<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
WORLD ACCESS, INC.
------------------
(Name of Issuer)
Common Stock - $0.01 par value
------------------------------
(Title of Class of Securities)
98141A101
---------
(CUSIP Number)
Scott D. Sullivan, Treasurer and Chief Financial Officer
MCI WORLDCOM, Inc.
515 East Amite Street
Jackson, MS 39201
(601) 360-8600
--------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 14, 1998
-----------------
(Date of Event which Requires Filing of this Statement)
<PAGE> 2
CUSIP NO. 98141A101
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos.
of Above Persons.
Name IRS I.D. #
---- ----------
MCI WORLDCOM, Inc. 58-1521612
WorldCom Network Services, Inc 36-3305625
MFS Telecom, Inc. 36-3547776
Brooks Fiber Communications of Texas, Inc. 43-1714867
2) Check the Appropriate Box if a Member of a Group (See
Instructions).
(a)
(b) (The reporting persons do not consider themselves a
group as described in Rule 13d-5 and are making this
joint filing under Rule 13d-1(k)(1)).
3) SEC Use Only.
4) Source of Funds (See Instructions). 00. See Item 3 hereof.
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e). Not required.
6) Citizenship or Place of Organization.
Name State of Organization
---- ---------------------
MCI WORLDCOM, Inc. Georgia
WorldCom Network Services, Inc. Delaware
MFS Telecom, Inc. Delaware
Brooks Fiber Communications of Texas, Inc. Delaware
Number of (7) Sole Voting Power 6,300,853*
Shares
Beneficially (8) Shared Voting Power None
Owned by
Each (9) Sole Dispositive Power 2,100,284*
Reporting
Person with (10) Shared Dispositive Power None
-2-
<PAGE> 3
11) Aggregate Amount Beneficially Owned by Each Reporting Person.
6,300,853*
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions).
Not Applicable.
13) Percent of Class Represented by Amount in Row (11). 15%*
14) Type of Reporting Person (See Instructions). CO
- -----------------------
* Share ownership numbers and percentages are approximations for the
reasons stated in Item 5. of this Schedule 13D. Each reporting person
is the beneficial owner of all of the reported shares although record
ownership varies.
Item 1. Security and Issuer.
Common stock, $0.01 par value per share, of World Access, Inc., a
Delaware corporation ("World Access"), with its principal executive offices
located at 945 East Paces Ferry Road, Suite 2240, Atlanta, Georgia 30326.
Item 2. Identity and Background.
(a) MCI WORLDCOM, Inc. ("MCI WorldCom") is a Georgia corporation. The
principal business of it and its subsidiaries is telecommunications.
WorldCom Network Services, Inc., a Delaware corporation, is a direct,
wholly-owned subsidiary of MCI WorldCom. MFS Telecom, Inc., a Delaware
corporation, is an indirect, wholly-owned subsidiary of MCI WorldCom.
Brooks Fiber Communications of Texas, Inc., a Delaware corporation, is
an indirect, wholly-owned subsidiary of MCI WorldCom. The principal
business and principal office of each reporting person are located at
515 East Amite Street, Jackson, Mississippi 39201-2702. During the past
five years, none of the reporting persons nor, to the best of their
knowledge, any of the directors or executive officers of any of the
reporting persons, has had any criminal convictions, and none has been
subject to a judgment, decree or final order of a judicial or
administrative body of competent jurisdiction enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect
to such laws.
(b) Certain information pertaining to executive officers and directors
of each reporting person is set forth on Appendix A attached hereto and
incorporated herein by reference.
-3-
<PAGE> 4
Item 3. Source and Amount of Funds or Other Consideration.
The shares were issued in connection with a merger transaction (see
Item 5 below) in which World Access acquired Cherry Communications Incorporated
(d/b/a Resurgens Communications Group) ("RCG"). The reporting persons were
creditors of RCG and received shares of World Access in the merger transaction
pursuant to RCG's Second Amended Plan of Reorganization dated September 2, 1998.
Item 4. Purpose of Transaction.
As stated in Item 5 below, the reporting persons may acquire in the
aggregate dispositive authority for up to approximately 4,200,569 additional
shares of common stock depending upon the attainment of certain earnings levels.
While the reporting persons have no present intentions of acquiring or
influencing control of World Access, they intend to monitor their investment in
World Access and take actions consistent with their perceived best interest.
Item 5. Interest in Securities of the Issuer.
The reporting persons presently own beneficially approximately
6,300,853 shares or 15% of the presently outstanding shares of World Access
common stock, all of which were acquired in connection with the closing of a
merger transaction (the "Merger") on December 14, 1998.
Under the terms of the Merger, creditors of RCG as a group are eligible
to receive up to a total of 9,375,000 shares of World Access common stock over a
two and one-half year period following closing of the Merger. Of these shares, a
total of 3,125,000 shares were issued at closing of the Merger to the RCG
creditors as a group and 6,250,000 shares (the "Contingent Shares") were placed
in escrow to be issued over the two and one-half year period subject to the
attainment of certain earnings levels by RCG and Cherry Communications U.K.
Limited ("Cherry U.K."). The exact amount to be issued to any RCG creditor,
including the reporting persons, will depend upon the resolution of claims in
the RCG bankruptcy proceedings.
The reporting persons have estimated that they are entitled to
approximately 2,100,284 of the shares issued at the closing of the Merger and
4,200,569 of the Contingent Shares. The reporting persons have voting (but not
dispositive) power over the Contingent Shares. The reporting persons will
acquire disposition rights with respect to the Contingent Shares upon the
attainment of certain earning levels for the combined business of RCG and Cherry
U.K. To the extent the specified earnings levels are not attained over the next
two and one-half years, the reporting persons will lose voting and all other
rights with respect to the Contingent Shares. Other than shares acquired in the
above merger transaction, the reporting persons have acquired no shares of World
Access over the sixty day period preceding the filing of this Schedule 13D.
-4-
<PAGE> 5
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
The terms of the arrangement with respect to the Contingent Shares are
set forth in the Agreement and Plan of Merger and Reorganization dated as of May
12, 1998, and the First and Second Amendments thereto, incorporated herein as an
exhibit. The reporting persons are given voting rights with respect to the
Contingent Shares under the terms of the Disbursement Agreement between World
Access, RCG and the Disbursing Agent dated as of December 14, 1998, a copy of
which is attached hereto as an exhibit.
Item 7. Material to be Filed as Exhibits.
