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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Under the Securities Exchange Act of 1934)
ebookers plc
- --------------------------------------------------------------------------------
(Name of Issuer)
Ordinary Shares, nominal value 14 pence each
American Depositary Shares, each representing the
right to receive two Ordinary Shares
- --------------------------------------------------------------------------------
(Title of Class of Securities)
ADSs: 278725106
Ordinary Shares: 32799E9Q2
- --------------------------------------------------------------------------------
(CUSIP Number)
Eric J. Bock
Executive Vice President - Law
and Corporate Secretary
Cendant Corporation
9 West 57th Street
New York, New York 10019
(212) 413-1800
Copies to:
David Fox, Esq. John Adebiyi
Skadden, Arps, Slate, Meagher Skadden, Arps, Slate, Meagher
& Flom LLP & Flom (UK), LLP
4 Times Square 40 Bank Street
New York, New York 10036 Canary Wharf
(212) 735-3000 London E14 5DS, England
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 2, 2004
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of ss.ss.240-13d-1(e), ss. 240.13d-1(f) or
ss.240.13d-1(g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 12
SCHEDULE 13D
- ------------------------------------ --------------------------------
CUSIP No. Ordinary Shares: 32799E9Q2 Page 2 of 12 Pages
ADSs: 278725106 ----- ------
- ------------------------------------ --------------------------------
- ---------- ------------------------------------ --------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS (entities only):
Cendant Corporation 06-0918165
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)
(b)
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC, BK
- ---------- ---------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [X]
- ---------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------- --------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
-------- ---------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
27,036,778*
OWNED BY
-------- ---------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
-------- ---------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
27,036,778*
WITH
- ---------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,036,778*
- ---------- --------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
- ---------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.4%**
- ---------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
- ---------- --------------------------------------------------------------------
*Amount consists of 27,036,778 ordinary shares (including 295,782 American
Depositary Shares) outstanding on December 2, 2004 subject to the Irrevocables
(as defined below). In addition, options to purchase ordinary shares held by
directors of ebookers are also subject to Irrevocables, as more fully
described in Item 4. On the basis of the number of ordinary shares outstanding
on December 2, 2004, the number of ordinary shares issuable upon the exercise
of options that are vested or will vest within 60 days of December 2, 2004
that are subject to Irrevocables is 3,711,421, including 3,265,921 ordinary
shares issuable upon the exercise of Mr. Dinesh Dhamija's options to acquire
shares equivalent to 5% of ebookers' outstanding ordinary shares as of the
date prior to the date of exercise.
** The calculation of the foregoing percentage is based on the number of
outstanding ordinary shares, 65,318,416, on December 2, 2004 as set forth in
the Merger Agreement (as defined below).
2 of 12
SCHEDULE 13D
- ------------------------------------ --------------------------------
CUSIP No. Ordinary Shares: 32799E9Q2 Page 3 of 12 Pages
ADSs: 278725106 ----- ------
- ------------------------------------ --------------------------------
- ---------- ------------------------------------ --------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS (entities only):
Cendant UK
Acquisition Corporation
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)
(b)
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- ---------- ---------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- ---------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------- --------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
-------- ---------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
27,036,778*
OWNED BY
-------- ---------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
-------- ---------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
27,036,778*
WITH
- ---------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,036,778*
- ---------- --------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
- ---------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.4%**
- ---------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
- ---------- --------------------------------------------------------------------
*Amount consists of 27,036,778 ordinary shares (including 295,782 American
Depositary Shares) outstanding on December 2, 2004 subject to the
Irrevocables. In addition, options to purchase ordinary shares held by
directors of ebookers are also subject to Irrevocables, as more fully
described in Item 4. On the basis of the number of ordinary shares outstanding
on December 2, 2004, the number of ordinary shares issuable upon the exercise
of options that are vested or will vest within 60 days of December 2, 2004
that are subject to Irrevocables is 3,711,421, including 3,265,921 ordinary
shares issuable upon the exercise of Mr. Dinesh Dhamija's options to acquire
shares equivalent to 5% of ebookers' outstanding ordinary shares as of the
date prior to the date of exercise.
** The calculation of the foregoing percentage is based on the number of
outstanding ordinary shares, 65,318,416, on December 2, 2004 as set forth in
the Merger Agreement.
3 of 12
The information set forth in response to each separate Item shall be deemed to
be a response to all Items where such information is relevant.
Item 1. Security and Issuer.
This statement on Schedule 13D (this "Statement") relates to the
shares (the "Shares") of common stock (ordinary shares), nominal value 14
pence in capital each, of ebookers plc, an English company ("ebookers").
ebookers' principal executive offices are located at 25 Farringdon St, London
EC4A 4AB, England.
Item 2. Identity and Background.
(a), (b), (c) and (f). The Statement is filed jointly by Cendant
Corporation, a Delaware corporation ("Cendant"), and Cendant UK Acquisition
Corporation, a Delaware corporation ("Acquirer"). The agreement between
Cendant and the Acquirer relating to the joint filing of this Statement is
attached as Exhibit 12 hereto.
The address of Cendant's principal office and principal business is 9
West 57th Street, New York, New York 10019. The address of the Acquirer's
principal office and principal business is 7 Sylvan Way, Parsippany, New
Jersey 07054.
Cendant is one of the foremost providers of travel and real estate
services in the world. Cendant operates in six business segments--Real Estate
Franchise and Operations, Mortgage Services, Hospitality Services, Travel
Distribution Services, Vehicle Services and Marketing Services. Cendant
businesses provide a wide range of consumer and business services which are
intended to complement one another and create cross-marketing opportunities
both within each segment and between segments. Cendant's Real Estate Franchise
and Operations segment franchises the real estate brokerage businesses of four
residential and one commercial brands, provides real estate brokerage services
and facilitates employee relocations. Cendant's Mortgage Services segment
provides home buyers with mortgage lending services and title, appraisal and
closing services. Cendant's Hospitality Services segment sells and develops
vacation ownership interests, provides consumer financing to individuals
purchasing these interests, facilitates the exchange of vacation ownership
interests, operates nine lodging franchise systems and markets vacation rental
properties in Europe. Cendant's Travel Distribution Services segment provides
primarily global distribution services for the travel industry and travel
agency services. Cendant's Vehicle Services segment operates and franchises
Cendant's vehicle rental businesses and provides commercial fleet management
and fuel card services. Cendant's Marketing Services segment provides
insurance, membership, loyalty and enhancement products and services to
financial institutions and other partners and their customers. With
approximately 90,000 employees, New York City-based Cendant provides these
services to businesses and consumers in over 100 countries.
The Acquirer was incorporated on November 18, 2004 for the purpose of
effecting an acquisition of ebookers (the "Acquisition"), as more fully
described in Item 4. The Acquirer has not engaged, and does not expect to
engage, in any business other than in connection with the Acquisition.
The names, citizenship, business addresses, present principal
occupation or employment, and the name and principal business and address of
any corporation or other organization in which such employment is conducted,
of the directors and executive officers of Cendant and the Acquirer are as set
forth in Schedule A attached hereto and incorporated herein by reference.
(d) and (e). Except as set forth below, neither Cendant, the
Acquirer, nor, to their knowledge, any person listed in Schedule A has during
the last five years (i) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or State securities laws or finding any
violation with respect to such laws.
On June 14, 2000, the Securities and Exchange Commission (the "SEC")
instituted and simultaneously settled an administrative proceeding,
Administrative Proceeding File No. 3-10225, against Cendant in connection with
certain accounting irregularities at the former CUC International, Inc., which
merged with HFS Incorporated in December 1997 to form Cendant. The SEC found
that, as a result of such accounting irregularities, Cendant violated the
periodic reporting, corporate record-keeping and internal controls provisions
of the federal securities laws. Without admitting or denying the findings
contained in the SEC's administrative order, Cendant consented to the issuance
of an SEC order directing Cendant to cease and desist from committing or
causing any violation, and any future violation, of the periodic reporting,
corporate record-keeping and internal controls provisions of the federal
securities laws. No financial penalties were imposed against Cendant.
4 of 12
Item 3. Source and Amount of Funds or Other Consideration.
Cendant and the Acquirer estimate that the total amount of funds
required to consummate the Acquisition will be approximately (pound)209
million ($404.3 million) plus any related transaction fees and expenses. The
Acquirer will acquire all such funds from Cendant, which currently intends to
use generally available funds including cash on hand and/or Cendant's existing
$3.5 billion revolving credit facility with JPMorgan Chase Bank, N.A., as the
administrative agent, and the lenders names therein for this purpose.
Item 4. Purpose of Transaction.
On December 2, 2004, ebookers, the Acquirer and Cendant entered into
a Merger Agreement (the "Merger Agreement"), which provides, inter alia, for
the implementation of the Acquisition by means of a scheme of arrangement (the
"Scheme") under section 425 of the Companies Act 1985 of the United Kingdom
(or, if applicable, a tender offer to acquire all of the ordinary shares of
ebookers) and contains certain assurances and confirmations between the
parties, including with respect to the implementation of the Scheme and
regarding the conduct of the business of ebookers and its subsidiaries in the
period prior to the closing of the Acquisition. ebookers has also undertaken
not to solicit any other potential offerors and to inform Cendant of the fact
and details of any offer received.
Under the Scheme, each Share outstanding will be cancelled and new
ebookers shares will be issued fully paid to the Acquirer, with ebookers
becoming a wholly owned subsidiary of the Acquirer and Cendant. In
consideration of the cancellation of their Shares (including Shares
represented by ebookers American Depositary Shares ("ADSs")), under the terms
of the Acquisition, holders of Shares will be entitled to receive 320 pence
per ebookers Share in cash and holders of ADSs will be entitled to receive 640
pence per ebookers ADS in cash.
To become effective, the Scheme requires, among other things, the
approval of a majority in number, representing 75 per cent or more in value,
of the ebookers shareholders present and voting in person or by proxy at a
meeting of ebookers shareholders ("Court Meeting") convened pursuant to an
order of the High Court of Justice in England and Wales (the "Court"),
together with the sanction of the Court and the passing of shareholder
resolutions necessary to implement the Scheme at an extraordinary general
meeting of ebookers' shareholders (the "Extraordinary General Meeting"). Upon
such time as the Scheme becomes effective (the "Effective Date"), it will be
binding on all ebookers shareholders, irrespective of whether or not they
attended or voted at the Court Meeting or the Extraordinary General Meeting.
The Acquisition is expected to be effective in the first quarter of 2005.
Cendant and the Acquirer have also reserved the right to effect the
Acquisition by means of a tender offer (the "Offer") in the event that a
competing offeror for ebookers emerges.
In connection with the Acquisition, Dinesh Dhamija, Chairman and
Chief Executive Officer of ebookers, Flightbookers Investments Limited
("Flightbookers"), which is controlled by a trust in which Dinesh Dhamija has
an interest, Goldman Sachs Securities Nominees Limited ("Goldman") (as
custodian and registered owner of the Shares beneficially owned by
Flightbookers) and ebookers directors other than Mr. Dhamija have irrevocably
undertaken to vote, or to procure the vote as applicable, in favor of the
Scheme at the Court Meeting and in favor of the resolutions required to effect
the Acquisition to be proposed at the Extraordinary General Meeting (the
"Irrevocables"). The Irrevocables cover a total of 27,036,778 outstanding
Shares (including 26,985,700 outstanding Shares beneficially owned by
Flightbookers and 51,078 outstanding Shares beneficially owned by Directors
other than Mr. Dhamija), together with options held by Mr. Dhamija and the
other directors. Mr. Dhamija holds vested options to acquire (i) 87,336 Shares
and (ii) a number of Shares equivalent to 5% of the outstanding Shares (as of
the day prior to the date of exercise). The Irrevocables will remain binding
in the event that a competing offer for ebookers is announced and also oblige
Flightbookers, Mr. Dhamija and each of the other ebookers Directors to accept,
or procure the acceptance of, any Offer announced by the Acquirer 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, provided that the
terms of the Offer are no less favorable than the terms of the Scheme. In
addition, each director of ebookers has agreed pursuant to the Irrevocable
entered into by such director to, among other things, recommend the Scheme to
shareholders and otherwise cooperate with Cendant to implement the Scheme or,
if applicable, the Offer (including convening all necessary meetings of
ebookers shareholders), provided that such actions are consistent with the
fiduciary duties of such director.
Following the implementation of the Scheme, the Shares and ADSs
may be eligible for deregistration pursuant to Section 12(g) of the
Securities Exchange Act of 1934 (the "Exchange Act"). The Acquirer
currently intends to seek to cause ebookers to apply for deregistration of
the Shares and ADSs under the Exchange Act as soon after the completion of
the Acquisition as the requirements for deregistration are met. The
Acquirer also currently intends to seek to cause ebookers to effect the
termination of the American Depositary Receipt program, under which the
ADSs are traded on the Nasdaq National Market, and to delist the ADSs from
the Nasdaq National Market. Similarly, it is intended that the Acquirer
will procure that a request will be made by ebookers to cancel the listing
of the Shares on the Official List of the UK listing authority and to the
London Stock Exchange to cancel the admission to trading of the Shares on the
London Stock Exchange's market for listed
5 of 12
securities so that the Shares will cease to be listed on the Official List on
the Effective Date and the last day of dealing in the Shares on the London
Stock Exchange will be the last dealing day before the Effective Date.
The foregoing summary of certain provisions of the Merger Agreement
and the Irrevocables is not intended to be complete and is qualified in its
entirety by reference to the full text of such agreements. A copy of the
Merger Agreement and the Irrevocables are filed as Exhibits 1 through 11 to
this Statement and are incorporated herein by reference.
Except as set forth in this Item 4, neither Cendant nor the Acquirer
has any plans or proposals which relate to or would result in any of the
actions specified in clauses (a) through (j) of Item 4 of Schedule 13D
(although, subject to the provisions of the Merger Agreement, they reserve the
right to develop such plans).
Item 5. Interest in Securities of the Issuer.
(a) Pursuant to the Irrevocables described in Item 4, Cendant and the
Acquirer may be deemed to have beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) as of December 2, 2004 of 27,036,778 Shares
(which represent approximately 41.4% of the Shares based on the number of
Shares outstanding as of December 2, 2004. In addition, options to purchase
Shares held by directors of ebookers are also subject to Irrevocables, as more
fully described in Item 4. On the basis of the number of Shares outstanding on
December 2, 2004, the number of Shares issuable upon the exercise of options
that are vested or will vest within 60 days of December 2, 2004 that are
subject to Irrevocables is 3,711,421. The 3,711,421 Shares subject to options
include (i) 445,500 Shares issuable upon the exercise of options to acquire
Shares held by Mr. Dhamija and other directors of ebookers and (ii) 3,265,921
Shares issuable upon the exercise of Mr. Dhamija's options to acquire Shares
equivalent to 5% of ebookers' outstanding Shares as of the date prior to the
date of exercise (based on the number of Shares outstanding as of December 2,
2004). Cendant and the Acquirer expressly disclaim any beneficial ownership of
any of the Shares described in Item 4 until such time as all transactions
pursuant to the Scheme are consummated.
