Private & Confidential Ex (d)(9)
DATED JANUARY 3, 2002
RASMALA DISTRIBUTION (CAYMAN) LIMITED (1)
ARAMEX INTERNATIONAL LIMITED (2)
AND
XXXXXXX XXXXXXX (3)
DEED OF COVENANT
THIS DEED is dated January 3, 2002 and is made
BETWEEN:
(1) RASMALA DISTRIBUTION (CAYMAN) LIMITED (No. 112321), an exempted company
incorporated with limited liability under the laws of the Cayman Islands
whose registered office is situated at the offices of M&C Corporate
Services Limited, X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx
Town, Grand Cayman, British West Indies (the "COMPANY");
(2) ARAMEX INTERNATIONAL LIMITED whose principal place of business is at 2
Badr Shaker Al Sayyab Street, XX XX XX, X.X. Xxx 0000, Xxxxx 00000 Xxxxxx
("ARAMEX"); and
(3) XXXXXXX XXXXXXX of 866 United Xxxxxxx Xxxxx Xxxxx Xx 000, Xxx Xxxx, Xxx
Xxxx 00000 (the "COVENANTOR").
WHEREAS:
A. The Covenantor owns 1,231,600 common shares in Aramex.
B. Rasmala Distribution (Bermuda) Limited ("RDBL"), a wholly owned
subsidiary of the Company, intends to make an offer to acquire all the
shares in Aramex.
C. It is a requirement of the Company that before RDBL makes such offer, the
two principal shareholders in Aramex, of whom one is the Covenantor,
should first enter into this Deed in order to protect confidential
information and goodwill of and relating to Aramex and its subsidiaries
(the "Aramex Group").
IT IS AGREED as follows:
1 DEFINITIONS
1.1 In this Deed but excluding the Schedule to this Deed :
"CONFIDENTIAL INFORMATION" means details of suppliers and their terms of
business, details of customers and their requirements, the prices charged
to and terms of business with 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 a 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, any information which the Covenantor is told is confidential and
any information which has been given to any Aramex Group Company in
confidence by customers, suppliers or other persons;
"RELEVANT PERIOD" means the period commencing on the Relevant Date and
ending on the second anniversary of the Relevant Date;
"RELEVANT DATE" means the date on which, the Offer Document having been
issued in its final version, RDBL announces that it has accepted the
Shares (as defined in the Offer Document in the version which is issued
by RDBL);
"ARAMEX GROUP" means Aramex and any other Aramex Group Company;
"ARAMEX GROUP COMPANY" means Aramex or any other body corporate which is
from time to time a subsidiary of Aramex;
"OFFER DOCUMENT" means the document entitled "Offer to purchase for cash
all Outstanding Common Shares of the Target" a draft of which has been
initialled by or on behalf of the parties for the purpose of
identification only; and
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"SUBSIDIARY" and "HOLDING COMPANY" have the respective meanings ascribed
thereto by sections 736 and 736A, Companies Xxx 0000 of the United
Kingdom save that references to subsidiary shall also include "subsidiary
undertaking" which has the meaning ascribed thereto by section 258,
Companies Xxx 0000 of the United Kingdom.
1.2 In this Deed any reference:
(a) to Aramex shall be deemed to include a reference to any body
corporate with which Aramex is merged or amalgamated after the
date hereof;
(b) to clauses and Schedules are to clauses of and schedules to this
Deed;
(c) to statutory provisions shall be construed as references to the
statutory provision as modified or re-enacted or both from time to
time whether before or after the date of this Deed and any
subordinate legislation made under the statutory provision whether
before or after the date of this Deed;
(d) to any Bermudan legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, Court, official
or any legal concept or thing shall in respect of any jurisdiction
other than Bermuda be deemed to include what most nearly
approximates in that jurisdiction to the Bermudan legal term;
(e) to a person includes a reference to a body corporate, association
or partnership;
(f) to a person includes a reference to that person's legal personal
representatives and successors;
1.3 words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
bodies corporate and unincorporate; and
1.4 the headings to the clauses and the schedules are for convenience only
and shall not affect the construction or interpretation of this Deed.
2 COMMENCEMENT
2.1 This Deed, other than clause 3, shall enter into effect on the date
hereof.
2.2 Clause 3 shall enter into effect on the Relevant Date.
2.3 If clause 3 have not entered into effect by 30 April 2002 (or such later
date as the parties may agree in writing) then this Deed shall cease to
have any further effect.
2.4 The parties agree and accept that the final form of the Offer Document,
including the contents of Section 18 thereof, is to be approved by the
board of directors of RDBL.