Attached hereto or incorporated herein as exhibits are the following
documents:
(1) Written agreement related to filing of joint acquisition statement;
(2) Disbursement Agreement between World Access, RCG and the Disbursing
Agent dated as of December 14, 1998.
(3) Agreement and Plan of Merger and Reorganization dated as of May 12,
1998, as amended by the First and Second Amendments thereto, by and among World
Access, WA Telecom Products Co. (formerly known as "World Access, Inc."), RCG
and WA Merger Corp. (incorporated by reference to Appendix A to the definitive
proxy statement of World Access as filed with the Securities and Exchange
Commission on November 12, 1998 (the "Proxy Statement"));
(4) Share Exchange Agreement and Plan of Reorganization dated as of May
12, 1998, by and among World Access, WA Telecom Products Co., Cherry U.K., and
Renaissance Partners II (incorporated by reference to Appendix B to the Proxy
Statement; and
(5) Debtor's Second Amended Plan of Reorganization dated as of
September 2, 1998 (incorporated by reference to Appendix D to the Proxy
Statement).
-5-
<PAGE> 6
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
December 23, 1998
- -----------------
Date
MCI WORLDCOM, Inc. WorldCom Network Services, Inc.
By: /s/ Scott D. Sullivan By: /s/ Scott D. Sullivan
----------------------------- ---------------------------------
Name: Scott D. Sullivan Name: Scott D. Sullivan
Title: Chief Financial Officer Title: Chief Financial
Officer
MFS Telecom, Inc. Brooks Fiber Communications of Texas,
Inc.
By: /s/ Scott D. Sullivan By: Scott D. Sullivan
----------------------------- --------------------------------
Name: Scott D. Sullivan Name: Scott D. Sullivan
Title: Chief Financial Officer Title: Chief Financial
Officer
-6-
<PAGE> 7
SCHEDULE 13D
APPENDIX A
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF MCI WORLDCOM, INC., WORLDCOM NETWORK SERVICES, INC.,
MFS TELECOM, INC. AND BROOKS FIBER COMMUNICATIONS OF TEXAS, INC.
Part I. Directors and Executive Officers of MCI WORLDCOM, Inc. ("MCI
WorldCom"). Set forth below are the name, current business address, citizenship
and the present principal occupation or employment and material occupations,
positions, offices or employments for the past five years of each director and
executive officer of MCI WorldCom. The principal address of MCI WorldCom and,
unless otherwise indicated below, the current business address for each
individual listed below is 515 East Amite Street, Jackson, Mississippi
39201-2702, U.S.A. Unless otherwise indicated, each such person is a citizen of
the United States. Unless otherwise indicated, each occupation set forth
opposite the individual's name refers to employment with MCI WorldCom.
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
CLIFFORD L. ALEXANDER, JR. Mr. Alexander has been a director of MCI WorldCom since its merger
Alexander & Associates, Inc. with MCI Communications Corporation ("MCI") in September 1998. He
400 C. Street, N.E. has been President of Alexander & Associates, Inc., management
Washington, D.C. 20002 consultants, since 1981. Mr. Alexander is also a director of
U.S.A. Dreyfus 3rd Century Fund, Dreyfus General Family of Funds, Mutual of
America Life Insurance Company,
Dun & Bradstreet Corporation,
American Home Products
Corporation and IMS Health
Incorporated.
JAMES C. ALLEN Mr. Allen has been a director of MCI WorldCom since March 1998.
3023 Club Drive Mr. Allen is the former Vice Chairman and Chief Executive Officer
Destin, FL 32541 and a former director of Brooks Fiber Properties, Inc. ("BFP"),
U.S.A. where he served in such capacities from 1993 until February 1998.
Mr. Allen served as President and Chief Operating Officer of Brooks
Telecommunications Corporation, a founder of BFP, from April 1993
until it was merged with BFP in January 1996. Mr. Allen serves as a
director of Metronet Communications Corp. and Verio Inc.
JUDITH AREEN Ms. Areen has been a director of MCI WorldCom since its merger with
Georgetown University Law Center MCI in September 1998. She has been Executive Vice President for Law
600 New Jersey Avenue, N.W. Center Affairs and Dean of the Law Center, Georgetown University
Washington, D.C. 20001 since 1989. She has been a Professor of Law, Georgetown University,
U.S.A. since 1976.
CARL J. AYCOCK Mr. Aycock has been a director of MCI WorldCom since 1983.
123 South Railroad Avenue Mr. Aycock served as Secretary of MCI WorldCom from 1987 to 1995 and
Brookhaven, MS 39601 was the Secretary and Chief Financial Officer of Master Corporation,
U.S.A. a motel management and ownership company, from 1989 until 1992.
Subsequent to 1992, Mr. Aycock has been self employed as a financial
administrator.
</TABLE>
<PAGE> 8
SCHEDULE 13D
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
MAX E. BOBBITT Mr. Bobbitt has been a director of MCI WorldCom since 1992.
62 Carmel Drive Mr. Bobbitt was a director of Advanced Telecommunications
Little Rock, AR 72112 Corporation ("ATC") until its merger with MCI WorldCom in December
U.S.A. 1992 (the "ATC Merger"). He is currently a consultant and
previously was President and Chief Executive Officer of Metromedia
China Corporation, a telecommunications company, from 1997 until June
1998. From 1996 until February 1997, Mr. Bobbitt was President and
Chief Executive Officer of Asian American Telecommunications
Corporation. Prior to 1996, Mr. Bobbitt held various positions
including President and Chief Operating Officer and director of
ALLTEL Corporation, a telecommunications company, from 1970 until
January 1995.
STEPHEN M. CASE Mr. Case has been a director of MCI WorldCom since March 1998.
America Online, Inc. Mr. Case, a co-founder of America Online, Inc. ("AOL"), has been
22000 AOL Way Chairman of the Board of Directors of AOL since October 1995, Chief
Dulles, VA 20166-9323 Executive Officer of AOL since April 1993 and a director of AOL
U.S.A. since September 1992. Mr. Case served as President of AOL from July
1996 until February 1998 and from January 1991 to February 1996.
Previously, he served as Executive Vice President of AOL from
September 1987 to January 1991 and Vice President, Marketing, from
1985 to September 1987. Since June 1998, Mr. Case serves as a member
of the Board of Directors of the New York Stock Exchange.
BERNARD J. EBBERS Mr. Ebbers has been President and Chief Executive Officer of MCI
WorldCom since April 1985. Mr. Ebbers has served as a director of MCI
WorldCom since 1983.
