EX (D)(5)
DATED 3 JANUARY 2002
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RASMALA DISTRIBUTION (CAYMAN) LIMITED (1)
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ (2)
RASMALA BUYOUT FUND LP (3)
(ACTING BY RASMALA GENERAL PARTNERS II LIMITED)
CHAMPA CO-INVESTORS (CAYMAN) LIMITED (4)
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SUBSCRIPTION AND
SHAREHOLDERS' AGREEMENT
RELATING TO
RASMALA DISTRIBUTION (CAYMAN) LIMITED.
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CONTENTS
CLAUSE PAGE
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1 Definitions and interpretation.........................................................................1
2 Conditions.............................................................................................4
3 Subscription...........................................................................................5
4 Completion.............................................................................................6
5 ▇▇▇▇▇▇ and composition of the Board....................................................................7
6 Management of Aramex...................................................................................9
7 Accounts' audit and other financial provisions.........................................................9
8 Share transfers, issues and assignment................................................................11
9 Sale or Listing.......................................................................................13
10 Ongoing Obligations...................................................................................14
11 Duration..............................................................................................14
12 Provisions for the protection of the Group............................................................14
13 Warranties............................................................................................16
14 Parties bound.........................................................................................16
15 Assignability.........................................................................................17
16 Not a partnership.....................................................................................17
17 Discrepancies.........................................................................................17
18 Remedies to be cumulative.............................................................................17
19 Costs.................................................................................................17
20 Further assurance.....................................................................................17
21 Announcements.........................................................................................17
22 Entire agreement......................................................................................18
23 Miscellaneous.........................................................................................18
24 Notices...............................................................................................18
25 General Provisions....................................................................................19
26 Choice of law, submission to jurisdiction and address for service.....................................19
Schedule 1 FG, Fund and CCL..................................................................................21
Schedule 2 Deed of Adherence.................................................................................22
CLAUSE PAGE
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Schedule 3 Bonus Scheme for FG...............................................................................23
Schedule 4 List of Competing Companies.......................................................................24
DOCUMENTS IN AGREED FORM OR FOR CONTEMPORANEOUS SIGNATURE
1 New Articles of Association of the Company
2 FG Waiver Letter
3 Kingson Letters
4 FG Irrevocable Instructions (clause 2.5)
5 FG Deed re. restrictive Covenants
6 WK Deed re. restrictive Covenants
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THIS AGREEMENT is dated January 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, P.O. Box 309, ▇▇▇▇▇▇ House, South Church Street, ▇▇▇▇▇▇
Town, Grand Cayman, British West Indies (the "COMPANY");
(2) ▇▇▇▇ ▇▇▇▇▇▇▇▇ of 2 Badr Shaker Al Sayyab Street, Um Uthaina, P.O. Box
3371, Amman 11181, Jordan ("FG" which expression shall include his
personal representatives);
(3) RASMALA GENERAL PARTNERS II LIMITED (No. 112320), 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, P.O. Box 309, ▇▇▇▇▇▇ House, South Church Street, ▇▇▇▇▇▇
Town, Grand Cayman, British West Indies acting as general partner of THE
RASMALA BUYOUT FUND L.P. (No. 13176) (the "FUND"); and
(4) CHAMPA CO-INVESTORS (CAYMAN) LIMITED (No. 112323), 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, P.O. Box 309, ▇▇▇▇▇▇ House, South Church Street, ▇▇▇▇▇▇
Town, Grand Cayman, British West Indies ("CCL").
WHEREAS:
(A) The Company has an authorised share capital of US$50,000 divided into
50,000 ordinary shares of $1 each, of which 4 shares have been issued and
which have the rights and are subject to the restrictions set out in the
Memorandum and Articles of Association of such company.
(B) The purpose of the Company is to acquire investments and to undertake
corporate finance activities and to act as a holding company and
investment vehicle.
(C) The Company is a wholly owned subsidiary of the Fund (as hereinafter
defined).
(D) The Company holds all the issued shares in Rasmala Distribution (Bermuda)
Ltd. ("RDBL") as a wholly owned subsidiary in Bermuda and it is intended
that RDBL will make an offer to acquire Aramex International Limited
("ARAMEX").
(E) The Company, RDBL, Aramex, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ have on the
date hereof entered into, as the case may be, the WK Deed and the FG Deed
(as each of such terms is hereinafter defined) and certain other letters
relating to employment and other matters.
(F) It is intended that prior to or on the Completion Date, the authorised
share capital will be reorganised by increasing the share capital in the
manner referred to herein and by the Company re-purchasing and cancelling
the 4 shares in issue.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
1.1.1 the following expressions have the following meanings unless the context
otherwise requires:
"A DIRECTOR" means a director appointed by the holder of the "A" Shares
pursuant to article 127 of the New Articles;
"A SHAREHOLDER" means any holder for the time being of any "A" Shares;
""A" SHARES" means the "A" ordinary voting shares of US$0.01 par value
each in the capital of the Company;
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"AMALGAMATION AGREEMENT" means the Agreement and Plan of Amalgamation
among the Company, RDBL and Aramex dated 3 January 2002;
"ARTICLES" means the Articles of Association of the Company from time to
time;
"AUDITORS" means the auditors from time to time of the Company;
"B DIRECTOR" means a director appointed by the holder of the "B" Shares
pursuant to article 128 of the New Articles;
"B SHAREHOLDER" means any holder for the time being of any "B" Shares;
""B" SHARES" means the "B" ordinary voting shares of US$0.01 par value
each in the capital of the Company;
"BOARD OF DIRECTORS" means the board of directors of the Company;
"BUSINESS DAY" means a day on which banks are open for normal banking
business in the City of London and New York City (excluding Saturdays);
"CEO" means such person as is from time to time appointed as the Chief
Executive Officer of Aramex or, if Aramex is amalgamated or merged with
RDBL, of the merged or amalgamated entity;
"COMPLETION" means the taking place or effecting of the matters set out
in clause 4;
"COMPLETION DATE" has the meaning ascribed to it in clause 4.1;
"CONTROLLING INTEREST" means:
(a) more than 50 per cent. of the total number of Ordinary Shares in
issue and outstanding; and
(b) more than 50 per cent. of the total number of Preferred Shares in
issue and outstanding;
"DIRECTORS" means the persons for the time being occupying the position
of directors or any of them of the Company;
