EXHIBIT (d)(2)
VOTING AND TENDER AGREEMENT
THIS VOTING AND TENDER AGREEMENT, dated January 3, 2002 (the
"AGREEMENT"), is by and among Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxx and Xxxx Xxxxxxxx
(each a "SHAREHOLDER" and collectively, the "SHAREHOLDERS"), Rasmala
Distribution (Cayman) Limited, an exempted company incorporated with limited
liability under the laws of the Cayman Islands ("PARENT"), and Rasmala
Distribution (Bermuda) Limited, a company organized under the laws of Bermuda
("PURCHASER").
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Purchaser and Aramex International Limited, a company organized under the laws
of Bermuda (the "COMPANY"), have entered into an Agreement and Plan of
Amalgamation (the "AMALGAMATION AGREEMENT"), pursuant to which Purchaser has
agreed, among other things, to commence a cash tender offer (as such tender
offer may hereafter be amended from time to time, the "OFFER") to purchase all
of the Company's common shares, par value $0.01 per share (the "COMMON SHARES")
(including Common Shares issuable in respect of Options that have been
"conditionally exercised" by the holder thereof for purposes of participating in
the Offer), followed by either a compulsory acquisition of the remaining
outstanding Common Shares or the amalgamation of the Company and the Purchaser
(the "AMALGAMATION");
WHEREAS, as of the date hereof, each Shareholder is the registered and
beneficial owner of, and has the sole right to vote and dispose of, the number
of Common Shares listed opposite such Shareholder's name on Schedule I; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Amalgamation Agreement, each of Parent and Purchaser has required
that the Shareholders agree, and in order to induce Parent and Purchaser to
enter into the Amalgamation Agreement, each Shareholder has agreed, to enter
into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Amalgamation Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Amalgamation Agreement. In
addition, for purposes of this Agreement:
"AFFILIATE" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" means, with respect to any
securities, having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all Affiliates of such Person and all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d) of the
Exchange Act and the rules promulgated thereunder.
"ESCROW AGREEMENT" means the Escrow Agreement dated the date hereof
among Parent, Purchaser, the Shareholders and the Escrow Agent named therein.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"OWNED SHARES" means, with respect to any Shareholder, the Common
Shares either Beneficially Owned by or registered in the name of such
Shareholder on the date hereof or which may
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hereafter be acquired by such Shareholder; provided, that in the event of any
replacement or subsequent tender offer, Owned Shares shall mean the Common
Shares then Beneficially Owned by or registered in the name of such Shareholder.
"OPTIONS" means, with respect to any Shareholder, the options to
acquire Common Shares, which option is now owned or may hereafter be acquired by
such Shareholder.
"PERSON" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
"REPRESENTATIVE" means, with respect to any Person, such Person's
officers, directors, employees, agents and representatives (including any
investment banker, financial advisor, agent, representative or expert retained
by or acting on behalf of such Person or its subsidiaries).
"TRANSFER" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "TRANSFER"
shall have a correlative meaning.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of the
Shareholders hereby severally represents and warrants to Parent and Purchaser,
in each case as to himself or herself only, as follows:
(a) Such Shareholder is the Beneficial Owner or registered holder of
the Owned Shares and Options listed opposite such Shareholder's name on Schedule
I. Such Owned Shares and Options are all the securities of the Company either
Beneficially Owned by or registered in the name of such Shareholder as of the
date hereof and such Shareholder owns no other rights or interests exercisable
for or convertible into any securities of the Company. Such Owned Shares and
Options are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreement, limitations of any kind on
the Shareholder's voting rights, charges and other encumbrances of any nature
whatsoever except, with respect to the Options, the option plans and agreements
pursuant to which such Options were issued. None of the Owned Shares and Options
is currently subject to any voting trust, proxy or other contract, arrangement
or restriction with respect to the voting or disposition of the Owned Shares or
Options, except as expressly contemplated by this Agreement.
(b) Such Shareholder has all necessary power and authority to execute
and deliver this Agreement, to perform his or her obligations hereunder and to
consummate the transactions contemplated hereby.
(c) This Agreement has been duly and validly executed and delivered by
such Shareholder and constitutes a legal, valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its terms
(subject to bankruptcy, insolvency or similar laws of general application
affecting the enforcement of creditors' rights generally and to general
principles of equity).