(b) The number of Shares that may be deemed to be beneficially owned
by Cendant and the Acquirer (i) with respect to which their sole voting power
is none, (ii) with respect to which their shared voting power is 27,036,778,
(iii) with respect to which their sole dispositive power is none and (iv) with
respect to which their shared dispositive power is 27,036,778. In addition, as
described in Item 4 and Item 5(a) above, Shares issuable upon the exercise of
options to purchase Shares held by directors of ebookers are also subject to
Irrevocables and, if issued, would be treated in the same manner as
outstanding Shares covered by the Irrevocables.
(c) Except as described in Item 4 above, to the best of the knowledge
of each of the Reporting Persons, within the past 60 days, none of the
Reporting Persons has engaged in any transactions relating to the Shares.
(d) Inapplicable.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Other than the Merger Agreement and the exhibits thereto, the
Irrevocables and any other relevant agreements, to the knowledge of Cendant or
the Acquirer, there are no contracts, arrangements, understandings or
relationships among the persons named in Item 2 or listed on Schedule I and
between such persons and any person with respect to any securities of
ebookers, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangement, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
6 of 12
Item 7. Material to be Filed as Exhibits.
Exhibit Description
1 Merger Agreement, dated December 2, 2004, by and among
Cendant Corporation, Cendant UK Acquisition Corporation and
ebookers plc
2 Irrevocable Undertaking, dated December 2, 2004, by Dinesh
Dhamija
3 Irrevocable Undertaking, dated December 2, 2004, by Goldman
Sachs Securities Nominees Limited A/C SEG (as registered
holder of 26,985,700 Shares beneficially owned by
Flightbookers Investments Limited)
4 Irrevocable Undertaking, dated December 1, 2004, by
Flightbookers Investments Limited (as beneficial owner of
26,985,700 Shares)
5 Irrevocable Undertaking, dated December 2, 2004, by David
Gill (as registered and beneficial holder of 1,189 Shares)
6 Irrevocable Undertaking, dated December 2, 2004, by James
Capel Nominees Ltd. (as registered holder of 14,250 Shares
beneficially owned by John Donaldson)
7 Irrevocable Undertaking, dated December 2, 2004, by John
Donaldson (as registered holder and beneficial owner of
2,910 Shares and beneficial owner of 14,250 Shares)
8 Irrevocable Undertaking, dated December 2, 2004, by Tani
Dhamija
9 Irrevocable Undertaking, dated December 2, 2004, by Sudhir
Choudhrie
10 Irrevocable Undertaking, dated December 2, 2004, by Michael
Healy
11 Irrevocable Undertaking, dated December 2, 2004, by James
Joseph Treacy (as beneficial owner of 10,000 ADSs
(representing 20,000 Shares))
12 Joint Filing Agreement, dated December 10, 2004, between
Cendant Corporation and Cendant UK Acquisition Corporation
7 of 12
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 10, 2004
CENDANT CORPORATION
By: /s/ Eric J. Bock
--------------------------------
Name: Eric J. Bock
Title: Executive Vice President
- Law and Corporate
Secretary
CENDANT UK ACQUISITION CORPORATION
By: /s/ Eric J. Bock
--------------------------------
Name: Eric J. Bock
Title: Executive Vice President
and Secretary
8 of 12
Schedule A
----------
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF CENDANT AND ACQUIRER
Following is a list of each executive officer and director of Cendant
Corporation and Cendant UK Acquisition Corporation setting forth the business
address and present principal occupation or employment (and the name and
address of any corporation or organization in which such employment is
conducted) of each person. The persons named below are citizens of the United
States (other than Mr. Mulroney, who is a citizen of Canada, and Mr. Nasta,
who is a citizen of Belgium) and have not, during the last five years, been
convicted in a criminal proceeding or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
they are or were subject to a judgment, decree, or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Cendant Corporation
Directors
- ---------
Name Principal Occupation Address
Henry R. Silverman Chairman and Chief Executive Cendant Corporation
Officer 9 West 57th Street
New York, NY 10019
James E. Buckman Vice Chairman, General Counsel Cendant Corporation
9 West 57th Street
New York, NY 10019
Stephen P. Holmes Vice Chairman; Chairman and Chief Cendant Corporation
Executive Officer, Hospitality 1 Campus Drive
Services Division Parsippany, NJ 07054
Ronald L. Nelson President and Chief Financial Cendant Corporation
Officer 9 West 57th Street
New York, NY 10019
Myra J. Biblowit President, The Breast Cancer The Breast Cancer Research
Research Foundation Foundation
654 Madison Avenue
Suite 1209
New York, NY 10021
Leonard S. Coleman Senior Advisor, Major League Cendant Corporation
Baseball 9 West 57th Street
New York, NY 10019
Martin L. Edelman Of Counsel, Paul Hastings Paul, Hastings, Janofsky
Janofsky & Walker LLP & Walker LLP
75 East 55th Street
New York, NY 10022
9 of 12
George Herrera Chair of the Congressional Cendant Corporation
Hispanic Caucus, Corporate 9 West 57th Street
American Task Force Advisory New York, NY 10019
Committee
Cheryl D. Mills Senior Vice President and New York University
Counselor for Operations and 70 Washington Square South
Administration of New York New York, NY 10012
University
The Right Honourable Brian Senior Partner, Ogilvy Renault Ogilvy Renault
Mulroney 1981 McGill College Ave.
Suite 1100
Montreal, Quebec H3A 3C1
Robert E. Nederlander President, Nederlander Nederlander Organization, Inc.
Organization, Inc. 1450 Broadway
20th Floor
New York, NY 10018
Robert W. Pittman Member of, and investor in, Pilot Group, LLC
respectively, Pilot Group Manager 625 Madison Avenue
LLC and Pilot Group LP New York, NY 10022
Pauline D. E. Richards Director of Development, Saltus 108 St. John's Rd.
Grammar School Pembroke HM 09
Hamilton HMJX, Bermuda
Sheli Z. Rosenberg Former Vice Chairwoman, Equity Cendant Corporation
Group Investments, Inc. 9 West 57th Street
New York, NY 10019
Robert F. Smith Former Chairman of the Board, Cendant Corporation
American Remanufacturers Inc. 9 West 57th Street
New York, NY 10019
10 of 12
Executive Officers Who Are Not Directors
- ----------------------------------------
Name Principal Occupation Address
Samuel L. Katz Senior Executive Vice President; Cendant Corporation
Chairman and Chief Executive 9 West 57th Street
Officer, Travel Distribution New York, NY 10019
Services Division and
Co-Chairman, Marketing Services
Division
Kevin M. Sheehan Senior Executive Vice President; Cendant Corporation
Chairman and Chief Executive 9 West 57th Street
Officer, Vehicle Services Division New York, NY 10019
Richard A. Smith Senior Executive Vice President; Cendant Corporation
Chairman and Chief Executive 1 Campus Drive
Officer, Real Estate Franchise Parsippany, NJ 07054
and Operations Division and
Chairman and Chief Executive
Officer, Mortgage Services
Division
Thomas D. Christopoul Senior Executive Vice President; Cendant Corporation
Co-Chairman and Chief Executive 1 Campus Drive
Officer, Marketing Services Parsippany, NJ 07054
Division
Scott E. Forbes Senior Executive Vice President Cendant Corporation
and Group Managing Director of 1 Campus Drive
Cendant Europe, Middle East and Parsippany, NJ 07054
Africa
Virginia M. Wilson Executive Vice President and Cendant Corporation
Chief Accounting Officer 1 Campus Drive
Parsippany, NJ 07054
Linda C. Coughlin Chief Administrative Officer Cendant Corporation
9 West 57th Street
New York, NY 10019
11 of 12
Cendant UK Acquisition Corporation
Directors
- ---------
Name Principal Occupation Address
Henry R. Silverman Chairman and Chief Executive Cendant Corporation
Officer of Cendant 9 West 57th Street
New York, NY 10019
James E. Buckman Vice Chairman, General Counsel Cendant Corporation
and Director of Cendant 9 West 57th Street
New York, NY 10019
Ronald L. Nelson President, Chief Financial Cendant Corporation
Officer and Director of Cendant 9 West 57th Street
New York, NY 10019
Executive Officers Who Are Not Directors
- ----------------------------------------
Name Principal Occupation Address
Samuel L. Katz President and Treasurer of Cendant Corporation
Acquirer; Senior Executive Vice 9 West 57th Street
President; Chairman and Chief New York, NY 10019
Executive Officer, Travel
Distribution Services Division
and Co-Chairman, Marketing
Services Division of Cendant
Ronen Stauber Executive Vice President of Cendant Corporation
Acquirer; Executive Vice 9 West 57th Street
President and Chief Strategic New York, NY 10019
Officer, Travel Distribution
Services Division of Cendant
Eric J. Bock Executive Vice President and Cendant Corporation
Secretary of Acquirer; Executive 9 West 57th Street
Vice President, Law and Corporate New York, NY 10019
Secretary of Cendant
Marius Nasta Senior Vice President of Cendant Europe Ltd
Acquirer; Senior Vice President, Landmark House
Legal and General Counsel Cendant Hammersmith Bridge Road
EMEA London, W6 9EJ, England
12 of 12
Exhibit 1
Dated: 2 December 2004
CENDANT CORPORATION
CENDANT UK ACQUISITION CORPORATION
-and-
EBOOKERS PLC
_______________________
MERGER AGREEMENT
_______________________
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank Street
Canary Wharf
London E14 5DS
THIS AGREEMENT is made the 2nd day of December 2004.
BETWEEN:
(1) CENDANT CORPORATION, a Delaware corporation whose address is at 9
West 57th Street New York, NY ("Cendant");
(2) CENDANT UK ACQUISITION CORPORATION, a Delaware corporation whose
address is at 2711 Centerville Road, Suite 400, City of Wilmington,
County 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
25 Farringdon Street, London EC4A 4AB ("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 Act 1985, as amended;
"Advisers" in relation to Cendant means Citigroup and
Skadden Arps Slate Meagher & Flom (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 pence 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 Peter Cochrane 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;
"Dhamija Option Agreement" the option agreement dated 2 October 2002
between Mr Dhamija and ebookers;
"Dhamija Compromise Agreement" the agreement to be entered into between
ebookers and Mr Dinesh Dhamija 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 pence 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 pence 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 Jeffrey 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;
"Talwar Option Agreement" the option agreement dated 21 October 1999
between Mr. Talwar 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 Act 2000;
"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 "pence" 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
Dhamija Option Agreement and the terms of the Talwar 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) Dinesh Dhamija in accordance with the terms of the
Dhamija Option Agreement that the unexercised
options issued to Mr Dhamija pursuant to the
Dhamija Option Agreement will lapse at the end of
the relevant exercise period, as defined in the
Dhamija Option Agreement;
(C) Sanjiv Talwar in accordance with the terms of the
Talwar Option Agreement, that the unexercised
options issued to Mr Talwar pursuant to the Talwar
Option Agreement will lapse at the end of the
relevant exercise period, as defined in the Talwar
Option Agreement;
(D) Peter Cochrane in accordance with the Rules that
all unexercised options granted to Mr Cochrane
pursuant to the Cochrane Option will lapse at the
end of the relevant exercise period, as defined in
the Rules; and
(E) Jeffrey 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 Dhamija 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 Yashish Dahiya, Dhruv Shringi,
Bhupender Singh, Gilles Despas, Helen O'Byrne, Ranjan Singh, Elaine
Burrough, Chris Sherlock, Simon Powell, Kevin Hall, William Scott,
Mark Reid and Prashant Sahni (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 Sam Katz, Ronen Stauber, Stan Sandberg, Neal Sunners, Marius Nasta
and Gordon Wilson (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: +44 208 762 6631
Attention: General Counsel - Cendant Europe
Cendant Bidco: +44 208 762 6631
Attention: General Counsel - Cendant Europe
ebookers: +44 (0)20 7489 2207
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) Act 1999 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, Goldman Sachs Securities Nominees Limited, James
Capel Nominees Limited and Salomon Smith Barney.
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 Dhamija
Option Agreement, the Sampler Option Agreement, the Cochrane Option
Agreement or the Talwar 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 Dhamija
Option Agreement, the Sampler Option Agreement, the Cochrane Option
Agreement or the Talwar 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
DHAMIJA COMPROMISE AGREEMENT
WITHOUT PREJUDICE
AND SUBJECT TO CONTRACT
DATED 200_
(1) EBOOKERS PLC
and
(2) DINESH DHAMIJA
-------------------------------------------
COMPROMISE AGREEMENT
-------------------------------------------
Russell House
1550 Parkway
Solent Business Park
Whiteley Fareham
Hampshire PO15 7AG
Tel: 08700 866800
Fax: 08700 866801
E-Mail: solent@shoosmiths.co.uk
Ref. HJD
THIS AGREEMENT is made the day of 200_
between:--
1. ebookers Plc (registered no: 3818962) whose registered office is at 25
Farringdon Street, London EC4A 4AB ("the Company"); and
2. Dinesh Dhamija 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 Act 1985 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 Act 1996;
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 Act 1996, Section 77(4A) Sex Discrimination
Act 1975, Section 72 (4A) Race Relations Act 1976, Section 288 (2B) Trade
Union and Labour Relations (Consolidation) Act 1992, Section 9(3) Disability
Discrimination Act 1995, Section 35(3) Working Time Regulations 1998 and
Section 49(4) National Minimum Wage Act 1998, (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) Act 1999, 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 Dinesh Dhamija )
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]
Exhibit 2
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(b) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(c) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(d) I have full power and authority to enter into this undertaking and to
perform the obligations under it.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months from the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any shares or securities in ebookers issued or
unconditionally allotted to me or otherwise acquired by me before then
(Further ebookers Shares) other than pursuant to the Scheme, or my
acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, any Further
ebookers Shares; or
(iii) which, in relation to any Further ebookers Shares, would or
might restrict or impede me voting in favour of the Scheme, or
accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part A of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, I undertake to Cendant to attend
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to any Further
ebookers Shares in favour of the Scheme at the Court Meeting and in accordance
with the directions of Cendant on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 18 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than two
days after the date I become the registered holder of the Further
ebookers Shares;
(b) I shall accept any proposal made by Cendant to holders of options over
ebookers shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred to
in Part A of Schedule 1 (and any other options in respect of ebookers
shares which may be granted to me) not later than seven days after
Cendant posts the formal document containing such offer, in each case
to the extent that the same have not lapsed or been exercised;
(c) I shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire any Further ebookers Shares from me free of any
lien, charge, option, equity or encumbrance and together with all
rights of any nature attaching to those shares including the right to
all dividends declared or paid after the date of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to any Further ebookers Shares on
a Relevant Resolution (as defined in paragraph 8) only in accordance
with Cendant's directions; and
(b) I shall exercise the rights attaching to any Further ebookers Shares
to requisition or join in requisitioning any general or class meeting
of ebookers for the purposes of considering a Relevant Resolution and
to require ebookers pursuant to section 376 Companies Act 1985 to give
notice of such a resolution only in accordance with Cendant's
directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by
Cendant appointing any person nominated by Cendant to attend and vote
at the Court Meeting, the EGM or at any other relevant general meeting
of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
me substantially in the form and context in which they appear in the
attached draft. I further consent to the issue of a press announcement
in relation to an Offer (the Offer Press Announcement) in accordance
with the requirements of Rule 2.5 of the Code incorporating references
(if any) to me substantially in the form and context in which they
appear in the Scheme Press Announcement, subject to such amendments as
Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
11. I undertake to enter into a compromise agreement with ebookers in or
substantially in the form set out in Appendix II hereto prior to the Scheme
becoming effective, such agreement to be conditional on the Scheme becoming
effective or the Offer, if made, being declared unconditional in all respects.
