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"), Xxxx X. Xxxxx ("XXXXX"), Xxxxxxx X. Xxxxxxx ("XXXXXXX") and Xxxxxxxx
X. Xxxxxxxxx ("XXXXXXXXX") amends that certain Shareholder Agreement, dated as
of December 31, 1998, between the Corporation, the Investor, MBCP, Xxxxx,
Xxxxxxx and Xxxxxxxxx (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 Xxxxx.
"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.
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.
Xxxx X. Xxxxx
By:
Its:
Xxxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
