REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), is made and
entered into as of this 31st day of December, 1998 (the "Effective Time"), by
and between WorldPort Communications, Inc., a Delaware corporation (the
"Company") and The Heico Companies, LLC, a Delaware limited liability company
(the "Stockholder").
WHEREAS, simultaneously with the execution of this Agreement, the
Stockholder has acquired from the Company, shares of the Company's Series C
Convertible Preferred Stock, par value $0.0001 per share (the "Preferred
Stock"); and
WHEREAS, it was a condition to the Stockholder's purchases of the shares
of Preferred Stock that the parties enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. Definitions. As used in this Agreement:
"Commission" means the Securities and Exchange Commission of the United
States or any similar agency then having jurisdiction to enforce the Securities
Act.
"Common Stock" means the common stock, par value $.0001 per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision thereof and shall
include any successor (by merger or otherwise) of such entity.
"Public Offering" means any offering by the Company of its equity
securities to the public pursuant to an effective registration statement (other
than a registration statement on Form S-4 or S-8) under the Securities Act or
any comparable document under any comparable federal statute then in effect.
"Purchase Agreement" means the Series C Preferred Stock Purchase
Agreement dated of even date herewith between the Company and the Stockholder.
"Registrable Shares" means at any time any shares of Common Stock then
outstanding which were issued directly or indirectly, or are issuable upon, the
conversion or exercise of the Preferred Stock or any other securities issued as
a dividend or other distribution with respect to or in replacement of any shares
of Preferred Stock; provided, however, that Registrable Shares shall not include
any shares for which a registration statement covering such Registrable Shares
has been declared effective by the Commission under the Securities Act or which
have been or could be sold by a holder to the public pursuant to Rule 144 (k) of
the Commission under the Securities Act and such holder is not an affiliate
under Rule 144. For purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Shares whenever such Person has the then-existing right to
acquire such Registrable Shares, whether or not such acquisition actually has
been effected.
"Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registration.
2.1. Requests for Registration. Commencing twelve (12) months following
the date hereof and subject to the terms of this Agreement, the holders of
Registrable Shares representing at least 3% of the then-outstanding Common Stock
may, at any time, request one registration (the "First Demand") under the
Securities Act of all or part (but not less than such 3%) of their Registrable
Shares on Form S-1 or any similar or replacement long-form registration
statement then available for the registration of the Registrable Shares or
transactions therein or, if available, then at the option of the Company, on
Form S-2 or S-3 or any similar or replacement short-form registration statement
then available for the registration of the Registrable Shares or transactions
therein. Commencing twelve months following the effectiveness of any
registration statement filed with the Commission pursuant to a First Demand and
subject to the terms of this Agreement, the holders of Registrable Shares
representing at least 3% of the then-outstanding Common Stock may, at any time,
request one additional registration under the Securities Act of all or part of
their Registrable Shares on Form S-1 or any similar long-form registration or,
if available, then at the option of the Company, on Form S-2 or S-3 or any
similar or replacement short-form registration statement then available for the
registration of the Registrable Shares or transactions therein.
Within fifteen (15) days after receipt of any request pursuant to
this Section 2.1, the Company will give written notice of such request to all
other holders of Registrable Shares and, subject to Section 2.2, will include in
such registration all Registrable Shares with respect to which the Company has
received written requests for inclusion within fifteen (15) days after delivery
of the Company's notice. All registrations requested pursuant to this Section 2
are referred to herein as "Demand Registrations." For the purposes of exercising
the demand rights hereunder, the holders of Registrable Shares shall not be
required to convert their shares of Preferred Stock included in a Demand
Registration until the effective date of the registration statement for such
Demand Registration. A registration shall not constitute a Demand Registration
until it has become effective and remains continuously effective for not less
than 90 days or until all of the shares registered thereunder have been sold,
whichever period is shorter.
