and Schedules are, unless otherwise
stated, to Clauses of and Schedules to this Agreement;
(g) references to persons shall include individuals, corporations
(wherever incorporated), unincorporated associations (including
partnerships), trusts, any form of governmental body, agency or
authority, and any other organisation of any nature (in each
case, whether or not having separate legal personality).
1.3 In construing this Agreement, the rule known as the ejusdem generis
rule shall not apply and accordingly general words introduced or
followed by the word "other" or "including" or "in particular" shall
not be given a restrictive meaning because they are followed or
preceded (as the case may be) by particular examples intended to fall
within the meaning of the general words.
2. 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.
2.10 (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.
3. Code Consideration
Cendant shall, subject to the Scheme becoming effective, pay, or
procure the payment by Cendant Bidco of, the Cash Consideration to
Scheme Shareholders entitled thereto in accordance with the Scheme
and the requirements of the City Code.
4. Co-operation
Each of the parties shall promptly provide such reasonable assistance
and information and shall co-operate and consult with each other in
the preparation and publication of the Circular and any other
document or filing which is required or which ebookers or Cendant
reasonably considers to be necessary or appropriate in accordance
with the requirements of the City Code and the Act for the purposes
of implementing the Acquisition.
5. Representations, Warranties and Undertakings
5.1 Each of the parties represents and warrants to the other on the date
hereof that:
(a) it has the requisite power and authority to enter into and
perform this Agreement;
(b) this Agreement constitutes its binding obligations in accordance
with its terms;
(c) the execution and delivery of, and performance of its
obligations under, this Agreement will not:
(i) result in a breach of any provision of its
constitutional documents;
(ii) result in a breach of, or constitute a default under,
any instrument to which it is a party or by which it is
bound, to an extent that is material in the context of the
Acquisition; or
(iii) result in a breach of any order, judgement or decree
of any court or governmental agency to which it is a party
or by which it is bound.
5.2 ebookers confirms and undertakes:
(a) that it is a "foreign private issuer" as such term is defined
under Rule 3b-4(c) under the Exchange Act;
(b) to furnish to Cendant upon request of Cendant in writing a copy
of ebookers' register of shareholders dated as of (i) a date on
or around the 30th calendar day prior to commencement (within
the meaning of Rule 14d-2 ("Rule 14d-2") under the Exchange Act)
of a tender offer (within the meaning of the Exchange Act) by
Cendant for the entire issued share capital of ebookers or (ii)
such other date as may be agreed by ebookers and Cendant for the
purpose of assisting Cendant in making its calculation in
accordance with instruction 2 to Rules 14d-2(c) and (d);
(c) that to the best of the knowledge and belief of the ebookers
Directors and after due and careful enquiry, there are no
circumstances relating to ebookers and its subsidiaries which
would result in any of the Conditions not being satisfied in a
manner material in the context of the ebookers Group taken as a
whole; and
(d) that it is fully in compliance with the continuing obligations
for companies set out in Chapter 9 of the listing rules of the
UK Listing Authority and that no material information relating
to ebookers and its subsidiaries not already in the public
domain has come to the attention of the ebookers Directors prior
to the Announcement Date.
5.3 ebookers will not directly or indirectly make known to any third
party the discussions between Cendant and ebookers concerning the
Acquisition and shall procure that its Affiliates and its or their
Representatives shall do likewise, subject as required by the City
Code or as a matter of law or regulation to which ebookers is subject
and in any such case only after consultation with Cendant, taking
into account its reasonable representations and to the minimum extent
required by the City Code or such law or regulation.
5.4 Cendant undertakes to procure that during the Exclusivity Period (i)
Cendant and Cendant Bidco shall not take any action which would be
prejudicial to the successful outcome of the Scheme and (ii) Cendant
Bidco shall remain a wholly owned indirect subsidiary of Cendant.
5.5 Each of Cendant and ebookers undertakes promptly to notify each other
(and supply copies of all relevant information) of any event or
circumstance of which they become aware that would be likely to have
a significant impact on the satisfaction of the Conditions.
5.6 ebookers undertakes that it shall promptly notify Cendant in writing
of any fact, matter or event of which it becomes aware which has had
or could reasonably be expected to have a material adverse effect on
either the financial, trading or business position of the ebookers
Group taken as a whole or on the implementation of the Acquisition in
accordance with its terms.
5.7 For the purposes of Clauses 5.5 and 5.6, ebookers will be deemed to
be aware of matters which are within the actual knowledge of the
ebookers Directors and each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (in each case having made all reasonable
and proper enquiries and exercised due diligence) and Cendant will be
deemed to be aware of matters which are within the actual knowledge
of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (in each case having made all reasonable and proper
enquiries and exercised due diligence).
5.8 ebookers shall conduct its business in the ordinary course consistent
with past practice during the Exclusivity Period. Without limitation
to the generality of the foregoing, during the Exclusivity Period
ebookers shall not and shall procure that no member of its Group
shall, carry out any of the Restricted Actions without having
obtained the prior written consent of Cendant (which consent may be
given, withheld or given subject to such conditions as Cendant may,
in its absolute discretion, determine). ebookers shall use reasonable
endeavours to ensure that the provisions of this Clause 5.8 are
promptly brought to the attention of relevant employees of members of
the ebookers Group and that such relevant employees are instructed to
comply, or procure compliance with, the provisions hereof. For the
avoidance of doubt, in the event that this Agreement is terminated by
either party pursuant to Clause 11 or if the Scheme becomes
effective, none of ebookers, its directors, officers or employees
shall be liable for any claim by Cendant for money damages in respect
of a breach of this Clause 5.8 except to the extent that any such
claim is attributable to fraud on the part of the relevant party.
5.9 During the Exclusivity Period, ebookers shall and shall procure that
the members of its Group shall:
(a) give Cendant and its Representatives reasonable notice of and an
opportunity to participate in bi-weekly conference calls or
meetings of appropriate members of ebookers' senior management
to discuss progress on significant operational and financial
matters affecting ebookers or any member of the ebookers Group;
(b) furnish Cendant with such financial and operating data and other
information with respect to each member of the ebookers Group
(including, without limitation, financial management reports in
the format and frequency as such reports are produced by
ebookers as at the date of this Agreement), in such form as such
data and/or information are maintained by ebookers or other
relevant member of the ebookers Group in the ordinary course of
business as currently conducted, as Cendant may from time to
time reasonably request; and
(c) give Cendant and its Representatives reasonable access to such
of the books, records and personnel of each member of the
ebookers Group as shall be necessary or desirable to enable
Cendant to prepare for the implementation of the Acquisition and
the integration of the businesses of Cendant and ebookers
following such implementation.
5.10 Without prejudice to the provisions of Clause 5.8, during the
Exclusivity Period, ebookers shall not, and shall procure that no
member of its Group shall, without having obtained the prior written
consent of Cendant (which consent may be given, withheld or given
subject to such conditions as Cendant may in its absolute discretion,
determine) enter into any agreement or arrangement whereby it or such
member of its Group becomes subject to an obligation of
confidentiality in favour of any party other than Cendant or Cendant
Bidco and which would prevent, prohibit or restrict the notifications
by ebookers and other activities contemplated by Clause 5.5, Clause
5.6, Clause 5.9 and Clause 6.3. In the event that ebookers is or
becomes subject to an obligation of confidentiality in favour of a
third party during the Exclusivity Period which may prevent, prohibit
or restrict the notifications by ebookers and other activities
contemplated by Clause 5.5, Clause 5.6, Clause 5.9, and Clause 6.3,
ebookers shall use all commercially reasonable endeavours to procure
the prompt waiver, relaxation or removal of such obligation.
6. Exclusivity
6.1 ebookers undertakes that it will immediately terminate all
discussions or other contact with third parties relating to any
Takeover Proposal and shall procure that its Affiliates and its or
their Representatives shall do likewise.
