<PAGE>
As filed with the Securities and Exchange Commission on January 18, 2001.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
WORLDPORT COMMUNICATIONS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 84-1127336
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
975 WEILAND ROAD, SUITE 160
BUFFALO GROVE, ILLINOIS 60089
(Address of principal executive offices) (Zip Code)
WORLDPORT COMMUNICATIONS, INC.
2000 LONG-TERM STOCK INCENTIVE PLAN
(Full title of each plan)
Copies to:
JOHN T. HANSON CHARLES I. WEISSMAN, ESQ.
CHIEF FINANCIAL OFFICER SWIDLER BERLIN SHEREFF
975 WEILAND ROAD, SUITE 160 FRIEDMAN, LLP
BUFFALO GROVE, ILLINOIS 405 LEXINGTON AVENUE
60089 NEW YORK, NEW YORK 10174
(847) 229-8200 (212) 891-9268
(Name, address and
telephone number,
including area code, of
agents for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered (1) (2) Per Share Offering Price (3) Registration Fee (3)
------------------------- ------------------ ---------------- ------------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.0001 per share 21,600,000 shares $2.9219 $63,113,040 $15,778.26
</TABLE>
(1) Pursuant to Rule 416, an undetermined number of additional shares may be
issued if the anti-dilution adjustment provisions of the plan become
operative.
(2) The WorldPort Communications, Inc. 2000 Long-Term Stock Incentive Plan (the
"Plan") provides for an initial maximum number of issued shares of
15,000,000, plus the ability to increase the maximum number of issued shares
on January 1, 2001 and each of the next six (6) anniversaries thereof by an
amount equal to one percent (1%) of the issued and outstanding shares on
such January 1 date. This number represents (a) the 15,000,000 shares
originally authorized under the Plan, plus (b) approximately one percent
(1%) of the currently outstanding common shares or 600,000 shares, and (c)
one percent (1%) of the total number of authorized common shares of the
Company, or 1,000,000 shares per year for six (6) years, which constitutes
an estimation of the total number of shares issuable under the Plan through
January 1, 2007. To the extent that the number of shares permitted to be
issued at any time under the Plan is less than 21,600,000, no shares in
excess of the permitted number of shares will be issued under the Plan.
<PAGE>
(3) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457 of the Securities Act of 1933, based on the average
of the high and low sales prices of a share of Common Stock of the
Registrant on the Nasdaq Bulletin Board on January 12, 2001.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents, which have been filed by WorldPort
Communications, Inc., a Delaware corporation (the "Registrant"), with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, as amended by Form 10-K/A (Amendment No. 1) filed with
the Commission on June 22, 2000.
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000.
(c) The Registrant's Proxy Statement for the Annual Meeting of
Stockholders held on July 21, 2000.
(d) The Registrant's Current Reports on Form 8-K, with event dates of
August 24, 2000, September 15, 2000, October 2, 2000 and October 3, 2000.
(e) The description of the Registrant's Common Stock, par value
$0.0001 per share, which is contained in Registrant's Registration Statement on
Form 8-A filed pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to the Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Prospectus
from the date of filing thereof. Any statement contained in the documents
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superceded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated or deemed to be incorporated be reference
herein modifies or supercedes such statement. Any such statement so modified or
superceded shall not be deemed, except as so modified or superceded, to
constitute a part of this registration statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
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<PAGE>
The indemnification of officers and directors of the Registrant is governed
by Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") and the Certificate of Incorporation of the Registrant, as amended (the
"Certificate"). Among other things, the DGCL permits indemnification of a
director, officer, employee or agent in civil, criminal, administrative or
investigative actions, suits or proceedings (other than an action by or in the
right of the corporation) to which such person is a party or is threatened to be
made a party by reason of the fact of such relationship with the corporation or
the fact that such person is or was serving in a similar capacity with another
entity at the request of the corporation against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe his conduct was unlawful.
