Ex D(1)
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AGREEMENT AND PLAN OF AMALGAMATION
AMONG
Rasmala Distribution (Cayman) Limited,
Rasmala Distribution (Bermuda) Limited
and
Aramex International Limited
Dated January 3, 2002
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TABLE OF CONTENTS
ARTICLE I THE OFFER 1
Section 1.01 The Offer...................................................................................1
Section 1.02 Company Actions.............................................................................2
Section 1.03 Shareholder Lists...........................................................................3
Section 1.04 Directors...................................................................................3
ARTICLE II AMALGAMATION OR COMPULSORY ACQUISITION 4
Section 2.01 The Amalgamation............................................................................4
Section 2.02 Amalgamation Closing........................................................................4
Section 2.03 Amalgamation Effective Time.................................................................4
Section 2.04 Effects of the Amalgamation.................................................................4
Section 2.05 Memorandum of Association and Bye-laws of the Amalgamated Company...........................4
Section 2.06 Directors and Officers......................................................................5
Section 2.07 Conversion of Common Shares.................................................................5
Section 2.08 Conversion of Common Shares of Purchaser....................................................5
Section 2.09 Shareholders' Meeting.......................................................................5
Section 2.10 Common Shares of Dissenting Shareholders....................................................5
Section 2.11 Compulsory Acquisition of Common Shares.....................................................5
Section 2.12 Withholding Taxes...........................................................................6
ARTICLE III PAYMENT FOR COMMON SHARES 6
Section 3.01 Fund for Payment for Common Shares..........................................................6
Section 3.02 Payment for Common Shares under the Amalgamation............................................6
Section 3.03 Payment for Common Shares under the Compulsory Acquisition..................................7
Section 3.04 Closing of the Company's Transfer Books.....................................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY 7
Section 4.01 Organization and Qualification..............................................................7
Section 4.02 Capitalization..............................................................................8
Section 4.03 Charter Documents; Minutes; Etc.............................................................9
Section 4.04 Authority for this Agreement................................................................9
Section 4.05 Consents and Approvals; No Violation........................................................9
Section 4.06 Reports; Financial Statements..............................................................10
Section 4.07 Absence of Certain Changes.................................................................10
Section 4.08 Schedule 14D-9, Offer Documents and Proxy Statement........................................10
Section 4.09 Brokers....................................................................................11
Section 4.10 Labor and Employment Matters...............................................................11
Section 4.11 Employee Benefit Plans; ERISA..............................................................12
Section 4.12 Litigation, Etc............................................................................13
Section 4.13 Tax Matters................................................................................13
Section 4.14 Compliance with Law........................................................................14
Section 4.15 Environmental Matters......................................................................14
Section 4.16 Intellectual Property......................................................................15
Section 4.17 Information Technology.....................................................................15
Section 4.18 Real Property..............................................................................16
Section 4.19 Material Contracts.........................................................................16
Section 4.20 Related Party Transactions.................................................................17
Section 4.21 Opinion of Financial Advisor...............................................................17
Section 4.22 Vote Required..............................................................................17
Section 4.23 Anti-Takeover Plan; Takeover Statutes......................................................17
Section 4.24 Insurance..................................................................................17
Section 4.25 Accounts Receivable........................................................................17
Section 4.26 Customers..................................................................................18
Section 4.27 Powers of Attorney.........................................................................18
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Section 4.28 Joint Ventures and Agreements..............................................................18
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER 18
Section 5.01 Organization and Qualification.............................................................18
Section 5.02 Authority for this Agreement...............................................................19
Section 5.03 Offer Documents; Proxy Statement...........................................................19
Section 5.04 Consents and Approvals; No Violation.......................................................19
Section 5.05 Brokers....................................................................................19
Section 5.06 Litigation.................................................................................20
Section 5.07 Sufficient Funds...........................................................................20
Section 5.08 Source of Funds, No Violations.............................................................20
ARTICLE VI COVENANTS 20
Section 6.01 Conduct of Business of the Company.........................................................20
Section 6.02 No Solicitation............................................................................22
Section 6.03 Access to Information......................................................................23
Section 6.04 Reasonable Efforts; Further Actions........................................................23
Section 6.05 Indemnification and Insurance..............................................................23
Section 6.06 Employee Matters...........................................................................24
Section 6.07 Proxy Statement............................................................................24
Section 6.08 Notification of Certain Matters............................................................24
Section 6.09 Press Releases.............................................................................24
Section 6.10 Review.....................................................................................25
Section 6.11 Existing Stock Options.....................................................................25
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE AMALGAMATION 25
Section 7.01 Conditions to Each Party's Obligation to Effect the Amalgamation...........................25
ARTICLE VIII TERMINATION; AMENDMENT; WAIVER 26
Section 8.01 Termination................................................................................26
Section 8.02 Effect of Termination......................................................................26
Section 8.03 Fees and Expenses..........................................................................27
Section 8.04 Amendment..................................................................................27
Section 8.05 Extension; Waiver; Remedies................................................................27
ARTICLE IX MISCELLANEOUS 28
Section 9.01 Survival of Representations and Warranties.................................................28
Section 9.02 Entire Agreement; Assignment...............................................................28
Section 9.03 Validity...................................................................................28
Section 9.04 Notices....................................................................................28
Section 9.05 Governing Law; Jurisdiction................................................................29
Section 9.06 Parties In Interest........................................................................30
Section 9.07 Counterparts...............................................................................30
ARTICLE X DEFINITIONS AND INTERPRETATIONS 30
Section 10.01 Definitions................................................................................30
Section 10.02 Descriptive Headings.......................................................................35
Section 10.03 Interpretation.............................................................................35
Section 10.04 References.................................................................................35
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EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A ............................................................. Conditions to the Offer
Exhibit B ............................................ Memorandum of Association of the Company
Exhibit C ....................................... Directors and Officers of Amalgamated Company
Exhibit D ........................................................... Form of Deed of Variation
Exhibit E ....................................................... Form of Letter of Appointment
SCHEDULES*:
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Schedule 4.01(b) ............................................................... Group Entities
Schedule 4.02(a) ................................................. Voting Trusts and Agreements
Schedule 4.02(b) ................................................................ Stock Options
Schedule 4.02(c) ..................................................................... Warrants
Schedule 4.02(e) .............................................. Group Entities and Encumbrances
Schedule 4.05(b) ................................................. Governmental Entity Consents
Schedule 4.05(c) ............................................................... Other Consents
Schedule 4.06(a) ............................................................ Furnished Reports
Schedule 4.06(c) .................................................................. Liabilities
Schedule 4.07 ................................................................. Material Events
Schedule 4.10 ................................................................... Labor Matters
Schedule 4.10(g) ........................................... Standard Form Management Agreement
Exhibit 1 to Schedule 4.10(g) ...................... Copy of Standard Form Management Agreement
Schedule 4.11(a) ....................................................... Employee Benefit Plans
Schedule 4.12(a) ................................................................... Litigation
Schedule 4.13(a) .................................................................. Tax Returns
Schedule 4.13(b) ................................................................... Tax Issues
Schedule 4.13(c) ............................................................ Outstanding Taxes
Schedule 4.13(d) .................................................... Tax Agreements and Claims
Schedule 4.15 ............................................................ Environmental Claims
Schedule 4.16(d) ........................................................ Intellectual Property
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Schedule 4.18(b) ....................................................................... Leases
Schedule 4.19(a) ........................................................... Material Contracts
Schedule 4.19(b) ........................................................... Trade Restrictions
Schedule 4.24 .............................................................. Insurance Policies
Schedule 4.26 ....................................................................... Customers
Schedule 4.27 .............................................................. Powers of Attorney
* All schedules and exhibits to schedules have been intentionally omitted. The
registrant hereby undertakes to furnish supplementally a copy of any omitted
schedule to this Agreement and Plan of Amalgamation to the Securities and
Exchange Commission upon request.
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AGREEMENT AND PLAN OF AMALGAMATION
AGREEMENT AND PLAN OF AMALGAMATION (this "AGREEMENT"), dated January 3,
2002 among Rasmala Distribution (Cayman) Limited, an exempted company
incorporated with limited liability under the laws of the Cayman Islands
("PARENT"), Rasmala Distribution (Bermuda) Limited, a company organized under
the laws of Bermuda and a wholly owned subsidiary of Parent ("PURCHASER"), and
Aramex International Limited, a company organized under the laws of Bermuda (the
"COMPANY").
RECITALS
WHEREAS, the Boards of Directors of Parent, Purchaser and the Company have
each determined that this Agreement and the transactions contemplated hereby,
including the Amalgamation, are advisable and fair to, and in the best interests
of, their respective shareholders;
WHEREAS, the Board of Directors of the Company has adopted resolutions
approving the acquisition of the Company by Parent and Purchaser, this Agreement
and the transactions contemplated hereby;
WHEREAS, simultaneously with the execution and delivery of this Agreement,
certain shareholders of the Company have entered into a Voting and Tender
Agreement, dated as of the date hereof (the "VOTING AND TENDER AGREEMENT"), with
Parent and Purchaser; and
WHEREAS, Parent, Purchaser and the Company desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement and the transactions contemplated hereby.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Article I
THE OFFER
SECTION 1.01 THE OFFER.
(a) Provided that this Agreement shall not have been terminated in
accordance with Section 8.01 and that none of the events set forth in Exhibit A
shall have occurred or be existing, or any such occurrence or existence shall
have been waived in writing by Purchaser, Purchaser shall, and Parent shall
cause Purchaser to, as promptly as practicable (but in no event later than ten
(10) Business Days following the public announcement of the execution of this
Agreement) commence (within the meaning of Rule 14d-2 under the Exchange Act),
an offer to purchase all outstanding Common Shares (including those Common
Shares issuable in respect of Existing Stock Options that have been
"conditionally exercised" by the holder thereof for purposes of participating in
the Offer), at a price (such price, or any higher price as may be paid in the
Offer, the "OFFER PRICE") of $12.00 per Share, in cash (such tender offer, as it
may be amended and supplemented from time to time as permitted under this
Agreement, the "OFFER"). The obligation of Purchaser to consummate the Offer and
to accept for payment and pay for any Shares tendered pursuant thereto shall be
subject to the terms and conditions set forth in this Agreement and to those
conditions set forth in Exhibit A (the "OFFER CONDITIONS"), any of which may be
waived by Purchaser in its sole discretion and without any consent of the
Company. The initial expiration date of the Offer shall be the twentieth US
Business Day following the commencement of the Offer. Purchaser expressly
reserves the right to modify the terms of the Offer, except that, without the
prior written consent of the Company, Purchaser shall not (A) decrease the Offer
Price or change the form of the consideration payable in the Offer, (B) decrease
the number of Shares sought pursuant to the Offer, (C) impose additional
conditions to
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the Offer, (D) change the conditions to the Offer (other than a
reduction in the Minimum Tender Condition) or (E) make any other change in the
terms or conditions of the Offer which is adverse to the holders of Common
Shares.
(b) Subject to the terms and conditions of this Agreement and to the
satisfaction or waiver of the Offer Conditions as of any scheduled expiration of
the initial offering period of the Offer, Purchaser shall accept for payment
Shares validly tendered and not withdrawn pursuant to the Offer and pay for such
Shares promptly after such scheduled expiration. Notwithstanding the foregoing,
Purchaser and Parent shall have the right to (i) extend the Offer, from time to
time, if at the expiration date of the Offer (with respect to either the initial
offering period or an extended offering period, as the case may be) any of the
conditions to the Offer have not been satisfied or waived, (ii) extend the Offer
for any period required by any regulation, interpretation or position of the SEC
or the staff thereof applicable to the Offer or (iii) elect to provide one or
more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act
(collectively, the "SUBSEQUENT PERIOD"). In addition, the Offer Price may be
increased and the Offer may be extended to the extent required by law in
connection with such increase in each case without the consent of the Company.
(c) On the date of commencement of the Offer, Purchaser shall file or cause
to be filed with the SEC a Schedule TO with respect to the Offer which will
comply in all material respects with the provisions of, and satisfy in all
material respects the requirements of, such Schedule TO and all applicable US
federal securities laws and shall contain the offer to purchase and related
letter of transmittal and other ancillary Offer documents and instruments
pursuant to which the Offer will be made (collectively with any supplements or
amendments thereto, the "OFFER DOCUMENTS"). The Company and its counsel shall be
given a reasonable opportunity to review and comment on the Offer Documents
prior to their filing with the SEC. Purchaser agrees to provide the Company
with, and to consult with the Company regarding, any comments that may be
received from the SEC or its staff or any other regulatory authority with
respect to the Offer Documents promptly after receipt thereof. Parent, Purchaser
and the Company each agree promptly to correct any information provided by it
for use in the Offer Documents if and to the extent that it shall have become
false or misleading in any material respect and Purchaser further agrees to take
all steps necessary to cause the Offer Documents as so corrected to be filed
with the SEC and be disseminated to holders of Common Shares and Existing Stock
Options, in each case as and to the extent required by applicable law.
SECTION 1.02 COMPANY ACTIONS.
(a) The Company hereby consents to the Offer and represents and warrants
that:
(i) its Board of Directors (at a meeting or meetings duly called and
held, or by unanimous written consent, prior to the date hereof) has:
(A) determined that the terms of each of the Offer and the
Amalgamation are advisable and fair to, and in the best interests of,
the shareholders of the Company;
(B) approved and adopted this Agreement and the transactions
contemplated hereby (including the Offer and the Compulsory
Acquisition or the Amalgamation);
(C) resolved to recommend acceptance of the Offer and approval
and adoption of the plan of amalgamation (as provided in Part VII of
the Companies Act) substantially on the terms and conditions described
in this Agreement by the shareholders of the Company and to direct
that the plan of amalgamation be submitted to the shareholders of the
Company for approval; and
(D) resolved to elect, to the extent permitted by law, not to be
subject to any Takeover Laws of any jurisdiction that may purport to
be applicable to this Agreement;
provided, however, while any offering period remains open, such
consent, determination, recommendation, rendering and election by the
Company's Board of Directors
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specified in this Section 1.02(a)(i) may be withdrawn, modified, rescinded
or amended if the Company's Board of Directors determines to accept a
Superior Proposal; and
(ii) The Financial Advisor has, at the expense of the Company,
delivered to the Company's Board of Directors an opinion to the effect that
the consideration to be paid in the Offer and the Amalgamation to the
Company's shareholders is fair, from a financial point of view, to such
shareholders and a true and complete copy of such opinion has been given to
Parent and Purchaser.
(b) Upon commencement of the Offer, the Company shall file with the SEC a
Schedule 14D-9 containing the recommendations of its Board of Directors
described in Section 1.02(a), and hereby consents to the inclusion of such
recommendations in the Offer Documents, and shall disseminate the Schedule 14D-9
to holders of Common Shares and Existing Stock Options as required by Rule 14D-9
promulgated under the Exchange Act. The Company shall cooperate with Parent and
Purchaser to include a copy of the Schedule 14D-9 with the Offer Documents
mailed or furnished to the holders of Common Shares and Existing Stock Options.
Parent and Purchaser shall provide the Company all information reasonably
requested by the Company for inclusion in the Schedule 14D-9. Parent, Purchaser
and their counsel shall be given a reasonable opportunity to review and comment
on the Schedule 14D-9 prior to its filing with the SEC. The Company agrees to
provide Parent and Purchaser with, and to consult with Parent and Purchaser
regarding, any comments that may be received from the SEC or its staff or any
other regulatory authority with respect to the Schedule 14D-9 promptly upon
receipt thereof. Parent, Purchaser and the Company each agree promptly to
correct any information provided by it for use in the Schedule 14D-9 if and to
the extent that it shall have become false or misleading in any material respect
and the Company further agrees to take all steps necessary to cause the Schedule
14D-9 as so corrected to be filed with the SEC and be disseminated to holders of
Common Shares and Existing Stock Options, in each case as and to the extent
required by applicable law.