(d) None of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the provisions
hereof will (i) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, lease, permit,
franchise, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Shareholder is a party and which imposes a
lien or restriction on such Shareholder's Owned Shares or Options or (ii)
violate any order, writ, injunction, decree, judgment, law, statute, rule or
regulation applicable to such Shareholder and his or her Owned Shares or
Options.
(e) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any court or arbitrator or any governmental
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body, agency or official except for applicable requirements, if any, of the
Exchange Act or the Exchange Control Regulations 1973 of Bermuda, and except
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or delay the
performance by such Shareholder of his or her obligations under this Agreement.
3. TENDER OF SHARES. Each Shareholder agrees that he or she shall (i)
tender, or cause the Registered Holder (as defined below) to tender, pursuant to
and in accordance with the terms of the Offer (or any replacement or subsequent
tender offer by Parent or any of its subsidiaries for Common Shares made prior
to the termination of this Agreement), all Owned Shares and (ii) "conditionally
exercise" any and all Options pursuant to and in accordance with the terms of
the Offer (or any replacement or subsequent tender offer by Parent or any of its
subsidiaries for Common Shares underlying "conditionally exercised" Options made
prior to the termination of this Agreement) and shall not withdraw any of such
Owned Shares, "conditionally exercised" Options or Owned Shares underlying
"conditionally exercised" Options, except following expiration of the Offer
pursuant to its terms or the termination of this Agreement pursuant to Section
13.
4. VOTING OF OWNED SHARES. During the period commencing on the date
hereof and continuing until the earlier of (x) the consummation of the Offer and
(y) the termination of this Agreement in accordance with Section 13, each of the
Shareholders hereby agrees as follows:
(a) unless Parent consents or requests otherwise, each Shareholder
shall, and shall cause the registered holder on any applicable record date with
respect to any Owned Shares of such Shareholder (the "REGISTERED HOLDER") to,
from time to time, at any meeting of shareholders of the Company (whether annual
or special and whether or not an adjourned or postponed meeting), however
called, or in connection with any written consent of the holders of Common
Shares, or in any other circumstances upon which a vote, consent or approval
with respect to the Amalgamation, the Amalgamation Agreement or any of the
transactions contemplated hereby or thereby are sought: (i) if a meeting is
held, appear at such meeting or otherwise cause the Owned Shares to be counted
as present thereat for purposes of establishing a quorum, and (ii) vote (or
cause to be voted), in person or by proxy, or consent (or cause to be consented)
the Owned Shares and any other voting securities of the Company (whether
acquired heretofore or hereafter) as to which such Shareholder has, directly or
indirectly, the right to vote or direct the voting in favor of the Amalgamation,
the Amalgamation Agreement and any other transactions contemplated hereby and
thereby; and
(b) unless Parent consents or requests otherwise, at any meeting of the
shareholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting), however called, or in connection with any
written consent of the holders of Common Shares, or in any other circumstances
upon which a vote, consent or approval of any of the shareholders of the Company
is sought, to vote (or cause to be voted), in person or by proxy, or consent (or
cause to be consented) the Owned Shares against any proposal for any
extraordinary corporate transaction, including a recapitalization, dissolution,
liquidation, or sale of assets of the Company or any amalgamation, consolidation
or other business combination (other than the Amalgamation), between the Company
and any Person (other than Purchaser, Parent, or a subsidiary of Parent) or any
other action or agreement that is intended or which reasonably could be expected
to: (i) result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company or any Group Entity under the
Amalgamation Agreement, (ii) result in any of the conditions to the Company's
obligations under the Amalgamation Agreement not being fulfilled or (iii)
impede, interfere with, delay, postpone or adversely affect the Offer, the
Amalgamation and the transactions contemplated by the Amalgamation Agreement
(the items in this clause (b), collectively, the "NEGATIVE VOTING MATTERS");
