REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of April 25, 2001, by and between WORLDPORT COMMUNICATIONS, INC., a Delaware
corporation ("WorldPort"), HOSTMARK WORLD, LP, a Delaware limited partnership
("Hostmark"), and N M ROTHSCHILD & SONS LIMITED, a limited liability company
established under the laws of England and Wales ("Rothschild" and together with
Hostmark each a "Holder" and collectively, the "Holders").
WHEREAS, pursuant to that certain Stock Purchase Agreement
dated the date hereof, between Hostmark and Worldport Holdings, Inc., a Delaware
corporation, and a wholly owned subsidiary of WorldPort ("Purchaser") (the
"Purchase Agreement"), WorldPort shall issue shares of common stock, par value
$0.0001 per share, of WorldPort (the "Common Stock") as provided in the Purchase
Agreement to Holders in exchange for all of the issued and outstanding stock of
the Corporations (as defined in the Purchase Agreement) owned by Hostmark; and
WHEREAS, WorldPort and Holders desire to provide for the
registration of the shares of Common Stock to be acquired by Holders;
NOW, THEREFORE, in consideration of the foregoing and the
covenants contained herein, the parties agree as follows:
1. Definitions. The following terms when used in this
Agreement shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Affiliate" shall mean any person or entity that controls, is
under common control with, or is controlled by, a Holder.
"Closing" shall have the meaning set forth in the Purchase
Agreement.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall have the meaning set forth in the
preamble to this Agreement.
"Corporations" shall have the meaning set forth in the
Purchase Agreement.
"Deferred Stock" shall mean the 1,000,000 shares of Common
Stock issued to Hostmark pursuant to Section 1.2(b) of the Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Holder" shall have the meaning set forth in the preamble to
this Agreement.
"Hostmark" shall have the meaning set forth in the preamble to
this Agreement.
"Initial Stock" shall mean the 5,000,000 shares of Common
Stock issued to Holders pursuant to Section 1.2(a) of the Purchase Agreement.
"Material Adverse Change" shall have the meaning set forth in
the Purchase Agreement.
"Person" shall mean any natural person, corporation, firm,
partnership, limited liability company, association, government, governmental
agency or other entity, whether acting in an individual, fiduciary or other
capacity.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Purchaser" shall have the meaning set forth in the preamble
to this Agreement.
"Purchaser Stock" shall have the meaning set forth in the
Purchase Agreement.
"Registrable Securities" shall mean any of the following at
any time owned by Holders (i) Initial Stock and the Deferred Stock and (ii) any
equity securities of WorldPort issued or issuable with respect to the securities
referred to in clause (i) by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization; provided, however, that any share of such securities
shall cease to be a Registrable Security when (i) a registration statement
covering such Registrable Security has been declared effective by the Commission
and such securities have been disposed of pursuant to such effective
registration statement or (ii) such securities are distributed to the public
pursuant to Rule 144 (or any similar or successor provision then in force) under
the Securities Act.
"Registration Expenses" shall have the meaning provided in
Section 3(a).
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"WorldPort" shall have the meaning set forth in the preamble
to this Agreement.
Other terms defined herein shall have the meaning assigned to
them herein.
2. Issuance of Purchase Stock. WorldPort shall issue and
deliver to Hostmark and to Shield Trust Limited, as nominee of Rothschild, the
Purchaser Stock in accordance with and subject to the terms and conditions of
the Purchase Agreement.