SECTION 1.03 SHAREHOLDER LISTS. In connection with the Offer, upon Parent's or
Purchaser's request, the Company shall cause the Transfer Agent to furnish
Parent and Purchaser promptly with mailing labels, security position listings
and any available listing or computer file containing the names and addresses of
the registered holders of the Common Shares and Existing Stock Options as of a
recent date and shall cause the Transfer Agent to furnish Parent and Purchaser
with such information and assistance (including, without limitation, updated
lists of shareholders, mailing labels and lists of securities positions) as
Parent or Purchaser or their agents may reasonably request in communicating the
Offer to the registered and beneficial holders of the Common Shares and Existing
Stock Options. Subject to the requirements of applicable law, Parent and
Purchaser, except only as is necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Amalgamation or the Compulsory
Acquisition, shall hold in confidence and make no use of the information
contained in any such labels, listings and files except in connection with the
Offer and the Amalgamation or the Compulsory Acquisition; and if this Agreement
is terminated, will promptly deliver or cause to be delivered to the Company all
copies of such information then in their possession or under their control.
SECTION 1.04 DIRECTORS.
(a) Subject to applicable law and any applicable listing requirements,
promptly upon the payment by Purchaser pursuant to the Offer for such number of
Shares as represents at least a majority of the outstanding Shares, and from
time to time thereafter, Purchaser shall be entitled to designate such number of
directors, rounded up to the nearest whole number, to serve on the Board of
Directors of the Company as will give Purchaser representation on the Board of
Directors of the Company equal to the product of (i) the number of directors on
the Board of Directors of the Company (giving effect to the election of any
additional directors pursuant to this section) and (ii) the percentage that such
number of Shares owned (beneficially or registered) by Parent and/or Purchaser
bears to the number of Common Shares outstanding. The Company shall co-operate
fully and promptly take all actions reasonably requested by Purchaser to enable
Purchaser's designees to be elected or appointed to the Board of Directors of
the Company, including, without limitation, securing the resignations of such
number of directors as is necessary to provide Purchaser with such level of
representation; provided, however, that the Board of Directors of the Company
shall continue to include no fewer than three Continuing Directors (as defined
below) until the Effective Time. The
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Company will co-operate fully with Purchaser to ensure that persons designated
by Purchaser constitute the same percentage on each committee of the Board of
Directors of the Company, except the committee referred to in Section 1.04(b),
as is on the entire Board of Directors of the Company, (giving effect to this
Section 1.04(a)). The Company's obligations to appoint designees to its Board of
Directors shall be subject to compliance with Section 14(f) of the Exchange Act,
to the extent applicable. At the request of Purchaser, the Company shall
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1
promulgated under the Exchange Act (to the extent such section and rule are
applicable) in order to fulfill its obligations under this Section 1.04 and
shall include in the Schedule 14D-9 or otherwise timely mail to its shareholders
all necessary information to comply therewith. Parent and Purchaser will supply
to the Company all information with respect to themselves and their respective
officers, directors and affiliates required by such Section and Rule.
(b) Purchaser agrees that, following the election or appointment of
Purchaser's designees pursuant to Section 1.04(a) and prior to the Effective
Time, any amendment or termination of this Agreement requiring action by the
Company, any extension of time for the performance of any of the obligations or
other acts of Parent or Purchaser under this Agreement and any exercise or
waiver of any of the Company's rights or remedies under this Agreement will
require the affirmative vote of a majority of the directors of the Company then
in office who are directors of the Company on the date hereof (the "CONTINUING
DIRECTORS"). Purchaser agrees that it will vote its Common Shares in favor of
any corporate action necessary to ensure that there are three Continuing
Directors between the Acceptance Date and the Effective Time and as otherwise
necessary to effect this Section 1.04(b).
ARTICLE II
AMALGAMATION OR COMPULSORY ACQUISITION
SECTION 2.01 THE AMALGAMATION. Should Purchaser be unable to conduct a
compulsory acquisition of the outstanding Common Shares that were not tendered
pursuant to the Offer as described in Section 2.11 below, then upon the terms
and subject to the conditions set forth in this Agreement, and in accordance
with the Companies Act, the Company and the Purchaser shall be amalgamated (the
"AMALGAMATION") at the Amalgamation Effective Time. The Company and the
Purchaser will continue as the amalgamated company under Bermuda law and all of
the rights, privileges, immunities, powers and franchises of Purchaser and the
Company shall be those of the amalgamated company resulting from the
Amalgamation (the "AMALGAMATED COMPANY"). The Amalgamated Company shall operate
under the name of "Aramex International Limited" and continue under the
provisions of the Companies Act and other applicable Bermuda law.
SECTION 2.02 AMALGAMATION CLOSING. Subsequent to satisfaction or waiver, where
permissible, of the conditions set forth in Article VII, the closing of the
Amalgamation shall take place at a time, place and date specified by the parties
hereto.
SECTION 2.03 AMALGAMATION EFFECTIVE TIME. As soon as practicable after the
expiration of the Offer (including any Subsequent Period), Purchaser and the
Company shall file a joint application for the consent of the Bermuda Minister
of Finance to any special objects or purposes which may be contained in the
proposed Memorandum of Association of the Amalgamated Company and, as soon as
practicable after receipt of any such consent and the satisfaction or, to the
extent permitted hereunder, waiver of all conditions hereunder to the
Amalgamation, Purchaser and the Company shall make all filings or recordings
required by the Companies Act to perfect or complete the Amalgamation. The
Amalgamation shall become effective on the date shown in the certificate of
amalgamation (the "CERTIFICATE OF AMALGAMATION") issued in accordance with
Section 108 of the Companies Act by the Registrar of Companies in Bermuda (the
time the Amalgamation becomes effective, the "AMALGAMATION EFFECTIVE TIME").
SECTION 2.04 EFFECTS OF THE AMALGAMATION. The Amalgamation shall have the
effects set forth in Section 109 of the Companies Act.
SECTION 2.05 MEMORANDUM OF ASSOCIATION AND BYE-LAWS OF THE AMALGAMATED COMPANY.
The memorandum of association of the Company which is attached as Exhibit B
shall be the memorandum of association of the Amalgamated Company (as provided
in Section 105 of the
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Companies Act) until thereafter changed or amended as provided
therein or by applicable law. The bye-laws of Purchaser, as in effect
immediately prior to the Amalgamation Effective Time, shall be the bye-laws of
the Amalgamated Company until thereafter changed or amended as provided therein
or by applicable law.
SECTION 2.06 DIRECTORS AND OFFICERS. The directors and officers (and resident
representative, if any) of Purchaser at the Amalgamation Effective Time shall,
together with those additional persons listed on Exhibit C, from and after the
Amalgamation Effective Time, be the directors and officers (and resident
representative, if any), respectively, of the Amalgamated Company until their
successors shall have been duly elected or appointed or qualified or until their
earlier death, resignation or removal in accordance with the Companies Act and
the bye-laws of the Amalgamated Company. The name and address of each proposed
director and officer of the Amalgamated Company is set forth in Exhibit C.
SECTION 2.07 CONVERSION OF COMMON SHARES. Each Common Share issued and
outstanding immediately prior to the Amalgamation Effective Time (other than
Common Shares owned by Parent or Purchaser, all of which shall be cancelled
without any consideration being exchanged therefor) shall, by virtue of the
Amalgamation and without any action on the part of the holder thereof, be
converted at the Amalgamation Effective Time into the right to receive in cash
an amount per Common Share (subject to any applicable withholding tax as
specified in Section 2.12) equal to the Offer Price, without interest (the
"AMALGAMATION CONSIDERATION"), upon the surrender of the certificate
representing such Common Shares as provided in Section 3.02.
SECTION 2.08 CONVERSION OF COMMON SHARES OF PURCHASER. Each common share, par
value $1.00 per share, of Purchaser issued and outstanding immediately prior to
the Amalgamation Effective Time shall, by virtue of the Amalgamation and without
any action on the part of the holder thereof, be converted into and become one
common share of the Amalgamated Company.
SECTION 2.09 SHAREHOLDERS' MEETING. Unless Purchaser is able to conduct a
compulsory acquisition of the outstanding Common Shares not tendered in the
Offer as contemplated by Section 2.11, then subject to Part VII of the Companies
Act, the Company acting through its Board of Directors shall (i) duly call, give
notice of, convene and hold a special general meeting (the "SPECIAL MEETING") of
its shareholders as soon as practicable following the consummation of the Offer
for the purpose of approving the plan of amalgamation set forth in this
Agreement and (ii) include in the corresponding Proxy Statement the
recommendation of its Board of Directors that shareholders of the Company vote
in favor of the adoption of the plan of amalgamation substantially on the terms
and conditions described in this Agreement. Parent and Purchaser each agree
that, at the Special Meeting, all of the Common Shares acquired pursuant to the
Offer or otherwise owned or acquired by Parent or Purchaser shall be voted in
favor of the Amalgamation.
SECTION 2.10 COMMON SHARES OF DISSENTING SHAREHOLDERS. Notwithstanding anything
in this Agreement to the contrary, in connection with the Amalgamation (if there
is no compulsory acquisition pursuant to Section 2.11), holders of
then-outstanding Common Shares shall have rights pursuant to Section 106 of the
Companies Act, provided such holders comply with the provisions of such Section.
For purposes of applying the foregoing provisions of the Companies Act, the date
of the corporate action triggering the obligation to provide notice of
dissenters' rights to the holders of then-outstanding Common Shares shall be the
date on which notice of the shareholder's meeting to approve the Amalgamation is
deemed to be received by such holders.
SECTION 2.11 COMPULSORY ACQUISITION OF COMMON SHARES. If, after completion of
the Offer, 90% in value of the then outstanding Common Shares not held at the
date of the Offer by Purchaser, a subsidiary of Purchaser or a nominee for
either of them have been tendered, then in lieu of the Amalgamation otherwise
described in this Article II, Purchaser shall act to compulsorily acquire the
Common Shares that were not tendered in the Offer pursuant to the provisions of
Section 102 of the Companies Act (the "COMPULSORY ACQUISITION") on the date
falling one month from the date notice of such acquisition has been given to the
remaining shareholders of the Company, assuming that the Bermuda Supreme Court
has not ordered otherwise during such month based on an application by a
dissenting shareholder (such date, the "COMPULSORY ACQUISITION EFFECTIVE TIME").
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SECTION 2.12 WITHHOLDING TAXES. Parent, Purchaser and the Amalgamated Company
shall be entitled to deduct and withhold from the consideration otherwise
payable to a holder of Common Shares or Existing Stock Options pursuant to the
Offer, the Amalgamation or the Compulsory Acquisition, as applicable, any stock
transfer taxes and such amounts as are required to be withheld under the Code,
or any applicable provision of state, local or foreign tax law. To the extent
that amounts are so withheld, such withheld amounts shall be treated for all
purposes of this Agreement and the Offer, the Amalgamation or the Compulsory
Acquisition as having been paid to the holder of Common Shares or Existing Stock
Options in respect of which such deduction and withholding was made.
ARTICLE III
PAYMENT FOR COMMON SHARES
SECTION 3.01 FUND FOR PAYMENT FOR COMMON SHARES. Prior to the Effective Time,
Parent will cause Purchaser to make available to a bank or trust company
designated by Parent (the "PAYING AGENT") sufficient funds to make the payments
pursuant to Section 2.07 or Section 2.11 on a timely basis to holders (other
than Parent or Purchaser) of Common Shares that are issued and outstanding
immediately prior to the Effective Time (such amounts, the "PAYMENT FUND"). The
Paying Agent shall make the payments provided for in the preceding sentence out
of the Payment Fund. The Payment Fund shall not be used for any other purpose,
except as provided in this Agreement.
SECTION 3.02 PAYMENT FOR COMMON SHARES UNDER THE AMALGAMATION.
(a) As soon as reasonably practicable after the Amalgamation Effective
Time, the Amalgamated Company shall cause the Paying Agent to mail to each
registered holder, as of the Amalgamation Effective Time, of an outstanding
certificate or certificates which immediately prior to the Amalgamation
Effective Time represented Common Shares (the "CERTIFICATES"), a form of letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Paying Agent) and instructions for use in effecting the
surrender of the Certificates and receiving payment therefor. Following
surrender to the Paying Agent of a Certificate, together with a duly executed
letter of transmittal and such other documents as may be reasonably required by
the Paying Agent, the holder of such Certificate shall be paid in exchange
therefor cash in an amount (subject to any applicable withholding tax as
specified in Section 2.12) equal to the product of the number of Common Shares
represented by such Certificate multiplied by the Amalgamation Consideration,
and such Certificate shall forthwith be canceled. No interest will be paid or
accrued on the cash payable upon the surrender of the Certificates. If payment
is to be made to a Person other than the Person in whose name the Certificate
surrendered is registered, it shall be a condition of payment that the
Certificate so surrendered shall be properly endorsed or otherwise be in proper
form for transfer and that the Person requesting such payment pay any transfer
or other taxes required by reason of the payment to a Person other than the
registered holder of the Common Shares represented by the Certificate
surrendered or establish to the satisfaction of the Amalgamated Company that
such tax has been paid or is not applicable. From and after the Amalgamation
Effective Time and until surrendered in accordance with the provisions of this
Section 3.02, each Certificate (other than Certificates representing Common
Shares owned by Parent or Purchaser) shall represent for all purposes solely the
right to receive, in accordance with the terms hereof, the Amalgamation
Consideration in cash multiplied by the number of Common Shares represented by
such Certificate, without any interest thereon.
(b) If any Certificate shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed and, if required by the Amalgamated Company, the
posting by such Person of a bond in such amount as the Amalgamated Company may
direct as indemnity against any claim that may be made against it with respect
to such Certificate, the Paying Agent will deliver, in exchange for such
affidavit claiming such Certificate is lost, stolen or destroyed, the applicable
Amalgamation Consideration with respect to the Common Shares formerly
represented thereby.
6
(c) Any portion of the Payment Fund (including the proceeds of any
investments thereof) that remains unclaimed by the former shareholders of the
Company for six months after the Amalgamation Effective Time shall be repaid to
the Amalgamated Company. Any former shareholders of the Company who have not
complied with this Section 3.02 prior to the end of such six-month period shall
thereafter look only to the Amalgamated Company (subject to abandoned property,
escheat or other similar laws), but only as general creditors thereof for
payment of their claim for the Amalgamation Consideration, without any interest
thereon, upon due surrender of the Certificates held by them. Neither Parent,
the Amalgamated Company nor the Paying Agent shall be liable to any holder of
Common Shares for any monies delivered from the Payment Fund or otherwise to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any Certificates shall not have been surrendered prior to two
years after the Amalgamation Effective Time (or such earlier date as shall be
immediately prior to the date that such unclaimed funds would otherwise become
subject to any abandoned property, escheat or similar law), unclaimed funds
payable with respect to such certificates shall, to the extent permitted by
applicable law, become the property of the Amalgamated Company, free and clear
of all claims or interest of any Person previously entitled thereto.
SECTION 3.03 PAYMENT FOR COMMON SHARES UNDER THE COMPULSORY ACQUISITION. At the
Compulsory Acquisition Effective Time and in accordance with Section 102 of the
Companies Act, Parent will cause Purchaser, through the Paying Agent, to pay to
the Company the amount payable for the Common Shares not tendered in the Offer
and the Company shall then transfer such amount into a separate account and hold
such amount in trust for the former shareholders concerned. Notwithstanding the
foregoing, the Company may direct Purchaser to pay such amount directly into the
account designated by the Company to hold such amount in trust for the former
shareholders concerned.
