STOCKHOLDERS AGREEMENT
BY AND BETWEEN
THE HEICO COMPANIES, L.L.C., AND
X X XXXXXX CAPITAL MANAGEMENT LIMITED,
DATED APRIL 15, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I GOVERNANCE..........................................................1
1.1. Board of Directors...........................................1
(a) Composition.........................................1
(b) Failure to Designate................................2
1.2. Stockholders' Approval of Certain Transactions...............2
1.3. Effective Period.............................................3
ARTICLE II TRANSFER.....................................................3
2.1. Co-Sale Rights...............................................3
(a) Notice of Transfer..................................3
(b) Right of Co-Sale....................................4
2.2. Drag-Along Rights............................................4
2.3. Exit Provisions..............................................5
(a) Exit Sale...........................................5
(b) Initiation Mandatory................................6
(c) Response Election...................................6
(d) Failure of Responding Stockholder to Respond........7
(e) Closing of Mandatory Purchase and Sale..............7
ARTICLE III REPRESENTATIONS AND WARRANTIES...............................7
ARTICLE IV COVENANTS OF THE PARTIES.....................................7
4.1. Standstill Provisions........................................7
4.2. No Inconsistent Agreement....................................8
4.3. Filing of Schedule 13D or 13G................................8
ARTICLE V LEGEND.......................................................8
ARTICLE VI EVENTS OF DEFAULT............................................9
ARTICLE VII ARBITRATION..................................................9
ARTICLE VIII INDEMNIFICATION.................................................10
ARTICLE IX DEFINITIONS.................................................11
ARTICLE X TERM; TERMINATION...........................................12
10.1. Term........................................................12
10.2. Termination.................................................12
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10.3. Effect of Termination and Abandonment.......................12
10.4. Amendment...................................................12
10.5. Extension; Waiver...........................................12
ARTICLE XI MISCELLANEOUS...............................................12
11.1. This Agreement Not to Constitute a Partnership..............12
11.2. Assignment..................................................12
11.3. Notices.....................................................12
11.4. Headings....................................................13
11.5. Severability................................................13
11.6. Binding Nature; Governing Law...............................13
11.7. Entire Agreement; Successors and Assigns....................13
11.8. Termination of Prior Agreement..............................13
EXHIBIT A OWNERSHIP OF WORLDPORT STOCK
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STOCKHOLDERS AGREEMENT
----------------------
THIS STOCKHOLDERS AGREEMENT ("Agreement") is made and entered into as
of this April 15, 2003 by and between THE HEICO COMPANIES, L.L.C. a Delaware
limited liability company ("Heico"), XXXXXXX X. XXXXXXX ("Xxxxxxx"), and X X
XXXXXX CAPITAL MANAGEMENT LIMITED, a corporation organized under the laws of the
United Kingdom ("JOHCM"). Unless otherwise defined herein, capitalized terms are
defined in Article IX hereof. Heico, Xxxxxxx and JOHCM are collectively referred
to herein as the "Stockholders").
W I T N E S S E T H
WHEREAS, Heico and Xxxxxxx (collectively, the "Heico Interests") own or
have the right to acquire an aggregate of 8,521,278 shares of common stock par
value $0.001 per share ("Company Common Stock") of WorldPort Communications,
Inc. (the "Company") and no more;
WHEREAS, JOHCM owns beneficially and of record 9,367,869 shares of
Company Common Stock, and no more;
WHEREAS, the parties hereto desire to enter into this Agreement to
provide for certain rights and obligations in respect of the voting and
ownership of the Company Common Stock and certain other matters as herein
provided;
NOW, THEREFORE, upon the terms and conditions herein, and in
consideration of the covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
ARTICLE I
GOVERNANCE
----------
1.1. Board of Directors. From and after the date hereof and until the
provisions of this Article I cease to be effective, each Stockholder shall vote
all of the shares of its Company Common Stock owned by such Stockholders and any
other shares of Company Common Stock over which such Stockholder has voting
control and will take all other necessary or desirable actions within its
control, in its capacity as a stockholder of the Company, (including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), in
order to cause:
(a) Composition.
