EXHIBIT (d)(8)
Private & Confidential
DATED JANUARY 3, 2002
RASMALA DISTRIBUTION (CAYMAN) LIMITED (1)
ARAMEX INTERNATIONAL LIMITED (2)
AND
▇▇▇▇ ▇▇▇▇▇▇▇▇ (3)
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DEED OF COVENANT
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THIS DEED is dated January 3, 2002 and is made
BETWEEN:
(1) RASMALA DISTRIBUTION (CAYMAN) LIMITED (No. 112321), an exempted company
incorporated with limited liability under the laws of the Cayman Islands
whose registered office is situated at the offices of M&C Corporate
Services Limited, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Church Street, ▇▇▇▇▇▇
Town, Grand Cayman, British West Indies (the "COMPANY")
(2) ARAMEX INTERNATIONAL LIMITED whose principal place of business is at 2 Badr
Shaker Al Sayyab Street, ▇▇ ▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
("ARAMEX"); and
(3) ▇▇▇▇ ▇▇▇▇▇▇▇▇ of 2 Badr Shaker Al Sayyab Street, ▇▇ ▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "COVENANTOR").
WHEREAS:
(A) The Covenantor beneficially owns 1,225,055 common shares in Aramex.
(B) Rasmala Distribution (Bermuda) Limited ("RDBL"), a wholly owned subsidiary
of the Company, intends to make an offer to acquire all the shares in
Aramex.
(C) It is a requirement of the Company that before RDBL makes such offer, the
two principal shareholders in Aramex, of whom one is the Covenantor, should
first enter into this Deed in order to protect confidential information and
goodwill of and relating to Aramex and its subsidiaries (the "Aramex
Group").
IT IS AGREED as follows:
1 DEFINITIONS
1.1 In this Deed but excluding the Schedule to this Deed :
"CONFIDENTIAL INFORMATION" means details of suppliers and their terms of
business, details of customers and their requirements, the prices charged
to and terms of business with customers, marketing plans and sales
forecasts, financial information, results and forecasts (save to the extent
that these are included in published audited accounts), any proposals
relating to the acquisition or disposal of a company or business or any
part thereof or to any proposed expansion or contraction of activities,
details of employees and officers and of the remuneration and other
benefits paid to them, information relating to research activities,
inventions, secret processes, designs, formulae and product lines, any
information which the Covenantor is told is confidential and any
information which has been given to any Aramex Group Company in confidence
by customers, suppliers or other persons;
"RELEVANT PERIOD" means the period commencing on the Relevant Date and
ending on the second anniversary of the Relevant Date;
"RELEVANT DATE" means the date on which, the Offer Document having been
issued in its final version, RDBL announces that it has accepted the Shares
(as defined in the Offer Document in the version which is issued by RDBL);
"ARAMEX GROUP" means Aramex and any other Aramex Group Company;
"ARAMEX GROUP COMPANY" means Aramex or any other body corporate which is
from time to time a subsidiary of Aramex;
"OFFER DOCUMENT" means the document entitled "Offer to purchase for cash
all Outstanding Common Shares of the Target" a draft of which has been
initialled by or on behalf of the parties for the purpose of identification
only; and
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"SUBSIDIARY" and "HOLDING COMPANY" have the respective meanings ascribed
thereto by sections 736 and 736A, Companies ▇▇▇ ▇▇▇▇ of the United Kingdom
save that references to subsidiary shall also include "subsidiary
undertaking" which has the meaning ascribed thereto by section 258,
Companies ▇▇▇ ▇▇▇▇ of the United Kingdom.