Secrecy
12. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
13. I understand that the information you have given to me in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
14. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
15. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally fixed or
as extended, time shall be of the essence.
Lapse
16. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
17. I acknowledge that nothing in this letter obliges Cendant to agree to
the despatch of the Circular or the despatch of the Offer Document if it is not
required to do so by the Panel and that if this undertaking lapses I shall have
no claim against Cendant.
18. Subject to paragraph 19, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
19. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
20. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40% per cent. of the issued share capital of ebookers, or such
lesser percentage as Cendant may determine by 1.00 p.m. on 2 December
2004 (or such later time and/or date as Cendant may determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
21. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code, I
shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or fails
to become effective or the Offer, if made, lapses or is withdrawn by
Cendant, not allot (except pursuant to existing obligations disclosed
in writing to Cendant prior to the date hereof), or grant options
over, any shares in the capital of ebookers nor issue any debt or
other securities convertible into shares in the capital of ebookers or
knowingly agree to do any of the foregoing or knowingly take any other
action likely to result in a breach of any condition of the Scheme or
the Offer or be prejudicial to the successful implementation of the
Scheme or the Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of ebookers,
approve the registration of all transfers of shares made pursuant to
the Offer (subject to the same being duly stamped and otherwise
satisfying the requirements imposed in the Articles of Association of
ebookers) and comply with such reasonable requests as Cendant may make
with respect to any other steps to be undertaken by the board of
directors of ebookers as are necessary to give effect to the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially adverse
to the interests of ebookers or unduly and materially disruptive to
the operation of ebookers's business;
(j) cause the business of ebookers and each of its subsidiary undertakings
(collectively, the ebookers Group) to be carried on in the ordinary
and usual course and in particular do not and do not propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the ebookers
Group;
(ii) alter the authorised or allotted or issued share capital of any
member of the ebookers Group or grant any options or rights over
shares, save in respect of options under ebookers Share Option
Schemes and ebookers Individual Option Arrangements (as defined
in the Scheme Press Announcement);
(iii) declare or pay any dividend or make any other distribution or
return of capital; or
(iv) undertake any commitment or enter into any contract or acquire
or dispose of any assets, liabilities or businesses otherwise
than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors of
ebookers of anyone nominated by Cendant and, subject to ebookers
entering into a compromise agreement with me in or substantially in
the form set out in Appendix II hereto, if required by Cendant, I
shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under ebookers
Share Option Scheme (the Option Scheme) in accordance with the
rules of the Option Scheme (the Rules) that all unexercised
ebookers Options will lapse at the end of the relevant exercise
period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and ebookers
(the Dhamija Option Agreement) that the unexercised options
issued to Mr Dhamija pursuant to the Dhamija Option Agreement
will lapse at the end of the relevant exercise period, as
defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and ebookers
(the Talwar Option Agreement) that the unexercised options
issued to Mr Talwar pursuant to the Talwar Option Agreement will
lapse at the end of the relevant exercise period, as defined in
the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all unexercised
ebookers Options granted to him on 25 October 1999 will lapse at
the end of the relevant exercise period, as defined in the
Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January 2001
will lapse at the end of the relevant exercise period, as
defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr Dhamija,
Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as soon as
permissible in accordance with, and to comply with the applicable
requirements of, the Rules, the terms of the Dhamija Option Agreement
and the terms of the Talwar Option Agreement as the case may be.
22. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the Scheme
or the Offer or which would or might have the effect of preventing any
of the terms or conditions of the Scheme or the Offer from being
fulfilled (and in particular, but without limitation, I shall comply
with General Principle 7 and Rule 21 of the Code).
23. I shall promptly inform you of any approach by a third party which may
lead to an offer for ebookers or the occurrence of any matter referred to above
and will keep you fully informed of the same.
24. To the best of my knowledge, information and belief having made all
reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
25. I confirm that in signing this letter I am not a client or customer of
Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. I confirm that I have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
26. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept the Offer in accordance with paragraphs 5(a) or
5(b) or if I fail to accept the offer referred to in paragraph 5(d) in
accordance with that paragraph, in my name and on my behalf to do all
things and to execute all deeds and other documents as may be
necessary or desirable to accept such offers in respect of any Further
ebookers Shares and the options referred to in paragraph 5(d) (as
appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
27. I agree that this power of attorney is given by way of security and is
irrevocable in accordance with section 4 Powers of Attorney Act 1971 until the
earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if made,
being declared unconditional in all respects, (iii) an Offer, if made, lapsing
or being withdrawn by Cendant and (iv) the expiry of the period of three months
of the date on which the Scheme fails to become effective or any condition to
which the Scheme is subject becomes incapable of satisfaction and is not
waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
28. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
29. I agree that, if I fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of my
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
30. This undertaking shall be governed by and construed in accordance with
English law and I submit to the exclusive jurisdiction of the English courts
for all purposes in connection with this undertaking.
SCHEDULE 1
EXISTING SHARES
PART A - Rights to acquire Offeree securities (including options)
Holder Type of securities
Dinesh Dhamija Option over such number of Ordinary Shares of 14p each
ebookers Shares as
represents (on the day prior
to the date of exercise) 5%
of the ordinary share
capital of the Company. (per
option agreement dated 2
October 2002)
Dinesh Dhamija Option over 87,336 ebookers Ordinary Shares of 14p each
Shares granted 29 January
2003
PART B - Dealings
10 May 2004 Waiver of Options over 262,008 Ordinary Shares granted 29 January
2003.
APPENDIX I
Scheme Press Announcement
APPENDIX II
Compromise Agreement
SIGNED and DELIVERED as a DEED by Dinesh Dhamija
Yours faithfully,
Signature...................
Name.........................
in the presence of:
Signature of witness:.........................
Name ..............................................
Address ............................................
Exhibit 3
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). We
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which we will exercise the votes
attaching to the shares in ebookers of which we are custodian in favour of the
Scheme at any relevant meeting of the members of ebookers or, if an Offer is
made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. We represent and warrant to Cendant that:
(a) as at the date of this letter, we are the registered holder of the
number of ordinary shares of 14p each in the capital of ebookers and
the number of American Depositary Shares (each representing two
ordinary shares of 14p each in the capital of ebookers) shown in Part
A of Schedule 1 (the ebookers Shares);
(b) during the period of our custody of the ebookers Shares we have not
entered into any lien, charge, option, equity or encumbrance in
relation to the ebookers Shares;
(c) the information set out in Schedule 1 regarding the securities of
ebookers in our custody is complete and accurate as at the date of
this letter;
(d) we have full power and authority to enter into this undertaking;
(e) we have entered into this undertaking in accordance with the
instruction received from the beneficial owner of the ebookers Shares
(the "Beneficial Owner") dated 2 December 2004 (the "Instruction").
Dealings
2. We undertake to Cendant that, unless otherwise directed by the
Beneficial Owner and subject to the Beneficial Owner's compliance in full with
the undertakings and other provisions contained in the Instruction, before the
earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if
made, being declared unconditional in all respects, (iii) an Offer, if made,
lapsing or being withdrawn by Cendant and (iv) the expiry of the period of
three months from the date on which the Scheme fails to become effective or
any condition to which the Scheme is subject becomes incapable of satisfaction
and is not waived, if, in such period Cendant has not announced an Offer, we
shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of the ebookers Shares other than pursuant to the Scheme, or
our acceptance of the Offer, if made;
(b) accept any other offer in respect of the ebookers Shares; or
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement to do any of the acts referred to in paragraphs (a) or
(b);
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, unless otherwise directed by the
Beneficial Owner and subject to the Beneficial Owner's compliance in full with
the undertakings and other provisions contained in the Instruction, we
undertake to Cendant to attend, (either in person or by proxy) any meeting of
ebookers' shareholders convened by order of the Court pursuant to section 425
of the Act to consider and, if thought fit, approve the Scheme (the Court
Meeting) and any extraordinary general meeting of ebookers convened in order
to consider and, if thought fit, approve measures required to implement the
Scheme (the EGM) and, from the time the Scheme is announced until the Scheme
becomes effective or is withdrawn, will exercise the votes attaching to the
ebookers Shares in favour of the Scheme at the Court Meeting and in accordance
with the directions of the Beneficial Owner on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result
of any condition of the Scheme or otherwise or which, if passed, would result
in any condition of the Scheme not being fulfilled or which might reasonably
be expected to impede or frustrate the Scheme in any way. Resolutions to
adjourn the Court Meeting or the EGM and a resolution to amend a Relevant
Scheme Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, unless otherwise directed by the Beneficial Owner and subject to the
Beneficial Owner's compliance in full with the undertakings and other
provisions contained in the Instruction, we undertake that if an Offer is
made:
(a) we shall accept the Offer in respect of the ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than
three days after Cendant posts the Offer Document to ebookers
shareholders; and
(b) we shall not withdraw any acceptances of the Offer.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn,
unless otherwise directed by the Beneficial Owner and subject to the
Beneficial Owner's compliance in full with the undertakings and other
provisions contained in the Instruction:
(a) we shall exercise the votes attaching to the ebookers Shares on a
Relevant Resolution (as defined in paragraph 8) only in accordance
with the Beneficial Owner's directions; and
(b) we shall exercise the rights attaching to the ebookers Shares to
requisition or join in requisitioning any general or class meeting of
ebookers for the purposes of considering a Relevant Resolution and to
require ebookers pursuant to section 376 Companies Act 1985 to give
notice of such a resolution only in accordance with the Beneficial
Owner's directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, unless otherwise directed by the Beneficial Owner and
subject to the Beneficial Owner's compliance in full with the undertakings and
other provisions contained in the Instruction, we shall execute any form of
proxy required by the Beneficial Owner appointing any person nominated by the
Beneficial Owner to attend and vote at the Court Meeting, the EGM or at any
other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. We consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to
any amendments that may be agreed between Cendant and ebookers or as
may be required to comply with the requirements of any relevant
authority (the Scheme Press Announcement) incorporating references
(if any) to us substantially in the form and context in which they
appear in the attached draft. We further consent to the issue of a
press announcement in relation to an Offer (the Offer Press
Announcement) in accordance with the requirements of Rule 2.5 of the
Code incorporating references (if any) to us substantially in the
form and context in which they appear in the Scheme Press
Announcement, subject to such amendments as Cendant may deem
necessary or appropriate;
(b) particulars of this irrevocable undertaking being contained in the
circular to be issued by ebookers to its shareholders containing,
inter alia, the Scheme (the Circular) and the Offer Document, if any,
and any other related or ancillary document as required by the Code;
and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end
of the offer period (as defined in the Code).
10. We shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body.
We shall immediately notify you in writing of any material change in the
accuracy or impact of any information previously given to you.
Secrecy
11. We shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that we may disclose the same to the Beneficial Owner and its
advisers. The obligations in this paragraph shall survive termination of this
undertaking.
12. We understand that the information you have given to us in relation
to the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time we will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to
the FSMA) which would amount to market abuse for the purposes of section 118
of the FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which
the Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or
revised offer or offers on behalf of Cendant, provided that such new,
increased or revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period
originally fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or
being declared unconditional in all respects.
16. We acknowledge that nothing in this letter obliges Cendant to agree
to the despatch of the Circular or despatch of the Offer Document if it is not
required to do so by the Panel and that if this undertaking lapses we shall
have no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction
and, if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement
is at the absolute discretion of Cendant. In particular, Cendant
reserves the right not to release the Offer Press Announcement unless
the board of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect
of shares in the capital of ebookers that represent in aggregate not
less than 40 per cent. of the issued share capital of ebookers, or
such lesser percentage as Cendant may determine 1.00 p.m. on 2
December 2004 (or such later time and/or date as Cendant may
determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Confirmation
20. We confirm that in signing this letter we are not a client or
customer of Citigroup for the purposes of the Conduct of Business Sourcebook
of the Financial Services Authority and that Citigroup is acting for Cendant
in connection with the Scheme and the Offer, if any, and no-one else and is
not responsible to anyone other than Cendant for providing the protections
afforded to its customers nor for providing advice in relation to the Scheme
or the Offer, if any. We confirm that we have been given an adequate
opportunity to consider whether or not to give this undertaking and to obtain
independent advice.
Specific Performance
21. We agree that, if we fail to vote or appoint a proxy as herein
provided or to accept the Offer in accordance with this undertaking or breach
any of our obligations, damages would not be an adequate remedy and that an
order for specific performance would be an essential element of any adequate
remedy for such failure or breach.
Governing Law
22. This undertaking shall be governed by and construed in accordance
with English law and we submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
Schedule 1
Existing Shares
Part A - Registered Holdings of ebookers Shares
Registered Holder Beneficial Owner ebookers Shares of 14p each
(if different)
Goldman Sachs Securities Flightbookers 26,414,136 ebookers Shares
(Nominees), Limited A/C SEG Investments Limited and
285,782 American Depositary
Shares (representing 571,564
ebookers Shares of 14p each)
APPENDIX I
Scheme Press Announcement
EXECUTED and DELIVERED )
as a DEED by GOLDMAN SACHS )
SECURITIES (NOMINEES), LIMITED )
A/C SEG acting by two directors/a )
director and the secretary: )
Exhibit 4
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
1 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). We
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which we will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which we have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. We represent and warrant to Cendant that:
(a) Goldman Sachs Securities Nominees Limited is the registered holder of
the number of ordinary shares of 14p each in the capital of ebookers
and the number of American Depositary Shares (each representing two
ordinary shares of 14p each in the capital of ebookers) shown in Part
A of Schedule 1;
(b) we are the beneficial owner of the number of ordinary shares of 14p
each in the capital of ebookers and the number of American Depositary
Shares (each representing two ordinary shares of 14p each in the
capital of ebookers) shown in Part A of Schedule 1 (the Beneficial
Shares) and that we hold these free of any lien, charge, option,
equity or encumbrance;
(c) the information set out in Schedule 1 regarding the securities of
ebookers in which we are interested is complete and accurate;
(d) Schedule 1 contains complete and accurate details of the dates of all
dealings by us in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(e) we have full power and authority to enter into this undertaking and to
perform the obligations under it.
