UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
WorldPort Communications, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
98155 J 10 5
- --------------------------------------------------------------------------------
(CUSIP Number)
Michael E. Heisley, Sr.
The Heico Companies, LLC
5600 Three First National Plaza
Chicago, Illinois 60602
312-419-8220
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 15, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.[ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 98155 J 10 5
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1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (entities only)
Michael E. Heisley, Sr.
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2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) / /
(b) /X/
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3 SEC Use Only
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4 Source of Funds (See Instruction)
BK
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5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
/ /
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6 Citizenship or Place of Organization
United States
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7 Sole Voting Power
Number of Shares 20,973,628
Beneficially ------------------------------------------------
Owned by 8 Shared Voting Power
Each 285,165
Reporting ------------------------------------------------
Person 9 Sole Dispositive Power
With 20,973,628
------------------------------------------------
10 Shared Dispositive Power
-0-
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
21,258,793
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12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
/ /
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13 Percent of Class Represented by Amount in Row (11)
48.6%
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14 Type of Reporting Person (See Instructions)
IN
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<PAGE>
SCHEDULE 13D
CUSIP No. 98155 J 10 5
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1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (entities only)
The Heisley Companies, LLC
- ---------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) / /
(b) /X/
- ---------------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------------
4 Source of Funds (See Instruction)
BK
- ---------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
/ /
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6 Citizenship or Place of Organization
Delaware
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7 Sole Voting Power
Number of Shares 20,973,628
Beneficially ------------------------------------------------
Owned by 8 Shared Voting Power
Each 285,165
Reporting ------------------------------------------------
Person 9 Sole Dispositive Power
With 20,973,628
------------------------------------------------
10 Shared Dispositive Power
-0-
- ---------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
21,258,793
- ---------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
/ /
- ---------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
48.6%
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14 Type of Reporting Person (See Instructions)
CO (limited liability company)
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<PAGE>
Schedule 13D of
Michael E. Heisley, Sr.
and The Heico Companies, LLC
with respect to the Common Stock, par value $0.0001 per share
of WorldPort Communications, Inc.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On July 15, 1999, Heico (and Heisley, indirectly through Heico) acquired
securities convertible into 4,615,386 shares of WorldPort Common Stock. The
$15,000,000 purchase price for such securities was obtained by Heico under its
existing credit facilities, which are provided by a group of banks for which
Bank of America serves as agent. Heico also received an option to acquire
securities convertible into 3,750,000 shares of WorldPort Common Stock for an
aggregate purchase price of $15,000,000. Heico intends to fund such purchases
with funds obtained through its existing credit facilities.
ITEM 4. PURPOSE OF TRANSACTION.
Heico acquired the securities described in Item 2 above for investment purposes
and in order to provide WorldPort with the financing necessary to satisfy
certain obligations. As described in Item 2, in addition to acquiring securities
convertible into 4,615,386 shares of WorldPort Common Stock, Heico may, at its
option, acquire additional securities convertible into 3,750,000 shares of
WorldPort Common Stock.
Neither Heisley nor Heico presently have any definitive plans or proposals
regarding an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving WorldPort or its subsidiaries or a sale
or transfer of a material amount of assets of WorldPort or any of its
subsidiaries.
Heisley and Heico reserve the right to acquire additional shares of WorldPort
Common Stock, to dispose of shares of WorldPort Common Stock or to formulate
other purposes, plans or proposals deemed advisable regarding WorldPort.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Set forth below is a description of the Common Stock, par value $0.0001 per
share of WorldPort Communications, Inc. beneficially owned by Heisley, Heico and
each Heico Reporting Person.
<PAGE>
<TABLE>
<CAPTION>
Shares of WorldPort Common Stock Beneficially Owned
----------------------------------------------------------------------------------------------
Name Sole Voting Power Shared Voting Power Sole Dispositive Power Shared Dispositive
- ---- ----------------- ------------------- ---------------------- ------------------
Power
<S> <C> <C> <C> <C>
Michael E. Heisley, Sr. 17,223,628 285,165 17,223,628 -0-
3,750,000 (1) 3,750,000 (1)
The Heico Companies, LLC 17,223,628 285,165 17,223,628 -0-
3,750,000 (1) 3,750,000 (1)
Stanley H. Meadows 64,854 -0- 64,854 -0-
Larry W. Gies -0- -0- -0- -0-
Richard O. Dentner -0- -0- -0- -0-
(1) Represents shares which Heico has an option to acquire.