"FG DEED" means the Deed of even date herewith between the Company,
Aramex and FG containing certain covenants by FG;
"FG TRANSFEREE" means any person to whom FG may transfer shares pursuant
to article 45(g) of the New Articles;
"FG WAIVER" means the Deed of Variation of even date herewith between
Aramex and FG relating to the contract of employment of FG;
"FUND" means The Rasmala Buyout Fund L.P. (No. 13176);
"GROUP" means the Company and any other Group Company;
"GROUP COMPANY" means the Company or any other body corporate which is
from time to time its subsidiary;
"HOLDER" means, in relation to any Shares, the person whose name is
entered in the register of members of the Company as the holder of those
Shares;
"INITIAL PERIOD" means the period commencing on the date of this
Agreement and ending on 31 January 2007;
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"KINGSON LETTERS" means:
(i) the letter of even date between the Company and ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
relating to his appointment as Chairman of the Company; and
(ii) the letter of even date between Aramex and ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
relating to his appointment as Chairman of Aramex; and
(iii) the letter of even date relating to the termination of his
employment contract with Aramex;
"LAW" means the Companies Law (2001 Second Revision) of the Cayman
Islands including any statutory modification or re-enactment thereof;
"LISTING" means the admission of any of the shares of the Company on any
recognised investment exchange (as defined in section 285 Financial
Services and Markets Act 2000) including the NASDAQ System, the New York
Stock Exchange and the American Stock Exchange;
"NEW ARTICLES" means the Amended and Restated Memorandum of Association
and the new Articles of Association in the agreed form to be adopted by
the Company at Completion;
"OFFER DOCUMENT" means the document entitled "Offer to purchase for cash
all Outstanding Common Shares of Aramex" a draft of which (which is not
the final draft) has been initialled by the parties for the purpose of
identification only;
"ORDINARY SHARES" means the ordinary shares of US$0.01 par value each in
the capital of the Company, including the ordinary shares of US$0.01 each
in the capital of the Company which are classified as "A" Shares and "B"
Shares;
"PARTIES" means the parties to this Agreement;
"PREFERRED SHARES" means the preferred shares of US$0.01 par value each
in the capital of the Company;
"PRESCRIBED TERRITORY" has the meaning ascribed to it in clause
12.1.2(b);
"RASMALA GROUP" means Rasmala Partners Limited (No 84033) and any other
Rasmala Group Company;
"RASMALA GROUP COMPANY" means Rasmala Partners Limited (No. 84033) and
any body corporate which is from time to time its subsidiary;
"RDBL OFFER" means the offer by RDBL to acquire the entire issued share
capital of Aramex, as set out in the Offer Document;
"SHAREHOLDER" means any holder for the time being of Shares;
"SHARES" means shares in the capital of the Company (of whatever class);
"SUBSCRIBERS" means the parties, other than the Company;
"SUBSCRIPTION SHARES" means the Shares to be subscribed for as set out or
referred to in clauses 3.1 and 3.2;
"US$" means dollars, the lawful currency of the United States of America;
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"WARRANTS" means any warrants to subscribe for Shares which warrants are
in issue from time to time;
"WK DEED" means the Deed of even date herewith between the Company,
Aramex and ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ containing certain covenants by the said ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
1.1.2 "SUBSIDIARY" and "HOLDING COMPANY" have the respective meanings ascribed
thereto by sections 736 and 736A, Companies Act 1985 of the United
Kingdom save that references to subsidiary shall also include "subsidiary
undertaking" which has the meaning ascribed thereto by section 258,
Companies Act 1985 of the United Kingdom;
1.1.3 any document expressed to be "in the agreed form" means a document in a
form approved by (and for the purpose of identification signed or
initialled by or on behalf of) FG and the Fund;
1.1.4 references:
(a) to clauses or sub-clauses and Schedules are to clauses or
sub-clauses of and Schedules to this Agreement;
(b) 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 Agreement and any
subordinate legislation made under the statutory provision whether
before or after the date of this Agreement;
(c) to any English 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 England be deemed to include what most nearly
approximates in that jurisdiction to the English legal term;
(d) to a person includes a reference to a body corporate, association
or partnership;
(e) to a person includes a reference to that person's legal personal
representatives and successors;
1.1.5 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;
1.1.6 the headings to the clauses and the Schedules are for convenience only
and shall not affect the construction or interpretation of this
Agreement;
1.1.7 references to RDBL or Aramex shall be deemed to apply to the merged
entity if such companies are amalgamated pursuant to the Amalgamation
Agreement; and
1.1.8 where a statement is qualified by the "knowledge" of 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 by such party after
due and careful enquiry.
2 CONDITIONS
2.1 All clauses of this Agreement (other than clauses 5 to 10 inclusive and
clause 12) shall come into effect on the date of this Agreement but
clauses 3 and 4 of this Agreement are conditional on:
2.1.1 the conditions set out in (a) and (b) below having been fulfilled or
having been waived in writing by all the parties:
(a) the issue by RDBL of the Offer Document, in its final version, and
the satisfaction or waiver of all conditions set forth in Section
18 of the Offer Document in its final version; and
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(b) the announcement by RDBL that it has accepted the Shares (as
defined in the Amalgamation Agreement) which have been tendered in
accordance with the provisions of the said Offer Document; and
2.1.2 the Amalgamation Agreement not having been terminated pursuant to and in
accordance with Section 8.01 thereof prior to the date on which all the
conditions set out in clause 2.1.1 are fulfilled or waived in writing by
all the parties.
2.2 If all the conditions set out in clause 2.1 are fulfilled or waived by 30
April 2002 (or such later date as the parties may agree in writing) then
clauses 3 and 4 shall cease to be conditional as provided above and
clauses 5 to 10 inclusive and 12 shall come into effect and Completion
shall take place in accordance with clause 4.
2.3 If all the conditions in clause 2.1 are not fulfilled or waived by 30
April 2002 (or such later date as the parties may agree in writing) then
all the provisions of this Agreement shall forthwith terminate and cease
to be of effect and, save as regards any claim which a party may have
under or in respect of this clause 2, no party shall have any claim
against the other except with respect to any breach of this Agreement
occurring prior to such termination.
2.4 The parties agree and accept that the final form of the Offer Document,
including the contents of Section 18 thereof, is to be approved by the
board of directors of RDBL.
2.5 Immediately following the execution of this Agreement, FG shall deliver
or procure there is delivered to RDBL a letter, duly signed by him, under
which he irrevocably instructs RDBL to pay the sum of US$7,125,000
million (being part of any amount which becomes payable to FG by RDBL
under the RDBL Offer if FG tenders all his shares in Aramex in compliance
with the RDBL Offer and all the conditions set out in Section 18 of the
Offer Document are satisfied or waived) to the Company in payment of any
amount becoming payable by FG pursuant to clause 4.2
2.6 The Company shall be entitled by written notice to each Subscriber (other
than FG) to require that such Subscriber makes the funds referred to in
Column 3 of the table set out in Part A of Schedule 1 to the Company
prior to the Completion Date upon such terms as may be agreed between the
Company and such Subscribers.