Dealings
2. We undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months from the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, we shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any Beneficial Shares or any other shares or securities in
ebookers issued or unconditionally allotted to us or otherwise
acquired by me before then (Further ebookers Shares) other than
pursuant to the Scheme, or our acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the Beneficial
Shares or any Further ebookers Shares; or
(iii) which, in relation to the Beneficial Shares or any Further
ebookers Shares, would or might restrict or impede us voting in
favour of the Scheme, or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, we undertake to Cendant, or, in the
case of the Beneficial Shares, procure the attendance of the registered holder
thereof, to attend (either in person or by proxy) any meeting of ebookers'
shareholders convened by order of the Court pursuant to section 425 of the Act
to consider and, if thought fit, approve the Scheme (the Court Meeting) and any
extraordinary general meeting of ebookers convened in order to consider and, if
thought fit, approve measures required to implement the Scheme (the EGM) and,
from the time the Scheme is announced until the Scheme becomes effective or is
withdrawn, will exercise and procure the exercise of the votes attaching to the
Beneficial Shares and any Further ebookers Shares in favour of the Scheme at
the Court Meeting and in accordance with the directions of Cendant on any
Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, we undertake that if an Offer is made:
(a) we shall cause the registered holder of the Beneficial Shares to
accept the Offer in accordance with the procedure for acceptance set
out in the formal document containing the Offer (the Offer Document)
not later than three days after Cendant posts the Offer Document to
ebookers shareholders;
(b) we shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date we become the
registered holder of any Further ebookers Shares;
(c) we shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire the Beneficial Shares and any Further ebookers
Shares from us free of any lien, charge, option, equity or encumbrance
and together with all rights of any nature attaching to those shares
including the right to all dividends declared or paid after the date
of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) we shall exercise the votes attaching to any Further ebookers Shares
on a Relevant Resolution (as defined in paragraph 8) only in
accordance with Cendant's directions;
(b) we shall exercise the rights attaching to any Further ebookers Shares
to requisition or join in requisitioning any general or class meeting
of ebookers for the purposes of considering a Relevant Resolution and
to require ebookers pursuant to section 376 Companies Act 1985 to give
notice of such a resolution only in accordance with Cendant's
directions; and
(c) we shall cause the registered holder of any Beneficial Shares to
comply with paragraphs 6(a) and 6(b).
7. For the purpose of voting on a Relevant Resolution or a Relevant Scheme
Resolution, we shall execute any form of proxy required by Cendant appointing
any person nominated by Cendant to attend and vote at the Court Meeting, the
EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. We consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
us substantially in the form and context in which they appear in the
attached draft. We further consent to the issue of a press
announcement in relation to an Offer (the Offer Press Announcement) in
accordance with the requirements of Rule 2.5 of the Code incorporating
references (if any) to us substantially in the form and context in
which they appear in the Scheme Press Announcement, subject to such
amendments as Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and our holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. We shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body.
We shall immediately notify you in writing of any material change in the
accuracy or impact of any information previously given to you.
Secrecy
11. We shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that we may disclose the same to ebookers and its advisers in which
case we will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. We understand that the information you have given to us in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time we will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally fixed or
as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
16. We acknowledge that nothing in this letter obliges Cendant to agree
to the despatch of the Circular or despatch of the Offer Document if it is not
required to do so by the Panel and that if this undertaking lapses we shall
have no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40 per cent. of the issued share capital of ebookers, or such
lesser percentage as the Cendant may determine by 1.00 p.m. on 2
December 2004 (or such later time and/or date as Cendant may
determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Confirmation
20. We confirm that in signing this letter we are not a client or customer
of Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. We confirm that we have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
21. In order to secure the performance of our obligations under this
undertaking, we hereby unconditionally and irrevocably appoint any director of
Cendant as our attorney:
(a) if we fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a) or 5(b) or if we fail to accept the
offer referred to in paragraph 5(d) in accordance with that paragraph,
in our name and on our behalf to do all things and to execute all
deeds and other documents as may be necessary or desirable to accept
such offers in respect of the Beneficial Shares and any Further
ebookers Shares (as appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
22. We agree that this power of attorney is given by way of security and
is irrevocable in accordance with section 4 Powers of Attorney Act 1971 until
the earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if
made, being declared unconditional in all respects, (iii) an Offer, if made,
lapsing or being withdrawn by Cendant and (iv) the expiry of the period of
three months of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of satisfaction and
is not waived, if, in such period Cendant has not announced an Offer.
Specific Performance
23. We agree that, if we fail to vote or appoint a proxy as herein
provided or to accept the Offer in accordance with this undertaking or breach
any of our obligations, damages would not be an adequate remedy and that an
order for specific performance would be an essential element of any adequate
remedy for such failure or breach.
Governing Law
24. This undertaking shall be governed by and construed in accordance
with English law and we submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
Schedule 1
Existing Shares
Part A - Beneficial Holdings of ebookers Shares
Registered Holder Beneficial Owner Ordinary Shares of 14p each
- ----------------- ---------------- ---------------------------
Goldman Sachs Securities Flightbookers Investments 26,985,700 ebookers Shares
Nominees Limited A/C SEG Limited (including 285,782 American
Depositary Shares)
Part B - Dealings
Nil
APPENDIX I
Scheme Press Announcement
EXECUTED and DELIVERED )
as a DEED by DAN BURT )
as attorney for FLIGHTBOOKERS )
INVESTMENTS LIMITED )
Witness - Signature:
Name:
Address:
Exhibit 5
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) I am the registered holder and beneficial owner of the number of
ordinary shares of 14p each in the capital of ebookers shown in Part A
of Schedule 1 (the ebookers Shares) and that I hold these free of any
lien, charge, option, equity or encumbrance;
(b) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(c) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(d) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(e) I have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of the ebookers Shares.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any ebookers Shares or any other shares or securities in
ebookers issued or unconditionally allotted to me or otherwise
acquired by me before then (Further ebookers Shares) other than
pursuant to the Scheme, or my acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the ebookers
Shares or any Further ebookers Shares; or
(iii) which, in relation to the ebookers Shares or any Further
ebookers Shares, would or might restrict or impede me voting
in favour of the Scheme, or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part C of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, I undertake to Cendant to attend
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to the ebookers
Shares and any Further ebookers Shares in favour of the Scheme at the Court
Meeting and in accordance with the directions of Cendant on any Relevant Scheme
Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of the ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than
three days after Cendant posts the Offer Document to ebookers
shareholders;
(b) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date I become the
registered holder of the Further ebookers Shares;
(c) I shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire the ebookers Shares and any Further ebookers
Shares from me free of any lien, charge, option, equity or encumbrance
and together with all rights of any nature attaching to those shares
including the right to all dividends declared or paid after the date
of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to my ebookers Shares and any
Further ebookers Shares on a Relevant Resolution (as defined in
paragraph 8) only in accordance with Cendant's directions; and
(b) I shall exercise the rights attaching to my ebookers Shares and any
Further ebookers Shares to requisition or join in requisitioning any
general or class meeting of ebookers for the purposes of considering a
Relevant Resolution and to require ebookers pursuant to section 376
Companies Act 1985 to give notice of such a resolution only in
accordance with Cendant's directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
me substantially in the form and context in which they appear in the
attached draft. I further consent to the issue of a press announcement
in relation to an Offer (the Offer Press Announcement) in accordance
with the requirements of Rule 2.5 of the Code incorporating references
(if any) to me substantially in the form and context in which they
appear in the Scheme Press Announcement, subject to such amendments as
Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you may
reasonably require for the preparation of the Circular and the Offer Document,
if any, and all related and ancillary documents in order to comply with the
requirements of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body. I shall
immediately notify you in writing of any material change in the accuracy or
impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally fixed or
as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close
of business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to despatch
the Circular or the Offer Document if it is not required to do so by the Panel
and that if this undertaking lapses I shall have no claim against Cendant.
17. Subject to paragraph 19, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40 per cent. of the issued share capital of ebookers, or such
lesser percentage as Cendant may determine by 1.00 p.m. on 2 December
2004 (or such later time and/or date as Cendant may determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code, I
shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or fails
to become effective or the Offer, if made, lapses or is withdrawn by
Cendant, not allot (except pursuant to existing obligations disclosed
in writing to Cendant prior to the date hereof), or grant options
over, any shares in the capital of ebookers nor issue any debt or
other securities convertible into shares in the capital of ebookers or
knowingly agree to do any of the foregoing or knowingly take any other
action likely to result in a breach of any condition of the Scheme or
the Offer or be prejudicial to the successful implementation of the
Scheme or the Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of ebookers,
approve the registration of all transfers of shares made pursuant to
the Offer (subject to the same being duly stamped and otherwise
satisfying the requirements imposed in the Articles of Association of
ebookers) and comply with such reasonable requests as Cendant may make
with respect to any other steps to be undertaken by the board of
directors of ebookers as are necessary to give effect to the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially adverse
to the interests of ebookers or unduly and materially disruptive to
the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary undertakings
(collectively, the ebookers Group) to be carried on in the ordinary
and usual course and in particular do not and do not propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution or
return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors of
ebookers of anyone nominated by Cendant and, if required by Cendant, I
shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January 2001
will lapse at the end of the relevant exercise period, as
defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr Dhamija,
Mr Talwar, Mr Cochrane and Mr Sampler, as the case may be, as soon as
permissible in accordance with, and to comply with the applicable
requirements of, the Rules, the terms of the Dhamija Option Agreement
and the terms of the Talwar Option Agreement, as the case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the Scheme
or the Offer or which would or might have the effect of preventing any
of the terms or conditions of the Scheme or the Offer from being
fulfilled (and in particular, but without limitation, I shall comply
with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which may
lead to an offer for ebookers or the occurrence of any matter referred to above
and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made all
reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or customer of
Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. I confirm that I have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a) or 5(b) or if I fail to accept the
offer referred to in paragraph 5(d) in accordance with that paragraph,
in my name and on my behalf to do all things and to execute all deeds
and other documents as may be necessary or desirable to accept such
offers in respect of the ebookers Shares, any Further ebookers Shares
and the options referred to in paragraph 5(d) (as appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security and is
irrevocable in accordance with section 4 Powers of Attorney Act 1971 until the
earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if made,
being declared unconditional in all respects, and (iii) an Offer, if made,
lapsing or being withdrawn by Cendant and (iv) the expiry of the period of
three months of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of satisfaction and
is not waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of my
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance with
English law and I submit to the exclusive jurisdiction of the English courts
for all purposes in connection with this undertaking.
SCHEDULE I
EXISTING SHARES
PART A - Registered Holdings of ebookers Shares
Registered Holder Beneficial Owner Ordinary Shares of
(if different) 14p each
David Gill 1,189
PART B - Rights to acquire ebookers securities (including options)
Under the terms of D Gill's letter of Appointment dated 7 April 2003, Ordinary
Shares of 14p each to the value of (pound)3,250 would be subscribed for by him
on the third working day after the release to the market of the Company's
Annual results. The number of the shares at the point of subscription is to be
calculated at the average quoted share price over 2004.
Under the terms of D Gill's Letter of Appointment dated 13 October 2004, he is
entitled to subscribe for 5,000 Ordinary Shares of 14p each in two tranches of
2,500 on the first and second anniversaries of the effective date of his
appointment, being 1 July 2004. If the appointment is terminated the
entitlement to receive Shares will lapse, except that if the Company terminates
the appointment the issue of Shares will be pro-rated to the date of
termination.
PART C - Dealings
2 April 2004: As above - allotment of 1,189 Ordinary Shares of 14p each in
accordance with Letter of Appointment.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by DAVID GILL )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 6
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). We
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which we will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which we have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. We represent and warrant to Cendant that:
(a) we are the registered holder of the number of ordinary shares of 14p
each in the capital of ebookers shown in Part A of Schedule 1 (the
ebookers Shares) and that we hold these free of any lien, charge,
option, equity or encumbrance;
(b) the information set out in Schedule 1 regarding the securities of
ebookers in which we are interested is complete and accurate;
(c) Schedule 1 contains complete and accurate details of the dates of all
dealings by us in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(d) we have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of the ebookers Shares.
Dealings
2. We undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, we shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any ebookers Shares or any other shares or securities in
ebookers issued or unconditionally allotted to us or otherwise
acquired by me before then (Further ebookers Shares) other than
pursuant to the Scheme, or our acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the ebookers
Shares or any Further ebookers Shares; or
(iii) which, in relation to the ebookers Shares or any Further
ebookers Shares, would or might restrict or impede us voting
in favour of the Scheme, or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, we undertake to Cendant to attend,
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to the ebookers
Shares and any Further ebookers Shares in favour of the Scheme at the Court
Meeting and in accordance with the directions of Cendant on any Relevant Scheme
Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, we undertake that if an Offer is made:
(a) we shall accept the Offer in respect of the ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than
three days after Cendant posts the Offer Document to ebookers
shareholders;
(b) we shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date we become the
registered holder of the Further ebookers Shares;
(c) We shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire the ebookers Shares and any Further ebookers
Shares from us free of any lien, charge, option, equity or encumbrance
and together with all rights of any nature attaching to those shares
including the right to all dividends declared or paid after the date
of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) we shall exercise the votes attaching to the ebookers Shares and any
Further ebookers Shares on a Relevant Resolution (as defined in
paragraph 8) only in accordance with Cendant's directions; and
(b) we shall exercise the rights attaching to the ebookers Shares and any
Further ebookers Shares to requisition or join in requisitioning any
general or class meeting of ebookers for the purposes of considering a
Relevant Resolution and to require ebookers pursuant to section 376
Companies Act 1985 to give notice of such a resolution only in
accordance with Cendant's directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, we shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. We consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
us substantially in the form and context in which they appear in the
attached draft. We further consent to the issue of a press
announcement in relation to an Offer (the Offer Press Announcement) in
accordance with the requirements of Rule 2.5 of the Code incorporating
references (if any) to us substantially in the form and context in
which they appear in the Scheme Press Announcement, subject to such
amendments as Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and our holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. We shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. We
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. We shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that we may disclose the same to ebookers and its advisers in which
case we will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. We understand that the information you have given to us in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time we will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally fixed or
as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
16. We acknowledge that nothing in this letter obliges Cendant to agree to
the despatch of the Circular or the despatch of the Offer Document if it is not
required to do so by the Panel and that if this undertaking lapses we shall
have no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40 per cent. of the issued share capital of ebookers, or such
lesser percentage as Cendant may determine by 1.00 p.m. on 2 December
2004 (or such later time and/or date as Cendant may determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Confirmation
20. We confirm that in signing this letter we are not a client or customer
of Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. We confirm that we have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
21. In order to secure the performance of our obligations under this
undertaking, we hereby unconditionally and irrevocably appoint any director of
Cendant as our attorney:
(a) if we fail to accept the Offer in accordance with paragraphs 5(a) or
5(b) or if we fail to accept the offer referred to in paragraph 5(d)
in accordance with that paragraph, in our name and on our behalf to do
all things and to execute all deeds and other documents as may be
necessary or desirable to accept such offers in respect of the
ebookers Shares and any Further ebookers Shares (as appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
22. We agree that this power of attorney is given by way of security and
is irrevocable in accordance with section 4 Powers of Attorney Act
1971 until the earliest to occur of (i) the Scheme becoming effective,
(ii) an Offer, if made, being declared unconditional in all respects,
and (iii) an Offer, if made, lapsing or being withdrawn by Cendant and
(iv) the expiry of the period of three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme
is subject becomes incapable of satisfaction and is not waived, if, in
such period Cendant has not announced an Offer.
