Exhibit C
SHAREHOLDERS' AGREEMENT
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SHAREHOLDERS' AGREEMENT dated as of April 25, 2001, by and among The
Heico Companies, L.L.C., a Delaware limited liability company ("Heico") and
Hostmark World LP, a Delaware limited partnership ("Hostmark").
WHEREAS, Heico is the majority stockholder of Worldport Communications,
Inc., a Delaware corporation (the "Company"); and
WHEREAS, the Company owns all of the outstanding stock of WorldPort
Holdings, Inc., a Delaware corporation (the "Purchaser"); and
WHEREAS, pursuant to that certain Stock Purchase Agreement, dated as of
April 25, 2001 (the "Purchase Agreement"), by and among Purchaser and Hostmark,
Purchaser purchased all of the issued and outstanding stock of certain
corporations owned by Hostmark in return for shares of Company common stock,
$0.0001 par value ("Common Stock") as described therein; and
WHEREAS, Hostmark has required, as a condition to the consummation of
the transactions contemplated by the Purchase Agreement, that the parties hereto
enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Purchase Agreement, the parties hereto agree as follows:
1. Election of Hostmark Designee. At each annual meeting of the
stockholders of the Company, and at each special meeting of the stockholders of
the Company called for the purpose of electing directors of the Company, and at
any time at which stockholders of the Company shall have the right to, or shall,
vote for directors of the Company, then, and in each event, Heico hereby agrees
to (a) use commercially reasonable efforts to have the Hostmark Designee (as
defined) nominated for director and (b) vote or cause to be voted all shares of
Common Stock and all shares of preferred stock of the Company owned by Heico
(the "Shares") (or act by written consent with respect to such Shares) for the
election of a Hostmark Designee to the Board of Directors of the Company. The
term Hostmark Designee shall mean Xxxxxx Xxxxx or a person designated in writing
by Hostmark who is reasonably acceptable to Heico, in its sole discretion.
2. Term. This Agreement shall terminate and be of no further force
or effect at the earliest to occur of the following (a) the second anniversary
of the date hereof, (b) at such time as Hostmark (together with its Affiliates
(as defined below)) owns less than 1,000,000 shares of Common Stock or (c) at
such time as Hostmark or any of its Affiliates (as defined below) engages in a
Competing Activity. The term Affiliate shall mean any entity or person (i) that
directly or indirectly controls, is controlled by, or is under common control
with, Hostmark, (ii) any other person that is an officer or director of Hostmark
or a person or entity specified in
clause (i), and (iii) any spouse or immediate family member or any person
described in clauses (i) or (ii). For the purposes of this definition, "control"
means the power to direct the management and policies of a person or entity,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the forgoing. For purposes of this Agreement any person
or entity that owns 10% or more of the total outstanding voting securities, or
rights or warranties to purchase such voting securities, of another entity shall
be deemed to "control" such other entity. The term Competing Activity shall mean
directly or indirectly (a) engaging in any manner in the Business (as defined in
the Purchase Agreement) anywhere in Europe, (b) soliciting any customers of the
Company, or any customers of any of the Company's subsidiaries, for products or
services directly or indirectly competitive with the products or services
provided by the Company or any of its subsidiaries conducting the Business in
Europe, (c) soliciting (other than pursuant to a general non-targeted
solicitation) for employment or other services, or employing or engaging as a
consultant or otherwise, any of the Company's or its subsidiaries, employees, or
(d) owning more than 10% of the equity interest (or securities convertible into
or exchangeable for such equity interest) or serving as an officer or director
of any person or entity that engages in any of the foregoing activities. If
Hostmark or any of its Affiliates engages in a Competing Activity then, unless
Heico has previously consented in writing to the specific Competing Activity,
Hostmark shall cause the Hostmark Designee to promptly resign from the Board of
Directors of the Company.
3. Specific Enforcement. Each party hereto expressly agrees that
the other party would be irreparably damaged if this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by any party, the other parties
shall, in addition to all other remedies, each be entitled to a temporary or
permanent injunction, and/or a decree for specific performance, in accordance
with the provisions hereof, without the necessity of proof of actual damages or
the posting of a bond or other security.
4. 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), overnight delivery, or
facsimile transmission if such transmission is confirmed by delivery by
certified or registered mail (first class postage pre-paid) or 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 Heico: The Heico Companies, L.L.C.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telecopy: (000) 000-0000
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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
5. Entire Agreement. This Agreement constitutes the entire
agreement among the partners hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings between them or any of
them with respect to such subject matter.
6. Amendments. Neither this Agreement nor any provision hereof may
be waived, modified, amended or terminated except by a written agreement signed
by each of the parties.
7. Governing Law; Interpretation. This Agreement shall be
construed in accordance 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.
8. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall be binding upon, and shall inure to the benefit of the
parties hereto. Neither party to this Agreement may assign its rights or
obligations under this Agreement without the prior written consent of the other
party.
9. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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10. Captions. Captions are for convenience only and are not deemed
to be part of this Agreement.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as an
instrument under seal of the date and year first above written
THE HEICO COMPANIES, L.L.C.
HOSTMARK WORLD, LP
By: /s/ X. Xxxxxxx By: /s/ Xxxxx x'Xxxxxx
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Name: X. Xxxxxxx Name:
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Its: Asst. Secy. Its:
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