3 SUBSCRIPTION
3.1 On the Completion Date:
3.1.1 FG shall apply to subscribe for, and the Company shall issue and allot to
FG, all the "A" Shares at a premium of US$4.99 per share;
3.1.2 Fund shall apply to subscribe for, and the Company shall issue and allot
to Fund all the "B" Shares at a premium of US$4.99 per share; and
3.1.3 Each of Fund and CCL shall apply to subscribe for, and the Company shall
allot to each of them, such number of Preferred Shares as is set out
opposite his name in column 2 of Part A of Schedule 1 at a premium of
US$4.99 per share.
3.2 On the first Business Day falling after the date on which FG is entitled
to receive payment from RDBL for FG's shares in Aramex pursuant to the
RDBL Offer, FG shall be deemed to subscribe for, and the Company shall be
deemed to agree to issue and allot to FG such number of Preferred Shares
as is set out opposite his name in column 2 of Part B of Schedule 1 at a
premium of US$4.99 per share.
3.3 Every Share issued and allotted by the Company pursuant to clauses 3.1
and 3.2 shall be issued and allotted free from all liens, charges or
other encumbrances, together with all rights now or hereafter attaching
thereto and, subject thereto, with full title guarantee.
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4 COMPLETION
4.1 Provided the conditions set out in clause 2.1 have been fulfilled or, if
not fulfilled, have been waived by the parties, completion of the
transactions set out in clause 3.1 shall take place at 10.00 am on the
Business Day falling after the day on which the said conditions have been
fulfilled or waived as aforesaid ("Completion Date") at the offices of
▇▇▇▇▇▇ ▇▇▇▇ , London when the following shall occur:
4.1.1 each of the parties shall procure that a board meeting of the Company
shall be held for the purpose of approving the creation and issue of the
Subscription Shares and convening or holding an extraordinary general
meeting of the Company to:
(a) adopt the New Articles as the memorandum of association and the
new articles of association of the Company in substitution for its
existing memorandum of association and articles;
(b) increase the share capital of the Company by the creation of the
following new Shares:
(i) 5,820,000 Preferred Shares with a par value of US$0.01
each;
(ii) 250 "A" Ordinary Shares with a par value of US$0.01 each;
(iii) 750 "B" Ordinary Shares with a par value of US$0.01 each;
and
(iv) 5,000,000 undenominated shares with a par value of US$0.01
each, each of which undenominated shares shall be
classified by the board of directors prior to the issue as
any class of ordinary shares or preferred shares (including
but not limited to those classes of shares specified in
(a), (b) and (c) above).
(c) authorise the Company to purchase the 4 outstanding ordinary
shares of the Company;
(d) authorise the directors to issue the Subscription Shares to the
persons listed in column 1 of the table set out in Part A of
Schedule 1 in the number and class set out opposite their names in
column 2 of such table and at the price set out in column 3 of
such table and authorise and instruct any one director to procure
the register of members is updated accordingly; and
(e) subject to FG being deemed, in accordance with the provisions of
clause 3.2, to subscribe for the Preferred Shares referred to in
clause 3.2, authorise the directors to issue such Preferred Shares
to FG at the price set out in column 3 of the table set out in
Part B of Schedule 1 and authorise and instruct any one director
to procure the register of members is updated accordingly;
4.1.2 each of the parties shall procure that the board meeting shall be
adjourned during which adjournment the extraordinary general meeting
referred to in sub-clause 4.1.1 shall be convened and held at short
notice;
4.1.3 each of the parties shall procure that the board meeting shall be
re-convened and the following business shall be transacted:
(a) 250 "A" Shares shall be allotted to FG to be credited as fully
paid on receipt of the subscription moneys of US$1,250 and
thereafter the name of FG shall be entered in the register of
members of the Company as holder of such Shares and share
certificates for the same shall be issued to him;
(b) with effect from the Business Day on which the Company receives
the moneys payable by FG for the Preferred Shares referred to in
clause 3.2, such Preferred Shares shall be allotted to FG to be
credited as fully paid and the name of FG shall be entered in the
register of members of the Company as holder of such Preferred
Shares and share certificates for the same shall be issued to him;
6
(c) 750 "B" Shares and 3,000,000 Preferred Shares shall be allotted to
Fund to be credited as fully paid on receipt of the subscription
moneys of US$3,750 and US$15,000,000 respectively and the name of
Fund shall be entered in the register of members of the Company as
holder of such Shares and share certificates for the same shall be
issued to it;
(d) 575,000 Preferred Shares shall be allotted to CCL to be credited
as fully paid on receipt of the subscription moneys of
US$2,875,000 and the name of CCL shall be entered in the register
of members of the Company as holder of such Shares and a share
certificate for the same shall be issued to it;
(e) FG and such person (if any) as FG shall nominate will be appointed
as A Directors and ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be deemed to be
appointed by Fund as B Directors;
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be appointed as a non-executive Chairman of
the Company, such appointment to take effect at the time set out
in the relevant Kingson Letter;
(g) the continuation of FG as CEO of Aramex shall be approved and it
shall be noted that FG's current service agreement with Aramex is
being continued (as amended by the FG Waiver Letter) and it shall
also be noted that the bonus scheme referred to in clause 3.2 of
such service agreement shall be based upon the principles which
are set out in Schedule 3; and
(h) such other matters as are agreed by the parties.
4.1.4 FG shall pay to the Company US$1,250 in subscription for the 250 "A"
Shares to be subscribed by him;
4.1.5 Fund shall (i) pay to the Company US$3,750 in subscription for the 750
"A" Shares to be subscribed by it and (ii) pay to the Company
US$15,000,000 in subscription for the 3,000,000 Preferred Shares to be
subscribed by it; and
4.1.6 CCL shall pay to the Company US$2,875,000 in subscription for 575,000
Preferred Shares to be subscribed by it.
4.2 Within three Business Days of the Business Day referred to in clause 3.2
FG shall pay to the Company US$7,125,000 in subscription for the
1,425,000 Preferred Shares to be subscribed by him, it being the
intention of the parties that such payment for the Preferred Shares shall
be made in the manner referred to in clause 2.5.
5 POWERS AND COMPOSITION OF THE BOARD
5.1 Each of the parties agrees that the following matters shall be reserved
to the exclusive competence of the board of directors of the Company:
(a) all acquisitions and disposals, whether of shares or other assets,
made by the Company or any other Group Company; the creation of
any joint venture or partnership or consortium between the Company
or any other Group Company and any other person; the merger or
amalgamation of any Group Company with any other body corporate
(other than, in any such case as is referred to previously in this
sub-clause (a), in the ordinary course of business);
(b) any refinancing of debt (other than in the ordinary course of
business);
(c) approval of and adherence to the consolidated budget (OPEX and
CAPEX) of the Group;
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(d) issue of new shares and/or options over shares; approval of
employee stock option plans; and establishment and approval of
senior management performance bonuses; and
(e) approval of accounts and payment of dividends and other
distributions.