FRANCESCO GALESI Mr. Galesi has been a director of MCI WorldCom since 1992.
The Galesi Group Mr. Galesi was a director of ATC until the ATC Merger. Mr. Galesi
435 East 52nd Street is the Chairman and Chief Executive Officer of the Galesi Group,
New York, NY 10022 which includes companies engaged in distribution, manufacturing,
U.S.A. real estate and telecommunications. Mr. Galesi serves as a director
of Amnex, Inc. and Walden Residential Properties, Inc.
STILES A. KELLETT, JR. Mr. Kellett has served as a director of MCI WorldCom since 1981.
Kellett Investment Corporation Mr. Kellett has been Chairman of Kellett Investment Corporation
200 Galleria Parkway, Suite 1800 since 1995. From 1978 to 1995, Mr. Kellett served as Chairman of
Atlanta, GA 30339 the Board of Directors of Convalescent Services, Inc., a long-term
U.S.A. health care company in Atlanta, Georgia. Mr. Kellett serves as a
director of Frederica Bank & Trust Company, St. Simons Island,
Georgia.
</TABLE>
Appendix A - p. 2
<PAGE> 9
SCHEDULE 13D
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
GORDON S. MACKLIN Mr. Macklin has been a director of MCI WorldCom since its merger
8212 Burning Tree Road with MCI in September 1998. Mr. Macklin is a director of Martek
Bethesda, MD 20817 Biosciences Corporation; Fund American Enterprises Holdings, Inc.;
U.S.A. MedImmune, Inc.; Real 3-D; Spacehab, Inc.; and director, trustee or
managing general partner, as the case may be, of 49 of the investment
companies in the Franklin Templeton Group of Funds. Mr. Macklin was
formerly Chairman, White River Corporation, an information services
company, from 1993 until June 1998; Chairman, Hambrecht and Quist
Group; director, H&Q Healthcare Investors; director, CCC Information
Services Group, Inc.; and President, National Association of
Securities Dealers, Inc.
JOHN A. PORTER Mr. Porter has been a director of MCI WorldCom since 1988.
Integra Funding Mr. Porter served as Vice Chairman of the Board of MCI WorldCom from
295 Bay Street, Suite 2 September 1993 until MCI WorldCom's merger with MFS Communications
Easton, MD 21601 Company, Inc. ("MFS") in December 1996 (the "MFS Merger") and served
U.S.A. as Chairman of the Board of Directors of MCI WorldCom from 1988
until September 1993. From May 1995 to the present, Mr. Porter has
served as Chairman of the Board of Directors and Chief Executive
Officer of Industrial Electric Manufacturing, Inc., a manufacturer
of electrical power distribution products. Mr. Porter also serves
as Chairman of Phillips & Brooks/Gladwin, Inc., a manufacturer of
pay telephone enclosures and equipment. Mr. Porter was previously
President and sole shareholder of P.M. Restaurant Group, Inc. which
filed for protection under Chapter 11 of the United States
Bankruptcy Code in March 1995. Subsequent to March 1995, Mr. Porter
sold all of his shares in P.M. Restaurant Group, Inc. Mr. Porter is
also a director of Uniroyal Technology Corporation and XL Connect,
Inc.
TIMOTHY F. PRICE Mr. Price has been a director of MCI WorldCom since its merger with
MCI WORLDCOM, Inc. MCI in September 1998. He has served as President and Chief
1801 Pennsylvania Avenue, N.W. Executive Officer of the MCI WorldCom communications unit of MCI
Washington, D.C. 20006 WorldCom since the merger. Mr. Price was President and Chief
U.S.A. Operating Officer of MCI from November 1996 to September 1998, when
it merged with MCI WorldCom. He was President and Chief Operating
officer of MCI Telecommunications Corporation ("MCIT") from July 1995
to September 1998. He was an Executive Vice President and Group
President of MCIT, serving as Group President, Communication
Services, from December 1994 to July 1995. He was an Executive Vice
President of MCIT, serving as President, Business Markets, from June
1993 to December 1994. He was a Senior Vice President of MCIT from
November 1990 to June 1993, serving as President, Business Services,
from July 1992 to June 1993 and as Senior Vice President, Consumer
Markets, from November 1990 to July 1992.
</TABLE>
Appendix A - p. 3
<PAGE> 10
SCHEDULE 13D
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
BERT C. ROBERTS, JR. Mr. Roberts has been a director and Chairman of the Board of MCI
MCI WORLDCOM, Inc. WorldCom since its merger with MCI in September 1998. He was
1801 Pennsylvania Avenue, N.W. Chairman of the Board of MCI from June 1992 to September 1998, when
Washington, D.C. 20006 it merged with MCI WorldCom. He was Chief Executive Officer of MCI
U.S.A. from December 1991 to November 1996. He was President and Chief
Operating Officer of MCI from October 1985 to June 1992 and President
of MCIT from May 1983 to June 1992. Mr. Roberts was a director of MCI
from 1985 to September 1998 and a non-executive director of British
Telecommunications plc ("BT") from October 1994 to March 1998. He has
been a non-executive director of The News Corporation Limited, a
global multi-media company located in Australia, since 1995; a
non-executive director of Telefonica de Espana, S.A. since March
1998; and a non-executive director of Valence Technology, Inc..
JOHN W. SIDGMORE Mr. Sidgmore serves as Vice Chairman of the Board of MCI WorldCom.
MCI WORLDCOM, Inc. Mr. Sidgmore has been a director of MCI WorldCom since the MFS
3060 Williams Drive Merger and has served as a director of MFS since August 1996.
Fairfax, VA 22301 Mr. Sidgmore was President and Chief Operating Officer of MFS from
U.S.A. August 1996 until the MFS Merger and has been Chief Executive
Officer and a director of UUNET Technologies, Inc., a wholly owned
subsidiary of MCI WorldCom ("UUNET"), from June 1994 to October 1998,
and also held the position of President of UUNET from June 1994 to
August 1996 and from January 1997 to September 1997. From 1989 to
1994, he was President and Chief Executive Officer of CSC Intelicom,
a telecommunications software company. Mr. Sidgmore is a director of
Saville Systems PLC.