2.2. Priority. If a Demand Registration is an underwritten Public
Offering and the managing underwriters advise the Company in writing that in
their opinion the inclusion of the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the Company, the Company
will include in such registration, prior to the inclusion of any securities
which are not Registrable Shares, the number of Registrable Shares requested to
be included which in the opinion of such underwriters can be sold without
creating such a risk, pro rata among the respective holders of Registrable
Shares on the basis of the number of Registrable Shares owned by such holders
making the Demand Registration, with further successive pro rata allocations
among the holders of Registrable Shares if any such holder of Registrable Shares
has requested the registration of less than all such Registrable Shares it is
entitled to register.
2.3. Restrictions. The Company may postpone for up to ninety (90) days
the filing or the effectiveness statement for a Demand Registration if the Board
of Directors of the Company reasonably and in good faith determines that such
filing would require a disadvantageous disclosure of a material fact or would
have an adverse effect on any plan by the Company to engage in any other public
or private offering of securities, acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or other
significant transaction.
2.4. Selection of Underwriters. The Company, with the consent of the
party requesting a Demand Registration of Registrable Shares pursuant to Section
2.1 of this Agreement, which consent may not be unreasonably withheld, shall
select and obtain an investment banking firm to act as the managing underwriter
of the offering (the "Approved Underwriter").
2.5. Holders of Registrable Shares. A Person is deemed to be a holder of
Registrable Shares whenever such Person owns of record Registrable Shares, or
holds a security convertible into Registrable Shares, whether or not such
conversion has actually been effected. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the
same Registrable Shares, the Company may act upon the basis of the instructions,
notice or election received from the registered owner of such Registrable
Shares. Registrable Shares issuable upon exercise of an option, warrant or other
right or upon conversion of another security shall be deemed outstanding for the
purposes of this Agreement.
3. Piggyback Registration.
3.1. Right to Piggyback. Whenever the Company proposes to register any
of its Common Stock under the Securities Act (other than pursuant to a Demand
Registration hereunder or on Form S-8 or S-4 or any successor form thereto) and
the registration form to be used may be used for the registration of any
Registrable Shares (a "Piggyback Registration"), the Company will give prompt
written notice (and in no event less than 10 business days prior to the
anticipated filing date) to all holders of the Registrable Shares of its
intention to effect such a registration will include in such registration all
Registrable Shares (in accordance with the priorities set forth in Section 3.2
and 3.3 below) with respect to which the Company has received written requests
for inclusion within fifteen (15) days after the delivery of the Company's
notice.
3.2. Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities required to be included in such registration exceeds the number which
can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, any securities
with registration rights having priority over those of the Registrable Shares as
to which the holders have requested registration, (iii) third, the Registrable
Shares requested to be included in such registration and other securities as to
which the holders have similar registration rights and have requested similar
registration, pro rata among the holders of such Registrable Shares and other
securities on the basis of the number of shares owned by each such holder, and
(iv) fourth, other securities requested to be included in such registration.
3.3. Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration, (ii) second, any securities with registration rights having
priority over those of the Registrable Shares as to which the holders have
requested registration, (iii) third, the Registrable Shares requested to be
included in such registration and other securities as to which the holders have
similar registration rights and have requested similar registration, pro rata
among the holders of such Registrable Shares and other securities on the basis
of the number of shares owned by each such holder, and (iv) fourth, other
securities requested to be included in such registration.
3.4. Selection of Underwriters. The Company shall have the right to
select the investment banker and manager to administer an offering pursuant to a
Piggyback Registration.
4. Holdback Agreements. (a) Each holder of Registrable Shares agrees not
to effect any public sale or distribution of equity securities of the Company,
or any securities convertible into or exchangeable or exercisable for such
securities or make any demand for registration under Sections 2 or 3 hereof,
during the seven (7) days prior to the expected effective date, and during the
shorter of the 180 day period following the effective date or the expiration of
any lock-up period required by the underwriters of the offering of any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Shares are included (except as part of such underwritten
registration), unless the underwriters managing the registered Public Offering
otherwise agree. Nothing herein shall prevent a holder of Registrable Shares
that is a partnership from making a distribution of Registrable Shares to its
partners, a holder of Registrable Shares that is a trust from making a
distribution of Registrable Shares to its beneficiaries or a holder of
Registrable Shares that is a corporation from making a distribution of
Registrable Shares to its stockholders, provided, however, that the transferees
of such Registrable Shares agree to be bound by the provisions of this Agreement
to the extent the transferor would be so bound.