1.2 In this Deed any reference:
(a) to Aramex shall be deemed to include a reference to any body
corporate with which Aramex is merged or amalgamated after the date
hereof;
(b) to clauses and Schedules are to clauses of and schedules to this
Deed;
(c) to statutory provisions shall be construed as references to the
statutory provision as modified or re-enacted or both from time to
time whether before or after the date of this Deed and any
subordinate legislation made under the statutory provision whether
before or after the date of this Deed;
(d) to any Bermudan legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, Court, official
or any legal concept or thing shall in respect of any jurisdiction
other than Bermuda be deemed to include what most nearly
approximates in that jurisdiction to the Bermudan legal term;
(e) to a person includes a reference to a body corporate, association or
partnership;
(f) to a person includes a reference to that person's legal personal
representatives and successors;
1.3 words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
bodies corporate and unincorporate; and
1.4 the headings to the clauses and the schedules are for convenience only and
shall not affect the construction or interpretation of this Deed.
2 COMMENCEMENT
2.1 This Deed, other than clause 3, shall enter into effect on the date
hereof.
2.2 Clause 3 shall enter into effect on the Relevant Date.
2.3 If clause 3 has not entered into effect by 30 April 2002 (or such later
date as the parties may agree in writing) then this Deed shall cease to
have any further effect.
2.4 The parties agree and accept that the final form of the Offer Document is
to be approved by the board of directors of RDBL.
3 RESTRICTIVE COVENANTS
3.1 The Covenantor hereby undertakes with Aramex (acting for itself and as
trustee for every other Aramex Group Company) and the Company that:
3.1.1 he shall not at any time use or disclose to any person any Confidential
Information concerning the business, customers or financial or other
affairs of any Aramex Group Company and he shall make every effort to
prevent the use or disclosure of such confidential information;
3.1.2 throughout the Relevant Period:
(a) he shall not (on his own behalf or on behalf of any person) directly
or indirectly in competition with any business of any Aramex Group
Company:
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(i) seek to procure orders from or do business with any person who
has been or is during the Relevant Period a customer or supplier
of any Aramex Group Company; or
(ii) engage, employ, solicit or contact with a view to his engagement
or employment any person who has been or is during the Relevant
Period employed by any Aramex Group Company in a senior capacity;
and
(b) he shall not within any country in which any Aramex Group Company is
carrying on business at the Relevant Date either alone or jointly with
or as manager, adviser, consultant, agent or employee of any person
directly or indirectly carry on or be engaged in or be interested in
any business in competition with the business of any Aramex Group
Company or any business carried on by any Aramex Group Company; and
(c) he shall not within any country in which any Aramex Group Company
carries on business at any time during the Relevant Period either
alone or jointly with or as manager, adviser, consultant, agent or
employee of or consultant to any to person directly or indirectly
carry on or be engaged in or be interested in any business in
competition with the business of any Aramex Group Company or any
business carried on by any Aramex Group Company;
3.1.3 at no time hereafter shall he directly or indirectly carry on a business
either alone or jointly with or as manager, adviser, consultant, agent or
employee of any person, whether or not the business is similar to any
business of any Aramex Group Company, under a name including the words
"Aramex" or any name likely to be confused with a name used by any Aramex
Group Company Provided always that the Covenantor shall not be in breach
of this clause 3.1.3 by reason of being a director or employee of any
Aramex Group Company.
3.2 The Covenantor acknowledges that he has had the opportunity to take
independent advice on the restrictions contained in clause 3.1. Whilst
these restrictions are agreed by the Covenantor to be reasonable, it is
agreed that if the restrictions (individually or taken together) are
adjudged to be unenforceable but they would be enforceable if part or
parts of the wording were deleted, amended or qualified or the periods
referred to reduced, then the relevant restrictions shall apply with such
modifications as are needed to make them effective.
3.3 While the restrictions in clause 3.1 are considered by the parties to be
reasonable in all the circumstances, it is agreed that if any such
restrictions, by themselves, or taken together, shall be adjudged to go
beyond what is reasonable in all the circumstances for the protection of
the legitimate interests of the Aramex Group and the Company and its
shareholders but would be adjudged reasonable if part or parts of the
wording thereof were deleted the relevant restriction or restrictions
shall apply with such deletion(s) as may be necessary to make it or them
valid and effective.