</TABLE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
99.1 Series E Preferred Stock Purchase Agreement, dated July 15, 1999, by
and between the Heico Companies, LLC and WorldPort Communications, Inc.
99.2 Option Agreement, dated July 15, 1999 by and between The Heico
Companies, LLC and WorldPort Communications, Inc.
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
July 28, 1999
/s/ Michael E. Heisley, Sr.
-------------------------------
Michael E. Heisley, Sr.
The Heico Companies, LLC
By: /s/ Michael E. Heisley, Sr.
-------------------------------
Michael E. Heisley, Sr.
Manager and President
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES E PREFERRED STOCK PURCHASE AGREEMENT is dated as of July
15, 1999, by and between WORLDPORT COMMUNICATIONS, INC., a Delaware corporation
(the "Company"), and THE HEICO COMPANIES, LLC (the "Shareholder").
WHEREAS, the Shareholder desires to purchase from the Company, and the
Company desires to issue and sell to the Shareholder, 141,603 shares of Series E
Convertible Preferred Stock, par value $0.0001 per share (the "Series E
Preferred Stock"), of the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
SECTION 1
SUBSCRIPTION FOR SHARES
Section 1.1 Subscription Agreement. Subject to the terms and conditions
of this Agreement, the Shareholder hereby irrevocably subscribes for 141,603
shares of Series E Preferred Stock (the "Shares"), at a price of $35.31 per
share payable in cash on the date hereof. The Shares shall be subject to the
terms and conditions of a Voting Restrictions Agreement between the Company and
the Shareholder (the "Voting Restrictions Agreement"), if and when such
agreement is executed and delivered by the parties thereto.
Section 1.2 Delivery of Certificates. Upon receipt of the aggregate
purchase price for the Shares, the Company shall deliver to the Shareholder a
duty executed certificate representing the Shares registered in its name and
imprinted with the legends referred to in Section 3.4.
SECTION 2
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
The Company represents and warrants to, and agrees with, the
Shareholder as follows:
Section 2.1 Organization And Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has the requisite legal and corporate power to
own all the properties owned by it, and to conduct its business as presently
being and as proposed to be conducted by it.
Section 2.2 Corporate Power. The Company has all requisite legal and
corporate power to enter into this Agreement, to issue and sell the Shares and
the shares of common stock, par value $0.0001 per share (the "Common Stock"), of
the Company issuable upon conversion of the Shares and to carry out and perform
its obligations under the terms of this Agreement.
Section 2.3 Authorization. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance by
the Company of this Agreement and the consummation of the transactions
contemplated hereby, and for the authorization, issuance and delivery of the
Shares, has been taken. This Agreement has been duly executed and delivered and
is the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors rights generally and general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity.
Section 2.4 Validity of Shares. The Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and non-assessable, will be free and clear of all
liens, charges, claims and encumbrances and will not be subject to any
preemptive rights (other than any created by the Shareholder). The Common Stock
issuable upon conversion of the Shares has been duly and validly reserved and,
upon issuance in accordance with the conversion provisions of the Shares, will
be duly and validly issued, fully paid, non-assessable and free and clear of all
liens, charges, claims and encumbrances (other than any created by the
Shareholder).
Section 2.5 Capitalization. As of June 30, 1999, the Company's
authorized capital stock consisted of 65,000,000 shares of Common Stock and
10,000,000 shares of Preferred Stock, of which (i) 750,000 shares have been
designated Series A Preferred Stock, (ii) 3,000,000 shares have been designated
Series B Convertible Preferred Stock, and (iii) 1,450,000 shares have been
designated Series C Convertible Preferred Stock. As of June 30, 1999, the only
shares of capital stock of the Company issued and outstanding, reserved for
issuance or committed to be issued were:
(a) 25,427,140 fully paid and non-assessable shares
of Common Stock, duly issued and outstanding;
(b) 81,944 fully paid and non-assessable shares of
Series A Preferred Stock, duly issued and outstanding;
(c) 1,535,648 fully paid and non-assessable shares of
Series B Convertible Preferred Stock, duly issued and
outstanding;
(d) 1,132,824 fully paid and non-assessable shares of
Series C Convertible Preferred Stock, duly issued and
outstanding;
(e) 283,206 shares of Series C Convertible Preferred
Stock reserved for issuance upon exercise of an option held by
the Shareholder (the "Series C Option");
(f) shares of non-participating preferred stock of
the Company having an aggregate liquidation value of
$1,029,994 and convertible into Common Stock at $3.25 per
share which the Company was committed to issue under that
certain Termination Agreement, dated as of December 31, 1998,
between the Company and Maroon Bells Capital Partners, Inc.