(b) The Company agrees not to effect any public sale or
distribution of any of its securities, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to
registrations on Form S-4 or S-8 or any successor or other forms not available
for registering capital stock for sale to the public), during the period
beginning on the filing of any registration statement in which the holders of
Registrable Shares are participating and ending on the earlier of (i) 180 days
after the effective date of any such registration statement and (ii) the
expiration of any lock-up period required by the underwriters, if any, of such
offering.
5. Registration Procedures. Whenever the holders of Registrable Shares
have requested that any Registrable Shares be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
sale of such Registrable Shares in accordance with the intended method of
disposition thereof reasonably promptly and, pursuant thereto, the Company will
reasonably promptly:
(a) prepare and file with the Commission, with reasonable promptness and
in any event not later than 60 days after the Company's receipt of such request,
a registration statement with respect to such Registrable Shares and use all
reasonable efforts to cause such registration statement to become effective;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus(es) used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than one year and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement provided, that the Company shall (A) before filing a registration
statement or prospectus or any amendments or supplements thereto, provide
counsel selected by the holders of a majority of the Registrable Shares being
registered in such registration ("Holders' Counsel"), if any, with a reasonable
opportunity to participate in the preparation of such registration statement and
each prospectus included therein (and each amendment or supplement thereto) to
be filed with the Commission, (B) keep the Sellers of Registrable Shares advised
as to the initiation and progress of any registration under this Agreement, and
(C) notify the Holders' Counsel and each seller of Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of any stop order
suspending the effectiveness of such registration statement issued or threatened
by the Commission and promptly take all reasonable action required to prevent
the issuance of such stop order or to obtain its withdrawal if such stop order
shall be issued;
(c) furnish to each seller of Registrable Shares such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus(es) included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Shares owned
by such seller;
(d) use all reasonable efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as any
seller of Registrable Shares reasonably requests, and to continue such
qualification in effect in such jurisdiction for the shorter of one year or for
as long as is permissible pursuant to the laws of such jurisdiction, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Shares owned by such seller;
(e) notify each seller of Registrable Shares at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and furnish to
each seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, after delivery to the purchasers of
such Registrable Shares, such prospectus shall not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made;
(f) enter into and perform customary agreements (including an
underwriting agreement in customary form) and take such other actions (including
officers certificates and other customary closing documents) as are reasonably
required in order to effect the disposition of such Registrable Shares;
(g) if such sale is pursuant to an underwritten offering, use all
reasonable efforts to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the managing
underwriters reasonably request;
(h) furnish, at the request of any seller of Registrable Shares on the
date such securities are delivered to the underwriters for sale pursuant to such
registration or, if such securities are not being sold through underwriters, on
the date the registration statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if any,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as such underwriters may reasonably request and are
customarily included in such opinions;
(i) use its best efforts to list the Registrable Shares on each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed;
(j) make available for inspection by any seller of Registrable Shares,
any underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all reasonably requested financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) cooperate with each seller of Registrable Shares and each
underwriter participating in the disposition of such Registrable Shares and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc.; and
(l) use all reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Shares contemplated hereby and
cooperate with the holders of such Registrable Shares to effect the disposition
of such Registrable Shares pursuant thereto.
6. Registration Expenses.
6.1. The Company's Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement (other than a proportional
share of underwriting discounts and commissions), including, but not limited to,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants and other Persons retained by the Company will be
borne by the Company, regardless of whether such registration statement is
declared effective.
6.2. Holder's Expenses. The Company shall have no obligation to pay any
legal fees for counsel retained by any holder of Registrable Shares or any
out-of-pocket expenses of the holders of Registrable Shares in connection with
any registration statement in which any Registrable Shares are included. In
addition, the holders of Registrable Shares sold in any Public Offering pursuant
to this Agreement shall be responsible for their proportional share of all
underwriting discounts and commissions and underwriter's fees and expenses
relating to such Registrable Shares.