4 UNDERTAKING
Aramex and the Covenantor undertakes to each other and to the Company that
within 30 days after the Relevant Date, they will execute a deed in the
form set out in the Schedule hereto, which deed relates to the
Covenantor's position as CEO and Deputy Chairman of Aramex.
5 MISCELLANEOUS
5.1 If any term or provision in this Deed shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Deed but the enforceability of the remainder of this Deed
shall not be affected.
5.2 A party's failure to insist on strict performance of any provision of this
Deed shall not be deemed to be a waiver thereof or of any right or remedy
for breach of a like or different nature. Subject as aforesaid, no waiver
shall be effective unless specifically made in writing and signed by the
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party granting such waiver or by a duly authorised officer of the party
granting such waiver in the case of a corporate party.
5.3 This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which when executed and delivered
shall be an original and taken together with all such other counterparts
shall constitute one and the same instrument.
6 GENERAL PROVISIONS
6.1 A variation of this Deed is valid only if it is in writing and signed by
or on behalf of each party.
6.2 The invalidity, illegality or unenforceability of any provision of this
Deed does not affect the continuation in force of the remainder of this
Deed.
7 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
7.1 This Deed shall be governed by and interpreted in accordance with the law
of Bermuda.
7.2 The parties hereby submit to the jurisdiction of the High Court of Justice
in England, but this Deed may be enforced in any court of competent
jurisdiction.
7.3 Each of the Company and Aramex hereby irrevocably authorises and appoints
Norose Notices Limited of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(process to be marked for the attention of "▇▇▇ ▇▇▇▇▇▇▇") or such other
person, being a firm of solicitors resident in England, as any such party
may by notice to all other parties substitute, to accept service of all
legal process and notices served pursuant to clause 24 arising out of or
connected with this Agreement and service on Norose Notices Limited (or
such substitute) shall be deemed to be service on the party to which it is
addressed (as the case may be).
7.4 The Covenantor hereby irrevocably authorises and appoints ▇▇▇▇▇▇, ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇ of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (process to be marked
for the attention of "The Managing Partner") or such other person, being a
firm of lawyers with an office situated in England, as FG may by notice to
all other parties substitute, to accept service of all legal process and
notices served pursuant to clause 24 arising out of or connected with this
Agreement and service on the said ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ (or such
substitute) shall be deemed to be service on the party to which it is
addressed (as the case may be).
IN WITNESS whereof this Deed has been executed the day and year first above
written:
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SCHEDULE 1
THIS DEED is dated January 3, 2002 and is made
BETWEEN:
(1) ARAMEX INTERNATIONAL LIMITED a company registered in Bermuda with
registered number 22556, whose registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, Bermuda("the
COMPANY"); and
(2) ▇▇▇▇ ▇▇▇▇▇▇▇▇ 2 Badr Shaker Al Sayyab Street, ▇▇ ▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "EXECUTIVE").
WHEREAS:
(A) The Executive has been employed by the Company as an Executive Director of
the Company and as Managing Director of the Company under a service
agreement ("THE SERVICE AGREEMENT");
(B) On 3 January 2002 the Company, the Executive and Rasmala Distribution
(Cayman) Limited entered into a Deed of Covenant; and
(C) The Company and the Executive have entered into this Deed pursuant to
clause 4 of the Deed referred to in recital (B).
