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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): OCTOBER 28, 1998
-------------------
(OCTOBER 28, 1998)
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WORLD ACCESS, INC. (FORMERLY KNOWN AS "WAXS INC.")
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 333-65389 58-2398004
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(STATE OR OTHER (COMMISSION FILE NUMBER) (IRS EMPLOYER
JURISDICTION OF IDENTIFICATION
INCORPORATION) NUMBER)
945 E. PACES FERRY ROAD, SUITE 2240, ATLANTA, GEORGIA 30326
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (404) 231-2025
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N/A
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On October 28, 1998, the Registrant, a recently formed holding company
and wholly-owned subsidiary of Old World Access (defined below), became the
parent holding company of and successor to WA Telcom Products Co., Inc.
(formerly known as "World Access, Inc."), a Delaware corporation ("Old World
Access"), and NACT Telecommunications, Inc., a Delaware corporation ("NACT"),
as a result of the consummation of the transactions contemplated by the
Agreement and Plan of Merger and Reorganization, dated as of February 24, 1998,
as amended (as so amended, the "Merger Agreement"), among the Registrant, Old
World Access, NACT, WAXS Acquisition Corp. ("WAXS Merger Sub") and NACT
Acquisition Corp. ("NACT Merger Sub"). Pursuant to the Merger Agreement, WAXS
Merger Sub merged with and into Old World Access with Old World Access being
the surviving corporation (the "WAXS Merger") and NACT Merger Sub merged with
and into NACT with NACT being the surviving corporation (the "NACT Merger").
The World Access Merger and the NACT Merger are referred to collectively as the
"Transaction."
Upon the consummation of the WAXS Merger, (i) Old World Access became a
wholly-owned subsidiary of the Registrant, (ii) the name of Old World Access
was changed from World Access, Inc. to WA Telcom Products Co., Inc., (iii) each
share of Old World Access common stock, par value $.01 per share (the "WA
Common Stock"), issued and outstanding was automatically converted into one
fully-paid and nonassessable share of the common stock, par value $.01 per
share, of the Registrant (the "Registrant's Common Stock"), and (iv) each
currently outstanding stock option of Old World Access was automatically
converted into an option to purchase the same number of shares of the
Registrant's Common Stock at the same option exercise price per share and the
same terms and subject to the same conditions as set forth in the option.
Immediately following the consummation of the WAXS Merger, the Registrant filed
a certificate of amendment to its certificate of incorporation effecting a
change of its name from "WAXS INC." to "World Access, Inc.".
Old World Access has outstanding $115 million of its 4.5% Convertible
Subordinated Notes due 2002 (the "Notes") which were issued pursuant to the
terms of an Indenture ("Indenture") dated as of October 1, 1997 between Old
World Access and First Union National Bank, as trustee (the "Trustee"). As part
of the Transaction, the Registrant has entered into a Supplemental Indenture
with the Trustee (the "Supplemental Indenture") pursuant to which it has
irrevocably guaranteed the Notes. The Supplemental Indenture also provided that
the Notes are now convertible into the Registrant's Common Stock.
Upon the consummation of the NACT Merger, (i) NACT became a wholly-owned
subsidiary of the Registrant, (ii) each share of NACT common stock, par value
$.01 per share (the "NACT Common Stock"), issued and outstanding was
automatically converted into the right to receive 1.0469 fully-paid and
nonassessable shares of the Registrant's Common Stock, and (iii) each currently
outstanding stock option of NACT was automatically converted into an option to
purchase that number of shares of the Registrant's Common Stock that the holder
thereof would have received had they exercised their options immediately prior
to the consummation of the
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NACT Merger, at the same option exercise price per share and the same terms
and subject to the same conditions as set forth in the option.
The Registrant will issue new stock certificates to stockholders of
record of NACT in connection with the NACT Merger. The Registrant does not,
however, intend to issue new stock certificates to stockholders of record of
Old World Access in connection with the WAXS Merger; instead, each certificate
representing issued and outstanding shares of WA Common Stock immediately prior
to the effective date of the WAXS Merger will continue to evidence ownership of
the shares of the Registrant's Common Stock after the effective date of the
WAXS Merger.
Upon consummation of the Transaction, the Registrant's Common Stock was
deemed to be registered under Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), pursuant to Rule 12g-3(d) promulgated
thereunder. For purposes of Rule 12g- 3(d), the Registrant is the successor
issuer to Old World Access and NACT. The Registrant's Common Stock has been
substituted for the WA Common Stock on the Nasdaq National Market and will
continue to be listed under the WA Common Stock symbol, "WAXS", without
interruption. The NACT Common Stock will no longer be listed on the Nasdaq. The
description of the Registrant's Capital Stock, including the Registrant's
Common Stock, contained under the caption "DESCRIPTION OF HOLDCO CAPITAL STOCK"
in the Registrant's Registration Statement on Form S-4 filed with the
Securities and Exchange Commission on October 6, 1998 (Commission File No.