5. GRANTING OF PROXY.
(a) Each Shareholder, by this Agreement, with respect to the Owned
Shares, does hereby make, constitute and appoint Parent, or any nominee of
Parent, with full power of substitution and resubstitution, to the fullest
extent of each Shareholder's rights with respect to the Owned Shares (including
any and all other shares or securities issued or issuable in respect thereof on
or after the date hereof) as his true and lawful attorney and proxy for and in
his or her name, place and xxxxx, to exercise all voting and other rights
(including the power, as attorney, to execute and deliver written consents with
respect to the Owned Shares) of each of the Owned Shares as his or her proxy, at
any
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meeting of shareholders of the Company (whether annual or special and whether or
not an adjourned or postponed meeting), however called, or in connection with
any written consent of the holders of Common Shares, or in any other
circumstances in which a vote, consent or approval of any of the shareholders of
the Company is sought (including the right to sign his or her name (as
shareholder) to any consent, certificate or other document relating to the
Company that the law of Bermuda may permit or require): (i) in favor of the
Amalgamation, the Amalgamation Agreement, this Agreement and the other
transactions contemplated hereby and by the Amalgamation Agreement; (ii) against
any Negative Voting Matter or any other action or agreement that would result in
a breach or inaccuracy of, or failure to fulfill, any covenant, representation,
warranty, obligation or agreement of the Company or any Group Entity under the
Amalgamation Agreement; and (iii) in favor of any other matter necessary for the
consummation of the Offer, the Amalgamation and the other transactions
contemplated by the Amalgamation Agreement and this Agreement. Each Shareholder
further agrees to cause the Owned Shares to be voted or consented in accordance
with the foregoing.
(b) The proxy and power of attorney hereby granted by each Shareholder
to Parent, or any nominee of Parent, is granted as of the date hereof in order
to secure the obligations of Shareholder provided for herein and is irrevocable
and coupled with an interest in such obligations and is granted in consideration
of Parent's entering into this Agreement and the Amalgamation Agreement. This
proxy and power of attorney will terminate upon the termination of this
Agreement in accordance with its terms.
(c) Each Shareholder authorizes Parent, or any nominee of Parent, to
file this proxy and power of attorney and any substitution or revocation of
substitution with the Secretary of the Company and, if necessary, with any
inspector of elections or other appropriate person at any meeting of the
shareholders of the Company.
(d) Upon the execution hereof, all prior proxies or powers of attorney
in conflict with this proxy and power of attorney given by any of the
Shareholders with respect to the Owned Shares (including any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof) are hereby revoked.
6. ACKNOWLEDGMENT. Each Shareholder acknowledges receipt and review of
a copy of the Amalgamation Agreement and the Escrow Agreement.
7. NO INCONSISTENT AGREEMENT. Each Shareholder hereby covenants and
agrees that, except as contemplated by this Agreement, such Shareholder shall
not enter into any agreement, arrangement or understanding with, or grant a
proxy or power of attorney to, any Person with respect to the Owned Shares which
would prevent such Shareholder from complying with his or her obligations under
this Agreement.
8. CERTAIN COVENANTS.
(a) Each Shareholder covenants and agrees that if the proxy granted by
him or her in favor of Parent in Section 5 above has not been approved by the
Board of Directors of the Company on or before the date of this Agreement, he or
she will execute a proxy in the form attached as Exhibit A and file such proxy
with the Company.
(b) Simultaneous with payment by the Purchaser to each Shareholder for
the Owned Shares tendered in accordance with this Agreement, each Shareholder
hereby directs Purchaser, or its agent, to deduct from such payment and wire the
amount in Dollars set forth next to such Shareholder's name on Schedule II by
wire transfer to the account listed on Schedule III (such amounts, in the
aggregate, the "ESCROW AMOUNT").
9. RESTRICTIONS ON TRANSFER, OTHER PROXIES; NO SOLICITATION.
(a) Each Shareholder hereby covenants and agrees that, until this
Agreement is terminated in accordance with Section 13, such Shareholder shall
not, directly or indirectly: (i) except as provided in Section 3, transfer to
any Person any or all Owned Shares or Options and shall not cause any security
interests, liens, claims, pledges, charges, encumbrances, options, rights of
first refusal, agreements, or limitations of any kind on such Shareholder's
Owned Shares or the voting
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rights thereto to attach to the Owned Shares or to the Options or any Owned
Shares issuable thereunder to be tendered to Purchaser pursuant to Section 3, or
(ii) grant any proxies or powers of attorney, deposit any Owned Shares into a
voting trust or enter into a voting agreement, understanding or arrangement with
respect to such Owned Shares.
