<PAGE> 1
As filed with the Securities and Exchange Commission on March 30, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
WORLD ACCESS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2398004
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
945 EAST PACES FERRY ROAD, SUITE 2200, ATLANTA, GEORGIA 30326
(Address of principal executive offices, including zip code)
WORLD ACCESS, INC. OUTSIDE DIRECTORS' WARRANT PLAN,
WORLD ACCESS, INC. 1998 INCENTIVE EQUITY PLAN,
FACILICOM INTERNATIONAL, INC. 1998 STOCK OPTION PLAN
AND
FACILICOM INTERNATIONAL, INC. 1999 SPECIAL STOCK OPTION PLAN
(Full title of the plans)
---------------
MARK A. GERGEL COPY TO:
EXECUTIVE VICE PRESIDENT AND LEONARD A. SILVERSTEIN, ESQ.
CHIEF FINANCIAL OFFICER LONG ALDRIDGE & NORMAN LLP
WORLD ACCESS, INC. 303 PEACHTREE STREET, N.E.
945 EAST PACES FERRY ROAD SUITE 5300
SUITE 2200 ATLANTA, GEORGIA 30308-3201
ATLANTA, GEORGIA 30326 (404) 527-4000
(Name and address of agent for service)
(404) 231-2025
(Telephone number, including area code,
of agent for service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered(1) per share(2) offering price(2) fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,200,000(3) $21.875 $ 26,250,000.00 $ 6,930.00
$.01 par value 2,500,000(4) $21.875 $ 54,687,500.00 $14,437.50
per share 495,557(5) $ 2.690 $ 1,333,048.33 351.92
2,000,000(6) $15.000 $ 30,000,000.00 7,920.00
Total 6,195,557 -- $ 112,270,548.33 $29,639.42
======================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) of the Securities Act, an undetermined number
of additional shares may be issued, or the shares registered hereunder
may be combined into an undetermined lesser number of shares, as a
result of events such as stock splits, stock dividends or similar
transactions.
(2) The offering price for the 495,557 shares subject to currently
outstanding options under the FaciliCom International, Inc. 1998
Stock Option Plan assumed by World Access and the 2,000,000 shares
subject to currently outstanding options under the FaciliCom
International, Inc. 1999 Special Stock Option Plan assumed by
World Access is based on the applicable option exercise prices
for each currently outstanding option pursuant to Rule 457(h).
The average exercise price for the options issued under the
FaciliCom International, Inc. 1998 Stock Option Plan assumed by
World Access is $2.69 per share, and the total exercise price
for all such options is $1,333,048. The exercise price for each
option issued under the FaciliCom International, Inc. 1999 Special
Stock Option Plan assumed by World Access is $15.00 per share, and
the total exercise price for all such options is $30,000,000. The
offering price for the 3,700,000 shares issuable under the World
Access, Inc. Outside Directors' Warrant Plan and the World Access,
Inc. 1998 Incentive Equity Plan is not presently determinable.
The offering price for such shares is estimated pursuant to Rule
457(c) and (h) of the Securities Act solely for the purpose of
calculating the registration fee and is based upon the average of the
high and low prices of our common stock on March 23, 2000 as
quoted on the Nasdaq National Market.
(3) Represents an additional 1,200,000 shares of common stock issuable
pursuant to the World Access, Inc. Outside Directors' Warrant Plan.
(4) Represents an additional 2,500,000 shares of common stock issuable
pursuant to the World Access, Inc. 1998 Incentive Equity Plan.
(5) Represents shares of common stock issuable upon the exercise of options
issued pursuant to the FaciliCom International, Inc. 1998 Stock Option
Plan assumed by World Access effective as of December 7, 1999.
(6) Represents shares of common stock issuable upon the exercise of options
issued or issuable pursuant to the FaciliCom International, Inc. 1999
Special Stock Option Plan assumed by World Access effective as of
December 7, 1999.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information
we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered part of this registration statement and later information that we
file with the Commission will automatically update and supersede this
information. We incorporate by reference the documents listed below, and future
filings made with the Commission will automatically update and supersede this
information. We incorporate by reference documents listed below and any future
filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act until the selling shareholders sell all their shares covered by
this registration statement.