333-65389) is hereby incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits.
The following exhibits are filed herewith by direct transmission via
"EDGAR":
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2.1(1) Agreement and Plan of Merger and Reorganization dated as of
February 24, 1998 among World Access, Inc., WAXS INC., WAXS
Acquisition Corp., NACT Telecommunications, Inc. and NACT
Acquisition Corp. (Incorporated herein by reference to
Exhibit 2.1(1) to the registrant's Registration Statement on
Form S-4, Commission File No. 333-65389).
2.1(2) First Amendment to Agreement and Plan of Merger and
Reorganization dated as of June 30, 1998 among World Access,
Inc., WAXS INC., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(Incorporated herein by reference to Exhibit 2.1(2) to the
registrant's Registration Statement on Form S-4, Commission
File No. 333-65389).
2.1(3) Second Amendment to Agreement and Plan of Merger and
Reorganization dated as of September 30, 1998 among World
Access, Inc., WAXS INC., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
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(Incorporated herein by reference to Exhibit 2.1(3) to the
registrant's Registration Statement on Form S-4, Commission
File No. 333-65389).
3.1 Certificate of Incorporation of World Access, Inc. (formerly
"WAXS INC.") (Incorporated herein by reference to Exhibit 3.1
of the registrants Registration Statement on Form S-4,
Commission File No. 333-65389).
3.2 Certificate of Amendment to Certificate of Incorporation of
World Access, Inc. (formerly "WAXS INC.") dated October 28,
1998.
3.3 Bylaws of World Access, Inc. (formerly "WAXS INC.")
(Incorporated herein by reference to Exhibit 3.2 of the
registrants Registration Statement on Form S-4, Commission
File No. 333-65389).
4.1 First Supplemental Indenture dated October 28, 1998 between
World Access, Inc, WA Telcom Products Co., Inc. and First
Union National Bank, as Trustee.
10.1 Assignment and Assumption Agreement dated October 28, 1998
between World Access, Inc. and WA Telcom Products Co., Inc.
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
WORLD ACCESS, INC.
(formerly known as "WAXS INC.")
By: /s/ Martin D. Kidder
---------------------------------------------
Martin D. Kidder
Its Vice President and Controller
Dated as of October 28, 1998
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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2.1(1) Agreement and Plan of Merger and Reorganization dated as of
February 24, 1998 among World Access, Inc., WAXS INC., WAXS
Acquisition Corp., NACT Telecommunications, Inc. and NACT
Acquisition Corp. (Incorporated herein by reference to
Exhibit 2.1(1) to the registrant's Registration Statement on
Form S-4, Commission File No. 333-65389).
2.1(2) First Amendment to Agreement and Plan of Merger and
Reorganization dated as of June 30, 1998 among World Access,
Inc., WAXS INC., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(Incorporated herein by reference to Exhibit 2.1(2) to the
registrant's Registration Statement on Form S-4, Commission
File No. 333-65389).
2.1(3) Second Amendment to Agreement and Plan of Merger and
Reorganization dated as of September 30, 1998 among World
Access, Inc., WAXS INC., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(Incorporated herein by reference to Exhibit 2.1(3) to the
registrant's Registration Statement on Form S-4, Commission
File No. 333-65389).
3.1 Certificate of Incorporation of World Access, Inc. (formerly
"WAXS INC.") (Incorporated herein by reference to Exhibit 3.1
of the registrants Registration Statement on Form S-4,
Commission File No. 333-65389).
3.2 Certificate of Amendment to Certificate of Incorporation of
World Access, Inc. (formerly "WAXS INC.") dated October 28,
1998.
3.3 Bylaws of World Access, Inc. (formerly "WAXS INC.")
(Incorporated herein by reference to Exhibit 3.2 of the
registrants Registration Statement on Form S-4, Commission
File No. 333-65389).
4.1 First Supplemental Indenture dated October 28, 1998 between
World Access, Inc, WA Telcom Products Co., Inc. and First
Union National Bank, as Trustee.
10.1 Assignment and Assumption Agreement dated October 28, 1998
between World Access, Inc. and WA Telcom Products Co., Inc.
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EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
WAXS INC.
WAXS INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify:
FIRST: That, the Board of Directors of the Corporation unanimously
adopted a resolution setting forth a proposed amendment to the Certificate of
Incorporation of the Corporation, declaring said amendment to be advisable, and
directing that said amendment be presented to the stockholders of the
Corporation for consideration at a special meeting of the stockholders or by
written consent of the stockholders. The resolution setting forth the proposed
amendment is as follows:
"RESOLVED, that the Certificate of Incorporation of the Corporation
be amended to change the name of the corporation and that such amendment
be effected by deleting Article 1 in its entirety and substituting the
following in lieu thereof:
ARTICLE 1
The name of the Corporation is WORLD ACCESS, INC.
