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EXHIBIT 4.8
VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT
This VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT (this "Agreement),
dated as of February 11, 2000 (this "Agreement"), is made and entered into among
World Access, Inc., a Delaware corporation ("WAXS"), and Gold & Appel Transfer
S.A., an entity organized under the laws of the British Virgin Islands
("Stockholder").
WHEREAS, WAXS and Communication TeleSystems International d/b/a
WORLDxCHANGE Communications ("CTI") 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 CTI (the "Transaction"), upon the terms
and subject to the conditions set forth in the Merger Agreement;
WHEREAS, Stockholder owns 4,505,043 shares of CTI Common Stock, 30,000
shares of CTI Series A Preferred Stock and 37,500 shares of CTI Series B
Preferred Stock (such shares of CTI Common Stock and CTI Preferred Stock,
together with any other shares of CTI 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 "CTI Subject Shares") and CTI Stock Options to acquire 170,000
shares of CTI Common Stock; 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. Except as set
forth on Schedule 1 attached hereto, 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 its 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 authority 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 the certificate of incorporation,
bylaws or
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analogous documents of Stockholder or 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 its property or
assets except (i) where the failure to make such filings or obtain such
permits, authorizations, consents or approvals would not prevent or
delay the performance by Stockholder of its obligations under this
Agreement or (ii) for any such conflicts, violations, defaults or other
occurrences that would not prevent or delay the performance by
Stockholder of its obligations under this Agreement.
(b) CTI Subject Shares. Stockholder is the record and
beneficial owner of, and has good and marketable title to, 4,505,043
shares of CTI Common Stock, 30,000 shares of CTI Series A Preferred
Stock and 37,500 shares of CTI Series B Preferred 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 CTI Capital Stock. Other than such shares of
CTI Capital Stock, Stockholder does not beneficially or of record own
any shares of CTI capital stock or securities convertible or
exchangeable for shares of CTI capital stock. Stockholder has the sole
right and power to vote and dispose of such shares of CTI Capital
Stock. None of such shares of CTI Capital 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 CTI Capital
Stock, except as contemplated by this Agreement.
(c) CTI Stock Options. Stockholder owns CTI Stock Options
to acquire 170,000 shares of CTI Common Stock. Other than such CTI
Stock Options, Stockholder has no options, warrants or other rights to
acquire shares of CTI capital stock or securities convertible into
shares of CTI capital stock.
2. Covenants of Stockholder. Until the termination of this
Agreement in accordance with Section 4 hereof, Stockholder agrees as follows:
(a) Voting of CTI Subject Shares. At any meeting of
stockholders of CTI 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 CTI Subject Shares then beneficially owned by Stockholder (i) in
favor of the Transaction and the adoption and approval of the Merger
Agreement and each of the other transactions contemplated by the Merger
Agreement and (ii) against any action or agreement that would result in
a material breach of any covenant, representation or warranty or any
other obligation or agreement of CTI under the Merger Agreement.
Stockholder shall not hereafter, unless and until this Agreement
terminates pursuant to Section 4 hereof, purport to grant any proxy or
power of attorney with respect to any of the CTI Subject Shares,
deposit any of the CTI 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
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the voting of any of the CTI Subject Shares. Stockholder further agrees
not to commit or agree to take any action inconsistent with the
foregoing.
(b) Pre-Closing Transfer Restrictions. Except as
contemplated by this Agreement or the Merger Agreement, 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 CTI Subject Shares or CTI Stock Options
to any person, (ii) trade or take any position, hedge or otherwise,
with respect to the CTI Subject Shares, (iii) enter into any voting
arrangement or understanding, whether by proxy, voting agreement or
otherwise, with respect to any of the CTI Subject Shares or (iv) take
any action that would make any of its representations or warranties
contained herein untrue or incorrect to a material extent or have the
effect of preventing or materially impeding Stockholder from performing
any of its obligations under this Agreement. Notwithstanding the
foregoing, Stockholder may Transfer any of CTI Subject Shares or CTI
Stock Options to any person who (x) is, at the time of such Transfer,
already subject to an agreement with WAXS substantially identical in
form and substance hereto (in which case, the CTI Subject Shares or CTI
Stock Options subject to the Transfer shall be governed by such
substantially identical agreement) or (y) delivers to WAXS a
counterpart of this Agreement duly executed by such person and
otherwise agrees to be bound by all the terms and conditions hereof,
and WAXS is otherwise reasonably satisfied that this Agreement is fully
enforceable against such person; provided, however, that Stockholder
shall not be entitled to Transfer any of the CTI Subject Shares or CTI
Stock Options unless immediately following such Transfer, the aggregate
number of CTI Subject Shares and CTI Stock Options subject to the terms
and conditions hereof and/or to the terms and conditions of a
substantially identical agreement or agreements with WAXS shall be at
least equal to the aggregate number of CTI Subject Shares and CTI Stock
Options which are subject to the terms and conditions of this Agreement
as of the date of the Merger Agreement.
