JOINT VENTURE AND
SECURITYHOLDERS AGREEMENT
BY AND AMONG
W.C.I. ACQUISITION CORP.,
THE HEICO COMPANIES, L.L.C.
AND
▇ ▇ ▇▇▇▇▇▇ CAPITAL MANAGEMENT LIMITED
DATED DECEMBER 23, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE I INCORPORATION, CAPITALIZATION AND OWNERSHIP....................................................2
1.1. Formation......................................................................................2
1.2. Initial Capital Contributions..................................................................2
1.3. Additional Funds...............................................................................2
1.4. Books and Records..............................................................................2
1.5. Annual Financial Statements....................................................................2
1.6. Interim Financial Statements...................................................................2
1.7. Inspection of Facilities and Records...........................................................3
1.8. Banking Matters................................................................................3
ARTICLE II TRANSACTION....................................................................................3
2.1. Additional Contributions.......................................................................3
2.2. Preferred Stock................................................................................3
2.3. Loan...........................................................................................3
2.4. Merger.........................................................................................4
2.5. Professional Services..........................................................................4
ARTICLE III THE OFFER......................................................................................4
3.1. The Offer......................................................................................4
3.2. Board Approvals................................................................................5
ARTICLE IV THE MERGER.....................................................................................5
4.1. The Merger.....................................................................................5
4.2. Certificate of Incorporation, By-Laws, Directors and Officers of the Surviving
Corporation....................................................................................5
ARTICLE V EFFECT OF THE MERGER ON SECURITIES OF THE COMPANY AND WORLDPORT................................6
5.1. Merger.........................................................................................6
5.2. Company Stock..................................................................................6
5.3. WorldPort Securities...........................................................................6
5.4. Exchange of Certificates Representing WorldPort Common Stock...................................7
5.5. Dissenting Company Stockholders................................................................8
ARTICLE VI EXPENSES.......................................................................................8
ARTICLE VII SUCCESS FEE....................................................................................8
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ARTICLE VIII GOVERNANCE.....................................................................................8
8.1. Board of Directors.............................................................................8
(a) Composition...........................................................................8
(b) Expenses and Indemnification..........................................................9
(c) Failure to Designate..................................................................9
8.2. Securityholders' Approval of Certain Transactions.............................................10
ARTICLE IX POTENTIAL CONFLICTS...........................................................................11
ARTICLE X TRANSFER......................................................................................11
10.1. Restrictions on Transfer of Certain Equity Securities.........................................11
(a) No Transfers.........................................................................11
(b) Permitted Transfers..................................................................11
(c) Transfers to an Affiliate............................................................11
(d) Pledges..............................................................................12
10.2. Preemptive Rights.............................................................................12
10.3. Rights of First Refusal.......................................................................13
10.4. Co-Sale Rights................................................................................14
(a) Notice of Transfer...................................................................14
(b) Right of Co-Sale.....................................................................14
10.5. Drag-Along Rights.............................................................................15
10.6. Exit Provisions...............................................................................16
(a) Exit Sale............................................................................16
(b) Initiation Mandatory.................................................................16
(c) Response Election....................................................................17
(d) Failure of Responding Securityholder to Respond......................................17
(e) Closing of Mandatory Purchase and Sale...............................................18
ARTICLE XI REPRESENTATIONS AND WARRANTIES................................................................18
11.1. Representations and Warranties of Securityholders.............................................18
ARTICLE XII COVENANTS OF THE PARTIES......................................................................18
12.1. Reasonable Best Efforts.......................................................................18
12.2. Cooperation in Receipt of Consents............................................................19
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12.3. Public Announcements..........................................................................19
12.4. Further Assurances............................................................................19
12.5. Confidential Information......................................................................19
12.6. Standstill Provisions.........................................................................20
12.7. Filing of Schedule 13D or 13G.................................................................21
ARTICLE XIII LEGEND........................................................................................22
ARTICLE XIV EVENTS OF DEFAULT.............................................................................22
ARTICLE XV ARBITRATION; GOVERNING LAW....................................................................23
15.1. Arbitration...................................................................................23
ARTICLE XVI INDEMNIFICATION...............................................................................24
ARTICLE XVII DEFINITIONS...................................................................................24
ARTICLE XVIII TERM; TERMINATION.............................................................................28
18.1. Term..........................................................................................28
18.2. Termination...................................................................................28
18.3. Effect of Termination and Abandonment.........................................................29
18.4. Amendment.....................................................................................29
18.5. Extension; Waiver.............................................................................29
ARTICLE XIX MISCELLANEOUS.................................................................................29
19.1. This Agreement not to Constitute a Partnership................................................29
19.2. Assignment....................................................................................29
19.3. Notices.......................................................................................29
19.4. Headings......................................................................................30
19.5. Severability..................................................................................30
19.6. Binding Nature................................................................................30
19.7. Entire Agreement; Successors and Assigns......................................................30
EXHIBIT A CERTIFICATE OF INCORPORATION OF W.C.I. ACQUISITION CORP. COMPANY..................................1
EXHIBIT B BY-LAWS OF W.C.I. ACQUISITION CORP................................................................1
EXHIBIT C INITIAL BOARD OF DIRECTORS........................................................................1
EXHIBIT D CONDITIONS OF THE OFFER...........................................................................1
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EXHIBIT E OWNERSHIP OF WORLDPORT STOCK......................................................................1
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JOINT VENTURE AND SECURITYHOLDERS AGREEMENT
THIS
JOINT VENTURE AND SECURITYHOLDERS AGREEMENT ("AGREEMENT") is made
and entered into as of this 23rd day of December, 2002 by and among THE HEICO
COMPANIES, L.L.C. a Delaware corporation ("HEICO"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"),▇ ▇ ▇▇▇▇▇▇ CAPITAL MANAGEMENT LIMITED, a corporation organized under
the laws of the United Kingdom ("JOHCM") and W.C.I. ACQUISITION CORP., a
Delaware corporation ("COMPANY"). Unless otherwise defined herein, capitalized
terms are defined in ARTICLE XVII hereof. Heico, ▇▇▇▇▇▇▇ and JOHCM are
collectively referred to herein as the "SECURITYHOLDERS").
W I T N E S S E T H
WHEREAS, Heico and ▇▇▇▇▇▇▇ (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 ("WORLDPORT COMMON STOCK") of WorldPort Communications,
Inc., a Delaware corporation ("WORLDPORT"), and no more;
WHEREAS, JOHCM owns beneficially and of record 9,367,869 shares of
WorldPort Common Stock, and no more;
WHEREAS, the Heico Interests and JOHCM desire to enter into a joint
venture for the purpose of forming the Company in order to offer to acquire for
the Per Share Amount all of the remaining issued and outstanding shares of
WorldPort Common Stock held by Third Parties through a cash tender offer (the
"OFFER") in compliance with Section 14(d)(i) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT") upon the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, upon the closing of the Offer, the Company shall be merged
with and into WorldPort and all shares of the Company shall be converted into
shares of WorldPort (the "MERGER," with the Offer, collectively, the
"TRANSACTION");
WHEREAS, the parties hereto desire to enter into this Agreement for the
purposes, among others, of (i) governing the conduct of the parties during the
Transaction, (ii) establishing the composition of the Board of Directors, (iii)
governing the conduct of the Company, (iv) limiting the manner and terms by
which the Company Shares held by the Securityholders may be transferred, and (v)
to provide for certain matters relating to the Company, certain rights and
obligations in respect of the ownership of the Company Shares and certain other
matters as herein provided;
NOW, THEREFORE, upon the terms and conditions herein, and in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby expressly agree as follows:
ARTICLE I
INCORPORATION, CAPITALIZATION AND OWNERSHIP
1.1. FORMATION.
(a) The parties hereby agree to form the Company by filing the
Certificate of Incorporation, in the form attached as EXHIBIT A, with
the Secretary of State of Delaware, and adopting the bylaws of the
Company in the form attached as EXHIBIT B.
(b) The Company's principal place of business shall be at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or any other place
in Illinois as may be mutually agreed upon in writing by the parties
hereto.
(c) In the event of any inconsistency between this Agreement
and the Certification of Incorporation, the terms of this Agreement
shall prevail.
(d) Heico, as the sole incorporator of the Company, shall
cause the individuals listed on EXHIBIT C to be elected as the initial
Board of Directors of the Company.
1.2. INITIAL CAPITAL CONTRIBUTIONS. The Heico Interests hereby agrees
to purchase, and the Company agrees to issue and sell to the Heico Interests, 50
shares of Company Shares for a purchase price of $100 per share. JOHCM hereby
agree to purchase and the Company agrees to issue and sell to JOHCM, 50 shares
of Company Shares for a price of $100 per share. Heico may designate other
holders of WorldPort Common Stock to contribute such stock to the Company in
exchange for a portion of the Company Shares to be issued to Heico, provided
that such persons become parties to this Agreement as "Securityholders" and
shall thereafter be considered part of the Heico Interests.