SECOND: That the foregoing resolution has been adopted by the
unanimous written consent of the holder of record of all the outstanding stock
of the Corporation entitled to vote thereon.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
FOURTH: This Certificate of Merger, and the merger provided for
herein, shall not become effective until and shall become effective at 5:01
p.m. (local time in Dover, Delaware) on October 28, 1998.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to
be signed as of this 28th day of October, 1998.
WAXS INC.
By: /s/ Mark A. Gergel
----------------------------------------
Mark A. Gergel, Executive Vice President
Attested by:
/s/ Martin D. Kidder
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Martin D. Kidder, Secretary
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EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 28, 1998
AMONG
WORLD ACCESS, INC.
(FORMERLY KNOWN AS "WAXS INC."),
WA TELCOM PRODUCTS CO., INC.
(FORMERLY KNOWN AS "WORLD ACCESS, INC.")
AND
FIRST UNION NATIONAL BANK,
AS TRUSTEE
TO
INDENTURE
DATED AS OF OCTOBER 1, 1997
BETWEEN
WORLD ACCESS, INC.
AND
FIRST UNION NATIONAL BANK,
AS TRUSTEE
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4.5% CONVERTIBLE SUBORDINATED NOTES
DUE 2002
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October 28, 1998 (this
"Supplemental Indenture"), among WORLD ACCESS, INC. (formerly "WAXS INC."), a
Delaware corporation (the "Guarantor"), WA TELCOM PRODUCTS CO., INC. (formerly
"World Access, Inc."), a Delaware corporation (the "Company"), and FIRST UNION
NATIONAL BANK, a national banking association (the "Trustee"), to that certain
Indenture, dated as of October 1, 1997 (the "Indenture"), between the Company
and Trustee.
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the Indenture providing for the issuance by the Company of up to $100,000,000
in aggregate principal amount of 4.5% Convertible Subordinated Notes Due 2002
(the "Notes");
WHEREAS, contemporaneously with the delivery hereof WAXS Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of the Guarantor
("WAXS Merger Sub"), has been merged with and into the Company (the "WAXS
Merger") pursuant to the provisions of that certain Agreement and Plan of
Merger and Reorganization dated as of February 24, 1998, as amended (as so
amended, the "Merger Agreement"), among the Guarantor, WAXS Merger Sub, the
Company, NACT Telecommunications, Inc. ("NACT"), and NACT Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of the Guarantor ("NACT Merger
Sub");
WHEREAS, Section 15.6 of the Indenture requires that upon the occurrence
of certain events (including the WAXS Merger) the Company must execute and
deliver to the Trustee a supplemental indenture which provides, among other
things, that upon any such merger the holder of each Note (each a "Holder" and
collectively the "Holders") then outstanding shall have the right thereafter,
during the period such Note shall be convertible as specified in the Indenture,
to convert such Note into the kind and amount of securities, cash and other
property receivable upon such merger by a holder of the number of shares of
common stock into which such Note might have been converted immediately prior
to such merger;
WHEREAS, Section 16.5 of the Indenture requires that upon the occurrence
of certain events (including the WAXS Merger) the Company must execute and
deliver to the Trustee a supplemental indenture which provides, among other
things, that the provisions of the Indenture relating to the rights of Holders
to cause the Company to repurchase the Notes following a "Change in Control"
(as that term is defined in the Indenture) must be amended so as to apply to
the common stock and the issuer thereof if different from the Company and the
Common Stock of the Company; and
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WHEREAS, the Guarantor desires to unconditionally and irrevocably
guarantee, on a subordinated basis, the full and punctual payment of principal
and interest on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company
under the Indenture (including obligations to the Trustee) and the Notes, and
the full and punctual performance within the applicable grace period of all
other obligations of the Company under the Indenture and the Notes.
NOW, THEREFORE, this Supplemental Indenture witnesseth:
In order to comply with the requirements of the Indenture, the Company
and Guarantor covenant and agree with the Trustee for the equal and
proportionate benefit, security and protection of the respective holders from
time to time of the Notes, as follows:
ARTICLE ONE
CONVERSION
SECTION 1.01. The holder of each $1,000 in aggregate principal amount of
the Notes outstanding on the date hereof shall hereafter have the right to
convert such $1,000 in aggregate principal amount of the Notes only into shares
of common stock, par value $.01 per share, of the Guarantor ("World Access
Common Stock"), and cash in lieu of fractional shares of World Access Common
Stock, which is the kind and amount of stock, securities and other property
receivable upon the WAXS Merger by a holder of the number of shares of the
Company's common stock, par value $.01 per share (the "Company Common Stock"),
into which such $1,000 in aggregate principal amount of the Notes might have
been converted immediately prior to the WAXS Merger, subject to adjustments
which shall be as nearly equivalent as practicable to the adjustments provided
for in Article XV of the Indenture. As the World Access Common Stock is being
exchanged for the Company Common Stock on a one-for-one basis, each Note will
become convertible only into World Access Common Stock at the same conversion
price as the Company Common Stock (i.e., a conversion price of approximately
$37.03125 per share).
