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EXHIBIT 4.10
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of October
13, 1999, by and among World Access, Inc., a Delaware corporation (the
"Company"), and [X] (the "Buyer").
THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
(a) Upon the terms and subject to the conditions of this
Agreement, the Company shall sell to the Buyer and the Buyer shall purchase
from the Company, at the Share Closing (as defined below), such number of
shares of common stock, par value $.01 per share, of the Company (the "Shares")
as determined below for an aggregate purchase price (the "Purchase Price") of
[ ]. The number of Shares to be delivered
by the Company to the Buyer at the Share Closing shall be equal to the Purchase
Price divided by the average of the daily closing price of common stock, par
value $.01 per share, of the Company as reported on the National Market System
of the NASDAQ Stock Market (as reported in The Wall Street Journal or, if not
reported therein, in another authoritative source) for the five (5) consecutive
full trading days (in which such shares are traded on the National Market
System of the NASDAQ Stock Market) ending at the close of trading on the
trading day immediately preceding the Share Closing Date (as defined below).
Notwithstanding the foregoing, in no event shall the Purchase Price be less
than $13.00 or greater than $17.00, and in the event that the Purchase Price is
less than $13.00 or greater than $17.00, the Purchase Price shall, for purposes
hereof, equal $13.00 or $17.00, as applicable.
(b) Subject to the satisfaction or waiver of the
conditions set forth herein, the purchase and sale of the Shares (the "Share
Closing") shall take place at the offices of Long Aldridge & Norman LLP, One
Peachtree Center, 303 Peachtree Street, Atlanta, Georgia 30308, on the date of
the closing of the transactions contemplated by that certain Agreement and Plan
of Merger, dated August 17, 1999 (the "Merger Agreement"), between the Company,
FaciliCom International, Inc. ("FaciliCom"), Armstrong International
Telecommunications, Inc., Epic Interests, Inc. and BFV Associates, Inc. (the
"FCI Closing") (the date of the Share Closing being referred to herein as the
"Share Closing Date"). At the Share Closing, the Buyer shall pay the Purchase
Price to an account or accounts designated by the Company, by wire transfer of
immediately available federal funds and the Company shall issue to the Buyer a
certificate or certificates evidencing the Shares purchased hereunder.
2. Representations and Warranties of the Company to the Buyer.
The Company hereby represents and warrants to the Buyer as follows:
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(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Company has the right, power and capacity to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly
and validly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly and validly executed and delivered by the
Company and constitutes the Company's legal, valid and binding obligation,
enforceable in accordance with its terms.
(c) The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, shall be duly and validly issued,
fully-paid and non-assessable.
(d) The Company has filed all reports required to be filed
by it, since December 31, 1998, with the Securities and Exchange Commission
(the "SEC") pursuant to Sections 13, 14 and 15 of the Securities Exchange Act
of 1934, as amended, or with the NASDAQ Stock Market (collectively, the
"Company SEC Reports"). None of the Company SEC Reports, as of their respective
dates (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and such Company SEC
Reports conformed, in all material respects, with all of the statutes and
published rules and regulations enforced or promulgated by the regulatory
authority or exchange with which they were filed.
3. Representations and Warranties of the Buyer to the Company.
The Buyer hereby represents and warrants to the Company as follows:
(a) The Buyer has the right, power and capacity to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly
and validly authorized by all necessary action, corporate or otherwise, on the
part of the Buyer. This Agreement has been duly and validly executed and
delivered by the Buyer and constitutes the Buyer's legal, valid and binding
obligation, enforceable in accordance with its terms.
(b) The Buyer has not retained any investment banker,
broker or adviser in connection with the transactions contemplated by this
Agreement.
(c) The Buyer has, or will have at the Share Closing,
sufficient financing to pay the entire amount of the Purchase Price in
accordance with the terms of this Agreement.
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4. Securities Laws Representations and Covenants of the Buyer.
(a) This Agreement is made with the Buyer in reliance upon
the Buyer's representation to the Company, which by the Buyer's execution of
this Agreement the Buyer hereby confirms, that the Shares will be acquired for
investment for the Buyer's own account, not as a nominee or agent, and not with
a view to the direct or indirect sale or distribution of any part thereof, and
that the Buyer has no present intention of selling, granting any participation
in, or otherwise distributing the same.
(b) The Buyer covenants that in no event will it dispose
of any of the Shares other than pursuant to an effective registration statement
or Rule 144 ("Rule 144") or Rule 144A promulgated by the SEC under the
Securities Act of 1933, as amended (the "Securities Act") (or any similar or
analogous rule) unless and until (i) the Buyer shall have notified the Company
of the proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition, and (ii)
if requested by the Company, the Buyer shall have furnished the Company with an
opinion of counsel reasonably satisfactory in form and substance to the Company
and the Company's counsel to the effect that (x) such disposition will not
require registration under the Securities Act and (y) appropriate action
necessary for compliance with the Securities Act and any applicable state,
local or foreign law has been taken.