1.3. ADDITIONAL FUNDS. Except as set forth in SECTION 2.1, unless
otherwise agreed to by the Securityholders in writing, there shall be no
obligation upon the Securityholders to make any additional contributions to the
Company either in the form of additional equity injections or shareholders'
loans.
1.4. BOOKS AND RECORDS. The books and records of the Company shall be
kept and maintained at the principal office of the Company or at such other
place as the Board of Directors may determine from time to time. The books of
account shall be maintained on an accrual basis in accordance with GAAP
consistently applied with reference to all Company transactions. The books and
records shall include the designation and identification of any property in
which the Company owns a beneficial interest.
1.5. ANNUAL FINANCIAL STATEMENTS. No later than 90 days following the
end of each fiscal year, the Company shall cause to be prepared and delivered to
each Securityholder an income statement, statement of changes in financial
position and a balance sheet for the Company for such fiscal year, prepared in
accordance with GAAP.
1.6. INTERIM FINANCIAL STATEMENTS. As soon as practicable (but no later
than forty-five (45)) days after the end of each month and of each fiscal
quarter, the Company shall cause to be prepared and delivered to each
Securityholder, an income statement and statement of changes in
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financial position for such month or fiscal quarter and for the portion of the
fiscal year then ended, and a balance sheet for the Company as at the end of
such month or fiscal quarter, prepared in accordance with GAAP.
1.7. INSPECTION OF FACILITIES AND RECORDS. Each Securityholder shall
have the right at all reasonable times during usual business hours to examine
the books of account and records of the Company. Such right may be exercised
through any agent, employee or representative of such Securityholder designated
by it, or by an independent public accountant. The Securityholder conducting
such examination or inspection shall bear all costs and expenses incurred in
connection therewith.
1.8. BANKING MATTERS. Funds of the Company shall be deposited in such
banks or other depositories as determined by the Board or its designee. Checks
or other orders of withdrawal shall be drawn upon the Company's account or
accounts only for purposes of the Company and shall be signed by such officers
or authorized representatives as are designated by the Board, subject to any
conditions or limitations which it may set.
ARTICLE II
TRANSACTION
2.1. ADDITIONAL CONTRIBUTIONS. On or prior to the Offer Closing:
(a) JOHCM will transfer to the Company, for no additional
consideration, all right, title and interest in and to the JOHCM
Shares; and
(b) The Heico Interests will transfer to the Company, for no
additional consideration, all right, title and interest in and to the
Heico Shares.
(c) to the extent that the number of shares of WorldPort
Common Stock contributed by the Heico Interests, on the one hand, or
JOHCM, on the other, is less than 9,367,869, such contributing party
will contribute to Company cash in the amount of the product of such
shortfall multiplied by the Per Share Amount, without consideration.
Shares contributed by the Heico Interests may include shares acquired
upon exercise of warrants to purchase WorldPort stock held by Heico.
2.2. PREFERRED STOCK. Upon the closing of and as part of the Merger,
the holders of the preferred stock of WorldPort ("WorldPort Preferred Stock")
shall be entitled to be paid out of the assets of WorldPort by reason of their
ownership thereof an amount per share equal to 107% of the Stated Value thereof
(an aggregate of $67,577,358.27), less any cash dividends paid by WorldPort to
the holders of WorldPort Preferred Stock after the date hereof, in full
redemption thereof.
2.3. LOAN. Prior to or contemporaneously with the Offer Closing, the
Company shall borrow from WorldPort funds sufficient to purchase shares tendered
pursuant to the Offer and accepted for purchase (the "LOAN") on terms deemed
acceptable by the Board of Directors of the Company. The Company shall pledge
all shares of WorldPort Common Stock held by the Company as security for the
Loan, if required.
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2.4. MERGER. Immediately after the Offer Closing, the parties agree to
cause the Company to be merged with and into WorldPort, pursuant to the terms of
this Agreement.
2.5. PROFESSIONAL SERVICES. ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇ will provide legal
services to the Company with respect to the Transaction and JOHCM and Heico
waive any actual or potential conflict of interest between such representation
and any past, present or future provision of legal services by ▇▇▇▇▇▇▇▇▇, Will &
▇▇▇▇▇ to Heico or JOHCM or any affiliate thereof.
ARTICLE III
THE OFFER
3.1. THE OFFER.
(a) The Company shall commence the Offer as promptly as
practicable. The obligation of the Company to commence the Offer and to
accept for payment, and to pay for any shares of WorldPort Common Stock
tendered pursuant to the Offer shall be subject only to the
satisfaction of the conditions set forth in EXHIBIT D (the "OFFER
CONDITIONS"). As soon as reasonably practicable following execution of
this Agreement, the Company shall file with the SEC a Tender Offer
Statement and a Rule 13e-3 Transaction Statement on Schedule TO,
including all exhibits thereto (together with all amendments and
supplements thereto, the "SCHEDULE TO") with respect to the Offer, the
Merger and the other transactions contemplated hereby. The Schedule TO
shall contain or incorporate by reference an offer to purchase (the
"OFFER TO PURCHASE") and forms of the related letter of transmittal and
any related documents (the Schedule TO, the Offer to Purchase and such
other documents, together with all supplements or amendments thereto,
collectively, the "OFFER DOCUMENTS"). Heico and JOHCM shall each use
their commercially reasonable efforts to ensure that (i) the Offer
Documents shall comply in all material respects with the requirements
of the Exchange Act, and (ii) on the date filed with the SEC and on the
date first published, sent or given to WorldPort's stockholders, the
Offer Documents shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any
time prior to the Effective Time, Heico or JOHCM discovers any
information relating to either party, or any of their respective
Affiliates, officers or directors, that should be set forth in an
amendment or supplement to the schedule to, so that the document will
not include any misstatement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, then the
party that discovers any misleading information shall promptly notify
the other parties hereto and an appropriate amendment or supplement
describing the information shall be promptly filed with the SEC and, to
the extent required by law or regulation, disseminated to the
shareholders of WorldPort.
(b) Heico, JOHCM and the Company each agree to (i) provide
each other party to this Agreement and their counsel with any written
comments or requests for additional information that such party or its
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after receipt of such comments or request, (ii) use
their reasonable best efforts after consultation with each of Heico and
JOHCM and its
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counsel to respond to such comments of and requests by the SEC
promptly, (iii) provide each of Heico and JOHCM and its counsel with
copies of any written responses and telephonic notification of any
verbal responses by the Company or its counsel, and (iv) advise the
other party, promptly after it receives notice thereof, of the issuance
of any stop order, or any request by the SEC for amendment of the Offer
Documents.
(c) Subject to the provisions of this Agreement, the Offer
shall initially expire on the 20th business day from and after the date
the Offer is commenced, including the date of the commencement of the
Offer as the first business day in accordance with Rule 14d-2, unless
this Agreement is terminated in accordance with ARTICLE XVIII, in which
case the Offer (whether or not previously extended in accordance with
the terms hereof) shall expire on such date of termination.
(d) Subject to and in accordance with the terms and conditions
of the Offer and this Agreement (but subject to the right of
termination in accordance with SECTION 18.1), the Company shall accept
for payment and pay for, in accordance with the terms of the Offer, all
WorldPort Common Stock validly tendered by Third Parties and not
withdrawn pursuant to the Offer as soon as practicable after the
expiration of the Offer, and in any event in compliance with the
obligations respecting prompt payment pursuant to Rule 14e-1(c) under
the Exchange Act
3.2. BOARD APPROVALS. Unless approved by the Board of Directors, the
Company:
(a) shall not file any Offer Document with the SEC, or any
amendment or supplement to any Offer Document;
(b) shall not amend or waive any of the Offer Conditions;
(c) shall not extend or terminate the Offer; and
(d) shall not change the Per Share Amount.
ARTICLE IV
THE MERGER
4.1. THE MERGER. At the Effective Time, subject to the terms and
conditions of this Agreement and the applicable provisions of the Delaware
General Corporation Law (the "DGCL"), the Company shall be merged with and into
WorldPort and the separate corporate existence of the Company shall thereupon
cease. WorldPort shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "SURVIVING CORPORATION"). The Merger shall have
the effects specified in the DGCL.
4.2. CERTIFICATE OF INCORPORATION, BY-LAWS, DIRECTORS AND OFFICERS OF
THE SURVIVING CORPORATION. Unless otherwise agreed by the Company, Heico and
JOHCM prior to the Merger Closing, at the Effective Time:
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(a) The certificate of incorporation of the Company as in
effect immediately prior to the Effective Time shall be the certificate
of incorporation of the Surviving Corporation, until duly amended in
accordance with applicable law and the terms thereof;
(b) The by-laws of the Company as in effect immediately prior
to the Effective Time shall be the by-laws of the Surviving
Corporation, until duly amended in accordance with applicable law, the
terms thereof, and the Surviving Corporation's certificate of
incorporation;
(c) The officers of the Company immediately prior to the
Effective Time shall continue to serve in their respective offices for
the Surviving Corporation from and after the Effective Time, until
their successors are duly appointed or elected in accordance with
applicable law and the Surviving Corporation's certificate of
incorporation and by-laws; and
(d) The directors of the Company immediately prior to the
Effective Time shall be the directors of the Surviving Corporation from
and after the Effective Time, until their successors are duly appointed
or elected in accordance with applicable law, and the Surviving
Corporation's certificate of incorporation and by-laws.