Specific Performance
23. We agree that, if we fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of our
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
24. This undertaking shall be governed by and construed in accordance with
English law and we submit to the exclusive jurisdiction of the English courts
for all purposes in connection with this undertaking.
SCHEDULE I
EXISTING SHARES
PART A - Registered Holdings of ebookers Shares
Registered Holder Beneficial Owner Ordinary Shares
(if different) of 14p each
James Capel Nominees Ltd Mr J.S. and Mrs A.E. 14,250
Donaldson
PART B - Dealings
Nil
APPENDIX I
Scheme Press Announcement
EXECUTED and DELIVERED )
as a DEED by JAMES CAPEL )
NOMINEES LTD acting by )
two directors/a director and the secretary: )
Exhibit 7
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) I am the registered holder of the number of ordinary shares of 14p
each in the capital of ebookers shown in Part A of Schedule 1 (the
ebookers Shares) and that I hold these free of any lien, charge,
option, equity or encumbrance;
(b) I am the beneficial owner of the number of ordinary shares of 14p
each in the capital of ebookers shown in Part B of Schedule 1 (the
Beneficial Shares) and that I hold these free of any lien, charge,
option, equity or encumbrance;
(c) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(d) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(e) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the
prices and numbers of such shares dealt in during the period of 12
months prior to the date hereof; and
(f) I have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of the ebookers Shares.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared
unconditional in all respects, (iii) an Offer, if made, lapsing or being
withdrawn by Cendant and (iv) the expiry of the period of three months of the
date on which the Scheme fails to become effective or any condition to which
the Scheme is subject becomes incapable of satisfaction and is not waived, if,
in such period Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any ebookers Shares or any Beneficial Shares or any other
shares or securities in ebookers issued or unconditionally allotted
to me or otherwise acquired by me before then (Further ebookers
Shares) other than pursuant to the Scheme, or my acceptance of the
Offer, if made;
(b) accept any other offer in respect of the shares or securities
referred to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement
to be entered into or incur any obligation or permit any obligation
to arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the ebookers
Shares, the Beneficial Shares or any Further ebookers
Shares; or
(iii) which, in relation to the ebookers Shares, the Beneficial
Shares or any Further ebookers Shares, would or might
restrict or impede me voting in favour of the Scheme, or
accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject
to any condition or which is to take effect if the Scheme is
withdrawn, if the Offer closes or lapses or if this undertaking
ceases to be binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part C of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any
derivatives referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, I undertake to Cendant to attend, or,
in the case of the Beneficial Shares, procure the attendance of the registered
holder thereof, (either in person or by proxy) any meeting of ebookers'
shareholders convened by order of the Court pursuant to section 425 of the Act
to consider and, if thought fit, approve the Scheme (the Court Meeting) and
any extraordinary general meeting of ebookers convened in order to consider
and, if thought fit, approve measures required to implement the Scheme (the
EGM) and, from the time the Scheme is announced until the Scheme becomes
effective or is withdrawn, will exercise and procure the exercise of the votes
attaching to the ebookers Shares, the Beneficial Shares and any Further
ebookers Shares in favour of the Scheme at the Court Meeting and in accordance
with the directions of Cendant on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result
of any condition of the Scheme or otherwise or which, if passed, would result
in any condition of the Scheme not being fulfilled or which might reasonably
be expected to impede or frustrate the Scheme in any way. Resolutions to
adjourn the Court Meeting or the EGM and a resolution to amend a Relevant
Scheme Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of the ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than
three days after Cendant posts the Offer Document to ebookers
shareholders;
(b) I shall cause the registered holder of the Beneficial Shares to
accept the Offer in accordance with the procedure for acceptance set
out in the Offer Document not later than three days after Cendant
posts the Offer Document to ebookers shareholders;
(c) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date I become the
registered holder of the Further ebookers Shares;
(d) I shall accept any proposal made by Cendant to holders of options
over ebookers shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred
to in Part C of Schedule 1 (and any other options in respect of
ebookers shares which may be granted to me) not later than seven days
after Cendant posts the formal document containing such offer, in
each case to the extent that the same have not lapsed or been
exercised;
(e) I shall not withdraw any acceptances of the Offer and will cause the
registered holder of any Beneficial Shares not to do so; and
(f) Cendant shall acquire the ebookers Shares, the Beneficial Shares and
any Further ebookers Shares from me free of any lien, charge, option,
equity or encumbrance and together with all rights of any nature
attaching to those shares including the right to all dividends
declared or paid after the date of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to my ebookers Shares and any
Further ebookers Shares on a Relevant Resolution (as defined in
paragraph 8) only in accordance with Cendant's directions;
(b) I shall exercise the rights attaching to my ebookers Shares and any
Further ebookers Shares to requisition or join in requisitioning any
general or class meeting of ebookers for the purposes of considering
a Relevant Resolution and to require ebookers pursuant to section 376
Companies Act 1985 to give notice of such a resolution only in
accordance with Cendant's directions;
(c) I shall cause the registered holder of any Beneficial Shares to
comply with paragraphs 6(a) and 6(b).
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to
any amendments that may be agreed between Cendant and ebookers or as
may be required to comply with the requirements of any relevant
authority (the Scheme Press Announcement) incorporating references
(if any) to me substantially in the form and context in which they
appear in the attached draft. I further consent to the issue of a
press announcement in relation to an Offer (the Offer Press
Announcement) in accordance with the requirements of Rule 2.5 of the
Code incorporating references (if any) to me substantially in the
form and context in which they appear in the Scheme Press
Announcement, subject to such amendments as Cendant may deem
necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular)
and the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end
of the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to
the FSMA) which would amount to market abuse for the purposes of section 118
of the FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which
the Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or
revised offer or offers on behalf of Cendant, provided that such new,
increased or revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period
originally fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or
being declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to despatch
the Circular or the Offer Document if it is not required to do so by the Panel
and that if this undertaking lapses I shall have no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction
and, if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement
is at the absolute discretion of Cendant. In particular, Cendant
reserves the right not to release the Offer Press Announcement unless
the board of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect
of shares in the capital of ebookers that represent in aggregate not
less than 40 per cent. of the issued share capital of ebookers, or
such lesser percentage as Cendant may determine by 1.00 p.m. on 2
December 2004 (or such later time and/or date as Cendant may
determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code,
I shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or fails
to become effective or the Offer, if made, lapses or is withdrawn by
Cendant, not allot (except pursuant to existing obligations disclosed
in writing to Cendant prior to the date hereof), or grant options
over, any shares in the capital of ebookers nor issue any debt or
other securities convertible into shares in the capital of ebookers
or knowingly agree to do any of the foregoing or knowingly take any
other action likely to result in a breach of any condition of the
Scheme or the Offer or be prejudicial to the successful
implementation of the Scheme or the Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of
ebookers, approve the registration of all transfers of shares made
pursuant to the Offer (subject to the same being duly stamped and
otherwise satisfying the requirements imposed in the Articles of
Association of ebookers) and comply with such reasonable requests as
Cendant may make with respect to any other steps to be undertaken by
the board of directors of ebookers as are necessary to give effect to
the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially
adverse to the interests of ebookers or unduly and materially
disruptive to the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary
undertakings (collectively, the ebookers Group) to be carried on in
the ordinary and usual course and in particular do not and do not
propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution
or return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors
of ebookers of anyone nominated by Cendant and, if required by
Cendant, I shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision;
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January
2001 will lapse at the end of the relevant exercise period,
as defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr
Dhamija, Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as
soon as permissible in accordance with, and to comply with the
applicable requirements of, the Rules, the terms of the Dhamija
Option Agreement and the terms of the Talwar Option Agreement, as the
case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the
Scheme or the Offer or which would or might have the effect of
preventing any of the terms or conditions of the Scheme or the Offer
from being fulfilled (and in particular, but without limitation, I
shall comply with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which
may lead to an offer for ebookers or the occurrence of any matter referred to
above and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made all
reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or customer
of Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections
afforded to its customers nor for providing advice in relation to the Scheme
or the Offer, if any. I confirm that I have been given an adequate opportunity
to consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a), 5(b) or 5(c) or if I fail to accept
the offer referred to in paragraph 5(d) in accordance with that
paragraph, in my name and on my behalf to do all things and to
execute all deeds and other documents as may be necessary or
desirable to accept such offers in respect of the ebookers Shares,
the Beneficial Shares, any Further ebookers Shares and the options
referred to in paragraph 5(d) (as appropriate); and
(b) to execute any form of proxy required by Cendant appointing any
person nominated by Cendant to attend and vote in favour of the
Scheme at the Court Meeting or on a Relevant Scheme Resolution or a
Relevant Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security and
is irrevocable in accordance with section 4 Powers of Attorney Act 1971 until
the earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if
made, being declared unconditional in all respects, and (iii) an Offer, if
made, lapsing or being withdrawn by Cendant and (iv) the expiry of the period
of three months of the date on which the Scheme fails to become effective or
any condition to which the Scheme is subject becomes incapable of satisfaction
and is not waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of my
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
SCHEDULE 1
EXISTING SHARES
PART A - Registered Holdings of ebookers Shares
Registered Holder Beneficial Owner (if Ordinary Shares of
different) 14p each
John Donaldson 2,910
PART B - Beneficial Holdings of ebookers Shares
Registered Holder Beneficial Owner Ordinary Shares of
14p each
James Capel Nominees Ltd Mr J.S. and Mrs 14,250
A.E. Donaldson
PART C - Rights to acquire ebookers securities (including options)
Under the terms of J Donaldson's letter of Appointment dated 24 July 2002,
Ordinary Shares of 14p each to the value of (pound)3,250 would be subscribed
for by him. The number of the shares at the point of subscription is to be
calculated at the average quoted share price over 2004.
Under the terms of J Donaldson's Letter of Appointment dated 15 October 2004,
he is entitled to subscribe for 5,000 Ordinary Shares of 14p each in two
tranches of 2,500 on the first and second anniversaries of the effective date
of his appointment, being 1 July 2004. If the appointment is terminated the
entitlement to receive Shares will lapse, except that if the Company
terminates the appointment the issue of Shares will be pro-rated to the date
of termination.