(i) the Board to consist of the following
individuals:
A) two (2) representatives designated by
Heico, (the "Heico Directors"); and
B) two (2) representatives designated by
JOHCM (the "JOHCM Directors");
(ii) a majority of the board of directors of each of
the Company's Subsidiaries (each, a "Sub Board") to consist of
an equal number of Heico Directors and JOHCM Directors;
(iii) each committee of the Board to consist of an
equal number of Heico Directors and JOHCM Directors;
(iv) the removal from the Board, any Sub Board or any
committee thereof (with or without cause) of any
representative designated hereunder to be at the written
request of the Stockholder(s) entitled to designate such
representative, but only upon such written request and under
no other circumstances; and
(v) in the event that any representative on the
Board, Sub Board or any committee thereof designated hereunder
resigns or ceases to serve thereon for any reason during his
or her term of office, the resulting vacancy to be filled by
another representative designated by the Stockholder(s)
entitled to designate such representative pursuant to this
Section 1.1(a).
(b) Failure to Designate. Any Stockholder entitled to
designate a representative to fill any director position pursuant to
the terms of this Section 1.1 may direct that such director position is
left vacant. If the Stockholder entitled to designate such director
fails to designate a representative to fill any director position
pursuant to the terms of this Section 1.1 and fails to direct that such
director position shall be left vacant, then the election of an
individual to such directorship shall be accomplished in accordance
with the Company's or Company Subsidiary's bylaws and applicable law;
provided that the Stockholders shall vote to remove such individual if
the Stockholder entitled to designate such individual pursuant to
Section 1.1(a) above so directs. In the event any Stockholder entitled
to designate a representative to fill a director position directs that
such position be left vacant or fails to designate a representative,
such Stockholder shall be entitled to designate one observer for each
such director position.
1.2. Stockholders' Approval of Certain Transactions. From and after the
date hereof and until the provisions of this Article I cease to be effective,
each Stockholder shall vote all of the shares of its Company Common Stock owned
by such Stockholders and any other shares of Company Common Stock over which
such Stockholder has voting control and will take all other necessary or
desirable actions within its control, in its capacity as a stockholder of the
Company, (including, without limitation, attendance at meetings in person or by
proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings), in order to cause:
(a) the Company and the Company's Subsidiaries not to take any
of the actions set forth in clauses (i) through (xiii) below without
the prior written approval of at least a majority of the Heico
Directors and of at least a majority of the JOHCM Directors:
(i) authorizing, issuing or entering into any
agreement providing for the issuance (contingent or otherwise)
of any Equity Security;
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(ii) redeeming, repurchasing or acquiring any
outstanding Equity Security;
(iii) any material change in its business;
(iv) any acquisition or investment in excess of
$100,000;
(v) any incurrence of indebtedness;
(vi) any disposition, lease, assignment or transfer
of assets;
(vii) any entering into or material amendment of any
compensation agreement with any executive officer;
(viii) any transaction with Heico or JOHCM or any
Affiliate thereof;
(ix) voluntarily liquidating, dissolving, filing a
petition in bankruptcy, entering into an arrangement for the
benefit of creditors or effecting a recapitalization or
reorganization in any form of transaction;
(x) any merger or consolidation;
(xi) settling any claim of or against the Company in
excess of $100,000; or
(xii) agreeing to do any of the foregoing.
1.3. Effective Period. The provisions of this Article I shall be
effective from the date of this Agreement until the earliest date on which the
Heico Interests or JOHCM ceases to beneficially own at least 20% of the
outstanding Common Stock.
ARTICLE II
TRANSFER
--------
2.1. Co-Sale Rights.
(a) Notice of Transfer. If a Stockholder proposes to Transfer
any Company Common Stock (a "Selling Stockholder") then the Selling
Stockholder shall give written notice (the "Offer Notice") to each of
the other Stockholders (the "Remaining Stockholders") at least fifteen
(15) days prior to the closing of such Transfer. The Offer Notice shall
describe in reasonable detail the proposed Transfer including, without
limitation, the number of shares of Company Common Stock to be
transferred, the nature of such Transfer, the consideration to be paid,
and the name and address of each prospective transferee.
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(b) Right of Co-Sale.
(i) Each Remaining Stockholder shall have the right,
exercisable upon written notice to the Selling Stockholder
within ten (10) days after receipt of the Offer Notice, to
participate in such Transfer of Company Common Stock on the
same terms and conditions.