3. Registration Procedures. WorldPort shall:
(a) Use its reasonable efforts to (A) prepare and file with
the Commission a registration statement with respect to the Initial Stock within
ninety (90) days after the Closing, (B) have such registration statement
declared effective within one hundred and fifty (150) days from the date of the
Closing (one hundred and twenty (120) days if Worldport is, and remains,
eligible to use a Form S-3 Registration Statement), and (C) to cause the
registration statement to
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remain effective until the earlier of (i) the date when all Registrable
Securities related to the Initial Stock have been sold, or (ii) two (2) years
from the Closing;
(b) Use its reasonable efforts to (A) prepare and file with
the Commission a registration statement with respect to the Deferred Stock
within ninety (90) days of the date of issuance of the Deferred Stock to Holder
as provided in the Purchase Agreement, (B) have such registration statement
declared effective within one hundred and fifty (150) days from the date of such
issuance (one hundred and twenty (120) days if Worldport is, and remains,
eligible to use a Form S-3 Registration Statement), and (C) cause the
registration statement to remain effective until the earlier of (i) the date
when all Registrable Securities related to the Deferred Stock have been sold, or
(ii) two (2) years from the date of issuance of the Deferred Stock as provided
in the Purchase Agreement;
(c) Use its reasonable efforts to prepare and file with the
Commission such amendments and supplements (including post-effective amendments)
to such registration statements and the prospectuses used in connection
therewith as may be necessary to keep the registration statements effective for
the period referred to in Section 2(a) and Section 2(b) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in the registration statement;
(d) Furnish to each seller of Registrable Securities such
number of copies of the registration statement, each amendment and supplement
thereto (including post-effective amendments), the prospectus included in the
registration statement (including each preliminary prospectus) and such other
documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder;
(e) Notify each Holder of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and WorldPort shall promptly prepare a supplement or amendment
(including post-effective amendments) to the prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) Cause all such Registrable Securities registered pursuant
to this Agreement to be listed on each securities exchange on which similar
securities issued by WorldPort are then listed, if any;
(g) If reasonably requested by a Holder promptly incorporate
in a prospectus such information as the Holder indicates should be included
relating to the plan of distribution.
(h) Promptly notify the Holders of Registrable Securities of
the following events and (if requested by any such Persons) confirm such
notification in writing: (i) the filing of the prospectus or any prospectus
supplement and the registration statement and any amendment or post-effective
amendment thereto and, with respect to the registration statement or
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any post-effective amendment thereto, the declaration of the effectiveness of
such document; (ii) any requests by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional information;
(iii) the issuance or threat of issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; and (iv) the receipt by WorldPort of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threat
of initiation of any proceeding for such purpose;
(i) Make every reasonable effort to prevent the entry of any
order suspending the effectiveness of the registration statement and, in the
event of the issuance of any such stop order, or of any order suspending or
preventing the use of any related prospectus, WorldPort shall use its reasonable
efforts promptly to obtain the withdrawal of such order;
(j) Cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends, and enable such Registrable Securities to be in such lots and
registered in such names as the Holders of Registrable Securities may request at
least two business days prior to any delivery of Registrable Securities to such
Holders of Registrable Securities;
(k) To the extent required under the applicable state's law,
use its best efforts to (x) register or qualify all Registrable Securities
covered by such registration statement under the state securities or "blue sky"
laws of up to 10 states in the United States selected by Hostmark, (y) keep such
registration in effect during the term of this Agreement and (z) take any other
action which may be reasonably necessary or advisable to enable the Holders of
the Registrable Securities to consummate the disposition of such Registerable
Securities in such jurisdictions pursuant to the Registration Statement.
(l) Take actions similar to those set forth in clause (k) for
such additional states as Hostmark may request in writing provided that all of
WorldPort's out-of-pocket costs and expenses related to taking such actions in
such additional jurisdictions (including the reasonable fees and expenses of
WorldPort's legal counsel) shall be paid by Hostmark.
4. Registration Expenses.
(a) All expenses incident to WorldPort's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for WorldPort and all independent certified public
accountants, and other Persons retained by WorldPort (all such expenses being
herein called "Registration Expenses"), shall be borne by WorldPort, and
WorldPort shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by WorldPort are then listed or on the NASD automated
quotation system if the Common Stock is listed on any such exchange or system.
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(b) To the extent Registration Expenses are not required to be
paid by WorldPort, each Holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
the Holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in the
registration in proportion to the aggregate selling price of the securities to
be so registered.
5. Representations and Warranties of WorldPort.
WorldPort hereby represents and warrants to Holders that as of the date hereof:
(a) Regulatory Filings; Accuracy of Information. WorldPort's
Annual Report on Form 10-K for the year ended December 31, 2000, in the form
(including exhibits (whether filed therewith or incorporated by reference
therein) and any amendments thereto) filed with the SEC (the "WorldPort
Report"), as of its date, did not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. Other than the WorldPort Report, WorldPort has not filed nor has
been required to file pursuant to applicable law any other definitive reports or
statements with the SEC since March 29, 2001.
