<PAGE> 1
As filed with the Securities and Exchange Commission on October 7, 1998
Registration No. 333-65389
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WAXS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 3661 58-2398004
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C>
MARK A. GERGEL
945 E. PACES FERRY ROAD, SUITE 2240 945 E. PACES FERRY ROAD, SUITE 2240
ATLANTA, GEORGIA 30326 ATLANTA, GEORGIA 30326
(404) 231-2025 (404) 231-2025
(Name, address, including zip code, and telephone (Name, address, including zip code, and telephone
number, number,
area code, of Registrant's principal executive offices) area code, of agent for service)
</TABLE>
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COPIES TO:
<TABLE>
<S> <C>
STEVEN E. FOX, ESQ. BRENT CHRISTENSEN, ESQ.
ROGERS & HARDIN LLP PARSONS, BEHLE & LATIMER
2700 INTERNATIONAL TOWER ONE UTAH CENTER
229 PEACHTREE STREET, N.E. 201 SOUTH MAIN STREET
ATLANTA, GEORGIA 30303 SUITE 1800
(404) 522-4700 SALT LAKE CITY, UTAH 84145-0898
(801) 532-1234
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
promptly as practicable after this registration statement becomes effective and
certain other conditions to the mergers proposed herein are satisfied.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED(2) PER UNIT(3) OFFERING PRICE(3) FEE(4)
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share.............................. 27,000,000 shares $16.99 $458,831,250 $135,355
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</TABLE>
(1) This registration statement relates to securities of the Registrant issuable
to holders of capital stock of NACT Telecommunications, Inc., a Delaware
corporation ("NACT"), in the proposed merger of a wholly-owned subsidiary of
the Registrant with and into NACT (the "NACT Merger"), and to holders of
capital stock of World Access, Inc., a Delaware corporation ("World
Access"), in the proposed merger of a wholly-owned subsidiary of the
Registrant with and into World Access (the "World Access Merger").
(2) Based upon the number of shares of capital stock of NACT and World Access
presently outstanding or otherwise expected to be issued on or before the
closing of the mergers and entitled to receive the merger consideration
pursuant to the NACT Merger and the World Access Merger.
(3) Pursuant to Rules 457(f)(i) and 457(c) under the Securities Act of 1933, as
amended, and solely for purposes of calculating the registration fee, the
registration fee was computed on the basis of the average of the high and
low prices of the common stock of NACT on The Nasdaq National Market and the
average of the high and low prices of the common stock of World Access on
The Nasdaq National Market, in each case on October 5, 1998.
(4) The registration fee of $135,355 was calculated pursuant to 457(f) under the
Securities Act as follows: $295 per $1,000,000 (or fraction thereof) of the
proposed maximum aggregate offering price. A fee of $12,738 was paid on
April 28, 1998 pursuant to Section 14(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), in connection with the filing of the
preliminary materials by World Access and NACT. Pursuant to 457(b) under the
Securities Act, the registration fee payable herewith has been reduced by
$12,738, the amount previously paid upon filing of such preliminary
materials. Accordingly, an additional fee of $122,617 is required to be paid
and was paid with the initial filing of this Registration Statement.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL") allows a
corporation to eliminate or limit the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except (i) for breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
certain unlawful dividends and stock repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that in the case of any action other than
one by or in the right of the corporation, a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in such capacity on behalf of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 145 of the DGCL provides that in the case of an action by or in the
right of a corporation to procure a judgment in its favor, a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any action or suit by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation in such capacity on behalf of another corporation
or enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under standards similar to those set forth in the
preceding paragraph, except that no indemnification may be made in respect of
any action or claim as to which such person shall have been adjudged to be
liable to the corporation unless a court determines that such person is fairly
and reasonably entitled to indemnification.
Articles X and XI of the Company's Certificate of Incorporation provides
for indemnification of directors, officers and employees to the fullest extent
permissible under the DGCL.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
The following exhibits are filed herewith or incorporated herein by
reference.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <C> <S>
2.1(1) -- Agreement and Plan of Merger and Reorganization, dated as of
February 24, 1998, among WAXS INC., World Access, Inc., WAXS
Acquisition Corp., NACT Telecommunications, Inc. and NACT
Acquisition Corp. (incorporated by reference to Appendix A
to the Prospectus/Information Statement included as part of
this registration statement).
2.1(2) -- First Amendment to Agreement and Plan of Merger and
Reorganization, dated as of June 30, 1998, among WAXS INC.,
World Access, Inc., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(incorporated by reference to Appendix A-1 to the
Prospectus/Information Statement included as part of this
registration statement).
</TABLE>
II-1
<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <C> <S>
2.1(3) -- Second Amendment to Agreement and Plan of Merger and
Reorganization, dated as of September 30, 1998, among WAXS
Inc., World Access, Inc., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(incorporated by reference to Appendix A-2 to the
Prospectus/Information Statement included as part of this
registration statement).