(ii) Each Remaining Stockholder may sell all or any
part of that number of shares of Company Common Stock equal to
the product obtained by multiplying (A) the aggregate number
of shares of Company Common Stock covered by the Offer Notice
by (B) a fraction the numerator of which is the number of
shares of Company Common Stock owned by such Remaining
Stockholder at the time of the Offer Notice and the
denominator of which is the total number of shares of Company
Common Stock owned by the Selling Stockholder and each
Remaining Stockholder who elects to participate in the
Transfer.
(iii) The Selling Stockholder shall use its
commercially reasonable efforts to obtain the agreement of the
prospective transferee(s) to the participation of the
Remaining Stockholders who elect to participate in the
contemplated Transfer, and the Selling Stockholder shall not
Transfer any shares of Company Common Stock to the prospective
transferee(s) unless (A) the prospective transferee(s) agrees
to allow the participation of the participating Remaining
Stockholders, or (B) the Selling Stockholder agrees to
purchase the number of shares of Company Common Stock that any
participating Remaining Stockholder would have been entitled
to transfer pursuant to this Section 2.1 at the same price and
on the same terms as set forth in the Offer Notice.
(iv) If none of the Remaining Stockholders elect to
participate in the sale of Company Common Stock subject to the
Offer Notice, the Selling Stockholder may, not later than
sixty (60) days following delivery of the Offer Notice, enter
into an agreement providing for the closing of the Transfer of
the Company Common Stock covered by the Offer Notice within
sixty (60) days of such agreement on terms and conditions no
more favorable to the transferor than those described in the
Offer Notice. Any proposed Transfer on terms and conditions
more favorable than those described in the Offer Notice, as
well as any subsequent proposed Transfer of any Company Common
Stock by the Selling Stockholder, shall again be subject to
the co-sale rights set forth herein and shall require
compliance by the Selling Stockholder with the procedures
described in this Section 2.1.
2.2. Drag-Along Rights.
(a) If at any time Heico or JOHCM proposes to sell Company
Common Stock to a Third Party in a single transaction or a series of
related transactions and such Company Common Stock constitute at least
50% of the total Company Common Stock owned by Heico or JOHCM as of the
date of this Agreement, as set forth on Exhibit A, the Transferor may,
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by giving written notice (a "Drag-Along Notice") to the other
Stockholders at least fifteen (15) days prior to the proposed closing
date of such sale, which notice shall set out the identity of the Third
Party purchaser and the consideration and other material terms and
conditions of such sale, require each such Stockholder to sell the same
percentage of its Company Common Stock as the percentage of the Company
Common Stock that the Transferor is proposing to sell is of the total
Company Common Stock owned by Transferor, at the same time for the same
consideration per share and otherwise on the same terms (including
covenants, representations, warranties and indemnities) and conditions.
(b) If at any time the Company, with the approval of the
Board, proposes to merge with an unaffiliated entity or enter into an
arrangement having an effect substantially similar to the effect of a
transaction described in Section 2.2(a), each Stockholder shall vote
all the Company Common Stock held by it in favor of such merger or
arrangement and shall not exercise any dissenter's or appraisal rights
with respect thereto.
(c) Notwithstanding the foregoing, unless the sale to the
Third Party purchaser proposed by the Transferor receives approval by
the majority of the outstanding shares of Company Common Stock, a
Stockholder shall only be required to sell Company Common Stock
pursuant to Section 2.2(a) or vote Shares in favor of a transaction
pursuant to Section 2.2(b) if the consideration payable to the
Stockholders in such sale or transaction is to be payable in cash.
(d) The representations and warranties to be given in favor of
the Third Party purchaser by each Stockholder required to sell all or
any part of its Company Common Stock pursuant to this Section 2.2
(excluding representations and warranties that relate solely to such
Stockholder or the securities to be sold by it) shall be given on the
basis of the best knowledge and belief of the Stockholder and the
liability of each such Stockholder in respect of any representations
and warranties to be given in favor of the Third Party purchaser
(excluding representations and warranties that relate solely to such
Stockholder or the securities to be sold by it) shall be several and
limited to the percentage of the total liability for any breach or
inaccuracy of or other consequences of such representations and
warranties equal to the percentage that the shares of Company Common
Stock sold by it represents of the total number of shares of Company
Common Stock being sold to the Third Party purchaser by all parties and
the total liability of such Stockholder for all representations and
warranties given by it in favor of the Third Party purchaser shall be
limited to not more than the stated amount of the consideration
received by it for the Company Common Stock sold by it.
