<PAGE> 1
EXHIBIT 4.12
VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT
This VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT, dated as of
________ __, 2000 (this "Agreement"), is made and entered into among
Communication TeleSystems International d/b/a WORLDxCHANGE Communications, a
California corporation ("CTI"), and the parties listed on Exhibit A attached
hereto (each, a "WAXS Stockholder" and collectively, the "WAXS Stockholders").
WHEREAS, World Access, Inc., a Delaware corporation ("WAXS"), and CTI
have entered into an Agreement and Plan of Merger, dated February 11, 2000 and
amended May 23, 2000 (as the same may be amended or supplemented, the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), providing for the merger of CTI
with and into a wholly-owned subsidiary of WAXS (the "Transaction"), upon the
terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, each WAXS Stockholder owns, of record or beneficially, the
number of shares of WAXS Common Stock or other capital stock of WAXS (such
shares of WAXS Common Stock and other capital stock of WAXS being referred to as
"WAXS Capital Stock") set forth opposite such WAXS Stockholder's name on Exhibit
A attached hereto (such shares of WAXS Capital Stock, together with any other
shares of WAXS Capital Stock of which such WAXS Stockholder acquires beneficial
ownership after the date hereof and during the term of this Agreement, whether
upon the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise, being collectively referred to herein as the "Subject
Shares"); and
WHEREAS, in connection with the further amendment of the Merger
Agreement, CTI has requested that the WAXS Stockholders enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
1. Representations and Warranties of the WAXS Stockholders.
Except as set forth on Exhibit A attached hereto, each WAXS Stockholder hereby
represents and warrants to CTI as to itself as follows:
(a) Authority; No Conflicts. Such WAXS Stockholder has
the legal capacity and all requisite power and authority to enter into
this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by such WAXS Stockholder and
constitutes a valid and binding obligation of such WAXS Stockholder
enforceable in accordance with its terms. No filing with, and no
permit, authorization, consent or approval of, any governmental
authority or any other person is necessary for the execution of this
Agreement by such WAXS Stockholder and the consummation by such WAXS
Stockholder of the transactions contemplated hereby and none of the
<PAGE> 2
execution and delivery of this Agreement by such WAXS Stockholder, the
consummation of the transactions contemplated hereby or compliance with
the terms hereof by such WAXS Stockholder will conflict with, or result
in any violation of, or default (with or without notice or lapse of
time or both) under any provision of, as applicable, the certificate of
incorporation, bylaws or analogous documents of such WAXS Stockholder
or any agreement to which such WAXS Stockholder is a party, including
any voting agreement, stockholders agreement, voting trust, trust
agreement, pledge agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license or violate any judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable
to such WAXS Stockholder or to its property or assets except (i) where
the failure to make such filings or obtain such permits,
authorizations, consents or approvals would not prevent or delay the
performance by such WAXS Stockholder of its obligations under this
Agreement or (ii) for any such conflicts, violations, defaults or other
occurrences that would not prevent or delay the performance by such
WAXS Stockholder of its obligations under this Agreement.
(b) Subject Shares. Such WAXS Stockholder is the record
and beneficial owner of, and has good and marketable title to, the
number of Subject Shares set forth opposite such WAXS Stockholder's
name on Exhibit A hereto, free and clear of any encumbrances,
agreements, adverse claims, liens or other arrangements with respect to
the ownership of or the right to vote or dispose of such Subject
Shares. Other than such Subject Shares, such WAXS Stockholder does not
beneficially or of record own any shares of WAXS Capital Stock or
securities convertible into or exchangeable for shares of WAXS Capital
Stock. Such WAXS Stockholder has the sole right and power to vote and
dispose of such Subject Shares. None of such Subject Shares are subject
to any voting trust or other agreement, arrangement or restriction with
respect to the voting or transfer of any of the Subject Shares, except
as contemplated by this Agreement.
