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EXHIBIT 4.4
VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT
This VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT (this
"Agreement"), dated as of February 11, 2000, is made and entered into among
World Access, Inc., a Delaware corporation ("WAXS"), and Samer Tawfik
("Stockholder").
WHEREAS, WAXS and STAR Telecommunications, Inc. ("STAR") propose to
enter into an Agreement and Plan of Merger, dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement ), providing for a business combination between WAXS and STAR (the
"Transaction"), upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, Stockholder owns 9,183,711 shares of STAR Common Stock (such
shares of STAR Common Stock, together with any other shares of STAR capital
stock of which Stockholder acquires beneficial ownership after the date hereof
and during the term of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution or otherwise, being
collectively referred to herein as the "STAR Subject Shares");
WHEREAS, in connection with its approval of the Merger Agreement and
the Transaction, the Board of Directors of STAR has approved this Agreement in
accordance with Section 203 of the DGCL; and
WHEREAS, as a condition to its willingness to enter in the Merger
Agreement, WAXS has requested that Stockholder enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
1. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to WAXS as follows:
(a) Authority; No Conflicts. Stockholder has the legal
capacity and all requisite power and authority to enter into this
Agreement, to perform his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by Stockholder and constitutes a
valid and binding obligation of Stockholder enforceable in accordance
with its terms. No filing with, and no permit, authorization, consent
or approval of, any Governmental Entity or any other Person
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is necessary for the execution of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby and none of
the execution and delivery of this Agreement by Stockholder, the consummation
of the transactions contemplated hereby or compliance with the terms hereof by
Stockholder will conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any provision of any
agreement to which Stockholder is a party, including any voting agreement,
stockholders agreement, voting trust, trust agreement, pledge agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license or violate any judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable
to Stockholder or to his property or assets.
(b) The STAR Subject Shares. Stockholder is the record and
beneficial owner of, and has good and marketable title to, 9,183,711 shares of
STAR Common Stock, free and clear of any encumbrances, agreements, adverse
claims, liens or other arrangements with respect to the ownership of or the
right to vote or dispose of such shares of STAR Common Stock, other than with
respect to various margin positions taken by Stockholder with respect to a
portion of such shares that have been pledged pursuant to the margin loan
agreements set forth on Schedule 1 hereto (the "Margin Requirements"). Other
than such 9,183,711 shares of STAR Common Stock, Stockholder does not
beneficially or of record own any shares of STAR capital stock or securities
convertible or exchangeable for shares of STAR capital stock. Stockholder has
the sole right and power to vote and, subject to the Margin Requirements,
dispose of such shares of STAR Common Stock. None of such 9,183,711 shares of
STAR Common Stock are subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or transfer of any of the
shares of STAR Common Stock, except as contemplated by this Agreement and
except with respect to the Margin Requirements.
(c) STAR Stock Options. Stockholder does not own, as of the date
hereof, and will not acquire prior to the Effective Time, any STAR Stock
Options.
2. Covenants of Stockholder. Until the termination of this Agreement
in accordance with Section 4 hereof, Stockholder agrees as follows:
(a) Voting of STAR Subject Shares. At any meeting of stockholders
of STAR or at any adjournment thereof or in any other circumstances upon which
Stockholder's vote, consent or other approval (including by written consent) is
sought, Stockholder shall vote all of the STAR Subject Shares then beneficially
owned by Stockholder (i) in favor of the Transaction and the adoption and the
approval of the Merger Agreement and each of the other transactions
contemplated by the Merger Agreement, (ii) against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of STAR under the Merger Agreement and (iii)
against any action or agreement that would impede, interfere with, delay or
postpone or that would reasonably be expected to discourage the Transaction,
including, but not limited to: (A) any
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extraordinary corporate transactions (other than the Transaction), such as a
merger, consolidation or other business combination involving STAR or its
Subsidiaries, a sale or transfer of a material amount of assets of STAR or its
Subsidiaries or a reorganization, recapitalization or liquidation of STAR or
its Subsidiaries; (B) any amendment of STAR's certificate of incorporation or
bylaws or other proposal or transaction involving STAR or any of its
Subsidiaries, which amendment or other proposal or transaction would in any
manner impede, prevent or nullify the Transaction, the Merger Agreement or any
of the other transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of STAR capital stock; or (C) any change
in the management or board or directors of STAR.
(b) [INTENTIONALLY OMITTED.]
(c) Pre-Closing Transfer Restrictions. Stockholder agrees not to
(i) sell, hypothecate, transfer, pledge, encumber, assign or otherwise dispose
of (including by gift) (collectively, "Transfer"), or enter into any contract,
option, put, call or other arrangement or understanding (including any profit
sharing arrangement) with respect to the Transfer of, any of the STAR Subject
Shares to any Person, other than with respect to the Margin Requirements, (ii)
trade or take any position, hedge or otherwise, with respect to the STAR
Subject Shares, (iii) enter into any voting arrangement or understanding,
whether by proxy, voting agreement or otherwise, with respect to any of the
STAR Subject Shares or (iv) take any action that would make any of its
representations or warranties contained herein untrue or incorrect or have the
effect of preventing or impeding Stockholder from performing any of his
obligations under this Agreement; provided, however, that Stockholder may,
prior to the Effective Time and subject to compliance with all applicable legal
requirements (including, without limitation, all applicable securities laws,
rules, regulations and requirements), Transfer up to 2,430,671 shares of
Stockholder's STAR Common Stock to unaffiliated third parties in one or more
arms-length transactions.