6.2 Subject to Clause 6.3, in consideration of the commitment of time,
cost, expense and personnel by Cendant and its Affiliates and of
Cendant and Cendant Bidco incurring the expense of instructing
advisers (including, without limitation, Cendant's Advisers), in each
case for the purpose of investigating, finalising and documenting the
Acquisition, ebookers represents, warrants and undertakes that,
during the Exclusivity Period, neither it nor any member of the
ebookers Group, or any of their respective Advisers or
Representatives, will, directly or indirectly through any other
person:
(a) solicit, initiate, facilitate or knowingly encourage or
enter into discussions or negotiations or any agreement or
arrangement regarding, any Takeover Proposal; or
(b) except as, and solely to the extent, required by the City
Code, provide information to any person (other than Cendant,
Cendant Bidco and their Advisers or Representatives) in
relation to any Takeover Proposal.
6.3 Notwithstanding Clause 6.2, ebookers may engage in discussions or
negotiations with, and (otherwise than as permitted by Clause 6.2(b))
furnish information concerning ebookers, the ebookers Group, or their
businesses, properties or assets, to a third party which has
indicated that it may make an unsolicited Takeover Proposal 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 ebookers Directors,
that the failure to take such action would be in breach of their
fiduciary duties or would violate their obligations under the
provisions of the City Code or the Act and on the basis that (i) a
copy of the relevant extract of the minutes of such meeting
reflecting the ebookers Directors' conclusion and referring to the
legal and financial advice provided to the ebookers Directors, shall
promptly be provided to Cendant by ebookers and (ii) ebookers shall
promptly (but in any event within 24 hours) notify Cendant of the
receipt of any such Takeover Proposal, including the material terms
and conditions thereof (to the extent known) (and any changes in the
material terms and conditions thereof of which it becomes aware) and
the identity of the person making such Takeover Proposal.
6.4 In the event that a Takeover Proposal is announced under the terms of
which Scheme Shareholders are offered a higher price in cash per
ebookers Share than the price then offered under the Acquisition (a
"Higher Competing Offer"), ebookers undertakes that it will not
withdraw the Scheme for 48 hours and if, within that time, Cendant
communicates to ebookers a revision to the terms of the Acquisition,
so that the terms of the Acquisition (which revision may include
effecting the Acquisition by way of the Offer) as so revised provide
for a price in cash per ebookers Share no less than the price offered
under the Higher Competing Offer, and the terms of the Acquisition as
so revised are otherwise no less favourable to Scheme Shareholders
than the terms of the Higher Competing Offer taking into account all
the circumstances including, without limitation, any obligation to
pay a fee pursuant to Clause 7.1 below, the ebookers Directors will
continue to recommend the Acquisition, as so revised, and withdraw
any recommendation of the Higher Competing Offer.
6.5 If ebookers is in breach of any of its obligations under this Clause
6, ebookers will pay to Cendant damages equal to the fees, costs and
expenses (together with any related value added or similar tax and
disbursements) reasonably incurred by Cendant and/or Cendant Bidco in
connection with its investigation and evaluation of ebookers and
otherwise in connection with the Acquisition (including those fees,
costs and expenses which may have already been reasonably incurred by
Cendant and/or Cendant Bidco as at the date of this Agreement) up to
the date on which Cendant becomes aware of the breach, each of
ebookers and Cendant agreeing such amount to be a genuine and
reasonable pre-estimate of the damages likely to be suffered by
Cendant as a result of any such breach. The maximum amount so payable
shall not exceed the amount specified in Clause 7.1 below and shall
be paid within ten Business Days of demand.
7. Inducement Fee
7.1 In the event that:
(a) the ebookers Directors do not unanimously, without
qualification, recommend the Acquisition, or following
announcement of the Acquisition, the ebookers Directors withdraw
(or modify or qualify in a manner adverse to Cendant Bidco)
their approval or recommendation of the Acquisition; or
(b) prior to the date six months after the date of the Announcement
a Takeover Proposal is announced which becomes or is declared
wholly unconditional or otherwise becomes effective or is
completed; or
(c) any financial advisor to the ebookers Directors appointed
pursuant to Rule 3 of the City Code withdraws or in any way
modifies its consent (whether written or oral) to being named in
the context of any recommendation statement by the ebookers
Directors to the Scheme Shareholders regarding the Acquisition,
ebookers will pay to Cendant, within ten Business Days of demand, in
the case of the occurrence of any of the events referred to in this
Clause 7.1 a fee of (pound)2,089,000. All sums payable under this
Clause 7 shall be paid in the form of an electronic funds transfer
for same day value to such bank as may be notified to ebookers by
Cendant and shall be paid in full free from any deduction or
withholding whatsoever (save only as maybe required by law) and
without regard to any lien, right of set-off, counter-claim or
otherwise.
8. Announcement
8.1 ebookers and Cendant agree that the Announcement shall be released
in accordance with the City Code at or about 3 p.m. (London time) on
the Announcement Date.
8.2 Without prejudice to the provisions of Clause 4, during the
Exclusivity Period, ebookers and Cendant shall, subject to the
requirements of applicable law or any applicable regulatory body or
the City Code or the Panel, consult together as to the terms of, the
timetable for and manner of publication of, any announcement,
circular or publication to shareholders, employees, customers,
suppliers, distributors and sub-contractors and to any regulatory or
governmental authority or to the media or otherwise which either may
desire or be obliged to make regarding the Acquisition.
9. Assignment
This Agreement is personal to the parties to it and may not be
assigned in whole or in part.
10. Time of the Essence
Any time, date or period referred to in any provision of this
Agreement may be extended by mutual agreement between ebookers and
Cendant but as regards any time, date or period originally fixed or
any time, date or period so extended time shall be of the essence.
11. Termination
11.1 Notwithstanding anything contained in this Agreement to the contrary,
this Agreement may, subject to compliance with the City Code and the
requirements of the Panel, be terminated as follows:
(a) by the mutual consent of Cendant and ebookers at any time prior
to the making of the Court Order;
(b) by Cendant by written notice, if the Effective Date shall not
have occurred on or before 30 June 2005 (or such later date as
Cendant, ebookers and the Court may agree) and Cendant shall not
have breached its obligations under this Agreement in any manner
that shall have proximately contributed to the failure to
consummate the Acquisition on or before such date;
(c) by either Cendant or ebookers if any of the Conditions which has
not been waived is (or becomes) incapable of satisfaction and if
Cendant notifies ebookers that notwithstanding it has the right
to waive such Condition, it will not do so, or if any Condition
which is incapable of waiver is not satisfied or becomes
incapable of satisfaction;
(d) by either Cendant or ebookers, by written notice, if at any time
prior to the Effective Date the ebookers Directors (through
their own action or through any agency or otherwise) shall have:
(i) withdrawn (or modified in a manner adverse to Cendant) their
approval or recommendation of the Acquisition; or
(ii) approved or recommended, or proposed publicly to approve or
recommend, any Takeover Proposal; or
(e) by Cendant, by written notice, if ebookers is in breach of any
of its obligations under Clause 5.8, 5.10 or 6 and, subject to
ebookers having notified Cendant of such breach in writing, such
breach shall not, if capable of remedy, have been cured within
ten days after notice requiring such cure shall have been
received by ebookers.
11.2 Subject to the provisions of this Agreement which are expressly
provided to survive termination and without prejudice to any
liability of any party in respect of any antecedent breach hereof or
to any accrued rights of any party hereto (including, without
limitation, under Clause 7), if this Agreement is terminated pursuant
to this Clause 11 this Agreement shall terminate and there shall be
no other liability on the part of ebookers (on the one hand) and
Cendant (on the other hand) to the other.