SCOTT D. SULLIVAN Mr. Sullivan serves as Chief Financial Officer, Treasurer and
Secretary of MCI WorldCom. From the ATC Merger until December 1994,
Mr. Sullivan served as Vice President and Assistant Treasurer of MCI
WorldCom. From 1989 until 1992, Mr. Sullivan served as an executive
officer of two long-distance companies, including ATC. From 1983 to
1989, Mr. Sullivan served in various capacities with KPMG Peat
Marwick LLP. Mr. Sullivan has served as a director of MCI WorldCom
since March 1996.
</TABLE>
Appendix A - p. 4
<PAGE> 11
SCHEDULE 13D
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
GERALD H. TAYLOR Mr. Taylor has been a director of MCI WorldCom since its merger with
MCI WORLDCOM, Inc. MCI in September 1998 and Chief Executive Officer of MCI from
1801 Pennsylvania Avenue, N.W. November 1996 to September 1998 and Vice Chairman of MCIT from July
Washington, D.C. 20006 1995 to September 1998. He was President and Chief Operating
U.S.A. Officer of MCI from July 1994 to November 1996 and President and
Chief Operating Officer of MCIT from April 1994 to July 1995. He was
an Executive Vice President and Group Executive of MCIT from
September 1993 to April 1994. He was an Executive Vice President of
MCIT, serving as President, Consumer Markets, from November 1990 to
September 1993. Mr. Taylor was a director of MCI from September 1994
to September 1998 and was a non-executive director of BT from
November 1996 to November 1997.
LAWRENCE C. TUCKER Mr. Tucker is a general partner of Brown Brothers Harriman & Co.,
Brown Brothers Harriman & Co. which is the general and managing partner of The 1818 Funds. He is
59 Wall Street also a director of The WellCare Management Group, Inc., Riverwood
New York, NY 10005 International Corporation and National HealthCare Corporation. He
U.S.A. has served as a director of MCI WorldCom since May 1995, and
previously served as a director
of MCI WorldCom from May, 1992
until the ATC Merger.
JUAN VILLALONGA Mr. Villalonga has served as the Chairman and Chief Executive
(citizen of Spain) Officer of Telefonica de Espana, S.A. ("Telefonica"), a provider of
Telefonica de Espana, S.A telecommunications services in Spain, since 1996. He has been a
Gran Via 28, 9th floor director of MCI WorldCom since November 1998 pursuant to a Strategic
28013 Madrid Alliance Agreement among Telefonica, MCI and MCI WorldCom. Mr.
Spain Villalonga was previously the CEO of Bankers Trust in Spain and
Portugal, the CEO of CS First
Boston in Spain and a partner at
Kinsey & Co., a consulting firm,
for nine years.
</TABLE>
Part II. Directors and Executive Officers of WorldCom Network Services,
Inc. ("WNS"). Set forth below are the name, current business address,
citizenship and the present principal occupation or employment and material
occupations, positions, offices or employments for the past five years of each
director and executive officer of WNS. The principal address of WNS and the
current business address for each individual listed below is 515 East Amite
Street, Jackson, Mississippi 39201-2702, U.S.A. Each person listed below is a
citizen of the United States. The position set forth opposite the individual's
name refers to a position with WNS.
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
CHARLES T. CANNADA Director and Assistant Secretary. Mr. Cannada serves as Senior Vice
President, Corporate Development of MCI WorldCom. Prior to assuming this
position in January 1995, Mr. Cannada served as Treasurer and Chief
Financial Officer of MCI WorldCom. He joined MCI WorldCom in 1989. He is
also a director of Nova Corporation, since May 1998, and of WAM!NET, Inc.,
since September 1998.
BERNARD J. EBBERS Director, President and Chief Executive Officer. (See Part I Above)
SCOTT D. SULLIVAN Secretary, Treasurer and Chief Financial Officer. (See Part I Above)
</TABLE>
Appendix A - p. 5
<PAGE> 12
SCHEDULE 13D
Part III. Directors and Executive Officers of MFS Telecom, Inc.
("MFS"). Set forth below are the name, current business address, citizenship and
the present principal occupation or employment and material occupations,
positions, offices or employments for the past five years of each director and
executive officer of MFS. The principal address of MFS and the current business
address for each individual listed below is 515 East Amite Street, Jackson,
Mississippi 39201-2702, U.S.A. Each person listed below is a citizen of the
United States. The position set forth opposite the individual's name refers to a
position with MFS.
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
CHARLES T. CANNADA Director and Assistant Secretary. (See Part II Above)
BERNARD J. EBBERS Director, President and Chief Executive Officer. (See Part I Above)
SCOTT D. SULLIVAN Secretary, Treasurer and Chief Financial Officer. (See Part I Above)
</TABLE>
Part IV. Directors and Executive Officers of Brooks Fiber
Communications of Texas, Inc. ("Brooks"). Set forth below are the name, current
business address, citizenship and the present principal occupation or employment
and material occupations, positions, offices or employments for the past five
years of each director and executive officer of Brooks. The principal address of
Brooks and the current business address for each individual listed below is 515
East Amite Street, Jackson, Mississippi 39201-2702, U.S.A. Each person listed
below is a citizen of the United States. The position set forth opposite the
individual's name refers to a position with Brooks.
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
CHARLES T. CANNADA Director and Assistant Secretary. (See Part II Above)
BERNARD J. EBBERS Director, President and Chief Executive Officer. (See Part I Above)
SCOTT D. SULLIVAN Secretary, Treasurer and Chief Financial Officer. (See Part I Above)
</TABLE>
Appendix A - p. 6
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
(1) Written agreement related to filing of joint acquisition
statement;
(2) Disbursement Agreement between World Access, RCG and the
Disbursing Agent dated as of December 14, 1998.
(3) Agreement and Plan of Merger and Reorganization dated as of May
12, 1998, as amended by the First and Second Amendments thereto,
by and among World Access, WA Telecom Products Co. (formerly known
as "World Access, Inc."), RCG and WA Merger Corp. (incorporated by
reference to Appendix A to the definitive proxy statement of World
Access as filed with the Securities and Exchange Commission on
November 12, 1998 (the "Proxy Statement"));
(4) Share Exchange Agreement and Plan of Reorganization dated as of
May 12, 1998, by and among World Access, WA Telecom Products Co.,
Cherry U.K., and Renaissance Partners II (incorporated by
reference to Appendix B to the Proxy Statement; and
(5) Debtor's Second Amended Plan of Reorganization dated as of
September 2, 1998 (incorporated by reference to Appendix D to the
Proxy Statement).