No indemnification may be made in any such suit to any person adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which the action was brought determines that,
despite the adjudication of liability but in view of all circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper. Under the DGCL, to the extent that
a director, officer, employee or agent is successful, on the merits or
otherwise, in the defense of any action, suit or proceeding or any claim, issue
or matter therein (whether or not the suit is brought by or in the right of the
corporation), he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith. In all
cases in which indemnification is permitted (unless ordered by a court), it may
be made by the corporation only as authorized in the specific case upon a
determination that the applicable standard of conduct has been met by the party
to be indemnified. The determination must be made by a majority of the
directors who were not parties to the action, suit or proceeding, even though
less than a quorum, or if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or by the
stockholders. The statute authorizes the corporation to pay expenses (including
attorneys' fees) incurred by an officer or director in advance of a final
disposition of a proceeding upon receipt of an undertaking by or on behalf of
the person to whom the advance will be made, to repay the advances if it shall
ultimately be determined that he was not entitled to indemnification. Such
expenses (including attorneys' fees) incurred by other employees and agents may
be paid upon such terms and conditions, if any, as the Board may determine. The
DGCL provides that indemnification and advances of expenses permitted thereunder
are not to be exclusive of any rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-law, agreement, vote of
stockholders or disinterested directors, or otherwise. The DGCL also authorizes
the corporation to purchase and maintain liability insurance on behalf of its
directors, officers, employees and agents regardless of whether the corporation
would have the statutory power to indemnify such persons against the liabilities
insured.
The Certificate provides that directors, officers and others shall be
indemnified to the fullest extent authorized by the DGCL, as in effect (or, to
the extent indemnification is broadened, as it may be amended), against any and
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties paid or to be paid in settlement) reasonably
incurred by such person in connection with such proceeding. The Certificate
further provides that, to the extent permitted by law, expenses so incurred by
any such person in defending any such proceeding shall, at his request, be paid
by the Registrant in advance of the final disposition of such action or
proceeding.
The Certificate provides that the right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition shall not be exclusive of any other right which any person may have
or acquire under any law, statute, provision of the Certificate, By-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant maintains directors' and officers' liability and company
reimbursement insurance which, among other things (i) provides for payment on
behalf of its officers and directors against loss as defined in the policy
stemming from acts committed by directors and officers in their capacity as such
and
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<PAGE>
(ii) provides for payment on behalf of the Registrant against such loss but only
when the Registrant shall be required or permitted to indemnify directors or
officers for such loss pursuant to statutory or common law or pursuant to duly
effective certificate of incorporation or by-law provisions.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following exhibits are filed as part of this registration
statement:
4.1 WorldPort Communications, Inc. 2000 Long-Term Stock Incentive
Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of Swidler Berlin Shereff Friedman, LLP (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in signature page to this
registration statement).
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(2) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in this
Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to
Rule 424(b) promulgated under the Securities Act
of 1933 in the aggregate, the changes in volume
and price represent no more than a 20% change in
the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in
this Registration Statement;
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<PAGE>
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
-------- -------
apply if the registration statement is on Form S-3 or S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(4) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Buffalo Grove, State of Illinois, on this 15th day of
November, 2000.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Michael E. Heisley, Sr.
-------------------------------
Michael E. Heisley, Sr.
Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Michael E. Heisley, Sr. and
John T. Hanson and each of them (with full power of each of them to act alone),
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and on his behalf, and in his name,
place and stead, in any all capacities to execute and sign any and all
amendments or post-effective amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact or any of them or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof and the Registrant hereby confers like
authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael E. Heisley, Sr. Chief Executive Officer and November 15, 2000
------------------------------------------------------------ Chairman of the Board
Michael E. Heisley, Sr. (Principal Executive Officer)
/s/ John T. Hanson Chief Financial Officer January 4, 2001
------------------------------------------------------------ (Principal Financial Officer)
John T. Hanson
/s/ Kathleen A. Cote Director January 4, 2001
------------------------------------------------------------
Kathleen A. Cote
/s/ Stanley H. Meadows Director November 15, 2000
------------------------------------------------------------
Stanley H. Meadows
/s/ Andrew G.C. Sage, II Director January 10, 2001
------------------------------------------------------------
Andrew G.C. Sage, II
/s/ Emily Heisley Stoeckel Director January 10, 2001
------------------------------------------------------------
Emily Heisley Stoeckel
</TABLE>
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<PAGE>
WORLDPORT COMMUNICATIONS, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
-------------
Exhibit
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4.1 WorldPort Communications, Inc. 2000 Long-Term Stock Incentive Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of Swidler Berlin Shereff Friedman, LLP (in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in signature page to this registration
statement).
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