3.1 -- Certificate of Incorporation of WAXS INC.*
3.2 -- Bylaws of WAXS INC.*
5.1 -- Opinion letter of Rogers & Hardin LLP as to the legality of
the securities being registered by this registration
statement.
8.1 -- Opinion letter of Van Cott, Bagley, Cornwall & McCarthy as
to certain tax matters.*
8.2 -- Opinion letter of Rogers & Hardin LLP as to certain tax
matters.*
23.1 -- Consent of Rogers & Hardin LLP with respect to its opinion
as to the legality of securities being registered by this
registration statement (contained in Exhibit 5.1).
23.2 -- Consent of Van Cott, Bagley, Cornwall & McCarthy with
respect to its opinion as to certain tax matters (contained
in Exhibit 8.1).
23.3 -- Consent of Rogers & Hardin LLP with respect to its opinion
as to certain tax matters (contained in Exhibit 8.2).
23.4 -- Consent of PricewaterhouseCoopers LLP, independent auditors,
with respect to financial statements of World Access, Inc.*
23.5 -- Consent of KPMG Peat Marwick LLP, independent auditors, with
respect to financial statements of NACT Telecommunications,
Inc.*
23.6 -- Consent of NationsBanc Montgomery Securities LLC with
respect to its fairness opinion regarding the NACT Merger
(incorporated by reference to Appendix B to the
Prospectus/Information Statement included as part of this
registration statement).
23.7 -- Consent of Ernst & Young LLP, independent auditors, with
respect to consolidated financial statements of Telco
Systems, Inc.*
23.8 -- Consent of Ernst & Young LLP, independent auditors, with
respect to consolidated financial statements of Cherry
Communications Incorporated and Cherry Communications U.K.
Limited.*
23.9 -- Consent of Grant Thorton LLP, independent auditors, with
respect to financial statements of Cherry Communications
Incorporated and Cherry Communications U.K. Limited.*
23.91 -- Consent of Deloitte & Touche LLP, independent auditors, with
respect to financial statements of Advanced TechCom, Inc.*
23.92 -- Consent of Tedder, Grimsley & Company, P.A., independent
auditors, with respect to financial statements of Advanced
TechCom, Inc.*
24.1 -- Powers of attorney (included on pages II-5).
</TABLE>
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* Previously filed.
(b) Financial Statement Schedules
Financial statements and schedules not included herein have been omitted
because of the absence of conditions under which they are required or because
the required information, where material, is shown in the consolidated financial
statements or notes thereto incorporated by reference in the
Prospectus/Information Statement.
II-2
<PAGE> 4
(c) Reports, Opinions and Appraisals
The opinion of NationsBanc Montgomery Securities LLC with respect to the
NACT Merger is attached as Appendix B to the Prospectus/Information Statement
filed as a part of this registration statement.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes (i) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement (A) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (B) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; and (C) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; (ii) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (iii) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) (i) The undersigned registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(ii) The undersigned registrant hereby undertakes that every
prospectus: (A) that is filed pursuant to paragraph (c)(i) immediately
preceding or (B) that purports to meet the requirements of Section 10(a)(3)
of the Securities Act of 1933 and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that such a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
(e) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference in the Prospectus/Information
Statement pursuant to Item 4, 10(b), 11 or 13 of this form, within one business
day of receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
(f) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this amendment to the registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on October 7, 1998.
WAXS INC.
By: /s/ STEVEN A. ODOM
------------------------------------
Steven A. Odom
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ STEVEN A. ODOM Chairman of the Board and Chief October 7, 1998
- ----------------------------------------------------- Executive Officer
Steven A. Odom
/s/ MARK A. GERGEL Executive Vice President and October 7, 1998
- ----------------------------------------------------- Chief Financial Officer
Mark A. Gergel (Principal Financial Officer)
* Director and President (Chief October 7, 1998
- ----------------------------------------------------- Operating Officer)
Hensley E. West
* Vice President, Controller and October 7, 1998
- ----------------------------------------------------- Secretary
Martin D. Kidder (Principal Accounting Officer)
Director
- -----------------------------------------------------
Stephen J. Clearman
* Director October 7, 1998
- -----------------------------------------------------
John D. Phillips
* Director October 7, 1998
- -----------------------------------------------------
Stephen E. Raville
*By: /s/ MARK A. GERGEL October 7, 1998
------------------------------------------------
Mark A. Gergel, as Attorney in Fact
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
The Exhibit numbers in the following list correspond to the numbers
assigned to such exhibits in Item 601 and Regulation S-K.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <C> <S>
2.1(1) -- Agreement and Plan of Merger and Reorganization, dated as of
February 24, 1998, among WAXS INC., World Access, Inc., WAXS
Acquisition Corp., NACT Telecommunications, Inc. and NACT
Acquisition Corp. (incorporated by reference to Appendix A
to the Prospectus/Information Statement included as part of
this registration statement).