PART D - Dealings
2 April 2004: As above - allotment of 1,613 Ordinary Shares of 14p each in
accordance with Letter of Appointment.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by JOHN DONALDSON )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 8
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(b) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(c) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the
prices and numbers of such shares dealt in during the period of 12
months prior to the date hereof; and
(d) I have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of any securities of ebookers held by me.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared
unconditional in all respects, (iii) an Offer, if made, lapsing or being
withdrawn by Cendant and (iv) the expiry of the period of three months of the
date on which the Scheme fails to become effective or any condition to which
the Scheme is subject becomes incapable of satisfaction and is not waived, if,
in such period Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any shares or securities in ebookers issued or
unconditionally allotted to me or otherwise acquired by me before
then (Further ebookers Shares) other than pursuant to the Scheme, or
my acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities
referred to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement
to be entered into or incur any obligation or permit any obligation
to arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, any Further
ebookers Shares; or
(iii) which, in relation to any Further ebookers Shares, would or
might restrict or impede me voting in favour of the Scheme,
or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject
to any condition or which is to take effect if the Scheme is
withdrawn, if the Offer closes or lapses or if this undertaking
ceases to be binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part A of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any
derivatives referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, I undertake to Cendant to attend,
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to any Further
ebookers Shares in favour of the Scheme at the Court Meeting and in accordance
with the directions of Cendant on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result
of any condition of the Scheme or otherwise or which, if passed, would result
in any condition of the Scheme not being fulfilled or which might reasonably
be expected to impede or frustrate the Scheme in any way. Resolutions to
adjourn the Court Meeting or the EGM and a resolution to amend a Relevant
Scheme Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than two
days after the date I become the registered holder of the Further
ebookers Shares;
(b) I shall accept any proposal made by Cendant to holders of options
over ebookers shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred
to in Part A of Schedule 1 (and any other options in respect of
ebookers shares which may be granted to me) not later than seven days
after Cendant posts the formal document containing such offer, in
each case to the extent that the same have not lapsed or been
exercised;
(c) I shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire any Further ebookers Shares from me free of any
lien, charge, option, equity or encumbrance and together with all
rights of any nature attaching to those shares including the right to
all dividends declared or paid after the date of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to any Further ebookers Shares
on a Relevant Resolution (as defined in paragraph 8) only in
accordance with Cendant's directions; and
(b) I shall exercise the rights attaching to any Further ebookers Shares
to requisition or join in requisitioning any general or class meeting
of ebookers for the purposes of considering a Relevant Resolution and
to require ebookers pursuant to section 376 Companies Act 1985 to
give notice of such a resolution only in accordance with Cendant's
directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to
any amendments that may be agreed between Cendant and ebookers or as
may be required to comply with the requirements of any relevant
authority (the Scheme Press Announcement) incorporating references
(if any) to me substantially in the form and context in which they
appear in the attached draft. I further consent to the issue of a
press announcement in relation to an Offer (the Offer Press
Announcement) in accordance with the requirements of Rule 2.5 of the
Code incorporating references (if any) to me substantially in the
form and context in which they appear in the Scheme Press
Announcement, subject to such amendments as Cendant may deem
necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular)
and the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end
of the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to
the FSMA) which would amount to market abuse for the purposes of section 118
of the FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which
the Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or
revised offer or offers on behalf of Cendant, provided that such new,
increased or revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period
originally fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or
being declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to despatch
the Circular or the Offer Document if it is not required to do so by
the Panel and that if this undertaking lapses I shall have no claim
against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction
and, if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement
is at the absolute discretion of Cendant. In particular, Cendant
reserves the right not to release the Offer Press Announcement unless
the board of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect
of shares in the capital of ebookers that represent in aggregate not
less than 40 per cent. of the issued share capital of ebookers, or
such lesser percentage as Cendant may determine by 1.00 p.m. on 2
December 2004 (or such later time and/or date as Cendant may
determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code,
I shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or the
Offer, if made, lapses or is withdrawn by Cendant, not allot (except
pursuant to existing obligations disclosed in writing to Cendant
prior to the date hereof), or grant options over, any shares in the
capital of ebookers nor issue any debt or other securities
convertible into shares in the capital of ebookers or knowingly agree
to do any of the foregoing or knowingly take any other action likely
to result in a breach of any condition of the Scheme or the Offer or
be prejudicial to the successful implementation of the Scheme or the
Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of
ebookers, approve the registration of all transfers of shares made
pursuant to the Offer (subject to the same being duly stamped and
otherwise satisfying the requirements imposed in the Articles of
Association of ebookers) and comply with such reasonable requests as
Cendant may make with respect to any other steps to be undertaken by
the board of directors of ebookers as are necessary to give effect to
the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially
adverse to the interests of ebookers or unduly and materially
disruptive to the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary
undertakings (collectively, the ebookers Group) to be carried on in
the ordinary and usual course and in particular do not and do not
propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution
or return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors
of ebookers of anyone nominated by Cendant and, if required by
Cendant, I shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January
2001 will lapse at the end of the relevant exercise period,
as defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr
Dhamija, Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as
soon as permissible in accordance with, and to comply with the
applicable requirements of, the Rules, the terms of the Dhamija
Option Agreement and the terms of the Talwar Option Agreement, as the
case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the
Scheme or the Offer or which would or might have the effect of
preventing any of the terms or conditions of the Scheme or the Offer
from being fulfilled (and in particular, but without limitation, I
shall comply with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which
may lead to an offer for ebookers or the occurrence of any matter referred to
above and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made all
reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or customer
of Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections
afforded to its customers nor for providing advice in relation to the Scheme
or the Offer, if any. I confirm that I have been given an adequate opportunity
to consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a) or 5(b) or if I fail to accept the
offer referred to in paragraph 5(d) in accordance with that
paragraph, in my name and on my behalf to do all things and to
execute all deeds and other documents as may be necessary or
desirable to accept such offers in respect of any Further ebookers
Shares and the options referred to in paragraph 5(d) (as
appropriate); and
(b) to execute any form of proxy required by Cendant appointing any
person nominated by Cendant to attend and vote in favour of the
Scheme at the Court Meeting or on a Relevant Scheme Resolution or a
Relevant Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security and
is irrevocable in accordance with section 4 Powers of Attorney Act 1971 until
the earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if
made, being declared unconditional in all respects, and (iii) an Offer, if
made, lapsing or being withdrawn by Cendant and (iv) the expiry of the period
of three months of the date on which the Scheme fails to become effective or
any condition to which the Scheme is subject becomes incapable of satisfaction
and is not waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of my
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
Schedule 1
Existing Shares
Part A - Rights to acquire ebookers securities (including options)
Holder Type of securities
Tani Dhamija Option over 64,046 ebookers
Shares granted 29 January 2003.
Under the terms of T Dhamija's draft Letter of Appointment she would be
entitled to subscribe for 5,000 Ordinary Shares of 14p each in two tranches of
2,500 on the first and second anniversaries of the effective date of her
appointment, being 1 April 2004. If the appointment is terminated the
entitlement to receive Shares would lapse, except that if the Company
terminated the appointment the issue of Shares would be pro-rated to the date
of termination.
PART B - Dealings
1 April 2004 Waiver of Options over 192,140 Ordinary Shares granted 29 January
2003.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by TANI DHAMIJA )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 9
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) I am the registered holder and beneficial owner of the number of
ordinary shares of 14p each in the capital of ebookers shown in Part A
of Schedule 1 (the ebookers Shares) and that I hold these free of any
lien, charge, option, equity or encumbrance;
(b) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(c) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(d) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(e) I have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of the ebookers Shares.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any ebookers Shares or any other shares or securities in
ebookers issued or unconditionally allotted to me or otherwise
acquired by me before then (Further ebookers Shares) other than
pursuant to the Scheme, or my acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the ebookers
Shares or any Further ebookers Shares; or
(iii) which, in relation to the ebookers Shares or any Further
ebookers Shares, would or might restrict or impede me voting
in favour of the Scheme, or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part B of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in
the event that the Scheme becomes effective, I undertake to Cendant to attend,
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to the ebookers
Shares and any Further ebookers Shares in favour of the Scheme at the Court
Meeting and in accordance with the directions of Cendant on any Relevant Scheme
Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of the ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than
three days after Cendant posts the Offer Document to ebookers
shareholders;
(b) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date I become the
registered holder of the Further ebookers Shares;
(c) I shall accept any proposal made by Cendant to holders of options over
ebookers shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred to
in Part C of Schedule 1 (and any other options in respect of ebookers
shares which may be granted to me) not later than seven days after
Cendant posts the formal document containing such offer, in each case
to the extent that the same have not lapsed or been exercised;
(d) I shall not withdraw any acceptances of the Offer; and
(e) Cendant shall acquire the ebookers Shares and any Further ebookers
Shares from me free of any lien, charge, option, equity or encumbrance
and together with all rights of any nature attaching to those shares
including the right to all dividends declared or paid after the date
of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to my ebookers Shares and any
Further ebookers Shares on a Relevant Resolution (as defined in
paragraph 8) only in accordance with Cendant's directions; and
(b) I shall exercise the rights attaching to my ebookers Shares and any
Further ebookers Shares to requisition or join in requisitioning any
general or class meeting of ebookers for the purposes of considering a
Relevant Resolution and to require ebookers pursuant to section 376
Companies Act 1985 to give notice of such a resolution only in
accordance with Cendant's directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
me substantially in the form and context in which they appear in the
attached draft. I further consent to the issue of a press announcement
in relation to an Offer (the Offer Press Announcement) in accordance
with the requirements of Rule 2.5 of the Code incorporating references
(if any) to me substantially in the form and context in which they
appear in the Scheme Press Announcement, subject to such amendments as
Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation
to the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any
offer that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period originally
fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to
despatch the Circular or the Offer Document if it is not required to do so by
the Panel and that if this undertaking lapses I shall have no claim against
Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40 per cent. of the issued share capital of ebookers, or such
lesser percentage as Cendant may determine by 1.00 p.m. on 2 December
2004 (or such later time and/or date as Cendant may determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code, I
shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or the
Offer, if made, lapses or is withdrawn by Cendant, not allot (except
pursuant to existing obligations disclosed in writing to Cendant prior
to the date hereof), or grant options over, any shares in the capital
of ebookers nor issue any debt or other securities convertible into
shares in the capital of ebookers or knowingly agree to do any of the
foregoing or knowingly take any other action likely to result in a
breach of any condition of the Scheme or the Offer or be prejudicial
to the successful implementation of the Scheme or the Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of ebookers,
approve the registration of all transfers of shares made pursuant to
the Offer (subject to the same being duly stamped and otherwise
satisfying the requirements imposed in the Articles of Association of
ebookers) and comply with such reasonable requests as Cendant may make
with respect to any other steps to be undertaken by the board of
directors of ebookers as are necessary to give effect to the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially adverse
to the interests of ebookers or unduly and materially disruptive to
the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary undertakings
(collectively, the ebookers Group) to be carried on in the ordinary
and usual course and in particular do not and do not propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution or
return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors of
ebookers of anyone nominated by Cendant and, if required by Cendant, I
shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January 2001
will lapse at the end of the relevant exercise period, as
defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr Dhamija
and Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as soon
as permissible in accordance with, and to comply with the applicable
requirements of, the Rules, the terms of the Dhamija Option Agreement
and the terms of the Talwar Option Agreement, as the case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the Scheme
or the Offer or which would or might have the effect of preventing any
of the terms or conditions of the Scheme or the Offer from being
fulfilled (and in particular, but without limitation, I shall comply
with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which
may lead to an offer for ebookers or the occurrence of any matter referred to
above and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made
all reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or
customer of Citigroup for the purposes of the Conduct of Business Sourcebook of
the Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. I confirm that I have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a), 5(b) or 5(c) or if I fail to accept
the offer referred to in paragraph 5(d) in accordance with that
paragraph, in my name and on my behalf to do all things and to execute
all deeds and other documents as may be necessary or desirable to
accept such offers in respect of the ebookers Shares, any Further
ebookers Shares and the options referred to in paragraph 5(d) (as
appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security and is
irrevocable in accordance with section 4 Powers of Attorney Act 1971 until the
earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if made,
being declared unconditional in all respects, and (iii) an Offer, if made,
lapsing or being withdrawn by Cendant and (iv) the expiry of the period of
three months of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of satisfaction and
is not waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein
provided or to accept the Offer in accordance with this undertaking or breach
any of my obligations, damages would not be an adequate remedy and that an
order for specific performance would be an essential element of any adequate
remedy for such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
SCHEDULE 1
EXISTING SHARES
PART A - Registered Holdings of ebookers Shares
Registered Holder Beneficial Owner (if Ordinary Shares of 14p
different) each
Sudhir Choudhrie - 12,729
PART B - Rights to acquire ebookers securities (including options)
Under the terms of S Choudhrie's letter of Appointment dated 12 July 2002,
Ordinary Shares of 14p each to the value of (pound)3,473 would be subscribed
for by him. The number of the shares at the point of subscription is to be
calculated at the average quoted share price over 2004.
Under the terms of S Choudhrie's Letter of Appointment dated 20 July 2004, he
is entitled to subscribe for 5,000 Ordinary Shares of 14p each in two tranches
of 2,500 on the first and second anniversaries of the effective date of his
appointment, being 15 July 2004. If the appointment is terminated the
entitlement to receive Shares will lapse, except that if the Company terminates
the appointment the issue of Shares will be pro-rated to the date of
termination.
PART C - Dealings
2 April 2004: Allotment of 1,613 Ordinary Shares of 14p each in accordance with
Letter of Appointment.
23 June 2004: Exercise of a share option over 2,348 Ordinary Shares of 14p each
and allotment to S Choudhrie of those shares.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by SUDHIR CHOUDHRIE )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 10
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(b) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(c) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the
prices and numbers of such shares dealt in during the period of 12
months prior to the date hereof; and
(d) I have full power and authority to enter into this undertaking, to
perform the obligations under it and to accept the Offer (if made) in
respect of any securities of ebookers held by me.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared
unconditional in all respects, (iii) an Offer, if made, lapsing or being
withdrawn by Cendant and (iv) the expiry of the period of three months of the
date on which the Scheme fails to become effective or any condition to which
the Scheme is subject becomes incapable of satisfaction and is not waived, if,
in such period Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any shares or securities in ebookers issued or
unconditionally allotted to me or otherwise acquired by me before
then (Further ebookers Shares) other than pursuant to the Scheme, or
my acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities
referred to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement
to be entered into or incur any obligation or permit any obligation
to arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, any Further
ebookers Shares; or
(iii) which, in relation to any Further ebookers Shares, would or
might restrict or impede me voting in favour of the Scheme,
or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject
to any condition or which is to take effect if the Scheme is
withdrawn, if the Offer closes or lapses or if this undertaking
ceases to be binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part A of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any
derivatives referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in the
event that the Scheme becomes effective, I undertake to Cendant to attend,
(either in person or by proxy) any meeting of ebookers' shareholders convened
by order of the Court pursuant to section 425 of the Act to consider and, if
thought fit, approve the Scheme (the Court Meeting) and any extraordinary
general meeting of ebookers convened in order to consider and, if thought fit,
approve measures required to implement the Scheme (the EGM) and, from the time
the Scheme is announced until the Scheme becomes effective or is withdrawn,
will exercise and procure the exercise of the votes attaching to any Further
ebookers Shares in favour of the Scheme at the Court Meeting and in accordance
with the directions of Cendant on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result
of any condition of the Scheme or otherwise or which, if passed, would result
in any condition of the Scheme not being fulfilled or which might reasonably
be expected to impede or frustrate the Scheme in any way. Resolutions to
adjourn the Court Meeting or the EGM and a resolution to amend a Relevant
Scheme Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the Offer Document) not later than two
days after the date I become the registered holder of the Further
ebookers Shares;
(b) I shall accept any proposal made by Cendant to holders of options
over ebookers shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred
to in Part A of Schedule 1 (and any other options in respect of
ebookers shares which may be granted to me) not later than seven days
after Cendant posts the formal document containing such offer, in
each case to the extent that the same have not lapsed or been
exercised;
(c) I shall not withdraw any acceptances of the Offer; and
(d) Cendant shall acquire any Further ebookers Shares from me free of any
lien, charge, option, equity or encumbrance and together with all
rights of any nature attaching to those shares including the right to
all dividends declared or paid after the date of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to any Further ebookers Shares
on a Relevant Resolution (as defined in paragraph 8) only in
accordance with Cendant's directions; and
(b) I shall exercise the rights attaching to any Further ebookers Shares
to requisition or join in requisitioning any general or class meeting
of ebookers for the purposes of considering a Relevant Resolution and
to require ebookers pursuant to section 376 Companies Act 1985 to
give notice of such a resolution only in accordance with Cendant's
directions.
