SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 25, 1999
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WORLDPORT COMMUNICATIONS, INC.
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(Exact name of registrant as specified in charter)
Delaware 000-25015 84-1127336
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) file number) Identification No.)
1825 Barrett Lakes Blvd., Suite 100, Kennesaw, Georgia 30144
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code 770-792-8735
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N/A
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(Former name or former address, if changed since last report)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On January 25, 1999, The Heico Companies, LLC ("Heico") completed its $40
million equity investment in WorldPort Communications, Inc. ("WorldPort")
pursuant to the Series C Preferred Stock Purchase Agreement (the "Purchase
Agreement"), dated December 31, 1998, between WorldPort and Heico. Pursuant to
the Purchase Agreement, Heico acquired an aggregate of 1,132,824 shares of
WorldPort's Series C Convertible Preferred Stock (the "Series C Stock") for an
aggregate purchase price of $40 million. Pursuant to the Purchase Agreement,
Heico also received an option to acquire up to 283,206 shares of Series C Stock
for an aggregate purchase price of $10 million.
As a holder of the Series C Stock, Heico is entitled to vote on all matters
submitted to a vote of the stockholders of the Company, voting together with the
holders of Common Stock as a single class. Heico is entitled to forty (40) votes
per share of Series C Stock. In addition to the votes that Heico obtained
through its stock purchase, Heico has also obtained certain additional rights.
Those rights include, with respect to the Common Stock issued upon conversion of
the Series C Stock, certain demand and piggyback registration rights.
Pursuant to the Purchase Agreement, on December 31, 1998, WorldPort increased
the size of its Board of Directors to eight members and appointed four
individuals designated by Heico to serve as directors. WorldPort has also agreed
to cause Heico's designees to comprise at least one-half of the boards of
directors of each of its subsidiaries. In addition, WorldPort amended its Bylaws
to provide that at least one of Heico's designees and (except in the limited
situation regarding certain proposed refinancings of WorldPort's outstanding
credit facility) one of the directors who was not designated by Heico, must
approve any action put before the Board of Directors in order for such to be
properly approved by the Board of Directors.
Additionally, in connection with Heico's purchase of Series C Stock, on December
31, 1998, Heico, WorldPort and Paul A. Moore (WorldPort's Chairman and Chief
Executive Officer), Phillip S. Magiera (WorldPort's Chief Financial Officer),
Theodore H. Swindells and Maroon Bells Capital Partners, Inc. (collectively, the
"Stockholders") also entered into a Shareholder Agreement. Pursuant to the
Shareholder Agreement, the Stockholders (i) agreed not to vote certain of their
shares of capital stock of WorldPort in favor of certain financing proposals or
other items without Heico's consent and (ii) granted to Heico a proxy with
respect to such capital stock for Heico's use in limited matters. Pursuant to
the Shareholder Agreement, Heico and the Stockholders have also agreed to
certain restrictions on the transfer of certain of their shares of WorldPort
capital stock.
As a result of its stock purchase alone, Heico currently holds directly
approximately 25.0% of the outstanding votes. Further, by virtue of the
Shareholder Agreement, together with its stock purchase, Heico currently
controls, with respect to certain matters, including acquisitions, incurrence of
debt and the issuance or sale of equity securities, approximately 50.1% of
WorldPort's outstanding votes.
Heico may, at its option and without any payment of consideration, convert its
shares of Series C Stock into shares of WorldPort's Common Stock at a conversion
price of $3.25 per share of Common Stock, receiving 10.865 shares of Common
Stock for each share of Series C Stock. The number of shares of Common Stock
into which the Series C Stock is convertible is subject to adjustment in certain
circumstances, such as stock splits, stock dividends and recapitalizations.
The $40,000,000 purchase price for the Series C Stock acquired on December 31,
1998, 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.
For a complete description of the terms of the transactions described above and
the Series C Stock, see the Purchase Agreement, the Shareholder Agreement and
the Certificate of Designations, Preferences and Rights of Series C Convertible
Preferred Stock of WorldPort Communications, Inc. attached hereto as exhibits.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit No. Description
2.1 Series C Preferred Stock Purchase Agreement,
dated December 31, 1998, by and between The
Heico Companies, LLC and WorldPort
Communications, Inc., incorporated by
reference to Exhibit 2.1 to WorldPort's Form
8-K, dated December 31, 1998.
2.2 Shareholder Agreement, dated December 31,
1998, by and among The Heico Companies, LLC,
WorldPort Communications, Inc., Paul A.
Moore, Phillip S. Magiera, Theodore H.
Swindells and Maroon Bells Capital Partners,
Inc., incorporated by reference to Exhibit
2.2 to WorldPort's Form 8-K, dated December
31, 1998.
2.2(a) Amendment to Shareholder Agreement, dated
January 25, 1999, by and among The Heico
Companies, LLC, WorldPort Communications,
Inc., Paul A. Moore, Phillip S. Magiera,
Theodore H. Swindells and Maroon Bells
Capital Partners, Inc.
2.3 Registration Rights Agreement, dated
December 31, 1998, by and between The Heico
Companies, LLC and WorldPort Communications,
Inc., incorporated by reference to Exhibit
2.3 to WorldPort's Form 8-K, dated December
31, 1998.
4.1 Certification of Designations, Preferences
and Rights of Series C Convertible Preferred
Stock of WorldPort Communications, Inc.,
incorporated by reference to Exhibit 4.1 to
WorldPort's Form 8-K, dated December 31,
1998.