11.3 If the ebookers Directors resolve to take either of the courses of
action referred to in Clauses 11.1(d) (i) or (ii), a copy of the
minutes of such meeting of the ebookers Directors reflecting the
conclusion of the ebookers Directors and referring to the advice
received from their legal and financial advisers shall promptly be
provided to Cendant by ebookers.
11.4 Termination of this Agreement shall be without prejudice to any
rights either party may have in respect of any prior breach hereof.
For the avoidance of doubt, the rights and obligations provided for
in clauses 2.6, 2.9, 2.11, 2.12 and 2.13 shall continue to apply in
the event that Cendant announces an Offer which is recommended by the
ebookers Directors within three months from the date on which the
Scheme does not become effective or is withdrawn or any condition to
which the Scheme is subject becomes incapable of satisfaction and is
not waived in accordance with its terms.
12. Fees and Costs
Subject to the other provisions of this Agreement, each party will
bear its own legal, accountancy and other costs and expenses incurred
in connection with the negotiation, preparation and implementation of
this Agreement and any other agreement incidental to or referred to
in this Agreement and the implementation of the Acquisition.
13. Waiver/Amendment
13.1 There shall be no waiver of any term, provision or condition of this
Agreement unless such waiver is in writing and signed by the waiving
party.
13.2 No relaxation, forbearance, indulgence or delay (together
"indulgence") of any party in exercising any right, power or
privilege hereunder shall be construed as a waiver thereof and shall
not effect the ability of that party subsequently to exercise that
right, power or privilege or to pursue any remedy, nor shall any
indulgence constitute a waiver of any other right, power or
privilege, nor will any single or partial exercise thereof preclude
any other or future exercise thereof or the exercise of any other
right, power or privilege hereunder.
13.3 No amendment, change or addition to this Agreement shall be effective
or binding on any party unless reduced to writing and executed by both
parties.
14. Invalidity
If any provision of this Agreement shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the
legality, validity and enforceability of the remainder of this
Agreement in that jurisdiction shall not be affected, and the
legality, validity and enforceability of the whole of this Agreement
in any other jurisdiction shall not be affected.
15. Notices
15.1 Any notice or other communication to be given under this Agreement
shall be in writing, shall be deemed to have been duly served on,
given to or made in relation to a party if it is left at the
authorised address of that party, posted by first class mail (or
airmail if abroad) addressed to that party at such address, or sent
by facsimile transmission to the numbers set out in Clause 15.3 (or
such other number as may be notified to the parties) and shall if:
(a) personally delivered, be deemed to have been received at the
time of delivery;
(b) posted to an inland address in the United Kingdom, be deemed to
have been received on the second Business Day after the date of
posting and if posted to an overseas address, be deemed to have
been received on the fifth Business Day after the date of
posting; or
(c) sent by facsimile transmission, be deemed to have been received
upon receipt by the sender of a facsimile transmission report
(or other appropriate evidence) that the facsimile has been
transmitted to the addressee,
PROVIDED that where, in the case of delivery by hand or facsimile
transmission, delivery or transmission occurs after 6.00 pm on a
Business Day or on a day which is not a Business Day, receipt shall
be deemed to occur at 9.00 am on the next following Business Day.
15.2 For the purposes of this Clause the authorised address of each party
shall be the address set out at the head of this Agreement or such
other address (and details) as that party may notify to the others in
writing from time to time in accordance with the requirements of this
clause.
15.3 Any notice or other communication will, in the case of service by
facsimile transmission, be sent to the recipient using the following
facsimile numbers (or such other facsimile number as may from time to
time be notified in writing to the recipient to the sender as being
the recipient's facsimile number for service):
Cendant: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel - Cendant Europe
Cendant Bidco: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel - Cendant Europe
ebookers: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
15.4 The provisions of this Clause 15 shall not apply in relation to the
service of Service Documents.
16. General
16.1 Each of the parties shall, and shall use all reasonable efforts to
procure that any other person shall, do and execute and perform all
such further deeds, documents, assurances, acts and things as may
reasonably be required to give effect to such party's obligations
under this Agreement.
16.2 No person who is not a party to this Agreement shall have any rights
under the Contracts (Right of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any
term of this Agreement.
16.3 This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but all of
which when taken together shall constitute a single instrument.
16.4 The Confidentiality Undertaking shall continue to have full force and
effect in accordance with their terms save as otherwise agreed in
writing between the parties thereto.
16.5 Without prejudice to any other rights or remedies that Cendant may
have pursuant to this Agreement, ebookers acknowledges that Cendant
may be materially harmed by a breach of any provision of this
Agreement and that damages alone may not provide an adequate remedy
for any such breach. Accordingly, ebookers acknowledges that Cendant
shall be entitled without proof of special damages to the remedies of
injunction, specific performance or other equitable relief for any
threatened or actual breach of the terms of this Agreement.
16.6 If ebookers defaults in the payment when due of any sum payable under
this Agreement, ebookers' liability shall be increased to include
interest on such sum from the date when such payment is due until the
date of actual payment at a rate per annum of 2 per cent above the
base lending rate from time to time of Barclays Bank Plc. Such
interest shall accrue from day to day and shall be in addition to the
amount specified as payable hereunder.
17. Service of process and appointment of process agent
17.1 Cendant and Cendant Bidco each irrevocably appoints Cendant Europe
Limited to be its agent for the receipt of Service Documents. It
agrees that any claim form, application notice, order, judgment or
other document ("Service Documents") relating to any claim, legal
action proceedings, dispute or matter of difference arising out of or
in connection with this Agreement ("Proceedings") may be effectively
served on it in connection with the Proceedings in England and Wales
by service on its agent.
17.2 If the agent at any time ceases for any reason to act as such,
Cendant and Cendant Bidco shall each appoint a replacement agent
having an address for service in England or Wales and shall notify
ebookers of the name and address of the replacement agent.
17.3 A copy of any Service Document served on an agent shall be sent by
post to Cendant and/or Cendant Bidco, as the case may be. Failure or
delay in doing so shall not prejudice the effectiveness of the
Service Document.
18. Governing Law
18.1 This Agreement (together with all documents to be entered into
pursuant to it which are not expressed to be governed by another law)
shall be governed by, construed and take effect in accordance with
English law.
18.2 The courts of England shall have exclusive jurisdiction to settle any
Proceedings which may arise out of or in connection with this
Agreement (including without limitation claims for set-off or
counterclaim) or the legal relationships established by this
Agreement, and each of the parties irrevocably submits to such
jurisdiction and waives any objection to any Proceedings in such
courts or on the grounds of venue or on the grounds that Proceedings
have been brought in an inappropriate forum.
AS WITNESS WHEREOF the hands of the parties or their duly authorised
representatives the day and year first above written.