7. Indemnification.
7.1. By the Company. The Company agrees to indemnify, to the full extent
permitted by law, each holder of Registrable Shares, its officers, directors,
partners, employees and agents and each Person who controls (within the meaning
of the Securities Act or the Exchange Act) such holder, from and against all
losses, claims, damages, liabilities and expenses (including without limitation
reasonable costs of investigation and reasonable fees and disbursements of legal
counsel) arising out of, based upon or caused by any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus,
or preliminary prospectus or notification or offering circular (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), including any in documents incorporated by reference in such in such
registration statement, prospectus, or preliminary prospectus or notification or
offering circular, or arising out of, based upon or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in light of the
circumstances under which they were made, except insofar as the same are caused
by or contained in any information furnished in writing to the Company by such
holder (or by any person authorized by the holder) expressly for use therein or
by such holder's failure to deliver a copy of the prospectus or any amendments
or supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of the Registrable Shares.
7.2. By Each Holder. In connection with any registration statement in
which a holder of Registrable Shares is participating, each such holder will
furnish to the Company such information as the Company reasonably requests for
use in connection with any such registration statement, preliminary prospectus
or prospectus, or any amendment or supplement thereto and, to the extent
permitted by law, will indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus, or any amendment
thereof or supplement thereto, or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information so furnished in writing by such holder expressly
for inclusion in the registration statement or prospectus, provided, however,
that the obligation to indemnify will be several, not joint and several, among
such holders of Registrable Shares.
7.3. Procedure. Any Person entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying Person of any claim with
respect to which it seeks indemnification, provided, that the failure so to
notify the indemnifying Person shall not relieve the indemnifying Person of any
liability that it may have to the indemnified Person hereunder, except to the
extent prejudiced by such failure, and (ii) unless in such indemnified Person's
reasonable judgment a conflict or interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying Person to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified Person. If notice of commencement of any such
action is given to the indemnifying Person as above provided, the indemnifying
Person shall be entitled to participate in and, to the extent it may wish,
jointly with any other indemnifying Person similarly notified, to assume the
defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such indemnified Person. The indemnified Person shall
have the right to employ separate legal counsel in any such action and
participate in the defense thereof, but the fees, disbursements and other
charges of such legal counsel shall be paid by the indemnified Person unless (i)
the indemnifying Person agrees to pay the same, (ii) the indemnifying Person
fails to assume the defense of such action with legal counsel satisfactory to
the indemnified Person in its reasonable judgment or (iii) the named parties to
any such action (including any impleaded parties) have been advised by such
legal counsel that either (A) representation of such indemnified Person and the
indemnifying Person by the same legal counsel would be inappropriate under
applicable standards of professional conduct or (B) there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying Person. In either of such cases the indemnifying
Person shall not have the right to assume the defense of such action on behalf
of such indemnified Person. If such defense is assumed, the indemnifying Person
will not be subject to any liability for any settlement made by the indemnified
Person without its consent (but such consent will not be unreasonably withheld).
An indemnifying Person who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying Person with
respect to such claim.
7.4. Survival. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified Person or any officer, director or controlling
Person of such indemnified Person and will survive the transfer of securities.
The Company also agrees to make such provisions as are reasonably requested by
any indemnified Person for contribution to such Person in the event the
Company's indemnification is unavailable for any reason.
8. Rule 144. The Company covenants that it shall duly and timely file
any reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder; and that
it shall take such further action as each holder of Registrable Shares may
reasonably request (including providing any information necessary to comply with
Rule 144 under the Securities Act), all to the extent required from time to time
to enable such holder to sell Registrable Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such rules may be amended from time to time, or any
similar rules or regulations hereafter adopted by the Commission. The Company
shall, upon the request of any holder of Registrable Shares, deliver to such
holder a written statement as to whether it has complied with such requirements.