3 RESTRICTIVE COVENANTS
3.1 The Covenantor hereby undertakes with Aramex (acting for itself and as
trustee for every other Aramex Group Company) and the Company that:
3.1.1 he shall not at any time use or disclose to any person any Confidential
Information concerning the business, customers or financial or other
affairs of any Aramex Group Company and he shall make every effort to
prevent the use or disclosure of such confidential information;
3.1.2 throughout the Relevant Period:
(a) he shall not (on his own behalf or on behalf of any person)
directly or indirectly in competition with any business of any
Aramex Group Company:
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(i) seek to procure orders from or do business with any person
who has been or is during the Relevant Period a customer or
supplier of any Aramex Group Company; or
(ii) engage, employ, solicit or contact with a view to his
engagement or employment any person who has been or is
during the Relevant Period employed by any Aramex Group
Company in a senior capacity; and
(b) he shall not within any country in which any Aramex Group Company
is carrying on business at the Relevant Date either alone or
jointly with or as manager, adviser, consultant, agent or employee
of any person directly or indirectly carry on or be engaged in or
be interested in any business in competition with the business of
any Aramex Group Company or any business carried on by any Aramex
Group Company; and
(c) he shall not within any country in which any Aramex Group Company
carries on business at any time during the Relevant Period either
alone or jointly with or as manager, adviser, consultant, agent or
employee of or consultant to any to person directly or indirectly
carry on or be engaged in or be interested in any business in
competition with the business of any Aramex Group Company or any
business carried on by any Aramex Group Company;
3.1.3 at no time hereafter shall he directly or indirectly carry on a business
either alone or jointly with or as manager, adviser, consultant, agent or
employee of any person, whether or not the business is similar to any
business of any Aramex Group Company, under a name including the words
"Aramex" or any name likely to be confused with a name used by any Aramex
Group Company Provided always that the Covenantor shall not be in breach
of this clause 3.1.3 by reason of being a director or employee of any
Aramex Group Company.
3.2 The Covenantor acknowledges that he has had the opportunity to take
independent advice on the restrictions contained in clause 3.1. Whilst
these restrictions are agreed by the Covenantor to be reasonable, it is
agreed that if the restrictions (individually or taken together) are
adjudged to be unenforceable but they would be enforceable if part or
parts of the wording were deleted, amended or qualified or the periods
referred to reduced, then the relevant restrictions shall apply with such
modifications as are needed to make them effective.
3.3 While the restrictions in clause 3.1 are considered by the parties to be
reasonable in all the circumstances, it is agreed that if any such
restrictions, by themselves, or taken together, shall be adjudged to go
beyond what is reasonable in all the circumstances for the protection of
the legitimate interests of the Aramex Group and the Company and its
shareholders but would be adjudged reasonable if part or parts of the
wording thereof were deleted the relevant restriction or restrictions
shall apply with such deletion(s) as may be necessary to make it or them
valid and effective.
4 MISCELLANEOUS
4.1 If any term or provision in this Deed shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Deed but the enforceability of the remainder of this Deed
shall not be affected.
4.2 A party's failure to insist on strict performance of any provision of
this Deed shall not be deemed to be a waiver thereof or of any right or
remedy for breach of a like or different nature. Subject as aforesaid, no
waiver shall be effective unless specifically made in writing and signed
by the party granting such waiver or by a duly authorised officer of the
party granting such waiver in the case of a corporate party.
4.3 This Deed may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which when executed and
delivered shall be an original and taken together with all such other
counterparts shall constitute one and the same instrument.
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5 GENERAL PROVISIONS
5.1 A variation of this Deed is valid only if it is in writing and signed by
or on behalf of each party.
5.2 The invalidity, illegality or unenforceability of any provision of this
Deed does not affect the continuation in force of the remainder of this
Deed.
6 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
6.1 This Deed shall be governed by and interpreted in accordance with the law
of Bermuda.
6.2 The parties hereby submit to the jurisdiction of the High Court of
Justice in England, but this Deed may be enforced in any court of
competent jurisdiction.
6.3 Each of the Company and Aramex hereby irrevocably authorises and appoints
Norose Notices Limited of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
(process to be marked for the attention of "Xxx Xxxxxxx") or such other
person, being a firm of solicitors resident in England, as any such party
may by notice to all other parties substitute, to accept service of all
legal process and notices served pursuant to clause 24 arising out of or
connected with this Agreement and service on Norose Notices Limited (or
such substitute) shall be deemed to be service on the party to which it
is addressed (as the case may be).
6.4 The Covenantor hereby irrevocably authorises and appoints Xxxxxx, Xxxxxx
and Xxxxxxxxx of 0 Xxxxxxx Xxxxxxx, Xxxxxx XX0X 0XX (process to be marked
for the attention of "The Managing Partner") or such other person, being
a firm of lawyers with an office situated in England, as FG may by notice
to all other parties substitute, to accept service of all legal process
and notices served pursuant to clause 24 arising out of or connected with
this Agreement and service on the said Xxxxxx, Xxxxxx and Xxxxxxxxx (or
such substitute) shall be deemed to be service on the party to which it
is addressed (as the case may be).
IN WITNESS whereof this Deed has been executed the day and year first above
written:
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EXECUTED AS A DEED by )
RASMALA DISTRIBUTION (CAYMAN) LIMITED )
/s/ Xxx Xxxxx xx Xxxxxxx
..............................
Director
/s/ Syed Xxxxxx Xxxxx
..............................
Director/Secretary
EXECUTED AS A DEED by )
ARAMEX INTERNATIONAL Limited )
/s/ Xxxx Xxxxxxxx
Director
/s/ Basher Obeid
..............................
Director/Secretary
EXECUTED AS A DEED by )
XXXXXXX XXXXXXX in the presence of )
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X'Xxxxxxxx, Witness
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