We have filed the following documents with the Commission:
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<PAGE> 4
- Our Annual Report on Form 10-K for the year ended December 31,
1999, filed March 30, 2000 (File Number 0-29782);
- Our Current Report on Form 8-K filed March 1, 2000 relating
to the acquisition of WorldxChange (event date: February 11,
2000) (File Number 0-29782);
- Our Current Report on Form 8-K filed March 1, 2000 relating
to the acquisition of STAR Telecommunications (event date:
February 11, 2000) (File Number 0-29782);
- Our Current Report on Form 8-K filed February 28, 2000 (event
date: February 11, 2000) (File Number 0-29782);
- Our Current Report on Form 8-K/A filed February 22, 2000
(event date: December 7, 1999) (File Number 0-29782);
- Our Current Report on Form 8-K filed February 9, 2000 (event
date: February 2, 2000; and
- Our description of common stock included in the Registration
Statement on Form S-4 (No. 333-67025), as filed with the
Commission on November 10, 1998.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Long Aldridge & Norman LLP, Atlanta, Georgia, has passed upon certain
legal matters regarding the securities registered hereby. LAN Equities
Partnership, L.P., an affiliate of Long Aldridge & Norman LLP, is the owner of
68,542 shares of World Access common stock.
ITEM 6. 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 security holders 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 World Access, Inc. Restated Certificate of
Incorporation provide for indemnification of directors, officers and employees
to the fullest extent permissible under the DGCL.
Officers and directors of World Access are presently covered by
insurance which (with certain exceptions and with certain limitations)
indemnifies them against any losses or liabilities arising from any alleged
"wrongful act" including any alleged breach of duty, neglect, error,
misstatement, misleading statement, omissions or other act done or wrongfully
attempted. The cost of such insurance is borne by World Access as permitted by
the DGCL.
World Access has entered into separate indemnification agreements with
its directors and non-director officers at the level of Vice President and
above. These indemnification agreements provide as follows:
- there is a rebuttable presumption that the director or officer
has met the applicable standard of conduct required for
indemnification;
- World Access will advance litigation expenses to a director or
officer at his request provided that he undertakes to repay
the amount advanced if it is ultimately determined that he is
not entitled to indemnification for such expenses;
- World Access will indemnify a director of officer for amounts
paid in settlement of a derivative suit;
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- in the event of a determination by the disinterested members
of the board of directors or independent counsel that a
director or officer did not meet the standard of conduct
required for indemnification, the director or officer may
contest this determination by petitioning a court or
commencing any arbitration proceeding conducted by a single
arbitrator pursuant to the rules of the American Arbitration
Association to make an independent determination of whether
such director or officer is entitled to indemnification under
his indemnification agreement; and
- World Access will reimburse a director or officer for expenses
incurred enforcing his rights under his indemnification
agreement.
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<PAGE> 6
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 Third Amendment to the World Access, Inc. Outside Directors' Warrant Plan (incorporated by reference to
Exhibit 10.21 to World Access' Form 10-K for the year ended December 31, 1998, filed April 9, 1999).
4.2 First Amendment to the World Access, Inc. 1998 Incentive Equity Plan (incorporated by reference to
Exhibit 10.32 to World Access' Form 10-K for the year ended December 31, 1999, filed March 30, 2000).
4.3 FaciliCom International, Inc. 1998 Stock Option Plan (incorporated by reference to Exhibit 10.19 to
FaciliCom's Form 10-K for the year ended September 30, 1998, filed December 28, 1998).
4.4 FaciliCom International, Inc. 1999 Special Stock Option Plan (incorporated by reference to
Exhibit 10.33 to World Access' Form 10-K for the year ended December 31, 1999, filed March 30, 2000).
