EXHIBIT 2.5
OPTION AGREEMENT
This OPTION AGREEMENT ("Agreement") is made and entered into
as of July 15, 1999 by and between WorldPort Communications, Inc., a Delaware
corporation (the "Company"), and The Heico Companies, LLC (the "Grantee").
1. Grant of Option. The Company does hereby grant to the Grantee an
option (the "Option") to purchase up to 424,809 shares (the "Shares") of Series
F Convertible Preferred Stock of the Company, $.0001 per value per share (the
"Series F Preferred Stock"), at an exercise price of $35.31 per share for an
aggregate exercise price of up to $15,000,000. The Certificate of Designations,
Preferences and Rights of the Series F Preferred Stock is attached hereto as
Exhibit A. The Shares shall be subject to that certain Voting Restrictions
Agreement between the Company and the Grantee dated as of the date hereof.
2. Term of the Option. The Option (to the extent not earlier exercised
or forfeited) will expire three (3) years from the date hereof (the "Expiration
Date").
3. Manner of Exercise.
a. The Grantee may exercise this Option by giving
written notice thereof to the Company at any time, or
from time to time, on or before the Expiration Date.
b. The closing (the "Closing") of any such exercise of
the Option and purchase and sale of Shares will be
held within ten (10) days after the date of the
Grantee's written notice. At the Closing, the Company
will deliver to the Grantee a certificate, duly
executed and registered in the name of the Grantee or
the Grantee's nominee, for the number of Shares being
purchased, and the Grantee shall pay the purchase
price of the Shares by wire transfer of funds to an
account designated by the Company. The Company agrees
that the Shares will be free and clear of any liens,
claims, charges or encumbrances whatsoever (other
than those created by the Grantee) and will be duly
and validly issued, fully paid and non-assessable.
4. Reservation of Series F Preferred Stock and Common Stock. The
Company shall at all times through the Expiration Date reserve and keep
available, free from pre-emptive rights and out of its aggregate authorized but
unissued shares of Series F Preferred Stock, the number of Shares deliverable
upon exercise of the Option. The Company shall at all times through the
conversion of the Shares reserve and keep available, free from pre-emptive
rights and out of its aggregate authorized but unissued shares of common stock,
the number of shares of its common stock deliverable upon conversion of the
Shares.
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5. Investment Representations of the Grantee. (a) The Grantee
acknowledges that the Shares have not been, nor will be, registered under the
Securities Act of 1933, as amended (the "Securities Act"), or the securities
laws of any state or regulatory body and are being offering and sold in reliance
upon exemptions from the requisite requirements of the Securities Act and such
laws and may not be transferred or resold without registration under such laws
unless an exemption is available. Each certificate for Shares received by the
Grantee upon exercise of the Option will be imprinted with legends in
substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT AND
UNDER ANY APPLICABLE STATE SECURITIES LAWS UNLESS, IN
THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY, AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND STATE SECURITIES LAWS IS
AVAILABLE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN PROVISIONS, INCLUDING, AMONG
OTHERS, RESTRICTIONS ON VOTING AND TRANSFERS, SET
FORTH IN A CERTAIN VOTING RESTRICTIONS AGREEMENT
DATED AS OF JULY ___, 1999, A COPY OF WHICH IS
AVAILABLE AT THE OFFICE OF THE COMPANY."
(b) The Grantee represents and warrants to the Company that it
is acquiring the Option (and will acquire the Shares) for investment purposes
and not with a view to the resale or distribution thereof.
(c) The Grantee represents and warrants to the Company that it
is an "accredited investor" (as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act), is sophisticated in financial matters and
is familiar with the business of the Company so that it is capable of evaluating
the merits and risks of its investment in the Company and has the capacity to
protect its own interests. The Grantee has had the opportunity to investigate
the Company's business, management and financial affairs and has had the
opportunity to review the Company's operations and facilities and to ask
questions and obtain whatever other information concerning the Company as the
Grantee has deemed relevant.
6. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each
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of which shall be an original, but all of which together shall constitute one
and the same agreement.
7. GOVERNING LAW; JURISDICTION. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Illinois as applied
to contracts made and to be performed entirely in the State of Illinois without
regard to principles of conflicts of law, except to the extent that the
corporate laws of the State of Delaware are mandatorily applicable. Each of the
parties hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any court of the Xxxx County, Illinois or any federal court
sitting in the Northern District of Illinois for purposes of any suit, action or
other proceeding arising out of this Agreement (and agrees not to commence any
action, suit or proceedings relating hereto except in such courts). Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement, which is brought by or against it, in the courts of Xxxx County,
Illinois or any federal court sitting in the Northern District of Illinois and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
8. Binding Effect: Benefits. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and permitted assigns. Nothing in this Agreement, expressed or implied, is
intended to or shall confer on any person other than the parties hereto and
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
9. Notices. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if personally served or sent by telecopy, on the
business day after notice is delivered to a courier or mailed by express mail if
sent by courier delivery service or express mail for next day delivery and on
the third day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered, return receipt requested, postage
prepaid and addressed as follows:
If to the Company to:
WorldPort Communications, Inc.
0000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: President
If to the Grantee, to:
The Heico Companies, LLC
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman, President and Chief
Executive Officer
THE HEICO COMPANIES, LLC
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
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