2.3. Exit Provisions.
(a) Exit Sale. Subject to the provisions of this Section 2.3,
at any time during the term of this Agreement after the fourth
anniversary of the date hereof, either Heico or JOHCM may initiate a
purchase and sale of its Company Common Stock or the other
Stockholder's Company Common Stock (a "Mandatory Purchase and Sale").
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(b) Initiation Mandatory. If a Stockholder (the "Initiating
Stockholder") wishes to initiate a Mandatory Purchase and Sale, the
Initiating Stockholder shall furnish the other Stockholder (the
"Responding Stockholder") with a written notice (the "Initiating
Mandatory Offer Notice") conforming to all of the requirements of this
Section 2.3(b) (the date such Notice is given being the "Initiating
Mandatory Offer Notice Date"). The Initiating Mandatory Offer Notice
shall (i) set forth the Initiating Stockholder's offer to sell all, but
not less than all, of the Initiating Stockholder's Company Common Stock
to the Responding Stockholder, for an aggregate purchase price (the
"Mandatory Aggregate Purchase Price") and upon the other material terms
(the "Other Mandatory Material Terms") therein set forth, and (ii)
provide the Responding Stockholder a period of forty-five (45) days
(the "Response Period") following the date of the delivery of the
Initiating Mandatory Notice within which to elect to either (x)
purchase all, but not less than all, of the Initiating Stockholder's
Company Common Stock or (y) sell to the Initiating Stockholder all, but
not less than all, of the Responding Stockholder's Company Common
Stock, in either case, for the Mandatory Aggregate Purchase Price and
upon the Other Mandatory Material Terms set forth in the Mandatory
Offer Notice. In addition to stating the dollar amount of the Mandatory
Aggregate Purchase Price, the Initiating Mandatory Offer Notice shall
contain the following Other Mandatory Material Terms:
(i) the entire Mandatory Aggregate Purchase Price
shall be due in cash or immediately available funds at the
"Designated Closing Date" referred to in Section 2.3(b)(iv)
below;
(ii) the Stockholder who is purchasing the Securities
of the other Stockholder (the "Purchaser") shall be obligated
to cause any and all outstanding loan guarantees of the
selling Stockholder (the "Seller") to be extinguished at the
Designated Closing Date;
(iii) the Purchaser shall be obligated to cause any
and all outstanding loans to the Company from the Seller to be
repaid by the Company on or before the Designated Closing
Date; and
(iv) the closing date of the Mandatory Purchase and
Sale shall be not less than forty-five (45) days after the
expiration of the Response Period (the "Designated Closing
Date").
(c) Response Election. Upon the Responding Stockholder's
receipt of the Initiating Mandatory Offer Notice, the Responding
Stockholder shall, on or before the last day of the Response Period,
furnish the Initiating Stockholder with the Responding Stockholder's
written election (the "Response Election") by which the Responding
Stockholder shall advise the Initiating Stockholder of whether the
Responding Stockholder has elected to (x) purchase all, but not less
than all, of the Initiating Stockholder's Company Common Stock from the
Initiating Stockholder or (y) sell all, but not less than all, of the
Responding Stockholder's Company Common Stock to the Initiating
Stockholder, in either case, for the Mandatory Aggregate Purchase Price
and upon the Other Mandatory Material Terms set forth in the Initiating
Mandatory Offer Notice.
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(d) Failure of Responding Stockholder to Respond. If the
Responding Stockholder fails to deliver a Response Election to the
Initiating Stockholder on or before the last day of the Response
Period, the Responding Stockholder shall be deemed to have irrevocably
elected to sell all, but not less than all, of the Responding
Stockholder's Company Common Stock to the Initiating Stockholder on the
terms set forth above, and the provisions of Section 2.3 shall apply in
all other respects.