SECTION 3.04 CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Amalgamation
Effective Time, the register of members of the Company shall be closed. At and
after the Amalgamation Effective Time, there shall be no registration of
transfers of Common Shares that were outstanding immediately prior to the
Amalgamation Effective Time on the register of members of the Amalgamated
Company. From and after the Amalgamation Effective Time, the holders of Common
Shares outstanding immediately prior to the Amalgamation Effective Time shall
cease to have any rights with respect to such Common Shares except as otherwise
provided in this Agreement or by applicable law. All cash paid upon the
surrender of Certificates in accordance with the terms of this Article III shall
be deemed to have been paid in full satisfaction of all rights pertaining to the
Common Shares previously represented by such Certificates. If, after the
Amalgamation Effective Time, Certificates are presented to the Amalgamated
Company for any reason, they shall be canceled and exchanged for cash as
provided in this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Parent and Purchaser as follows:
SECTION 4.01 ORGANIZATION AND QUALIFICATION.
(a) The Company and each Group Entity is duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
formation, with all requisite power and authority to own its properties and
conduct its business as currently conducted. The Company and each Group Entity
is duly qualified and in good standing as a foreign corporation or other entity
authorized to do business in each of the jurisdictions in which the character of
the properties owned or held under lease by it or the nature of the business
transacted by it makes such qualification necessary.
(b) Schedule 4.01(b) sets forth a true and complete list of each Group
Entity and the name and percentage ownership of each shareholder in each Group
Entity. Other than securities held
7
solely for investment purposes, neither the Company nor any Group Entity,
directly or indirectly, owns any interest in any Person other than the entities
listed on Schedule 4.01(b).
SECTION 4.02 CAPITALIZATION.
(a) The authorized share capital of the Company consists of 15,000,000
common shares, par value $0.01 per share, and 5,000,000 preferred shares, par
value $0.01 per share. As of the date of this Agreement, 4,895,887 Common Shares
were issued and outstanding and no Preferred Shares were issued and outstanding.
All of the outstanding Common Shares and Preferred Shares have been duly
authorized and validly issued, are fully paid and nonassessable and are free of
preemptive rights. Except as disclosed on Schedule 4.02(a) or as described in
the Voting and Tender Agreement, there are no voting trusts or other agreements
or understandings to which the Company or any Group Entity is a party with
respect to the voting of share capital of the Company or any Group Entity.
(b) Schedule 4.02(b) contains a list, as of the date of this Agreement, of
the name of each Existing Stock Option holder, the number of outstanding
Existing Stock Options held by such holder, the number of Common Shares such
holder is entitled to receive upon the exercise of each Existing Stock Option
and the corresponding exercise price. As of the date of this Agreement, all
Existing Stock Options are currently exercisable.
(c) As of the date of this Agreement, there are outstanding 46,925 warrants
convertible into an aggregate of 46,925 Common Shares (the "WARRANTS"). Schedule
4.02(c) contains a list, as of the date of this Agreement, of each existing
warrant holder, the number of outstanding warrants held by such holder, the
number of Common Shares such holder is entitled to receive upon the exercise of
such warrants and the corresponding exercise price. Except as stated in Section
4.02(a) of this Agreement and disclosed on Schedules 4.02(b) and (c), the
Company has not issued any Common Shares or Preferred Shares, has not granted
any options, warrants or rights or entered into other agreements or commitments
to issue or purchase Common Shares or Preferred Shares (under the Stock Option
Plan or otherwise) and has not split, combined or reclassified any of its shares
of share capital.
(d) Except for the Existing Stock Options and the Warrants, there are no
outstanding (i) securities of the Company convertible into or exchangeable for
shares of share capital or voting securities or ownership interests in the
Company, (ii) options, warrants, rights or other agreements or commitments to
acquire from the Company, or obligations of the Company to issue, any share
capital, voting securities or other ownership interests in (or securities
convertible into or exchangeable for share capital or voting securities or other
ownership interests in) the Company, (iii) obligations of the Company to grant,
extend or enter into any subscription, warrant, right, convertible or
exchangeable security or other similar agreement or commitment relating to any
share capital, voting securities or other ownership interests in the Company
(the items in clauses (i), (ii) and (iii), together with the share capital of
the Company, the Existing Stock Options and the Warrants, being referred to
collectively as "COMPANY SECURITIES") or (iv) obligations by the Company or any
Group Entity to make any payments based on the price or value of the Common
Shares or Preferred Shares. There are no outstanding obligations of the Company
or any Group Entity to repurchase, redeem or otherwise acquire any Company
Securities.
(e) Except as set forth on Schedule 4.02(e), the Company is directly or
indirectly the registered and beneficial owner of its interest in each Group
Entity, free and clear of any lien, mortgage, pledge, charge, security interest
or encumbrance of any kind, and there are no irrevocable proxies with respect to
any such shares. There are no outstanding (i) securities of the Company or any
Group Entity convertible into or exchangeable for shares of share capital or
other voting securities or ownership interests in any Group Entity, (ii)
options, warrants, rights or other agreements or commitments to acquire from the
Company or any Group Entity (or obligations of the Company or any Group Entity
to issue) any share capital, voting securities or other ownership interests in,
or any securities convertible into or exchangeable for any share capital, voting
securities or ownership interests in, any Group Entity, (iii) obligations of the
Company or any Group Entity to grant, extend or enter into any subscription,
warrant, right, convertible or exchangeable security or other similar agreement
or commitment relating to any share capital, voting securities or other
ownership interests in any Group Entity (the items in clauses (i), (ii) and
(iii), together with the share capital of such Group Entities, being referred to
collectively as "GROUP ENTITY SECURITIES") or (iv) obligations of the Company
8
or any Group Entity to make any payment based on the value of any shares of any
Group Entity. There are no outstanding obligations of the Company or any Group
Entity to repurchase, redeem or otherwise acquire any outstanding Group Entity
Securities.
SECTION 4.03 CHARTER DOCUMENTS; MINUTES; ETC.
(a) The Company has heretofore made available to Parent and Purchaser a
true and correct copy of the Memorandum of Association and Bye-laws (or other
similar governing documents), each as amended to the date hereof, of the Company
and each Group Entity. The Company has also provided to Parent and Purchaser
prior to the date hereof true and correct (i) copies of the share registers and
(ii) lists of the directors of the Company and each Group Entity and there have
been no changes to any such share registers or of any such directors since such
information was provided to Parent and Purchaser.
(b) Except as a result of this Agreement, no Person, whether pursuant to a
written agreement or otherwise, has the right to designate a person to serve as
a member of the Board of Directors of the Company.
SECTION 4.04 AUTHORITY FOR THIS AGREEMENT. The Company has all necessary
corporate power and authority to execute and deliver this Agreement and, subject
to obtaining any necessary shareholder approval of the plan of amalgamation, to
consummate the transactions contemplated hereby (except the Compulsory
Acquisition, which, if effected, will be completed as described under this
Agreement consistent with applicable law). The execution and delivery of this
Agreement by the Company, and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Company and no other proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby, other than the approval of the plan of
amalgamation by a three-fourths majority of the votes cast at the meeting of the
shareholders held for such purpose prior to the consummation of the
Amalgamation. This Agreement has been duly and validly executed and delivered by
the Company and constitutes a legal, valid and (assuming the due authorization,
execution and delivery of this Agreement by Purchaser and Parent) binding
agreement of the Company, enforceable against the Company in accordance with its
terms (subject to bankruptcy, insolvency, reorganization or similar laws of
general application affecting the enforcement of creditors rights generally and
general principles of equity and with respect to Sections 6.01(b), (c), (d) and
(f), subject to applicable principles of Bermuda law).
SECTION 4.05 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution and
delivery of this Agreement by the Company nor the consummation of the
transactions contemplated hereby will (a) conflict with or result in any breach
of any provision of the respective Memorandum of Association or Bye-laws (or
other similar governing documents) of the Company or any Group Entity, (b)
except as described in Section 2.03 of this Agreement or as set forth on
Schedule 4.05(b), require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity except as may be
required under the HSR Act, any non-United States competition, anti-trust and
investment laws, the Securities Act, the Exchange Act, the Companies Act, the
Exchange Control Regulations 1973 of Bermuda and the "takeover", "blue sky" or
securities laws of various jurisdictions, (c) except as set forth on Schedule
4.05(c), require any consent, waiver or approval or result in a default (or give
rise to any right of termination, cancellation, modification or acceleration)
under any of the terms, conditions or provisions of any note, license,
agreement, contract, indenture or other instrument or obligation to which the
Company or any Group Entity is a party or by which the Company or any Group
Entity or any of their respective assets may be bound, (d) result in the
creation or imposition of any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind on any asset of the Company or any Group Entity or
(e) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company or any Group Entity or by which any of their
respective assets are bound, except in the case of clauses (b), (c), (d) and (e)
for any of the foregoing that would not have a Material Adverse Effect,
materially impair the ability of the Company or any Group Entity to perform
their obligations under this Agreement or prevent the consummation of any of the
transactions contemplated by this Agreement.
9
SECTION 4.06 REPORTS; FINANCIAL STATEMENTS.
(a) Except as set forth on Schedule 4.06(a), the Company has duly filed or
furnished all forms, registration statements, reports, schedules, proxy or
information statements and other documents (including exhibits and amendments
thereto) required to be filed or furnished by it with the SEC. True and correct
copies of all such materials filed or furnished by the Company with the SEC
prior to the date hereof (the "COMPANY SEC REPORTS") have either been made
available or are publicly available to Parent and Purchaser. As of the
respective dates such Company SEC Reports were filed or furnished or, if any
such Company SEC Reports were amended, as of the date such amendment was filed
or furnished, each of the Company SEC Reports, including without limitation any
financial statements or schedules included therein, (i) complied in all material
respects with all applicable requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations promulgated thereunder and
(ii) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) Each of (i) the audited consolidated financial statements of the
Company and the audited consolidated interim financial statements of the Company
(including any related notes and schedules) included (or incorporated by
reference) in the Company SEC Reports, and (ii) the unaudited interim
consolidated financial statements for the nine-month period ended September 30,
2001 (including any related notes and schedules), a true and correct copy of
which has been provided to Parent and Purchaser (the "QUARTERLY FINANCIAL
STATEMENTS"), have been prepared from, and are in accordance with, the books and
records of the Company and its consolidated Subsidiaries, comply in all material
respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto, have been prepared in accordance with
International Accounting Standards applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto) and fairly
present the consolidated financial position of the Company and the Group
Entities as of their respective dates, and the consolidated income, shareholders
equity, results of operations and changes in consolidated financial position or
cash flows for the periods presented therein, except that the Quarterly
Financial Statements are subject to normal year-end adjustments which are not
reasonably likely to be materially adverse to the Company and Group Entities
taken as a whole.
(c) Except as set forth on Schedule 4.06(c) and other than liabilities and
obligations incurred in the ordinary course of business consistent with past
practices since September 30, 2001, neither the Company nor any Group Entity has
any liabilities of any nature (whether accrued, absolute, contingent or
otherwise) (i) required by International Accounting Standards to be set forth on
a consolidated balance sheet of the Company and the Group Entities or in the
notes thereto and not so set forth in the Quarterly Financial Statements and
(ii) that would have a Material Adverse Effect.
SECTION 4.07 ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule 4.07,
since September 30, 2001 (a) the Company and the Group Entities have not
suffered any change, condition, event or development that would have a Material
Adverse Effect on the Company, (b) the Company and the Group Entities have
conducted in all material respects their respective businesses only in the
ordinary course consistent with past practice and (c) there has not been (i) any
declaration, setting aside or payment of any dividend or other distribution in
respect of the Common Shares or Preferred Shares or any repurchase, redemption
or other acquisition by the Company or any Group Entity of any outstanding
shares of share capital or other securities in, or other ownership interests in,
the Company or any Group Entity or (ii) any change by the Company or any Group
Entity in accounting methods, principles or practices except as required by
changes in International Accounting Standards.
SECTION 4.08 SCHEDULE 14D-9, OFFER DOCUMENTS AND PROXY STATEMENT.
(a) None of the information supplied or to be supplied by or on behalf
of the Company or any Group Entity or affiliate of the Company for inclusion in
the Offer Documents (or any supplements or amendments thereto) will, at the
times such documents are filed with the SEC and are mailed to shareholders of
the Company, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading. The Schedule 14D-9 and any supplement or amendment thereto will not,
at the time they are filed with the SEC and at the time of any distribution or
dissemination thereof, contain any untrue statement of a material fact or omit
to state
10
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading, except that no representation is made by the Company with respect to
information supplied in writing by Parent, Purchaser or an affiliate thereof for
inclusion therein.
(b) The Proxy Statement, and any other schedule or document required to
be sent to the Company's shareholders and any filings which may be required to
be made by the Company in connection with the Amalgamation, will not, at the
time the Proxy Statement is mailed and (if required) filed, and at the time of
the Special Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading, except that no representation is made by the Company with respect to
information supplied in writing by Parent, Purchaser or an affiliate thereof for
inclusion therein. The 14D-9 and the Proxy Statement, and any amendments or
supplements thereto, when filed, furnished, distributed or disseminated, as
applicable, will comply (if required) as to form in all material respects with
the applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder and other applicable law.
SECTION 4.09 BROKERS. Except for BB&T Capital Markets, the fees and expenses of
which will be paid by the Company, no Person is entitled to receive any
brokerage, finder's or other fee or commission in connection with this Agreement
or the transactions contemplated hereby based upon agreements made by or on
behalf of the Company or any Group Entity.
SECTION 4.10 LABOR AND EMPLOYMENT MATTERS. Except as set forth on Schedule 4.10
or with respect to matters the Company reasonably believes will not result in a
Material Adverse Effect:
(a) Neither the Company nor any Group Entity is a party to or bound by any
collective bargaining contract, collective labor agreement or other contract or
arrangement with a labor union, trade union or other organization involving any
of its employees, and neither the Company nor any Group Entity has been apprised
within the past twenty-four (24) months that any petition has been filed or
proceeding instituted by an employee or group of employees of the Company or any
Group Entity with any Governmental Entity seeking recognition of a bargaining
representative. Neither the Company nor any Group Entity is subject to, and no
employee of the Company or any Group Entity benefits from, any contract or
arrangement with respect to compensation upon termination of employment. All of
the employees of the Company and the Group Entities are "at will" employees
subject to the termination notice provisions included in employment agreements
or applicable law.
(b) (i) To the Company's knowledge, there is no labor strike, dispute, slow
down or stoppage pending or threatened against the Company or any Group
Entity;
(ii) Neither the Company nor any Group Entity has received in the last
twenty-four (24) months any demand letters, civil rights charges, suits or
drafts of suits with respect to claims made by or on behalf of any of their
respective employees; and
(iii) Neither the Company nor any Group Entity is aware of any pending
claims, civil rights charges, suits or drafts of suits with respect to
claims made by or on behalf of their respective employees.
(c) All material amounts that the Company or any Group Entity is legally or
contractually required either (i) to deduct from its employees' salaries or to
transfer to such employees' pension or provident, life insurance, incapacity
insurance, continuing education fund or other similar fund or (ii) to withhold
from its employees' salaries and pay to any Governmental Entity as required by
applicable laws have, in each case, been duly deducted, transferred, withheld
and paid and neither the Company nor any Group Entity has any material
outstanding obligation to make any such deduction, transfer, withholding or
payment (other than routine delays in the ordinary course of business and
consistent with past practice).
(d) Neither the Company nor any Group Entity is liable for any material
payment to any trust or other fund or to any Governmental Entity with respect to
unemployment compensation benefits, social security or other benefits or
obligations for employees (other than routine payments to be made in the
ordinary course of business and consistent with past practice).
11
(e) The Company and the Group Entities are in compliance with all laws and
regulations pertaining to the payment of wages and overtime.
(f) Since the enactment of the WARN Act, none of the Company or any Group
Entity has effectuated (i) a "plant closing" (as defined in the WARN Act)
affecting any site of employment or one or more facilities or operating units
within any site of employment or facility of the Company or any Group Entity, or
(ii) a "mass layoff" (as defined in the WARN Act) affecting any site of
employment or facility of the Company or any Group Entity, nor has the Company
or any Group Entity been affected by any application of any similar state, local
or foreign law, other than closings, layoffs or similar events that the Company
reasonably believes will not result in a Material Adverse Effect.