SECTION 1.02. Notes authenticated and delivered on and after the date
hereof shall bear the following notation which may be stamped or typewritten
thereon:
"On October 28, 1998, pursuant to a definitive merger agreement, WA
Telcom Products Co., Inc. (formerly "World Access, Inc.") (the "Company")
became a wholly-owned subsidiary of World Access, Inc. (formerly "WAXS
INC.") (the "Guarantor") which issued
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one share of its common stock, par value $.01 per share ("World Access
Common Stock"), in exchange for each outstanding share of the Company's
common stock, par value $.01 per share ("Company Common Stock"), said
merger hereinafter referred to as the "WAXS Merger".
On and after October 28, 1998, each holder of $1,000 in aggregate
principal amount of Notes outstanding shall have the right to convert
such $1,000 in aggregate principal amount of the Notes only into shares
of World Access Common Stock, and cash in lieu of fractional shares of
World Access Common Stock, which is the kind and amount of stock,
securities and other property receivable upon the WAXS Merger by a holder
of the number of shares of Company Common Stock into which such $1,000 in
aggregate principal amount of the Notes might have been converted
immediately prior to the WAXS Merger, subject to adjustments which shall
be as nearly equivalent as practicable to the adjustments provided for in
Article XV of the Indenture."
If the Company shall so determine, new Notes so modified as to conform to
the Indenture as hereby supplemented, in form satisfactory to the Trustee, may
at any time hereafter be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Notes then outstanding, and
thereafter the notation herein provided shall no longer be required. Anything
herein or in the Indenture to the contrary notwithstanding, the failure to
affix the notation herein provided to any Note or to exchange any Note for a
new Note modified as herein provided shall not affect any of the rights of the
holder of such Note.
ARTICLE TWO
THE GUARANTEE
SECTION 2.01. Definitions.
(a) The Indenture is hereby supplemented to add the following
definitions:
"Guarantor" means World Access, Inc. (formerly "WAXS
INC."), or any successor entity thereto, and thereafter
"Guarantor" shall mean such successor corporation.
"Guarantor Designated Senior Indebtedness" means the Guarantor's
Indebtedness outstanding from time to time under its revolving credit
facility and any particular Guarantor Senior Indebtedness in which the
instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Guarantee is a
party) expressly provides that such Guarantor Senior Indebtedness shall
be "Designated Senior Indebtedness" for
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purposes of the Indenture (provided that such instrument, agreement or
other document may place limitations and conditions on the right of such
Guarantor Senior Indebtedness to exercise the rights of Guarantor
Designated Senior Indebtedness).
"Guarantor Senior Indebtedness" means the principal of, premium, if
any, interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowable as a claim in any such
proceeding) and rent payable on or in connection with, and all fees,
costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Guarantor, whether outstanding on the date of
this Supplemental Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Guarantor (including all
deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing), unless in the case of
any particular Indebtedness the instrument creating or evidencing the
same or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes or
expressly provides that such Indebtedness is "pari passu" with or
"junior" to the Notes. Notwithstanding the foregoing, the term Guarantor
Senior Indebtedness shall not include any Indebtedness of the Guarantor
to any Subsidiary of the Guarantor.
"Guarantor Senior Indebtedness Representative" means any Person
whom the Guarantor has, by written notice to the Trustee, identified as
the indenture trustee or other trustee, agent or representative for an
issue of Guarantor Senior Indebtedness.
(b) The Indenture is hereby supplemented by substituting the following
definitions for the definitions currently in the Indenture:
"Common Stock" means the common stock, par value $.01
per share, of the Guarantor.
"Company" means WA Telcom Products Co., Inc. (formerly "World
Access, Inc.") until a successor corporation shall have become such
pursuant to the applicable provisions of the Indenture, and thereafter
"Company" shall mean such successor corporation.
SECTION 2.02. The Guarantee. (a) The Guarantor irrevocably and
unconditionally guarantees, on a subordinated basis as set forth herein (the
"Guarantee"), to each holder of Notes and to
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the Trustee and its successors and assigns, (i) the full and punctual payment
of principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under the indenture (including obligations to the Trustee) and the
Notes and (ii) the full and punctual performance within applicable grace
periods of all other obligations of the Company under the Indenture and the
Notes.