ARTICLE V
EFFECT OF THE MERGER ON SECURITIES OF THE COMPANY
AND WORLDPORT
5.1. MERGER. Upon the Company acquiring shares of WorldPort Common
Stock pursuant to the Offer, the Company, Heico and JOHCM shall take all
necessary and appropriate action to cause the Merger to become effective as soon
as practicable.
5.2. COMPANY STOCK. At the Effective Time, each share of common stock,
$0.01 par value per share, of the Company that is outstanding immediately prior
to the Effective Time shall be converted into and exchanged for one validly
issued, fully paid and non-assessable share of common stock, $0.0001 par value
per share, of the Surviving Corporation.
5.3. WORLDPORT SECURITIES.
(a) Other than as set forth in the immediately following
sentence, at the Effective Time, each share of WorldPort Common Stock
issued and outstanding immediately prior to the Effective Time shall,
by virtue of the Merger and without any action on the part of the
Company, WorldPort or the holder thereof, be converted into the right
to receive the Per Share Amount, without interest (the "MERGER
CONSIDERATION") upon the surrender of a certificate or certificates (a
"CERTIFICATE") representing such shares of WorldPort Common Stock. The
following Shares shall not be converted into the right to receive the
Per Share Amount at the Effective Time: (i) shares of WorldPort Common
Stock owned by the Company, or any wholly owned subsidiary of the
Company, or held by WorldPort, all of which shall be canceled; and (ii)
Dissenting Shares (as defined below).
(b) Each share of WorldPort Common Stock issued and held in
WorldPort's treasury at the Effective Time, or held by the Company, or
any wholly owned subsidiary
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of the Company, shall, by virtue of the Merger and without any action
on the part of the Company, WorldPort or the holder thereof, cease to
be outstanding and shall be canceled and retired without payment of any
consideration therefor.
(c) At the Effective Time, all shares of Preferred Stock of
WorldPort shall, by virtue of the Merger and without any action on the
part of the Company, WorldPort or the holder thereof be converted into
the right to receive an amount in cash, equal in the aggregate to the
amount set forth in SECTION 2.2.
(d) [EACH WORLDPORT STOCK OPTION SHALL BE CONVERTED IN TO THE
RIGHT TO RECEIVE (I) THE PER SHARE AMOUNT MINUS (II) THE EXERCISE PRICE
THEREUNDER OR SHALL BE CANCELLED, AND ALL WORLDPORT EMPLOYEE BENEFIT
PLANS PROVIDING FOR THE ISSUANCE, HOLDING, TRANSFER OR GRANT OF ANY
WORLDPORT COMMON STOCK, OR ANY INTEREST IN RESPECT OF ANY WORLDPORT
COMMON STOCK SHALL BE TERMINATED.]
5.4. EXCHANGE OF CERTIFICATES REPRESENTING WORLDPORT COMMON STOCK.
(a) As soon as practicable after the Effective Time, the
Company shall or shall cause a designated paying agent ("Paying Agent")
to mail to each holder of record of shares of WorldPort Common Stock
(i) a letter of transmittal which shall specify that delivery shall be
effected, and risk of loss and title to such Certificates shall pass,
only upon delivery of the Certificates to the Paying Agent and which
letter shall be in such form and have such other provisions as are
customary for letters of this nature and (ii) instructions for
effecting the surrender of such Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate to the Paying Agent
together with such letter of transmittal, duly executed and completed
in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the
amount of cash into which shares of Common Stock theretofore
represented by such Certificate shall have been converted pursuant to
SECTION 5.3, and the shares represented by the Certificate so
surrendered shall forthwith be canceled. No interest will be paid or
will accrue on the cash payable upon surrender of any Certificate. In
the event of a transfer of ownership of WorldPort Common Stock that is
not registered in the transfer records of WorldPort, payment may be
made with respect to such WorldPort Common Stock to such a transferee
if the Certificate representing such shares of WorldPort Common Stock
is presented to the Paying Agent, accompanied by all documents required
to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this SECTION 5.4(a), each Certificate (other than
Certificates representing Dissenting Shares) shall be deemed, at any
time after the Effective Time, to represent only the right to receive
on such surrender the amount, without any interest thereon, of cash
into which shares of Common Stock theretofore represented by such
Certificate shall have been converted pursuant to SECTION 5.3.
(b) At or after the Effective Time, there shall be no
transfers on the stock transfer books of WorldPort of the WorldPort
Common Stock that were outstanding immediately prior to the Effective
Time. From and after the Effective Time, the holders of
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Certificates evidencing ownership of WorldPort Common Stock outstanding
immediately prior to the Effective Time shall cease to have any rights
with respect to such WorldPort Common Stock except as otherwise
provided herein or by applicable law. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be
canceled and exchanged as provided in this ARTICLE V.
5.5. DISSENTING COMPANY STOCKHOLDERS. Notwithstanding any provision of
this Agreement to the contrary, if required by the DGCL, but only to the extent
required thereby, shares of WorldPort Common Stock that are issued and
outstanding immediately prior to the Effective Time and which are held by Third
Parties who have properly exercised appraisal rights with respect to the
WorldPort Common Stock owned by them in accordance with Section 262 of the DGCL
(the "DISSENTING SHARES") will not be exchangeable for the right to receive the
Merger Consideration. Each holder of such Dissenting Shares will be entitled to
receive payment of the appraised value of such WorldPort Common Stock in
accordance with the provisions of Section 262 of the DGCL unless and until such
holder fails to perfect or effectively waives, withdraws or loses his or her
rights to appraisal and payment under the DGCL. If, after the Effective Time,
any such holder fails to perfect or effectively waives, withdraws or loses such
right, such WorldPort Common Stock will thereupon be treated as if they had been
converted into and have become exchangeable for, at the Effective Time, the
right to receive the Merger Consideration, without any interest or dividends
thereon.
ARTICLE VI
EXPENSES
In the event that the Transaction is not completed as detailed in this
Agreement or otherwise agreed by the Board of Directors, each of Heico and JOHCM
shall be responsible for paying 50% of all costs and expenses of Heico, JOHCM
and the Company relating to the proposed Transaction, including, without
limitation, attorney fees and expenses, payable by the Company. If the
Transaction is completed, the costs and expenses, including attorney fees, of
Heico, JOHCM, and the Company related to the Transaction shall be paid or
reimbursed by WorldPort.
ARTICLE VII
SUCCESS FEE
In the event that the Transaction is consummated, on the Merger
Closing, the parties will cause WorldPort to pay to each of Heico and JOHCM a
fee (the "SUCCESS FEE") equal to $1,393,180.
ARTICLE VIII
GOVERNANCE
8.1. BOARD OF DIRECTORS.
(a) COMPOSITION. From and after the date hereof and until the
provisions of this ARTICLE VIII cease to be effective, each
Securityholder shall vote all of its Company Shares and any other
voting securities of the Company over which such Securityholder has
voting control and will take all other necessary or desirable actions
within its control
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(whether in its capacity as a shareholder, director, member of a Board
committee or officer of the Company or otherwise, 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), and the Company will take all necessary and desirable
actions within its control, in order to cause:
(i) the authorized number of directors on the Board
to initially be established at four (4) directors;
(ii) the following individuals to be elected to the
Board:
A) two (2) representatives designated by
Heico if and for so long as Heico Interests own at
least 20% of the outstanding Company Shares (the
"HEICO DIRECTORS"); and
B) two (2) representatives designated by
JOHCM if and for so long as JOHCM owns at least 20%
of the outstanding Company Shares (the "JOHCM
DIRECTORS");
(iii) the composition of the board of directors of
any of the Company's Subsidiaries (each, a "SUB BOARD") to be
the same as that of the Board;
(iv) any committee of the Board to have as members an
equal number of Heico Directors and JOHCM Directors;
(v) the removal from the Board, any Sub Board or any
committee thereof (with or without cause) of any
representative designated hereunder shall be at the written
request of the Securityholder(s) entitled to designate such
representative, but only upon such written request and under
no other circumstances; and
(vi) 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 shall be filled
by another representative designated by the Securityholder(s)
entitled to designate such representative pursuant to this
SECTION 8.1(a).
(b) EXPENSES AND INDEMNIFICATION. The Company shall pay the
reasonable out-of-pocket expenses incurred by each director, if
applicable, in connection with attending the meetings of the Board, any
Sub Board or any committee thereof. The Company's (and/or its
Subsidiary's) certificate of incorporation and bylaws shall provide for
indemnification and exculpation of directors to the fullest extent
permitted by applicable law.