5.2 Subject to the provisions of clause 5.3, for so long as the "A" Shares
are in existence and have not been converted into other Shares in
accordance with the New Articles, the holders of the "A" Shares shall be
entitled to:
(a) appoint directors in accordance with the relevant provisions of
the New Articles; and
(b) to remove any such appointees.
5.3 Notwithstanding anything to the contrary in the New Articles or this
Agreement, if FG shall cease to be employed by any Group Company (without
remaining or immediately thereafter becoming an employee of another Group
Company) and shall at any time thereafter, either alone or jointly with
or as manager, adviser, consultant, agent or employee of any person
directly or indirectly carry on or be engaged or be interested in any
business in competition with any Group Company or any business carried on
by any Group Company:
(a) clause 5.2 shall cease to have any further effect; and
(b) FG shall procure that every person who is an "A" Director shall
forthwith resign as a director.
5.4 For so long as the "B" Shares are in existence and have not been
converted into other Shares in accordance with New Articles, the holders
of the "B" Shares shall be entitled to:
(a) appoint directors in accordance with the relevant provisions of
the New Articles; and
(b) to remove any such appointees.
5.5 Any appointment or removal of an A Director or a B Director shall be made
in the manner set out the New Articles.
5.6 The names of the first A Directors and of the first B Directors are as
follows:
NAME OF APPOINTOR NAME OF APPOINTEE
----------------- -----------------
FG FG and such person (if any) nominated by FG
Fund ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
5.7 If at any time the number of the directors who shall have been nominated
by either the holders of the "A" Shares or the holders of the "B" Shares
shall be in excess of the number of directors which such holders shall be
entitled to nominate pursuant to clause 5.2 or, as the case may be, 5.4,
such holders, as a party or parties to this Agreement shall, forthwith
after being requested in writing so to do by any other party, procure the
retirement of such of the directors nominated by it or him as will result
in there not being such excess number of directors.
5.8 Any director nominated or appointed by the holders of the "A" Shares or,
as the case may be, the "B" Shares who ceases to be a director shall do
so without any claim for compensation for loss of office, unfair or
wrongful dismissal or otherwise whatsoever and the Shareholder which or
who nominated or appointed (or procured that any nominee of it nominated
or appointed) such director shall indemnify the Company and each of the
other parties against any loss, liability or cost that any of them may
suffer or incur as a result of any such claim.
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5.9 Each of FG and Fund shall use all reasonable endeavours to ensure that
each of the directors nominated or appointed by him or it or by any
nominee of him or it (or any such director's alternate or proxy) shall
attend each meeting of the board of directors and to procure that a
quorum (in accordance with the provisions of this Agreement) is present
throughout each such meeting. Each director shall have the right to
appoint an alternate or proxy to attend a meeting of the board of
directors in accordance with the articles.
5.10 The members of the board of directors shall not be entitled to any
remuneration in their capacity as directors.
6 MANAGEMENT OF ARAMEX
6.1 Subject to clause 5.1, for so long as FG shall remain CEO of Aramex, all
of the powers and responsibilities arising from the day to day management
of Aramex and all operational decisions (other than any such decision
which falls to be dealt with by the board of directors pursuant to clause
5.1) relating to the business and affairs of Aramex (subject always to
such activities being consistent with and remaining within the prevailing
budget approved by the board of directors) shall be conferred on the CEO.
6.2 Each of the parties agrees that during the continuance of this Agreement,
the business of Aramex shall be conducted in such a way as to maximise
its profitability.
6.3 The Company shall ensure that, no later than 45 days before the start of
each financial year, there is prepared and submitted to the board of
directors a draft budget of Aramex and its subsidiaries for that
financial year (it being agreed that any such budget shall contain such
information as the directors may reasonably require including a statement
of the business objectives of Aramex and the proposed method of achieving
these together with itemised individual and consolidated revenue and
capital budgets broken down by reference to the principal divisions of
Aramex, and showing proposed trading and cash flow figures and material
proposed acquisitions, disposals and other commitments for that financial
year). Such draft budget shall not be implemented until it has been
approved by the board of directors.
7 ACCOUNTS' AUDIT AND OTHER FINANCIAL PROVISIONS
7.1 The Company shall provide to each of the directors:
(a) by not later than the 30th day following the end of the month to
which they relate, monthly management accounts for RBDL and its
subsidiaries containing such information as the board of directors
shall determine from time to time; and
(b) by not later than the 30th day of each month following the end of
each calendar quarter, a detailed cashflow forecast for RBDL and
its subsidiaries in respect of the period of twelve months
commencing on the first day of the month next following the month
in which such forecast is produced.
7.2 The Company shall provide to each of the other parties:
(a) by not later than 30 days following the end of the quarter date to
which they relate, unaudited, quarterly consolidated accounts for
the Group;
(b) within 75 days from the end of the period to which they relate,
draft annual consolidated accounts for the Group in a form
substantially approved by the auditors; and
(c) within two Business Days of the signing by the auditors of their
report thereon, the annual audited consolidated accounts for the
Group.
7.3 A director shall be entitled to disclose to any party to this Agreement,
and/or to any Rasmala Group Company and/or to the Fund and/or to any
person which is a partner of the Fund and to any of their respective
directors and other officers and employees any information which he has
acquired as director of the Company provided that:
9
(a) such disclosure is not contrary to any regulatory rules to which
any member of the Rasmala Group is subject from time to time;
(b) the information is not subject to restricted communication
procedures imposed by any compliance rules adopted from time to
time by any member of the Rasmala Group; and
(c) the party to whom disclosure is being made is under an obligation
to treat the information being disclosed as confidential;
and any such disclosure shall be treated by such director or other person
referred to above (and, and if it is a corporate entity its directors and
other officers and employees) as confidential and shall not be further
disclosed to any other person.
7.4 Subject to the proviso contained in clause 7.3, which shall apply mutatis
mutandis to the provisions of this clause 7.4, each party may disclose
any information received from the Company or any director to:
7.4.1 any group undertaking of such party;
7.4.2 (in the case of a party which is a fund or which holds shares in the
capital of the Company on behalf of a fund) any adviser to, trustee or
manager of or investor or prospective investor in the fund;
7.4.3 such party's investment adviser and any of its other professional
advisers; and
7.4.4 any third party (subject to any such third party agreeing to suitable
confidentiality restrictions) with a view to effecting a Listing or a
sale of any Shares held by such party; and
7.4.5 any Rasmala Group Company, the Fund, any person which is a partner of the
Fund and to any of their respective directors and other officers and
employees; and
7.4.6 any director or other officer or employee of such party or any
shareholder of such party or any director or other officer or any
employee of such shareholder;
and any such disclosure shall be treated by such party or other person
referred to above as confidential and shall not be further disclosed to
any other person.