SIGNED by )
CENDANT CORPORATION )
SIGNED by )
CENDANT UK ACQUISITION )
CORPORATION )
SIGNED by )
EBOOKERS PLC )
SCHEDULE I
1. Announcement.
2. Board minutes of ebookers, Cendant and Cendant Bidco
3. Irrevocable Undertakings of the ebookers Directors, Flightbookers
Investments Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Nominees Limited, ▇▇▇▇▇
▇▇▇▇▇ Nominees Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
SCHEDULE II
CONDITIONS TO THE IMPLEMENTATION OF THE SCHEME AND THE ACQUISITION
The Acquisition will be conditional upon the Scheme becoming effective, by not
later than 30 June 2005 or such later date (if any) as Cendant Bidco, ebookers
and the Court may agree. The Scheme will comply with the rules and regulations
of the UK Listing Authority, the London Stock Exchange, the Code and
applicable US securities law. The Scheme will not become effective unless the
following conditions are satisfied or, where appropriate, waived:
(a) the approval of the Scheme by a majority in number representing
three-fourths or more in value of the ebookers Shareholders present
and voting, either in person or by proxy, at the Court Meeting, or
any adjournment thereof;
(b) the resolution(s) in connection with or required to approve and
implement the Scheme being duly passed by the requisite majority at
the Extraordinary General Meeting, or at any adjournment thereof;
(c) the sanction (with or without modification, on terms acceptable to
Cendant Bidco) of the Scheme and confirmation of the reduction of
capital involved therein by the Court and an office copy of the Court
Order and the minute of such reduction attached thereto being
delivered for registration to the Registrar of Companies in England
and Wales and, in relation to the reduction of capital, being
registered;
(d) a notification having been made to the German Federal Cartel Office
(Bundeskartellamt), and the Federal Cartel Office, within one month
from its receipt of the complete notification, either having
affirmatively given clearance, or having not given notice that it has
initiated main examination proceedings (Hauptprufverfahren) under
Section 40 of the German Act against Restraints of Competition
(Gesetz gegen Wettbewerbsbeschrankungen); and
(e) a notification having been made to the Norwegian Competition
Authority and the Norwegian Competition Authority within 15 working
days from receipt of a short form notification not having required
submission of a complete notification, pursuant to the Norwegian
Competition Act, No. 65 of June 11, 1993.
(f) no Third Party having intervened in any way and there not continuing
to be outstanding any statute, regulation or order of any Third Party
in each case which would or might reasonably be expected (in any case
to an extent which is material in the context of the Wider Cendant
Group or the Wider ebookers Group, as the case may be, in each case,
taken as a whole) to:
(i) make the Acquisition or its implementation or the
acquisition or proposed acquisition by Cendant Bidco or any
other member of the Wider Cendant Group of any shares or
other securities in, or control or management of, ebookers
or any other member of the Wider ebookers Group, void,
unenforceable and/or illegal in any jurisdiction or
otherwise directly or indirectly restrain, restrict,
prohibit, prevent, delay or otherwise interfere with the
implementation thereof, or impose additional conditions or
obligations with respect thereto, or require amendment to
the terms of the Acquisition or the proposed acquisition of
any shares or securities in ebookers, or the acquisition of
control of ebookers by Cendant Bidco;
(ii) require, prevent, or delay the divestiture, or alter the
terms of any proposed divestiture by Cendant Bidco or any
other member of the Wider Cendant Group or by ebookers or
any other member of the Wider ebookers Group of all or any
part of their respective businesses, assets or properties or
impose any limitation on the ability of any of them to
conduct any of their respective businesses or to own or
control any of their respective assets or properties or any
material part thereof;
(iii) limit or delay the ability of any member of the Wider
Cendant Group or any member of the Wider ebookers Group to
acquire or to hold or to exercise effectively, directly or
indirectly, all or any rights of ownership in respect of
shares or other securities in, or to exercise voting or
management control over, any member of the Wider Cendant
Group or any member of the Wider ebookers Group;
(iv) require any member of the Wider Cendant Group or of the
Wider ebookers Group to acquire, or to offer to acquire, any
shares or other securities (or the equivalent) in any member
of either group owned by any third party (other than in the
implementation of the Acquisition);
(v) require, prevent or delay the divestiture or alter the terms
envisaged for any proposed divestiture by any member of the
Wider Cendant Group of any shares or other securities (or
the equivalent) in ebookers;
(vi) limit the ability of any member of the Wider Cendant Group
or of the Wider ebookers Group to conduct or integrate or
co-ordinate its business, or any part of it, with the
businesses or any part of the businesses of any other member
of the Wider Cendant Group or of the Wider ebookers Group;
(vii) result in any member of the Wider ebookers Group ceasing to
be able to carry on business under any name under which it
presently does so; or
(viii) otherwise adversely affect the business, assets, profits,
financial or trading position or prospects of any member of
the Wider ebookers Group or of the Wider Cendant Group;
(g) all necessary notifications and filings having been made, all
regulatory and statutory obligations in any relevant jurisdiction
having been complied with, all appropriate waiting and other time
periods (including any extensions of such waiting and other time
periods) during which any Third Party could intervene under any
applicable legislation or regulations of any relevant jurisdiction
having expired, lapsed or been terminated, in each case in respect of
the Acquisition or the acquisition or proposed acquisition of any
shares or other securities in, or control of, ebookers or any other
member of the Wider ebookers Group by Cendant Bidco or any other
member of the Wider Cendant Group or the carrying on by any member of
the Wider ebookers Group of its business except where the failure to
make any such notification or filing, or comply with any such
obligation, or the fact that any such period has not expired, lapsed
or been terminated, individually or in the aggregate, is not likely
to have a materially adverse effect on the business, assets, profits,
financial or trading position or prospects of any member of the Wider
Cendant Group;
(h) all authorisations and determinations necessary or appropriate in any
relevant jurisdiction for or in respect of the Acquisition or the
acquisition or proposed acquisition of any shares or other securities
in, or control of, ebookers or any other member of the Wider ebookers
Group by any member of the Wider Cendant Group or in relation to the
continuation of the business of any member of the Wider ebookers
Group having been obtained, in terms and in a form reasonably
satisfactory to Cendant Bidco, from all relevant Third Parties or
(without prejudice to the generality of the foregoing) from any
persons or bodies with whom any member of the Wider ebookers Group
has entered into contractual arrangements that are material in the
context of the Wider ebookers Group taken as a whole and such
authorisations and determinations, together with all authorisations
and determinations necessary or appropriate for any member of the
Wider ebookers Group to carry on its business, remaining in full
force and effect and there being no notice or intimation of any
intention to revoke, suspend, restrict, modify or not renew any of
the same in any such case in so far as is material in the context of
the Wider Cendant Group or the Wider ebookers Group, as the case may
be, in each case, taken as a whole;
(i) except as publicly announced by ebookers in accordance with the
Listing Rules, or as fairly disclosed in writing to Cendant or
Cendant Bidco by or on behalf of ebookers in connection with the
Acquisition, in each case prior to the date hereof, there being no
provision of any agreement, arrangement, licence or other instrument
to which any member of the Wider ebookers Group is a party, or by or
to which any such member or any of its assets is or are or may be
bound, entitled or subject or any circumstance, which, in each case
as a consequence of the Acquisition or the proposed acquisition of
any shares or other securities in, or control of, ebookers or any
other member of the Wider ebookers Group by any member of the Wider
Cendant Group or otherwise, could or might be expected to result in,
(in any case to an extent that is or would be material in the context
of the Wider ebookers Group taken as a whole):
(i) any monies borrowed by, or any other indebtedness or
liabilities (actual or contingent) of, or any grant
available to, any such member being or becoming repayable or
capable of being declared repayable immediately or prior to
its stated maturity, or the ability of any such member to
borrow monies or incur any indebtedness being withdrawn or
inhibited or becoming capable of being withdrawn;
(ii) any such agreement, arrangement, licence or other
instrument, or the rights, liabilities, obligations or
interests of any member of the Wider ebookers Group
thereunder, being, or becoming capable of being, terminated
or adversely modified or affected or any onerous obligation
or liability arising or any adverse action being taken or
arising thereunder;
(iii) the rights, liabilities, obligations or interests of any
member of the Wider ebookers Group under any such agreement,
arrangement, licence or instrument or the interests or
business of any such member in or with any other person,
firm, company or body (or any arrangement or arrangements
relating to any such interests or business) being terminated
or adversely modified or affected;
(iv) any member of the Wider ebookers Group ceasing to be able to
carry on its business under any name under which it
presently does so;
(v) any asset or interest of any member of the Wider ebookers
Group being or falling to be disposed of or ceasing to be
available to any member of the Wider ebookers Group or any
right arising under which any such asset or interest could
be required to be disposed of or could cease to be available
to any member of the Wider ebookers Group;
(vi) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the