(e) Closing of Mandatory Purchase and Sale. The closing (the
"Mandatory Purchase Closing") of the Mandatory Purchase and Sale shall
take place at the offices of the legal counsel to the Purchaser on the
Designated Closing Date. At the Closing, the Seller shall deliver to
the Purchaser the stock certificates evidencing the Seller's
Securities, duly endorsed, in proper form, for transfer to the
Purchaser. At the Closing, the Purchaser shall also have the right to
acquire all other shares of Company Common Stock owned by any other
Stockholder for the per share price reflected in the Mandatory
Aggregate Offer Price and upon the Other Mandatory Material Terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Stockholder represents and warrants that as of the date hereof:
(i) such Stockholder is the record owner of the
number and classes of Equity Securities of the Company as set
forth opposite its name on the Stockholders Schedule attached
hereto as Exhibit A (collectively, the "Securities");
(ii) this Agreement has been duly authorized,
executed, and delivered by such Stockholder and constitutes
the valid and binding obligation of such Stockholder,
enforceable in accordance with its terms; and
(iii) such Stockholder has not granted and is not a
party to any proxy, voting trust, or other agreement which is
inconsistent with, conflicts with, or violates any provision
of this Agreement.
(iv) such Stockholder is not an "Interested
Stockholder" with respect to the Company, within the meaning
of Section 203 of the Delaware General Corporation Law, unless
prior to the transaction as a result of which it became such,
the Board of Directors of the Company approved such
transaction.
ARTICLE IV
COVENANTS OF THE PARTIES
------------------------
4.1. Standstill Provisions. While this Agreement is in effect, each
Stockholder agrees that except as contemplated by this Agreement, such
Stockholder shall not, directly or indirectly, alone or in concert with any
other person, (a) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined in Rule 14a-1 under the Securities Exchange
Act of 1934 (the "Exchange Act")) relating to any securities of the Company to
or with any Third Party; (b) deposit any Company Common Stock in a voting trust
or subject any Company Common Stock to any voting agreement or arrangement that
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includes as a party any Third Party; (c) form, join or in any way participate in
a group (as contemplated by Exchange Act Rule 13d-5(b)) with respect to any
securities of the Company (or any securities the ownership of which would make
the owner thereof a beneficial owner of securities of the Company (for this
purpose as determined by Exchange Act Rule 13d-3 and Exchange Act Rule 13d-5))
that includes as a party any Third Party; (d) make any announcement subject to
Exchange Act Rule 14a-1(l)(2)(iv) to any Third Party; (e) initiate or propose
any "stockholder proposal" subject to Exchange Act Rule 14a-8; (f) make any
offer or proposal to acquire any securities or assets of the Company or any of
their Subsidiaries or solicit or propose to effect or negotiate any form of
business combination, restructuring, recapitalization or other extraordinary
transaction involving, or any change in control of, the Company, its
Subsidiaries or any of their respective securities or assets; or (g) assist,
advise or encourage any person with respect to, or seek to do, any of the
foregoing.
4.2. No Inconsistent Agreement. No Stockholder shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with,
conflicts with, or violates any provision of this Agreement.
4.3. Filing of Schedule 13D or 13G. Each Stockholder shall file an
amendment to its report of beneficial ownership on Schedule 13D or 13G with
respect to the Company Common Stock beneficially owned by it, containing the
information required by the Exchange Act with respect to this Agreement. Each
Stockholder shall cooperate fully with the other Stockholders to achieve the
timely filing of any such report and any amendments thereto as may be required,
and such Stockholder agrees that any information concerning such Stockholder
which such Stockholder furnishes in connection with the preparation and filing
of such report will be complete and accurate.
ARTICLE V
LEGEND
------
Each certificate evidencing the shares of Company Common Stock owned by
a Shareholder and each certificate issued in exchange for or upon the transfer
of any such Company Common Stock (if such shares of Company Common Stock remain
subject to the terms of this Agreement after such transfer) shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
A STOCKHOLDERS AGREEMENT DATED AS OF MARCH __, 2003 AMONG
CERTAIN PERSONS NAMED THEREIN. A COPY OF SUCH STOCKHOLDERS
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST.
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ARTICLE VI
EVENTS OF DEFAULT
-----------------
An "Event of Default" means the occurrence of any one of the following:
(a) a material breach by either Heico or Hambro of its
obligations under this Agreement and, in the case of a breach capable
of remedy, failing to remedy the same within 21 days of being
specifically required in writing so to do by the other Stockholder.