</TABLE>
<PAGE> 1
EXHIBIT 1
AGREEMENT REGARDING JOINT FILING
The undersigned, for good and valuable consideration, hereby agree that
they shall jointly file an acquisition statement under Section 13(d) of the
Securities Exchange Act of 1934, as amended, with respect to the acquisition by
the undersigned of shares of common stock of World Access, Inc., a Delaware
corporation, and that they shall cooperate with each other regarding the filing,
and when appropriate, amending of such acquisition statement.
Dated as of December 23, 1998.
MCI WORLDCOM, Inc. WorldCom Network Services, Inc.
By: /s/ Scott D. Sullivan By: /s/ Scott D. Sullivan
----------------------------- --------------------------------------
Name: Scott D. Sullivan Name: Scott D. Sullivan
Title: Chief Financial Officer Title: Chief Financial Officer
MFS Telecom, Inc. Brooks Fiber Communications of Texas, Inc.
By: /s/ Scott D. Sullivan By: /s/ Scott D. Sullivan
----------------------------- --------------------------------------
Name: Scott D. Sullivan Name: Scott D. Sullivan
Title: Chief Financial Officer Title: Chief Financial Officer
<PAGE> 1
EXHIBIT 2
DISBURSEMENT AGREEMENT
THIS DISBURSEMENT AGREEMENT (the "Agreement") is made and entered into
as of the 14th day of December, 1998, by and among WORLD ACCESS, INC., a
Delaware corporation ("World Access"), CHERRY COMMUNICATIONS INCORPORATED (d/b/a
RESURGENS COMMUNICATIONS GROUP), an Illinois corporation ("RCG"), and WILLIAM H.
CAUTHEN, ESQ. of the law firm of CAUTHEN & FELDMAN, P.A., a Florida professional
association ("Disbursing Agent").
W I T N E S S E T H:
WHEREAS, certain of the parties hereto have entered into an Agreement
and Plan of Merger and Reorganization dated as of May 12, 1998, as amended, a
copy of which is attached hereto as Exhibit A and incorporated herein by
reference (as so amended, the "Merger Agreement"), pursuant to which, among
other things, a wholly-owned subsidiary of World Access will merge with and into
RCG (the "Merger") at the Effective Time (as defined in the Merger Agreement;
all other capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to such terms in the Merger Agreement) and RCG as the
surviving corporation shall continue to exist as a wholly-owned subsidiary of
World Access;
WHEREAS, RCG has filed for bankruptcy protection under Chapter 11 of
Title 11 of the United States Code, sections 101 et seq. (the "Bankruptcy Code")
and is the Debtor-In- Possession (as defined in the Bankruptcy Code) under the
Debtor's Plan (defined below);
WHEREAS, RCG has filed with the Bankruptcy Court a Debtor's Second Plan
of Reorganization dated September 2, 1998, a copy of which is attached hereto as
Exhibit B and incorporated herein by reference (the "Debtor's Plan"), which,
among other things, provides for the resolution of RCG's outstanding creditor
claims and equity interests (the "Reorganization");
WHEREAS, the Debtor's Plan has been confirmed by the Bankruptcy Court;
WHEREAS, Section 5.1 of the Merger Agreement and Article VII of the
Debtor's Plan call for RCG to issue, at the Effective Time, 3,125,000 shares
(the "Creditor Shares") of its common stock, no par value per share (the
"Reorganized Debtor Stock"), to holders of, and in full satisfaction of, Allowed
Claims and Administrative Expense Claims (including the WNS DIP Loan Claim (as
such term is defined in the Debtor's Plan));
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, RCG
shall be deemed to have issued to each holder of an Allowed Claim and an
Administrative Expense Claim (including the WNS DIP Loan Claim) such holder's
pro-rata share of the Creditor Shares based upon the amount of each such claim
in exchange for the surrender of such claims;
<PAGE> 2
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, on and
concurrently with the Effective Time and the issuance of the Creditor Shares,
the Creditor Shares (being all the outstanding shares of Reorganized Debtor
Stock at such time as a result of the cancellation of all other equity interests
by the Bankruptcy Court as of the Confirmation Date (as defined in the Debtor's
Plan)) shall be deemed cancelled and retired and will cease to exist and shall
be deemed exchanged and converted into the right to receive the Disbursed Stock
(defined below) and the Contingent Payment Stock (defined below) in accordance
with the terms of the Merger Agreement and the Debtor's Plan;
WHEREAS, Section 5.2 of the Merger Agreement and Sections 7.3 and 7.4
of the Debtor's Plan call for World Access to deliver to the Disbursing Agent,
immediately following the Effective Time, 3,125,000 shares (the "Disbursed
Stock") of the common stock, par value $.01 per share, of World Access (the
"World Access Common Stock") and 6,250,000 shares of World Access Common Stock
(the "Contingent Payment Stock"; together with the Disbursed Stock the
"Deposited Stock"), to hold and distribute such shares pursuant to Articles 5
and 6 of the Merger Agreement and in accordance with the terms and provisions of
the Debtor's Plan;
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, after
the delivery of the Deposited Stock, the Disbursing Agent shall issue to each
holder of Creditor Shares its pro-rata share of Disbursed Stock based upon the
number of Creditor Shares held by each such holder;
WHEREAS, pursuant to Section 7.3 of the Debtor's Plan and the Merger
Agreement, the Disbursing Agent will then return to World Access shares of
Disbursed Stock equal to (x) the dollar amount of all Cash (as defined in the
Debtor's Plan) that the Reorganized Debtor (as defined in the Debtor's Plan) or
the Surviving Corporation must pay to holders of Allowed Priority Claims (as
defined in the Debtor's Plan) (including the principal amount of Priority Tax
Claims (as defined in the Debtor's Plan)) pursuant to the terms of the Debtor's
Plan, divided by (y) $32.00; and
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, the
Disbursing Agent shall release to holders of Creditor Shares their pro-rata
share of Contingent Payment Stock, if, as, when and to the extent that the
Contingent Payment Stock (or any portion thereof) is released pursuant to the
terms of Article 6 of the Merger Agreement and in accordance with the terms and
provisions of the Debtor's Plan;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DISBURSEMENT DEPOSIT. Subject to the terms and conditions of the
Merger Agreement and the Debtor's Plan, immediately following the Effective
Time, World Access shall cause to be delivered to the Disbursing Agent, to be
held and distributed as hereinafter provided, the Deposited Stock.