business, property or assets of any member of the Wider
ebookers Group or any such mortgage, charge or other
security interest (whenever created, arising or having
arisen) becoming enforceable;
(vii) the creation of any liability (actual or contingent) by any
member of the Wider ebookers Group; or
(viii) the value or the financial or trading position or the
prospects of any member of the Wider ebookers Group being
prejudiced or adversely affected,
and no event having occurred which, under any provision of any
agreement, arrangement, licence, or other instrument to which any
member of the Wider ebookers Group is a party or by or to which any
such member or any of its assets may be bound, entitled or subject,
could reasonably be expected to result in any of the events or
circumstances as are referred to in sub-paragraphs (i) to (viii) of
this paragraph (i) to an extent which is material in the context of
the Wider ebookers Group as a whole;
(j) save as publicly announced by ebookers in accordance with the Listing
Rules, or as fairly disclosed in writing to Cendant Bidco or Cendant
by or on behalf of ebookers in connection with the Acquisition in
each case prior to the date hereof, no member of the Wider ebookers
Group having, since 31 December 2003:
(i) (save as between ebookers and, on a pre-emptive basis, any
member of the Wider ebookers Group or upon the exercise of
rights to subscribe for ebookers Shares pursuant to the
exercise of options granted under the ebookers Share Option
Scheme and the ebookers Individual Option Arrangements)
issued or agreed to issue or authorised or proposed the
issue of additional shares of any class, or of securities
convertible into or exchangeable for, or rights, warrants or
options to subscribe for or acquire, any such shares or
convertible securities, or redeemed, purchased or repaid any
of its own shares or other securities or reduced or made any
other change to any part of its share capital;
(ii) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus, dividend or other
distribution whether payable in cash or otherwise (other
than to ebookers or a wholly-owned subsidiary of ebookers);
(iii) save for transactions between members of the ebookers Group,
acquired or disposed of or transferred, mortgaged or charged
or created any security interest over any assets or any
rights, title or interest in any asset (including shares and
trade investments), which, in each case, is material in the
context of the Wider ebookers Group taken as a whole, or
merged with or demerged any body corporate or authorised or
proposed or announced any intention to propose any such
merger, demerger, acquisition, disposal, transfer, mortgage,
charge or security interest (other than in the ordinary
course of business);
(iv) made or authorised or proposed or announced an intention to
propose any change in its loan capital or issued, authorised
or proposed the issue of any debentures;
(v) (save in the ordinary course of business or for transactions
between members of the ebookers Group) incurred or increased
any indebtedness or liability (actual or contingent) which
is material in the context of the Wider ebookers Group taken
as a whole;
(vi) entered into varied or authorised, proposed or announced its
intention to enter into or vary any agreement, transaction,
arrangement or commitment (whether in respect of capital
expenditure or otherwise) which is of a long-term, onerous
or unusual nature or magnitude or which involves or could
involve an obligation of such a nature or magnitude and in
any case which is material in the context of the Wider
ebookers Group taken as a whole;
(vii) entered into or varied the terms of any contract, agreement
or arrangement with any of the ebookers Directors or any
other director or senior executive of any member of the
Wider ebookers Group;
(viii) waived or compromised any claim other than in the ordinary
course of business in any case in a manner or on terms that
are material in the context of the Wider ebookers Group
taken as a whole;
(ix) taken any corporate action or had any legal proceedings
instituted or threatened against it or petition presented or
order made, in each case for its winding-up (voluntary or
otherwise), dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of all or any material
part of its assets or revenues or any analogous proceedings
in any jurisdiction or had any such person appointed;
(x) been unable, or admitted in writing that it is unable, to
pay its debts or having stopped or suspended (or threatened
to stop or suspend) payment of its debts generally or ceased
or threatened to cease carrying on all or a substantial part
of its business;
(xi) made any alteration to the memorandum or articles of
association of ebookers or any material alteration to the
memorandum or articles of association (or equivalent
constitutional documents) of any of ebookers' subsidiaries;
(xii) purchased, redeemed or repaid or announced any proposal to
purchase, redeem or repay any of its own shares or other
securities or reduced or, save in respect to the matters
mentioned in sub-paragraph (i) above, made any other change
to any part of its share capital;
(xiii) implemented, or authorised, proposed or announced its
intention to implement, any reconstruction, amalgamation,
scheme, commitment or other transaction or arrangement;
(xiv) entered into any contract, transaction or arrangement which
is or could be restrictive on the business of any member of
the Wider ebookers Group or the Wider Cendant Group other
than to a nature and extent which is normal in the context
of the business concerned; or
(xv) entered into any contract, commitment, agreement or
arrangement or passed any resolution with respect to, or
announced an intention to, or to propose to, effect any of
the transactions, matters or events referred to in this
Condition (j);
(k) since 31 December 2003, and save as publicly announced in accordance
with the Listing Rules by ebookers, or as fairly disclosed in writing
by or on behalf of ebookers to Cendant or Cendant Bidco in connection
with the Acquisition in each case prior to the date hereof:
(i) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits
or prospects of ebookers or any other member of the Wider
ebookers Group that is material in the context of the Wider
ebookers Group taken as a whole;
(ii) no litigation or arbitration proceedings, prosecution or
other legal proceedings having been instituted, announced,
implemented or threatened in writing by or against or
remaining outstanding against or in respect of any member of
the Wider ebookers Group or to which any member of the Wider
ebookers Group is or may become a party (whether as
plaintiff, defendant or otherwise) which in any such case
might be reasonably expected adversely and materially to
affect any member of the Wider ebookers Group;
(iii) (other than as a result of the Acquisition) no enquiry or
investigation by, or complaint or reference to, any Third
Party having been threatened in writing, announced,
implemented or instituted by or against or remaining
outstanding against or in respect of any member of the Wider
ebookers Group which in any such case is adverse to the
interests of any member of the Wider ebookers Group and is
material in the context of the Wider ebookers Group taken as
a whole; and
(iv) no contingent or other liability of any member of the Wider
ebookers Group having arisen or become apparent to Cendant
Bidco or increased which in any case is material in the
context of the Wider ebookers Group taken as a whole.
(l) save as publicly announced in accordance with the Listing Rules by
ebookers, or fairly disclosed in writing by or on behalf of ebookers
to Cendant or Cendant Bidco in connection with the Acquisition prior
to the date hereof, Cendant Bidco not having discovered:
(i) that any financial, business or other information concerning
ebookers or the Wider ebookers Group that has been disclosed
at any time by or on behalf of any member of the Wider
ebookers Group whether publicly, or to any member of the
Wider Cendant Group, is misleading, contains any
misrepresentation of fact or omits to state a fact necessary
to make the information contained therein not misleading; or
(ii) that any member of the Wider ebookers Group or any
partnership, company or other entity in which any member of
the Wider ebookers Group has a significant economic interest
and which is not a subsidiary of ebookers is subject to any
liability (actual or contingent) that has not been publicly
announced and which in any case is material in the context
of the Wider ebookers Group taken as a whole; or
(iii) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the
Wider ebookers Group and which is material in the context of
the Wider ebookers Group taken as a whole; and
(m) Cendant Bidco not having discovered that, save as publicly announced
by ebookers in accordance with the Listing Rules or fairly disclosed
in writing to Cendant or Cendant Bidco by and on behalf of ebookers
prior to the date hereof:
(i) any past or present member of the Wider ebookers Group has
not complied with all applicable legislation or regulations
of any jurisdiction with regard to the storage, disposal,
discharge, spillage, leak or emission of any waste or
hazardous substance or any substance likely to impair the
environment or harm human health, or otherwise relating to
environmental matters or the health and safety of any
person, or that there has otherwise been any such use,
treatment, handling, storage, transport, release, disposal,
discharge, spillage, leak or emission (whether or not this
constituted a non-compliance by any person with any
legislation or regulations and wherever the same may have
taken place) which, in any case, would be likely to give
rise to any liability (whether actual or contingent) or cost
on the part of any member of the Wider ebookers Group which
in any case is material in the context of the Wider ebookers
Group taken as a whole; or
(ii) there is, or is likely to be, any liability (whether actual
or contingent) to make good, repair, reinstate or clean up
any property now or previously owned, occupied or made use
of by any past or present member of the Wider ebookers
Group, or in which any such member may now or previously
have had or be deemed to have or have had an interest, or
any other property or any controlled waters under any
environmental legislation, regulation, notice, circular or
order or other lawful requirement of any relevant authority
or Third Party or otherwise which in any case is material in
the context of the Wider ebookers Group taken as a whole.