7.5 The accounts of the Group shall be audited by the auditors (or such other
auditors as the board of directors may nominate from time to time) in
each case in accordance with generally accepted International Accounting
Standards.
7.6 Each of the parties shall bear its or his own travelling, professional,
advisory and other expenses (but not including expenses relating to
attending meetings of the board of directors which shall be borne by the
Company) incurred in or about the performance of its or his obligations
under this Agreement unless the parties shall otherwise agree.
7.7 Otherwise than as contemplated and permitted by clause 7.4 and save as
may be required by any applicable law or any regulatory authority, each
party (other than the Company) undertakes not to disclose or communicate
to any person any confidential information relating to the Group acquired
in the capacity of director or shareholder of the Company or the contents
of this Agreement provided that such foregoing obligation shall not apply
to information:
(a) which was otherwise available in the public domain at the time of
the disclosure to the recipient; or
(b) which after disclosure comes into the public domain, otherwise
than by reason of a breach of the foregoing obligation; or
10
(c) which was in the possession of the recipient prior to its being
furnished to the recipient by or on behalf of any Group Company,
provided that the source of such information was not bound by or
subject to a confidentiality agreement with any Group Company in
respect thereof, or by fiduciary or other similar duties of
confidentiality.
8 SHARE TRANSFERS, ISSUES AND ASSIGNMENT
8.1 The transfer or disposal of Shares in the Company and the issue of any
previously unissued Shares shall be governed by the provisions of the New
Articles. Each party undertakes with each of the other parties that it
will observe and comply with all provisions of the New Articles relating
to the sale, transfer or transmission of Shares.
8.2 Without prejudice to the generality of clause 8.1:
8.2.1 FG undertakes to the other parties that neither he nor any nominee of his
will throughout the Initial Period and further undertakes to the other
parties that no FG Transferee or any nominee of any FG Transferee will:
(a) transfer or dispose of any Shares of which he, any FG Transferee
or any nominee of either of them is a holder or any legal or
beneficial interest therein or assign or otherwise purport to deal
therewith or with any interest therein, except pursuant to the
provisions of articles 45(d) to (g) inclusive or 62 to 65
inclusive of the New Articles;
(b) mortgage (whether by way of fixed or floating charge), pledge,
assign or otherwise encumber his or their legal or beneficial
interest in all or any Shares of which he or any of them) is a
holder;
(c) enter any agreement with respect to the voting rights attached to
all or any Shares of which he or any of them is a holder; or
(d) agree, whether conditionally or otherwise, to do any of the
foregoing,
other than, in any case, with the consent in writing of such person or
persons who hold such number of "B" Shares the aggregate nominal value of
which is equal to or exceeds two thirds of the total nominal value of all
the "B" Shares in issue and outstanding at the relevant time;
8.2.2 each party undertakes to each of the other parties that he will not
transfer or dispose of any Shares of which he is a holder or any legal or
beneficial interest therein or assign or otherwise purport to deal
therewith or with any interest therein to any person (including any
person who is immediately prior to the transfer of the Shares in
question, a member of the Company) unless such transfer or disposal of
such Shares is made in accordance with any provision of the articles
expressly permitting or requiring a transfer of any Shares;
8.2.3 where, in accordance with the New Articles and this Agreement, a party
who is a Shareholder (the "Transferor") is entitled to transfer his
Shares or any of them to another person (including any person who is
immediately prior to the transfer of the Shares in question, a
shareholder of the Company) (the "TRANSFEREE") and such Transferee and/or
any person for whom such transferee is acting as a nominee beneficially
owns (directly or indirectly) or following such transfer would
beneficially own (directly or indirectly) either any Ordinary Shares or
such number of Preferred Shares the aggregate nominal value of which is
equal to or exceeds three per cent. of the total nominal value of all
Preferred Shares in issue at the relevant time (and for this purpose
there shall be taken into account any relevant Shares which are
beneficially owned (directly indirectly) by any person who is a connected
(as defined in the New Articles) person of such transferee or any person
for whom such transferee is acting as a nominee):
(a) the Transferor undertakes to each of the other parties that he
will not transfer or dispose of any of the Shares in question to
such Transferee unless such Transferee has first executed a deed
of adherence supplemental to this Agreement and becomes bound by
the same obligations and enjoys the same rights as those binding
on or enjoyed by the
11
the Transferor (whether alone or jointly with any other person in
respect of the relevant Shares being transferred); and
(b) each of the parties (other than the Transferor) undertakes to the
Transferor that he will promptly execute a deed of adherence
supplemental to this Agreement (in the form set out in Schedule 2)
so as to enable the Shares in question to be transferred to the
Transferee; and
8.2.4 where, in accordance with the New Articles, the Company wishes to allot
any new Shares to any person and it is a condition in the New Articles
that such person must first become a party to this Agreement, each of the
parties undertakes that he will promptly execute a deed of adherence
supplemental to this Agreement (in the form set out in Schedule 2) so as
to enable the new Shares in question to be allotted to such person.
8.2.5 Each party undertakes to each of the other parties that he will observe
and comply with articles 83 to 90 inclusive.
8.3 No party may assign all or any of its rights under this Agreement save
that a party may assign all or any of such rights to a person to whom it
transfers Shares provided always that the transfer of those Shares is
made in accordance with the Articles and the rights assigned are, in
proportion to all his rights, equivalent to the proportion that the
Shares transferred bear to all his Shares.
8.4 Each of the parties shall procure, so far as lies within his respective
power, that during the Initial Period no new shares of whatever class are
issued to any person listed in Schedule 4 unless FG (for so long as he is
a beneficial owner of any "A" Shares) and Fund (for so long as it is a
beneficial owner of any "B" Shares) shall have first approved in writing
the issue of such shares to the relevant person Provided always that:
(a) where either FG or Fund is requested to give such approval,
neither FG nor Fund shall unreasonably withhold or delay in giving
such approval; and
(b) this clause 8.4 shall not apply as regards any Listing and nothing
in this clause 8.4 shall prevent any party from selling or
otherwise disposing of any of his Shares to any person whatsoever
in respect of or in connection with any Listing.