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by Cendant
appointing any person nominated by Cendant to attend and vote at the Court
Meeting, the EGM or at any other relevant general meeting of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to
any amendments that may be agreed between Cendant and ebookers or as
may be required to comply with the requirements of any relevant
authority (the Scheme Press Announcement) incorporating references
(if any) to me substantially in the form and context in which they
appear in the attached draft. I further consent to the issue of a
press announcement in relation to an Offer (the Offer Press
Announcement) in accordance with the requirements of Rule 2.5 of the
Code incorporating references (if any) to me substantially in the
form and context in which they appear in the Scheme Press
Announcement, subject to such amendments as Cendant may deem
necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular)
and the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end
of the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation to
the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to
the FSMA) which would amount to market abuse for the purposes of section 118
of the FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any offer
that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which
the Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or
revised offer or offers on behalf of Cendant, provided that such new,
increased or revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period
originally fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or
being declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to despatch
the Circular or the Offer Document if it is not required to do so by the Panel
and that if this undertaking lapses I shall have no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction
and, if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement
is at the absolute discretion of Cendant. In particular, Cendant
reserves the right not to release the Offer Press Announcement unless
the board of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect
of shares in the capital of ebookers that represent in aggregate not
less than 40 per cent. of the issued share capital of ebookers, or
such lesser percentage as Cendant may determine by 1.00 p.m. on 2
December 2004 (or such later time and/or date as Cendant may
determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code,
I shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or the
Offer, if made, lapses or is withdrawn by Cendant, not allot (except
pursuant to existing obligations disclosed in writing to Cendant
prior to the date hereof), or grant options over, any shares in the
capital of ebookers nor issue any debt or other securities
convertible into shares in the capital of ebookers or knowingly agree
to do any of the foregoing or knowingly take any other action likely
to result in a breach of any condition of the Scheme or the Offer or
be prejudicial to the successful implementation of the Scheme or the
Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of
ebookers, approve the registration of all transfers of shares made
pursuant to the Offer (subject to the same being duly stamped and
otherwise satisfying the requirements imposed in the Articles of
Association of ebookers) and comply with such reasonable requests as
Cendant may make with respect to any other steps to be undertaken by
the board of directors of ebookers as are necessary to give effect to
the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially
adverse to the interests of ebookers or unduly and materially
disruptive to the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary
undertakings (collectively, the ebookers Group) to be carried on in
the ordinary and usual course and in particular do not and do not
propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution
or return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors
of ebookers of anyone nominated by Cendant and, if required by
Cendant, I shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement
is required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January
2001 will lapse at the end of the relevant exercise period,
as defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr
Dhamija, Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as
soon as permissible in accordance with, and to comply with the
applicable requirements of, the Rules, the terms of the Dhamija
Option Agreement and the terms of the Talwar Option Agreement, as the
case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the
Scheme or the Offer or which would or might have the effect of
preventing any of the terms or conditions of the Scheme or the Offer
from being fulfilled (and in particular, but without limitation, I
shall comply with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which
may lead to an offer for ebookers or the occurrence of any matter
referred to above and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made all
reasonable enquiries I know of no matter or circumstance in relation
to ebookers or any of its subsidiaries which might mean that any
condition in the Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or customer of
Citigroup for the purposes of the Conduct of Business Sourcebook of the
Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections
afforded to its customers nor for providing advice in relation to the Scheme
or the Offer, if any. I confirm that I have been given an adequate opportunity
to consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a) or 5(b) or if I fail to accept the
offer referred to in paragraph 5(d) in accordance with that
paragraph, in my name and on my behalf to do all things and to
execute all deeds and other documents as may be necessary or
desirable to accept such offers in respect of any Further ebookers
Shares and the options referred to in paragraph 5(d) (as
appropriate); and
(b) to execute any form of proxy required by Cendant appointing any
person nominated by Cendant to attend and vote in favour of the
Scheme at the Court Meeting or on a Relevant Scheme Resolution or a
Relevant Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security and
is irrevocable in accordance with section 4 Powers of Attorney Act 1971 until
the earliest to occur of (i) the Scheme becoming effective, (ii) an Offer, if
made, being declared unconditional in all respects, and (iii) an Offer, if
made, lapsing or being withdrawn by Cendant and (iv) the expiry of the period
of three months of the date on which the Scheme fails to become effective or
any condition to which the Scheme is subject becomes incapable of satisfaction
and is not waived, if, in such period Cendant has not announced an Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein provided
or to accept the Offer in accordance with this undertaking or breach any of my
obligations, damages would not be an adequate remedy and that an order for
specific performance would be an essential element of any adequate remedy for
such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
Schedule 1
Existing Shares
Part A - Rights to acquire ebookers securities (including options)
Holder Type of securities
Michael Healy Option over 294,118 ebookers
Shares granted 4 June 2004.
PART B - Dealings
Grant of Options as above.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by MICHAEL HEALY )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 11
To: Cendant UK Acquisition Corporation (Cendant)
and Citigroup Global Markets Limited (Citigroup)
2 December 2004
Dear Sirs,
Reference is made to the scheme of arrangement under section 425 of the
Companies Act 1985 (the Act) to be proposed by ebookers plc (ebookers) to its
members substantially on the terms and conditions set out in the Scheme Press
Announcement (as defined in paragraph 9(a) of this letter) (the Scheme). I
understand that in the event that for any reason 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 as therein provided,
Cendant may, within three months of the date on which the Scheme fails to
become effective or any condition to which the Scheme is subject becomes
incapable of satisfaction and, if capable of waiver, is not waived in
accordance with its terms, announce through Citigroup an offer to acquire the
whole of the issued ordinary share capital of ebookers (an Offer). This letter
sets out the terms and conditions on which I will exercise, or procure the
exercise of, the votes attaching to the shares in ebookers in which I have an
interest in favour of the Scheme at any relevant meeting of the members of
ebookers or, if an Offer is made, accept the Offer when it is made.
The terms and conditions of the Scheme will be substantially as set out in the
Scheme Press Announcement and, subject thereto, will otherwise be as may be
agreed between Cendant and ebookers or as may be required to comply with the
requirements of any relevant authority.
Shareholdings
1. I represent and warrant to Cendant that:
(a) Salomon Smith Barney is the registered holder of the number of
American Depositary Shares (each representing two ordinary shares of
14p each in the capital of ebookers) shown in Part A of Schedule 1
(the ebookers Shares) and that Salomon Smith Barney hold these free of
any lien, charge, option, equity or encumbrance;
(b) I am the beneficial owner of the number of ordinary shares of 14p each
in the capital of ebookers shown in Part A of Schedule 1 (the
Beneficial Shares) and that I hold these free of any lien, charge,
option, equity or encumbrance;
(c) the information set out in Schedule 1 regarding the securities of
ebookers in which I am interested is complete and accurate;
(d) Schedule 1 contains complete and accurate details of all options,
warrants and other rights I may have to subscribe for, purchase or
otherwise acquire any securities of ebookers;
(e) Schedule 1 contains complete and accurate details of the dates of all
dealings by me in the shares of ebookers, giving details of the prices
and numbers of such shares dealt in during the period of 12 months
prior to the date hereof; and
(f) I have full power and authority to enter into this undertaking, to
perform the obligations under it.
Dealings
2. I undertake to Cendant that before the earliest to occur of (i) the
Scheme becoming effective, (ii) an Offer, if made, being declared unconditional
in all respects, (iii) an Offer, if made, lapsing or being withdrawn by Cendant
and (iv) the expiry of the period of three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived, if, in such period
Cendant has not announced an Offer, I shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any Beneficial Shares or any other shares or securities in
ebookers issued or unconditionally allotted to me or otherwise
acquired by me before then (Further ebookers Shares) other than
pursuant to the Scheme, or my acceptance of the Offer, if made;
(b) accept any other offer in respect of the shares or securities referred
to in paragraph 2(a);
(c) (other than pursuant to the Scheme or the Offer, if made) enter into
any agreement or arrangement or permit any agreement or arrangement to
be entered into or incur any obligation or permit any obligation to
arise:
(i) to do any of the acts referred to in paragraphs (a) or (b);
(ii) in relation to, or operating by reference to, the Beneficial
Shares or any Further ebookers Shares; or
(iii) which, in relation to the Beneficial Shares or any Further
ebookers Shares, would or might restrict or impede me voting
in favour of the Scheme, or accepting the Offer, if made,
and for the avoidance of doubt, references in this paragraph 2(c) to
any agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Scheme is withdrawn,
if the Offer closes or lapses or if this undertaking ceases to be
binding or upon or following any other event; or
(d) save for the acquisition of any further shares in ebookers on the
exercise of options referred to in Part B of Schedule 1, I shall not
purchase, sell or otherwise deal in any shares or other securities of
ebookers or Cendant or any interest therein (including any derivatives
referenced to such securities).
Undertaking to vote in favour of the Scheme
3. In consideration of Cendant agreeing to be bound by the Scheme in
the event that the Scheme becomes effective, I undertake to Cendant to attend,
or, in the case of the Beneficial Shares, procure the attendance of the
registered holder thereof to attend (either in person or by proxy) any meeting
of ebookers' shareholders convened by order of the Court pursuant to section
425 of the Act to consider and, if thought fit, approve the Scheme (the Court
Meeting) and any extraordinary general meeting of ebookers convened in order to
consider and, if thought fit, approve measures required to implement the Scheme
(the EGM) and, from the time the Scheme is announced until the Scheme becomes
effective or is withdrawn, will exercise and procure the exercise of the votes
attaching to the Beneficial Shares and any Further ebookers Shares in favour of
the Scheme at the Court Meeting and in accordance with the directions of
Cendant on any Relevant Scheme Resolution.
4. For this purpose, a Relevant Scheme Resolution means any resolution
(whether or not amended) which is proposed at the EGM or at any adjournment
thereof or at any other general meeting of ebookers, the passing or rejection
of which is necessary for the Scheme to become effective whether as a result of
any condition of the Scheme or otherwise or which, if passed, would result in
any condition of the Scheme not being fulfilled or which might reasonably be
expected to impede or frustrate the Scheme in any way. Resolutions to adjourn
the Court Meeting or the EGM and a resolution to amend a Relevant Scheme
Resolution, shall also be Relevant Scheme Resolutions.
Undertaking to accept the Offer
5. In consideration of Cendant's agreement in paragraph 17 to make the
Offer, I undertake that if an Offer is made:
(a) I shall cause the registered holder of the Beneficial Shares to accept
the Offer in accordance with the procedure for acceptance set out in
the formal document containing the Offer (the Offer Document) not
later than three days after Cendant posts the Offer Document to
ebookers shareholders;
(b) I shall accept the Offer in respect of any Further ebookers Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than two days after the date I become the
registered holder of the Further ebookers Shares;
(c) I shall accept any proposal made by Cendant to holders of options over
ebookers Shares in compliance with Rule 15 of the City Code on
Takeovers and Mergers (the Code) in respect of the options referred to
in Part C of Schedule 1 (and any other options in respect of ebookers
shares which may be granted to me) not later than seven days after
Cendant posts the formal document containing such offer, in each case
to the extent that the same have not lapsed or been exercised;
(d) I shall not withdraw any acceptances of the Offer and will cause the
registered holder of the Beneficial Shares not to do so; and
(e) Cendant shall acquire the Beneficial Shares and any Further ebookers
Shares from me free of any lien, charge, option, equity or encumbrance
and together with all rights of any nature attaching to those shares
including the right to all dividends declared or paid after the date
of this undertaking.
Voting Rights
6. If Cendant announces an Offer, from the time of such announcement to
the time the Offer becomes wholly unconditional, lapses or is withdrawn:
(a) I shall exercise the votes attaching to any Further ebookers Shares on
a Relevant Resolution (as defined in paragraph 8) only in accordance
with Cendant's directions;
(b) I shall exercise the rights attaching to any Further ebookers Shares
to requisition or join in requisitioning any general or class meeting
of ebookers for the purposes of considering a Relevant Resolution and
to require ebookers pursuant to section 376 Companies Act 1985 to give
notice of such a resolution only in accordance with Cendant's
directions; and
(c) I shall cause the registered holder of any Beneficial Shares to comply
with paragraphs 6(a) and 6(b).
7. For the purpose of voting on a Relevant Resolution or a Relevant
Scheme Resolution, I shall execute any form of proxy required by
Cendant appointing any person nominated by Cendant to attend and vote
at the Court Meeting, the EGM or at any other relevant general meeting
of ebookers.
8. A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or class
meeting of ebookers, or at an adjourned meeting, the passing of which
is necessary to implement the Offer or which, if passed, might result
in any condition of the Offer not being fulfilled or which might
impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of ebookers whose
business includes the consideration of a resolution falling within
paragraph 8(a); and
(c) a resolution to amend a resolution falling within paragraph 8(a) or
paragraph 8(b).
Documentation
9. I consent to:
(a) the issue of a press announcement in relation to the Scheme
substantially in the form of the draft attached hereto, subject to any
amendments that may be agreed between Cendant and ebookers or as may
be required to comply with the requirements of any relevant authority
(the Scheme Press Announcement) incorporating references (if any) to
me substantially in the form and context in which they appear in the
attached draft. I further consent to the issue of a press announcement
in relation to an Offer (the Offer Press Announcement) in accordance
with the requirements of Rule 2.5 of the Code incorporating references
(if any) to me substantially in the form and context in which they
appear in the Scheme Press Announcement, subject to such amendments as
Cendant may deem necessary or appropriate;
(b) particulars of this irrevocable undertaking and my holdings of the
share capital of ebookers (and dealings therein in the last twelve
months) and securities convertible into or rights to subscribe for or
options in respect of and derivatives referenced to shares in
ebookers, being contained in the circular to be issued by ebookers to
its shareholders containing, inter alia, the Scheme (the Circular) and
the Offer Document, if any, and any other related or ancillary
document as required by the Code; and
(c) this undertaking being available for inspection until the date on
which the Scheme becomes effective or, if an Offer is made, the end of
the offer period (as defined in the Code).
10. I shall promptly give you all information and any assistance as
you may reasonably require for the preparation of the Circular and the Offer
Document, if any, and all related and ancillary documents in order to comply
with the requirements of the Code, the Financial Services Authority and the
London Stock Exchange and any other legal or regulatory requirement or body. I
shall immediately notify you in writing of any material change in the accuracy
or impact of any information previously given to you.
Secrecy
11. I shall keep secret:
(a) the possibility, terms and conditions of the Scheme and the existence
and terms of this undertaking until the Scheme Press Announcement is
released; and
(b) the terms of this undertaking until the Circular is posted,
provided that I may disclose the same to ebookers and its advisers in which
case I will procure that they observe secrecy in the same terms. The
obligations in this paragraph shall survive termination of this undertaking.
12. I understand that the information you have given to me in relation
to the Scheme must be kept confidential until the Scheme Press Announcement is
released or the information has otherwise become generally available. Before
this time I will not base any behaviour in relation to any qualifying
investments or relevant products (as defined in the Financial Services and
Markets Act 2000 (the FSMA) and the Code of Market Conduct made pursuant to the
FSMA) which would amount to market abuse for the purposes of section 118 of the
FSMA on the information.