(n) the Merger Agreement not having been terminated in accordance with
its terms.
For the purposes of these conditions:
(a) "Third Party" means any government, government department or governmental,
quasi-governmental, supranational, statutory, regulatory or investigative
body, authority (including any national anti-trust or merger control
authority), court, trade agency, association, institution or professional or
environmental body or any other person or body whatsoever in any relevant
jurisdiction;
(b) a Third Party shall be regarded as having "intervened" if it has decided
to take, institute, implement, or threaten any action, proceeding, suit,
investigation or enquiry or reference, or made, enacted or proposed any
statute, regulation, decision or order, or taken any measures or other steps
or required any action to be taken or information to be provided or otherwise
having done anything and "intervene" shall be construed accordingly;
(c) "authorisations" means authorisations, orders, grants, recognitions,
confirmations, consents, licences, clearances, permissions, exemptions and
approvals;
(d) "publicly announced" means disclosed in the annual report and accounts of
ebookers for the year ended 31 December 2003 or otherwise announced on or
before the date hereof by ebookers by the delivery of an announcement to a
Regulatory Information Service; and
(e) "the Wider ebookers Group" means ebookers and its subsidiary undertakings,
associated undertakings and any other undertakings in which ebookers and such
undertakings (aggregating their interests) have a substantial interest and
"the Wider Cendant Group" means Cendant and its subsidiary undertakings,
associated undertakings and any other undertaking in which Cendant and such
undertakings (aggregating their interests) have a substantial interest and,
for these purposes, "subsidiary undertaking", "associated undertaking" and
"undertaking" have the meanings given by the Companies Act (but for this
purpose ignoring paragraph 20(1)(b) of Schedule 4A to the Companies Act) and
"substantial interest" means a direct or indirect interest in 20 per cent. or
more of the equity capital of an undertaking.
Subject to the requirements of the Panel, Cendant Bidco reserves the right to
waive all or any of the above Conditions, in whole or in part, except
Conditions (a), (b) and (c). The Acquisition will lapse and the Scheme will
not proceed unless all the above Conditions are fulfilled or (if capable of
waiver) waived or, where appropriate, determined by Cendant Bidco to have been
satisfied or to remain satisfied prior to the Scheme being sanctioned by the
Court. Cendant Bidco shall be under no obligation to waive or treat as
fulfilled any of Conditions (d) to (m) above inclusive by a date earlier than
the date specified above for the fulfilment thereof notwithstanding that the
other Conditions may at such earlier date have been waived or fulfilled and
that there are at such earlier date no circumstances indicating that any of
such Conditions may not be capable of fulfilment.
Cendant Bidco reserves the right to elect to implement the Acquisition by way
of a takeover offer (as defined in section 428 of the Companies Act). In such
event, such offer will be implemented on the same terms (subject to
appropriate amendments, including (without limitation) an acceptance condition
set at ninety per cent. of the shares to which such offer relates), so far as
applicable, as those which would apply to the Scheme.
If Cendant Bidco is required by the Panel to make an offer for ebookers Shares
under the provisions of Rule 9 of the Code, Cendant Bidco may make such
alterations to any of the above conditions as are necessary to comply with the
provisions of that Rule.
The Scheme will not proceed if the European Commission initiates proceedings
under Article 6(1)(c) of Council Regulation (EC) 139/2004 or the Acquisition
is referred to the Competition Commission before the date of the Court
Meeting.
The Scheme will be governed by English law and be subject to the jurisdiction
of the English courts, to the conditions set out above and the further terms
set out below and to be set out in the formal Scheme Document and related
Forms of Proxy.
The availability of the Acquisition to persons not resident in the United
Kingdom may be affected by the laws of the relevant jurisdictions. Persons who
are not resident in the United Kingdom should inform themselves about and
observe any applicable requirements.
SCHEDULE III
RESTRICTED ACTIONS
1. Save where required by the ebookers Share Option Scheme, the ▇▇▇▇▇▇▇
Option Agreement, the Sampler Option Agreement, the Cochrane Option
Agreement or the ▇▇▇▇▇▇ Option Agreement, the variation, creation,
increase, reorganisation, consolidation, subdivision, conversion,
reduction, redemption, repurchase, redesignation or other alteration
of the authorised or issued share or loan capital of ebookers or any
Affiliate thereof or the variation, modification, abrogation or grant
of any rights attaching to any such share or loan capital.
2. The convening of any general meeting of ebookers other than the Court
Meeting and the Extraordinary General Meeting.
3. Save where required by the ebookers Share Option Scheme, the ▇▇▇▇▇▇▇
Option Agreement, the Sampler Option Agreement, the Cochrane Option
Agreement or the ▇▇▇▇▇▇ Option Agreement, the entry into or creation
by ebookers or any Affiliate thereof of any agreement, arrangement or
obligation requiring the creation, allotment, issue, transfer,
redemption or repayment of, or the grant to a person of the right
(conditional or not) to require the creation, allotment, issue,
transfer, redemption or repayment of, any shares in the capital of
ebookers or any Affiliate thereof (including, without limitation, an
option or right of pre-emption or conversion).
4. The reduction, capitalisation, repayment or distribution of any
amount standing to the credit of the share capital, share premium
account, capital redemption reserve or any other reserve of ebookers
or any Affiliate thereof, or the reduction of any uncalled liability
in respect of partly paid shares of ebookers or any Affiliate
thereof.
5. The alteration of the memorandum or articles of association or other
applicable constitutional document of ebookers or any Affiliate
thereof.
6. The recommendation, declaration or making of any dividend or other
distribution of profits, assets or reserves other than by wholly
owned subsidiaries of ebookers.
7. Any response to the taking of steps by the creditors of ebookers or
any Affiliate thereof to liquidate it.
8. The removal or appointment of the auditors or any legal or tax
advisers to ebookers or any Affiliate thereof.
9. The disposal or acquisition by any means (including, without
limitation, by lease or licence) by ebookers or any Affiliate thereof
of any business, going concern or product line.
10. Disposals by any means (including, without limitation, by lease or
licence) by ebookers or any Affiliate thereof of:
(i) any asset or assets (other than assets referred to in paragraph
9 above) with an aggregate value of (pound)100,000 or more
(based on lower of market and net book value); or
(ii) any interest in real property.
11. Acquisitions by any means (including, without limitation, by lease or
licence) by ebookers or any Affiliate thereof of
(i) any asset (other than assets referred to in paragraph 9 above)
with a value of (pound)100,000 or more (based on lower of market
and net book value); or
(ii) any interest in real property.
12. The transfer by any means of any or all of the shares in any
Affiliate of ebookers.
13. The alteration of the accounting reference date of ebookers or any
Affiliate thereof or the alteration of the accounting policies or
practices of ebookers or any Affiliate thereof except as required by
law or to comply with a new applicable accounting standard.