(including the shares of Common Stock issuable upon conversion
thereof);
(g) 81,944 shares of Common Stock reserved for
issuance upon conversion of the Series A Preferred Stock;
(h) 6,142,592 shares of Common Stock reserved for
issuance upon conversion of the Series B Convertible Preferred
Stock;
(i) 15,385,166 shares of Common Stock reserved for
issuance upon conversion of the Series C Convertible Preferred
Stock (including those shares of Series C Convertible
Preferred Stock issuable upon exercise of the Series C
Option); and
(j) 11,628,430 shares of Common Stock reserved for
issuance upon exercise of outstanding options and warrants.
Except as set forth in this Section 2.5, as of June 30, 1999, there were no
outstanding securities of the Company which are convertible into or exchangeable
for any shares of the Company's capital stock or contain any capital
appreciation or profit participation features, there was no existing contract,
option, warrant, call or other commitment or right of any character granted or
issued by the Company calling for or relating to the issuance or transfer of
shares of capital stock or any other securities of the Company and there were no
stock appreciation rights or phantom stock plans.
Section 2.6 Consents. Subject in part to the truth and accuracy of the
representations of the Shareholder set forth in this Agreement, and except as
disclosed in the Disclosure Schedule attached hereto, all consents, approvals,
qualifications, orders or authorizations of, or filings with, any governmental
authority, including state securities or Blue Sky offices, required prior to the
sale of the Shares pursuant to this Agreement, the consummation of the
transactions contemplated by this Agreement, the consummation of the transaction
contemplated by the Option Agreement dated as of the date hereof between the
Company and the Shareholder, and the Voting Restrictions Agreement
(collectively, the "Related Agreements"), the conversion of the Shares, and the
issuance of the Common Stock issuable upon conversion of the Shares have been
obtained or made.
Section 2.7 Offering. Subject in part to the truth and accuracy of the
representations of the Shareholder set forth in this Agreement, the offer, sale
and issuance of the Shares and the issuance of the Common Stock issuable upon
conversion of the Shares as contemplated by this Agreement are exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the securities laws of the State of Illinois.
Section 2.8 No Violation. The execution and delivery of this Agreement
and the Related Agreements, the consummation of the transactions provided for
herein and therein or contemplated hereby and thereby, and the fulfillment by
the Company of the terms hereof or thereof, will not (a) conflict with or result
in a breach of any provision of the certificate of incorporation or by-laws (or
other organizational documents) of the Company, (b) except as set forth in
Disclosure Schedule attached hereto, to the Company's knowledge, result in a
material default or material breach, give rise to any right of termination,
cancellation or acceleration, or require any consent, approval, authorization or
permit of, or filing or notification to, any governmental authority, any court
or tribunal or any other person, company or entity under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or obligation to
which the Company or any of its subsidiaries is a party or by which the Company,
any subsidiary or any of their assets may be bound or (c) violate any law,
judgment, order, writ, injunction, decree, statute, rule or regulation of any
court, administrative agency, bureau, board, commission, office, authority,
department or other governmental entity applicable to the Company, any
subsidiary or any of their assets.
SECTION 3
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SHAREHOLDER
The Shareholder represents and warrants to, and agrees with, the
Company as follows:
Section 3.1 Organization, Good Standing And Qualification. The
Shareholder is a limited liability company duly organized, validly existing and
in good standing under the laws of the state of its organization and has all
requisite power and authority to carry on its business as now conducted and as
proposed to be conducted.
Section 3.2 Authority. The Shareholder has full legal right, power and
authority, without the consent of any other person, company or entity, to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. All actions required to be taken by the Shareholder to
authorize the execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and property taken.
Section 3.3 Validity. This Agreement has been duly executed and
delivered by the Shareholder and is the lawful, valid and legally binding
obligation of the Shareholder, enforceable in accordance with its terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors rights
generally and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
Section 3.4 Investment Representations.