However, if Heico or Hambro commits two or more material breaches of
this Agreement within the period of 180 days, that shall ipso facto be
deemed to be an Event of Default regardless whether the breaches are
remediable;
(b) the inability of any Stockholder to pay its debts in the
normal course of business other than any debt which is considered de
minimis in relation to the net worth of the Stockholder; or
(c) either Heico or Hambro ceasing or threatening to cease
wholly or substantially to carry on its business (either voluntarily or
through court order).
When an Event of Default is deemed to have occurred, then the nondefaulting
Stockholder shall have, in addition to any other available remedies at law or in
equity, the right to terminate this Agreement.
ARTICLE VII
ARBITRATION
-----------
Any and all controversies arising out of or relating to this Agreement,
claims or disputes arising out of relating to this Agreement and the exhibits
contained in it or the breach thereof, shall be resolved by final and binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (except as otherwise provided below), and judgment upon
the award rendered by the Arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding anything to the contrary, the Commercial
Arbitration Rules shall be modified as follows:
(a) The place of hearing shall be Chicago, Illinois.
(b) There shall be three Arbitrators, one designated by
Hambro, one designated by Heico and the third selected by such two
designees.
(c) The Arbitrators shall be governed by the laws of the State
of Illinois.
(d) The Arbitrators' award shall be made within thirty (30)
days after the hearing.
(e) The hearing shall take place within ten (10) days after
the Arbitrators are selected.
(f) The Arbitrators shall award costs and attorney's fees to
the prevailing party.
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In preparation for its presentation at such hearing, each party may
depose a maximum of two officers, directors, or employees of the adverse party.
Each such deposition shall last no more than six (6) hours, and shall not be
adjourned without the express written consent of all parties. Each party must
submit, to all parties and to the arbitrator, all documents that it wishes to
use during the hearing, at least five (5) business days prior to the
commencement of the hearing. In addition, each party may file with the
arbitrator one brief not in excess of 10 pages, excluding exhibits. Each party
shall have not more than eight hours to present its position to the arbitrator.
The hearing shall not be more than three (3) days in length, and once commenced
shall not be adjourned without the express written consent of both parties.
ARTICLE VIII
INDEMNIFICATION
---------------
Each Stockholder hereby agrees to indemnify and hold harmless the other
Stockholders and their Affiliates and their respective directors, officers,
shareholders, employees and representatives and the Company and its respective
officers, directors, agents, shareholders and employees from and against any and
all claims, losses, damages (including any indirect, special or consequential
damages), demands, liabilities, obligations, penalties, actions or rights of
action, judgments, suits, costs and expenses (including costs and expenses
incurred in connection with performing obligations, interest and applicable
costs and attorneys' fees and disbursements) or disbursements of any kind or
nature which may arise, as a result of:
(i) breach of any representation by the indemnifying
Stockholder in this Agreement; or
(ii) breach of any covenant, obligation or agreement
of the indemnifying Stockholder to be performed, fulfilled or
complied with pursuant to this Agreement.
(b) The indemnified Stockholder will promptly give notice in
writing to the indemnifying Stockholder of any and all claims, losses,
damages, demands, liabilities, obligations, penalties, actions or
rights of action, judgments, suits, costs, expenses or disbursements of
any kind or nature for which such Stockholder seeks indemnification.
ARTICLE IX
DEFINITIONS
-----------
"Affiliate" any entity which is a direct or indirect subsidiary of
another entity or which controls or is controlled by or is under common control
with another entity. "Control" shall mean: (i) ownership of greater than 50% of
the issued and outstanding voting securities of an entity; (ii) power to control
the composition of the board of directors of an entity; (iii) ability to direct
management of the entity; or (iv) ownership of any controlling interest in the
entity.
"Board" shall mean the board of directors of the Company.
"Company" shall mean WorldPort Communications, Inc..
"Company Common Stock" shall mean the Common Stock of the Company.
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"Equity Security" of a Person means any capital stock, partnership,
membership, joint venture or other ownership or equity interest, participation
or similar securities (whether voting or non-voting, whether preferred, common
or otherwise, and including any stock appreciation, contingent interest or
similar right) of such Person and any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise to acquire directly or indirectly,
any stock, interest, participation or security described in clause (i) above.
"Subsidiary" means, with respect to any Person, any company, limited
liability company, partnership, association, or other business entity of which
(i) if a company, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity, a
majority of the partnership or other similar ownership interests thereof is at
the time owned or controlled, directly or indirectly, by that Person or one or
more Subsidiaries of such Person or a combination thereof.