(b) Absence of Certain Changes. Except as disclosed in the
WorldPort Report, since December 31, 2000, there has not been (i) any Material
Adverse Change with respect to WorldPort; (ii) any declaration, setting aside or
payment of any dividend or other distribution with respect to the capital stock
of WorldPort; or (iii) any material change by WorldPort in accounting
principles, practices or methods.
(c) Capital Stock. The issuance and delivery by WorldPort of
the Initial Stock and the Deferred Stock has been duly and validly authorized by
all necessary corporate action on the part of WorldPort. The shares of Initial
Stock and Deferred Stock to be issued and delivered under this Agreement will be
validly issued, fully paid and non-assessable, free and clear of all Liens (as
defined in the Purchase Agreement) and Restrictions (as defined in the Purchase
Agreement). The Deferred Stock has been duly and validly reserved for issuance
from the authorized and unissued shares of Common Stock by action of the
WorldPort Board of Directors.
(d) Consents. No consent, authorization, approval, permit or
license of, or filing with, any Governmental Authority, except as set forth
herein, any lender or any other person or entity is required to authorize, or is
required in connection with the delivery of the Purchaser Stock.
6. Indemnification.
(a) WorldPort agrees to indemnify, to the extent permitted by
law, each Holder of Registrable Securities, its affiliates and their respective
officers, directors, employees and agents, as the case may be, and each Person
who controls the Holder (within the meaning of the Securities Act), against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement under which Registrable Securities were registered, any prospectus or
preliminary prospectus contained therein or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
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misleading, except insofar as the same are caused by or contained in any
information furnished in writing to WorldPort by such Holder expressly for use
therein as provided in Section 5(b) below.
(b) In connection with any registration statement in which a
Holder of Registrable Securities is participating, each Holder shall furnish to
WorldPort in writing such information and affidavits as WorldPort reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify WorldPort, its
directors and officers and each Person who controls WorldPort (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by the Holder; provided, however, that such Holder shall
not be liable in any such case to the extent that any alleged losses or damages
result from the failure of WorldPort to promptly amend or take action to correct
or supplement any such registration statement or prospectus on the basis of
corrected or supplemental information provided in writing by such Holder to
WorldPort expressly for such purpose; provided, further, that the obligation to
indemnify shall be individual to each Holder and shall be limited to the net
amount of proceeds received by the Holder from the sale of Registrable
Securities pursuant to the registration statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided, however, that the failure of any
indemnified party to give notice shall not relieve the indemnifying party of its
obligations under this Section 6, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice) and (ii) permit the
indemnifying party to assume and undertake the defense of such claim with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party of its election to undertake and assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party without the
indemnifying party's advance written consent (but such consent shall not be
unreasonably withheld). The indemnifying party shall not consent to a settlement
of, or the entry of any judgment arising from, any third party claim, unless (i)
the settlement or judgment is solely for money damages and the indemnifying
party admits in writing its liability to hold the indemnified party harmless
from and against any losses, damages, expenses and liabilities arising out of
such settlement or judgment or (ii) the indemnified party consents thereto,
which consent shall not be unreasonably withheld. An indemnifying party who
elects not to assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by the
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party, a conflict of interest may exist between the
indemnified party and any other of such indemnified parties with respect to such
claim.
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(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of securities.
WorldPort also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to the party in the event WorldPort's
indemnification is unavailable for any reason.
(e) If the indemnification provided for in paragraphs (a) and
(b) of this Section 5 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages, liabilities and expenses in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, losses, claims, damages, liabilities or expenses in such
proportion as appropriate to reflect the relative fault of WorldPort, on the one
hand, and the sellers of such Registrable Securities on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations,
including the failure to give any notice under paragraph (c) of this Section 5.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by WorldPort, on the one hand, or the sellers of such
Registrable Securities on the other hand, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. WorldPort and the sellers of Registrable Securities agree
that it would not be just and equitable if contributions pursuant to this
paragraph were determined by pro rata allocation (even if all of the sellers of
such Registrable Securities were treated as one entity for such purpose) or by
any other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, no seller of such
Registrable Securities shall be required to contribute any amount in excess of
the total proceeds received from the sale of such seller's Registrable
Securities.