(d) Post-Closing Transfer Restrictions. Stockholder agrees not to
(i) Transfer, or enter into any contract, option, put, call or other
arrangement or understanding (including any profit sharing arrangement) with
respect to the Transfer of, any of the shares of WAXS Common Stock issued to
Stockholder pursuant to the Merger Agreement to any Person, or (ii) trade or
take any position, hedge or otherwise, with respect to such shares of WAXS
Common Stock, for six (6) months following the Effective Time. If, at any time
after six (6) months and within eighteen (18) months following the Effective
Time, Stockholder desires to take any action referred to in clauses (i) or (ii)
above (a "Proposed Action"), Stockholder shall give prior written notice of
such Proposed Action to WAXS, specifying the number of shares subject to the
Proposed Action. Stockholder acknowledges and agrees that WAXS shall have the
first right to assist in the private disposition of the shares specified in
such notice of Proposed Action to an "accredited investor" or "qualified
institutional buyer" (as such terms are defined in Exchange Act). If WAXS is
unable to arrange such a private disposition on terms reasonably satisfactory
to Stockholder within thirty (30) days after
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receipt of notice of the Proposed Action, Stockholder shall be free to
consummate the Proposed Action.
3. Assignment. Neither this Agreement nor any of the right,
interests or obligations hereunder may be assigned by any party hereto without
the prior written consent of the other party hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
4. Termination. This Agreement shall terminate, and no party
hereto shall have any rights or obligations hereunder, upon the termination of
the Merger Agreement in accordance with its terms.
5. General Provisions.
(a) Amendments. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
(b) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery
in person, by telecopy or by registered or certified mail (postage
prepared, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
if to Stockholder, to:
Samer Tawfik
27-10 Little Neck Boulevard
Bayside, NY 11360
with a copy to:
Herrick, Feinstein LLP
Two Park Avenue
New York, NY 10016
Attention: John R. Goldman
Facsimile: (212) 889-7577
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if to WAXS, to:
Resurgens Plaza, Suite 2210
945 East Paces Ferry Road
Atlanta, GA 30326
Attention: W. Tod Chmar
Facsimile: (404) 233-2280
with a copy to:
Long Aldridge & Norman LLP
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308
Attention: H. Franklin Layson
Facsimile: (404) 527-4198
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Governing Law; Jurisdiction; Waiver. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware regardless of the laws that might otherwise govern under applicable
principles of conflicts or law. Each of WAXS and Stockholder irrevocably agrees
that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the
other party hereto or its successors or assigns may be brought and determined
in the Chancery or other Courts of the State of Delaware, and each of WAXS and
Stockholder hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the nonexclusive jurisdiction of the aforesaid courts. Each
of WAXS and Stockholder hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (i) any right to trial by jury with
respect to any action, suit or proceeding arising out of or relating to this
Agreement, (ii) any claim that it is not personally subject to the jurisdiction
of the above named courts for any reason other than the failure to lawfully
serve process, (iii) that it or its property is exempt or immune
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from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and (iv) to the fullest
extent permitted by applicable law, that (a) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (b)
the venue of such suit, action or proceeding is improper and (c) this
Agreement, or the subject matter hereof, may not be enforced in or by
such courts.
(f) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule or law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse
to any party. Upon any determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
(g) Action as Stockholder; No Limitation. Stockholder has
agreed to the terms and conditions of this Agreement solely in his
capacity as a holder of shares of STAR Common Stock. WAXS acknowledges
and agrees that none of the provisions of this Agreement shall be
deemed to limit, restrict or otherwise hinder the ability of
Stockholder, in his capacity as a member of the Board of Directors of
STAR, to exercise his fiduciary duties under applicable law.
6. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that, in addition to any other remedy to which it may
be entitled, at law or in equity, the parties shall be entitled to the remedy
of specific performance of the covenants and agreements contained herein and
injunctive and other equitable relief.
7. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto. Except as provided in the
preceding sentence, nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any rights, benefits or remedies or
any nature whatsoever under or by reason of this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, Stockholder and WAXS have caused this Agreement to
be signed by its signatory thereunto duly authorized, as of the date first
written above.
STOCKHOLDER
/s/ Samer Tawfik
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Samer Tawfik
WORLD ACCESS, INC.
By: /s/ W. Tod Chmar
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Name: W. Tod Chmar
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SCHEDULE 1
MARGIN LOAN AGREEMENTS
None.
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