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EXHIBIT 4.9
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
Edward S. Soren ("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 7,331,812 shares of CTI Common Stock, (such
shares of CTI Common 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
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 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
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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, 7,331,812
shares of CTI 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
CTI Common Stock. Other than such shares of CTI Common 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 Common Stock. None of such shares of
CTI 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 CTI Common Stock, except as contemplated by this
Agreement.
(c) CTI Stock Options. Stockholder does not own any CTI 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 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 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
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of, any of the CTI Subject Shares 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 the CTI Subject Shares 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 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 unless immediately following such Transfer, the aggregate
number of CTI Subject Shares 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 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. Notwithstanding the foregoing, at any time following
the Effective Time, Stockholder shall be permitted to Transfer, in
accordance with applicable laws, up to 750,000 shares of the 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. All rights, ownership and
economic benefits of and relating to the CTI Subject Shares shall remain and
belong to Stockholder, and no one shall have any authority to manage, direct,
restrict, regulate, govern, or administer any of the 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.
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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. 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:
9999 Willow Creek Road
San Diego, California 92131
Facsimile: (858) 452-3780
with a copy to:
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
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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 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.
7. 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.
8. 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
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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":
/s/ Edward S. Soren
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Edward S. Soren
"WAXS"
WORLD ACCESS, INC.
By: /s/ W. Tod Chmar
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Name: W. Tod Chmar
Title: Executive Vice President
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SCHEDULE I
1. In connection with the Security Agreement by and between CTI and Gerald
Klauer Mattison & Co., ("GKM") dated as of August 25, 1998, which was
assigned to Tel-Save Holdings, Inc. ("Tel-Save") pursuant to the Assignment
Agreement by and between GKM and Tel-Save dated as of August 25, 1999 and
which was subsequently assigned to Mark Pavol, as Trustee of that certain
D&K Grantor Retained Annuity Trust dated June 15, 1998, Mr. Soren pledged
1,156,977 shares as security for that loan.
2. Mr. Soren has entered into a Voting Trust Agreement with Roger Abbott, and
in favor of Roger Abbott, for one million shares of his stock of CTI dated
as of March 1, 1998.
3. Mr. Soren has granted certain co-sale rights to Gold & Appel pursuant to
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.
4. Mr. Soren has granted certain co-sale rights to Atocha pursuant to 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 Atocha, L.P.
5. Mr. Soren has granted certain co-sale rights to the TVG Asian
Communications Fund pursuant to the Stock Purchase Agreement, dated August
24, 1998, by and between Communication TeleSystems International d/b/a
WORLDxCHANGE Communications, WorldxChange B.V.B.A., WXL International-
Australia, Inc., The TVG Asian Communications Fund, Warna Gerakan Sdn Bhd,
WorldxChange Pty., Ltd. and certain individuals named therein.