EXHIBIT (d)(3)
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made this 12th day of September, 2001 by and between:
ARAMEX INTERNATIONAL LIMITED, a company duly organized and existing under and by
virtue of the laws of Bermuda, Having its registered office at Xxxxxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxxxx XX00 Xxxxxxx. Hereinafter referred to as ("Aramex") and;
GROUPE CUPOLA LUXEMBOURGEOISE HOLDINGS SA a company duly organized and existing
under and by virtue of the laws of Luxembourg, Having its registered office at
000, Xxxxxx xx xx Xxxxxxxxxx, X-0000 Xxxxxxxxxx. Hereinafter referred to as
("Cupola Group").
ARAMEX and CUPOLA GROUP being collectively called the ("Parties").
Aramex and Cupola Group are prepared to furnish each other with certain
confidential business and financial information with respect to a possible
transaction or relationship between Aramex and Cupola Group (the "Transaction").
In consideration of the mutual covenants contained herein and as an
inducement to each Party to make available to the other Party confidential
information with respect to such Party and the Transaction, Aramex and Cupola
Group agree as follows;
1. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean any and all information provided, obtained
or produced in connection with the Transaction (whether prepared by the
disclosing Party, its present or prospective directors, officers, employees,
agents or advisors (including, without limitation, attorney, accountants,
consultants, bankers and financial advisors) (collectively, "Representatives")
or otherwise), and disclosed by or on behalf of either of the Parties (a
"Discloser") to the other Party (a "Recipient") in written, oral or other
tangible form, including without limitation, all information previously
furnished with respect to the Discloser or the Transaction that has been
identified as confidential, and all portions of any analyses, compilations,
data, studies or other documents prepared by, or at the direction of, the
Recipient, that contain or are based, in whole or in part, on any furnished
information or reflecting its review of such information.
2. Undertaking. Each of the Parties agrees to hold all Confidential
Information received from a Discloser or its Representatives in confidence, and
to use the Confidential information only in connection with its internal
evaluation of the desirability and feasibility of engaging in the Transaction
with the Discloser. Neither of the Parties hereto or their respective
Representatives will, without the Discloser's prior written consent, disclose or
use in any manner whatsoever, in whole or in part, any Confidential Information
received from the Discloser or its Representatives other than in connection with
the Transaction or the negotiation of the definitive documents for the
Transaction.
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3. Duties
(a) Each Recipient receiving Confidential Information from a Discloser agrees
to undertake all necessary and appropriate steps to ensure that the
confidentiality of such Confidential Information is maintained and that
such Confidential Information is protected from unauthorized disclosure. A
Recipient shall exercise at least the same degree of care with respect to
maintaining the confidentiality of Confidential Information of the
Discloser that it exercises to maintain the confidentiality of its own
confidential and proprietary information of like importance. Without
limiting the generality of the foregoing, a Recipient shall not disclose
Confidential Information of the Discloser to any party except to its
Representatives on a "need to know" basis and then only to persons familiar
with the terms of this Agreement who have agreed to be bound by the terms
hereof. A Recipient shall take all steps necessary to ensure that the
obligations and restrictions imposed on the Recipient by this Agreement are
observed by its Representatives, and shall be responsible for any breach of
this Agreement by any of its Representatives.
(b) Each Party agrees that, without the prior written consent of the other
Party, such Party and its Representatives will not disclose to any person
the fact that the Confidential Information has been made available to the
Recipient, that discussions or negotiations are taking place concerning a
possible Transaction or any of the terms, conditions or other facts with
respect thereto (including the status thereof), unless such disclosure is
required by law and then only with as much prior written notice to the
other Party as is practical under the circumstances and only to the extent
required by law.
(c) Each Party further agrees that, unless and until a definitive agreement
regarding a Transaction between the Parties has been executed, neither
Party will be under any legal obligation of any kind whatsoever with
respect to such a transaction by virtue of this Agreement except for the
matters specifically agreed to herein. Each Party also acknowledges and
agrees that the other Party reserves the right, in its sole discretion,
to reject any and all proposals made by such Party or any of its
Representatives with regard to a Transaction, and to terminate discussions
and negotiations regarding the Transaction at any time for any or no
reason.