14. The entry into, amendment, variation, supplement or termination of
any agreement or arrangement which is material in the context of
either the business of the ebookers Group taken as a whole or the
implementation of the Acquisition, including, without limitation, any
agreement or arrangement which (i) confers exclusive rights or
obligations of any nature whatsoever on any party and involves
expenditure on the part of ebookers or any Affiliate thereof of
(pound)50,000 or more or has a term of three months or more (ii)
relates to the provision of business process outsourcing services or
the supply of travel-related services and products (including,
without limitation, air transportation, hotel accommodation, car
hire, travel-related insurance products, cruises and tour packages)
and involves expenditure on the part of ebookers or any Affiliate
thereof of (pound)50,000 or more or has a term of three months or
more, (iii) is not terminable by ebookers or any other relevant
member of the ebookers Group on 90 days' notice or less without the
payment of any penalty, (iv) involves expenditure on the part of
ebookers or any Affiliate thereof of (pound)100,000 or more, or (v)
relates in any way to arrangements or relationships between ebookers
and/or any other member of the ebookers Group and a global
distribution system or customer reservation system.
15. Material capital expenditure of ebookers or any Affiliate thereof,
treating the entering into by ebookers or any Affiliate thereof of
any lease, licence or similar obligation as capital expenditure. For
the purposes hereof, capital expenditure of (pound)100,000 or more
shall be deemed to be material.
16. The creation, otherwise than by operation of law, of any mortgage,
charge, pledge, lien, option, restriction, right of first refusal,
right of pre-emption, third party right or interest, other
encumbrance or security interest of any kind, or other type of
agreement or arrangement having similar effect over any uncalled
capital of, or any other asset of, ebookers or any Affiliate thereof
or the giving of any guarantee, indemnity or security, or the entry
into of any agreement or arrangement having a similar effect by
ebookers or any Affiliate thereof or the assumption, otherwise than
by operation of law, by ebookers or any Affiliate thereof of any
liability, whether actual or contingent, in respect of any obligation
of any person.
17. ebookers or any Affiliate thereof incurring, or the entry by ebookers
or any Affiliate thereof into any agreement or facility to obtain,
any borrowing, advance, credit or finance or any other indebtedness
or liability in the nature of borrowing.
18. Any variation in the terms or manner in which Tecnovate eSolutions
Limited conducts its business process outsourcing business in any
jurisdiction.
19. The incorporation, commencement or development of any new business
process outsourcing business by ebookers or any Affiliate thereof
(other than Tecnovate eSolutions Limited).
20. The entry into, termination or variation of any employment or
consultancy agreement or arrangement, in respect of which annual
payments of basic salary or consultancy fees exceed (pound)30,000,
including, without limitation, any variation of the remuneration or
other benefits under such agreement or arrangement.
21. The entry by ebookers or any Affiliate thereof into any agreement or
binding commitment to do any of the actions described in this
Schedule III.
22. The making by or on behalf of ebookers or any Affiliate thereof of an
announcement in relation to any of the actions described in this
Schedule III or in relation to a proposal to take any such action.
SCHEDULE IV
TIMETABLE
------------ -------------------------------------------------------------------
Date Action
------------ -------------------------------------------------------------------
D-28 Announcement released
------------ -------------------------------------------------------------------
D-12 Issue Application for permission to convene Court Meeting
------------ -------------------------------------------------------------------
D-8 Swearing and filing of affidavit exhibiting Circular
------------ -------------------------------------------------------------------
D-5 Hearing of application for permission to convene Court Meeting
------------ -------------------------------------------------------------------
D Circular posted
------------ -------------------------------------------------------------------
D+23/D+24 Court Meeting and Extraordinary General Meeting
Presentation of Petition applying for Court Orders
------------ -------------------------------------------------------------------
D+32 Application for directions
------------ -------------------------------------------------------------------
D+35 Advertising
------------ -------------------------------------------------------------------
D+49 Court Hearing (depending on Clearances)
------------ -------------------------------------------------------------------
D+50 Effective Date
------------ -------------------------------------------------------------------
D+71 Advertise reduction
------------ -------------------------------------------------------------------
Notes:
1. The parties recognise that the Timetable will be affected by the
occurrence of non-Business Days and the availability of the Court and
its staff.
2. The parties recognise that the Timetable may be affected by the
requirement to obtain Clearances.
3. The parties will discuss the timing of the matters to occur following
the Court Meeting and Extraordinary General Meeting in the light of
progress towards obtaining Clearances.
SCHEDULE V
▇▇▇▇▇▇▇ COMPROMISE AGREEMENT
WITHOUT PREJUDICE
AND SUBJECT TO CONTRACT
DATED 200_
(1) EBOOKERS PLC
and
(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
COMPROMISE AGREEMENT
-------------------------------------------
▇▇▇▇▇▇▇ House
1550 Parkway
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇▇ ▇▇▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇
Ref. HJD
THIS AGREEMENT is made the day of 200_
between:--
1. ebookers Plc (registered no: 3818962) whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the Company"); and
2. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ("the Employee").
RECITALS
(A) The Employee is employed by the Company under the terms of a Service
Agreement dated 2 October 2002 ("the Service Agreement");
(B) The Company is entering into this Agreement for itself and as agent
for all Group Companies and is duly authorised on their behalf.
"Group Companies" means any company which is for the time being a
subsidiary or a holding company of the Company or a subsidiary of any
such company ("subsidiary" and "holding company" shall have the
meaning set out in section 736 of the Companies ▇▇▇ ▇▇▇▇ as amended).
(C) The Employee has received independent legal advice from a relevant
independent adviser ("the Adviser") as to the terms and effect of
this Agreement.
(D) The Employee believes that he may have statutory claims or
contractual claims against the Company which will arise upon the
termination of his employment and therefore he could bring
proceedings against the Company or its shareholders, officers or
employees for the claims particularised in clause 7.1.
IT IS AGREED as follows:
1. TERMINATION OF EMPLOYMENT
The Employee's employment with the Company will terminate on [insert
date] ("the Termination Date") by reason of mutual agreement.
2. PAYMENT OF SALARY AND BENEFITS UNTIL TERMINATION DATE
2.1 The Company will pay the Employee his normal remuneration and
benefits until the Termination Date (less such sums as the Company is
obliged by law to deduct by way of tax and National Insurance) or
other social security contribution.
2.2 On or before the Termination Date the Company will pay the Employee
in lieu of accrued but untaken holiday (less such sums as the Company
is obliged by law to deduct by way of tax and National Insurance or
other social security contribution).
3. COMPENSATION FOR LOSS OF EMPLOYMENT AND PAYMENT IN LIEU OF NOTICE
3.1 The Company shall within 14 days of the Termination Date or the date
of this Agreement if later (provided that the Employee has returned
to the Company a copy of this Agreement signed by him and the
Adviser) pay to the Employee the sum of (pound)361,000 in lieu of the
Employee's contractual notice period, less such sums as the Company
is obliged by law to deduct by way of tax and National Insurance.
4. TAX INDEMNITY
4.1 The Employee shall be responsible for any tax which the Inland
Revenue or other authority may require to be paid in respect of the
Severance Payment and the Employee agrees to indemnify and keep
indemnified the Company against any demand for payment of tax,
National Insurance or other social security contributions, interest,
fines or penalties thereon which the Company may receive.
5. COMPANY PROPERTY
5.1 The Employee warrants that on or before the the Termination Date or
the date of this Agreement, if later, he will return to the Company
all keys, electronic passes, documents, recordings, photographs,
laptop computer, computer hardware, computer discs, microfiches,
mobile telephone, Company credit card, Company car and any other
property belonging to the Company including any copies thereof. The
Employee warrants that he has not made or retained copies of or
extracts from documents or any notes of or information relating to
the business of the Company, caused others to do so or distributed
the same to persons other than those authorised by the Company to be
in possession of such documents.