(g) Except as set forth on Schedule 4.10(g), each country manager for each
Group Entity has executed a standard form agreement with the Company or the
appropriate Group Entity in substantially the form attached as Exhibit 1 to
Schedule 4.10(g) and no such executed agreement has terms materially different
from those in the attached form.
SECTION 4.11 EMPLOYEE BENEFIT PLANS; ERISA.
(a) Schedule 4.11(a) contains a true and complete list of each "employee
benefit plan" as defined in Section 3(3) of ERISA and each material bonus,
deferred compensation, incentive compensation, stock purchase, stock option,
stock award, severance or termination benefit, hospitalization or other medical,
life or other insurance, supplemental unemployment benefits, profit-sharing,
pension, or retirement plan, program, agreement or arrangement, each employment,
retention or severance agreement or arrangement which cannot be terminated in
fewer than three months or without liability exceeding the greater of one
month's salary or one week of salary for each year of service and each other
employee benefit plan, program, agreement or arrangement, sponsored, maintained
or contributed to by the Company or by any ERISA Affiliate, that together with
the Company would be deemed a "single employer" within the meaning of Section
4001 of ERISA, for the benefit of any employee or former employee or director of
the Company or any ERISA Affiliate of the Company (the "COMPANY BENEFIT PLANS").
"Company Benefit Plans" excludes any unmodified statutorily mandated plan or
arrangement or any industry-wide plan. Neither the Company nor any Group Entity
participates in or is required to participate in any industry-wide plan.
Schedule 4.11(a) separately lists each Company Benefit Plan subject to United
States law (the "COMPANY US PLANS").
(b) No Company Benefit Plan is subject to Title IV of ERISA.
(c) No amounts payable under the Company US Plans are, to the Company's
knowledge, likely to fail to be deductible for United States federal income tax
purposes by virtue of Section 280G of the Code.
(d) Each Company US Plan intended to be "qualified" within the meaning of
Section 401(a) of the Code has received a determination letter from the US
Internal Revenue Service as to its qualification; each trust maintained
thereunder has been determined by the US Internal Revenue Service to be exempt
from taxation under Section 501(a) of the Code; and, to the Company's knowledge,
no event has occurred since the date of such determination that the Company
reasonably believes will adversely affect such qualification or exemption.
(e) All material contributions or other payments required to have been made
by the Company or any ERISA Affiliate to or under any Company Benefit Plan by
applicable law or the terms of such Company Benefit Plan have been timely and
properly made. Each Company Benefit Plan has been operated and administered in
all material respects in accordance with its terms and applicable law, including
but not limited to ERISA and the Code, other than operational or administrative
issues the Company reasonably believes will not result in a Material Adverse
Effect. There are no pending, or to the knowledge of the Company, threatened,
claims by or on behalf of any Company Benefit Plan, by any employee or
beneficiary covered under any such Company Benefit Plan, or otherwise involving
any such Company Benefit Plan (other than routine claims for benefits).
(f) To the Company's knowledge, each Company Benefit Plan that is not
subject to United States law and that is required to be registered has been so
registered, and has been maintained in good standing with applicable regulatory
authorities.
12
SECTION 4.12 LITIGATION, ETC.
(a) Except as set forth on Schedule 4.12(a), there are no actions, suits or
proceedings pending or, to the Company's knowledge, threatened against the
Company, any Group Entity or any of the directors or officers of the Company or
any Group Entity in their capacity as such at law or in equity, or before any
national, state, municipal or any other governmental subdivision or department,
commission, board, bureau, agency or instrumentality in any country. Except as
set forth on Schedule 4.12(a), none of the Company, any Group Entity or any of
the directors or officers of the Company or any Group Entity in their capacity
as such is subject to any outstanding judgment, injunction, order or decree of
any court or Governmental Entity.
(b) The judgment against the Company or the relevant Group Entity or Group
Entities in the Palestinian Territories will not, in the aggregate, exceed
$50,000 in awards, penalties, fees and expenses.
SECTION 4.13 TAX MATTERS.
(a) Except as set forth on Schedule 4.13(a), the Company and the Group
Entities have timely filed or will timely file all Tax Returns required to be
filed by applicable law, regulations and administrative pronouncements by any of
them prior to or as of the Effective Time. All such Tax Returns and amendments
thereto are accurate and complete in all material respects or, to the extent not
yet filed, will be accurate and complete in all material respects. Except as set
forth on Schedule 4.13(a), no penalties or other charges are or will become due
with respect to the late filing of any Tax Return of the Company and the Group
Entities (or any of them) or payment of any Tax of the Company and the Group
Entities (or any of them) required to be filed or paid on or before the
Effective Time. No claim has ever been made in writing by a Tax Authority in a
jurisdiction where the Company or any Group Entity does not file Tax Returns
that it is or may be subject to tax in that jurisdiction.
(b) Except as set forth on Schedule 4.13(b), with respect to all Tax
Returns filed by or with respect to the Company and the Group Entities (or any
of them):
(i) neither the Company nor any Group Entity has given or been
requested to give any waiver of statute of limitations relating to the
payment of taxes or have executed powers of attorney with respect to Tax
matters that remains in effect;
(ii) no Audit by a Tax Authority is pending or, to the knowledge of
the Company, threatened with respect to any Tax Returns filed by or Taxes
due from the Company or any Group Entity and, to the knowledge of the
Company, no issue has been raised by any Tax Authority in any Audit of the
Company or any Group Entity that if raised with respect to any other period
not so audited could, to the knowledge of the Company, be expected to
result in a proposed deficiency for any period not so audited;
(iii) no deficiency or adjustment for any Taxes has been threatened in
writing, proposed, asserted or assessed against the Company or any Group
Entity and there are no liens for Taxes on any assets of the Company or any
Group Entity (other than liens for Taxes that are not yet due and payable);
(iv) no waiver or agreement has been executed for the extension of
time for the assessment or payment of any Tax that remains in effect; and
(v) Any Group Entity subject to US federal income tax has disclosed
all positions taken on Tax Returns filed by it that could give rise to a
substantial understatement of US federal income tax within the meaning of
Section 6662 of the Code.
(c) Except as set forth on Schedule 4.13(c):
(i) all Taxes required to be paid on or before the date hereof by or
with respect to the Company and the Group Entities (or any of them) have
been timely paid;
13
(ii) any Taxes required to be paid by or with respect to the Company
and the Group Entities (or any of them) after the date hereof and on or
before the Effective Time shall be timely paid; and
(iii) The Company and each Group Entity has withheld and paid, or will
withhold and timely pay, all Taxes required by law to be withheld and paid
in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party.
(d) Schedule 4.13(d) identifies:
(i) all Tax sharing, Tax indemnity or similar agreements to which the
Company or any Group Entity is a party to, is bound by or has any
obligation or liability for Taxes and true and complete copies of such
agreements have been provided to Parent and Purchaser prior to the date
hereof; and
(ii) all claims with respect to Taxes that have been asserted in
writing against the Company and the Group Entities (or any of them) under
any agreement described in (i) above.
(e) The Company and the Group Entities have made adequate provisions in
accordance with International Accounting Standards appropriately and
consistently applied to each of the Company and the Group Entities in (i) the
consolidated financial statements included in the Company SEC Reports and (ii)
the Quarterly Financial Statements for the payment of all Taxes for which each
of the Company and the Group Entities may be liable for the periods covered
thereby that were not yet due and payable as of the dates thereof.
(f) None of the Company or any Group Entity is or has been a United States
real property holding corporation within the meaning of Section 897(c)(2) of the
Code during the applicable period specified in Section 897(c)(a)(A)(ii) of the
Code.
SECTION 4.14 COMPLIANCE WITH LAW.
(a) Neither the Company nor any Group Entity is in conflict in any material
respect with, in default in any material respect with respect to, or in
violation in any material respect of, any statute, law, ordinance, rule,
regulation, order, judgment or decree applicable to the Company or any Group
Entity or by which any property or asset of the Company or any Group Entity is
bound or affected. The Company and each Group Entity has all material permits,
licenses, authorizations, consents, approvals and franchises (including any
trade permits, licenses or other authorizations) from Governmental Entities
required to conduct their businesses as currently conducted (the "COMPANY
PERMITS"). The Company and its Subsidiaries are in material compliance with the
terms of all Company Permits and none of the Company Permits have expired.
(b) The Company will cause the appropriate Group Entity to renew all
requisite Company Permits in Shajah and Ras Al Khaimah. The Company is unaware
of any fact or circumstance that would prevent or prohibit the granting of such
Company Permits by the relevant regulatory authorities. The Company will notify
Parent and Purchaser promptly upon receipt of proof of renewal.
SECTION 4.15 ENVIRONMENTAL MATTERS.
(a) The Company and each of its Subsidiaries have been and are in
compliance in all material respects with all applicable Environmental Laws; (b)
the Company and each Group Entity have all material permits, licenses, consents,
approvals, waivers, variances and other authorizations ("AUTHORIZATIONS") that
are required with respect to the operation of its business, property and assets
under all Environmental Laws, are in material compliance with such
Authorizations and all such Authorizations are in full force and effect; and (c)
except as set forth on Schedule 4.15, there are no claims, actions, suits,
proceedings, investigations of which the Company is aware, decrees, judgments or
orders against the Company or any Group Entity pursuant to any Environmental Law
or principles of common law relating to pollution of the environment or health
and safety.
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SECTION 4.16 INTELLECTUAL PROPERTY.
(a) The Company or the relevant Group Entities either own or are validly
licensed to use all Intellectual Property used or required to carry on both the
existing business operations and the planned business operations of the Company
and the Group Entities. To the Company's knowledge, the business activities of
the Company and the Group Entities have not and do not infringe the Intellectual
Property rights of any Person and the Company and the Group Entities do not and
have not made any unauthorized use of any know how proprietary to any Person. To
the Company's knowledge, no Person has been or is infringing any Intellectual
Property owned by the Company or the Group Entities.
(b) All Intellectual Property that the Company and the Group Entities own
is (i) valid, subsisting and enforceable and nothing has been done or omitted to
be done by which it may cease to be valid, subsisting and enforceable; (ii)
solely legally and beneficially owned by the Company or the relevant Group
Entity; (iii) other than as between and among the Company and any Group Entity,
free from any license, encumbrance, charge or other restriction on use or
exploitation, option to purchase or sell or disclosure obligation; and (iv) not
subject to any existing or threatened claim or opposition from any Person as to
title, validity, enforceability or otherwise. All fees in relation to the
registered Intellectual Property owned by the Company and the Group Entities
have been paid on time and all steps for application, maintenance, and
protection of all registered Intellectual Property owned by the Company and the
Group Entities have been taken on time.
(c) So far as the Company is aware, all Intellectual Property that the
Company and the Group Entities use is valid, subsisting and enforceable and
nothing has been done or omitted to be done by which it may cease to be valid,
subsisting and enforceable.
(d) The Company and the Group Entities are not in breach of any agreement
or arrangement relating to the Intellectual Property and no Person is in breach
of any such agreements or arrangements. No such agreement or arrangement is
capable of termination on a change in the management control or shareholding of
the Company or any Group Entity by reason of the transactions contemplated by
this Agreement without any consent payment or other condition having to be
obtained, made or fulfilled.
(e) Schedule 4.16(d) lists all material licenses of Intellectual Property
to or by the Company or any Group Entity and true and complete copies of such
licenses have been supplied to Parent and Purchaser.
SECTION 4.17 INFORMATION TECHNOLOGY.
(a) The Company and the Group Entities own or license all Information
Technology necessary or required to carry on their existing business operations
and such rights are unaffected by a change in the management control or
shareholding of the Company or any Group Entity by reason of the transactions
contemplated under this Agreement without any consent payment or other condition
having to be obtained, made or fulfilled. The Company and the Group Entities
have the right to use the Information Technology necessary or required to carry
on the business operations of the Company and the Group Entities and such rights
are unaffected by a change in the management control or shareholding of the
Company or any Group Entity by reason of the transactions contemplated under
this Agreement without any consent payment or other condition having to be
obtained, made or fulfilled.
(b) All Information Technology used by the Company and the Group Entities
has functioned and performed, and is functioning and performing, in accordance
with the specifications thereof in all material respects, and where any services
in relation to such Information Technology are supplied by any third party such
services have been supplied in a timely and satisfactory manner in all material
respects and in accordance with the relevant service agreement. The Information
Technology used by the Company and the Group Entities includes up to date
anti-virus software. The Information Technology used by the Company and the
Group Entities includes systems to enable the back-up of the systems used by the
Company and the Group Entities in accordance with good industry practice.
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(c) True, complete, accurate and up to date copies of all agreements
relating to the use of the source code to which the Company or any Group Entity
is a party have been supplied to Parent and Purchaser.
(d) Other than the Airborne tracking system, neither the Company nor any
Group Entity outsources to or otherwise engages any third party to (i) operate
any of the Information Technology such Company or Group Entity uses or (ii)
process data on its behalf.
(e) The Company is not aware of any disputes, claims or infringement
proceedings relating to the Website and the Domain Names. The Company is not
aware of any complaint made to a data protection authority or any ongoing
investigation by a data protection authority related to its compliance, or the
compliance of any Group Entity, with the provisions of all privacy or data
protection legislation to which each is subject, including, without limitation,
the provisions of the Data Protection Acts 1984 and 1998. To the knowledge of
the Company, the Company and the Group Entities have complied in all material
respects with such legislation.
SECTION 4.18 REAL PROPERTY.
(a) Neither the Company nor any Group Entity owns any real property in fee.
(b) Schedule 4.18(b) sets forth a list of all leases, subleases and other
agreements under which the Company or any Group Entity uses or occupies or has
the right to use or occupy, now or in the future, any real property (the "REAL
PROPERTY LEASES") that are material. Each Real Property Lease is valid, binding
and in full force and effect, and no termination event or condition or uncured
default on the part of the Company or any such Group Entity exists (or with the
giving of notice or lapse of time or both, would exist) under any Real Property
Lease. Other than as disclosed on Schedule 4.18(b), each of the Company and such
Group Entity has a good and valid leasehold interest in each parcel of real
property leased by it free and clear of all mortgages, pledges, liens,
encumbrances and security interests, except (i) Taxes and general and special
assessments not in default and payable without penalty and interest and (ii)
other liens, mortgages, pledges, encumbrances and security interests that do not
interfere with the Company's or such Group Entity's use and enjoyment of such
real property or detract from or diminish the value thereof.
(c) The application for renewals of the leases relating to Unit Numbers 10
and 11 of the Logistics Facility at Xxxxx Xxxx International Airport Free Zone,
Amman, Jordan, together with the applicable fees, have been submitted to the
landlord thereof. The Company has taken all required procedural steps to renew
such leases and is not aware of any fact or circumstance that would prevent or
prohibit the granting of the lease renewals by the landlord. The Company will
notify Parent and Purchaser promptly upon receipt of proof of renewal.
SECTION 4.19 MATERIAL CONTRACTS.
(a) The Company has set forth on Schedule 4.19(a) a list of, and has
provided to Parent and Purchaser true and correct copies of, all contracts,
agreements, commitments, arrangements, leases (including with respect to
personal property) and other instruments (whether oral or written) to which the
Company or any Group Entity is a party or by which the Company, any Group Entity
or any of their respective assets are bound (including, without limitation, any
such agreements with any of the Company's or any Group Entity's officers,
directors or affiliates) that require or are likely to require aggregate
payments of more than $100,000.