(c) FAILURE TO DESIGNATE. Any Securityholder entitled to
designate a representative to fill any director position pursuant to
the terms of this SECTION 8.1 may direct that such director position is
left vacant. If the Securityholder entitled to designate such director
fails to designate a representative to fill any director position
pursuant to the terms of this SECTION 8.1 and fails to direct that such
director position shall be left vacant,
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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 Securityholders shall vote
to remove such individual if the Securityholder entitled to designate
such individual pursuant to SECTION 8.1(a) above so directs. In the
event any Securityholder entitled to designate a representative to fill
a director position directs that such position be left vacant or fails
to designate a representative, such Securityholder shall be entitled to
designate one observer for each such director position.
8.2. SECURITYHOLDERS' APPROVAL OF CERTAIN TRANSACTIONS.
(a) Except as contemplated by this Agreement, neither the
Company nor any of the Company's Subsidiaries shall take any of the
actions set forth in clauses (i) through (xiii) below without the prior
written approval of holders of at least a majority of the Board of
Directors:
(i) any material change in the terms of the
Transaction, including the price paid for WorldPort Common
Stock, extensions and waiver of conditions;
(ii) authorizing, issuing or entering into any
agreement providing for the issuance (contingent or otherwise)
of any Equity Security;
(iii) redeeming, repurchasing or acquiring any or all
of the outstanding securities of the Company;
(iv) any material change in the business of the
Company;
(v) any acquisition, investment or non-budgeted
expenditure;
(vi) any incurrence of indebtedness;
(vii) any disposition, lease, assignment or transfer
of assets;
(viii) entering into or materially amending any
compensation agreements with any executive officers of the
Company or its Subsidiaries;
(ix) any transaction with Heico or JOHCM or any
Affiliate thereof;
(x) voluntarily liquidating, dissolving, filing
petition in bankruptcy, entering into an arrangement for the
benefit of creditors or effecting a recapitalization or
reorganization in any form of transaction;
(xi) any merger or consolidation involving the
Company or any Subsidiary;
(xii) settling any claim of or against the Company;
or
(xiii) agreeing to do any of the foregoing.
-10-
The Board of Directors, by vote a majority thereof, may delegate such
approval rights as to a specific matter or as to described matters.
ARTICLE IX
POTENTIAL CONFLICTS
No Director or employee of the Company shall be obligated to reveal
confidential or proprietary information belonging to any Securityholder or a
Securityholder's Affiliates without the consent of such Securityholder or its
Affiliate, as applicable. No Director shall be obligated to recommend or take
any action in such person's position as a Director that prefers the interests of
the Company over the interests of a Securityholder or any of its Affiliates, and
the Company hereby waives the fiduciary duty, if any, to the Company of such
person in the event of any such conflict of interest.
ARTICLE X
TRANSFER
10.1. RESTRICTIONS ON TRANSFER OF CERTAIN EQUITY SECURITIES.
(a) NO TRANSFERS. Except as provided in this Agreement, no
holder of Company Shares shall, directly or indirectly, sell, transfer,
assign, pledge, or otherwise dispose of (a "TRANSFER") any interest in
any Company Shares. Any purported Transfer in violation of this Section
shall be invalid and void and shall not be registered in the books of
the Company or otherwise recognized by any party to this Agreement for
any purpose. The restrictions on Transfer set forth in this Agreement
are in addition to any restrictions that may be set forth in any other
agreement to which any holder is a party.
(b) PERMITTED TRANSFERS. No Securityholder may Transfer any
interest in any Company Shares prior to the second anniversary of the
date hereof. After such second anniversary each Securityholder may
Transfer up to 49% of the Company Shares initially held by such
Securityholder provided that such Securityholder complies with the
provisions of SECTIONS 10.3 and 10.4. After the fourth anniversary of
the date hereof each Securityholder may Transfer any or all of its
Company Shares provided that such Secutiryholder complies with SECTIONS
10.3, 10.4 and 10.5. Any Transfer of Company Shares must be exclusively
for cash. Notwithstanding the foregoing, at any time a Securityholder
may complete Transfers of Company Shares to the extent permitted by,
and in accordance with, SECTIONS 10.1(c) and 10.1(d).
(c) TRANSFERS TO AN AFFILIATE. A Securityholder may Transfer
all or part of the Company Shares held by it at any time and from time
to time to an Affiliate of the transferring Securityholder, provided
that:
(i) prior to such Transfer, such transferee (if not
already a party to this Agreement) shall agree in writing to
be bound by this Agreement ;
(ii) prior to such Transfer, such transferee shall
execute such documents as the Company, acting reasonably, may
consider necessary to ensure that the
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transferee shall Transfer to such transferor all Company
Shares prior to the transferee ceasing for any reason to be an
Affiliate of such transferor; and
(iii) the Transfer shall not relieve the transferor
from any of its obligations under this Agreement and the
transferor hereby unconditionally guarantees to the other
parties hereto the due performance by such transferee of all
obligations imposed on the transferee hereunder.
(d) PLEDGES. A Securityholder may pledge or otherwise grant a
security interest in all or part of the Company Shares held by it from
time to time in favor of a bank, trust company or other similar
financial institution to secure bona fide indebtedness of such
Securityholder, or the Company, or any Subsidiary thereof, provided
that, prior thereto, such bank, trust company or financial institution
acknowledges, in form and content satisfactory to the Company, acting
reasonably, that the securities subject to such pledge or security
interest and all rights of such bank, trust company or financial
institution, as the case may be, in respect thereof shall be subject in
all respects to the provisions of this Agreement.
10.2. PREEMPTIVE RIGHTS.
(a) If the Company authorizes the issuance or sale of any
Indebtedness or Equity Securities (in each case, a "NEW ISSUANCE"), the
Company shall first offer to sell to each Securityholder by delivery of
written notice a portion of such New Issuance equal to the quotient (1)
the numerator of which is the number of Company Shares held by such
Securityholder and (2) the denominator of which is the aggregate number
of Company Shares then outstanding, calculated on a fully-diluted
basis. Each Securityholder shall be entitled to purchase securities
being sold in such New Issuance at the most favorable price and on the
most favorable terms as such securities are to be sold to any other
Person.
(b) In order to exercise its purchase rights hereunder, a
Securityholder must, within 30 days after receipt of written notice
from the Company describing in reasonable detail the terms of the New
Issuance and such Securityholder's percentage allotment, deliver a
written notice to the Company describing its election to purchase all
or any portion of the securities offered to it hereunder. If all of the
securities offered to the Securityholders in the New Issuance are not
fully subscribed for by the Securityholders, the portion of the New
Issuance which has been offered to, but not subscribed for, by the
Securityholders shall be reoffered to the Securityholders who have
subscribed to purchase their full allotment of the New Issuance upon
the terms set forth in this paragraph, except that such Securityholders
must exercise their purchase rights within five days after receipt of
notice of such reoffer.
(c) Upon the expiration of the offering periods described
above, the Company shall be entitled to sell all securities which
Securityholders have not elected to purchase during the 90 days
following such expiration on terms and conditions no more favorable to
the purchasers thereof than those offered to the Securityholders. No
securities may be
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offered or sold by the Company after such 90-day period unless they
have first been reoffered to the Securityholders pursuant to the terms
of this SECTION 10.2.
10.3. RIGHTS OF FIRST REFUSAL.
(a) If any Securityholder (a "SELLING SECURITYHOLDER") wishes
to Transfer, directly or indirectly, all or any portion of the Company
Shares then held by it (the "SUBJECT SECURITIES"), the Selling
Securityholder must first offer the Subject Securities to the other
Securityholder(s) (collectively, the "OFFEREES") on the terms set out
in this SECTION 10.3.
(b) The Selling Securityholder shall give notice (a "SALE
NOTICE") to the Offerees, which notice shall set out, in reasonable
detail,
(i) information regarding the identity and financial
strength of the proposed purchaser and the consideration and
any other material terms and conditions of such sale,
(ii) a description of the Rights of First Refusal
(including, in particular, that an Accepting Offeree (as
hereinafter defined) may wish to specify in its Exercise
Notice (as hereinafter defined) whether it wishes to purchase
more than its Proportionate Interest of the Subject
Securities) and
(iii) any other information required by this SECTION
10.3, and shall contain an offer (the "OFFER TO SELL") to sell
all (but not less than all) of the Subject Securities to the
Offerees, pro rata, based on the ratio of the number of
Company Shares owned by such Offeree to the aggregate number
of Company Shares owned by all Offerees, their respective
Proportionate Interests, for the same consideration per
Company Share and otherwise on the same terms (including
covenants, representations, warranties and indemnities) and
conditions as the consideration, terms and conditions relating
to the sale to the proposed purchaser as set out in the Sale
Notice. If the Offer to Sell relates to more than one class
and/or series of Subject Securities, the Offer to Sell shall
require that any Accepting Offeree must agree to purchase a
proportionate amount of each class and/or series of such
Subject Securities. The Offer to Sell shall be irrevocable and
shall be open for acceptance by the Offerees during the period
(the "EXERCISE PERIOD") specified in the Sale Notice which
period shall not end less than 21 days after the date on which
the Sale Notice is given to the Offerees.