Without limiting the foregoing, the Company agrees that:
(a) it will, if required by law, maintain a registration statement
(containing such information and documents as the Commission shall specify) with
respect to its common stock under Section 12 of the Exchange Act and will timely
file such information, documents and reports as the Commission may require or
prescribe for companies whose stock has been registered pursuant to said Section
12; and
(b) it will, if a registration statement with respect to its common
stock under Section 12 is effective, or if required by Section 15(d) of the
Exchange Act, make whatever filings with the Commission or otherwise make
generally available to the public such financial and other information as may be
necessary to enable the holders of Registrable Shares to be permitted to sell
shares of its common stock pursuant to the provisions of Rule 144 promulgated
under the Securities Act (or any successor rule or regulation thereto).
9. Limitation on Registration Rights of Others. Except as set forth in
the Disclosure Schedule to the Purchase Agreement, the Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company which right would
materially affect the Company's ability to perform its obligations hereunder.
10. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell its securities on the basis provided in any
underwriting arrangements approved by the holders of a majority of the shares
included in such registration and (b) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
11. Termination. The rights to Demand Registration shall terminate upon
the registrations undertaken pursuant to Section 2.1. In addition, the rights to
Demand Registration and Piggyback Registration with respect to particular
Registrable Shares shall terminate on the earlier of (i) the date five years
following the Effective Time, (ii) the date on which the particular Registrable
Shares may be sold pursuant to paragraph (k) of Rule 144 without the
requirements of paragraphs (c), (e), (f) and (h) of Rule 144 applying to such
sale, or (iii) the date on which the Registrable Shares may be sold pursuant to
other provisions of the Securities Act or the rules and regulations promulgated
thereunder as will allow the sale of all Registrable Shares then held by the
holder thereof in unlimited amount and without limitation on the manner of the
sale and without any governmental filings. The rights to Piggyback Registrations
with respect to particular Registrable Shares shall terminate on the earlier of
(i) the date five years following the Effective Time, (ii) the date on which the
particular Registrable Shares may be sold pursuant to paragraph (k) of Rule 144
without the requirements of paragraphs (c), (e), (f) and (h) of Rule 144
applying to such sale, or (iii) the date on which the Registrable Shares may be
sold pursuant to other provisions of the Securities Act or the rules and
regulations promulgated thereunder as will allow the sale of all Registrable
Shares then held by the holder thereof in unlimited amount and without
limitation on the manner of the sale and without any governmental filings.
12. General Provisions.
(a) Recapitalizations, Exchanges, etc. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to the Registrable
Shares to any and all shares of capital stock of the Company which may be issued
in respect of, in exchange for or in substitution of, the Registrable Shares and
shall be appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
(b) No Inconsistent Agreements. The Company has not, and shall not,
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the designated holders of the Registrable Shares in
this Agreement.
(c) Remedies. The holders of the Registrable Shares, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the prior written consent of the holders of a
majority of the Registrable Shares.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be made by hand delivery,
recognized overnight courier or facsimile transmission (receipt confirmed):
(i) if to the Company:
WorldPort Communications, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Chairman
Facsimile No.:000-000-0000
with a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
(000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
(ii) if to Heico:
The Heico Companies LLC
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Facsimile No.:__________________
with a copy to:
Much Shelist Freed Xxxxxxxxx
Xxxxx & Xxxxxxxxxx, P.C.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
Attention: T. Xxxxxxx Xxxx
Facsimile No.: 000-000-0000
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; and when receipt
is acknowledged, if telecopied.
(f) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective successors and assigns.
(h) Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal substantive laws of the State of Illinois, without
regard to its conflicts of law doctrine.
(i) Other Rules of Construction. References in this Agreement to
sections, schedules and exhibits are to sections of, and schedules and exhibits
to, this Agreement unless otherwise indicated. Words in the singular include the
plural and in the plural include the singular. The word "or" is not exclusive.
The word "including" shall mean including, without limitation. The section and
other headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
(j) Partial Invalidity. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
(k) Attorney's Fees. If any party hereto brings any action, at law or in
equity, to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover from the other party hereto reasonable
attorneys' fees in addition to any other relief to which such party may be
entitled.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be executed on its behalf by a duly authorized officer, all as of the date
first written above.
WORLDPORT COMMUNICATIONS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
THE HEICO COMPANIES, LLC
By:_________________________________
Name:_______________________________
Title:______________________________
