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EXHIBIT 10.36
EXECUTIVE MANAGEMENT SERVICES AGREEMENT
This EXECUTIVE MANAGEMENT SERVICES AGREEMENT (this "Agreement"), dated
as of August 1, 2000, is by and between WORLD ACCESS, INC., a Delaware
corporation ("WAXS"), and COMMUNICATION TELESYSTEMS INTERNATIONAL d/b/a
WORLDxCHANGE COMMUNICATIONS, a California corporation ("WorldxChange").
WITNESSETH:
WHEREAS, WAXS, WorldxChange and WORLDxCHANGE Communications, Inc. f/k/a
CTI Merger Co ("Merger Sub") have entered into an Agreement and Plan of Merger,
dated February 11, 2000, as amended May 23, 2000 and August 1, 2000 (as so
amended, the "Merger Agreement"), pursuant to which WorldxChange has agreed to
merge with and into Merger Sub (the "Merger");
WHEREAS, WAXS and WorldxChange desire to enter into this Agreement,
pursuant to which WAXS will manage the operations and business affairs of
WorldxChange on the terms set forth herein; and
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meanings given to each term in the Merger Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. APPOINTMENT AND DUTIES
a. WorldxChange hereby engages WAXS as its exclusive agent to
provide, and WAXS agrees to provide, any and all management services required
for the operation and management of WorldxChange, and other activities related
thereto, to WorldxChange (collectively, the "Services"), on the terms and
conditions set forth in this Agreement.
b. To the fullest extent permitted under applicable law and other
than as provided in Section 3, WAXS shall provide the Services and shall have
the authority on behalf of WorldxChange and its affiliates to take all actions
and make all decisions in the operation and management of the business affairs
of WorldxChange including, without limitation, the direction and use of and
access to WorldxChange's assets and the power to select, terminate and determine
the compensation of the management and employees of WorldxChange. The parties
acknowledge and agree that WAXS shall manage the business and affairs of
WorldxChange as if the Merger had occurred with the risks and rewards of
ownership conferred on the Surviving Corporation (including revenues and
expenses) so as to maximize the benefits and limit any losses from such
operations to the Surviving Corporation.
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3. LIMITATIONS.
(a) WAXS shall not be obligated under this Agreement to
perform any of the Services (i) if to do so would be in violation or
cause a breach of any law or regulation to which WAXS is subject, or
(ii) for the benefit of any third party or any entity other than
WorldxChange and its affiliates.
(b) WAXS shall have no authority to give any notice, to
consent to the taking of any action under, or otherwise act on behalf
of WorldxChange with respect to any agreement (including, without
limitation, the Merger Agreement) or transaction between WorldxChange
and WAXS or any affiliate of WAXS.
4. EXPENSES. WorldxChange shall reimburse WAXS on or before the
fifteenth (15th) day of each month for all direct and indirect expenses
(including, but not limited to, fees and expenses paid by WAXS to third party
contractors, as provided in Section 5) incurred by WAXS on behalf of
WorldxChange during the prior month in connection with the Services.
5. PERFORMANCE. Any act or obligation of WAXS provided for in this
Agreement may be performed or exercised by third party contractors of WAXS;
provided, that WAXS shall, subject to Section 11 hereof, remain responsible and
liable for the provision of the Services by such third parties.
6. TERM. The term of this Agreement shall commence on the date hereof
and, unless sooner terminated in accordance with any express provision of this
Agreement, shall terminate upon the first to occur of (a) the termination of the
Merger Agreement in accordance with its terms, (b) the Effective Time, (c)
termination by WAXS (i) at any time upon fifteen (15) days' written notice or
(ii) in the event of a material breach by WorldxChange of this Agreement or the
Merger Agreement, or (d) termination by WorldxChange in the event of a material
breach by WAXS of this Agreement or the Merger Agreement (such period beginning
with the date hereof and ending upon the termination hereof pursuant to clauses
(a), (b), (c) or (d) being referred to herein as the "Term"). Notwithstanding
any contrary provision hereof, no termination of this Agreement pursuant to any
clauses (a), (c) or (d) above shall relieve a party from liability for any
breach of this Agreement occurring prior to such termination or for any
unperformed obligations maturing prior to such termination.