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
WORLDPORT COMMUNICATIONS, INC.
Date: February 3, 1999
By: /s/ Paul A. Moore
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Name: Paul A. Moore
Title: Chief Executive Officer
AMENDMENT TO
SHAREHOLDER AGREEMENT
THIS AMENDMENT (this "AMENDMENT"), dated January 25, 1999, by and among
WorldPort Communications, Inc., a Delaware corporation (the "CORPORATION"), The
Heico Companies, LLC (the "INVESTOR") and Maroon Bells Capital Partners, Inc.
("MBCP"), Paul A. Moore ("MOORE"), Phillip S. Magiera ("MAGIERA") and Theodore
H. Swindells ("SWINDELLS") amends that certain Shareholder Agreement, dated as
of December 31, 1998, between the Corporation, the Investor, MBCP, Moore,
Magiera and Swindells (the "SHAREHOLDER Agreement").
RECITALS
A. On December 31, 1998, in connection with the purchase by the
Investor of shares of Series C Convertible Preferred Stock of the Corporation
pursuant to that certain Series C Preferred Stock Purchase Agreement dated
December 31, 1998 (as amended, modified, supplemented or restated from time to
time, to the "PURCHASE AGREEMENT") the parties hereto entered into the
Shareholder Agreement.
B. The Investor is now making an additional purchase of Series C
Preferred Shares, and as a condition to its agreement to do so, has requested
the amendments provided herein in order to obtain the additional voting and
other rights contained herein.
C. The Corporation and the MBCP Group deem it desirable to amend the
Shareholder Agreement as set forth herein in order to induce the Investor to
purchase the additional Series C Preferred Shares.
AGREEMENTS
In consideration of the recitals and the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. AMENDMENTS. The Shareholder Agreement is hereby amended as
follows:
(a) Section 1 is hereby amended to include the following
definitions:
"COVERED COMMON SHARES" means the 131,666 shares of Common
Stock owned by MBCP and 153,499 shares of the Common Stock owned by Moore.
"COVERED SHARES" means the Preferred Shares and the Covered
Common Shares.
"NEW PREFERRED SHARES" means the shares of preferred stock of
the Corporation which are issued to any one or more members of the MBCP Group
(or any Affiliate thereof) pursuant to the Termination Agreement.
"TERMINATION AGREEMENT" means that certain letter agreement,
dated December 31, 1998, between the Corporation and MBCP, pursuant to which the
Advisory Agreement for WorldPort Communications, Inc. dated March 7, 1997, as
amended, was terminated.
(b) The definition of each of the following terms currently
set forth in Section 1 is hereby amended and restated in its entirety as
follows:
"HOLDER" means any holder (or deemed holder) of Covered Shares
who is a party to this Agreement or is a successor or assign or subsequent
holder contemplated by SECTION 10 hereof.
"PREFERRED SHARES" means the Series B Preferred Shares, the
Series C Preferred Shares and the New Preferred Shares.
"SERIES B PREFERRED SHARES" means those shares of Series B
Convertible Preferred Stock of the Corporation, $.0001 par value per share, of
the Corporation duly issued and outstanding on the date hereof.
(c) The words "Series B Preferred Shares" throughout in
Sections 2(a), 2(b), 2(e) and 3(a) are hereby deleted and replaced in each
instance with the words "Covered Shares".
(d) Section 2(d) is hereby amended and restated in its
entirety to read as follows:
"(d) Each of the MBCP Group shall execute and deliver to the
Investor (i) an Irrevocable Proxy in the form attached hereto
as EXHIBIT A and (ii) such additional Irrevocable Proxies, in
substantially the same form, as the Investor may reasonably
require to ensure that the Investor has received Irrevocable
Proxies with respect to all of the Covered Shares. Without
limiting the generality of the foregoing, MBCP will execute
and deliver (or will cause its Affiliate(s) to execute and
deliver) an Irrevocable Proxy, in substantially the same form,
with respect to all of the New Preferred Shares immediately
upon the issuance of the New Preferred Shares. The MBCP Group
agrees that the Covered Shares are unique and that their
obligations to execute and deliver Irrevocable Proxies
pursuant to this Section 2(d) may be specifically enforced by
the Investor. Each of the MBCP Group agrees that each
Irrevocable Proxy is coupled with an interest in the voting
agreements set forth herein."
(e) The words "or New Preferred Shares" are hereby inserted
immediately following each reference to "Series B Preferred Shares" throughout
Sections 4(a) and 5.
(f) The words "Preferred Shares" in Section 6(a) are hereby
deleted and replaced by the words "Covered Shares".
(g) The words ", the Covered Common Shares and the New
Preferred Shares" are hereby inserted immediately following the words "Series B
Preferred Stock" in Section 6(b).
2. NO OTHER AMENDMENTS. Except as otherwise amended hereby, all terms
and provisions of the Shareholder Agreement shall continue in full force and
effect as stated therein. All capitalized terms used but not defined herein
shall have the meanings given in the Shareholder Agreement.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered will be deemed an
original, and such counterparts together will constitute one instrument.
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IN WITNESS WHEREOF, this Amendment was executed and delivered on the
date first set forth above.
The Heico Companies, LLC WorldPort Communications, Inc.
By: By:
Its: Its:
Maroon Bells Capital Partners, Inc.
Paul A. Moore
By:
Its:
Theodore H. Swindells Phillip S. Magiera