(c) If any Offeree wishes to accept the Offer to Sell, it
shall give notice thereof (an "EXERCISE NOTICE") to the Selling
Securityholder on or before the last day of the Exercise Period. The
Exercise Notice shall set out the maximum number of Subject Securities
the Offeree is willing to purchase, which number need not equal the
Selling Securityholder's Proportionate Interest of the Subject
Securities (provided that the Selling Securityholder shall be free to
complete the sale of the Subject Securities to the proposed purchaser
unless all the Subject Securities are purchased pursuant to the
exercise of the Rights of First Refusal). If the aggregate number of
Subject Securities which all Offerees who accept the Offer to Sell
("ACCEPTING SECURITYHOLDER") are willing to purchase equals
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or exceeds the total number or amount of Subject Securities, the
Selling Securityholder shall be bound to sell the Subject Securities to
the Accepting Securityholders, and the Accepting Offerees shall be
bound to purchase the Subject Securities, for the consideration and on
the other terms and conditions specified in the Sale Notice. If the
Accepting Securityholders are willing to purchase more than the total
number or amount of Subject Securities, the Subject Securities shall be
allocated among the Accepting Offerees in proportion to their
respective Proportionate Interests, provided that no Accepting
Securityholder shall be required to purchase from the Selling
Securityholder more than the number or amount of Subject Securities
specified in its Exercise Notice.
(d) If less than all the Subject Securities are taken up by
the Offerees pursuant to the Rights of First Refusal, the Selling
Securityholder may sell all (but not less than all) of the Subject
Securities to the proposed purchaser identified in the Sale Notice for
the consideration and on the other terms and subject to the conditions
specified in the Sale Notice provided (i) such sale is completed within
120 days following the expiry of the Exercise Period, failing which the
Selling Securityholder may not sell the Subject Securities without
again offering the Subject Securities to the other Securityholders in
accordance with this Section, and (ii) each transferee shall agree in
writing to comply with the terms of Articles VIII, IX, X, XIII, XIV, XV
and XVI of this Agreement.
(e) Promptly following the expiry of the Exercise Period, the
Selling Securityholder shall notify the Accepting Offerees whether all
the Subject Securities have been taken up under the Rights of First
Refusal and, if so, the number or amount of Subject Securities that
each Accepting Securityholder is required to purchase.
(f) All offers made by Selling Securityholders to Offerees
pursuant to this SECTION 10.3, and all acceptances of such offers given
by any Accepting Securityholder, shall be irrevocable.
10.4. CO-SALE RIGHTS.
(a) NOTICE OF TRANSFER. If a Securityholder proposes to
Transfer any Company Shares (a "SELLING SECURITYHOLDER") then the
Selling Securityholder shall promptly give written notice (the "OFFER
NOTICE") simultaneously to the Company and to each of the other
Securityholders (the "REMAINING SECURITYHOLDERS") at least thirty (30)
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 Company Shares to be transferred, the nature
of such Transfer, the consideration to be paid, and the name and
address of each prospective purchaser or transferee.
(b) RIGHT OF CO-SALE.
(i) Each Remaining Securityholder shall have the
right, exercisable upon written notice to the Company and the
Selling Securityholder within fifteen (15) days after receipt
of the Offer Notice, to participate in such Transfer of
Company Shares on the same terms and conditions.
-14-
(ii) Each Remaining Securityholder may sell all or
any part of that number of Company Shares equal to the product
obtained by multiplying (A) the aggregate number of Company
Shares covered by the Offer Notice by (B) a fraction the
numerator of which is the number of Company Shares owned by
such Remaining Securityholder at the time of the Transfer and
the denominator of which is the total number of Company Shares
owned by the Selling Securityholder and each Remaining
Securityholder who elects to participate in the Transfer.
(iii) The Selling Securityholder shall use its
commercially reasonable efforts to obtain the agreement of the
prospective transferee(s) to the participation of the
Remaining Securityholders who elect to participate in the
contemplated Transfer, and the Selling Securityholder shall
not Transfer any Company Shares to the prospective
transferee(s) unless (A) the prospective transferee(s) agrees
to allow the participation of the participating Remaining
Securityholders, or (B) the Selling Securityholder agrees to
purchase the number of Company Shares that any participating
Remaining Securityholder would have been entitled to transfer
pursuant to this SECTION 10.4 at the same price and on the
same terms as set forth in the Offer Notice.
(iv) If none of the Remaining Securityholders elect
to participate in the sale of Company Shares subject to the
Offer Notice, the Selling Securityholder 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 Shares 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, provided that each transferee agrees in writing to
comply with the terms of Articles VIII, IX, X, XIII, XIV, XV
and XVI of this Agreement. 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 Shares by the Selling Securityholder, shall again be
subject to the co-sale rights set forth herein and shall
require compliance by the Selling Securityholder with the
procedures described in this SECTION 10.4.
10.5. DRAG-ALONG RIGHTS.
(a) If at any time after the fourth anniversary of the date
hereof Heico or JOHCM proposes to sell Company Shares to a Third Party
Purchaser in a single transaction or a series of related transactions
and such Company Shares constitute at least 50% of the total Company
Shares initially owned by Heico or JOHCM, as applicable, the Transferor
may, by giving written notice (a "DRAG-ALONG NOTICE") to the other
Securityholders at least 10 Business 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 Securityholder to sell the
same percentage of its Company Shares as the percentage of the Company
Shares that the Transferor is proposing to sell are of the total
Company Shares owned by Transferor, at the same time for the same
consideration per share and otherwise on the same terms
-15-
(including covenants, representations, warranties and indemnities) and
conditions, MUTATIS MUTANDIS.
(b) If at anytime the Company, with the approval of the Board,
proposes to merge with another unaffiliated Entity or enter into an
arrangement having an effect substantially similar to the effect of a
transaction described in SECTION 10.5(a), each Securityholder shall
vote all the Company Shares held by it in favor of such merger or
arrangement and 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 Company Shares, a Securityholder shall only be required
to sell Company Shares pursuant to SECTION 10.5(a) or vote Shares in
favor of a transaction pursuant to SECTION 10.5(b) if the consideration
payable to the Securityholders in such sale or transaction is to be
payable in cash or marketable securities (or a combination of cash and
marketable securities).
(d) The representations and warranties to be given in favor of
the Third Party Purchaser by each Securityholder required to sell all
or any part of its Company Shares pursuant to the exercise by the
Transferor of its Drag-Along Rights (excluding representations and
warranties that relate solely to such Securityholder or the securities
to be sold by it) shall be given on the basis of the best knowledge and
belief of the Securityholder and the liability of each such
Securityholder 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 Securityholder 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 Company Shares sold by it represent of the total
number of Company Shares being sold to the Third Party Purchaser by all
parties and the total liability of such Securityholder for all
representations and warranties given by it in favor of the Third Party
Purchaser shall be limited to the stated amount of the consideration
received by it for the Company Shares sold by it.
10.6. EXIT PROVISIONS.
(a) EXIT SALE. Subject to the provisions of this SECTION 10.6,
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 Shares or the other Securityholder's
Company Shares (a "MANDATORY PURCHASE AND SALE").
(b) INITIATION MANDATORY. If a Securityholder (the "INITIATING
SECURITYHOLDER") wishes to initiate a Mandatory Purchase and Sale, the
Initiating Securityholder shall furnish the other Securityholder (the
"RESPONDING SECURITYHOLDER") with a written notice (the "INITIATING
MANDATORY OFFER NOTICE") conforming to all of the requirements of this
SECTION 10.6(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 Securityholder's offer to sell all,
but not less than all, of the Initiating Securityholder's Company
Shares to the Responding Securityholder, for an aggregate purchase
price (the
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"MANDATORY AGGREGATE PURCHASE PRICE") and upon the other material terms
(the "OTHER MANDATORY MATERIAL TERMS") therein set forth, and (ii)
provide the Responding Securityholder 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 Securityholder's
Company Shares or (y) sell to the Initiating Securityholder all, but
not less than all, of the Responding Securityholder's Company Shares,
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 10.6(b)(iv)
below;
(ii) the Securityholder who is purchasing the
Securities of the other Securityholder (the "Purchaser") shall
be obligated to cause any and all outstanding loan guarantees
of the selling Securityholder (the "Seller") to be
extinguished at the Designated Closing Date;
(iii) the Purchaser shall be obligated to cause any
and all outstanding loans by 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, which date 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 Securityholder's
receipt of the Initiating Mandatory Offer Notice, the Responding
Securityholder shall, on or before the last day of the Response Period,
furnish the Initiating Securityholder with the Responding
Securityholder's written election (the "RESPONSE ELECTION") by which
the Responding Securityholder shall advise the Initiating
Securityholder of whether the Responding Securityholder has elected to
(x) purchase all, but not less than all, of the Initiating
Securityholder's Company Shares from the Initiating Securityholder or
(y) sell all, but not less than all, of the Responding Securityholder's
Company Shares to the Initiating Securityholders, in either case, for
the Mandatory Aggregate Purchase Price and upon the Other Mandatory
Material Terms set forth in the Initiating Mandatory Offer Notice.