5 Opinion of Long Aldridge & Norman LLP.
23.1 Consent of Ernst & Young LLP with respect to the financial statements of World Access, Inc.
23.2 Consent of PricewaterhouseCoopers LLP with respect to the financial statements of World Access, Inc.
23.4 Consent of Long Aldridge & Norman LLP (included in its opinion filed as
Exhibit 5 hereto).
24.1 Powers of Attorney (included in signature pages to this Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS
A. RULE 415 OFFERING.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) 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;
provided, however, because this registration statement is on Form S-8,
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) 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.
(3) 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.
II-4
<PAGE> 7
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
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 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. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
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 provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that 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 and will be governed by the final adjudication of such issue.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Atlanta, state of Georgia, on March 29, 2000.
WORLD ACCESS, INC.
BY: /s/ John D. Phillips
-----------------------------------------
John D. Phillips
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints John D. Phillips and Mark A. Gergel, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of March 29, 2000.
<TABLE>
<CAPTION>
SIGNATURES Title
---------- -----
<S> <C>
/s/ John D. Phillips
- --------------------------- Chairman and Chief Executive Officer
John D. Phillips (Principal Executive Officer)
/s/ Mark A. Gergel
- --------------------------- Executive Vice President and Chief
Mark A. Gergel Financial Officer (Principal Financial
Officer)
/s/ Martin D. Kidder
- --------------------------- Vice President and Corporate Controller
Martin D. Kidder (Principal Accounting Officer)
/s/ Walter J. Brumeister
- --------------------------- Director
Walter J. Burmeister
/s/ Kirby J. Campbell
- --------------------------- Director
Kirby J. Campbell
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C>
/s/ Bryan Cipoletti
- ---------------------------- Director
Bryan Cipoletti
/s/ Stephen J. Clearman
- ---------------------------- Director
Stephen J. Clearman
/s/ John P. Imlay, Jr.
- ---------------------------- Director
John P. Imlay, Jr.
/s/ Massimo Prelz Oltramonti
- ---------------------------- Director
Massimo Prelz Oltramonti
/s/ John P. Rigas
- ---------------------------- Director
John P. Rigas
/s/ Carl E. Sanders
- ---------------------------- Director
Carl E. Sanders
/s/ Dru A. Sedwick
- ---------------------------- Director
Dru A. Sedwick
/s/ Lawrence C. Tucker
- ---------------------------- Director
Lawrence C. Tucker
</TABLE>
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<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 Third Amendment to the World Access, Inc. Outside Directors' Warrant Plan (incorporated by reference to
Exhibit 10.21 to World Access' Form 10-K for the year ended December 31, 1998, filed April 9, 1999).
4.2 First Amendment to the World Access, Inc. 1998 Incentive Equity Plan (incorporated by reference to
Exhibit 10.32 to World Access' Form 10-K for the year ended December 31, 1999, filed March 30, 2000).
4.3 FaciliCom International, Inc. 1998 Stock Option Plan (incorporated by reference to Exhibit 10.19 to
FaciliCom's Form 10-K for the year ended September 30, 1998, filed December 28, 1998).
4.4 FaciliCom International, Inc. 1999 Special Stock Option Plan (incorporated by reference to
Exhibit 10.33 to World Access' Form 10-K for the year ended December 31, 1999, filed March 30, 2000).
5 Opinion of Long Aldridge & Norman LLP.
23.1 Consent of Ernst & Young LLP with respect to the financial
statements of World Access, Inc.
23.2 Consent of PricewaterhouseCoopers LLP with respect to the
financial statements of World Access, Inc.
23.3 Consent of Long Aldridge & Norman LLP (included in its opinion
filed as Exhibit 5 hereto).
24.1 Powers of Attorney (included in signature pages to this Registration Statement).
</TABLE>
II-8
<PAGE> 1
EXHIBIT 5
March 30, 2000
World Access, Inc.