(b) From the date hereof until the consummation of the Offer or the
termination of this Agreement in accordance with its terms, each Shareholder (i)
shall immediately terminate any discussions with any third party concerning an
Acquisition Proposal and (ii) shall not, and shall not permit any of his or her
Representatives to, directly or indirectly, (A) encourage, solicit or initiate
any Acquisition Proposal, (B) participate in negotiations with, or provide any
information to, or otherwise take any other action to assist or facilitate any
Person or group (other than Parent or Purchaser or any affiliate or associate of
Parent or Purchaser) concerning any Acquisition Proposal, (C) enter into an
agreement with any Person, other than Parent, providing for a possible
Acquisition Proposal, or (D) make or authorize any statement, recommendation or
solicitation in support of any possible Acquisition Proposal by any Person,
other than by Parent. Notwithstanding the above, such Shareholder may take any
actions in the Shareholder's capacity as a director, officer or employee of the
Company permitted under the Amalgamation Agreement or as otherwise required by
applicable law.
10. INDEMNIFICATION BY SHAREHOLDERS.
(a) The Shareholders shall indemnify and hold harmless Parent,
Purchaser or the Amalgamated Company, as the case may be, and the officers,
shareholders and directors of each (an "INDEMNIFIED PARTY"), from and against
any loss, claim, damage, liability, expense (including, without limitation,
court costs and reasonable attorneys' and accountants' fees and reasonable costs
of investigation incurred in connection with the defense of a claim) or
obligation (hereinafter referred to collectively as "INDEMNIFIABLE DAMAGES")
which they or any of them may suffer or incur which are related to, caused by or
arise out of any:
(i) inaccuracy in or breach of the Shareholders'
representations and warranties set forth in Section 2 of this Agreement
or the Shareholders' failure to fulfil any of their covenants and
agreements set forth herein;
(ii) net Tax liability (including any interest or penalties
the Tax Reviewer reasonably believes the Company would be required to
pay as of the time of the Tax Reviewer's determination) based on
mathematical errors (taking such errors in the aggregate) that the Tax
Reviewer reasonably believes the Company would be required to pay if
such errors were raised in an Audit; or
(iii) additional Tax liability based on determinations made or
positions taken (or failed to be made or taken) by the Company for
which the Tax Reviewer reasonably believes the Company did not have a
reasonable basis.
(b) Notwithstanding the foregoing, the Shareholders shall not be liable
for indemnification unless written notice of a claim for indemnification is
given by an Indemnified Party on or before the date which is six months after
the date of this Agreement. If any part of the Escrow Amount is paid to a
Claiming Party (as defined in the Escrow Agreement) and at the time of the
expiration of the applicable statute of limitations the Company has not either
(i) filed an amended return reflecting such changes to the relevant Tax
Authority and paid the corresponding taxes, interest and penalties or (ii) been
audited with respect to such mathematical errors or positions and been assessed
additional liability in connection with such audit or audits, then the Claiming
Party shall promptly return such amount to the Shareholders (in the percentage
set forth on Schedule A to the Escrow Agreement).
(c) Notwithstanding anything else contained herein to the contrary:
(i) the Shareholders shall not be liable to indemnify Parent
or Purchaser (or the Amalgamated Company, as the case may be) for any
Indemnifiable Damages hereunder until the aggregate amount of all
Indemnifiable Damages, notice which has been given as provided in this
Agreement, shall exceed $50,000 and then for the entire amount of all
Indemnifiable Damages;
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(ii) in no event shall the Shareholders be liable to indemnify
for any Indemnifiable Damages relating to Section 10(a)(i) in excess of
the amount received by the Shareholders from Purchaser in payment for
the Owned Shares and Options; and
(iii) in no event shall the Shareholders be liable to
indemnify for any Indemnifiable Damages relating to Sections 10(a)(ii)
and (iii) in excess of the Escrow Amount.
The limitations on the Shareholders' indemnity obligations set forth in
this Section 10 shall not apply to any Indemnifiable Damages which are
determined to have resulted from fraud on the part of the Shareholder, the
Company or any Group Entity.
(d) An Indemnified Party shall notify the Shareholders and the Escrow
Agent in writing, of any claim or event known to it which does, or in its
reasonable judgement may, give rise to a claim for indemnification under this
Section 10 (an "INDEMNIFIABLE CLAIM"). Such notice shall describe the
Indemnifiable Claim, the amount or estimated amount thereof and the basis
therefor. The Shareholders shall have 30 days to respond to each such notice,
unless the claim relates to a claim, action, suit or proceeding brought by any
Person who is not a party to this Agreement (a "THIRD-PARTY CLAIM"), in which
case the Shareholders shall respond timely and promptly. In the event a response
to a notice of a Third-Party Claim is not timely made, the Indemnified Party may
respond to such Third-Party claim as it sees fit and seek indemnification
thereafter pursuant to the terms hereof. The omission of any Indemnified Party
to notify the Shareholders of any such Indemnifiable Claim shall not relieve the
Shareholders from any liability in respect of such Indemnifiable Claim except,
and only to the extent that, such failure shall result in material prejudice to
the Shareholders.