(d) FAILURE OF RESPONDING SECURITYHOLDER TO RESPOND. If the
Responding Securityholder fails to deliver a Response Election to the
Initiating Securityholder on or before the last day of the Response
Period, the Responding Securityholder shall be deemed to have
irrevocably elected to sell all, but not less than all, of the
Responding Securityholder's Company Shares to the Initiating
Securityholder on the terms set forth above, and the provisions of
SECTION 10.6 shall apply in all other respects.
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(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 Company Shares owned by any other Securityholder for
the per share price reflected in the Mandatory Aggregate Offer Price
and upon the Other Mandatory Material Terms.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1. REPRESENTATIONS AND WARRANTIES OF SECURITYHOLDERS. Each
Securityholder represents and warrants that as of the date hereof:
(i) such Securityholder is the record owner of the
number and classes of Equity Securities of WorldPort as set
forth opposite its name on the Securityholders Schedule
attached hereto as Exhibit E (collectively, the "SECURITIES");
(ii) this Agreement has been duly authorized,
executed, and delivered by such Securityholder and constitutes
the valid and binding obligation of such Securityholder,
enforceable in accordance with its terms; and
(iii) such Securityholder 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. No holder of Securities 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.
(iv) such Securityholder is not an "Interested
Stockholder" with respect to WorldPort, within the meaning of Section 203 of the
Delaware General Corporation Law, unless prior to the transaction as a result of
which it became, the Board of Directors of WorldPort approved such transaction.
ARTICLE XII
COVENANTS OF THE PARTIES
The parties hereto agree as set forth below.
12.1. REASONABLE BEST EFFORTS. Subject to the terms and conditions
hereof, each party will use reasonable best efforts to take, or cause to be
taken, all actions, to file, or caused to be filed, all documents, and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective the Transactions as promptly as practicable. Each party shall
have the right to review in advance, and to the extent reasonably practicable
each will consult the other on, all the information relating to the other and
its subsidiaries, that appear in any filing made with, or written materials
submitted to, any third party or any Governmental Entity in connection with the
Transactions; provided, however, that with respect to documents that one
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party reasonably believes should not be disclosed to the other party, such party
shall instead furnish those documents to counsel for the other party pursuant to
a mutually satisfactory confidentiality agreement. In exercising the foregoing
right, each of the Company, Heico and JOHCM shall act reasonably and as promptly
as reasonably practicable.
12.2. COOPERATION IN RECEIPT OF CONSENTS. Heico and JOHCM shall
cooperate with one another in (i) determining whether any other action by or in
respect of, or filing with, any Governmental Entity is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in each case, in connection with the consummation of the
Transactions, and (ii) seeking any consents, approvals or waivers, taking any
actions, or making any filings, furnishing information required in connection
therewith and seeking promptly to obtain any consents, approvals or waivers.
Each party shall permit the other party to review any communication given by it
to, and consult with each other in advance of any meeting or conference with,
any Governmental Entity or, in connection with any proceeding by a private
party, with any other Person, and to the extent permitted by the applicable
Governmental Entity or other Person, give the other party the opportunity to
attend and participate in the meetings and conferences, in each case in
connection with the completion of the transactions.
12.3. PUBLIC ANNOUNCEMENTS. The parties shall consult with each other
before issuing any press release or making any public statement with respect to
this Agreement and the transactions contemplated hereby and, except as may be
required by applicable law or any listing agreement with any national securities
exchange, will not issue any such press release or make any public statement
prior to such consultation.
12.4. FURTHER ASSURANCES. At and after the Effective Time, the officers
and directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of the Company, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on behalf of the
Company, any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest in,
to and under any of the rights, properties or assets of the Company acquired or
to be acquired by the Surviving Corporation as a result of, or in connection
with, the Transaction.
12.5. CONFIDENTIAL INFORMATION. The parties hereto acknowledge that
Company and each Securityholder have received and will receive access to
information, processes, formulas, methods of doing business and similar items in
connection with this Agreement and otherwise which may be considered
confidential, proprietary or trade secrets, including customer lists and
information and supplier lists and information of the other Securityholder (the
"CONFIDENTIAL INFORMATION"). Each Securityholder agrees to protect, and cause
its Affiliates to protect, the Confidential Information to the same extent it
protects its or their own confidential and proprietary information. Neither
Company nor any Securityholder or their Affiliates will use or disclose the
Confidential Information of the other Securityholder for any purpose other than
in connection with the business of Company or to the extent reasonably necessary
to complete the Transactions. The Confidential Information shall not be deemed
to include any information which, if the recipient can show:
(a) it is or becomes (through no fault of the recipient)
public knowledge, or
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(b) it came lawfully into the recipient's possession otherwise
than directly or indirectly from the owner without restriction on its
subsequent disclosure or use by the recipient, or
(c) it was previously known to the recipient.
No party shall be deemed to have breached this SECTION 12.5 in the
event it is required to disclose any Confidential Information by law,
regulation, securities exchange or association requirement or by a valid and
effective subpoena issued by a court of competent jurisdiction (in which case
the party so required to disclose Confidential Information of the other party
shall give written notice to and consult with such other party prior to any such
disclosure and, if practicable, take reasonable efforts to assure that
confidential treatment will be accorded to such disclosure).
(i) The Securityholders agree that any Confidential
Information acquired by Company as its proprietary information
shall be accorded the same protection as the Securityholders'
own Confidential Information by the Securityholders and their
Affiliates.
(ii) Each Securityholder agrees that any breach of
this SECTION 12.5 will result in irreparable damage to Company
and the other Securityholder for which the nonbreaching
parties will have no adequate remedy at law and, therefore, if
such a breach should occur, the breaching party consents to
any temporary or permanent injunction or decree of specific
performance by any court of competent jurisdiction in favor of
enjoining any such breach, without prejudice to any other
right or remedy to which the non-breaching parties shall be
entitled (and without requirement of any bond or similar
security). Such remedies shall not be deemed to be the
exclusive remedies for a breach of this SECTION 12.5, but
shall be in addition to all other remedies available in law
and in equity.
(iii) Each Securityholder agrees that in the case of
dissolution of Company each Securityholder will promptly
deliver to the other Securityholder all Confidential
Information of the other Securityholder (and all copies and
extracts thereof) furnished to it by or on behalf of the other
Securityholder pursuant hereto. In such event, all other
information prepared by a Securityholder using or otherwise
relating to the Confidential Information of the other
Securityholder shall be destroyed, and no copy thereof shall
be retained.
12.6. STANDSTILL PROVISIONS. While this Agreement is in effect, each
Securityholder agrees that except as contemplated by this Agreement, such
Securityholder 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 Exchange Act Rule 14a-1) relating to any
securities of the Company or WorldPort to or with any Third Party; (b) deposit
any Company Shares or WorldPort Common Stock in a voting trust or subject any
Company Shares to any voting agreement or arrangement that 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 WorldPort (or any securities the ownership of which would
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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
WorldPort 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 or WorldPort, their Subsidiaries or any of their respective securities
or assets; (g) seek the removal of any directors or a change in the composition
or size of the board of directors of the Company or WorldPort; (h) in any way
participate in a call for any special meeting of the stockholders of the Company
or WorldPort; or (i) assist, advise or encourage any person with respect to, or
seek to do, any of the foregoing. In the event that Heico determines to abandon
the transaction, or that Hambro determines to abandon the transaction following
a third party offer for the acquisition of all of the outstanding shares of
WorldPort Common Stock, it must so notify the other in writing and this
Agreement shall then terminate, other than as to obligations incurred hereunder
prior to such termination.
12.7. FILING OF SCHEDULE 13D OR 13G.
(a) Each Securityholder shall file an amendment to its report
of beneficial ownership on Schedule 13D or 13G with respect to the
WorldPort Common Stock beneficially owned by him (for this purpose as
determined by Exchange Act Rule 13d-3 and Exchange Act Rule 13d-5),
containing the information required by the Exchange Act. Each
Securityholder shall cooperate fully with the other Securityholder to
achieve the timely filing of any such report and any amendments thereto
as may be required, and such Securityholder agrees that any information
concerning such Securityholder which such Securityholder furnishes in
connection with the preparation and filing of such report will be
complete and accurate.