(b) The Guarantor further agrees that the Guarantee constitutes a
guarantee of payment, performance and compliance and not merely of
collection.
(c) The obligations of the Guarantor to make any payment hereunder
may be satisfied by causing the Company to make such payment.
(d) The Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorney's fees) incurred by the Trustee or any
holder of Notes in enforcing any of their respective rights under the
Guarantee.
ARTICLE THREE
SUBORDINATION OF GUARANTEE
SECTION 3.01. The Guarantee shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness, whether outstanding
at the date of this Supplemental Indenture or thereafter created, incurred,
assumed or guaranteed.
SECTION 3.02. No payment shall be made with respect to the Guarantee,
except payments and distributions made by the Trustee as permitted by the first
or second paragraph of Section 3.05, if:
(a) a default in the payment of principal, premium, interest, rent
or other obligations due on any Guarantor Senior Indebtedness occurs and
is continuing (or, in the case of Guarantor Senior Indebtedness for which
there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease
evidencing such Guarantor Senior Indebtedness), unless and until such
default shall have been cured or waived or shall have ceased to exist, or
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(b) a default, other than a payment default, on any Guarantor
Designated Senior Indebtedness occurs and is continuing that then permits
holders of such Guarantor Designated Senior Indebtedness to accelerate
its maturity and the Trustee receives a written notice of the default (a
"Payment Blockage Notice") from a Representative or the Guarantor.
If the Trustee receives any Payment Blockage Notice pursuant to clause
(b) above, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (A) at least 365 days shall have
elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice, and (B) all scheduled payments of principal, premium, if any,
and interest on the Notes that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice.
The Guarantor, after providing written notice to the Trustee, shall
resume payments on and distributions in respect of the Guarantee upon the
earlier of:
(x) the date upon which the default is cured or waived
or ceases to exist, or
(y) in the case of a default referred to in clause (b) above, 179
days pass after notice is received if the maturity of such Guarantor
Designated Senior Indebtedness has not been accelerated;
unless this Article Three otherwise prohibits the payment or distribution at
the time of such payment or distribution.
Upon any payment by the Guarantor, or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization
of the Guarantor, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due
upon all Guarantor Senior Indebtedness shall first be paid in full in cash or
other payment satisfactory to the holders of such Guarantor Senior
Indebtedness, or payment thereof in accordance with its terms provided for in
cash or other payment satisfactory to the holders of such Guarantor Senior
Indebtedness, before any payment is made in respect of the Guarantee and upon
any such dissolution or winding up or liquidation or reorganization of the
Guarantor or bankruptcy, insolvency, receivership or other proceeding, any
payment by the Guarantor, or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, to which the
Holders or the Trustee would be entitled, except for the provision of this
Article Three, shall (except as aforesaid) be paid by the Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent
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or other Person making such payment or distribution, or by the Holders or by
the Trustee under the Indenture if received by them or it, directly to the
holders of Guarantor Senior Indebtedness (pro rata to such holders on the basis
of the respective amounts of Guarantor Senior Indebtedness held by such
holders, or as otherwise required by law or a court order) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Guarantor Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all Guarantor Senior Indebtedness in full, in cash
or other payment satisfactory to the holders of such Guarantor Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Guarantor Senior Indebtedness, before any payment or
distribution or provision therefor is made to the Holders or to the Trustee.
For purposes of this Article Three, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor as
reorganized or readjusted, or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Three with respect to the Guarantee to the payment of all Guarantor
Senior Indebtedness which may at the time be outstanding provided that (i) the
Guarantor Senior Indebtedness is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii) the rights of the
holders of Guarantor Senior Indebtedness (other than leases which are not
assumed by the Guarantor or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Guarantor with, or the merger of the
Guarantor into, another corporation or the liquidation or dissolution of the
Guarantor following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII of the Indenture shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 3.02 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
XII of the Indenture.
In the event that, notwithstanding the foregoing provisions, any payment
or distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities (including, without limitation, by way of setoff
or otherwise), prohibited by the foregoing, shall be received by the Trustee or
the Holders before all Guarantor Senior Indebtedness is paid in full in cash or
other payment satisfactory to the holders of such Guarantor Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of such
Guarantor Senior
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Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Guarantor
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Guarantor, for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid to the extent necessary to pay all Guarantor Senior Indebtedness in full
in cash or other payment satisfactory to the holders of such Guarantor Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of such Guarantor Senior Indebtedness.