(a) The Shareholder acknowledges that the Shares have not been
registered under the Securities Act, or the securities laws of any state or
regulatory body and are being offered and sold in reliance upon exemptions from
the requisite requirements of the Securities Act and such laws and may not be
transferred or resold without registration under such laws unless an exemption
is available. The certificate for the Shares to be received by the Shareholder
pursuant to this Agreement will be imprinted with legends in substantially the
following forms (the imprinting of the second legend being subject to the
execution of the Voting Restrictions Agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO A REGISTRATION STATEMENT WITH
RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT
AND UNDER ANY APPLICABLE STATE SECURITIES LAWS UNLESS, IN THE
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
STATE SECURITIES LAWS IS AVAILABLE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON
VOTING AND TRANSFERS, SET FORTH IN A CERTAIN VOTING
RESTRICTIONS AGREEMENT DATED AS OF __________ __, 1999, A COPY
OF WHICH IS AVAILABLE AT THE OFFICE OF THE COMPANY."
(b) The Shareholder is acquiring the Shares for investment and not with
a view to the resale or distribution thereof.
(c) The Shareholder is an "accredited investor" (as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act), is
sophisticated in financial matters and is familiar with the business of the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests. The
Shareholder has had the opportunity to investigate on its own the Company's
business, management and financial affairs and has had the opportunity to review
the Company's operations and facilities and to ask questions and obtain whatever
other information concerning the Company as the Shareholder has deemed relevant
in making its investment decision.
SECTION 4
MISCELLANEOUS
Section 4.1 Fees and Expenses. The Company will bear all of its own
expenses in connection with the preparation, negotiation and execution of this
Agreement, the Related Agreements and a Voting Agreement to be entered into
among the Shareholder, Paul A. Moore, Phillip S. Magiera and Anderlit Limited,
B.V. (the "Voting Agreement"), and the transactions contemplated hereby and
thereby, and will also reimburse the Shareholder for, or pay, any reasonable,
documented expenses it incurs (including, without limitation, the legal fees and
disbursements of counsel, which currently is Much Shelist Freed Denenberg Ament
& Rubenstein, P.C.) in connection with the preparation, execution and
negotiation of this Agreement, the Related Agreements and the Voting Agreement,
and the transactions contemplated hereby and thereby. The Company will also pay,
or reimburse the Shareholder for, all fees and expenses (including attorney's
fees and expenses) incurred by the Shareholder or any holder of the Shares
arising out of or in connection with any breach of any representation, warranty
or covenant by the Company, or the enforcement or preservation of any rights of
the Shareholder, under this Agreement, the Related Agreements and the
Certificate of Incorporation of the Company.
Section 4.2 Survival of Representations and Warranties;
Indemnification.
(a) All representations and warranties contained herein or made in
writing by any party in connection herewith will survive the execution and
delivery of this Agreement.
(b) In consideration of the Shareholder's execution and delivery of
this Agreement and acquisition of the Shares hereunder and in addition to all of
the Company's other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Shareholder and each other holder of
Shares and/or shares of Common Stock issuable upon conversion of the Shares and
all of their officers, directors, members, managers, employees and agents
(collectively, the "Shareholder Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities, obligations and damages, and expenses in connection therewith
(irrespective of whether any such Shareholder Indemnitee is a party to the
action for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements (collectively, the "Shareholder Indemnified
Liabilities"), incurred by the Shareholder Indemnitees or any of them as a
result of, or arising out of, or relating to (i) any finder's or brokerage fees
not disclosed by the Company, or (ii) any material breach of, or inaccuracy of,
any representation, warranty or covenant of the Company contained in this
Agreement or in that certain Series C Preferred Stock Purchase Agreement, dated
as of December 31, 1998, between the Company and the Shareholder (the "Series C
Purchase Agreement"). Prior to the termination of the covenants of the Company
contained in Articles VI and Articles VII of the Series C Purchase Agreement,
the Company and the Shareholder agree to execute and deliver an amendment to
this Agreement providing for the incorporation herein of such covenants (other
than those set forth in Sections 7.10 and Sections 7.12 through 7.17 of the
Series C Purchase Agreement) on substantially the same terms and conditions.