2
<PAGE> 3
2. PROPERTY DISTRIBUTED IN RESPECT OF DEPOSITED STOCK. Any dividends
(within the meaning of Section 301(c)(1) of the Internal Revenue Code of 1986,
as amended (the "Code")) and any distribution which does not constitute a
dividend (within the meaning of Section 301(c)(1) of the Code) in cash or other
property paid with respect to any Disbursed Stock or Contingent Payment Stock
shall be added to the respective Disbursed Stock or Contingent Payment Stock and
shall become a part thereof (the "Stock Proceeds"). The Deposited Stock shall be
adjusted to appropriately reflect any stock dividend, stock split, reverse stock
split or the like.
3. VOTING OF DEPOSITED STOCK. Prior to the distribution of the
Deposited Stock by the Disbursing Agent, the Disbursing Agent will have full
voting rights with respect to the Deposited Stock; provided, however, that the
persons to whom the Contingent Payment Stock is to be released shall have the
right to instruct the Disbursing Agent as to the voting of such shares;
provided, further, that no such instructions may be given to the extent that
such person's ability to earn the Contingent Payment Stock has been permanently
lost pursuant to the provisions of the Debtor's Plan.
4. FEES OF DISBURSING AGENT. The Disbursing Agent shall be entitled to
a fee for its services hereunder (the "Disbursement Fee") equal to the greater
of (i) $20,000 and (ii) the amount based on its normal hourly billing rate.
Except as otherwise expressly provided herein, the Disbursement Fee and all
costs and expenses incurred by the Disbursing Agent in connection with the
establishment and maintenance of the escrow established hereby shall be payable
in one or more installments by World Access upon demand therefor from the
Disbursing Agent.
5. DISTRIBUTION OF DEPOSITED STOCK. The Disbursing Agent shall
distribute the Deposited Stock held by it under this Agreement in accordance
with the terms of Articles 5 and 6 of the Merger Agreement and Article VII of
the Debtor's Plan as set forth below. Unless otherwise indicated, all
capitalized terms used in this Section 5 but not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in the Debtor's Plan.
(a) On and concurrently with the Effective Date, Holders of Allowed Class 3
Claims, Allowed Class 4 Claims, Allowed Class 5 Claims, the Prepetition
Arrearage (as that term is defined in the Stipulation and Agreed Order)
portion of the Allowed Class 7 Claim, the WNS DIP Loan Claim, or any
other Allowed Claim otherwise entitled, by agreement with the Debtor or
otherwise, to receive a Pro Rata distribution of Creditor Shares and
then Deposited Stock shall be deemed to have received their Pro Rata
distribution of Creditor Shares; provided, however, that in lieu of
receiving certificates representing shares of Creditor Shares, such
distributions shall be effected by means of bookkeeping entries
reflecting such Holders' ownership of such shares of Creditor Shares;
provided further, however, that on and concurrently with the Effective
Date, all such Holders entitled to receive a Pro Rata distribution of
Creditor Shares shall be and are hereby immediately entitled to, and
shall be deemed immediately to, exchange their Pro Rata distribution of
Creditor Shares for a Pro Rata distribution of the Disbursed Stock and,
if released by the Disbursing Agent pursuant to Section 7.4 of the
Debtor's Plan, the Contingent Payment Stock.
3
<PAGE> 4
(b) Immediately upon receipt of the Deposited Stock, the Disbursing Agent
shall issue to each holder of Creditor Shares such holder's pro-rata
share of Disbursed Stock based upon the number of Creditor Shares held
by each such holder as reflected on the stock ledger of RCG to be
delivered to the Disbursing Agent by the Surviving Corporation.
(c) The Disbursing Agent shall return to World Access, within sixty (60)
days after the Effective Date, shares of the Disbursed Stock having a
value that equals the dollar amount of Cash that the Surviving
Corporation must pay to Holders of Allowed Priority Claims and Allowed
Priority Tax Claims pursuant to the terms of the Debtor's Plan, which
amount shall be set forth in writing by the Surviving Corporation and
disclosed to the Disbursing Agent within fifty (50) days after the
Effective Date. In calculating the number of shares of the Disbursed
Stock that will be returned to World Access in accordance with the
preceding sentence, the value of each share of the Disbursed Stock
shall be deemed to equal $32.00, notwithstanding the closing price per
share of the World Access stock as reported by NASDAQ. For example, if
the Surviving Corporation is obligated under the Plan to pay $320,000
in cash on account of the principal amount of Allowed Priority Tax
Claims, the Disbursing Agent shall return 10,000 shares of the
Disbursed Stock to World Access even if the closing price per share of
World Access Stock as reported by NASDAQ is greater than or less than
$32.00.
(d) (i) The Disbursing Agent will release the Contingent Payment
Stock to Holders of Allowed Claims, pursuant to the terms and
provisions of the Debtor's Plan, on a pro-rata basis, in the amounts
and on the dates specified below, if the sum of the EBITDA for (i) the
Surviving Corporation and (ii) Cherry U.K. for the performance periods
set forth below (each a "Performance Period") equals or exceeds the
Target EBITDA for such Performance Period as set forth below:
<TABLE>
<CAPTION>
PERCENTAGE OF
CONTINGENT
PAYMENT
STOCK TO BE
PERFORMANCE PERIOD RELEASE DATE RELEASED TARGET EBITDA
------------------ ----------------- -------------- -------------
<S> <C> <C> <C>
July 1, 1998 to and including December 31,
1998 (the "First Performance Period") February 15, 1999 25% $ 7,500,000
January 1, 1999 to and including December
31, 1999 (the "Second Performance
Period") February 15, 2000 37.5% $29,000,000
January 1, 2000 to and including December
31, 2000 (the "Third Performance Period) February 15, 2001 37.5% $36,500,000
</TABLE>
Notwithstanding the foregoing, if the Closing Date (as defined in the
Merger Agreement) is (a) on or after July 15, 1998 but prior to August
16, 1998, then the First Performance Period shall commence on August 1,
1998 and shall terminate on (and including) December 31, 1998 and the
Target EBITDA with respect thereto shall be reduced to $7,100,000, (b)
on or after August 16, 1998 but prior to September 30, 1998, then the
First Performance Period shall commence on September 1, 1998 and shall
terminate on (and including) December 31, 1998 and the Target EBITDA
with respect thereto shall be reduced to $6,700,000 or (c) on or after
September 30, 1998, then the
4
<PAGE> 5
First Performance Period shall commence on the first day of the
calendar month in which the Closing (as defined in the Merger
Agreement) occurs and shall terminate on (and including) the last day
of the sixth calendar month following the month in which the Closing
occurs, the release date shall be forty-five (45) days after the end of
such period and the Target EBITDA shall be equal to the sum of (i)
$2,100,000 for each calendar month of 1998 included in the First
Performance Period and (ii) $2,400,000 for each calendar month of 1999
included in the First Performance Period.