7. Lockup Agreement. Hostmark (and each of its permitted
assignees) agrees in connection with any public sale or distribution of the
Common Stock by WorldPort pursuant to a registration statement filed with the
Commission, that upon the request of WorldPort, such Holder shall not sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities without the prior written consent of
WorldPort, for such period of time (not to exceed 180 days after the effective
date of such registration statement) as WorldPort may reasonably request;
provided, however, that in no event will such period of time exceed the period
that Xxxxxxx X. Xxxxxxx, Xx. or his Affiliates ("Heico") agrees to refrain from
similar transactions with respect to any shares not being sold by Heico in such
offering. Rothschild (and its permitted assigns) shall be required to agree to
refrain from such transactions only to the extent requested by the underwriters
for such offering.
8. Reports Under the Securities Laws. With a view to making
available to the Holders of Registrable Securities the benefits of Rule 144 and
any other rule or regulation of
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the Commission that may at any time permit the Holder to sell securities of
WorldPort to the public without registration, WorldPort agrees to use its
reasonable efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times subsequent to 90 days after
the effective date of any registration statement covering an underwritten public
offering filed under the Securities Act by WorldPort;
(b)File with the Commission in a timely manner all reports and
other documents required of WorldPort under the Securities Act and the Exchange
Act; and
(c) Furnish to any the Holder so long as the Holder owns any
of the Registrable Securities forthwith upon request a written statement by
WorldPort that it has complied with the reporting requirements of Rule 144 (at
any time after 90 days after the effective date of the registration statement
filed by WorldPort), and of the Securities Act and the Exchange Act, a copy of
the most recent annual or quarterly report of WorldPort, and such other reports
and documents so filed by WorldPort as may be reasonably requested by any the
Holder in availing itself of any rule or regulation of the Commission permitting
the selling of any the securities without registration.
9. Release and Covenants.
(a) Rothschild hereby represents and warrants to WorldPort
that it is acquiring the shares of Purchaser Stock to be issued pursuant to
Section 1.2(a) and (b) of the Purchase Agreement solely for its account, for
investment purposes only and with no current intention or plan to distribute,
sell or otherwise dispose of any of those shares in connection with any
distribution; (ii) Rothschild is not a party to any agreement or other
arrangement for the disposition of any shares of Common Stock other than this
Agreement; (iii) Rothschild is an "accredited investor" as defined in Securities
Act Rule 501(a); (iv) Rothschild (A) is able to bear the economic risk of an
investment in the Common Stock acquired pursuant to the Purchase Agreement, (B)
can afford to sustain a total loss of that investment, (C) has such knowledge
and experience in financial and business matters that Rothschild is capable of
evaluating the merits and risks of the proposed investment in the Common Stock,
(D) has had an adequate opportunity to ask questions and receive answers from
the officers of Purchaser concerning any and all matters relating to the
transactions contemplated pursuant to this Agreement and the Purchase Agreement
and related documents thereto.
(b) Rothschild hereby covenants and agrees, that as of the
date hereof, any agreement between Rothschild and any of the Corporations
(including, but not limited to the letter agreements dated November 13, 2000 and
March 30, 2001 (the "Engagement Letter") and the Terms and Conditions referred
to in the Engagement Letter) is hereby terminated and shall be of no further
force or effect, except that the provisions contained in Sections 13 and 14 of
the Terms and Conditions shall remain in effect but only to the extent relating
to activities prior to the date hereof.
(c) Except for (a) potential claims for indemnification
pursuant to Section 13 of the Terms and Conditions relating to activities prior
to the date hereof, and (b) those liabilities
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of the Corporations for fees and expenses listed on Schedule A of this
Agreement, Rothschild for it and its affiliates, hereby forever fully and
irrevocably releases WorldPort and the Corporations and their predecessors,
successors, assigns and past and present shareholders, directors, officers,
employees, agents, and representatives (collectively, the "Released Parties")
from any and all claims, fees, costs, expenses, demands, and causes of action of
every kind and nature arising on or prior to the date hereof (including, without
limitation, claims for damages, costs, expenses, and attorneys', brokers' and
accountants' fees and expenses and any claims or liabilities related to
agreements terminated pursuant to clause (b) above), whether known or unknown,
suspected or unsuspected (collectively, the "Released Claims"). Rothschild
hereby irrevocably agree to refrain from directly or indirectly asserting any
claim or demand or commencing (or causing to be commenced) any suit, action, or
proceeding of any kind, in any court or before any tribunal, against any
Released Party based upon any Released Claim.