(c) In consideration of the Company's execution and delivery of this
Agreement and sale of the Shares hereunder and in addition to all of the
Shareholder's other obligations under this Agreement, the Shareholder shall
defend, protect, indemnify and hold harmless the Company and all of its
officers, directors, shareholders, employees and agents (collectively, the
"Company Indemnitees") from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities, obligations and
damages, and expenses in connection therewith (irrespective of whether any such
Company Indemnitee is a party to the action for which indemnification hereunder
is sought), and including reasonable attorneys' fees and disbursements
(collectively, the "Company Indemnified Liabilities"), incurred by the Company
Indemnitees or any of them as a result of, or arising out of, or relating to (i)
any finder's or brokerage fees not disclosed by such Shareholder, or (ii) any
material breach of, or inaccuracy of, any representation, warranty or covenant
of such Shareholder contained in this Agreement.
Section 4.3 Successors And Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind the respective successors and
inure to the benefit of the respective permitted assigns of the parties hereto,
whether so expressed or not.
Section 4.4 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
Section 4.5 Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if personally served or sent by
telecopy, on the business day after notice is delivered to a courier or mailed
by express mail if sent by courier delivery service or express mail for next day
delivery and on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Company, to:
WorldPort Communications, Inc.
1825 Barrett Lakes Blvd.
Atlanta, Georgia 30144
Fax: (770) 792-0676
Attention: President
If to the Shareholder, to:
The Heico Companies, LLC
70 West Madison Street
Suite 5600
Chicago, IL 60602
Fax: (312) 419-9417
Attention: Michael E. Heisley, Sr.
Section 4.6 Governing Law And Forum. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of Illinois as
applied to contracts made and to be performed entirely in the State of Illinois
without regard to principles of conflicts of law, except to the extent that the
corporate laws of the State of Delaware are mandatorily applicable. Each of the
parties hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any court of Cook County, Illinois or any federal court sitting
in the Northern District of Illinois for purposes of any suit, action or other
proceeding arising out of this Agreement (and agrees not to commence any action,
suit or proceedings relating hereto except in such courts). Each of the parties
hereto hereby irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement, which
is brought by or against it, in the courts of Cook County, Illinois or any
federal court sitting in the Northern District of Illinois and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
THE COMPANY AND THE SHAREHOLDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER,
OR REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED AGREEMENT OR
UNDER OR IN CONNECTION WITH ANY AMENDMENT, INSTRUMENT, DOCUMENT, OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, AND AGREE THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. THE TERMS AND PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
Section 4.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
Section 4.8 Entire Agreement. This Agreement (together with the
Disclosure Schedule attached hereto) contains the entire understanding of the
parties with respect to their respective subject matter and all prior
negotiations, discussions, commitments and understandings heretofore had between
them with respect thereto are merged herein and therein.
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first set forth above.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Carl Grivner
-----------------------------------------------
Name: Carl Grivner
Title: Chairman, President and Chief Executive
Officer
THE HEICO COMPANIES, LLC
By: /s/ Stanley Meadows
-----------------------------------------------
Name: Stanley Meadows
Title: Assistant Secretary
OPTION AGREEMENT
This OPTION AGREEMENT ("Agreement') is made and entered into as of July
15, 1999 by and between WorldPort Communications, Inc., a Delaware corporation
(the "Company"), and The Heico Companies, LLC (the "Grantee").
1. Grant of Option. The Company does hereby grant to the Grantee an
option (the "Option") to purchase up to 424,809 shares (the "Shares") of Series
F Convertible Preferred Stock of the Company, $.0001 per value per share (the
"Series F Preferred Stock"), at an exercise price of $35.31 per share for an
aggregate exercise price of up to $15,000,000. The Certificate of Designations,
Preferences and Rights of the Series F Preferred Stock is attached hereto as
Exhibit A. The Shares shall be subject to that certain Voting Restrictions
Agreement between the Company and the Grantee dated as of the date hereof.
2. Term of the Option. The Option (to the extent not earlier exercised
or forfeited) will expire three (3) years from the date hereof (the "Expiration
Date").
3. Manner of Exercise.
(a) The Grantee may exercise this Option by giving written notice
thereof to the Company at any time, or from time to time, on or before the
Expiration Date.