(b) There is no contract, agreement or understanding that was required to
be described in or filed or furnished as an exhibit to any Company SEC Report
that was not described in or filed or furnished as required by the Securities
Act or the Exchange Act, as the case may be (the agreements described in the
preceding sentence, together with the agreements described in Section 4.19(a)
above, "MATERIAL CONTRACTS"). All Material Contracts are valid and binding and
are in full force and effect and enforceable in accordance with their respective
terms, other than Material Contracts which are by their terms no longer in force
or effect. The Company or such Group Entity is not in violation or breach of or
default under any Material Contracts, nor to the Company's knowledge is any
other party to any such Material Contracts. Except as set forth on Schedule
4.19(b), neither the Company nor Group Entity is a party to or bound by any
contract, agreement or arrangement (including any lease of
16
real property) (i) restricting the ability of the Company or any Group Entity
(or after the Amalgamation, Parent, the Amalgamated Company or any of their
respective subsidiaries) to compete in or conduct any line of business or to
engage in business in any geographic area, (ii) containing covenants of any
other Person not to compete with the Company or any Group Entity or (iii)
containing any so-called "most favored nation" provisions or any similar
provision requiring the Company or any Group Entity (or after the Amalgamation,
Parent, the Amalgamated Company or any of their respective subsidiaries) to
offer a third party terms or concessions at least as favorable as offered to one
or more other parties.
SECTION 4.20 RELATED PARTY TRANSACTIONS. Other than as disclosed in the
Company's Form 20-F for fiscal year 2000, there are no contracts, agreements,
commitments, leases (whether of real or personal property) or other arrangements
(whether oral or written) to which the Company or any Group Entity is a party or
by which the Company, any Group Entity or any of their respective assets is
bound that is with any person related (by marriage or blood) to any of the
Company's or any Group Entity's officers, directors or affiliates.
SECTION 4.21 OPINION OF FINANCIAL ADVISOR. The Board of Directors of the Company
has received the opinion of the Financial Advisor, a true and correct copy of
which has been provided to Parent and Purchaser, to the effect that, as of the
date of this Agreement, the consideration to be received in the Offer and the
Amalgamation, by the holders of Common Shares (other than Parent, Purchaser or
its affiliates) and Existing Stock Options is fair to such holders from a
financial point of view. The Company has obtained all necessary consents to
permit the inclusion of the fairness opinion of the Financial Advisor in the
Offer Documents and the Proxy Statement.
SECTION 4.22 VOTE REQUIRED. The only vote of the holders of any class or series
of Company share capital necessary to approve the Amalgamation is a
three-fourths majority of votes of the holders of Common Shares cast at the
Special Meeting.
SECTION 4.23 ANTI-TAKEOVER PLAN; TAKEOVER STATUTES. Neither the Company nor any
Group Entity has in effect any shareholder rights plan or similar device or
arrangement, commonly or colloquially known as a "poison pill" or
"anti-takeover" plan, or any similar plan, device or arrangement and the
respective Boards of Directors (or similar governing body) of the Company and
the Group Entities have not adopted or authorized the adoption of such a plan,
device or arrangement. To the best of the Company's knowledge, no takeover
statute or similar statute or regulation applies or purports to apply to the
Offer, the Amalgamation, this Agreement, or any of the transactions contemplated
by this Agreement.
SECTION 4.24 INSURANCE. Schedule 4.24 lists each of the insurance policies
relating to the Company or the Group Entities which are currently in effect. The
Company and each Group Entity has in place insurance of the type and amounts
customarily carried by Persons conducting business similar to the business
conducted by the Company and the Group Entities. With respect to each such
insurance policy or binder none of the Company, any Group Entity or any other
party to the policy is in breach or default thereunder (including with respect
to the payment of premiums or the giving of notices), and the Company does not
know of any occurrence or any event (including without limitation the
consummation of the transactions contemplated by this Agreement) which (with
notice or the lapse of time or both) would constitute such a breach or default
or permit termination, modification or acceleration under the policy, except for
such breaches or defaults which, individually or in the aggregate, would not
result in a Material Adverse Effect. Schedule 4.24 describes any self-insurance
arrangements affecting the Company or the Group Entities. All premiums and other
payments relating to the officer's and director's liability insurance policies
of the Company and the Group Entities have been paid for coverage through
February 19, 2002.
SECTION 4.25 ACCOUNTS RECEIVABLE. The accounts receivable of the Company and the
Group Entities as reflected in the Quarterly Financial Statements, to the extent
uncollected, and the accounts receivable reflected on the books of the Company
and the Group Entities (i) have arisen in the ordinary course of business of the
Company and the Group Entities consistent with past practices and (ii) subject
only to reserves for bad debts computed in a manner consistent with past
practice and reasonably estimated to reflect the probable results of collection,
have been collected or are collectible in the ordinary course of business of the
Company and the Group Entities in the aggregate recorded amounts shown in the
Quarterly Financial Statements in accordance with their terms.
17
SECTION 4.26 CUSTOMERS. Schedule 4.26 sets forth a list of (i) (A) Airborne and
(B) the top twenty (20) customers of the Company and the Group Entities (based
on revenue for the last completed fiscal year), (ii) for each such Person
referred to in Section 4.26(i), the amount of the dollar volume for fiscal year
2000 and the first three fiscal quarters for 2001 and (iii) confirmation of
whether a written agreement (other than periodic purchase orders) exists between
the Company or any Group Entity and each such Person referred to in Section
4.26(i) and the effective date of each such written agreement. The relationships
of the Company and the Group Entities with each Person referred to in Section
4.26(i) are good commercial working relationships. Except as set forth on
Schedule 4.26, no Person listed on Schedule 4.26 within the last twelve months
has cancelled or otherwise terminated the relationship of such Person with the
Company or any Group Entity.
SECTION 4.27 POWERS OF ATTORNEY. Schedule 4.27 sets forth a list of all material
powers of attorney given by or on behalf of the Company or any Group Entity to
any Person. Parent and Purchaser have heretofore been provided with true and
correct copies of all such powers of attorney.
SECTION 4.28 JOINT VENTURES AND AGREEMENTS.
(a) The Company has obtained a valid and binding waiver, in form and
substance acceptable to Parent and Purchaser, from Makshaff Services Ltd. and
the other shareholders of Arab African Express Courier Co. Ltd. with respect to
the change of control provisions in the joint venture agreement and the Articles
of Association relating to Arab African Express Courier Co. Ltd. True and
correct copies of such waivers have been given to Parent and Purchaser prior to
the date hereof.
(b) The Company has formally terminated the joint venture agreement with
respect to its Omani operations by sending written notice of such termination to
Xx Xxxx Travel & Tourism. A true and correct copy of such termination letter has
been given to Parent and Purchaser prior to the date hereof.
(c) Tal Aramex and Al Awsat International Transport are the only entities
through which the Company conducts or undertakes any business in Saudi Arabia.
Tal Aramex has all Company Permits necessary for the transaction of its
business.
(d) The Company has taken all actions necessary to properly terminate its
joint venture operations in Bangladesh in accordance with the terms of the
relevant joint venture agreement and all license agreements governing such
operations.
(e) In consultation with and on terms acceptable to Parent and Purchaser,
the Company is currently negotiating and will use all reasonable efforts to
enter into an agreement with Airborne with respect to the cooperation between
Airborne and the Company on, among other matters, software and other technology.
A true and correct copy of such agreement will be provided to Parent and
Purchaser promptly upon execution thereof.
ARTICLE V
REPRESENTATIONS AND
WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser jointly and severally represent and warrant to the
Company as follows:
SECTION 5.01 ORGANIZATION AND QUALIFICATION. Each of Parent and Purchaser is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, with all requisite power and
authority to own its properties and conduct its business as currently conducted.
Each of Parent and Purchaser is duly qualified and in good standing as a foreign
corporation or other entity authorized to do business in each of the
jurisdictions in which the character of the properties owned or held under lease
by it or the nature of the business transacted by it makes such qualification
necessary. All of the issued and outstanding share capital of Purchaser is owned
directly or indirectly by Parent.
18
SECTION 5.02 AUTHORITY FOR THIS AGREEMENT. Each of Parent and Purchaser has all
necessary power and authority to execute and deliver this Agreement and subject
to Purchaser obtaining any necessary shareholder approval of the plan of
amalgamation to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Parent and Purchaser and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the respective Boards of Directors of Parent and Purchaser and no other
proceedings on the part of Parent or Purchaser are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby other than the
approval of the plan of amalgamation by the shareholder of Purchaser. This
Agreement has been duly and validly executed and delivered by Parent and
Purchaser and constitutes a legal, valid and (assuming the due authorization,
execution and delivery of this Agreement by the Company) binding agreement of
each of Parent and Purchaser, enforceable against each of Parent and Purchaser
in accordance with its terms (subject to bankruptcy, insolvency, reorganization
or similar laws of general application affecting the enforcement of creditors
rights generally and general principles of equity).
SECTION 5.03 OFFER DOCUMENTS; PROXY STATEMENT.
(a) None of the Offer Documents will, at the times such documents are filed
with the SEC and are mailed to the shareholders of the Company, contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made therein, in light of
the circumstances under which they are made, not misleading, except that no
representation is made by Parent or Purchaser with respect to information
supplied in writing by the Company or an affiliate of the Company for inclusion
therein. The Offer Documents will comply as to form in all material respects
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder and other applicable law.
(b) None of the information supplied or to be supplied by or on behalf of
Parent, Purchaser or any affiliate of Parent or Purchaser for inclusion in the
Proxy Statement or the Schedule 14D-9 (or any supplements or amendments thereto)
will, at the date of filing with the SEC, and, in the case of the Proxy
Statement, at the time the Proxy Statement is mailed and at the time of the
Special Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 5.04 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution and
delivery of this Agreement by Parent or Purchaser nor the consummation of the
transactions contemplated hereby will (a) conflict with or result in any breach
of any provision of the respective Memorandum of Association or Bye-laws (or
other similar governing documents) of Parent or Purchaser, (b) except as
described in Section 2.03 of this Agreement or as set forth on Schedule 4.05(b),
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except as may be required under the
HSR Act, any non-United States competition, antitrust and investment laws, the
Securities Act, the Exchange Act, the Companies Act, the Exchange Control
Regulations 1973 of Bermuda and the "takeover", "blue sky" or securities laws of
various jurisdictions, (c) require any consent, waiver or approval or result in
a default (or give rise to any right of termination, cancellation, modification
or acceleration) under any of the terms, conditions or provisions of any note,
license, agreement, contract, indenture or other instrument or obligation to
which Parent or Purchaser is a party or by which Parent or Purchaser or any of
their respective assets may be bound, or (d) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
Purchaser or by which any of their respective assets are bound, except in the
case of clauses (b), (c) and (d) for any of the foregoing that would not have a
Material Adverse Effect, materially impair the ability of Parent or Purchaser to
perform its obligations under this Agreement or prevent the consummation of any
of the transactions contemplated by this Agreement.
SECTION 5.05 BROKERS. Except for TM Capital Corp., SHUAA Capital p.s.c. and
Capital Trust N.V., the fees and expenses of which will be paid by Parent and
Purchaser, no Person or entity is entitled to receive any brokerage, finder's or
other fee or commission in connection with this Agreement or the transactions
contemplated hereby based upon the agreements made by or on behalf of Parent or
Purchaser.
19
SECTION 5.06 LITIGATION. There is no claim, action, suit, proceeding or
governmental investigation pending or, to the knowledge of Parent or Purchaser,
threatened against either Parent or Purchaser that seeks to or could reasonably
be expected to have a Material Adverse Effect on the ability of the parties
hereto to consummate the transactions contemplated hereby.
SECTION 5.07 SUFFICIENT FUNDS. Parent will have and make available to Purchaser
sufficient and immediately available Funds to meet Purchaser's obligations set
forth under this Agreement as they become due, including but not limited to
sufficient and immediately available funds to pay the consideration for all of
the Shares and to pay the Amalgamation Consideration, when payment is due, and
to pay all amounts that may be due in respect of consummating the Offer, the
Amalgamation, the Compulsory Acquisition and the transactions contemplated
hereby.
SECTION 5.08 SOURCE OF FUNDS, NO VIOLATIONS. To the knowledge of Parent and
Purchaser, the funds paid to holders of Common Shares and Existing Stock Options
pursuant to the Offer, and the Amalgamation or the Compulsory Acquisition, as
the case may be, do not derive from any specified unlawful activity as defined
in Section 1956, Title 18 of the United States Code or under the provisions of
any other applicable law regarding money laundering. To the knowledge of Parent
and Purchaser, no direct or indirect shareholder of Parent and Purchaser is a,
and Parent and Purchaser have not engaged in any transaction with, any person,
asset or entity named on the list of "Specially Designated Nationals and Blocked
Persons," dated December 4, 2001, issued by the US Office of Foreign Assets
Control.
ARTICLE VI
COVENANTS
SECTION 6.01 CONDUCT OF BUSINESS OF THE COMPANY. Except as expressly
contemplated by this Agreement, and subject to applicable principles of Bermuda
law, during the period from the date of this Agreement to the earlier of (i) the
Effective Time and (ii) the date on which a majority of the Company's directors
are designees of Parent or Purchaser, or until the earlier termination of this
Agreement, the Company will conduct and will cause each Group Entity to conduct
its operations according to its ordinary and usual course of business consistent
with past practice and will use its best efforts to preserve intact the business
organization of the Company and the Group Entities, to keep available the
services of its and their present officers and key employees, and to preserve
the goodwill of those having business relationships with it. Without limiting
the generality of the foregoing and except as otherwise expressly provided in or
contemplated by this Agreement, subject to applicable principles of Bermuda law,
during the period specified in the preceding sentence, without the prior written
consent of Parent, the Company will not and will not permit any Group Entity to:
(a) issue, sell, grant options or rights to purchase, pledge, or authorize
or propose the issuance, sale, grant of options or rights to purchase or pledge
of (i) any Company Securities (including under the Stock Option Plan) or Group
Entity Securities, or grant or accelerate any right to convert or exchange any
Company Securities or Group Entity Securities, other than Common Shares issuable
upon exercise of the Existing Stock Options or (ii) any other securities in
respect of, in lieu of or in substitution for Common Shares or Preferred Shares
outstanding on the date hereof;
(b) acquire or redeem, directly or indirectly, or amend any Company
Securities or Group Entity Securities;
(c) split, combine or reclassify its share capital or declare, set aside,
make or pay any dividend or distribution (whether in cash, stock or property) on
any shares of its share capital (other than cash dividends paid to the Company
by wholly-owned Group Entities with regard to their share capital);
(d) propose or adopt any amendment to its Memorandum of Association or
Bye-laws (or similar documents);
(e) other than employee retention and annual performance bonuses not to
exceed $450,000 in the aggregate, grant any stock related, performance or
similar awards or bonuses;
20
(f) (i) acquire or agree to acquire by merging, amalgamating, or
consolidating with, or by purchasing a substantial portion of the assets of, or
by any other manner, any business or any corporation, partnership, joint
venture, association or other business organization or division thereof or (ii)
acquire or agree to acquire, lease or manage any assets, other than in the
ordinary course of business and consistent with past practice;
(g) other than in the ordinary course of business and consistent with past
practice, sell, lease, license, mortgage or otherwise encumber or subject to any
lien or otherwise dispose of any of its properties or assets, or stock or other
ownership interest in any of its properties or subsidiaries other than (i) any
liens for Taxes not yet due and payable or being contested in good faith by
appropriate proceedings for which adequate reserves have been provided in the
consolidated balance sheet of the Company in the Quarterly Financial Statements
and (ii) such mechanics and similar liens, if any, as do not materially detract
from the value of any of such properties, assets, stock or ownership interests
or materially interfere with the present use of any of such properties or
assets;
(h) other than in the ordinary course of business and consistent with past
practice, make any commitment or enter into, or amend, modify, or terminate any
contract or agreement material to the Company and the Group Entities;
(i) other than in the ordinary course of business consistent with past
practices and with respect to amounts of less than $500,000 in the aggregate (1)
incur any indebtedness for borrowed money or guarantee any such indebtedness of
another Person, issue or sell any debt securities or warrants or other rights to
acquire any debt securities of the Company or any Group Entity, guarantee any
debt securities of another Person, enter into any "keep well" or other agreement
to maintain any financial statement condition of another Person or enter into
any arrangement having the economic effect of any of the foregoing, except for
borrowings under its line of credit for working capital purposes and the
endorsement of checks or (2) make any loans, advances or capital contributions
to, or investments in, any other Person;
(j) establish, adopt, enter into or amend any collective bargaining, bonus,
profit sharing, thrift, compensation stock option, restricted stock, pension,
retirement, deferred compensation, employment termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit of any
current or former director, officer or employee;
(k) except as may be required as a result of a change in law or in
International Accounting Standards or a change in order to comply with SEC
requirements, change any of its or any Group Entity's accounting policies or
procedures (including, without limitation, procedures with respect to the
payment of accounts payable and collection of accounts receivable);
(l) ensure that it and each Group Entity shall use its best efforts to keep
or cause to be kept its existing insurance policies (or substantial equivalents)
in existing amounts duly in force until the Effective Time and shall give Parent
and Purchaser notice of any material change in its insurance policies;
(m) (i) take any action that would make any representation and warranty of
the Company or any Group Entity hereunder inaccurate in any material respect at,
or as of any time prior to, the Effective Time or (ii) omit to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any material respect at such time;
(n) enter into any new, or amend any existing, employment, severance,
consulting or salary continuation agreements with or for the benefit of any of
its or any Group Entity's officers, directors or employees, or grant any
increases in the compensation or benefits to such officers, directors and
employees (other than normal increases to persons who are not officers or
directors in the ordinary course of business consistent with past practices and
that, in the aggregate, do not result in a material increase in benefits or
compensation expenses of the Company or the Group Entities);
(o) fail to (i) maintain its real property (including leased property) in a
manner consistent with past practice, (ii) pay when due all Taxes, rents,
assessments and insurance premiums affecting such properties, (iii) timely
comply with the terms and conditions of all leases, contracts and
21
agreements relating to or affecting the real property and the use and operation
thereof, in each case; or
(p) agree in writing or otherwise to take any of the foregoing actions.