SECTION 3.03. Subject to the prior payment in full of all Guarantor
Senior Indebtedness then due, the Holders shall be subrogated to the rights of
the holders of Guarantor Senior Indebtedness to receive payments or
distributions of assets of the Guarantor applicable to the Guarantor Senior
Indebtedness until the principal of and interest on the Notes shall be paid in
full, and, for purposes of such subrogation, no payments or distributions to
the holders of Guarantor Senior Indebtedness of assets, whether in cash,
property or securities, distributable to the holders of Guarantor Senior
Indebtedness under the provisions hereof to which the Holders would be entitled
except for the provisions of this Article Three, and no payment pursuant to the
provisions of this Article Three to the holders of Guarantor Senior
Indebtedness by the Holders shall, as among the Guarantor, its creditors other
than the holders of Guarantor Senior Indebtedness, and the Holders, be deemed
to be a payment by the Guarantor to or on account of Guarantor Senior
Indebtedness, it being understood that the provisions of this Article Three
are, and are intended, solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of Guarantor Senior
Indebtedness, on the other hand.
SECTION 3.04. Nothing contained in this Article Three or elsewhere in
this Supplemental Indenture, the Indenture or in any Note is intended to or
shall impair, as among the Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness, and the Holders, the obligation of the Guarantor
under the Guarantee, to pay to the Holders the principal of and interest on the
Notes, as the same shall become due and payable in accordance with the terms of
the Notes, or to affect the relative rights of the Holders and other creditors
of the Guarantor other than the holders of Guarantor Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon the
happening of an Event of Default under this Indenture, subject to the
provisions of Article VIII of the Indenture, and the rights, if any, under this
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Article Three of the holders of Guarantor Senior Indebtedness in respect of
assets, whether in cash, property or securities, of the Guarantor received upon
the exercise of any such remedy.
SECTION 3.05. The Guarantor shall give prompt written notice to the
Trustee of any fact known to the Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Guarantee. Notwithstanding
the provisions of this Article Three or any other provision of this
Supplemental Indenture or the Indenture, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee, unless and until a Trust Officer
shall have received written notice thereof from the Guarantor or from the
holder or holders of Guarantor Senior Indebtedness or from their Representative
or Representatives; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Sections 8.1 and 8.2 of the Indenture,
shall be entitled to assume conclusively that such facts do not exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or herself to be a holder of Guarantor
Senior Indebtedness (or a Representative of such holder) to establish that such
notice has been given by a holder of Guarantor Senior Indebtedness or a
Representative of any such holder. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Guarantor Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Three, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Guarantor Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of each Person under
this Article Three, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
SECTION 3.06. Money or U.S. Government Obligations deposited with the
Trustee or any Paying Agent (whether or not in trust) for payments made with
respect to the Guarantee shall be subject to the provisions of Sections 3.01,
3.02, 3.03, and 3.04 of this Supplemental Indenture; except that, if two (2)
Business Days prior to the date on which by the terms of the Indenture any such
monies or U.S. Government Obligations may become payable for any purpose
(including, without limitation, payments made with respect to the Guarantee)
the Trustee shall not have received with respect to such monies or U.S.
Government Obligations the notice provided for in Section 3.05, then the
Trustee or any Paying Agent shall have full power and authority to receive such
monies and to apply such monies to the purpose for which they
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were received, and shall not be affected by any notice to the contrary which
may be received by it on or after such date. This Section 3.06 shall be
construed solely for the benefit of the Trustee and the Paying Agent and shall
not otherwise affect the rights that holders of Guarantor Senior Indebtedness
may have to recover any such payments from the Holders in accordance with the
provisions of this Article Three.
SECTION 3.07. No right of any present or future holders of any Guarantor
Senior Indebtedness to enforce subordination, as herein provided, shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of any
Guarantor Senior Indebtedness may extend, renew, modify or amend the terms of
such Guarantor Senior Indebtedness or any security therefor and release, sell
or exchange such security and otherwise deal freely with the Guarantor, all
without affecting the liabilities and obligations of the parties to the
Indenture or the Holders. No provision in any future supplemental indenture
which affects the superior position of the holders of the Guarantor Senior
Indebtedness shall be effective against the holders of the Guarantor Senior
Indebtedness unless the holders of such Guarantor Senior Indebtedness (required
pursuant to the terms of such Guarantor Senior Indebtedness to give such
consent) have consented thereto.
SECTION 3.08. Each Holder of a Note by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article Three and appoints the Trustee his or her attorney-in-fact for any
and all such purposes.
SECTION 3.09. The Trustee, in its individual capacity, shall be entitled
to all of the rights set forth in this Article Three in respect of any
Guarantor Senior Indebtedness at any time held by it to the same extent as any
other holder of Guarantor Senior Indebtedness, and nothing in this Supplemental
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
SECTION 3.10. The failure to make a payment on account of the principal
of or interest on the Notes under the Guarantee by reason of any provision in
this Article Three shall not be construed as preventing the occurrence of an
Event of Default under Section 7.1 of the Indenture.