(b) The closing (the "Closing") of any such exercise of the Option and
purchase and sale of Shares will be held within ten (10) days after the date of
the Grantee's written notice. At the Closing, the Company will deliver to the
Grantee a certificate, duly executed and registered in the name of the Grantee
or the Grantee's nominee, for the number of Shares being purchased, and the
Grantee shall pay the purchase price of the Shares by wire transfer of funds to
an account designated by the Company. The Company agrees that the Shares will be
free and clear of any liens, claims, charges or encumbrances whatsoever (other
than those created by the Grantee) and will be duly and validly issued, fully
paid and non-assessable.
4. Reservation of Series F Preferred Stock and Common Stock. The
Company shall at all times through the Expiration Date reserve and keep
available, free from pre-emptive rights and out of its aggregate authorized but
unissued shares of Series F Preferred Stock, the number of Shares deliverable
upon exercise of the Option. The Company shall at all times through the
conversion of the Shares reserve and keep available, free from pre-emptive
rights and out of its aggregate authorized but unissued shares of common stock,
the number of shares of its common stock deliverable upon conversion of the
Shares.
5. Investment Representations of the Grantee.
(a) The Grantee acknowledges that the Shares have not been, nor will
be, registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state or regulatory body and are being
offering and sold in reliance upon exemptions from the requisite requirements of
the Securities Act and such laws and may not be transferred or resold without
registration under such laws unless an exemption is available. Each certificate
for Shares received by the Grantee upon exercise of the Option will be imprinted
with legends in substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDERTHE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT AND UNDER
ANY APPLICABLE STATE SECURITIES LAWS UNLESS, IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND STATE
SECURITIES LAWS IS AVAILABLE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON
VOTING AND TRANSFERS, SET FORTH IN A CERTAIN VOTING
RESTRICTIONS AGREEMENT DATED AS OF JULY __, 1999, A COPY OF
WHICH IS AVAILABLE AT THE OFFICE OF THE COMPANY."
(b) The Grantee represents and warrants to the Company that it is
acquiring the Option (and will acquire the Shares) for investment purposes and
not with a view to the resale or distribution thereof.
(c) The Grantee represents and warrants to the Company the it is an
"accredited investor" (as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act), is sophisticated in financial matters and
is familiar with the business of the Company so that it is capable of evaluating
the merits and risks of its investment in the Company and has the capacity to
protect its own interests. The Grantee has had the opportunity to investigate
the Company's business, management and financial affairs and has had the
opportunity to review the Company's operations and facilities and to ask
questions and obtain whatever other information concerning the Company as the
Grantee has deemed relevant.
6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7. Governing Law; Jurisdiction. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Illinois as applied
to contracts made and to be performed entirely in the State of Illinois without
regard to principles of conflicts of law, except to the extent that the
corporate laws of the State of Delaware are mandatorily applicable. Each of the
parties hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any court of the Cook County, Illinois or any federal court
sitting in the Northern District of Illinois for purposes of any suit, action or
other proceeding arising out of this Agreement (and agrees not to commence any
action, suit or proceedings relating hereto except in such courts). Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement, which is brought by or against it, in the courts of Cook County,
Illinois or any federal court sitting in the Northern District of Illinois and
hereby further irrevocably and unconditionally waiver, and agrees not to plead
or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
8. Binding Effect; Benefits. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and permitted assigns. Nothing in this Agreement, expressed or implied, is
intended to or shall confer on any person other than the parties hereto and
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
9. Notices. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if personally served or sent by telecopy, on the
business day after notice is delivered to a courier or mailed by express mail if
sent by courier delivery service or express mail for next day delivery and on
the third day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered, return receipt requested, postage
prepaid and addressed as follows:
If to the Company to:
WorldPort Communications, Inc.
1825 Barrett Lakes Blvd.
Atlanta, Georgia 30144
Fax: (770) 792-0676
Attention: President
If to the Grantee, to:
The Heico Companies, LLC
70 West Madison Street, Suite 5600
Chicago, Illinois 60602
Fax: (312) 419-9417
Attention: Michael E. Heisley, Sr.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Carl Grivner
-----------------------------------------------
Name: Carl Grivner
Title: Chairman, President and Chief Executive
Officer
THE HEICO COMPANIES, LLC
By: /s/ Stanley Meadows
-----------------------------------------------
Name: Stanley Meadows
Title: Assistant Secretary