(b) By his signature hereto, each Securityholder appoints the
Company, with full power of substitution and resubstitution, his true
and lawful attorney-in-fact to execute such reports and any and all
amendments thereto and to file such reports with all exhibits thereto
and other documents in connection therewith with the Securities and
Exchange Commission, granting to such attorneys, and each of them, full
power and authority to do and perform each and every act and thing
whatsoever that such attorney or attorneys may deem necessary,
advisable or appropriate to carry out fully the intent of this SECTION
12.6 as such Securityholder might or could do personally, hereby
ratifying and confirming all acts and things that such attorney or
attorneys may do or cause to be done by virtue of this power of
attorney. Each Securityholder hereby further designates such attorneys
as such Securityholder's agents authorized to receive notices and
communications with respect to such reports and any amendments thereto.
It is understood and agreed by each such Securityholder that this
appointment, empowerment and authorization may be exercised by the
aforementioned persons for the period beginning on the date hereof and
ending on the date such Securityholder is no longer subject to the
provisions of this Agreement (and shall extend thereafter for such time
as is required to reflect that such Securityholder is no longer a party
to this Agreement). The Company shall not file a
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Schedule 13D or 13G, or any amendment thereto without the prior consent
of both Securityholders, such consent not to be unreasonably withheld
or delayed.
ARTICLE XIII
LEGEND
Each certificate evidencing the Company Shares and each certificate
issued in exchange for or upon the transfer of any Company Shares (if such
Company Shares 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 SECURITYHOLDERS AGREEMENT DATED AS OF ____________, 2002
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND
CERTAIN OTHER PERSONS NAMED THEREIN. A COPY OF SUCH
SECURITYHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY
THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
By his, her, or its acceptance of a certificate evidencing Company Shares, each
Securityholder agrees that at no time shall any of the Company Shares be
transferred in the absence of (i) an effective registration statement under the
Securities Act and applicable state securities laws, or (ii) other evidence
(which may include an opinion of counsel) satisfactory to the Company and its
counsel, to the effect that the proposed transfer at such time will not violate
the registration or qualification requirements of the Securities Act or
applicable state securities laws.
ARTICLE XIV
EVENTS OF DEFAULT
An "Event of Default" means the occurrence of any one of the following:
(a) a material breach by either Securityholder 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 Securityholder.
However, if a Securityholder 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 either Securityholder to pay its debts in
the normal course of business other than any debt which is considered
DE MINIMIS in relation to the turnover and operations of the
Securityholder;
(c) either Securityholder ceasing or threatening to cease
wholly or substantially to carry on its business (either voluntarily or
through court order);
(d) if there is a change in control of either one of the
Securityholders;
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(e) either of the Securityholders:
A) applies for or consents to any
liquidation, reorganization or other relief under any
bankruptcy, insolvency or other similar laws which
results in the appointment of a trustee, receiver,
custodian, contractor or other similar official; or
B) becomes the subject of a proceeding
brought by a third party seeking to put the
Securityholder into liquidation, bankruptcy or
insolvency or to appoint a trustee, receiver,
liquidator, custodian or other similar official and
(aa) such proceedings are not contested in good faith
by the Securityholder or (bb) such proceedings are
not dismissed by the courts within 180 days of the
commencement of the proceedings (provided, however,
that an Event of Default shall have occurred if at
any time such Securityholder's motion to dismiss is
not upheld by a relevant court or authority);
(i) When an Event of Default is deemed to have
occurred, then the nondefaulting Securityholder shall have, in
addition to any other available remedies at law or in equity,
the right to terminate this Agreement.
ARTICLE XV
ARBITRATION; GOVERNING LAW
15.1. 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.
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
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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 XVI
INDEMNIFICATION
(a) Each Securityholder hereby agrees to indemnify and hold
harmless the other Securityholders 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 this Agreement by the indemnifying
Securityholder;
(ii) Breach of any covenant, obligation or agreement
of the indemnifying Securityholder to be performed, fulfilled,
or complied with pursuant to this Agreement;
(iii) Any claims arising out of or resulting from,
connected to or in any way caused by any action or inaction,
directly or indirectly of the indemnifying Securityholder or
of its officers, directors, employees, shareholders, or
representatives;
(iv) Any action by the indemnifying Securityholder or
any of its officers, directors, employees, shareholder, or
representatives whose services have not been specifically
contracted for by the Company, which action has not been
authorized by the Board or which binds the Company beyond its
business purposes as set forth in this Agreement.
(b) The indemnified Securityholder will promptly give notice
in writing to the indemnifying Securityholder 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 Securityholder seeks
indemnification.
ARTICLE XVII
DEFINITIONS
"Accepting Securityholder" shall have the meaning set forth in SECTION
10.3(c).
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"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:
A) ownership of greater than 50% of the
issued and outstanding voting securities of an
entity;
B) power to control the composition of the
board of directors of an entity;
C) ability to direct management of the
entity; or
D) ownership of any controlling interest in
the entity,
"Board of Directors" prior to the Effective Time shall mean the board
of directors of the Company and following the Effective Time shall mean the
board of directors of the Surviving Corporation.
"Business Day" shall mean any day excluding Saturday and Sunday and any
day which in Chicago, Illinois constitutes a legal holiday or a day on which
banking institutions are authorized or required by law to close.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the W.C.I. Acquisition Corp.
"Certificate" shall have the meaning set forth in SECTION 5.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" prior to the Effective Time shall mean W.C.I. Acquisition
Corp, a Delaware corporation and after the Effective Time shall mean the
Surviving Corporation.
"Company Shares" prior to the Effective Time shall mean the Common
Stock of the Company together with any Equity Securities into which the Common
Stock are changed or converted and following the Effective Time, shall mean the
shares of stock of the Surviving Corporation and any Equity Securities.
"Confidential Information" shall have the meaning set forth in SECTION
12.8 hereof.
"DGCL" means the Delaware General Corporation Law, as amended.
"Dissenting WorldPort Stock" shall mean the holders of WorldPort Common
Stock who have properly exercised appraisal rights with respect thereto in
accordance with Section 262 of the DGCL.
"Effective Time" means the date that the Merger is completed in
accordance with the terms of this Agreement.
"Equity Security" of a Person means any
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(i) 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
(ii) 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.
"Exchange Fund" shall have the meaning set forth in SECTION 5.3(a).
"Governmental Entity" means any federal, state or local governmental
authority, any transgovernmental authority or any court administrative or
regulatory agency or commissioner or other governmental authority or agency,
domestic or foreign.
"JOHCM Directors" shall have the meaning set forth in SECTION 8.L
hereof.
"JOHCM Shares" means the shares of WorldPort Common Stock owned by
JOHCM and listed on SCHEDULE E.
"Heico Directors" shall have the meaning set forth in SECTION 8.1
hereof.
"Heico Shares" means the shares of WorldPort Common Stock owned by
Heico or the Heico Interests (or obtainable upon exercise of warrants owned by
Heico). The WorldPort Common Stock and warrants owned by Heico and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ on the date hereof is listed on SCHEDULE E.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended.
"Indebtedness" means at a particular time, without duplication, (i) any
indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the ordinary course of business which
are not more than six months past due), (iv) any commitment by which a Person
assures a creditor against loss (including contingent reimbursement obligations
with respect to letters of credit), (v) any indebtedness guaranteed in any
manner by a Person (including guarantees in the form of an agreement to
repurchase or reimburse), (vi) any obligations under capitalized leases with
respect to which a Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or with respect to which obligations a Person assures a
creditor against loss and (vii) any indebtedness secured by a lien on a Person's
assets.
"Loan" shall have the meaning set forth in SECTION 2.3.
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"Material Adverse Effect" means a change or effect that is materially
adverse to the business, operations, assets, liabilities or financial condition
of WorldPort and its subsidiaries, taken as a whole or the Company, as
applicable in a particular case.
"Merger" shall mean the merger of Company and WorldPort after the
consummation of the Offer pursuant to Article IV of this Agreement and Section
251 or 253 of the DGCL.
"Merger Closing" shall mean the closing of the Merger.
"Merger Consideration" shall have the meaning set forth in SECTION 5.2.
"Minimum Condition" shall have the meaning set forth in EXHIBIT D.
"New Issuance" shall have the meaning set forth in SECTION 10.2(a).
"Offer Closing" shall mean the completion of the Offer.
"Offer Documents" shall have the meaning set forth in SECTION 3.2.
"Offer to Sell" shall have the meaning set forth in SECTION 10.3.
"Offer to Purchase" shall have the meaning set forth in SECTION 3.2.
"Offerees" shall have the meaning set forth in SECTION 10.3.
"Paying Agent" shall mean a commercial bank or trust company acting as
paying agent hereunder for payment on the Merger Consideration.
"Per Share Amount" shall mean the per share price paid for shares
purchased pursuant to the Offer and shall be $0.50 per share of WorldPort Common
Stock unless a different price is approved by the Board of Directors pursuant to
the terms of this Agreement.