If the Indemnifiable Claim is based on a Third-Party Claim, the
Shareholders will be entitled to participate in the negotiation or
administration thereof and, to the extent that such Indemnifiable Claim relates
to the liability of the Shareholders, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Party. Any Indemnified Party shall
have the right to employ separate counsel in any such Third-Party Claim and to
participate in the defense thereto, but the fees and expenses of such counsel
shall not be at the expense of the Shareholders unless (i) the Shareholders
shall have timely failed to assume the defense of such Third-Party Claim, (ii)
the employment of such counsel has been specifically authorized by the
Shareholders, or (iii) the Shareholders' counsel is prohibited under applicable
rules of professional responsibility from representing the interests of both
parties in such defense. If the Shareholders do not assume the defense of a
Third-Party Claim, the Indemnified Party may assume the defense and seek
indemnification from time to time as the amount of the claim for which it is
entitled to be indemnified becomes liquidated. Notwithstanding the foregoing,
neither party shall pay, settle or compromise any such Third-Party Claim without
the prior written approval of the other party, which approval shall not be
unreasonably withheld or delayed. In connection with any Third-Party Claims, the
party claiming indemnification shall cooperate fully to make available to the
defending party all pertinent information under its control.
(e) To secure the indemnification obligations described in this Section
10, the Escrow Amount will be deposited into an escrow account in accordance
with the Escrow Agreement. The Escrow Amount will be subject to delivery to the
Shareholders, Parent or Purchaser (or the Amalgamated Company, as the case may
be) on the terms and subject to the conditions set forth in the Escrow
Agreement.
11. STOP TRANSFER. No Shareholder shall request that the Company
register the Transfer (book-entry or otherwise) of any certificated or
uncertificated interest representing any of the Owned Shares (including Owned
Shares issuable under the Options), unless such Transfer is made in compliance
with this Agreement.
12. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
13. TERMINATION. This Agreement, except for the provisions of Sections
2, 8, 10 and 14, shall terminate upon the earlier of (a) the date upon which
Purchaser shall have purchased and paid for all of the Owned Shares of such
Shareholder in accordance with the Offer (or any subsequent or
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replacement tender offer by Parent or any of its subsidiaries), (b) the date
upon which the Amalgamation Agreement is terminated pursuant to Sections 8.01(a)
- (d) thereof and (c) the date which is ninety (90) days after the date of the
Amalgamation Agreement if, by such date, Purchaser has not accepted for payment
Common Shares (including Common Shares underlying Options "conditionally
exercised" by the holders thereof for purposes of participating in the Offer)
tendered pursuant to the Offer in accordance with the terms thereof.
14. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, the Amalgamation Agreement and
the Escrow Agreement constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) COSTS AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
(c) ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors, personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned (whether by operation of law or otherwise) by any Shareholder, on the
one hand, or Parent or Purchaser, on the other, without the prior written
consent of Parent and Purchaser, or the Shareholders, respectively; provided,
that Parent and Purchaser may assign their respective rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent which is
an assignee of such parties' rights and obligations under the Amalgamation
Agreement. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
(d) AMENDMENTS. This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by each of the parties hereto. The
parties may waive compliance by the other parties hereto with any
representation, agreement or condition otherwise required to be complied with by
such other party hereunder, but any such waiver shall be effective only if in
writing executed by the waiving party.
