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EXHIBIT 4.5
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 Christopher E. Edgecomb
("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 13,166,256 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, except to the extent that its enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally. No filing
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with, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person 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 13,166,256 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 13,166,256 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 STAR Subject Shares. None of such STAR
Subject Shares are subject to any voting trust or other agreement, arrangement
or restriction with respect to the voting or transfer thereof, 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 7 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. Stockholder shall not hereafter,
unless and until this Agreement terminates pursuant to Section 7 hereof, purport
to grant (other than through the irrevocable proxy granted in Section 2(b)) any
proxy or power of attorney with respect to any of the STAR Subject Shares,
deposit any of the STAR Subject Shares into a voting trust or enter into any
agreement (other than this Agreement), arrangement or understanding with any
Person, directly or indirectly, to vote, grant any proxy or give instructions
with respect to the voting of any of the STAR Subject Shares. Stockholder
further agrees not to commit or agree to take any action inconsistent with the
foregoing.
(b) Proxy. Stockholder hereby grants to and appoints WAXS and any
individual designated in writing by WAXS, as Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Stockholder, a proxy to vote, or to grant a consent or approval in
respect of and to represent, all of the STAR Subject Shares then beneficially
owned by Stockholder in the manner indicated in Section 2(a) above to the same
extent as Stockholder may have under applicable law, rules and regulations.
Stockholder agrees that this proxy shall be irrevocable and coupled with an
interest and may under no circumstances be revoked, agrees to take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously granted by
Stockholder with respect to any of the STAR Subject Shares. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the DGCL.
(c) Pre-Closing Transfer Restrictions. Stockholder agrees that,
until the earlier of the Effective Time and the termination of this Agreement,
Stockholder will not (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.
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(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 the longer of (x) six (6) months following the Effective Time and (y) such
time as Stockholder is a member of the Board of Directors of WAXS. 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 receipt of notice of the Proposed
Action, Stockholder shall be free to consummate the Proposed Action.
3. Registration Rights.
(a) Definitions. For purposes of this Section 3, the terms
"register", "registered" and "registration" refer to a registration effected by
preparing and filing with the Securities and Exchange Commission (the
"Commission") a registration statement or similar document in compliance with
the Securities Act of 1933, as amended (the "Securities Act"), and using
commercially reasonable efforts to obtain from the Commission the declaration or
ordering of effectiveness of such registration statement or document.
(b) Piggyback Registration. If at any time WAXS shall propose to
register any of its capital stock for sale or disposition (i) for its own
account for cash under the Securities Act in a public offering, other than a
registration relating to acquisitions or employee benefit plans, or (ii) for the
account of any selling stockholder, WAXS shall, to the extent permitted under
any agreements existing on the date hereof:
(i) Promptly give Stockholder at least ten (10) days'
written notice prior to the filing thereof, which notice shall include the
proposed date on which the registration statement is to be filed, the proposed
price per share and a list of the jurisdictions in which WAXS intends to attempt
to qualify such securities under the applicable blue sky or other state
securities laws ("Blue Sky Laws"); and
(ii) Include in such registration (and any related
qualification under Blue Sky Laws), and in any underwriting involved therein,
all of the shares of WAXS Common Stock then held by Stockholder which were
acquired pursuant to the Merger Agreement and
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which are not publicly saleable under the Commission's Rule 144 (the "Remaining
Shares") and which are specified in a written request or requests made by
Stockholder within ten (10) days after receipt of such written notice from WAXS;
provided, however, that in no event shall Stockholder request that WAXS include
either less than twenty-five percent (25%) of such Remaining Shares or Remaining
Shares then held by Stockholder having a value of less than $2,000,000 in such
registration.
(c) Underwriting Agreement. The right of Stockholder to
registration pursuant to this Section 3 shall be conditioned upon Stockholder's
participation in any underwriting relating to WAXS's registered public offering.
Stockholder shall (together with WAXS) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected by WAXS.
Notwithstanding any provision of this Section 3, if the managing underwriter in
its reasonable judgment determines that marketing factors require a limitation
of the number of securities to be underwritten, the underwriter may exclude some
or all of the Remaining Shares for which Stockholder seeks registration from
inclusion in the registration and underwriting; provided, however, that if WAXS
proposes to include in such registration shares of capital stock held by
shareholders of WAXS other than Stockholder ("Other Holders"), then the number
of shares to be so excluded shall be allocated among Stockholder and the Other
Holders pro rata based upon the number of shares of capital stock proposed to be
included in the registration by each of them, so long as such allocation is
consistent with any existing agreements between WAXS and a third party.
(d) Expenses of Registration. WAXS shall bear all registration
costs and expenses related to any registration and underwriting contemplated by
this Section 3, except that Stockholder shall bear (i) all underwriting
commissions (and transfer taxes, if any) relating to the Remaining Shares
registered and (ii) the fees and expenses of legal counsel and accountants to
Stockholder.