SECTION 3.11. Notwithstanding any other provision in this Article Three,
the Trustee shall not be deemed to owe any
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fiduciary duty to the holders of Guarantor Senior Indebtedness by virtue of the
provisions of this Article Three.
SECTION 3.12. In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Guarantor and be then acting hereunder, the
term "Trustee" as used in this Article Three shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article Three in addition to or in
place of the Trustee.
ARTICLE FOUR
MISCELLANEOUS AMENDMENTS
SECTION 4.01. Section 5.2 of the Indenture shall be amended to delete all
references to the word "Company" and substitute therefor the word "Guarantor".
SECTION 4.02. The first sentence of the third paragraph of Section 15.2
of the Indenture is hereby amended to read ". . . so converted), the Company
shall cause the Guarantor to issue . . ."
SECTION 4.03. The first sentence of the fourth paragraph of Section 15.2
of the Indenture is hereby amended to read ". . . when the stock transfer books
of the Guarantor shall be closed . . .".
SECTION 4.04. Sections 15.4 through 15.10 (excluding subsection 15.4(i))
of the Indenture shall be amended to delete all references to the word
"Company" and substitute therefor the word "Guarantor".
SECTION 4.05. Section 16.4 of the Indenture shall be amended to delete
all reference to the word "Company" and substitute therefore the word
"Guarantor".
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.01. Unless otherwise defined herein, or unless the context
otherwise requires, the terms used herein shall have the respective meanings
assigned to them in the Indenture.
SECTION 5.02. The Trustee accepts the trusts in this Supplemental
Indenture declared and provided upon the terms and conditions set forth in the
Indenture. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or the
due
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execution hereof by the Company and the Guarantor or for, or in respect of the
recitals and statements contained herein, all of which recitals and statements
are made by the Company or the Guarantor and not the Trustee.
SECTION 5.03. Except as hereby expressly modified, the Indenture and the
Notes issued thereunder are in all respects ratified and confirmed and all of
the terms, conditions and provisions thereof shall remain in full force and
effect.
SECTION 5.04. The recitals contained herein shall be taken as the
statements of the Company and the Guarantor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Supplemental Indenture.
SECTION 5.05. This Supplemental Indenture shall be effective as of the
date and time of the effectiveness of the WAXS Merger.
SECTION 5.06. The parties may sign multiple counterparts of this
Supplemental Indenture. Each signed counterpart shall be deemed an original,
but all of them together represent the same agreement.
SECTION 5.07. This Supplemental Indenture and each Note shall be deemed
to be a contract made under the laws of the State of Georgia and for all
purposes shall be construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
WORLD ACCESS, INC.
(formerly known as "WAXS INC.")
By: /s/ Mark A. Gergel
--------------------------------------------
Name: Mark A. Gergel
Title: Executive Vice President
WA TELCOM PRODUCTS CO., INC.
(formerly known as "World Access, Inc.")
By: /s/ Hensley E. West
--------------------------------------------
Name: Hensley E. West
Title: President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ April Lipscomb
--------------------------------------------
Name: April Lipscomb
Title: Corporate Trust Officer
12
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EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of October 28, 1998,
by and between WORLD ACCESS, INC., a Delaware corporation ("Assignor"), and
WAXS INC., a Delaware corporation ("Assignee").
WHEREAS, Assignor, Assignee, WAXS Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Assignee ("WAXS Merger Sub"), and
certain other parties have entered into an Agreement and Plan of Merger and
Reorganization dated February 24, 1998, as amended (as so amended, the "Merger
Agreement"), which provides for, among other things, the merger of WAXS Merger
Sub with and into Assignor; and
WHEREAS, pursuant to the Merger Agreement, Assignor desires to assign to
Assignee all of its rights, duties and obligations under certain documents,
agreements and contracts which are set forth in Schedule A attached hereto
(such rights, duties and obligations being the "Assigned Rights"), and Assignee
desires to accept said assignment and to assume Assignor's obligations under
the Assigned Rights;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is hereby agreed:
1. ASSIGNMENT. Assignor hereby assigns to Assignee all of its rights
under the Assigned Rights as of the close of business on the date hereof.
Assignor represents and warrants that each document, agreement and contract
evidencing an Assigned Right is valid and in full force and effect and
constitutes the legal, valid and binding obligation of Assignor and is
enforceable against the other party or parties thereto; there are no existing
defaults thereunder and, to the knowledge of Assignor, no event, act or
omission has occurred that (with or without notice, lapse of time or the
happening or occurrence of any other event) would result in a default
thereunder.
