EXHIBIT 2.4
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
duly 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
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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)
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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 properly 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
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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, Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx 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
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disbursements of counsel, which currently is Much Shelist Freed Xxxxxxxxx Xxxxx
& Xxxxxxxxxx, 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
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(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.
0000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: President
IF TO THE SHAREHOLDER, TO:
The Heico Companies, LLC
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
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
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court of Xxxx 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 Xxxx 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.
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IN WITNESS WHEREOF, this Agreement has been duly executed on
the date first set forth above.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman, President and Chief
Executive Officer
THE HEICO COMPANIES, LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
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DISCLOSURE SCHEDULE
(a) Any approvals required under that certain Credit Agreement
dated June 23, 1998 by and among the Company, Worldport International Inc.,
Bankers Trust Company, as Administrative Agent and the financial institutions
party thereto, which approvals have been obtained
(b) Notification of the issuance of the Shares and the shares
of capital stock issuable upon exercise of the Option Agreement (and the Common
Stock issuable upon conversion of the Shares and the shares of capital stock
issuable upon exercise of the Option Agreement) in accordance with Nasdaq
requirements
(c) Stockholder approval of the issuance of the Shares and the
shares of capital stock issuable upon exercise of the Option Agreement (and the
Common Stock issuable upon conversion of the Shares and the shares of capital
stock issuable upon exercise of the Option Agreement) in accordance with Nasdaq
requirements
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