6. EXPENSES
6.1 The Company will reimburse the Employee for all expenses reasonably
and properly incurred and accounted for in connection with the
Employee's employment up to the Termination Date provided that the
Company receives the appropriate receipts or invoices within 7 days
of the Termination Date.
7. FULL AND FINAL SETTLEMENT AND WAIVER OF CLAIMS
7.1 The Employee accepts the terms of this Agreement and the Severance
Payment in full and final settlement of all and any claims, whether
under contract, at Common Law, under statute or pursuant to European
Community Law which the Employee has, or may have, against the
Company, its officers, employees and ex-employees arising directly or
indirectly from the Employee's employment by the Company or its
termination including the following claims (but excluding any claim
for accrued pension rights) which have been raised by the Employee
with the Adviser:
(i) any claim for unpaid salary, bonuses, commission, overtime,
holiday pay, sick pay or reimbursement of expenses;
(ii) any claim for damages for breach of contract however arising;
(iii) any claim for unfair dismissal or a redundancy payment or any
other termination payment;
(iv) any claim for unlawful deduction of wages or any other claim
under the Employment Rights ▇▇▇ ▇▇▇▇;
7.2 The Employee warrants that he has raised any and all claims that he
has or may be entitled to make against the Company in respect of his
employment and its termination, whether contractual, statutory or
otherwise and that they are fully particularised in clause 7.1 and
that other than the claims listed he warrants that he has no further
claims or potential claims against the Company.
7.3 The Employee warrants that he has not already instituted a claim or
claims against the Company.
7.4 The Company enters into this Agreement in reliance on the warranties
given by the Employee in clause 7. The Employee acknowledges that in
the event of any proceedings being commenced by him in respect of any
claims referred to in paragraph 7.1 the Severance Payment shall be
repaid to the Company and shall be recoverable as a debt from the
Employee.
7.5 The Employee warrants that he has provided the Adviser with all
available information which the Adviser requires or may require in
order to advise whether he has any such claims.
7.6 The Employee warrants that on the date of this Agreement he is not
aware of any conditions, illness or injury that may give rise to a
personal injury claim against the Company.
8. EMPLOYEE'S INDEPENDENT LEGAL ADVICE
8.1 The Employee warrants that he has before signing this Agreement taken
advice from _____ of _____ ("the Adviser") on the terms and effect of
this Agreement and in particular its effect on his ability to pursue
a complaint before an Employment Tribunal, the County Court or High
Court.
8.2 It is a condition of this Agreement that the Adviser provides the
Certificate annexed to this Agreement at Schedule 1.
9. CONFIDENTIALITY
The Employee acknowledges and agrees that he continues to be bound by:-
9.1 His implied duties of confidentiality in respect of Confidential
Information; and
9.2 The provisions of the express confidentiality and post termination
obligations contained in clause 5, 8 and 21 of the Service Agreement.
9.3 For the purposes of this Agreement "Confidential Information" shall
mean any information relating to the Company or the business,
prospective business, technical processes, computer software,
intellectual property rights or finances of the Company including
without limitation details of suppliers and their terms of business,
details of customers and their requirements, the prices charged to
and terms of business with the customers, marketing plans and sales
forecasts, financial information, results and forecasts (save to the
extent that these are included in published audited accounts), any
proposals relating to the acquisition or disposal of the Company or
business or any part thereof or to any proposed expansion or
contraction of activities, details of employees and officers and of
the remuneration and other benefits paid to them, information
relating to research activities, inventions, secret processes,
designs, formulae and product lines, which comes into the Employee's
possession by virtue of his/her employment, and any other information
which the Company could reasonably be expected to regard as
confidential, whether or not such information is reduced to a
tangible form or marked in writing as "confidential" and any and or
information which has been or may be derived or obtained from any
such information.
9.4 The Employee agrees not to make any statements to the press or other
media in connection with the Company or any Group Company or the
termination of his employment or this Agreement.
9.5 The Employee agrees not to make, or cause to be made, any derogatory
or critical or disparaging remarks, comments or statements (whether
orally or in writing) about the Company, its suppliers, customers,
clients, investors or advisers, its shareholders, officers or
employees.
9.6 The Employee agrees that he will not disclose the fact or contents of
this Compromise Agreement without the prior written consent of the
Company except to his partner, professional advisers, the Inland
Revenue or as otherwise required by law and that he will otherwise
make no statement to any person or body relating to the termination
of his employment nor any statement of any kind which is calculated
or likely to diminish the reputation of the Company or any Group
Company, its or their officers and employees.
10. RESIGNATION FROM OFFICE
On signing this Agreement the Employee will provide to the Company his written
resignation from the office(s) that he holds with the Company in the form
attached at Schedule 2 with effect from the Termination Date and shall execute
such documents and do such other things as are necessary to give effect to
such resignation.
11. LEGAL & OTHER ASSISTANCE
11.1 The Employee agrees that he will, at the request of the Company,
provide the Company and/or any Group Company with such assistance as
it or they may reasonably require in the conduct of any legal
proceedings, investigation or enquiry in respect of which the Company
or its advisers believe that the Employee may be of assistance.
11.2 If the Employee is required to provide assistance to the Company
and/or any Group Company, in accordance with paragraph 11.1 the
Company will reimburse the Employee for any reasonable expenses which
the Employee may incur and which are evidenced by appropriate
receipts or invoices.
12. EMPLOYMENT LEGISLATION
The Company and the Employee confirm that this Agreement satisfies the
conditions regulating compromise agreements and compromise contracts under
Section 203(3) Employment Rights ▇▇▇ ▇▇▇▇, Section 77(4A) Sex Discrimination
▇▇▇ ▇▇▇▇, Section 72 (4A) Race Relations ▇▇▇ ▇▇▇▇, Section 288 (2B) Trade
Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇, Section 9(3) Disability
Discrimination ▇▇▇ ▇▇▇▇, Section 35(3) Working Time Regulations 1998 and
Section 49(4) National Minimum Wage ▇▇▇ ▇▇▇▇, (together referred to as "the
Acts").
13. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law of England and Wales and any dispute is
subject to the exclusive jurisdiction of the Courts and Tribunals of England
and Wales.
14. MISCELLANEOUS
Any Group Company, subject at all times to the provision of the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇, may enforce the terms set out in this
Agreement.
This Agreement although marked "without prejudice" will upon signature by all
parties be treated as an open document evidencing an agreement binding on the
parties.
SIGNED by
For and on behalf of ebookers Plc
in the presence of:
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of:
SCHEDULE 1
----------
Adviser's Certificate
I confirm that:
1. I am a relevant independent adviser within the meaning of the Acts as
defined in clause 12 of this Agreement.
2. I have advised the Employee of the terms and effect of this Agreement and
in particular its affect on his abilities to pursue a claim before an
Employment Tribunal.
3. There is in force a contract of insurance or indemnity provided for
members of a professional body covering the risk of a claim by the
Employee in respect of loss arising in consequences of my advice.
Signed: ........................
Name: ..........................
[IN CAPITALS]
Capacity: ......................
(eg. Solicitor, Barrister, Advocate, Authorised litigator, Officer of Trade
Union, Authorised Advice Centre Worker)
Signed: ........................
THE EMPLOYEE
SCHEDULE 2
----------
To the Company Secretary of ebookers Plc
[Termination Date]
Dear Company Secretary
RESIGNATION AS DIRECTOR
I hereby confirm my resignation as a Director of ebookers Plc ("the Company")
to take effect from [Termination Date].
I confirm that I have no claim whatsoever against the Company as a Director
either under Common Law or Statute or otherwise howsoever arising from my
resignation of this office.
Yours sincerely
................................
[Name of Employee]