(c) The Buyer represents that: (i) the Buyer is an
"Accredited Investor" as that term is defined in Regulation D promulgated by
the SEC under the Securities Act and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of the Buyer's prospective investment in the Shares; (ii) the Buyer has
received all the information requested by it from the Company and considered
necessary or appropriate for deciding whether to purchase the Shares; (iii) the
Buyer has the ability to bear the economic risks of such Buyer's prospective
investment; and (iv) the Buyer is able, without materially impairing its
financial condition, to hold the Shares for an indefinite period of time and to
suffer complete loss on its investment.
5. Covenants of the Company.
(a) The Company shall file with the SEC, as soon as
reasonably practicable following the Share Closing, but in no event later than
thirty (30) days following the Share Closing, a registration statement on Form
S-3 in connection with the resale, pursuant to open market or privately
negotiated transactions, of the Shares (the "Registration Statement"), which
Registration Statement shall be in a form that can be declared effective as
soon as reasonably practicable after the filing thereof. The Company shall use
its reasonable best efforts to have the staff of the SEC declare the
Registration Statement effective as soon as reasonably practicable following
the filing thereof.
(b) The Company shall use its reasonable best efforts to
keep the Registration Statement (including, if appropriate, the filing of
successor registration statements on Form S-3
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covering the Shares) effective until the earlier of (i) the Buyer's ability to
sell the Shares pursuant to Rule 144(k) promulgated by the SEC under the
Securities Act or (ii) five (5) years from the date the staff of the SEC first
declared the Registration Statement effective (the "Registration Period"), and
pursuant thereto the Company will:
(i) prepare and file such amendments and
supplements to such Registration Statement as may be necessary to keep such
Registration Statement effective during the Registration Period and comply with
the provisions of the Securities Act with respect to the disposition of all
Shares covered by such Registration Statement during such period;
(ii) furnish to the Buyer such number of copies
of such Registration Statement, each amendment and supplement thereto, and such
other documents as the Buyer may reasonably request in order to facilitate the
disposition of the Shares owned by the Buyer;
(iii) use its best efforts to register or qualify
the Shares owned by the Buyer under such other United States securities or blue
sky laws of such jurisdictions as the Buyer reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to
enable the Buyer to consummate the disposition in such jurisdictions of such
Shares; provided, however, that the Company shall not be required to qualify to
do business in such jurisdiction if not otherwise so required;
(iv) notify the Buyer of the happening of any
event as a result of which the Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and the Company will prepare a supplement or amendment
to the Registration Statement so that, as thereafter delivered to the
purchasers of such Shares, the Registration Statement will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(v) cause the listing and the continuation of
listing of all the Shares covered by the Registration Statement on the National
Market System of the NASDAQ Stock Market, the New York Stock Exchange, the
American Stock Exchange or any successor national exchange or market, and cause
the Registrable Securities to be quoted or listed on each additional national
securities exchange or quotation system upon which the common stock of the
Company is then listed or quoted;
(vi) enter into such customary indemnity
agreements as reasonably requested in order to expedite or facilitate the
disposition of such Shares;
(vii) make available for inspection by the Buyer, any
underwriter participating in any disposition of Shares pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
the Buyer or any underwriter, all financial and other records, pertinent
corporate documents and properties of the Company (other than documents and
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information deemed by the Company to be confidential or trade secrets), and
cause the Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by the Buyer or such
underwriters, attorneys, accountants or agents in connection with the
Registration Statement;
(viii) indemnify, to the extent permitted by law,
the Buyer and the Buyer's officers and directors and each person who controls
the Buyer (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses (collectively, "Losses" and
individually, a "Loss") caused by any untrue or alleged untrue statement of
material fact contained in the Registration Statement or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company shall not be liable in any case
pursuant to this Section 5(b)(viii) to the extent that any Loss arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, or any amendment or
supplement thereto, in conformity with and in reliance upon information
furnished in writing to the Company by the Buyer; and provided, further, that
the indemnity set forth herein shall not inure to the benefit of the Buyer or
the Buyer's officers or directors or any person who controls the Buyer if a
copy of the Registration Statement, or amendment or supplement thereto, in
which such untrue statement or alleged untrue statement or omission or alleged
omission was corrected was provided to the Buyer prior to the resale of the
Buyer's Shares pursuant to the Registration Statement. The Buyer will
indemnify, to the extent permitted by law, the Company and the Company's
officers and directors and each person who controls the Company (within the
meaning of the Securities Act) against all Losses caused by any untrue or
alleged untrue statement of material fact contained in the Registration
Statement or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in conformity with and in reliance upon information furnished in writing to the
Company by the Buyer; provided, however, that the indemnity set forth herein
shall not inure to the benefit of the Company or the Company's officers or
directors or any person who controls the Company if a copy of the Registration
Statement, or amendment or supplement thereto, in which such untrue statement
or alleged untrue statement or omission or alleged omission was corrected was
provided to the person asserting a Loss based upon such untrue statement or
alleged untrue statement or omission or alleged omission prior to the resale of
the Buyer's Shares to such person pursuant to the Registration Statement; and
(ix) allow any transferee of the Shares owned by
the Buyer (other than a transferee in a sale effected pursuant to Rule 144 or
registered under the Registration Statement) to enjoy the benefits of this
Section 5(b).