SECTION 6.02 NO SOLICITATION.
(a) The Company shall not, and shall cause the Group Entities and the
officers, directors, employees, representatives (including investment bankers,
attorneys and accountants), agents and affiliates of the Company and the Group
Entities not to, directly or indirectly, (i) encourage, solicit or initiate any
Acquisition Proposal or (ii) participate in negotiations with, or provide any
information to, or afford any access to the properties, books or records of the
Company or any Group Entity, or otherwise take any other action to assist or
facilitate (including granting any waiver or release under any standstill or
similar agreement with respect to any securities of the Company) any Person or
group (other than Parent or Purchaser or any affiliate or associate of Parent or
Purchaser) (a "POTENTIAL ACQUIRER") concerning any Acquisition Proposal. In the
event the Company receives any Acquisition Proposal, the Company shall promptly
notify Parent of such receipt and provide Parent with the identity of the
Potential Acquirer and a description of such Acquisition Proposal (or a copy
thereof).
(b) Notwithstanding the provisions of Section 6.02(a), the Company may take
any of the actions referred to in Section 6.02(a)(ii) with respect to a
Potential Acquirer that has made an unsolicited written bona fide Acquisition
Proposal provided that all of the following conditions are satisfied: (i) the
Board of Directors of the Company (acting by a majority of the entire board)
determines in good faith, after consultation with its independent financial
advisor and independent legal counsel, that such Acquisition Proposal is
reasonably likely to result in the making of a Superior Proposal; (ii) the
Company promptly (and in any event within 24 hours of receipt) notifies Parent
of the receipt of such Acquisition Proposal and/or any request for nonpublic
information relating to the Company or any Group Entity or for access to the
properties, books or records of the Company or any Group Entity by the Potential
Acquirer that has made such Acquisition Proposal and that the Company intends to
engage in negotiations with, or to provide information to such Potential
Acquirer, (iii) the Company receives from such Potential Acquirer an executed
confidentiality or standstill agreement that is no more favorable to such person
than the Confidentiality Agreement; and (iv) the Company furnishes or makes
available to Parent the same information provided to such Person (to the extent
not previously furnished or made available). If the Company (or any Group Entity
or its or their respective officers, directors, employee, representatives,
agents or affiliates) participates in discussion or negotiations with, or
provides information to a Potential Acquirer, the Company will keep Parent
advised on a current basis of any developments with respect thereto.
(c) The Company will, and will cause the Group Entities and the respective
officers, directors, employees, representatives, agents and affiliates of the
Company and the Group Entities to, immediately cease and cause to be terminated
any existing solicitation, activity, discussions or negotiations with any
Persons (other than Parent, Purchaser or any of their respective affiliates or
associates) conducted prior to the date hereof with respect to any Acquisition
Proposal.
(d) Unless the Company terminates this Agreement in accordance with Section
8.01(e), the Company shall not (i) withdraw or modify, or propose publicly to
withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or
recommendation of the Offer or the Amalgamation as set forth in Section 1.02(a),
(ii) approve or recommend, or propose publicly to approve or recommend, any
Acquisition Proposal, or (iii) enter into any letter of intent, agreement in
principle or acquisition agreement related to any Acquisition Proposal.
(e) Nothing contained in this Section 6.02 shall prohibit the Company or
its Board of Directors from taking and disclosing to the Company's shareholders
a position with respect to an Acquisition Proposal by a third party pursuant to
Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or otherwise
communicating with the Company's shareholders to the extent required by law.
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SECTION 6.03 ACCESS TO INFORMATION.
(a) From and after the date of this Agreement, the Company will (i) give
Parent and Purchaser and their authorized accountants, investment bankers,
counsel and other representatives full access (during regular business hours) to
the facilities and books and records of the Company and the Group Entities and
(ii) cause its officers and employees and those of the Group Entities to furnish
Parent and Purchaser with such financial and operating data and other
information with respect to the business, properties and personnel of the
Company and the Group Entities as Parent or Purchaser may from time to time
reasonably request.
(b) Information obtained by Parent or Purchaser pursuant to Section 6.03(a)
shall be subject to the provisions of the Confidentiality Agreement.
SECTION 6.04 REASONABLE EFFORTS; FURTHER ACTIONS.
(a) Each party hereto agrees to use all reasonable efforts to obtain all
consents and approvals and to do all other things necessary for the consummation
of the transactions contemplated by this Agreement. The parties agree to take
such further action and to deliver or cause to be delivered such additional
agreements or instruments to each other as the parties may reasonably request
for the purpose of carrying out this Agreement and the transactions contemplated
hereby. The parties shall afford each other access to all information,
documents, records and personnel who may be necessary for any party to comply
with laws or regulations (including without limitation the filing and payment of
Taxes and handling Audits), to fulfill its obligations hereunder or to defend
itself against suits or claims of others.
(b) Without limiting the foregoing, (i) each of the Company, Parent and
Purchaser shall use its reasonable best efforts to make promptly any required
submissions under the HSR Act that the Company or Parent determines should be
made, in each case, with respect to the Offer, the Amalgamation and the
transactions contemplated hereby and to respond as promptly as practicable to
all inquiries received from any Governmental Entity with respect to such
submissions for additional information or documentation, and (ii) Parent,
Purchaser and the Company shall cooperate with one another (A) in promptly
determining, in connection with the consummation of the transactions
contemplated by this Agreement, whether any filings are required to be or should
be made or consents, approvals, permits or authorizations are required to be or
should be obtained under any other national, state or foreign law or regulation
or whether any consents, approvals or waivers are required to be or should be
obtained from other parties to loan agreements or other contracts or instruments
material to the Company's business and (B) in promptly making any such filings,
furnishing information required in connection therewith and seeking to obtain
timely any such consents, permits, authorizations, approvals or waivers.
(c) In the event that any action, suit, proceeding or investigation
relating hereto or to the transactions contemplated hereby is commenced, whether
before or after the Effective Time, the parties hereto agree to cooperate and
use all reasonable efforts to defend vigorously against it and respond thereto.
SECTION 6.05 INDEMNIFICATION AND INSURANCE.
(a) For six years after the Effective Time, the Company or the Amalgamated
Company, as applicable, shall indemnify, defend and hold harmless each person
who is now, or has been at any time prior to the date hereof or who becomes
prior to the Effective Time, an officer or director of the Company and the Group
Entities or an employee of the Company or any Group Entity who acts as a
fiduciary under any of the Company Benefit Plans (each an "INDEMNIFIED PARTY")
against all losses, claims, damages, liabilities, fees and expenses (including
reasonable fees and disbursements of counsel and judgments, fines, losses,
claims, liabilities and amounts paid in settlement (provided that any such
settlement is effected with the prior written consent of Aramex or the
Amalgamated Company, as applicable, which consent shall not be unreasonably
withheld)) arising in whole or in part out of actions or omissions in their
capacity as such occurring at or prior to the Effective Time to the full extent
permitted under Bermuda law or the Company's or the Amalgamated Company's
Memorandum of Association and Bye-laws, as applicable, and the Company's written
indemnification agreements in effect at the date hereof, including provisions
therein relating to the advancement of expenses incurred in the defense of
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any action or suit; provided, that in the event any claim or claims are asserted
or made within such six-year period, all rights to indemnification in respect of
any such claim or claims shall continue until disposition of any and all such
claims; and provided, further, that any determination required to be made with
respect to whether an Indemnified Party's conduct complies with the standards
set forth under Bermuda law, the Company's or the Amalgamated Company's
Memorandum of Association or Bye-laws, as applicable, or the Company's written
indemnification agreements, as the case may be, shall be made by independent
counsel mutually acceptable to the Company or the Amalgamated Company, as
applicable, and the Indemnified Party; and provided, further, that nothing
herein shall impair any rights or obligations of any Indemnified Party. In the
event that any claim or claims are brought against any Indemnified Party
(whether arising before or after the Effective Time), such Indemnified Party may
select counsel for the defense of such claim, which counsel shall be reasonably
acceptable to the Company (if selected prior to the Effective Time) or the
Company or the Amalgamated Company (as applicable, if selected after the
Effective Time).
(b) The Company or the Amalgamated Company, as applicable, shall maintain
the Company's existing officers' and directors' liability insurance policy ("D&O
INSURANCE") for a period of not less than six years after the Effective Time,
but only to the extent related to actions or omissions prior to the Effective
Time; provided, that the Company or the Amalgamated Company, as applicable, may
substitute therefor policies of substantially similar coverage and amounts
containing terms no less advantageous to such former directors or officers;
provided further, that the aggregate amount of premiums to be paid with respect
to the maintenance of such D&O Insurance for such six year period shall not
exceed $300,000.
SECTION 6.06 EMPLOYEE MATTERS. Contemporaneous with the execution of this
Agreement, the Company shall enter into (i) a Deed of Variation with Xxxx
Xxxxxxxx and (ii) a Letter of Appointment with Xxxxxxx Xxxxxxx, in the forms
attached as Exhibit D and Exhibit E, respectively.
SECTION 6.07 PROXY STATEMENT. Unless Purchaser is able to conduct a Compulsory
Acquisition of the Common Shares not tendered in the Offer as contemplated by
Section 2.11, Parent and Purchaser shall cooperate to provide to the Company the
necessary information for, and the Company shall prepare the Proxy Statement
and, subject to the prior review and approval of Parent and Purchaser (which
approval shall not be unreasonably withheld), the Company shall cause, as soon
as practicable after the consummation of the Offer, the Proxy Statement to be
mailed to the Company's shareholders at the earliest practicable date and shall
use all reasonable efforts to obtain the necessary approval of the Amalgamation
by its shareholders. The Company agrees to provide Parent and Purchaser with,
and to consult with Parent and Purchaser regarding, any comments that may be
received from any regulatory authority with respect to the Proxy Statement
promptly after receipt thereof. Parent, Purchaser and the Company each agree
promptly to correct any information provided by it for use in the Proxy
Statement if and to the extent that it shall have become false or misleading in
any material respect and the Company further agrees to take all steps necessary
to cause the Proxy Statement as so corrected to be filed with any regulatory
authority, if required, and to be disseminated to holders of Common Shares, in
each case as and to the extent required by applicable law.
SECTION 6.08 NOTIFICATION OF CERTAIN MATTERS. The Company shall give prompt
notice to Parent and Purchaser, and Parent or Purchaser, as the case may be,
shall give prompt notice to the Company, of the occurrence, or non-occurrence,
of any event the occurrence, or non-occurrence, of which is likely (a) to cause
any representation or warranty of such party contained in this Agreement to be
untrue or inaccurate in any material respect if made as of any time at or prior
to the Effective Time and (b) to result in any material failure of such party to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied hereunder (including the conditions set forth in Exhibit A);
provided, however, that the delivery of any notice pursuant to this Section 6.08
shall not limit or otherwise affect the remedies available hereunder to any of
the parties sending or receiving such notice.
SECTION 6.09 PRESS RELEASES. Parent, Purchaser and the Company will consult with
each other before issuing any press release or otherwise making any public
statements with respect to the Offer, the Amalgamation or the Compulsory
Acquisition, as applicable, or this Agreement and shall not issue any such press
release or make any such public statement prior to such consultation (and
24
affording the other party or parties an opportunity to comment thereon), except
as may be required by applicable law or stock exchange rules.
SECTION 6.10 REVIEW. The Company covenants and agrees that it shall take all
action necessary to enable a tax review of the Company and the Group Entities
for the fiscal years 1999 and 2000 (the "SPECIAL TAX REVIEW") to commence on or
after the date of this Agreement, including but not limited to providing the Tax
Reviewer with full access to the books, records, accounts, personnel and
advisors of the Company. The Company agrees that it shall appoint KPMG or
another internationally recognized accounting firm (that does not audit the
financial statements of the Company) reasonably acceptable to Parent, Purchaser
and the Company (the "TAX REVIEWER") to perform the Special Tax Review. Parent
and Purchaser agree to pay all expenses of the Tax Reviewer related to the
Special Tax Review.
SECTION 6.11 EXISTING STOCK OPTIONS. The Company shall take all action necessary
or procure such action necessary to permit (i) the conditional exercise of those
Existing Stock Options which are currently exercisable and which have an
exercise price equal to or less than the Offer Price; and (ii) the "cashless" or
nil paid exercise of those Existing Stock Options that are conditionally
exercised. Holders of Existing Stock Options will indicate their interest in
making a "conditional exercise" to the Company and the Company shall act as
agent for such holders for purposes of tendering the underlying Common Shares in
the Offer or having such Common Shares delivered directly to the Purchaser at
the instruction of such holders. As will be more fully described in the Offer
Documents, if Purchaser accepts for payment Common Shares tendered in the Offer,
it will also acquire the Common Shares underlying all "conditionally exercised"
Existing Stock Options. Each holder of such "conditionally exercised" Existing
Stock Options shall be entitled to receive an amount equal to the product of (i)
the excess, if any, of the Offer Price over the per share exercise or purchase
price of such Existing Stock Option and (ii) the number of Existing Stock
Options exercised by such holder. Notwithstanding anything in this Agreement to
the contrary, in no event shall the Company or the holders of Existing Stock
Options be entitled to receive any consideration for "conditionally exercised"
Existing Stock Options (or any such underlying Common Shares, other than Common
Shares that are not fully paid) except as stated in the immediately preceding
sentence. Such payment shall be reduced by any income, employment or other
similar Tax withholding required under the Code or any provision of state, local
or foreign tax law and any other applicable Taxes as specified in Section 2.12.
To the extent such amounts are withheld, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the holder of such
Existing Stock Option.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE AMALGAMATION
SECTION 7.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE AMALGAMATION.