7. INFORMATION AND ASSISTANCE. During the term of this Agreement,
WorldxChange and its affiliates shall furnish WAXS with information in its
possession and control and such other reasonable assistance as is necessary in
each case to enable WAXS to perform the Services hereunder. If WorldxChange's
failure to furnish such information and assistance hinders WAXS's performance of
any of the Services, WAXS may refuse or terminate its obligation to perform any
such Service without liability or penalty to WAXS. WAXS will hold any
information provided to it pursuant to this Section 7 in confidence pursuant to
the provisions of the Confidentiality Agreement, dated January 6, 2000, between
WorldxChange and WAXS.
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8. REPRESENTATION AND WARRANTIES.
(a) WorldxChange hereby represents and warrants to WAXS that (i)
it is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization and has the
corporate power and authority to perform its obligations under this Agreement,
(ii) all necessary action required to be taken by WorldxChange to enter into
this Agreement has been duly and validly taken and (iii) this Agreement has been
duly and validly executed and delivered by WorldxChange, and constitutes a valid
and binding obligation of WorldxChange, enforceable against WorldxChange in
accordance with its terms, except as such enforceability may be limited by
bankruptcy law and other laws relating to the protection of creditors.
(b) WAXS hereby represents and warrants to WorldxChange that (i)
it is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization and has the
corporate power and authority to perform its obligations under this Agreement,
(ii) all necessary action required to be taken by WAXS to enter into this
Agreement has been duly and validly taken and (iii) this Agreement has been duly
and validly executed and delivered by WAXS, and constitutes a valid and binding
obligation of WAXS, enforceable against WAXS in accordance with its terms,
except as such enforceability may be limited by bankruptcy law and other laws
relating to the protection of creditors.
9. INDEMNIFICATION. WorldxChange agrees to indemnify and hold
harmless WAXS, its affiliates, directors, officers, agents and employees
(collectively, the "Indemnified Parties") from and against any damages,
liabilities, actions, suits, proceedings, claims and losses (collectively,
"Liabilities"), and will reimburse the Indemnified Parties for all fees and
expenses, including, without limitation, all attorneys' fees (collectively,
"Expenses") as they are incurred in pursuing or defending any claim, action,
proceeding or investigation, whether or not in connection with pending or
threatened litigation or arbitration and whether or not any Indemnified Party is
a party, arising out of or in connection with the Services, any other advice or
service rendered or to be rendered by any Indemnified Party to WorldxChange or
its affiliates pursuant to this Agreement or any Indemnified Party's actions or
inactions in connection with the Services or any such other advice or service;
provided that (i) WorldxChange shall not be responsible for any Liabilities or
Expenses of any Indemnified Party to the extent they result from such
Indemnified Party's willful misconduct or fraud in connection with the Services
or any other advice or service referred to above and (ii) WorldxChange shall in
no event be responsible under this Section 9 for any Liabilities or Expenses of
any Indemnified Party to the extent they result from or relate to any actions,
proceedings or other controversy between WAXS and WorldxChange with respect to
the Merger Agreement or any other agreement or instrument entered into in
connection therewith or the parties' rights thereunder (other than this
Agreement). WorldxChange shall reimburse each Indemnified Party for all Expenses
as they are incurred in connection with enforcing such Indemnified Party's
rights under this Agreement, including, without limitation, its rights under
this Section 9. The provisions of this Section 9 shall apply to any modification
or amendment to this Agreement and shall remain in full force and effect
regardless of any termination of, or the completion of the Services or any other
advice or service
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rendered to or to be rendered by any Indemnified Party under or in connection
with, this Agreement.
10. BANKRUPTCY. WorldxChange acknowledges and agrees that this
Agreement may not be assumed by WorldxChange in the event of a bankruptcy filing
by or against WorldxChange without the prior written consent of WAXS. In the
event a bankruptcy case is commenced by or against WorldxChange, and provided
WAXS consents to such assumption, WorldxChange agrees within ten (10) days of
the commencement of the case to file a motion to assume this Agreement in
accordance with 11 U.S.C. Section 365 and to use its best efforts to obtain
court approval of such assumption.