945 East Paces Ferry Road, Suite 2200
Atlanta, Georgia 30326
RE: WORLD ACCESS, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to World Access, Inc., a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8 (the
"Registration Statement") and the filing thereof with the Securities and
Exchange Commission. Pursuant to the Registration Statement, the Company intends
to register under the Securities Act of 1933, as amended, an aggregate of
6,195,557 shares (the "Shares") of common stock, par value $.01 per share (the
"Common Stock"), of the Company. The Shares represent shares of Common Stock
that may be issued pursuant to the World Access, Inc. Outside Directors' Warrant
Plan, the World Access, Inc. 1998 Incentive Equity Plan, the FaciliCom
International, Inc. 1998 Stock Option Plan and the FaciliCom International, Inc.
1999 Special Stock Option Plan (collectively, the "Plans") or upon the exercise
of options or warrants granted in accordance with the terms of the Plans.
The opinion hereinafter set forth is given to the Company pursuant to
Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. The only opinion
rendered by this firm consists of the matter set forth in numbered paragraph (1)
below (our "Opinion"), and no other opinion is implied or to be inferred beyond
such matters. Additionally, our Opinion is based upon and subject to the
qualifications, limitations and exceptions set forth in this letter.
Our Opinion is furnished for the benefit of the Company solely with
regard to the Registration Statement, may be relied upon by the Company only in
connection with the Registration Statement and may not otherwise be relied upon,
used, quoted or referred to by or filed with any other person or entity without
our prior written permission.
<PAGE> 2
World Access, Inc.
March 30, 2000
Page 2
In rendering our Opinion, we have examined such agreements, documents,
instruments and records as we deemed necessary or appropriate under the
circumstances for us to express our Opinion, including, without limitation, the
Plans, the Company's Certificate of Incorporation and Bylaws, as amended, and
minutes of proceedings of the Board of Directors and stockholders of the
Company. In making all of our examinations, we assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted to us as
copies, and the due execution and delivery of all documents by any persons or
entities other than the Company where due execution and delivery by such persons
or entities is a prerequisite to the effectiveness of such documents.
As to various factual matters that are material to our Opinion, we have
relied upon the factual statements set forth in a certificate of an officer of
the Company and a certificate of a public official. We have not independently
verified or investigated, nor do we assume any responsibility for, the factual
accuracy or completeness of such factual statements.
Members of this firm are admitted to the Bar of the State of Georgia
and are duly qualified to practice law in that state. Because the Company is
organized under, and the subject of our Opinion therefore is governed by, the
General Corporation Law of the State of Delaware (the "Delaware Code"), we do
not herein express any opinion concerning any matter respecting or affected by
any laws other than the laws set forth in the Delaware Code that are now in
effect and that, in the exercise of reasonable professional judgment, are
normally considered in transactions such as those contemplated by the issuance
of the Shares pursuant to the Plans. The Opinion hereinafter set forth is based
upon pertinent laws and facts in existence as of the date hereof, and we
expressly disclaim any obligation to advise you of changes to such pertinent
laws or facts that hereafter may come to our attention.
Based upon and subject to the foregoing, we are of the following
opinion:
(1) the Shares, when issued in accordance with the terms of the
Plans or upon the exercise of options or warrants granted in
accordance with the terms of the Plans against payment in full
of the exercise price therefor, if any, established in
accordance with the terms of the Plans, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an exhibit to the
Registration Statement.
<PAGE> 3
World Access, Inc.
March 30, 2000
Page 3
Very truly yours,
LONG ALDRIDGE & NORMAN LLP
By: /s/ LEONARD A. SILVERSTEIN
--------------------------------------
Leonard A. Silverstein
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and related Prospectus of World Access, Inc. and subsidiaries for the
registration of 6,195,557 shares of its common stock and to the incorporation by
reference therein of our report dated March 20, 2000, with respect to the
consolidated financial statements and schedules of World Access, Inc. and
subsidiaries included in its Annual Report (Form 10-K) for the year ended
December 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst and Young LLP
Atlanta, Georgia
March 29, 2000
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 5, 1998, except for the
discontinued operations reclassifications in the Consolidated Statements of
Operations and Note C, which are as of March 14, 2000, relating to the financial
statements and financial statement schedules of World Access, Inc. for the year
ended December 31, 1997, which appears in World Access Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP
Atlanta, Georgia
March 29, 2000