(e) NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
Business Days after the day when mailed by certified or registered mail, postage
prepaid, addressed to the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Parent or Purchaser:
Rasmala Distribution (Cayman) Limited
Emirates Towers Xxxxxxx
00xx Xxxxx, Xxxxx 00X
Xxxxxx Xxxxx Xxxx
P.O. Box 31145
Dubai, United Arab Emirates
Attention: Xxxx Xxxxx and Xxx Xxxxx xx Xxxxxxx
Facsimile: x000 0 000 0000
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Rasmala Distribution (Bermuda) Limited
Emirates Towers Xxxxxxx
00xx Xxxxx, Xxxxx 00X
Xxxxxx Xxxxx Xxxx
P.O. Box 31145
Dubai, United Arab Emirates
Attention: Xxxx Xxxxx and Xxx Xxxxx xx Xxxxxxx
Facsimile: x000 0 000 0000
Copy to:
Xxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx, XX XX0X 0XX
Attention: Xxx Xxxxxxx
Facsimile: x00 (0)00 0000 0000
If to the Shareholders:
Xxxxxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxx
2 Badr Shaker Al Sayyab Street
Um Uthanya X.X. Xxx 0000
Xxxxx 00000
Xxxxxx
Facsimile: x000 0 000 0000
Xxxx Xxxxxxxx
2 Badr Shaker Al Sayyab Street
Um Uthanya X.X. Xxx 0000
Xxxxx 00000
Xxxxxx
Facsimile: x000 0 000 0000
Copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: x0 000 000 0000
(f) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law. If any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (i) will
waive, in any action for specific performance, the defense of adequacy of a
8
remedy at law and (ii) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement.
(h) REMEDIES. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any party
shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party; provided, however, that with respect to
Indemnifiable Damages, the Shareholders shall be liable for payment of damages
only to the extent set forth in Section 10. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(i) DIRECTORS' FIDUCIARY DUTIES. Notwithstanding anything herein to the
contrary, nothing set forth herein shall in any way restrict any director,
officer or employee in the exercise of his or her fiduciary or other duties as a
director, officer or employee of the Company.
(j) GOVERNING LAW; JURISDICTION.
(i) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
the principles of conflicts of law thereof, except as provided in
ss.5-1401 of the New York State General Obligation Laws. Each party
agrees that the United States District Court for the Southern District
of New York is to have non-exclusive jurisdiction to settle any
disputes arising out of or relating to this Agreement or any agreements
or transactions contemplated hereby and submits himself, herself or
itself and his, her or its property to the non-exclusive jurisdiction
of the foregoing courts with respect to such disputes.
(ii) Without prejudice to any other mode of service:
(A) the Shareholders each appoint National Registered
Agents, Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
as his or her agent for service of process relating to any
proceedings before the federal courts in New York in
connection with this Agreement and agree to maintain the
process agent in New York notified to Parent and Purchaser;
(B) Parent and Purchaser each appoint CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
agent for service of process relating to any proceedings
before the federal courts in New York in connection with this
Agreement and agree to maintain the process agent in New York
notified to the Shareholders;
(C) each party agrees that failure by a process agent
to notify him, her or it of the process shall not invalidate
the proceedings concerned; and
(D) each party consents to the service of process
relating to any such proceedings by prepaid mailing of a copy
of the process to his, her or its respective agent at the
address identified in paragraph (A) or (B) above or by prepaid
mailing by air mail, certified or registered mail of a copy of
the process to it at the address set forth in Section 14(e).
(iii) Each of the parties hereto:
(A) waives objection to the federal courts in New
York on grounds of inconvenient forum, venue or otherwise as
regards proceedings in connection with this Agreement or any
agreements or transactions contemplated hereby; and
(B) agrees that a final judgment or order of a
federal court in New York in connection with this Agreement or
any agreements or transactions contemplated
9
hereby is conclusive and binding on him, her or it, subject to
appellate review, and may be enforced against him, her or it
in the courts of any other jurisdiction.
(k) HEADINGS AND REFERENCES. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. Except as
specifically stated otherwise, references to Articles, Sections, Schedules and
Exhibits refer to Articles, Sections, Schedules and Exhibits of this Agreement.
References to this Agreement shall include the Schedules and Exhibits hereto.
(l) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, Parent, Purchaser and each Shareholder
have caused this Agreement to be duly executed as of the day and year first
above written.
RASMALA DISTRIBUTION (CAYMAN) LIMITED
By: /s/ Xxx Xxxxx xx Xxxxxxx
--------------------------------------------
Name: Xxx Xxxxx xx Xxxxxxx
--------------------------------------------
Title: Director
--------------------------------------------
RASMALA DISTRIBUTION (BERMUDA) LIMITED
By: /s/ Xxx Xxxxx xx Xxxxxxx
--------------------------------------------
Name: Xxx Xxxxx xx Xxxxxxx
--------------------------------------------
Title: Director
--------------------------------------------
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
EXHIBIT A
Form of Proxy
See attached.