(ii) If the EBITDA for the Surviving Corporation and Cherry
U.K. is less than the Target EBITDA required for the release of
Contingent Payment Stock in either of the First or Second Performance
Periods (and with respect to the Second Performance Period is no less
than zero), then, notwithstanding the table above, the Contingent
Payment Stock shall be released by the Disbursing Agent if the actual
cumulative EBITDA for the Surviving Corporation and Cherry U.K. for
such Performance Period and any subsequent Performance Periods equals
or exceeds the cumulative Target EBITDA for such Performance Periods.
(iii) Within forty (40) days of the end of each Performance
Period, World Access shall deliver to the Disbursing Agent a
Certificate of Instruction setting forth the EBITDA and the cumulative
EBITDA of (i) Cherry U.K. and (ii) the Surviving Corporation for each
such Performance Period and, in the event that such EBITDA or
cumulative EBITDA equals the Target EBITDA or the cumulative Target
EBITDA for such Performance Period set forth in Sections 5(c)(i) or
(ii) above (thus permitting the release of the Contingent Payment Stock
in accordance with this Section 5), directing the Disbursing Agent to
make the aforementioned pro-rata disbursement of Contingent Payment
Stock to Holders of Allowed Claims (together with the Stock Proceeds,
if any) specified in Sections 5(c)(i) or (ii) above and set forth in
such Certificate of Instruction. In the event there is a disagreement
or dispute with respect to the determination of the EBITDA or the
cumulative EBITDA of Cherry U.K. and the Surviving Corporation or the
number of shares of Contingent Payment Stock to be released as a result
thereof, World Access shall provide the Disbursing Agent with one or
more supplemental Certificates of Instruction within five (5) days of
any resolution of such disagreement or dispute, directing the
Disbursing Agent with respect to the release of any Contingent Payment
Stock in accordance with this Section 5 which results from such
resolution.
(e) Notwithstanding anything to the contrary, (i) if during any calendar
quarter of the Second Performance Period, the closing price per share
of the World Access Stock as reported by NASDAQ equals or exceeds
$65.00 for any five consecutive Trading Days during
such calendar quarter, then 25% of all of the shares of Contingent
Payment Stock shall be released on February 15, 2000, provided that if
no shares of Contingent Payment Stock are
5
<PAGE> 6
eligible for release during any such calendar quarter, then such shares
of Contingent Payment Stock shall become eligible for release in a
subsequent calendar quarter for the Second Performance Period if the
closing price per share of the World Access Stock as reported by NASDAQ
equals or exceeds $65.00 for a total number of consecutive Trading Days
during such subsequent calendar quarter equal to or exceeding the total
number of Trading Days which such closing price was required to equal
or exceed for (A) such subsequent calendar quarter and (B) each of the
previous calendar quarters beginning with the calendar quarter for
which such shares of Contingent Payment Stock were not eligible for
release; (ii) if the combined EBITDA for the Surviving Corporation and
Cherry U.K. for the Second Performance Period equals or exceeds
$52,775,000, then the Contingent Payment Stock related to the Third
Performance Period shall be released on February 15, 2000; and (iii)
all of the shares of Contingent Payment Stock shall be released upon a
Change of Control (as defined in the Merger Agreement) (except to the
extent that the ability to earn such shares has been lost under this
section) and the restrictions set forth in Section 7.4(d) of the
Debtor's Plan shall not apply. World Access shall provide written
notice to the Disbursing Agent promptly upon the occurrence of any of
the foregoing at which time the Disbursing Agent shall take the action
called for by each of the above.
(f) World Access shall provide written notice to the Disbursing Agent as to
the form and content of the restrictive legends (if any) referring to
the restrictions contained in Section 6.4 of the Merger Agreement (and
the waiver thereof pursuant to Section 6.5 of the Merger Agreement) to
be placed on the certificates representing the Disbursed Stock and the
Contingent Payment Stock to be released pursuant to this Agreement.
(g) For purposes of distributions hereunder, the number of shares of
Disbursed Stock and Contingent Payment Stock shall, if necessary, be
rounded to the next greater or lower whole number of shares as follows:
(i) fractions of1/2or greater shall be rounded to the next greater
whole number; and (ii) fractions of less than1/2shall be rounded to the
next lower whole number; provided, however, that to the extent that
there are interim distributions, the number of shares of Disbursed
Stock or Contingent Payment Stock shall be rounded to the next lower
whole number for purposes of such distribution and in the final
distribution shall be rounded in accordance with the immediately
preceding clause based on the applicable aggregate number of shares of
Disbursed Stock or Contingent Payment Stock distributed to each holder
in all distributions. The total number of shares of Disbursed Stock or
Contingent Payment Stock shall be adjusted as necessary to account for
the rounding provided hereby. No consideration shall be paid in lieu of
fractional shares that are rounded down.
(h) In order to fund the Trust, on the Effective Date, 40,000 shares of the
Disbursed Stock that would otherwise be distributable to Trust
Creditors shall be distributed by the Disbursing Agent to the Trustee
and the Trustee may also request, and the Disbursing Agent shall cause
to be distributed to the Trustee contemporaneously with distributions
of the Contingent Payment Stock to Trust Creditors under the Debtor's
Plan, shares of the
6
<PAGE> 7
Contingent Payment Stock that would otherwise be available for
distribution to Trust Creditors (all the Disbursed Stock and the
Contingent Payment Stock distributed to the Trustee hereunder is
hereinafter referred to as the "Trust Property"). Any distribution of
the Contingent Payment Stock to the Trustee shall not exceed one
percent (1%) of all stock distributable to Trust Creditors for each
distribution of the Contingent Payment Stock provided in the Debtor's
Plan. The Trust Property shall be issued in the name of Scott Peltz, as
Trustee of the Cherry Communications, Inc. Postconfirmation Monitoring
Trust. The Trustee has the full authorization, power and authority, at
his discretion, to endorse, transfer, and sell all Trust Property in
order to fund the expenses incurred by the Trustee and professionals,
including but not limited to the Law Firm, retained by him under
Article VII of the Debtor's Plan, provided, however, that the Trust
Property held by the Trustee shall be subject to all transfer and other
restrictions that apply to the Disbursed Stock and the Contingent
Payment Stock in Debtor's Plan and the Merger Agreement.