The respective obligations of each party to effect the Amalgamation are subject
to the satisfaction or waiver, where permissible, prior to the proposed
Effective Time, of the following conditions:
(a) the Compulsory Acquisition shall not have occurred;
(b) the plan of amalgamation contained in this Agreement shall have been
approved by the requisite affirmative vote of the shareholders of the Company
and the Purchaser required by and in accordance with applicable law;
(c) all necessary waiting periods under the HSR Act and any other
anti-trust or competition laws applicable to the Amalgamation shall have expired
or been terminated;
(d) no statute, rule, regulation, executive order, judgment, decree or
injunction shall have been enacted, entered, issued, promulgated or enforced by
any court or Governmental Entity against Parent, Purchaser or the Company and be
in effect that prohibits or restricts the consummation of the Amalgamation or
makes such consummation illegal (each party agreeing to use all reasonable
efforts to have such prohibition lifted);
25
(e) Purchaser shall have accepted for payment and paid for Shares tendered
pursuant to the Offer; and
(f) appraisal actions with respect to the Amalgamation shall not have been
filed by or on behalf of shareholders of the Company holding more than 10% of
the outstanding Common Shares.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
SECTION 8.01 TERMINATION. This Agreement may be terminated and the Compulsory
Acquisition or Amalgamation may be abandoned at any time (notwithstanding
approval thereof by the shareholders of the Company) prior to the Effective Time
(with any termination by Parent also being an effective termination by
Purchaser):
(a) by mutual written consent of the Company and Parent;
(b) by Parent or the Company if any court of competent jurisdiction or
other Governmental Entity shall have issued and not revoked or lifted an order,
decree or ruling (which order, decree or ruling the parties hereto shall use
reasonable efforts to lift) or taken and not revoked any other action
restraining, enjoining or otherwise prohibiting the Offer, the Amalgamation or
any of the transactions contemplated by this Agreement;
(c) by the Company if (i) Purchaser fails to commence the Offer as required
by Section 1.01 hereof, (ii) Purchaser shall not have accepted for payment and
paid for Shares tendered pursuant to the Offer in accordance with the terms
thereof on or before the 90th day after the date of this Agreement, (iii)
Purchaser fails to accept for payment and pay for validly tendered Shares in
violation of the Offer or the terms of this Agreement or (iv) Purchaser or
Parent shall have breached any of their respective representations, warranties
or covenants of this Agreement, which breach has had or is reasonably likely to
have a material adverse effect on the ability of Parent or Purchaser to
consummate the transactions contemplated hereby;
(d) by Parent if, due to the non-satisfaction of any of the Offer
Conditions, Purchaser has (i) terminated the Offer without purchasing any Shares
tendered pursuant to the Offer or (ii) not accepted for payment Shares tendered
pursuant to the Offer prior to the 90th day after the date of this Agreement;
(e) by the Company, prior to the acceptance for payment of Shares tendered
pursuant to the Offer, if (i) the Company has received a Superior Proposal, (ii)
the Company has complied with the provisions of Section 6.02(a) and (b), (iii)
the Company has notified Parent and Purchaser in writing of its receipt of, and
its intention to accept, a Superior Proposal and the material terms thereof and,
during the seven (7) day period following such notice, has afforded Parent the
opportunity to make revised proposals (including by negotiating the terms of any
such proposals with Parent), (iv) the Board of Directors of the Company shall
have concluded, after considering the results of such negotiations and any
revised proposal made by Parent that the Superior Proposal giving rise to the
Company's notice continues to be a Superior Proposal, and (v) the Company
simultaneously with its termination of this Agreement makes the payment required
by Section 8.03(b); and
(f) by Parent, prior to the acceptance for payment of Shares tendered
pursuant to the Offer, if the Company shall have taken or the Board of Directors
of the Company shall have resolved to take any of the actions referred to in
Section 6.02(d) or the Company shall have breached any of its obligations under
Section 6.02.
SECTION 8.02 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 8.01, this Agreement, except for the provisions of Sections 6.03(b),
6.09, 8.02, 8.03 and Article IX hereof, shall forthwith become void and have no
effect, without any liability on the part of any party or its directors,
officers or shareholders. Nothing in this Section 8.02 shall relieve any party
to this Agreement of liability for any willful breach of this Agreement.
26
SECTION 8.03 FEES AND EXPENSES.
(a) Whether or not the Offer or the Amalgamation is consummated, except as
otherwise specifically provided herein, all costs and expenses incurred in
connection with the Offer, the Amalgamation, this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
(b) In the event that this Agreement is terminated pursuant to Section
8.01(e) or Section 8.01(f), the Company shall pay Parent a termination fee of
Two Million Dollars ($2,000,000) (the "TERMINATION FEE") in immediately
available funds by wire transfer to an account designated by Parent. If this
Agreement is terminated by Parent pursuant to Section 8.01(f) and the
Termination Fee is paid in accordance with Sections 8.03(b) and (c), Parent
agrees that it will not seek damages hereunder for the Company's breach of
Section 6.02.
(c) Any amounts payable pursuant to Section 8.03(b) shall be payable
promptly but in no event later than two (2) Business Days following termination
of this Agreement and, if the Company is the party seeking to terminate this
Agreement, as a condition thereto.
(d) The Company acknowledges that the agreements contained in this Section
8.03 are an integral part of the transactions contemplated by this Agreement and
that, without these agreements, Parent and Purchaser would not have entered into
this Agreement.
(e) The prevailing party in any legal action undertaken to enforce this
Agreement or any provision hereof shall be entitled to recover from the other
party the costs and expenses (including attorneys' and expert witness fees)
incurred in connection with such action. If Parent commences a suit brought for
the Company's failure to pay the Termination Fee when due pursuant to this
Section 8.03, and such suit results in a judgment against the Company with
respect to the payment of the Termination Fee, the Company shall pay to Parent
its costs and expenses as provided above together with interest from the date of
termination of this Agreement on the amounts so owed at the prime rate offered
by Citibank in effect from time to time during such period for Dollar
denominated loans plus two percent (2%).
SECTION 8.04 AMENDMENT. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the Boards of
Directors of the Company, Parent and Purchaser, subject in the case of the
Company to Section 1.04(b), at any time before or after approval of this
Agreement by the shareholders of the Company but, after any such shareholder
approval, no amendment shall be made which decreases the Amalgamation
Consideration or which adversely affects the rights of the Company's
shareholders hereunder without the approval of the shareholders of the Company.
This Agreement may not be amended, changed, supplemented or otherwise modified
except by an instrument in writing signed on behalf of all of the parties.
SECTION 8.05 EXTENSION; WAIVER; REMEDIES.
(a) At any time prior to the Effective Time, the parties hereto, by action
taken by or on behalf of the respective Boards of Directors of the Company,
Parent and Purchaser, subject in the case of the Company to Section 1.04(b), may
(x) extend the time for the performance of any of the obligations or other acts
of the other parties hereto, (y) waive any inaccuracies in the representations
and warranties contained herein by any other applicable party or in any
document, certificate or writing delivered pursuant hereto by any other
applicable party or (z) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
(b) 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. The failure of any party hereto to exercise any rights,
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
27
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.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made in Articles IV and V shall not survive beyond the Effective
Time. This Section 9.01 shall not limit any covenant or agreement of the parties
hereto that by its terms contemplates performance after the Effective Time.
SECTION 9.02 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, together with the
Confidentiality Agreement, constitutes the entire agreement between the parties
with respect to subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between the parties with respect to
subject matter hereof. The Agreement shall not be assigned by any party by
operation of law or otherwise without the prior written consent of the other
parties, provided, that Parent or Purchaser may assign any of their respective
rights and obligations to any direct or indirect wholly-owned subsidiary of
Parent, but no such assignment shall relieve Parent or Purchaser, as the case
may be, of its obligations hereunder.
SECTION 9.03 VALIDITY. 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.
SECTION 9.04 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be deemed given upon (i) transmitter's
confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery
by a standard overnight courier or when delivered by hand or (iii) the
expiration of five Business Days after the date 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
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
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with a copy to:
Norton Xxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx, XX XX0X 0XX
Attention: Xxx Xxxxxxx
Facsimile: x00 (0)00 0000 0000
if to the Company:
Aramex International Limited
2 Badr Shaker Al Sayyab Street
Um Uthanya X.X. Xxx 0000
Xxxxx 00000
Xxxxxx
Attention: Xxxx Xxxxxxxx
Facsimile: x000 0 000 0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: x0 000 000 0000
SECTION 9.05 GOVERNING LAW; JURISDICTION.
(a) 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
Obligations Laws; provided, however, that provisions relating to the
Amalgamation and the Compulsory Acquisition shall be governed by the laws of
Bermuda and provisions relating to the validity of corporate actions shall be
governed by the laws of the jurisdiction of incorporation or organization of the
relevant corporation. 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 itself and its
property to the non-exclusive jurisdiction of the foregoing courts with respect
to such disputes.
(b) Without prejudice to any other mode of service:
(i) the Company appoints CT Corporation System located at 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 agrees to maintain the process agent in
New York notified to Parent and Purchaser;
(ii) Parent and Purchaser each appoint CT Corporation System located
at 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 Company;
(iii) each party agrees that failure by a process agent to notify it
of the process shall not invalidate the proceedings concerned; and
(iv) each party consents to the service of process relating to any
such proceedings by prepaid mailing of a copy of the process to its
respective agent at the address identified in paragraph (i) or (ii) 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 9.04.
29
(c) Each of the parties hereto:
(i) 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
(ii) 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 hereby is conclusive and binding on it, subject to appellate
review, and may be enforced against it in the courts of any other
jurisdiction.
SECTION 9.06 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement except
for Section 6.05 (which are intended to be for the benefit of the Persons
referred to therein).
SECTION 9.07 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 agreement.
Article X
DEFINITIONS and interpretations
10.01 DEFINITIONS. As used in this Agreement, the following capitalized terms
shall have the meanings (such definitions to be equally applicable to both the
singular and plural forms of the terms defined) set forth in this Section 10.01.
"2000 FINANCIAL STATEMENTS" shall mean the audited consolidated financial
statements of the Company (including the related notes and schedules) included
in the Company's Form 20-F for fiscal year 2000.
"ACCEPTANCE DATE" shall mean the date that the amendment to Schedule TO
reporting the initial acceptance by Purchaser of the Common Shares tendered in
the Offer is filed with the SEC.
"ACQUISITION PROPOSAL" shall mean any offer or proposal, or any indication
of interest in making an offer or proposal, made by a Person or group (within
the meaning of Section 13(d) of the Exchange Act and the rules promulgated
thereunder) at any time with respect to any recapitalization, merger,
amalgamation, consolidation or other business combination involving the Company
or the Group Entities, or acquisition of any share capital (other than upon
exercise of the Existing Stock Options and Warrants that are outstanding as of
the date hereof) or any portion of the assets (except for acquisition of assets
in the ordinary course of business consistent with past practices) of the
Company or the Group Entities, or any combination of the foregoing.
"AFFILIATE" and "ASSOCIATE" shall have the meanings given to such terms in
Rule 12b-2 under the Exchange Act.
"AGREEMENT" shall have the meaning set forth in the Opening Paragraph.
"AIRBORNE" shall mean Airborne Freight Corporation, a Delaware Corporation.
"AMALGAMATED COMPANY" shall have the meaning set forth in Section 2.01.
"AMALGAMATION" shall have the meaning set forth in Section 2.01.
"AMALGAMATION AGREEMENT" shall have the meaning set forth in Exhibit A.
"AMALGAMATION CONSIDERATION" shall have the meaning set forth in Section
2.07.
30
"AMALGAMATION EFFECTIVE TIME" shall have the meaning set forth in Section
2.03.
"AUDIT" shall mean any audit, assessment of Taxes, other examination by any
Tax Authority, proceeding or appeal of such proceeding relating to Taxes.
"AUTHORIZATIONS" shall have the meaning set forth in Section 4.15(b).
"BENEFICIAL OWNERSHIP" shall have the meaning given to such term in Rule
13d-3 under the Exchange Act.
"BUSINESS DAY" shall mean a day, other than a Saturday, Sunday, a day which
is a US federal holiday or a public holiday in Bermuda, Jordan or the United
Kingdom.
"CERTIFICATE OF AMALGAMATION" shall have the meaning set forth in Section
2.03.
"CERTIFICATES" shall have the meaning set forth in Section 3.02(a).
"CODE" shall mean the US Internal Revenue Code of 1986, as amended.
"COMMON SHARES" means the common stock of the Company, par value $0.01 per
share.
"COMPANIES ACT" shall mean the Bermuda Companies Xxx 0000, as amended.
"COMPANY" shall have the meaning set forth in the Opening Paragraph.
"COMPANY BENEFIT PLANS" shall have the meaning set forth in Section 4.11
(a).
"COMPANY PERMITS" shall have the meaning set forth in Section 4.14(a).
"COMPANY SEC REPORTS" shall have the meaning set forth in Section 4.06(a).
"COMPANY SECURITIES" shall have the meaning set forth in Section 4.02(d).
"COMPANY US PLANS" shall have the meaning set forth in Section 4.11 (a).
"COMPULSORY ACQUISITION" shall have the meaning set forth in Section 2.11.
"COMPULSORY ACQUISITION EFFECTIVE TIME" shall have the meaning set forth in
Section 2.11.
"CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality Agreement dated
September 12, 2001, between Groupe Cupola Luxembourgeoise Holdings SA and the
Company.
"CONTINUING DIRECTORS" shall have the meaning set forth in Section 1.04(b).
"D&O INSURANCE" shall have the meaning set forth in Section 6.05 (b).
"DOLLAR" or "$" shall mean the currency of the United States of America.
"DOMAIN NAMES" shall mean all internet domain names owned by or on behalf
of the Company and the Group Entities, including, without limitation,
xxx.xxxxxx.xxx, xxx.xxxxxx.xxx, xxx.xxxxxx.xxx, xxx.xxxxxx.xxxx and
xxx.xxxxxx.xxx.
"EFFECTIVE TIME" shall mean either the Amalgamation Effective Time or the
Compulsory Acquisition Effective Time, as applicable.
"ENVIRONMENTAL LAW" shall mean any statute, law, ordinance, rule,
regulation, order, judgment or decree applicable to the Company or any Group
Entity relating to (i) pollution or the protection or preservation of the
environment or natural resources, (ii) Releases or threatened
31
Releases, and (iii) the management (including use, treatment, handling, storage,
disposal, transportation, recycling or remediation) of any Hazardous Substance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" shall mean any trade or business whether or not
incorporated, that together with such party would be deemed a "single employee"
within the meaning of Section 4001(b) of ERISA.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXISTING STOCK OPTIONS" shall mean those options or rights to acquire
Common Shares listed on Schedule 4.02(b).
"EXPIRATION DATE" shall have the meaning set forth in Exhibit A.
"FINANCIAL ADVISOR" shall mean BB&T Capital Markets in its capacity as
financial advisor to the Company with respect to the transactions contemplated
by this Agreement.
"GOVERNMENTAL ENTITY" shall mean any national, state or local government or
subdivision thereof, or governmental, judicial, legislative, executive,
administrative or regulatory authority, agency, commission, tribunal or body.
"GROUP ENTITY" shall mean those entities which comprise the Company's
international express package delivery, freight forwarding, logistics and other
transport operations.
"GROUP ENTITY SECURITIES" shall have the meaning set forth in Section
4.02(e).
"HAZARDOUS SUBSTANCE" shall mean any substance, pollutant, contaminant,
chemical or other material (including petroleum or any fraction thereof,
asbestos or asbestos-containing-material, polychlorinated biphenyls, urea
formaldehyde foam insulation) or waste that is identified or regulated under any
Environmental Law.
"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 6.05 (a).
"INFORMATION TECHNOLOGY" shall mean information technology infrastructure
(including without limit hardware, software (in both object and source code),
firmware, networks and connecting media) and all data, information, manuals or
other documents relating thereto.