(d) Worldport agrees that is will not use the Rothschild name
in any press release announcing the transactions contemplated by the Purchase
Agreement.
10. Assignment of Registration Rights.
The rights granted to a Holder hereunder may be assigned by a
Holder to (a) an Affiliate of Holder to the extent that Holder transfers
Registrable Securities to such Affiliate or (b) any other person who purchases
at least 1,000,000 shares of Registrable Securities but only if such purchase
occurs when the registration statements referred to in Sections 3(a) and 3(b)
are not in effect. Upon such transfer or assignment, such transferee or assignee
shall be deemed a "Holder" under this Agreement, provided, that at least 30 days
prior to such transfer, Worldport is furnished with a written agreement executed
by such proposed assignee (in form and substance satisfactory to Worldport)
pursuant to which such proposed assignee agrees to be bound by the terms of this
Agreement. Notwithstanding the foregoing, any Holder that transfers a portion of
the Registrable Securities owned by such Holder shall continue to have rights
under this Agreement to cause the registration of the Registrable Securities
retained by such Holder. In connection with any permitted assignments, WorldPort
agrees to cooperate with the transferor to facilitate the timely preparation and
delivery of the related certificates representing Registrable Securities being
transferred.
11. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may, in its sole discretion,
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of WorldPort and Holders of a majority of the Registrable
Securities. The failure of any party to
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enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms.
(c) Successors and Assigns. This agreement shall bind and
inure to the benefit of the parties named herein and their respective successors
and assigns. No party may assign any rights, benefits, duties or obligations
under this Agreement without the prior written consent of the other party.
(d) Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof.
(e) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, that provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Termination. Except for Section 5 and 8 which shall
survive indefinitely, this Agreement shall terminate with respect to each Holder
of Registrable Securities on the earlier of (a) two (2) years from the date the
Deferred Stock is issued (unless pursuant to Section 7 of this Agreement such
Holder has been prohibited from selling Registerable Securities, in which case
the term of this Agreement shall be extended for the period of such
prohibition), (b) the date that there are no longer any Registrable Securities,
and (c) the date when no shares of Common Stock are registered under the
Exchange Act and WorldPort is no longer required to make any filings under the
Exchange Act. Further, Rothschild may terminate all (but not less than all)of
its rights and then future obligations under this Agreement upon written notice
to WorldPort.
(g) Counterparts. This Agreement may be executed
simultaneously in multiple counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement.
(h) Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
(i) Governing Law. This Agreement shall be construed with and
governed for all purposes by the internal substantive laws of the State of
Delaware, applicable to contracts executed and to be wholly performed within
such state.
(j) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
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guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall designate
in writing to the other party):
If to WorldPort: WorldPort Communications, Inc.
000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, P.C.
Telecopy: (000) 000-0000
If to Hostmark: Hostmark World, LP
c/o Sturm Group, Inc.
0000 Xxxx Xxxxx Xxxxxx,
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telecopy (000) 000-0000
If to Rothschild N M Rothschild & Sons Limited
New Court, St. Xxxxxxx'x Xxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxxx
Herve de La Morinere
Telecopy: 00-00-0000-0000
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: XXXXXXX XXXXXXX
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Title: Assistant Secretary
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HOSTMARK WORLD, LP
By:/s/ Xxxxx x'Xxxxxx
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Name:
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Title:
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N M ROTHSCHILD & SONS LIMITED
By:/s/ X. X. Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Director
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-12-
Exhibit A
Accrued Rothschild Fees and Expenses
Approximately (pound)35,000 for fees and expenses unrelated to any sale of any
of the "Corporations" (as defined in the Purchase Agreement).
-13-