2. Voting and Transfer of Subject Shares.
(a) Until the termination of this Agreement in accordance
with Section 5 hereof, each WAXS Stockholder agrees as to itself that
at any meeting of stockholders of WAXS or at any adjournment thereof or
in any other circumstance upon which the WAXS Stockholders' vote,
consent or other approval (including by written consent) is sought,
such WAXS Stockholder shall vote all of the Subject Shares then
beneficially owned by such WAXS Stockholder (i) in favor of the
Transaction and the adoption and the approval of the Merger Agreement
and each of the other transactions contemplated by the Merger Agreement
and (ii) against any action or agreement that would result in a
material breach of any covenant, representation or warranty or any
other obligation or agreement of WAXS under the Merger Agreement. No
WAXS Stockholder shall hereafter, unless and until this Agreement
terminates pursuant to Section 5 hereof, purport to grant any proxy or
power of attorney with respect to any of the Subject Shares set forth
opposite such WAXS Stockholder's name on Exhibit A, deposit any of such
Subject Shares into a voting trust or enter into any agreement (other
than this
2
<PAGE> 3
Agreement), arrangement or understanding with any person, directly or
indirectly, to vote, grant any proxy or give instructions with respect
to the voting of any of such Subject Shares, in each case only to the
extent it relates to the matters referred to in the first sentence of
this Section 2(a). Each WAXS Stockholder further agrees not to commit
or agree to take any action inconsistent with the foregoing.
(b) Prior to the termination of this Agreement in
accordance with Section 5 hereof, each WAXS Stockholder agrees not to
sell, hypothecate, transfer, pledge, encumber, assign or otherwise
dispose of (including by gift) (collectively, "Transfer") any of the
Subject Shares or WAXS Stock Options held by such WAXS Stockholder
(beneficially or of record) except Transfers pursuant to bona fide
transactions with unaffiliated persons or entities.
3. No Ownership Interest. Except as set forth in Section 2,
nothing contained in this Agreement shall be deemed to vest in anyone other than
the WAXS Stockholders any direct or indirect ownership or incidents of ownership
of or with respect to any of the Subject Shares or WAXS Stock Options. All
rights, ownership and economic benefits of and relating to the Subject Shares
and the WAXS Stock Options shall remain and belong to the WAXS Stockholders, and
no one shall have any authority to manage, direct, restrict, govern or
administer any of the policies or operations of WAXS or exercise any power or
authority to direct the voting of any of the Subject Shares as a result of this
Agreement, except to the extent set forth in Section 2(a).
4. Assignment. Except as otherwise specifically provided herein,
neither this Agreement nor any of the rights, interests or obligations hereunder
may be assigned by any of the parties hereto without the prior written consent
of the other parties hereto.
5. Termination. This Agreement shall terminate, and no party
hereto shall have any rights or obligations hereunder, upon the first to occur
of (i) the termination of the Merger Agreement pursuant to Article IX thereof,
(ii) the Effective Time and (iii) December 31, 2000.
6. General Provisions.
(a) Amendments. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
(b) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery
in person, by telecopy or by registered or certified mail (postage
prepared, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
if to a WAXS Stockholder, to the address set forth beside such
WAXS Stockholder's name on Exhibit A hereto.
3
<PAGE> 4
with a copy to:
Long Aldridge & Norman LLP
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308
Attention: H. Franklin Layson, Esq.
Facsimile: (404) 527-4198
if to CTI, to:
WORLDxCHANGE Communications
9999 Willow Creek Road
San Diego, California 92131
Attention: Eric Lipoff, Esq.
Facsimile: (858) 452-3780
with a copy to:
O'Melveny & Myers LLP
610 Newport Center Drive
17th Floor
Newport Beach, California 92660
Attention: Terrence Allen, Esq.
Facsimile: (949) 823-6994
(c) Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
(d) Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable
principles of conflicts or law.
(f) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule or law, or public policy, all other
4
<PAGE> 5
conditions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon any determination that any term
or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
7. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that, in addition to any other remedy to which it may be
entitled, at law or in equity, the parties shall be entitled to the remedy of
specific performance of the covenants and agreements contained herein and
injunctive and other equitable relief.
8. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto. Except as provided in the
preceding sentence, nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any rights, benefits or remedies or any
nature whatsoever under or by reason of this Agreement.
[SIGNATURES ON THE FOLLOWING TWO PAGES]
5
<PAGE> 6
IN WITNESS WHEREOF, the WAXS Stockholders and CTI have caused this
Agreement to be duly and validly executed as of the date first written above.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
COMMUNICATION TELESYTEMS
INTERNATIONAL D/B/A WORLDxCHANGE
COMMUNICATIONS
By:
--------------------------------------
Name:
Title:
6
<PAGE> 7
EXHIBIT A
WAXS Stockholder (including address) Subject Shares
7