(i) The Disbursing Agent shall take such other actions as required by the
Debtor's Plan or as requested by World Access and permitted by the
Debtor's Plan.
(j) As soon as practicable on or after the Effective Date, the Disbursed
Stock and the Contingent Payment Stock (if and to the extent it is
released by the Disbursing Agent pursuant to Section 7.4 of the
Debtor's Plan) shall be disbursed by the Disbursing Agent in the manner
and priority set forth in this Plan. The Disbursing Agent has the
authority to make such interim distributions as it may determine to be
appropriate pending a final distribution. The Disbursing Agent shall
hold sufficient Deposited Stock, as applicable, in reserve for
distribution to Holders of Claims to which an objection has been filed.
Upon final determination by the Bankruptcy Court of objections to
allowance of Claims, a final distribution shall be made to all Holders
of Allowed Claims entitled thereto.
(k) In the event that the provisions contained herein conflict in any way
with the provisions of the Debtor's Plan, the provisions contained in
the Debtor's Plan shall control.
6. DUTIES OF THE DISBURSING AGENT. The acceptance by the Disbursing
Agent of its duties under this Agreement is subject to the following terms and
conditions, which the parties to this Agreement hereby agree shall fully govern
and control with respect to the Disbursing Agent's rights, duties, liabilities
and immunities:
(a) The Disbursing Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document
which the Disbursing Agent believes in good faith emanates from both
World Access and RCG, not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein. The Disbursing Agent is
also relieved from the necessity of satisfying itself as to the
authority of the persons executing this Agreement in a representative
capacity.
7
<PAGE> 8
(b) The Disbursing Agent shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it in good faith, or for
any mistake of fact or law, or for anything that it may do or refrain
from doing in connection herewith, except for its own gross negligence
or willful misconduct.
(c) The Disbursing Agent may consult with, and obtain advice from,
independent legal counsel selected by the Disbursing Agent in the event
of any question as to any of the provisions hereof or its duties
hereunder (the cost of obtaining such advice being borne by World
Access in accordance with Section 4 hereof) and it shall incur no
liability and shall be fully protected in acting in accordance with the
opinion and instructions of such counsel.
(d) The Disbursing Agent shall have no duties except those set forth herein
and those set forth in the Debtor's Plan, and the Disbursing Agent
shall not be subject to, or obliged to recognize, any other agreement
between, or direction or instruction of, any of the parties hereto
unless signed by World Access and RCG. The Disbursing Agent shall not
be bound by any notice of a claim, demand or objection with respect to
the Deposited Stock or any waiver, modification, termination or
rescission of this Agreement, unless received by it in writing signed
by World Access and RCG, and, if its duties herein are materially
increased, unless it shall have given its consent thereto.
(e) The Disbursing Agent's acceptance of the appointment as Disbursing
Agent hereunder shall not prevent it from representing any party hereto
in any matter other than a dispute over disbursement of, or conflicting
claims to, the Deposited Stock and related Stock Proceeds, or otherwise
arising hereunder. If any dispute arises over disbursement of, or
conflicting claims to, the Deposited Stock and related Stock Proceeds,
then the Disbursing Agent may interplead such contested Deposited Stock
and related Stock Proceeds into a court of proper jurisdiction of its
choosing, and thereupon the Disbursing Agent shall be fully and
completely discharged of its duties as disbursement agent with respect
to such contested Deposited Stock and Stock Proceeds.
7. INDEMNIFICATION AND EXPENSE REIMBURSEMENT OF THE DISBURSING AGENT.
World Access agrees to indemnify, defend and hold harmless the Disbursing Agent
from any and all costs, expenses, damages or liability of any kind whatsoever
(including reasonable legal fees) arising by virtue of its services as
disbursement agent hereunder, except for liabilities due to the Disbursing
Agent's gross negligence or willful misconduct, and to reimburse the Disbursing
Agent for all costs and expenses incurred by the Disbursing Agent in connection
with the performance of its duties hereunder other than such costs and fees
incurred in connection with the establishment and maintenance of the escrow
established hereby, which shall be reimbursed pursuant to Section 4 hereof.
8. NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered by hand, (b) mailed by
registered or certified mail (return receipt requested) or (c) telecommunicated
and immediately confirmed both orally and in writing,
8
<PAGE> 9
to the parties at the following addresses (or at such other addresses for a
party as shall be specified by like notice) and shall be deemed given on the
date on which so hand-delivered or so telecommunicated or on the third Business
Day following the date on which so mailed, if deposited in a
regularly-maintained receptacle for United States mail:
If to Disbursing Agent:
Cauthen & Feldman, P.A.
215 North Joanna Avenue
Tavares, Florida 32778-3200
Attn: William H. Cauthen, Esq.
Telecopier: (352) 343-7759
Telephone: (352) 343-2225
If to World Access or RCG:
World Access, Inc.
945 E. Paces Ferry Road
Suite 2200
Atlanta, Georgia 30326
Attn: Mr. Mark A. Gergel
Telecopier: (404) 262-2598
Telephone: (404) 231-2025
with a copy to (which will not constitute notice to World Access or RCG):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Telecopier: (404) 525-2224
Telephone: (404) 522-4700
and
9
<PAGE> 10
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attn: Mark K. Thomas, Esq.
Telecopier: (312) 902-1061
Telephone: (312) 902-5200
9. EXECUTION IN COUNTERPARTS. This Agreement may be executed by
facsimile, and may be executed in several counterparts, each of which shall be
an original, and all of which shall constitute one and the same instrument.
10. APPLICABLE LAW. This Agreement shall be construed and governed
exclusively by the laws of the State of Georgia, without giving effect to its
principles of conflicts of laws.
11. AMENDMENT. This Agreement may be amended or modified only in a
writing signed by all parties hereto.
10
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed
this Agreement or have caused this Agreement to be duly executed under seal on
its behalf by an officer or representative thereto duly authorized, all as of
the date first above written.
DISBURSING AGENT
William H. Cauthen, Esq. of the law firm of
Cauthen & Feldman, P.A.
By:
----------------------------------------
Its:
-----------------------------------
WORLD ACCESS, INC.
By:
----------------------------------------
Its:
-----------------------------------
CHERRY COMMUNICATIONS
INCORPORATED (D/B/A RESURGENS
COMMUNICATIONS GROUP):
By:
----------------------------------------
Its:
-----------------------------------
11