"INTELLECTUAL PROPERTY" shall mean all patents, trademarks, trade names,
business names (including internet domain names), service marks, copyrights
(including copyright in computer software) and rights in designs, databases,
semiconductor topographies, undisclosed confidential information (such as
know-how, trade secrets and inventions (whether patentable or not)), and all
other intellectual property or similar proprietary rights of whatever nature
(whether registered or not and including applications to register or rights to
apply for registration) which may now or in the future subsist anywhere in the
universe.
"MATERIAL ADVERSE EFFECT" shall mean any event, circumstance, condition,
development or occurrence causing, resulting in or having (or with the passing
of time likely to cause, result in or have) a material and adverse effect on the
financial condition, business, properties, assets, liabilities, results of
operations or prospects of the Company and the Group Entities taken as a whole
or the ability of the Company to consummate the transactions contemplated by
this Agreement in any material respect; provided, however, that no event or
circumstance arising out of, or resulting from, the entering into or the
announcement of this Agreement shall be deemed to constitute a Material Adverse
Effect.
"MATERIAL CONTRACTS" shall have the meaning set forth in Section 4.19(b).
32
"MINIMUM TENDER CONDITION" shall have the meaning set forth in Exhibit A.
"OFFER" shall have the meaning set forth in Section 1.01(a).
"OFFER CONDITIONS" shall have the meaning set forth in Section 1.01(a).
"OFFER DOCUMENTS" shall have the meaning set forth in Section 1.01(c).
"OFFER PRICE" shall have the meaning set forth in Section 1.01(a).
"PARENT" shall have the meaning set forth in the Opening Paragraph.
"PAYING AGENT" shall have the meaning set forth in Section 3.01.
"PAYMENT FUND" shall have the meaning set forth in Section 3.01.
"PERSON" shall mean any individual, corporation, limited liability company,
partnership, association, trust, estate or other entity or organization.
"PLAN OF AMALGAMATION" shall mean the amalgamation of the Company and
Purchaser on the terms and conditions contained in this Agreement and to be set
out in a separate Bermuda law agreement to be approved by the shareholders.
"POTENTIAL ACQUIRER" shall have the meaning set forth in Section 6.02(a).
"PREFERRED SHARES" shall mean the 5,000,000 authorized preferred shares,
par value $0.01 per share, of the Company.
"PROXY STATEMENT" shall mean, collectively, the letter to shareholders,
notice of meeting, proxy statement and form of proxy, or the information
statement, as the case may be, that may be provided to shareholders of the
Company in connection with the Amalgamation (including any amendments or
supplements), and any schedules which may be required to be filed with or
furnished to any regulatory authority in connection therewith, as from time to
time amended or supplemented.
"PURCHASER" shall have the meaning set forth in the Opening Paragraph.
"QUARTERLY FINANCIAL STATEMENTS" shall have the meaning set forth in
Section 4.06 (b).
"REAL PROPERTY LEASES" shall have the meaning set forth in Section 4.18(b).
"RELEASE" shall mean any spill, discharge, leak, emission, disposal,
injection, escape, dumping, leaching, dispersal, emanation, migration or release
of any kind whatsoever of any Hazardous Substance in, on, into, through or onto
the environment.
"SCHEDULE TO" shall mean a Tender Offer Statement on Schedule TO, together
with all amendments and supplements thereto.
"SCHEDULE 14D-9" shall mean a Solicitation/Recommendation Statement on
Schedule 14D-9, together with all amendments and supplements thereto.
"SEC" shall mean the Securities and Exchange Commission.
"SHARES" shall mean the issued and outstanding Common Shares and the Common
Shares issuable in respect of Existing Stock Options that have been
"conditionally exercised" by the holder thereof for purposes of participating in
the Offer.
"SPECIAL MEETING" shall have the meaning set forth in Section 2.09.
"SPECIAL TAX REVIEW" shall have the meaning set forth in Section 6.10.
33
"STOCK OPTION PLAN" shall mean the Aramex Stock Option Plan effective as of
January 13, 1997.
"SUBSEQUENT PERIOD" shall have the meaning set forth in Section 1.01(b).
"SUPERIOR PROPOSAL" shall mean any unsolicited, bona fide written
Acquisition Proposal as to which the Board of Directors of the Company (acting
by a majority of the entire board) determines in its good faith judgment (after
consultation with its independent financial advisors and independent legal
counsel) taking into account applicable legal, financial, regulatory and other
relevant aspects of the Acquisition Proposal, the identity of the Person making
the proposal and other relevant considerations, that (i) such Acquisition
Proposal is more favorable from a financial point of view to the Company's
shareholders than this Agreement, (ii) the conditions to the consummation of
such Acquisition Proposal are reasonably capable of being satisfied promptly and
(iii) financing for such transaction, to the extent required, is then committed
or reasonably available.
"TAKEOVER LAWS" shall mean any "moratorium", "control share acquisition",
"business combination", "fair price" or other form of anti-takeover laws and
regulations.
"TAX" shall mean all taxes, charges, fees, levies, imposts, duties, and
other assessments, including without limitation any income, alternative minimum
or add-on tax, estimated, gross income, gross receipts, sales, use, transfer,
transactions, intangibles, ad valorem, value-added, franchise, registration,
title, license, capital, paid-up capital, profits, withholding, employee
withholding, payroll, worker's compensation, unemployment insurance, social
security, employment, excise (including the federal communications excise tax
under Section 4251 of the Code), severance, stamp, transfer occupation, premium,
recording, real property, personal property, federal highway use, commercial
rent, environmental, taxes under Section 59A of the Code or windfall profit tax,
custom, duty or other tax, fee or other like assessment or charge, together with
any interest, penalties, related liabilities, fines or additions to tax that may
become payable in respect thereof imposed by any country, any state, county,
provincial or local government or subdivision or agency thereof.
"TAX AUTHORITY" shall mean the US Internal Revenue Service and any other US
or foreign Governmental Entity responsible for the administration of any Taxes.
"TAX RETURNS" shall mean all returns, declarations, statements, reports,
schedules, forms or information returns, and any amendments to the foregoing,
required to be filed by the Company and the Group Entities (or any of them) with
respect to Taxes.
"TAX REVIEWER" shall have the meaning set forth in Section 6.10.
"TERMINATION FEE" shall have the meaning set forth in Section 8.03(b).
"TRANSFER AGENT" shall mean Continental Stock Transfer & Trust Co., in its
capacity as the Company's transfer agent.
"US BUSINESS DAY" shall mean any day, other than Saturday, Sunday or a US
federal holiday.
"VOTING AND TENDER AGREEMENT" shall have the meaning set forth in the
Recitals.
"WARN ACT" shall mean the Worker Adjustment and Retraining Notification Act
of 1988, as amended.
"WARRANTS" shall have the meaning set forth in Section 4.02(c).
"WEBSITE" shall mean the worldwide website on the internet operated and
owned by or on behalf of the Company or the Group Entities and located at
xxx.xxxxxx.xxx and such other websites owned or operated by or on behalf of the
Company and the Group Entities on or prior to the Effective Date.
34
SECTION 10.02 DESCRIPTIVE HEADINGS. The descriptive headings 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.
SECTION 10.03 INTERPRETATION. Where a statement is qualified by the "knowledge"
of a party or the "awareness" of a party, or other similar expression, that
statement shall be deemed to include an additional statement that it has been
made after due and careful internal inquiry (including, in the case of the
Company, due and careful inquiry having been made of the Company's or the
requisite Group Entity's appropriate directors, officers, employees, agents and
advisors.)
SECTION 10.04 REFERENCES. 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.
[SIGNATURE PAGE FOLLOWS]
35
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its duly authorized officers as of the day and year
first above written.
RASMALA DISTRIBUTION (CAYMAN) LIMITED
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
-----------------------------------
Title: Director
-----------------------------------
RASMALA DISTRIBUTION (BERMUDA) LIMITED
By: /s/ Xxx Xxxxx xx Xxxxxxx
-----------------------------------
Name: Xxx Xxxxx xx Xxxxxxx
-----------------------------------
Title: Director
-----------------------------------
ARAMEX INTERNATIONAL LIMITED
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Chairman
-----------------------------------
EXHIBIT A
Conditions to the Offer
Capitalized terms used in this Exhibit A and not otherwise defined herein
shall have the meanings assigned to them in the Agreement to which it is
attached (the "AMALGAMATION AGREEMENT").
Notwithstanding any other provision of the Offer, Parent and Purchaser
shall not be required to accept for payment any Shares tendered in connection
with the Offer and may terminate or, subject to the terms of the Amalgamation
Agreement, amend the Offer, if (i) there shall not have been validly tendered
and not properly withdrawn as of the expiration of the initial offering period
for the Offer (the "EXPIRATION DATE") that number of Shares which, together with
any Common Shares then beneficially owned by Purchaser or Parent, represents at
least seventy-five percent (75%) of the total number of outstanding Common
Shares on a fully diluted basis on the date of acceptance for payment (the
"MINIMUM TENDER CONDITION"), (ii) any applicable waiting period under the HSR
Act or any other applicable anti-trust or competition law shall not, as of the
Expiration Date, have expired or been terminated, or (iii) at any time on or
after the date of the execution of the Amalgamation Agreement and prior to the
time of acceptance for payment of any Shares, any of the following conditions
exist:
(a) there shall be instituted or pending and not dismissed or withdrawn any
action or proceeding by any government or Governmental Entity (i) challenging or
seeking to make illegal, to delay materially or otherwise directly or indirectly
to restrain or prohibit the making of the Offer, the acceptance for payment of
the Shares or payment of the consideration due to holders of Common Shares or
Existing Stock Options by Parent or Purchaser or the consummation of the
Amalgamation or Compulsory Acquisition, (ii) seeking to restrain or prohibit
Parent's ownership or operation (or that of its respective subsidiaries or
affiliates) of all or any material portion of the business or assets of the
Company and the Group Entities, taken as a whole, or of Parent and its
subsidiaries, taken as a whole, or to compel Parent or any of its subsidiaries
or affiliates to dispose of or hold separate all or any material portion of the
business or assets of the Company and the Group Entities, taken as a whole, or
of Parent and its subsidiaries, taken as a whole, (iii) seeking to impose or
confirm material limitations on the ability of Parent, Purchaser or any of
Parent's other subsidiaries or affiliates effectively to exercise full rights of
ownership of the Shares, including without limitation, the right to vote any
Shares acquired or owned by Parent, Purchaser or any of Parent's other
subsidiaries or affiliates on all matters properly presented to the Company's
shareholders or (iv) seeking to require divestiture by Parent, Purchaser or any
of Parent's other subsidiaries or affiliates of any Shares; or
(b) there shall have been any action taken, or any statute, rule,
regulation, injunction, order or decree, enacted, enforced, promulgated, issued
or deemed applicable to the Offer or the Amalgamation, by any court, government
or Governmental Entity, other than the application of the waiting period
provisions of the HSR Act or any other applicable anti-trust or competition law
to the Offer or the Amalgamation, that result in any of the consequences
referred to in clauses (i) through (iv) of paragraph (a) above; or
(c) there shall have occurred (i) any general suspension of, or limitation
on prices for, trading in securities on any national securities exchange or in
the over-the-counter market in the United States, Bermuda, Jordan, the United
Arab Emirates or Lebanon (other than any suspension or limitation on trading in
any particular security as a result of a computerized trading limit or any
intraday suspension due to "circuit breakers"); (ii) any declaration of any
banking moratorium or any suspension of payments in respect of banks or any
limitation (whether or not mandatory) on the extension of credit by lending
institutions in the Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, xxx Xxxxxx Xxxx Xxxxxxxx or
Lebanon; (iii) any limitation (whether or not mandatory) by any Governmental
Entity on, or other event that materially adversely affects, the extension of
credit by banks or other lending institutions in the Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx, xxx Xxxxxx Xxxx Xxxxxxxx or Lebanon; (iv) any commencement of a war,
armed hostilities or other national or international calamity directly or
indirectly involving the Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, xxx Xxxxxx Xxxx
Xxxxxxxx or Lebanon; (v) any change in general financial, bank or other capital
market conditions which materially and adversely affects the ability of
financial institutions in the Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, xxx Xxxxxx Xxxx
Xxxxxxxx or Lebanon to extend credit or syndicate loans; or (vi) in the case of
any of the foregoing
A-1
occurrences existing on or at the time of the commencement of the Offer, a
material acceleration or worsening thereof; or
(d) the Company shall have breached in any material respect or failed to
comply in any material respect with any of its obligations, covenants or
agreements under the Amalgamation Agreement; or
(e) (i) any representation or warranty of the Company contained in the
Amalgamation Agreement that is qualified by reference to a Material Adverse
Effect or (ii) any representation or warranty that is qualified by reference to
"materiality" shall not be true and correct; or any other such representation or
warranty shall not be true and correct in all material respects, in each case
either as of when made or at and as of any time thereafter (except in the case
of any representation or warranty that by its terms is made as of a date
specified therein which need be accurate only as of such date); or
(f) there has occurred any change in the financial condition, business,
operations or prospects of the Company and the Group Entities, taken as a whole,
that would constitute a Material Adverse Effect; or
(g) a Shareholder (as such term is used in the Voting and Tender Agreement)
shall have breached in any material respect or failed to comply in any material
respect with any of their obligations, covenants or agreements under the Voting
and Tender Agreement; or
(h) (i) the Board of Directors of the Company, or any committee thereof,
has withdrawn or modified, in a manner adverse to Parent or Purchaser, the
approval or recommendation of the Amalgamation Agreement, the Offer, the
Amalgamation or the Compulsory Acquisition, or approved, recommended or
announced a neutral position with respect to any Acquisition Proposal or (ii)
the Board or Directors of the Company, or any committee thereof, has resolved to
do any of the foregoing; or
(i) the Amalgamation Agreement shall have been terminated pursuant to its
terms or shall have been amended pursuant to its terms to provide for such
termination or amendment of the Offer;
which, in the judgment of Parent and regardless of the circumstances
giving rise to such condition, makes it inadvisable to proceed with the Offer or
with acceptance for payment or payment for Shares.
The foregoing conditions are for the sole benefit of Parent and
Purchaser and may be asserted or waived by Parent or Purchaser in whole or in
part at any time or from time to time in their discretion.
The failure of Parent or Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right, the waiver of
any such right with respect to particular facts and circumstances shall not be
deemed a waiver with respect to any other facts and circumstances and each such
right shall be deemed an ongoing right, which may be asserted at any time and
from time to time.
A-2
EXHIBIT B
MEMORANDUM OF ASSOCIATION OF the Company
See attached.
B-1
EXHIBIT C
DIRECTORS AND OFFICERS OF AMALGAMATED COMPANY
Xxxx Xxxxx, Director
Emirates Towers Xxxxxxx
00xx Xxxxx, Xxxxx 00X
Xxxxxx Xxxxx Xxxx
P.O. Box 31145
Dubai, United Arab Emirates
Xxxxxx Xxxxxx, Director
Emirates Towers Xxxxxxx
00xx Xxxxx, Xxxxx 00X
Xxxxxx Xxxxx Xxxx
P.O. Box 31145
Dubai, United Arab Emirates
Xxx Xxxxx xx Xxxxxxx, Director
Emirates Towers Xxxxxxx
00xx Xxxxx, Xxxxx 00X
Xxxxxx Xxxxx Xxxx
P.O. Box 31145
Dubai, United Arab Emirates
Xxxx Xxxxxxxx, Director and CEO
2 Badr Shaker Al Sayyab Street
Um Uthanya X.X. Xxx 0000
Xxxxx 00000
Xxxxxx
Xxxxxxx Xxxxxxx, Director
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
C-1
EXHIBIT D
FORM OF DEED OF VARIATION
See attached.
D-1
EXHIBIT E
Form of LETTER OF APPOINTMENT
See attached.
E-1