8.5 During the Initial Period a party who is a Shareholder shall not sell or
otherwise dispose of or agree to sell or otherwise dispose of any Shares
of which he is the beneficial owner (direct or indirect) to any person
listed in Schedule 4 unless FG and Fund shall have first approved in
writing the sale or other disposal of the Shares in question to the
relevant person.
Provided always that:
(a) where either FG or Fund is requested to give such approval,
neither FG nor Fund shall unreasonably withhold or delay in giving
such approval; and
(b) this clause 8.5 shall cease to have effect on the day when FG is
no longer the beneficial owner (direct or indirect) of any "A"
Shares; and
(c) this clause 8.5 shall not apply as regards any Listing or any sale
or proposed sale of any Shares in respect of an Offer (as defined
in article 85 of the New Articles) made by a Buyer (as defined in
article 83 of the New Articles) and nothing in this clause 8.5
shall prevent any party from selling or otherwise disposing of any
of his Shares to any person whatsoever in respect of or in
connection with any Listing or Offer (as so defined)
8.6 Clause 8.4 and 8.5 shall cease to have any further effect on a Listing or
when a Buyer (defined as aforesaid) shall have acquired a Controlling
Interest (as defined in the New Articles).
12
8.7 Notwithstanding anything to the contrary in the New Articles or this
Agreement, if FG shall cease to be employed by any Group Company (without
remaining or immediately thereafter becoming an employee of another Group
Company) and shall at any time thereafter, either alone or jointly with
or as manager, adviser, consultant, agent or employee of any person
directly or indirectly carry on or be engaged or be interested in any
business in competition with any Group Company or any business carried on
by any Group Company, clauses 8.4 and 8.5 shall cease to have any further
effect.
8.8 For the avoidance of doubt, the parties agree and accept that, subject to
the decision of the board of directors, it is the intention that Shares
(other than Ordinary Shares) of up to 5.5% of the share capital of the
Company on a fully diluted basis be made available by way of Warrants and
Shares (other than Ordinary Shares) of up to 8.6% of the share capital of
the Company on a fully diluted basis may be made available to employees
under an Employee Share Option Scheme (as defined in the New Articles).
9 SALE OR LISTING
9.1 Subject to any applicable laws or obligations of confidentiality, the
Company will give the other parties details of any approach which it is
reasonable to believe might lead to an offer being made to purchase a
Controlling Interest (as defined in the New Articles) or to purchase
substantially all the business and assets of the Group.
9.2 On a Listing:
(a) each of the parties shall take all such steps as are necessary to
ensure the Company's share capital shall be reorganised as follows
(or in such other way as is considered advisable in connection
with the Listing):
(i) every one Ordinary Share shall stand converted into one
ordinary share with a nominal value of US$0.01 each;
(ii) every one Preferred Share shall stand converted into one
ordinary share with a nominal value of US$0.01 each; and
(iii) all such ordinary shares shall rank pari passu with each
other as to all rights, privileges and obligations and each
ordinary share shall have one vote;
(b) if it is decided by the board of directors (in consultation with
any advisers retained by or on behalf of the Company in connection
with the Listing) that any Shares in the Company then in issue
should be offered to potential investors as part of the Listing
(the "SECONDARY OFFERING"), each party (other than the Company)
shall be given the opportunity to elect to have included in the
Secondary Offering such number of his Shares as is equal to Y,
determined as follows:
H
Y= - x AS
T
Where:
(1) "H" is the number of Shares which a party beneficially owns
immediately prior to the Listing (but excluding any Shares
which FG owns or over which he has any options under any
employee share option scheme);
(2) "T" is the total number of Shares in issue immediately
prior to the Listing (but excluding all Shares issued
pursuant to the exercise of Warrants or under or pursuant
to any employee share option scheme); and
13
(3) "AS" is the total number of Shares in the Secondary
Offering which are allocated to all the parties (excluding
the Company) as being available for sale to investors in
the Secondary Offering.
10 ONGOING OBLIGATIONS
10.1 The obligations of the parties under this Agreement shall (except to the
extent properly discharged on or prior to Completion) continue in full
force and effect notwithstanding Completion.
10.2 Each of the parties to this Agreement (other than the Company) undertakes
to the others that he will (so far as he is lawfully able) use the powers
vested in him or it from time to time as director, officer, employee
and/or shareholder (as the case may be) of the Company so as to procure
that the Company complies with its obligations under this Agreement.
11 DURATION
11.1 Subject as otherwise provided herein, this Agreement shall continue in
full force and effect without limit in point of time, until either the
parties agree in writing to terminate this Agreement or no party,
directly or indirectly, owns or has any interest in any Shares, whichever
shall first occur.
11.2 When a person who is a party to this Agreement (or where relevant, its
nominee) ceases to hold any Shares, such person shall cease to be party
to this Agreement but without prejudice to all accrued rights and
obligations of such person hereunder at the time that it ceases to be
party to this Agreement.
11.3 Without prejudice to the generality of the foregoing provisions of this
clause 11, the provisions of this clause 11 and clauses 7.7, 12 and 26
shall survive the termination of this Agreement.
12 PROVISIONS FOR THE PROTECTION OF THE GROUP
12.1 FG, in his capacity as an investor and future shareholder in the Company,
undertakes with the Company (acting for itself and as trustee for every
other Group Company) , Fund and CCL as follows:
12.1.1 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 member of the Group and he shall make every effort to
prevent the use or disclosure of such confidential information;
12.1.2 throughout the Relevant Period:
(a) he shall not (on his own behalf or on behalf of any person)
directly or indirectly in competition with a business of a member
of the Group as operated during the Relevant Period:
(i) seek to procure orders from or do business with any person
who has been a customer of a member of the Group at any
time during the year ending on the commencement of the
Relevant Period; or
(ii) engage, employ, solicit or contact with a view to his
engagement or employment any person who is or has been
employed by a member of the Group in a senior capacity at
any time during the year ending on the commencement of the
Relevant Period; and
(b) he shall not within any country in which any member of the Group
is carrying on business during the Relevant Period (the
"PRESCRIBED TERRITORY") either alone or jointly with or as
manager, adviser, consultant, agent or employee of any person
directly or
14
indirectly carry on or be engaged or be interested in any business
in competition with the business of any member of the Group as
operated during the Relevant Period.
12.1.3 at no time after the date on which this clause 12 comes into effect
pursuant to clause 2.2 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 a member of the Group, under a name including the word
"Aramex" or any name likely to be confused with a name used by a member
of the Group Provided always that FG shall not be in breach of this
clause 12.1.3 by reason of owning any Shares in or being a director or
employee of any Group Company; and
12.1.4 while employed by any member of the Group he shall not be concerned or
interested in any business competing with that carried on by any member
of the Group provided that he may be interested in securities which are
for the time being quoted on a recognised investment exchange (as defined
by section 285 Financial Services and Markets Act 2000) if his interest
in the securities concerned does not exceed 1% of the total amount of the
securities in issue.