"Person" means an individual, a partnership, a company, an association,
a limited liability company, a joint stock company, a trust, a joint venture, an
unincorporated organization, or any other entity (including, without limitation,
any governmental entity or any department, agency, or political subdivision
thereof).
"Sale Notice" shall have the meaning set forth in SECTION 10.3.
"Schedule TO" shall mean a Tender Offer Statement and a Rule 13e-3
Transaction Statement on Schedule TO, including all exhibits thereto (together
with all amendments and supplements thereto).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securityholders" shall mean Heico, Heico Interests and JOHCM and any
other holder of Company Shares that may become a party to this Agreement.
-27-
"Selling Securityholder" shall have the meaning set forth in SECTION
10.3(a).
"Subject Securities" shall have the meaning set forth in SECTION
10.3(a).
"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 Company Subsidiary.
"Success Fee" shall have the meaning set forth in ARTICLE VII.
"Surviving Corporations" shall have the meaning set forth in Section
4.1
"Third Party" shall mean any Person other than Heico, the Heico
Interests or JOHCM or any Affiliate of JOHCM.
"Transfer" shall have the meaning set forth in SECTION 10.1(a).
"WorldPort Common Stock" shall mean the issued and outstanding shares
of common stock of WorldPort.
"WorldPort Stock Plans" shall have the meaning set forth in Section
5.3(d).
ARTICLE XVIII
TERM; TERMINATION
18.1. 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 Company; (b) any other lawful
or earlier termination pursuant to the terms of this Agreement; or (c) all of
the Company Shares being held by one Person.
18.2. TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of Heico and JOHCM; or
(b) by Heico or JOHCM:
(i) if either (x) the Offer Closing shall not have
occurred on or before March 31, 2003, or (y) the Effective
Time shall not have occurred on or before April 30, 2003
(provided that the right to terminate this Agreement pursuant
to
-28-
this clause (i) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has
been the cause of or resulted in the failure of consummation
of the Offer Closing on or before March 31, 2003 or the
Effective Time to occur on or before April 30, 2003); or
(ii) if there shall be any Law that makes
consummation of the Offer or the Merger illegal or prohibited,
or if any court of competent jurisdiction in the United States
shall have issued an order, judgment, decree or ruling, or
taken any other action restraining, enjoining or otherwise
prohibiting the Merger and such order, judgment, decree,
ruling or other action shall have become final and
non-appealable.
18.3. EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
ARTICLE XVIII, all obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this ARTICLES XVI, XVIII, and VI, and
there shall be no liability on the part of the Company, either Securityholder or
their respective officers or directors, except for any breach of a party's
obligations under such provisions. Notwithstanding the foregoing, no party
hereto shall be relieved from liability for any breach of this Agreement.
18.4. AMENDMENT. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the board of
directors of each of the parties hereto. This Agreement may not be amended
except by an instrument in writing signed on behalf of all of the parties.
18.5. EXTENSION; WAIVER. At any time prior to the Effective Time, any
party hereto, by action taken by its board of directors, may, to the extent
legally allowed, (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 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 XIX
MISCELLANEOUS
19.1. THIS AGREEMENT NOT TO CONSTITUTE A PARTNERSHIP. None of the
provisions of this Agreement shall be deemed to constitute a partnership between
the Securityholders and neither of them shall have any authority to bind the
other in any manner.
19.2. ASSIGNMENT. Neither of the Securityholders 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 Securityholder,
provided, that a Securityholder may assign its obligations under this Agreement
to a permitted transferee to the extent permitted or required by Article X
hereof.
19.3. 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
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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 19.3
hereof):
(a) if to HEICO: (b) if to JOHCM:
The Heico Companies, L.L.C. J. Hambro Capital Management Limited
5600 Three First National Plaza ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ London
England
with a copy to: with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇ Ropes & ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19.4. 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.
19.5. 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
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.
19.6. BINDING NATURE. 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.
19.7. 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
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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.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇ ▇ ▇▇▇▇▇▇ CAPITAL MANAGEMENT LIMITED
By /s/ C.H.B ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Director
W.C.I. ACQUISITION CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNATURE PAGE TO
JOINT VENTURE AND SECURITYHOLDERS AGREEMENT
EXHIBIT A
CERTIFICATE OF INCORPORATION OF W.C.I.
ACQUISITION CORP. COMPANY
Please see attached.
A-1
EXHIBIT B
BY-LAWS OF W.C.I. ACQUISITION CORP.
Please see attached.
B-1
EXHIBIT C
INITIAL BOARD OF DIRECTORS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
D-1
EXHIBIT D
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Agreement, Company
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to Company's obligation to pay for or return tendered shares after the
termination or withdrawal of the Offer) to pay for any shares of WorldPort
Common Stock tendered pursuant to the Offer not theretofore accepted for payment
or paid for, and may terminate or amend the Offer if at any time on or after the
date of this Agreement and before the acceptance of such WorldPort Common Stock
for payment or the payment therefor, any of the following conditions exist or
shall occur and remain in effect (other than as a result of any action or
inaction of Company that constitutes a breach of this Agreement):
(a) there shall have been instituted, pending or
threatened any litigation by the Government of the United
States or by any agency or instrumentality thereof (i)
challenging the acquisition by Company, Heico or JOHCM of
shares of WorldPort Common Stock pursuant to the Offer,
seeking to restrain or prohibit the making or consummation of
the Offer or the Merger, (ii) seeking to make the purchase of
or payment for some or all of the shares of WorldPort Common
Stock pursuant to the Offer or the Merger illegal, (iii) that
would be reasonably likely to require divestiture by the
Company, Heico or JOHCM of any WorldPort Common Stock, (iv)
that would be reasonably likely to impose material limitations
on the ability of the Company, Heico or JOHCM to exercise full
rights of ownership of the shares of WorldPort Common Stock
purchased by it, including, without limitation, the right to
vote the shares purchased by it on all matters properly
presented to the stockholders of WorldPort, (v) that would be
reasonably likely to make materially more costly (A) the
making of the Offer, (B) the acceptance for payment of, or
payment for, some or all of the WorldPort Common Stock
pursuant to the Offer, (C) the purchase of WorldPort Common
Stock pursuant to the Offer or (D) the consummation of the
Merger, or (vi) that would otherwise have a Material Adverse
Effect on WorldPort; or
(b) any applicable waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act") has not expired or been terminated; or
(c) there shall have been a subsequent development
(including any settlement or final settlement offer from
counsel for the plaintiffs) in any action or proceeding
pending on December 15, 2002 relating to the Company or any of
its subsidiaries or there shall have been instituted any new
action or proceeding subsequent to December 15, 2002 that
would (i) have a Material Adverse Effect on Company or
WorldPort and its subsidiaries taken as a whole, or (ii) make
materially more costly (A) the
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making of the Offer, (B) the acceptance for payment of, or
payment for, some or all of the shares pursuant to the Offer,
(C) the purchase of shares pursuant to the Offer or (D) the
consummation of the Merger, or (iii) would materially and
adversely affect the results of operations of WorldPort; or
(d) there shall have been any action taken, or any
Law promulgated, enacted, entered, enforced or deemed
applicable to the Offer or the Merger by any Governmental
Entity that would be reasonably likely to result in any of the
consequences referred to in subsection (a) above; or
(e) this Agreement shall have been terminated in
accordance with its terms; or
(f) there shall not have been validly tendered and
not withdrawn prior to the expiration of the Offer, that
number of shares of WorldPort Common Stock that represents
more than 90% of the then outstanding shares of Common Stock
(when taken together with WorldPort Common Stock beneficially
owned by Company, Heico and JOHCM) (the "MINIMUM CONDITION");
or
(g) there shall have been a Material Adverse Effect
with respect to WorldPort, or there shall have been a change
or event which could reasonably be expected to have a Material
Adverse Effect on WorldPort; or
(h) WorldPort fails to provide and fund the Loan.
The foregoing conditions are for the sole benefit of the Company and
may, except as provided in SECTION 3.2(b) of the Agreement, be waived by the
Company, in whole or in part, at any time and from time to time, in the sole
discretion of the Company. The failure by Company at any time to exercise any of
the foregoing rights will not be deemed a waiver of any right, the waiver of
such right with respect to any particular facts or circumstances shall not be
deemed a waiver with respect to any other facts or circumstances, and each right
will be deemed an ongoing right which may be asserted at any time and from time
to time.
Should the Offer be terminated pursuant to the foregoing provisions,
all tendered shares of WorldPort Common Stock not theretofore accepted for
payment shall promptly be returned by the depositary to the tendering
stockholders.
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EXHIBIT E
OWNERSHIP OF WORLDPORT STOCK
The Heico Company - 6,077,707 shares of Common Stock
- Warrants to acquire 679,451 shares of Common Stock
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - 1,764,120 shares of Common Stock