4. Return of Information. In the following events, each Party as a Recipient
shall return to each Discloser (or, at the Discloser's written request,
destroy) all tangible Confidential Information of the Discloser in its
possession, including all copies thereof, and promptly send to the
Discloser written and dated certification by a duly authorized person that
the Recipient has done so, within thirty (30) days after the expiration or
termination of this Agreement:
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(a) Promptly upon written notice by a Party, in the event such Party elects in
writing for any reason not to engage in, or pursue future opportunities in
connection with, the Transaction, or
(b) Within seven (7) days after a Party or both of the Parties elect in writing
to terminate their relationship with respect to the Transaction.
5. Exceptions. The obligations of a Recipient hereunder will not apply to
information or material, whether or not identified as Confidential
Information, which
(a) Is or becomes generally available to the public other than as a result of
unauthorized disclosure by a Party hereto or one of its Representatives; or
(b) Has become available to the Recipient from a person (other than the
Discloser or one of its Representatives) who is not under any obligation
of confidence; or
(c) Was known to the Recipient prior to the time of disclosure by the
Discloser as substantiated by documentation in the file of the Recipient
dated prior to the date of disclosure by the Discloser; or
(d) Is disclosed by the Recipient with the Discloser's prior written approval,
which approval shall be strictly construed; or
(e) Is disclosed pursuant to an order or requirement of a court, government
administrative agency or other governmental body; provided, however, that
if the Recipient shall be requested or required by any court or
governmental agency or authority to disclose any of the Confidential
Information, then the Recipient will provide the Discloser with prompt
notice of such request or requirement so that the Discloser may seek a
protective order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement. In the event that such protective order
or other remedy is not obtained, or that the Discloser waives compliance
with the provisions hereof, each Party agrees to (i) furnish only that
portion of the Confidential Information for which the Discloser has waived
compliance or for which Recipient is advised by counsel is legally required
and (ii) exercise its best efforts to obtain assurance that the
Confidential Information will be accorded such confidential treatment.
6. No License. Nothing in this Agreement, nor any act or omission in
compliance with or enforcement of this Agreement, shall be construed to
grant any rights in or licenses under the Confidential Information or any
present or future data, drawings, plans, ideas or methods disclosed
pursuant to this Agreement. All Confidential Information of a Discloser
disclosed to a Recipient shall remain the property of the Discloser.
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7. Accuracy of Information. Nothing in this Agreement shall be construed as a
warranty or representation of any kind with respect to the content or
accuracy of any Confidential Information.
8. Term. The Parties' obligations hereunder will survive the expiration or
termination of the Parties' assessment of the feasibility of cooperating or
otherwise pursuing opportunities together in the Transaction.
9. Indemnity. Each of the Parties hereto agrees as a Recipient to indemnify
and hold harmless the Discloser and its respective Affiliates against any
losses, claims, damages or liabilities arising out of a breach of this
Agreement by such Party or its Representatives, which shall include
reimbursement of all costs and expenses (including counsel fees) incurred
in connection therewith. The obligations set forth in this paragraph shall
survive the termination of this Agreement.
10. Equitable Relief. The Parties hereto agree that equitable relief, including
injunctive relief and specific performance, shall be available in the event
of any breach of the provisions of this Agreement. Such remedies shall not
be deemed to be exclusive remedies for a breach of this Agreement but shall
be in addition to all remedies available at law or equity. No failure or
delay by either Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder.
11. No Assignment. All obligations provided under this Agreement are personal
and no Party shall assign any rights or delegate any obligations hereunder
without the other Party's prior written consent. Any attempted assignment
without the required consent shall be null and void.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the English Law without regard to the principles of
conflicts of law thereof.
13. Entire Agreement; Amendments. This Agreement contains the entire and only
agreement between the Parties relating to the subject matter hereof. No
provision of this Agreement shall be deemed modified, amended, waived or
revoked except in a writing signed by the Party to be bound thereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Confidentiality
Agreement as of the day and year stated above.
/s/ Xxxx Xxxxxxxx
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For and on behalf of
ARAMEX INTERNATIONAL Ltd.
Name: Xxxx Xxx Gandour
Title: President & CEO
Date: 13/9/2001
/s/ Xxxxxx Xxxxxx
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For and on behalf of
GROUPE CUPOLA LUXEMBOURGEOISE HOLDINGS SA
Name: Xxxxxx Xxxxxx
Title: President
Date: 12, September 2001
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