AMENDMENT TO MERGER AGREEMENT
This Amendment to Merger Agreement (the "Amendment") is entered into as of
July __, 1998, by and between Xx. Xxxxx Xxxxxxxx ("Seller"), International
InterConnect, Inc. (the "Company"), WorldPort Communications, Inc., a Delaware
corporation ("Purchaser") and IIC Acquisition Corp., a Delaware corporation and
a wholly-owned subsidiary of Purchaser ("Newco"). Seller, the Company,
Purchaser and Newco are referred to collectively herein as the "Parties."
The Parties executed a Merger Agreement (the "Agreement") on May 22, 1998.
The Parties desire to amend certain provisions of the Agreement, as set
forth herein.
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows.
Section 1. Closing. The Parties hereby agree that they will use their
reasonable best efforts to cause all of the conditions to Closing contained in
the Agreement to be satisfied on or before August 1, 1998, and to consummate the
Closing on August 1, 1998.
Section 2. Amendment to Section 2(d)(v)(B). Section 2(d)(v)(B) of the
Agreement is hereby amended and restated in its entirety to read as follows:
"(B) At and as of the Effective Time, all of the Shares issued and
outstanding immediately prior to the Effective Time shall be converted into
the right to receive an aggregate amount (the "Merger Consideration") equal
to (i) $500,000, plus (ii) 772,727 shares of WorldPort Common Stock, plus
(iii) shares of WorldPort Common Stock representing the Estimated Net
Working Capital less the Payoff Indebtedness, calculated at a value of
$11.00 per share (the "Preliminary Merger Consideration"). The Preliminary
Merger Consideration shall be paid as follows: (1) (A) an amount equal to
$250,000 shall be paid to Seller at the Closing, by delivery of cash
payable by wire transfer or delivery of other immediately available funds
and (B) a stock certificate (the "Stock Certificate") shall be delivered to
Seller at the Closing representing 734,227 shares of WorldPort Common Stock
plus such number of shares of WorldPort Common Stock as represents the
value of the Estimated Net Working Capital less the Payoff Indebtedness,
calculated at $11.00 per share, (2) a stock certificate representing 38,500
shares of WorldPort Common Stock (the "Escrow Amount") shall at the Closing
be deposited in an escrow account (the "Escrow") established pursuant to
the terms and conditions of the escrow agreement by and among Purchaser,
Newco, Seller and an escrow agent (the "Escrow Agent") substantially in the
form of Exhibit B attached hereto (the "Escrow Agreement"); and (3) an
amount equal to $250,000 shall be paid to Seller on or before the closing
of the notes offering currently contemplated by Purchaser, but in any event
no later than September 1, 1998, by delivery of cash payable by wire
transfer or delivery of other immediately available funds. The Preliminary
Merger Consideration will be subject to post-closing adjustment, as set
forth in Section 2(e) below and, as so adjusted is referred to herein as
the "Adjusted Merger Consideration", and to additional post-Closing
adjustment, as set forth in Section 8 below and, as so additionally
adjusted, is referred to herein as the "Merger Consideration"."
Section 3. Amendments to Section 2(e)(v). Section 2(e)(vi) of the
Agreement is hereby amended and restated in its entirety to read as follows:
"If the Adjusted Merger Consideration exceeds the Preliminary Merger
Consideration, Purchaser shall deliver to Seller a stock certificate
representing such number of shares of WorldPort Common Stock as represents
such excess, calculated based on a per share price of $11.00. If the
Adjusted Merger Consideration is less than the Preliminary Merger
Consideration, Seller shall cause to be delivered to Purchaser such number
of shares of WorldPort Common Stock as represents such deficiency,
calculated based on a per share price of $11.00, by delivery of the Stock
Certificate to Purchaser's transfer agent with instructions to transfer the
appropriate number of shares to Purchaser and to issue a certificate to
Seller for the balance. Such payments shall be made no later than five
business days after (A) the 30th day after the Draft Closing Date Balance
Sheet has been given by Purchaser to Seller, if Seller has not objected to
the Draft Closing Date Balance Sheet within such 30 day period; (B)
Purchaser and Seller have resolved any objection raised by Seller; or (C)
the date the determination of the accountant described in clause (ii) above
is given to Purchaser and Seller."
Section 4. Amendment to Section 8(b). The third sentence of Section 8(b)
is hereby amended and restated in its entirety as follows:
"For purposes of the immediately preceding sentence, the shares of
WorldPort Common Stock shall be deemed to have a value equal to $11.00 per
share."
Section 5. Amendments to Exhibits F and G. Exhibits F and G to the
Agreement shall be amended and restated in their entirety such that the
Employment Agreement to be entered into between Seller and either Purchaser or
Newco, pursuant to Section 6(a)(vii) and Section 6(b)(iv), shall be in the form
attached hereto as Exhibit F and the Key Employee Agreements to be entered into
between either Purchaser or Newco and the Key Employees, pursuant to Section
6(a)(vii) and Section 6(b)(iv), shall be in the form attached hereto as Exhibit
G.
Section 6. Commitments by Purchaser.
(a) Switch. Purchaser hereby agrees that, as soon as practicable
following the Closing, it shall use its reasonable best efforts to transfer to
the Surviving Corporation, or otherwise grant the Surviving Corporation access
to, a switch of appropriate size to meet the Company's current revenue growth
outlook.
(b) Analyst. Purchaser hereby agrees that, as soon as practicable
following the Closing, it shall use its reasonable best efforts to cause the
Surviving Corporation to employ, or otherwise obtain access to, an analyst or
other appropriate individual to assist the Surviving Corporation in the
development of its Argentina PTO business plan by September 15, 1998.
Section 7. Terms of the Agreement Survive. Except as otherwise provided
herein, all terms of the Agreement shall survive. All capitalized terms used
but not defined herein shall have the meanings given in the Agreement.
Section 8. Miscellaneous.
(a) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(b) Headings. The section headings contained in this Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF FLORIDA WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (EITHER OF THE STATE
OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF FLORIDA.
* * * * *
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
WORLDPORT COMMUNICATIONS, INC.
By:
Name: ____________________________
Title: _____________________________
IIC ACQUISITION CORP.
By:
Name: ____________________________
Title: _____________________________
INTERNATIONAL INTERCONNECT, INC.
By:
Name: ____________________________
Title: _____________________________
XX. XXXXX XXXXXXXX