11. WAIVER. WorldxChange hereby waives any and all claims, rights of
action or rights of recovery against WAXS, its successors and assigns,
directors, officers, agents and employees (the "Released Parties"), and releases
and forever discharges the Released Parties of and from any and all rights,
claims, Liabilities or Expenses based upon, arising from or which occur as a
result of the performance of the Services by the Released Parties, and
WorldxChange agrees never to sue or commence or prosecute or raise any defense
against the Released Parties for or based upon any such rights, claims,
Liabilities or Expenses, provided, however, that (i) the foregoing release,
waiver and agreement not to sue shall not apply with respect to any willful
misconduct or fraud on the part of any Released Party and (ii) neither the
foregoing release, waiver or agreement not to sue nor the performance of the
Services by the Released Parties shall have any effect on or operate, be
construed as or result in a waiver of, and shall not preclude or in any way
limit, amend or modify, any rights of WorldxChange, or the exercise or
enforcement thereof, of or by WorldxChange under the Merger Agreement. The
performance of the Services by the Released Parties shall have no effect on or
operate, be construed as or result in a waiver of, and shall not preclude or in
any way limit, amend or modify, any rights of the Released Parties, or the
exercise or enforcement thereof, of or by any of the Released Parties under the
Merger Agreement or any other agreement or instrument entered into in connection
therewith.
12. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or facsimile, upon confirmation of receipt,
(b) on the first business day following the date of dispatch if delivered by a
recognized next day courier service, or (c) on the fifth business day following
the date of mailing if delivered by registered or certified mail return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
If to WORLDXCHANGE: Eric G. Lipoff, General Counsel
9999 Willow Creek Road
San Diego, California 92131
Telephone Number: (858) 547-5413
Fax Number: (858) 452-3780
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If to WAXS: World Access, Inc.
Resurgens Plaza, Suite 2210
945 East Paces Ferry Road
Atlanta, Georgia 30326
Telephone Number: (404) 231-2025
Fax Number: (404) 233-2280
Attention: W. Tod Chmar
13. NO THIRD PARTY BENEFICIARIES. Except as expressly set forth
herein, no person not a party hereto shall be a third-party beneficiary of any
provision of this Agreement. Nothing contained herein shall be construed or
deemed to confer any benefit or right upon any third party.
14. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties or any of them with respect to the subject matter
hereof, provided, however, that to the extent any term of provision hereof is
inconsistent with any term or provision of the Merger Agreement, the applicable
term or provision of the Merger Agreement shall control. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto, in whole or in part (whether by operation of law or
otherwise), without the prior written consent of the other parties, and any
attempt to make any such assignment without such consent shall be null and
void. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
16. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
(without giving effect to choice of law principals thereof). Each of
WorldxChange and WAXS 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 courts of the State of
Delaware, and each of WorldxChange and WAXS hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property and, generally and unconditionally, to the nonexclusive jurisdiction
of the aforesaid courts. Each of WorldxChange and WAXS 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,
(a) any right to trial by jury with respect to any action, suit or proceeding
arising out of or relating to this Agreement or any other transaction
contemplated hereby, (b) 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, (c) that it or its property is exempt or immune from
the 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
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otherwise), and (d) to the fullest extent permitted by applicable law, that (i)
the suit, action or proceeding in any such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper and (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
17. AMENDMENT AND MODIFICATION. This Agreement may be modified or
amended only by a writing signed by both parties hereto.
18. EXHIBITS. The Exhibits referred to in this Agreement and attached
hereto, and all amendments thereto, are and shall be incorporated herein and
made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the date
first above written.
WORLD ACCESS, INC.
By: /s/ W. Tod Chmar
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Name: W. Tod Chmar
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Title: Executive Vice President and Secretary
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COMMUNICATION TELESYSTEMS INTERNATIONAL d/b/a
WORLDXCHANGE COMMUNICATIONS
By: /s/ Edward S. Soren
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Name: Edward S. Soren
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Title: Executive Vice President
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