2. ACCEPTANCE AND ASSUMPTION. Assignee hereby accepts the foregoing
assignment and assumes all of Assignor's obligations under the Assigned Rights
and agrees to perform all covenants, stipulations, agreements and obligations
of Assignor under the Assigned Rights accruing after the date hereof, or
otherwise attributable to the period commencing on the date hereof, as if
Assignee were an original party to each document, agreement, and contract
evidencing an assigned right, and Assignor is responsible for the period prior
to the date hereof.
3. MODIFICATION OF ASSIGNED RIGHTS. Assignor agrees that Assignee may
change, modify or amend any document, agreement or contract evidencing any
Assigned Rights in any way, and that further assignments may be made, without
notice to or consent of Assignor and without in any manner releasing or
relieving Assignor from liability under any Assigned Rights
<PAGE> 2
as originally executed by the parties thereto, and Assignor shall remain liable
under all the terms, covenants and conditions of any document, agreement or
contract evidencing any Assigned Rights as originally executed to the end of
the term thereof.
4. EXPENSES. All taxes and other governmental charges and fees,
including, without limitation, any and all transfer taxes, stamp taxes, sales
taxes and recording fees, relating to the transaction evidenced by this
Assignment and Assumption Agreement shall be paid by Assignee.
5. AGREEMENT BINDING; ADDITIONAL ACTIONS. This Assignment and Assumption
Agreement shall be binding upon the successors and assigns of the parties
hereto. The parties shall execute and deliver such further and additional
instruments, agreements and documents as may be necessary to evidence or carry
out the provisions of this Assignment and Assumption Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed and delivered by their duly authorized
officers as of the day and year first written above.
WORLD ACCESS, INC., Assignor
/s/ Mark A. Gergel
---------------------------------
By: Mark A. Gergel
Its: Executive Vice President
WAXS INC., Assignee
/s/ Hensley E. West
---------------------------------
By: Hensley E. West
Its: President
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SCHEDULE A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
World Access, Inc. 1991 Stock Option Plan, as amended by Amendment Nos. 1
through 6.
World Access, Inc. Outside Directors' Warrant Plan.
World Access, Inc. Directors' Warrant and Incentive Plan.
Restor Industries, Inc. Profit Sharing and Retirement Savings Plan.
Merger Agreement dated April 22, 1996, by and between World Access, Inc.,
Restor- Comtech, Inc., Michael Joe, Michael Ramlogan, Dan Lubarsky and
Comtech-Sunrise, Inc.
Escrow Agreement dated June 18, 1996, by and between World Access, Inc.,
Restor- Comtech, Inc., Cauthen & Feldman, P.A. and the former shareholders of
Comtech-Sunrise, Inc.
Severance Protection Agreement dated November 1, 1997, by and between World
Access, Inc. and Stephen A. Odom.
Severance Protection Agreement dated November 1, 1997, by and between World
Access, Inc. and Mark A. Gergel.
Severance Protection Agreement dated November 1, 1997, by and between World
Access, Inc. and Hensley E. West.
Agreement and Plan of Merger between and among World Access, Inc., CIS
Acquisition Corp., Thomas R. Canham, Brian A. Schuchman, John T. Simon and
Cellular Infrastructure Supply, Inc.
Escrow Agreement dated as of March 27, 1997 by and between World Access, Inc.,
Cauthen & Feldman, P.A., Thomas R. Canham, Brian A. Schuchman and John T.
Simon.
Registration Rights Agreement dated as of March 27, 1997 by and between World
Access, Inc., Thomas R. Canham, Brian A. Schuchman and John T. Simon.
Agreement and Plan of Merger dated as of December 24, 1997 by and among World
Access, Inc., Cellular Infrastructure Supply, Inc., Advanced Techcom Inc. and
Ernest H. Lin.
Registration Rights Agreement dated January 29, 1998, by and among World
Access, Inc. and the stockholders of Advanced Techcom, Inc.
<PAGE> 4
Escrow Agreement dated as of January 29, 1998, by and among World Access, Inc.,
Cellular Infrastructure Supply, Inc., Ernest H. Lin, individually and as
attorney-in-fact for the former ATI Stockholders, and Cauthen & Feldman, P.A.
Agreement and Plan of Merger dated as of August 25, 1997 by and among World
Access, Inc., Galaxy Personal Communications Services, Inc., Galaxy Acquisition
Corp. and the shareholders of Galaxy Personal Communications Services, Inc.
Escrow Agreement dated as of August 25, 1997 by and between World Access, Inc.
and the shareholders of Galaxy Personal Communications Services, Inc.
Registration Rights Agreement dated as of August 25, 1997 by and between World
Access, Inc. and the shareholders of Galaxy Personal Communications Services,
Inc.
Option Exchange Agreements dated as of December 31, 1997 between World Access,
Inc. and the holders of certain options to acquire shares of common stock of
NACT Telecommunications, Inc.