(e) Indemnification. In the event any Remaining Shares are
included in a registration statement under this Section 3:
(i) To the extent permitted by law, WAXS will indemnify
and hold harmless Stockholder against any losses, claims, damages or liabilities
to which he may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), any Blue Sky Laws, or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (x) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (y) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(z) any violation or alleged violation by WAXS of the Securities Act, the
Exchange Act, any Blue Sky Laws or any rule or regulation promulgated under the
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Securities Act, the Exchange Act or any Blue Sky Law. Notwithstanding the
preceding, WAXS shall not be liable in any such case to Stockholder for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon written information
furnished by Stockholder expressly for use in connection with such registration.
(ii) To the extent permitted by law, Stockholder will indemnify and
hold harmless WAXS, each of its directors, officers, agents and affiliates and
each person, if any, who controls any of the foregoing within the meaning of the
Securities Act, and any underwriter, against any losses, claims, damages or
liabilities to which WAXS or any such director, officer, controlling person, or
underwriter may become subject, under the Securities Act, the Exchange Act, any
Blue Sky Laws or other federal or state law, but only insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs solely in reliance upon and in conformity
with written information relating to the Remaining Shares furnished by
Stockholder expressly for use in connection with such registration.
(iii) Notwithstanding the preceding, the indemnity agreements
contained in this Section 3 shall not apply to amounts paid in settlement of any
loss, claim, damage, liability or action if such settlement is effected without
the consent of the indemnifying party, which consent shall not be unreasonably
withheld.
(iv) Promptly after receipt by an indemnified party under this
Section 3 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 3, deliver to
the indemnifying party a written notice of the commencement thereof. Following
receipt of such notice, the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the indemnified party under
this Section 3 unless, and to the extent, that the indemnifying party can
demonstrate that such failure was materially prejudicial to its ability to
defend such action.
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(v) The obligations of WAXS and Stockholder
under this Section 3 shall survive the completion of any offering of
Remaining Shares in a registration statement under this Section 3.
(f) Stockholder's Obligations. Whenever registration of
any of Stockholder's Remaining Shares is being effected, WAXS may
require Stockholder to furnish WAXS with the information required by
Item 507 of Regulation S-K promulgated by the Commission (or any
equivalent provision subsequently promulgated by the Commission),
together with such other information as WAXS may reasonably request
in writing.
4. Rule 16b-3 Approval. WAXS will cause its Board of Directors to
take any and all necessary and appropriate action under Rule 16b-3 promulgated
by the Commission in order to make the acquisition of WAXS Common Stock by
Stockholder pursuant to the Merger Agreement exempt under Section 16 of the
Exchange Act.
5. STAR Employees.
(a) Non-Solicitation. Stockholder shall not, for one (1)
year following the Effective Time, solicit for employment, directly or
on behalf of any other party, any persons who (i) are employed by STAR
(or any of its affiliates) on the date hereof or (ii) were employed by
STAR (or any of its affiliates) during the three (3) months prior to
the date hereof, through and including the Effective Time (such persons
collectively being referred to as "STAR Employees"), or induce or
attempt to induce the termination of any such person's employment with
WAXS (or any of its affiliates).
(b) Employment. For one (1) year following the Effective
Time, without the prior written consent of WAXS (i) neither Stockholder
nor any entity controlled by Stockholder shall hire or employ any STAR
Employee and (ii) Stockholder shall use reasonable best efforts to
cause any entity with which Stockholder is then affiliated not to hire
or employ any STAR Employee.
(c) Exception. Paragraphs (a) and (b) above notwithstanding,
Stockholder may solicit and employ Susan Mire at any time.
6. 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.
7. 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.
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8. 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:
Christopher E. Edgecomb
PMB 12
133 East De La Guerra Street
Santa Barbara, CA 93101-2247
Facsimile: (805) 682-2150
with a copy to:
Seed, Mackall & Cole LLP
1332 Anacapa Street, Suite 200
Santa Barbara, CA 93101
Attention: John R. Mackall
Facsimile: (805) 962-1404
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
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(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 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
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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.
(h) Attorneys' Fees. Should any action or proceeding be
brought to construe or enforce the terms and conditions of this
Agreement or the rights of the parties hereunder, the losing party
shall pay to the prevailing party all court costs and reasonable
attorneys' fees and costs incurred in such action or proceeding.
Attorneys' fees incurred in enforcing any judgment in respect of this
Agreement are recoverable as a separate item. The preceding sentence is
intended to be severable from the other provisions of this Agreement
and to survive any judgment and, to the maximum extent permitted by
law, shall not be deemed merged into any such judgment.
(i) 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.
(j) 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 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/ Christopher E. Edgecomb
-------------------------------------------------
Christopher E. Edgecomb
WORLD ACCESS, INC.
By: /s/ W. Tod Chmar
----------------------------------------------
Name: W. Tod Chmar
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Schedule 1
Margin Loan Agreements
1. Command Account Margin Agreement between Prudential Securities
Incorporated and Christopher Edgecomb, Trustee of Christopher E.
Edgecomb Living Trust (not dated).
2. Cash Management Account Agreement between Merrill Lynch and Christopher
Edgecomb, Trustee of Christopher E. Edgecomb Living Trust (not dated).
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