(c) Post-Closing Transfer Restrictions. Until six (6)
months following the Effective Time, 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
the shares of WAXS Common Stock issued to Stockholder pursuant to the
Merger Agreement.
3. No Ownership Interest. Except as set forth in Section 2,
nothing contained in this Agreement shall be deemed to vest in anyone other than
Stockholder any direct or indirect ownership or incidents of ownership of or
with respect to any of the CTI Subject Shares or the CTI Stock Options. All
rights, ownership and economic benefits of and relating to the CTI Subject
Shares and the CTI Stock Options shall remain and belong to Stockholder, and no
one shall have any authority to manage, direct, restrict, regulate, govern, or
administer any of the
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policies or operations of CTI or exercise any power or authority to direct the
voting of any of the CTI Subject Shares as a result of this Agreement, except to
the extent set forth in Section 2(a).
4. Assignment. Except as otherwise specifically provided herein,
neither this Agreement nor any of the right, interests or obligations hereunder
may be assigned by any of the parties hereto without the prior written consent
of the other parties hereto.
5. Termination. This Agreement shall terminate, and no party
hereto shall have any rights or obligations hereunder, upon the earlier to occur
of (i) the termination of the Merger Agreement pursuant to Article IX thereof or
(ii) the lapse of the restrictions set forth in Section 2(c) hereof.
6. Conversion of Preferred Stock. Stockholder acknowledges and
agrees that any accrued and unpaid dividends owed to Stockholder in respect of
its shares of CTI Preferred Stock in connection with the automatic conversion of
such CTI Preferred Stock under the articles of incorporation of CTI upon
consummation of the Merger shall be paid solely in shares of WAXS Common Stock
(valued at $20.38 per share).
7. 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:
Gold & Appel Transfer S.A.
Post Office Box 985
Wickhams Cay Road Town
Tortula, British Virgin Islands
Facsimile: (202) 736-5065
with a copy to:
Mr. Walt Anderson
1023 31st Street
Washington, D.C. 20007
Facsimile: (202) 736-5065
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and
O'Melveny & Myers LLP
610 Newport Center Drive
17th Floor
Newport Beach, California 92660
Attention: David A. Krinsky, Esq.
Facsimile: (949) 823-6994
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 two
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. 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.
(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
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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 the transactions
contemplated hereby are fulfilled to the extent possible.
8. 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.
9. 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 duly and validly executed as of the date first written above.
"STOCKHOLDER":
GOLD & APPEL TRANSFER S.A.
By: /s/ Walter Anderson
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Name: Walter Anderson
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Title: Power of Attorney in fact
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"WAXS":
WORLD ACCESS, INC.
By: /s/ W. Tod Chmar
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Name: W. Tod Chmar
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Title: Executive Vice President
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SCHEDULE I
1. In order to convert preferred stock owned by stockholder, clearance under
Hart Scott Rodino Antitrust Act of 1976, as amended, may be required.
2. Gold & Appel has certain co-sale rights pursuant to the Stock Purchase
Agreement, dated September 29, 1998, among Communication TeleSystems
International d/b/a WORLDxCHANGE Communications, Gold & Appel, L.P., Roger
B. Abbott, Rosalind Abbott and Edward S. Soren.
3. Gold & Appel has the right to subscribe to certain additional issuances of
shares of capital stock, convertible securities or option grants of the
Company pursuant to (i) the Stock Purchase Agreement, dated September 29,
1998, by and between Communication TeleSystems International d/b/a
WORLDxCHANGE Communications, Roger B. Abbott, Rosalind Abbott, Edward S.
Soren and Gold and Appel Transfer S.A., ("Gold & Appel"), (ii) the Stock
Purchase Agreement, dated May 10, 1999, between Gold & Appel and
Communication TeleSystems International d/b/a WORLDxCHANGE Communications,
(iii) the Stock Purchase Agreement, dated August 16, 1999, between Gold &
Appel and Communication TeleSystems International d/b/a WORLDxCHANGE
Communications and (iv) the Stock Purchase Agreement, dated November 1,
1999, between Gold & Appel and Communication TeleSystems International
d/b/a WORLDxCHANGE Communications.