12.2 For the purpose of clause 12.1, "Relevant Period" means:
(a) in a case where FG voluntarily resigns as an employee of every
Group Company of which he is an employee, the period of two years
commencing on the date upon which he is no longer an employee of
any Group Company; or
(b) in any case (other than that stated in sub-clause (a) above) where
FG is no longer an employee of any Group Company, the period of
eighteen months commencing on the date upon which he is no longer
an employee of any Group Company.
12.3 FG acknowledges that he has had the opportunity to take independent
advice on the restrictions contained in clause 12.1. Whilst these
restrictions are agreed by FG 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.
12.4 While the restrictions in clause 12.1 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 Group 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.
12.5 Each of the parties (other than FG and Fund and the Company) agrees with
the Company and the other parties that:
12.5.1 for 12 months after ceasing to be the beneficial owner of any Shares of
the Company (an "Owner"), he or it shall not (on his or its own behalf or
on behalf of any person) directly or indirectly in competition with a
business of a member of the Group as operated at the time he ceases to be
an Owner:
(a) seek to procure orders from or do business with any person who has
been a customer of a member of the Group at any time during the
year before he ceases to be an Owner; or
(b) engage, employ, solicit or contact with a view to his engagement
or employment any person who is or has been employed by a member
of the Group at any time during the year before he or it ceases to
be an Owner; and
12.5.2 for 12 months after ceasing to be the beneficial owner of any Shares, he
shall not, either alone as or jointly with manager, adviser, consultant,
agent or employee of any person, directly
15
or indirectly carry on, be engaged in or have any interest in any
business in competition with the business of any member of the Group as
operated at the time he ceases to be an Owner.
12.6 Each of the parties other than FG, Fund and Company acknowledges that he
has had the opportunity to take independent advice on the restrictions
contained in clause 12.5. Whilst these restrictions are agreed by each of
these parties 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.
12.7 While the restrictions in clause 12.5 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 Group 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.
13 WARRANTIES
13.1 Each of the Subscribers represents and warrants to the Company in the
following terms:
(a) to the knowledge of such Subscriber, the funds to be paid to the
Company as consideration for the Subscription Shares to be issued
to him pursuant to this Agreement 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;
(b) to the knowledge of such Subscriber, such Subscriber has not, and
if it is a legal entity, its direct or indirect shareholders 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; and
(c) all information provided by such Subscriber as to himself and,
where such Subscriber is a legal entity, to the knowledge of such
Subscriber, all information provided by such Subscriber as to any
direct or indirect shareholder in it, to or for the purpose of
providing information to any regulatory authority in Bermuda in
connection with the establishment or formation of the Company,
RDBL or CCL is true, accurate and complete; and
(d) all information which has been or which will be provided by such
Subscriber on or in relation to the Directors and Officers
Questionnaire which has been circulated by the Company prior to
the date hereof as to the matters set out therein is, to the
knowledge of such Subscriber, true, accurate and complete.
14 PARTIES BOUND
14.1 The Company undertakes with each of the other parties to be bound by and
comply with the terms and conditions of this Agreement insofar as the
same relate to the Company and to act in all respects as contemplated by
this Agreement.
14.2 Each of the parties (other than the Company) undertake with each of the
other parties to exercise their powers in relation to the Company so as
to ensure that the Company fully and promptly observes, performs and
complies with its obligations under this Agreement and to exercise their
rights as Shareholders in a manner consistent with this Agreement.
14.3 Each of the parties (other than the Company) undertakes with each of the
other parties that while it remains a Shareholder it will not (except as
expressly provided for in this Agreement) agree to cast any of the voting
rights exercisable in respect of any of the Shares held by it in
16
accordance with the directions, or subject to the consent of, any other
person (including another Shareholder).
15 ASSIGNABILITY
Subject as provided in clause 8.3, none of the parties may, without the
written consent of the others, assign any of its respective rights or
obligations under this Agreement.
16 NOT A PARTNERSHIP
Nothing in this Agreement shall create a partnership or establish a
relationship of principal and agent or any other fiduciary relationship
between or among any of the parties.
17 DISCREPANCIES
17.1 In the event of any conflict, ambiguity or discrepancy between the
provisions of this Agreement and the New Articles (as may be subsequently
amended or substituted), the parties shall join in procuring that the New
Articles are altered to accord with the provisions of this Agreement.
17.2 Each of the parties (other than the Company) agrees with each of the
other parties (other than the Company) that it or he will:
17.2.1 exercise all voting and other rights and powers vested in or available to
it or him to procure the convening of all meetings, the passing of all
resolutions and the taking of all steps necessary or desirable to give
effect to this Agreement; and
17.2.2 not exercise any rights conferred on it or him by the New Articles (as
may be subsequently amended or substituted) which are or may be
inconsistent with its or his rights or obligations under this Agreement.
18 REMEDIES TO BE CUMULATIVE
No remedy conferred by any of the provisions of this Agreement (if any)
is intended to be exclusive of any other remedy available at law, in
equity, by statute or otherwise. Each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law, in equity, by statute or otherwise.
The election by any party to pursue one or more of such remedies shall
not constitute a waiver by such party of the right to pursue any other
available remedy.
19 COSTS
No party shall be responsible for bearing the legal and other costs
incurred by another party in relation to the preparation and completion
of this Agreement.
20 FURTHER ASSURANCE
Each of the parties shall, and shall use its or his best endeavours to
procure that any necessary third parties shall, execute and deliver to
the other parties such other instruments and documents and take such
other action as may be required to carry out, evidence and confirm the
provisions of this Agreement and the New Articles (as may be subsequently
amended or substituted).
21 ANNOUNCEMENTS
All announcements and circulars by or on behalf of any of the parties and
relating to the subject matter of this Agreement shall be in terms to be
agreed between the parties in advance of issue.
17
22 ENTIRE AGREEMENT
22.1 This Agreement and the documents referred to herein set forth the entire
agreement and understanding between the parties or any of them in
connection with the subscription of the Subscription Shares and the other
arrangements described herein.
23 MISCELLANEOUS
23.1 If any term or provision in this Agreement 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 Agreement but the enforceability of the remainder of this
Agreement shall not be affected.
23.2 A party's failure to insist on strict performance of any provision of
this Agreement 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.
24 NOTICES
24.1 Any notice required to be given under this Agreement shall be in writing
delivered personally or sent by first class registered or recorded
prepaid letter or transmitted by telex or facsimile and shall be deemed
duly served if left at or sent or transmitted (as appropriate), in the
case of each of the parties hereto to the respective addressees shown on
the face of this agreement.