2.1(2) -- First Amendment to Agreement and Plan of Merger and
Reorganization, dated as of June 30, 1998, among WAXS INC.,
World Access, Inc., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(incorporated by reference to Appendix A-1 to the
Prospectus/Information Statement included as part of this
registration statement).
2.1(3) -- Second Amendment to Agreement and Plan of Merger and
Reorganization, dated as of September 30, 1998, among WAXS
INC., World Access, Inc., WAXS Acquisition Corp., NACT
Telecommunications, Inc. and NACT Acquisition Corp.
(incorporated by reference to Appendix A-2 to the
Prospectus/Information Statement included as part of this
registration statement).
3.1 -- Certificate of Incorporation of WAXS INC.*
3.2 -- Bylaws of WAXS INC.*
5.1 -- Opinion letter of Rogers & Hardin LLP as to the legality of
the securities being registered by this registration
statement.
8.1 -- Opinion letter of Van Cott, Bagley, Cornwall & McCarthy as
to certain tax matters.*
8.2 -- Opinion letter of Rogers & Hardin LLP as to certain tax
matters.*
23.1 -- Consent of Rogers & Hardin LLP with respect to its opinion
as to the legality of securities being registered by this
registration statement (contained in Exhibit 5.1).
23.2 -- Consent of Van Cott, Bagley, Cornwall & McCarthy with
respect to its opinion as to certain tax matters (contained
in Exhibit 8.1).
23.3 -- Consent of Rogers & Hardin LLP with respect to its opinion
as to certain tax matters (contained in Exhibit 8.2).
23.4 -- Consent of PricewaterhouseCoopers LLP, independent auditors,
with respect to financial statements of World Access, Inc.*
23.5 -- Consent of KPMG Peat Marwick LLP, independent auditors, with
respect to financial statements of NACT Telecommunications,
Inc.*
23.6 -- Consent of NationsBanc Montgomery Securities LLC with
respect to its fairness opinion regarding the NACT Merger
(incorporated by reference to Appendix B to the
Prospectus/Information Statement included as part of this
registration statement).
23.7 -- Consent of Ernst & Young LLP, independent auditors, with
respect to consolidated financial statements of Telco
Systems, Inc.*
23.8 -- Consent of Ernst & Young LLP, independent auditors, with
respect to financial statements of Cherry Communications
Incorporated and Cherry Communications U.K. Limited.*
23.9 -- Consent of Grant Thorton LLP, independent auditors, with
respect to financial statements of Cherry Communications
Incorporated and Cherry Communications U.K. Limited.*
23.91 -- Consent of Deloitte & Touche LLP, independent auditors, with
respect to financial statements of Advanced TechCom, Inc.*
</TABLE>
II-6
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <C> <S>
23.92 -- Consent of Tedder, Grimsley & Company, P.A., independent
auditors, with respect to financial statements of Advanced
TechCom, Inc.*
24.1 -- Powers of attorney (included on pages II-5).
</TABLE>
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* Previously filed.
II-7
<PAGE> 1
EXHIBIT 5.1
Rogers & Hardin
Attorneys At Law
A Limited Liability Partnership
2700 International Tower, Peachtree Center
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 522-4700
FACSIMILE: (404) 525-2224
October 7, 1998
WAXS INC.
945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
Gentlemen:
We have acted as counsel to WAXS INC. (the "Company") in connection with
the registration by the Company on Form S-4 (hereinafter referred to, together
with any amendments thereto, as the "Registration Statement") under the
Securities Act of 1933, as amended, of an aggregate of up to 27,000,000 shares
of common stock, $.01 par value per share, of the Company (the "Shares")
issuable pursuant to that certain Agreement and Plan of Merger and
Reorganization dated as of February 24, 1998, as amended, to which the Company
is a party (the "Merger Agreement").
In connection with this opinion, we have examined such corporate records
and documents and have made such examinations of law as we have deemed
necessary. In rendering this opinion, we have relied, without investigation,
upon various certificates of public officials and of officers and
representatives of the Company. In our examination of documents, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies.
We are members of the Bar of, and are admitted to practice only in, the
State of Georgia. Accordingly, except as to the General Corporation Law of the
State of Delaware (the "DGCL") and Delaware case law, we express no opinion
herein as to the laws of any jurisdiction other than the United States and the
State of Georgia. Except as to the DGCL, to the extent that any of the opinions
contained herein requires consideration of the laws of a state other than the
State of Georgia, we have assumed, with your permission, that the laws of such
states are the same as the laws of the State of Georgia.
Based upon the foregoing and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that the
Company has the corporate power and authority under the DGCL and its Certificate
of Incorporation and By-Laws to issue the Shares, and the Shares, when issued
against payment therefor or in exchange for securities pursuant to the Merger
Agreement, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and as an exhibit to applications to the securities commissioners of
the various states and other jurisdictions of the United States for registration
or qualification of the Shares in such states and other jurisdictions. We
further consent to the reference to our firm under the caption "Legal Matters"
in the Prospectus which is a part of the Registration Statement.
Very truly yours,
ROGERS & HARDIN