6. Conditions of the Buyer's Obligations at the Share Closing.
The obligations of the Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver of the following
conditions:
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(a) The representations and warranties of the Company
contained in Section 2 hereof shall be true, correct and complete in all
material respects on the Share Closing Date with the same force and effect as
though made on and as of such date.
(b) The FCI Closing shall have occurred.
(c) The Company and its subsidiaries, taken as a whole,
shall not have suffered, since the date hereof, any change, circumstance or
effect or any breach of the provisions of this Agreement that, individually or
in the aggregate with all other changes, circumstances and effects or breaches,
is or would reasonably be expected to be materially adverse to (i) the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, or (ii) the ability of the Company to
consummate the transactions contemplated by this Agreement (each, a "Material
Adverse Effect"); provided, however, that a Material Adverse Effect shall not
be deemed to have occurred with respect to any change, circumstance or effect
relating to (x) the economy or financial markets in general, (y) in general,
the industries in which the Company or its subsidiaries operate and not
specifically relating to the Company or its subsidiaries or (z) the trading
price of the Company as reported by the National Market System of the NASDAQ
Stock Market.
(d) If applicable, the waiting period (and any extension
thereof) relating to the transactions contemplated hereby under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have
been terminated or shall have expired.
7. Conditions of the Company's Obligations at the Share Closing.
The obligations of the Company to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver of the following
conditions:
(a) The representations and warranties of the Buyer
contained in Sections 3 and 4 hereof shall be true, correct and complete in all
material respects on the Share Closing Date with the same force and effect as
though made on and as of such date.
(b) The FCI Closing shall have occurred.
8. Termination. This Agreement may be terminated at any time
prior to the Share Closing Date (i) by mutual written consent of the Company
and the Buyer, (ii) by either the Company or the Buyer, upon termination of the
Merger Agreement in accordance with its terms, or (iii) by either the Company
or the Buyer, if the Share Closing Date shall not have occurred on or before
December 31, 1999.
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9. Miscellaneous.
(a) All notices, demands or other communications hereunder
shall be in writing and shall be deemed given when delivered personally, mailed
by certified mail, return receipt requested, sent by overnight courier service
or faxed (transmission confirmed), or otherwise actually delivered (i) if to
the Company, at Resurgens Plaza, Suite 2210, 945 East Paces Ferry Road,
Atlanta, Georgia (facsimile: (404) 233-2280), Attention: W. Tod Chmar, and (ii)
if to the Buyer, at [-], or at such other address as the Company or the Buyer
may designate in writing to the other party.
(b) This Agreement shall be governed and construed in
accordance with the laws of the State of Georgia (without giving effect to
choice of law principles thereof).
(c) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) This Agreement may be amended only by a written
instrument signed by the Company and the Buyer. No failure to exercise and no
delay in exercising, on the part of any party, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
(e) All rights, covenants and agreements of the parties
contained in this Agreement shall, except as otherwise provided herein, be
binding upon and inure to the benefit of their respective successors and
assigns. This Agreement, and the rights and obligations hereunder, may not be
assigned by either party without the prior written consent of the other party.
(f) The Company and the Buyer will each bear their
respective legal and other fees and expenses in connection with the
transactions contemplated in this Agreement if such transactions are not
successfully completed.
(g) Each party hereto agrees to do all acts and to make,
execute and deliver such written instruments as shall from time to time be
reasonably required to carry out the terms and provisions of this Agreement.
(h) This Agreement constitutes the entire agreement among
the parties hereto and supersedes and preempts any prior written or oral
agreements between the parties hereto which may have related to the subject
matter hereof in any way.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WORLD ACCESS, INC.
By:
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Name:
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Title:
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[BUYER]
By:
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Name:
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Title:
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