IT IS AGREED as follows:
1 DEFINITIONS
1.1 In this Deed:
"CONFIDENTIAL INFORMATION" shall mean details of suppliers and their terms
of business, details of customers and their requirements, the prices
charged to and terms of business with customers, marketing plans and sales
forecasts, financial information, results and forecasts (save to the extent
that these are included in published audited accounts), any proposals
relating to the acquisition or disposal of a company or business or any
part thereof or to any proposed expansion or contraction of activities,
details of employees and officers and of the remuneration and other
benefits paid to them, information relating to research activities,
inventions, secret processes, designs, formulae and product lines, any
information which the Executive is told is confidential and any information
which has been given to the Company in confidence by customers, suppliers
or other persons;
"COMPANY GOODS" shall mean any product, equipment or machinery researched
into, developed, manufactured, distributed or sold by the Company with
which the duties of the Executive were concerned or for which he was
responsible during the two years immediately preceding the Termination
Date;
"COMPANY SERVICES" shall mean any services (including but not limited to
technical and product support, technical advice and customer services)
supplied by the Company with which the duties of the Executive were
concerned or for which he was responsible during the two years immediately
preceding the Termination Date;
"CUSTOMER" shall mean any person, firm, company or other organisation
whatsoever to whom or which the Company distributed, sold or supplied
Company Goods or Company Services during
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the two years immediately preceding the Termination Date and with whom or
which, during such period:
(a) the Executive had personal dealings in the course of his employment;
or
(b) any employee who was under the direct or indirect supervision of the
Executive had personal dealings in the course of his employment
but in the case of a firm, company or other organisation shall not include
any division, branch or office of such firm, company or other organisation
with which the Executive and/or any such employee had no dealings during
the said period;
"THE EMPLOYMENT" means the Executive's employment under the Service
Agreement;
"PROSPECTIVE CUSTOMER" shall mean any person, firm, company or other
organisation whatsoever with whom or which The Company shall have had
negotiations or discussions regarding the possible distribution, sale or
supply of Company Goods or Company Services during the twelve months
immediately preceding the Termination Date and with whom or which, during
such period:
(a) the Executive shall have had personal dealings in the course of his
employment by the Company; or
(b) any employee who was under the direct or indirect supervision of the
Executive shall have had personal dealings in the course of the
Employment
but in the case of a firm, company or other organisation shall not include
any division, branch or office of such firm, company or other organisation
with which the Executive and/or any such employee had no dealings during
the said period;
"RESTRICTED AREA" shall mean:
(a) United Arab Emirates, and GCC;
(b) any other country in the world where, on the Termination Date, The
Company was engaged in the research into, development, manufacture,
distribution, sale or supply or otherwise dealt with Company Goods or
Company Services;
"RESTRICTED GOODS" shall mean Company Goods or goods of a similar kind;
"RESTRICTED PERIOD" shall mean the period of twelve months immediately
following the Termination Date Provided always that if no duties have been
assigned to the Executive by the Company during a period immediately
preceding the Termination Date, it shall mean the period of twelve months
immediately following the last date on which the Executive carried out
duties assigned to him by the Company;
"RESTRICTED SERVICES" shall mean Company Services or services of a similar
kind;
"TERMINATION DATE" means the date of the termination of the Executive's
appointment as an executive director of the Company.
2 RESTRICTIVE COVENANTS
2.1 The Executive hereby undertakes that he will not during the Restricted
Period without the prior written consent of the Company (such consent not
to be unreasonably withheld) whether by himself, through his employees or
agents or otherwise howsoever and whether on his own behalf or on behalf of
any other person, firm, company or other organisation, directly or
indirectly:
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(a) in competition with the Company within the Restricted Area, be
employed or engaged or otherwise interested in the business of
researching into, developing, manufacturing, distributing, selling,
supplying or otherwise dealing with Restricted Goods or Restricted
Services;
(b) in competition with the Company, solicit business from or canvass any
Customer or Prospective Customer if such solicitation or canvassing is
in respect of Restricted Goods or Restricted Services;
(c) in competition with the Company, accept orders for Restricted Goods or
Restricted Services from any Customer or Prospective Customer;
(d) solicit or induce or endeavour to solicit or induce any person who on
the Termination Date was a director, manager, salesman or consultant
of the Company with whom the Executive had dealings during his
employment to cease working for or providing services to the Company,
whether or not any such person would thereby commit a breach of
contract;
(e) employ or otherwise engage in the business of researching into,
developing, manufacturing, distributing, selling, supplying or
otherwise dealing with Restricted Goods or Restricted Services any
person who was during the twelve months preceding the Termination Date
employed or otherwise engaged by the Company and who by reason of such
employment or engagement is in possession of any trade secrets or
Confidential Information relating to the business of the Company or
who has acquired influence over its Customers and Prospective
Customers (but so that references to the Executive shall be replaced
by references to the relevant employee).
