Exhibit 10.9
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (the "Agreement"), dated as of the 22 day of
October, 1996 by and among Aramex International, Limited, a Hong Kong company
limited by shares (the "Company"), Xxxxxxx X. Xxxxxxx, an individual residing
in, New York, New York ("Kingson"), Xxxx Xxxxxxxx, an individual residing in
Amman, Jordan ("X. Xxxxxxxx"), Xxxx Xxxxxxxx, an individual residing in Amman,
Jordan ("X. Xxxxxxxx") and Airborne Freight Corporation, a Delaware corporation
("Airborne") (each a "Party" and collectively, the "Parties"),
W I T N E S S E T H:
WHEREAS, the Parties have entered into that certain Stock Purchase
Agreement of even date herewith (the "Purchase Agreement") regarding the
purchase by Airborne of 195 shares of the Company's common stock (the "Shares");
and
WHEREAS, the Parties desire to place certain restrictions on the transfer
of the Shares as well as the shares of the Company's common stock held by
Kingson, X. Xxxxxxxx, X. Xxxxxxxx (together with Airborne, the "Shareholders");
and
WHEREAS, the Company is planning to consummate an initial public offering
("IPO") of its common stock in the near future;,
NOW, THEREFORE, in consideration of the mutual premises set forth herein,
the Parties hereby agree as follows:
ARTICLE 1. RESTRICTIONS ON TRANSFER.
1.1 "Transfer" shall mean the direct or indirect, through intermediaries
or otherwise, sale, transfer, distribution, assignment, bequest, pledge,
hypothecation, encumbrance, grant of a security interest in, or grant, issuance,
sale or conveyance of any option, warrant or right to acquire, grant of a proxy
to vote, or other disposition of the Shares or shares, as the case may be, of
the common stock of the Company. "Transfer" shall not include a sale on the
open market or the Transfer of shares by the Company in connection with a
strategic acquisition or similar transaction where the Company (directly or
through one or more subsidiaries) is the acquiring party.
1.2 Airborne shall not Transfer the Shares or any interest therein to any
one or more companies (each an "Aramex Prohibited Company"), or their
subsidiaries, parents or known affiliates primarily engaged in the
transportation of air freight or air express shipments without first offering
such shares to the Company on the same terms and conditions as the proposed
Transfer to the Aramex Prohibited Company(s). Upon receipt of such offer, the
Company shall have twenty (20) days to accept or reject the terms of the offer
in writing. In the event the Company rejects the offer, Airborne shall be free
to Transfer the Shares which were the subject of the offer to the Aramex
Prohibited
Company(s) on the same terms and conditions it offered such shares to the
Company. The failure of the Company to accept or reject the offer in writing
shall be treated as a rejection of such offer. In the event that the Company
accepts the offer, the Company must complete the Transfer in accordance with the
same terms and condition set forth in the offer.
1.3 Neither the Company nor Kingson nor X. Xxxxxxxx nor X. Xxxxxxxx shall
Transfer any shares of the Company's common stock to any one or more of the
following companies (each an "Airborne Prohibited Company") or their
subsidiaries, parents or known affiliates:
(a) DHL Airways, Inc.;
(b) Federal Express Corporation;
(c) United Parcel Service Co.;
(d) TNT; or
(e) any other company primarily engaged in the transportation of air
freight or air express shipments.
without first offering such shares to Airborne on the same terms and conditions
as the proposed Transfer to the Airborne Prohibited Company(s). Upon receipt of
such offer, Airborne shall have twenty (20) days to accept or reject the terms
of the offer in writing. In the event Airborne rejects the offer, the Company,
Kingson, X. Xxxxxxxx and/or X. Xxxxxxxx, as the case may be, shall be free to
Transfer the shares which were the subject of the offer to the Airborne
Prohibited Company(s) on the same terms and conditions it offered such shares to
Airborne. The failure of Airborne to accept or reject the offer in writing
shall be treated as a rejection of such offer. In the event that Airborne
accepts the offer, Airborne must complete the Transfer in accordance with the
same terms and condition set forth in the offer.