The current telex and facsimile numbers of the parties hereto for the
purposes of this Agreement are:
24.1.1 ▇▇▇▇ ▇▇▇▇▇▇▇▇
2 Badr Shaker Al Sayyab Street, UM AY NA, P.O. Box 3371, Amman 11181
Jordan
Facsimile: + 1 962 6553 7451
24.1.2 Rasmala General Partners Limited
Emirates Towers Offices
10th ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
24.1.3 Champa Co-Investors (Cayman) Limited
Emirates Towers Offices
10th Floor, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
24.1.4 Rasmala Distribution (Cayman) Limited
Emirates Towers Offices
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇
18
Dubai
United Arab Emirates
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
For the attention of: the Company Secretary
24.2 A notice served in accordance with clauses 24.1 shall be deemed to have
been received, in the case of a letter, when delivered personally to the
relevant address , in the case of a telex, at the time of despatch with
confirmed answerback of the addressee appearing at the beginning and end
of the transmission and, in the case of facsimile transmission, at the
time when a complete and legible copy is received by the addressee.
24.3 The Company undertakes with each of the other parties that it will
forthwith supply to each of the other parties a copy of any notice which
may be given to or served on it under this Agreement.
25 GENERAL PROVISIONS
25.1 A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
25.2 Each of the parties to this Agreement shall and shall use all reasonable
efforts to procure that any other person shall do and execute and perform
all such further deeds, documents, assurances, acts and things as may
reasonably be required to give effect to this Agreement.
25.3 This Agreement may not be rescinded after Completion.
25.4 A party's rights and remedies contained in this Agreement are cumulative
and not exclusive of rights or remedies provided by law.
25.5 Except to the extent that they have been performed and except where this
Agreement provides otherwise, the undertakings and obligations contained
in this Agreement remain in force after Completion.
25.6 The invalidity, illegality or unenforceability of any provision of this
Agreement does not affect the continuation in force of the remainder of
this Agreement.
25.7 This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the
counterparts together constitute the same document.
25.8 No term of this Agreement shall be enforceable under the Contracts
(Rights of Third Parties) Act 1999 by a person who is not a party to this
Agreement.
26 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
26.1 This Agreement shall be governed by and interpreted in accordance with
English law.
26.2 The parties hereby submit to the jurisdiction of the High Court of
Justice in England, but this Agreement may be enforced in any court of
competent jurisdiction.
26.3 Each party to this Agreement, other than FG, hereby irrevocably
authorises and appoints Norose Notices Limited of Kempson House, Camomile
Street, London EC3A 7AN (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).
26.4 FG 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
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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 Agreement has been entered into the day and year first
before written:
20
SCHEDULE 1
FG, FUND AND CCL
PART A
--------------------------------------------------------------------------------------------
(1) (2) (3)
NAME NO. OF SHARES OF THE COMPANY TO BE TOTAL INVESTMENT PRICE
SUBSCRIBED US$
--------------------------------------------------------------------------------------------
FG 250 "A" Shares 1,250
--------------------------------------------------------------------------------------------
FUND 750 "B" Shares 3,750
3,000,000 Preferred Shares 15,000,000
--------------------------------------------------------------------------------------------
CCL 575,000 Preferred Shares 2,875,000
--------------------------------------------------------------------------------------------
PART B
--------------------------------------------------------------------------------------------
(1) (2) (3)
NAME NO. OF SHARES OF THE COMPANY TO BE TOTAL INVESTMENT PRICE
SUBSCRIBED US$
--------------------------------------------------------------------------------------------
FG 1,425,000 Preferred Shares 7,125,000
--------------------------------------------------------------------------------------------
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SCHEDULE 2
DEED OF ADHERENCE
THIS DEED OF ▇▇▇▇▇▇▇▇▇ is made on
BY:
[insert name of new party] of [insert address of new party] (the "NEW PARTY") in
favour of the persons whose names are set out in the Schedule to this deed and
is supplemental to the Subscription and Shareholders' Agreement dated - 20--
between - (1), - (2), and - (3) (the "AGREEMENT").
THE NEW PARTY AGREES AS FOLLOWS:
1 The New Shareholder confirms that it has read a copy of the Agreement and
covenants with each person named in the Schedule to this deed to perform
and be bound by all the terms of the Agreement as if the New Party were
named in the Agreement as a party thereto.
2 This deed is governed by English law.
[Include jurisdiction clause and agent for service clause in appropriate
circumstances.]
IN WITNESS whereof this deed has been executed by the New Party and is intended
to be and is hereby delivered on the date first above written.
EXECUTED AS A DEED )
by [insert name of )
New Party] )
in the presence of: ) ...............................................
.................................................
Signature
.................................................
Name
.................................................
Address
.................................................
Occupation
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SCHEDULE 3
BONUS SCHEME FOR FG
The bonus scheme will be based upon the following principles:
(1) it will be based upon the annual budget of the Group (insofar as such
budget relates to Aramex and its subsidiaries and to their financing,
financial performance and business);
(2) it will provide that (i) to the extent that the annual financial
targets set out in the budget are achieved or exceeded, FG will receive a
bonus equal to 100% of his salary; and (ii) to the extent that such
annual financial targets are not achieved, FG will receive a lesser bonus
which will be calculated by reference to a graduated scale;
(3) achievement of the annual financial targets will be determined by
reference to the audited financial statements of the Group.
It is intended that more detailed provisions of the bonus scheme will be set out
in papers to be approved by the board of directors.
23
SCHEDULE 4
LIST OF COMPETING COMPANIES
DHL
AEI
Danzas
UPS
TNT
FEDEX
Deutsche Post
Dutch Post
La Poste - French
British Post
Ocean Group
Canada Post
Any other postal authority of any territory which is owned or partly owned by
the State of such territory.
For the avoidance of doubt, each the above mentioned names covers (a) the main
holding company in the group of companies which is known by or referred to by
such name; and (b) all the subsidiaries of such holding company.
SIGNED BY )
for and on behalf of )
RASMALA DISTRIBUTION )
(CAYMAN) LIMITED, ) /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of: Director/Duly authorised Witness, ▇▇▇▇▇▇ ▇▇▇▇
SIGNED BY ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED BY )
for and on behalf of )
CHAMPA CO-INVESTORS LIMITED ) /s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of: Director/Duly authorised Witness, ▇▇▇▇▇▇ ▇▇▇▇
SIGNED BY )
for and on behalf of )
THE RASMALA BUYOUT FUND L.P ) /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Acting by General Partner Rasmala Director
General Partners II Limited
24