Interpretation
13. All references in this undertaking to the Offer shall mean any
offer that may be announced on behalf of Cendant to acquire all of the issued
ordinary share capital of ebookers within three months of the date on which the
Scheme fails to become effective or any condition to which the Scheme is
subject becomes incapable of satisfaction and is not waived in accordance with
its terms, provided that the terms of such offer are, in the opinion of
Citigroup, no less favourable to acceptors than the financial consequences for
them of the Scheme becoming effective, or on such other terms as may be agreed
between Cendant and ebookers, and shall extend to any new, increased or revised
offer or offers on behalf of Cendant, provided that such new, increased or
revised offer or offers is or are made on such terms.
Time of the Essence
14. Any time, date or period mentioned in this undertaking may be
extended by mutual agreement but as regards any time, date or period originally
fixed or as extended, time shall be of the essence.
Lapse
15. The undertakings, warranties, consents, waivers, agreements and
obligations in this letter will lapse and cease to have effect to the extent
not already undertaken and without prejudice to any liability for antecedent
breach:
(a) if the Scheme Press Announcement has not been issued by the close of
business on 10 December 2004 or such later date as Cendant and
ebookers may agree; or
(b) if the Scheme becomes effective; or
(c) if an Offer is not announced on behalf of Cendant within three months
of the date on which the Scheme fails to become effective or any
condition to which the Scheme is subject becomes incapable of
satisfaction and, if capable of waiver, not being waived as therein
provided; or
(d) if an Offer, if made, lapses or is withdrawn without becoming or being
declared unconditional in all respects.
16. I acknowledge that nothing in this letter obliges Cendant to agree
to the despatch the Circular or the despatch of the Offer Document if it is not
required to do so by the Panel and that if this undertaking lapses I shall have
no claim against Cendant.
17. Subject to paragraph 18, Cendant agrees to make the Offer conditional
on:
(a) the Scheme not becoming effective or being withdrawn or any condition
to which the Scheme is subject becoming incapable of satisfaction and,
if capable of waiver, not being waived as therein provided; and
(b) the Offer Press Announcement being released in accordance with the
Code and in such other form as Cendant may deem necessary or
appropriate or as may be required to comply with the requirements of
any relevant authority. The release of the Offer Press Announcement is
at the absolute discretion of Cendant. In particular, Cendant reserves
the right not to release the Offer Press Announcement unless the board
of directors of ebookers agrees to recommend the Offer.
18. If after Cendant releases the Offer Press Announcement:
(a) the Panel consents to Cendant not making the Offer;
(b) an event occurs which means that Cendant is no longer required by the
Code to proceed with the Offer; or
(c) Cendant becomes aware that any condition of the Offer as set out in
the Offer Press Announcement has or may become incapable of being
fulfilled,
Cendant shall not be obliged to make or proceed with an Offer.
19. Cendant undertakes to be bound by the Scheme in the event that the
Scheme becomes effective. The obligations on Cendant hereunder are conditional
upon receipt by Cendant of:
(a) undertakings substantially in the terms agreed with Cendant from each
of the directors of ebookers and from other shareholders in respect of
shares in the capital of ebookers that represent in aggregate not less
than 40 per cent. of the issued share capital of ebookers, or such
lesser percentage as Cendant may determine by 1.00 p.m. on 2 December
2004 (or such later time and/or date as Cendant may determine);
(b) confirmation in terms satisfactory to Cendant that the board of
directors of ebookers has approved the issue of the Scheme Press
Announcement including a statement that the board of directors of
ebookers intends unanimously to recommend that its shareholders vote
in favour of the Scheme and such recommendation not having been
withdrawn or qualified prior to publication of the Circular.
Director's undertakings
20. As a director of ebookers, provided that it is consistent with my
fiduciary and directors duties owed to ebookers and my duties under the Code, I
shall use reasonable endeavours to procure that ebookers and the board of
directors of ebookers:
(a) recommend that shareholders in ebookers vote in favour of the Scheme
at the Court Meeting and the EGM and, if an Offer is made, accept the
Offer;
(b) provide all reasonable assistance as may be requested to prepare the
Scheme Press Announcement and the Circular and all related and
ancillary documents and, if an Offer is made, to enable Cendant to
make the Offer and to prepare the Offer Document and all related and
ancillary documents, in each case in accordance with the requirements
of the Code, the Financial Services Authority and the London Stock
Exchange and any other legal or regulatory requirement or body;
(c) provide all reasonable assistance to Cendant as may be required to
obtain the clearances and consents referred to in the Scheme Press
Announcement;
(d) convene such meetings of directors or shareholders of ebookers (if so
requested by Cendant) as may be necessary to pass such resolutions as
may be necessary to enable the Scheme or, if made, the Offer to be
implemented;
(e) not convene any general meeting of ebookers other than the Court
Meeting and the EGM without the prior written consent of Cendant,
which consent shall not be unreasonably delayed or withheld;
(f) cause ebookers to comply with its obligations under the Merger
Agreement entered into on today's date between ebookers, Cendant
Corporation and Cendant;
(g) save in respect of options under ebookers Share Option Schemes and
ebookers Individual Option Arrangements (as defined in the Scheme
Press Announcement) unless and until the Scheme is withdrawn or the
Offer, if made, lapses or is withdrawn by Cendant, not allot (except
pursuant to existing obligations disclosed in writing to Cendant prior
to the date hereof), or grant options over, any shares in the capital
of ebookers nor issue any debt or other securities convertible into
shares in the capital of ebookers or knowingly agree to do any of the
foregoing or knowingly take any other action likely to result in a
breach of any condition of the Scheme or the Offer or be prejudicial
to the successful implementation of the Scheme or the Offer;
(h) upon the Offer, if made, becoming unconditional in all respects, and
to the extent I continue to occupy the office of director of ebookers,
approve the registration of all transfers of shares made pursuant to
the Offer (subject to the same being duly stamped and otherwise
satisfying the requirements imposed in the Articles of Association of
ebookers) and comply with such reasonable requests as Cendant may make
with respect to any other steps to be undertaken by the board of
directors of ebookers as are necessary to give effect to the Offer;
(i) upon receiving reasonable prior notice, provide such management
information and access to senior ebookers personnel for the purposes
of consultation in relation to the conduct of the business as may
reasonably be requested pending the Scheme becoming effective or the
Offer, if made, becoming unconditional in all respects and to
facilitate the integration of ebookers into the enlarged group except
if it is reasonably believed that to do so would be materially adverse
to the interests of ebookers or unduly and materially disruptive to
the operation of ebookers' business;
(j) cause the business of ebookers and each of its subsidiary undertakings
(collectively, the ebookers Group) to be carried on in the ordinary
and usual course and in particular do not and do not propose to:
(i) amend the memorandum or articles of association or other
relevant constitutional document of any member of the
ebookers Group;
(ii) alter the authorised or allotted or issued share capital of
any member of the ebookers Group or grant any options or
rights over shares;
(iii) declare or pay any dividend or make any other distribution or
return of capital; or
(iv) undertake any commitment or enter into any contract or
acquire or dispose of any assets, liabilities or businesses
otherwise than in the ordinary course of business;
(k) if the Scheme becomes effective or the Offer, if made, becomes
unconditional in all respects, approve the appointment as directors of
ebookers of anyone nominated by Cendant and, if required by Cendant, I
shall resign as a director of ebookers;
(l) agree to any extension of time limits in the Code which Cendant
requests and which the Panel approves;
(m) do not make (and that no-one makes on behalf of ebookers):
(i) any announcement before the Scheme Press Announcement is
released which refers expressly or implicitly to Cendant; or
(ii) any other announcement in connection with the Scheme or the
Offer without prior consultation with Cendant,
unless Cendant consents in writing or the relevant announcement is
required by law or any regulatory provision; and
(n) give notice to:
(i) the holders of options (ebookers Options) issued under
ebookers Share Option Scheme (the Option Scheme) in
accordance with the rules of the Option Scheme (the Rules)
that all unexercised ebookers Options will lapse at the end
of the relevant exercise period, as defined in the Rules;
(ii) Dinesh Dhamija in accordance with the terms of the Option
Agreement dated 2 October 2002 between Mr Dhamija and
ebookers (the Dhamija Option Agreement) that the unexercised
options issued to Mr Dhamija pursuant to the Dhamija Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Dhamija Option Agreement;
(iii) Sanjiv Talwar in accordance with the terms of the Option
Agreement dated 21 October 1999 between Mr Talwar and
ebookers (the Talwar Option Agreement) that the unexercised
options issued to Mr Talwar pursuant to the Talwar Option
Agreement will lapse at the end of the relevant exercise
period, as defined in the Talwar Option Agreement;
(iv) Peter Cochrane in accordance with the Rules that all
unexercised ebookers Options granted to him on 25 October
1999 will lapse at the end of the relevant exercise period,
as defined in the Rules;
(v) Jeffrey Sampler in accordance with the Rules that all
unexercised ebookers Options granted to him on 1 January 2001
will lapse at the end of the relevant exercise period, as
defined in the Rules;
such notice to be provided to holders of ebookers Options, Mr Dhamija
and Mr Talwar, Mr Cochrane and Mr Sampler as the case may be, as soon
as permissible in accordance with, and to comply with the applicable
requirements of, the Rules, the terms of the Dhamija Option Agreement
and the terms of the Talwar Option Agreement, as the case may be.
21. I shall not directly or indirectly:
(a) solicit or encourage any person other than Cendant to make any offer
for any shares or other securities of ebookers or to indicate the
basis on which any such offer might be made or enter into discussions
relating to any possible offer;
(b) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code and, in each case, only in
response to an unsolicited approach) enter into any discussions with,
or provide any information to, any person who is considering making
such an offer; or
(c) (except where required by my fiduciary duties as a director of
ebookers or by my duties under the Code) otherwise take any action
which is or may be prejudicial to the successful outcome of the Scheme
or the Offer or which would or might have the effect of preventing any
of the terms or conditions of the Scheme or the Offer from being
fulfilled (and in particular, but without limitation, I shall comply
with General Principle 7 and Rule 21 of the Code).
22. I shall promptly inform you of any approach by a third party which
may lead to an offer for ebookers or the occurrence of any matter referred to
above and will keep you fully informed of the same.
23. To the best of my knowledge, information and belief having made
all reasonable enquiries I know of no matter or circumstance in relation to
ebookers or any of its subsidiaries which might mean that any condition in the
Scheme Press Announcement cannot be fulfilled.
Confirmation
24. I confirm that in signing this letter I am not a client or
customer of Citigroup for the purposes of the Conduct of Business Sourcebook of
the Financial Services Authority and that Citigroup is acting for Cendant in
connection with the Scheme and the Offer, if any, and no-one else and is not
responsible to anyone other than Cendant for providing the protections afforded
to its customers nor for providing advice in relation to the Scheme or the
Offer, if any. I confirm that I have been given an adequate opportunity to
consider whether or not to give this undertaking and to obtain independent
advice.
Power of Attorney
25. In order to secure the performance of my obligations under this
undertaking, I hereby unconditionally and irrevocably appoint any director of
Cendant as my attorney:
(a) if I fail to accept or to procure acceptance of the Offer in
accordance with paragraphs 5(a), 5(b) or 5(c) or if I fail to accept
the offer referred to in paragraph 5(d) in accordance with that
paragraph, in my name and on my behalf to do all things and to execute
all deeds and other documents as may be necessary or desirable to
accept such offers in respect of the Beneficial Shares, any Further
ebookers Shares and the options referred to in paragraph 5(d) (as
appropriate); and
(b) to execute any form of proxy required by Cendant appointing any person
nominated by Cendant to attend and vote in favour of the Scheme at the
Court Meeting or on a Relevant Scheme Resolution or a Relevant
Resolution at a general meeting of ebookers.
26. I agree that this power of attorney is given by way of security
and is irrevocable in accordance with section 4 Powers of Attorney Act 1971
until the earliest to occur of (i) the Scheme becoming effective, (ii) an
Offer, if made, being declared unconditional in all respects, and (iii) an
Offer, if made, lapsing or being withdrawn by Cendant and (iv) the expiry of
the period of three months of the date on which the Scheme fails to become
effective or any condition to which the Scheme is subject becomes incapable of
satisfaction and is not waived, if, in such period Cendant has not announced an
Offer.
Undertaking to bind estate
27. This undertaking shall bind my estate and personal representatives
except in relation to those obligations that relate to my position as a
director of ebookers.
Specific Performance
28. I agree that, if I fail to vote or appoint a proxy as herein
provided or to accept the Offer in accordance with this undertaking or breach
any of my obligations, damages would not be an adequate remedy and that an
order for specific performance would be an essential element of any adequate
remedy for such failure or breach.
Governing Law
29. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
SCHEDULE 1
EXISTING SHARES
PART A - Holdings of ebookers Shares
Registered Holder Beneficial Owner (if ebookers Shares
different)
Salomon Smith Barney James Joseph Treacy and 10,000 American
Nancy B Treacy Depositary Shares
PART B Rights to acquire ebookers securities (including options)
Under the Terms of J Treacy's Letter of Appointment dated 13 July 2004, he is
entitled to subscribe for 5,000 ebookers Shares in two tranches of 2,500 on the
first and second anniversaries of the effective date of his appointment, being
13 July 2004. If the appointment is terminated the entitlement to receive
Shares will lapse, except that if the Company terminates the appointment the
issue of Shares will be pro-rated to the date of termination.
APPENDIX I
Scheme Press Announcement
SIGNED as a DEED and )
DELIVERED by JAMES TREACY )
in the presence of: )
Witness - Signature:
Name:
Address:
Exhibit 12
JOINT FILING AGREEMENT
This will confirm the agreement by and between the undersigned that the
Statement on Schedule 13D (the "Statement") filed on or about this date
relating to the proposed cash acquisition by Cendant UK Acquisition
Corporation, a Delaware Corporation and wholly owned subsidiary of Cendant
Corporation, a Delaware Corporation, of all of the outstanding ordinary
shares, nominal value 14 pence in capital each, of ebookers plc, an English
company, is being filed on behalf of the undersigned.
Each of the undersigned hereby acknowledges that pursuant to Rule 13d-1(k)
promulgated under the Securities Exchange Act of 1934, as amended, that each
person on whose behalf the Statement is filed is responsible for the timely
filing of such statement and any amendments thereto, and for the completeness
and accuracy of the information concerning such person contained therein; and
that such person is not responsible for the completeness or accuracy of the
information concerning the other persons making the filing, unless such person
knows or has reason to believe that such information is inaccurate.
This Agreement may be executed in one or more counterparts by each of the
undersigned, and each of which, taken together, shall constitute one and the
same instrument.
Date: December 10, 2004
CENDANT CORPORATION
By: /s/ Eric J. Bock
---------------------------------
Name: Eric J. Bock
Title: Executive Vice President - Law and
Corporate and Secretary
CENDANT UK ACQUISITION CORPORATION
By: /s/ Eric J. Bock
--------------------------------
Name: Eric J. Bock
Title: Executive Vice President and
Secretary