1.4 Except as set forth in sections 1.2 and 1.3 above, and in accordance
with applicable law, the Company and each Shareholder may Transfer the Shares or
shares of the common stock of the Company, as the case may be, PROVIDED,
HOWEVER, that if the Company proposes to sell and issue any authorized but
unissued shares of stock of the Company to a third party for value, the Company
shall advise and consult with Airborne regarding such proposed sale. If the
Company proceeds.with the sale, it shall deliver notice in writing to Airborne
regarding such proposed sale within fifteen (15) days of consummation of the
sale. Notwithstanding the foregoing, an individual (as opposed to an entity)
Shareholder may, without consultation with Airborne but with notice to the
Company and each Shareholder, Transfer shares of the common stock of the Company
to such Shareholder's parents, spouse, spouse's parents, any child or grandchild
of the Shareholder, or a trust of which the trustee and all of the beneficiaries
are such Shareholder or one or more of such Shareholders parents, spouse,
spouse's parents, or children or grandchildren.
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1.5 It is agreed that should the Company, Kingson, X. Xxxxxxxx and/or X.
Xxxxxxxx opt to Transfer any shares of the, common stock of the Company to an
Airborne Prohibited Company, Airborne shall have the right to sell all, but not
less than all, of the Shares to the Company on the same terms and conditions as
the sale to the Airborne Prohibited Company. Notwithstanding any provision
herein to the contrary, this Article 1.5 shall survive the termination of this
Agreement pursuant to Article 2.1(a), 2.1(b) or 2.1(c).
1.6 Notwithstanding anything to the contrary contained herein, it is
understood and agreed that the Company (and its Bermuda successor entity) may
issue, and the Company, Kingson, X. Xxxxxxxx and/or X. Xxxxxxxx may Transfer,
shares in the IPO (and create a stock option plan in connection therewith and
issue and Transfer shares thereunder), including pursuant to any exercise of the
over-allotment option granted to the underwriters in the IPO.
ARTICLE 2. TERMINATION.
2.1 This Agreement shall immediately terminate and be of no further force
or effect if one or more of the following events (each a "Terminating Event" and
collectively, the "Terminating Events") occur:
(a) the Company consummates an IPO of its common stock; or
(b) there is a change of control at Airborne. For purposes of this
Article 2(b), a change of control shall mean:
(1) the sale, transfer or similar disposition of 30% or more of
Airborne's Authorized and issued stock to a single person or entity or
affiliated entities; or
(2) the sale, transfer or similar disposition of all or
substantially all of the assets of Airborne;
or
(c) the expiration of two (2) years from the date first written
above.
2.2 It is agreed that should the Company consummate a second public
offering of its common stock, the Company shall, at Airborne's written request,
arrange for the registration of the Shares at the Company's expense (except that
Airborne shall be responsible for its own attorneys' fees), subject to the usual
and customary business practices of such registrations, including without
limitation customary underwriters cutbacks, to be fully negotiated and agreed at
a later date. Notwithstanding any provision herein to the contrary, this
Article 2.2 shall survive termination of this Agreement pursuant to Article
2.1(a), 2.1(b) or 2.1(c).
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ARTICLE 3. FINANCIAL INFORMATION.
The Company shall furnish to Airborne a copy of its unaudited quarterly
financial statements within 45 days of the end of each quarter and a copy of its
audited annual financial statements within 90 days of the Company's fiscal
year-end.
ARTICLE 4. REINCORPORATION.
The Company and the Shareholders agree that the officers of the Company are
authorized to take all actions necessary to reincorporate, reorganize, effect a
share exchange or asset transfer under the laws of Bermuda.
ARTICLE 5. MATERIAL BREACH.