"Sub Board" shall mean the board of directors of a Subsidiary of the
Company.
"Third Party" shall mean any Person other than Heico, the Heico
Interests or JOHCM or any Affiliate of Heico or JOHCM.
"Transfer" shall mean any sale, transfer, assignment, pledge or other
disposition of, direct or indirect.
ARTICLE X
TERM; TERMINATION
-----------------
10.1. Term. This Agreement shall continue in full force and effect upon
execution hereof, and shall continue until the first to occur of the following:
(a) the date of commencement of the winding up of the Company; (b) any other
termination pursuant to the terms of this Agreement; or (c) either Heico or
Hambro no longer being the owner of any Company Common Stock.
10.2. Termination. This Agreement may be terminated at any time by the
mutual written consent of Heico and JOHCM.
10.3. Effect of Termination and Abandonment. In the event of
termination of this Agreement pursuant to this Article X, all obligations of the
parties hereto shall terminate, and there shall be no liability on the part of
any Stockholder or their respective officers or directors, except for any breach
of a party's obligations prior to such termination.
10.4. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
10.5. Extension; Waiver. Any party hereto may (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties made to
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such party contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE XI
MISCELLANEOUS
-------------
11.1. This Agreement Not to Constitute a Partnership. None of the
provisions of this Agreement shall be deemed to constitute a partnership among
the Stockholders and none of the Stockholders shall have any authority to bind
the other in any manner.
11.2. Assignment. None of the Stockholders shall assign or transfer or
purport to assign or transfer any of its rights or obligations hereunder without
the prior written consent of the other Stockholders.
11.3. Notices. All notices, claims, requests, demands, and other
communications hereunder will be in writing and will be duly given if: (a)
personally delivered or sent via facsimile or (b) sent by Federal Express or
other reputable overnight courier (for next business day delivery), shipping
prepaid. to the following addresses (or such other address as may be notified in
accordance with this Section 11.3 hereof):
(a) if to HEICO or Xxxxxxx: (b) if to JOHCM:
The Heico Companies, L.L.C. X X Xxxxxx Capital Management Limited
5600 Three First National Plaza 00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxx Xxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxxx London
England
with a copy to: with a copy to:
XxXxxxxxx, Will & Xxxxx Ropes & Xxxx
000 X. Xxxxxx Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
11.4. Headings. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not affect in any way the meaning of interpretation of this
Agreement.
11.5. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. In
the event that any portion of this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its being extended over
too great a period of time or too large a geographic area or over too great a
range of activities, it shall be interpreted to extend only over the maximum
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period of time, geographic area, or range of activities as to which it may be
enforceable. Each of the covenants herein shall be deemed a separate and
severable covenant. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which such
enforcement is sought. Accordingly, a court of competent jurisdiction is
directed to modify any provision to the extent necessary to render such
provision enforceable.
11.6. Binding Nature; Governing Law. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and, nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever by reason of this Agreement. This
Agreement shall be governed by the laws of the State of Illinois.
11.7. Entire Agreement; Successors and Assigns. This Agreement embodies
the entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein or therein. There are no agreements,
representations, warranties or covenants other than those expressly set forth or
referred to herein or therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter. This
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties and their respective permitted successors and
assigns.
11.8. Termination of Prior Agreement. The Stockholders are parties to a
Joint Venture and Securityholders Agreement dated December 23, 2002 (the
"December Agreement"). The Stockholders agree that the December Agreement is
terminated effective upon the date of this Agreement, other than the obligations
under Article VI of the December Agreement.
* * *
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IN WITNESS WHEREOF the parties hereto have entered into this Agreement
the day and year first aforewritten.
THE HEICO COMPANIES, L.L.C.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
X X XXXXXX CAPITAL MANAGEMENT LIMITED
By /s/ Xxxxxxxxxxx X.X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X.X. Xxxxx
Title: Director
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Signature page to
WorldPort Stockholders Agreement
EXHIBIT A
OWNERSHIP OF WORLDPORT STOCK
The Heico Company - 6,077,707 shares of Common Stock
- Warrants to acquire 679,451 shares of Common Stock
Xxxxxxx Xxxxxxx - 1,764,120 shares of Common Stock
X X Xxxxxx Capital - 9,367,869 shares of Common Stock.
Management Limited