EXHIBIT A
FORM OF P R O X Y
ARAMEX INTERNATIONAL LIMITED
This proxy is solicited on behalf of the Board of Directors of Aramex
International Limited.
The undersigned shareholder of Aramex International Limited (the
"Company") hereby constitutes and appoints Rasmala Distribution (Cayman) Limited
or any nominee of Rasmala Distribution (Cayman) Limited attorney and proxy of
the undersigned, with power of substitution, to attend, vote and act for the
undersigned at any special meeting of shareholders of the Company, a Bermuda
Company, to be held at any such time and at any such place as is determined by
the Board of Directors of the Company from time to time, and at any adjournments
thereof, during the period commencing with the date hereof and expiring on the
earlier of eleven months from the date hereof or the termination of the Voting
and Tender Agreement referred to below, with respect to the following on the
reverse side of this Proxy card:
(To be continued and signed on reverse side).
This proxy is irrevocable and is coupled with an interest of the undersigned in
the shares of the Company and the obligations of the undersigned pursuant to a
Voting and Tender Agreement to be entered into by the undersigned on the date
hereof. Capitalised terms used but not defined herein have the meanings given
such terms in such Voting and Tender Agreement.
[X] Please xxxx your votes as in this example
Example
Approve the proposed
FOR AGAINST ABSTAIN
[X] [ ] [ ]
Resolutions
1. The Amalgamation, the Amalgamation Agreement, the Voting and Tender
Agreement and the other transactions contemplated thereby and by the
Amalgamation Agreement and any other matters necessary for the
consummation of the Offer, the Amalgamation and the other transactions
contemplated by the Amalgamation Agreement and the Voting and Tender
Agreement.
FOR AGAINST ABSTAIN
[X] [ ] [ ]
2. Any Negative Voting Matter or any other action or agreement that would
result in a breach or inaccuracy of, or failure to fulfil any covenant,
representation, warranty, obligation or agreement of, the Company or any
Group Entity under the Amalgamation Agreement.
FOR AGAINST ABSTAIN
[ ] [X] [ ]
If not otherwise directed, this proxy will be voted FOR the matters set out at
number 1 above and AGAINST the matters set out at number 2 above.
The Board of Directors recommends voting in favour of matters set out at number
1 above and against matters set out at number 2 above.
PLEASE DATE, SIGN AND MAIL AT ONCE IN THE ENCLOSED POSTPAID ENVELOPE.
Signature __________________ Date________Signature_________________Date_________
(If held jointly)
NOTE: Please sign exactly as your name appears hereon. If signing as
attorney, executor, administrator, trustee, guardian or the like,
please give your full title as such. If signing for a corporation,
please give your title.
SCHEDULE I
Owned Shares
Number of Owned
Shares over which
Number of Shareholder has
Owned Shares Investment or Voting
(Beneficially or Number of Power (not included in
Name of Shareholder registered)1 Options owned prior columns)
------------------- ---------------- ------------- ----------------------
Xxxx Ghandour2 606,305 100,000 0
Rula Ghandour2 618,750 0 0
Xxxxxxx Xxxxxxx 1,231,600 100,000 0
TOTAL: 2,456,655 200,000 0
----------
1 Other than Owned Shares issuable upon exercise of Options listed in the
next column.
2 Xxxx and Xxxx Xxxxxxxx beneficially own each other's Owned Shares. The
figures presented in this Schedule do not assume beneficial ownership of
such shares.
SCHEDULE II
Escrow Amount
AMOUNT TO BE HELD IN ESCROW ACCOUNT
SHAREHOLDER UNDER THE ESCROW AGREEMENT
----------- -----------------------------------
Xxxx Xxxxxxxx $125,000
Xxxx Xxxxxxxx $125,000
Xxxxxxx Xxxxxxx $250,000
TOTAL: $500,000
SCHEDULE III
Escrow Account Information
Chase Manhattan Bank
00 Xxxxx Xxxxxx
Xxx Xxxx, XX
Account No.: 610 - 093 - 045
ABA No.: 021 - 000 - 021
American Stock Transfer & Trust Company as agent for Rasmala Distribution
(Cayman) Limited, Rasmala Distribution (Bermuda) Limited, Xxxx Xxxxxxxx, Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxx pursuant to an Escrow Agreement dated January 3,
2002