5.1 In the event of a material breach of any term or condition of this
Agreement by a Party (the "Breaching Party"), the non-breaching Party(s) (each a
"Non-Breaching Party" and collectively, the "Non-Breaching Parties") shall
deliver notice of such material breach to the Breaching Party and the Breaching
Party shall have ten (10) days to cure such material breach. In the event that
the Breaching Party fails to cure the breach within 10 days of receipt of
notice, then the Non-Breaching Party(s), and each of them, may pursue all
remedies available at law and in equity against the Breaching Party. The
Parties agree that breach of this Agreement could not be adequately compensated
with monetary damages and that injunctive relief and specific performance shall
be appropriate remedies.
5.2 In addition to the above-described remedies, any Transfer of the
Shares or shares of the common stock of the Company shall be null and void
unless the terms, conditions and provisions of this Agreement are strictly
observed and followed.
ARTICLE 6. MISCELLANEOUS.
6.1 Term. This Agreement shall be effective as of the date first written
above and shall remain in effect until such time as a Termination Event occurs.
6.2 Notice. All notices or other written correspondence delivered
hereunder shall be sent via confirmed facsimile transmission, prepaid first
class U.S. mail or recognized express mail carrier:
if to the Company, to: Aramex International, Limited
X.X. Xxx 0000
Xxxxx, 00000
Xxxxxx
Attn: President
Fax: 000-000-000-0000
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if to Kingson, to: Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
if to X. Xxxxxxxx, to: Xx. Xxxx Xxxxxxxx
c/o Aramex International, Limited
X.X. Xxx 0000
Xxxxx, 00000
Xxxxxx
Fax: 000-000-000-0000
if it X. Xxxxxxxx, to: Xx. Xxxx Xxxxxxxx
c/o Aramex International, Limited
X.X. Xxx 0000
Xxxxx, 00000
Xxxxxx
Fax: 000-000-000-0000
and if to Airborne, to: Airborne Freight Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Chairman & CEO
Fax: (000) 000-0000
with a copy to: Airborne Freight Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx,
Corporate Secretary/Counsel
Fax: (000) 000-0000
6.3 Entire Agreement. This Agreement and the Purchase Agreement represent
the entire agreement and understanding of the Parties and supersede all other
prior agreements and understandings, both written and oral, among the Parties,
or any of them, with respect to the subject matter hereof and thereof.
6.4 Modification; Waiver. This Agreement may be modified or amended only
by a writing executed by all Parties hereto. The waiver by any Party of such
Party's rights under this Agreement shall not constitute a waiver of any future
rights and/or enforcement of such rights.
6.5 Assignment. This Agreement shall not be assigned by any Party without
the prior written consent of each of the Parties.
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6.6 Severability. If any provision of this Agreement is found to be
illegal, invalid, or unenforceable under any applicable law, such contravention
or invalidity shall not invalidate the entire Agreement. Such provision shall
be deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification can render it legal, valid and
enforceable, then this Agreement shall be construed as if not containing such
provision and the rights and obligations of the Parties shall be construed and
enforced accordingly.
6.7 Headings. The headings of the articles and sections hereof have been
inserted for reference only and do not constitute a part of this Agreement.
6.8 Choice of Laws. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the United States of America, without
regard to the conflict of laws provisions thereof. Any litigation or other
enforcement procedure brought in connection with this Agreement shall be heard
in the state or federal courts of the United States.
6.9 Counterparts; Faxed Signatures. This Agreement may be executed in any
number of counterparts, each of which shall be deemed and original and together
shall constitute one and the same document. Signatures transmitted via
facsimile shall be considered original signatures.
6.10 Legend. The certificates representing the Shares shall bear a legend
substantially as follows:
The certificate is transferable only after compliance with the
provisions of that certain Shareholders Agreement dated as of the
day of October, 1996, as amended to date, and affecting the share
represented hereby, a copy of which is on file in the office of
the Secretary of the Company. That Agreement provides generally,
in certain circumstances, that rights of first refusal shall be
extended to Shareholders of the Company or the Company and that
transferee Shareholders and the transferred common stock shall be
subject to the terms, conditions, restrictions, requirements and
other provisions of the Shareholders Agreement.
6.11 Inspection. A copy of this Agreement shall be on file in the office
of the Secretary of the Company, and shall be available for inspection upon
reasonable notice to the Secretary during normal business hours.
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