2.2 The Executive hereby undertakes with the Company that he will not at any
time:
(a) after the Termination Date engage in any trade or business or be
associated with any person, firm or company engaged in any trade or
business using the name Aramex International Limited or incorporating
the word Aramex;
(b) after the termination of the Employment in the course of carrying on
any trade or business, claim, represent or otherwise indicate any
present association with the Company or for the purpose of carrying on
or retaining any business or custom, claim, represent or otherwise
indicate any past association with the Company to its detriment.
2.3 While the restrictions in this clause 2 (on which the Executive has had the
opportunity to take independent advice, as the Executive hereby
acknowledges) are considered by the parties to be reasonable in all the
circumstances, it is agreed that if any such restrictions, by themselves,
or taken together, shall be adjudged to go beyond what is reasonable in all
the circumstances for the protection of the legitimate interests of the
Company but would be adjudged reasonable if part or parts of the wording
thereof were deleted the relevant restriction or restrictions shall apply
with such deletion(s) as may be necessary to make it or them valid and
effective.
3 MISCELLANEOUS
3.1 If any term or provision in this Deed shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Deed but the enforceability of the remainder of this Deed
shall not be affected.
3.2 A party's failure to insist on strict performance of any provision of this
Deed shall not be deemed to be a waiver thereof or of any right or remedy
for breach of a like or different nature. Subject as aforesaid, no waiver
shall be effective unless specifically made in writing and signed by the
party granting such waiver or by a duly authorised officer of the party
granting such waiver in the case of a corporate party.
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3.3 This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which when executed and delivered
shall be an original and taken together with all such other counterparts
shall constitute one and the same instrument.
4 GENERAL PROVISIONS
4.1 A variation of this Deed is valid only if it is in writing and signed by or
on behalf of each party.
4.2 The invalidity, illegality or unenforceability of any provision of this
Deed does not affect the continuation in force of the remainder of this
Deed.
5 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
5.1 This Deed shall be governed by and interpreted in accordance with the law
of Bermuda.
5.2 The parties hereby submit to the jurisdiction of the High Court of Justice
in England, but this Deed may be enforced in any court of competent
jurisdiction.
5.3 Aramex hereby irrevocably authorises and appoints Norose Notices Limited of
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (process to be marked for
the attention of "▇▇▇ ▇▇▇▇▇▇▇") or such other person, being a firm of
solicitors resident in England, as any such party may by notice to all
other parties substitute, to accept service of all legal process and
notices served pursuant to clause 24 arising out of or connected with this
Agreement and service on Norose Notices Limited (or such substitute) shall
be deemed to be service on the party to which it is addressed (as the case
may be).
5.4 The Executive hereby irrevocably authorises and appoints ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (process to be marked for
the attention of "The Managing Partner") or such other person, being a firm
of lawyers with an office situated in England, as FG may by notice to all
other parties substitute, to accept service of all legal process and
notices served pursuant to clause 24 arising out of or connected with this
Agreement and service on the said ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ (or such
substitute) shall be deemed to be service on the party to which it is
addressed (as the case may be).
IN WITNESS whereof this Deed has been executed the day and year first above
written:
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EXECUTED AS A DEED by )
RASMALA DISTRIBUTION (CAYMAN) LIMITED )
/s/ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Director
/s/ Syed ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Director/Secretary
EXECUTED AS A DEED by )
ARAMEX INTERNATIONAL Limited )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Director
/s/ Basher Obeid
-----------------------------------
Director/Secretary
EXECUTED AS A DEED by )
▇▇▇▇ ▇▇▇▇▇▇▇▇ in the presence of )
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Witness
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