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EXHIBIT 2.1
FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS FIRST AMENDMENT (the "Amendment") to the Agreement and Plan of Merger
and Reorganization (the "Merger Agreement;" capitalized terms used but not
defined herein shall have the meanings ascribed to them therein), dated as of
the 12th day of May, 1998, by and among WAXS INC., a Delaware corporation and a
direct wholly-owned subsidiary of World Access, Inc. ("New World Access"), WORLD
ACCESS, INC., a Delaware corporation ("World Access"), WA MERGER CORP., a
Delaware corporation and a direct wholly-owned subsidiary of New World Access
("Merger Sub"), and CHERRY COMMUNICATIONS INCORPORATED d/b/a RESURGENS
COMMUNICATIONS GROUP, an Illinois corporation ("RCG"), is made as of the 20th
day of July, 1998 by and among New World Access, World Access, Merger Sub and
RCG.
WITNESSETH:
WHEREAS, the Parties desire to amend the Merger Agreement as provided
herein,
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein, the parties hereto do hereby agree as follows:
SECTION 1. Amendments to Merger Agreement. The Merger Agreement is hereby
amended as follows:
(a) Section 5.3 of the Merger Agreement is hereby amended and restated
in its entirety as follows:
"Section 5.3. Payment of Claims. In accordance with the terms and
provisions of the Plan and unless otherwise provided therein, the
Disbursing Agent under the Disbursement Agreement shall issue to each
holder of an Allowed Claim and an Administrative Expense Claim (including
the Administrative Expense Claim of WNSI arising in connection with the DIP
Financing), its pro-rata share of Disbursed Stock based upon the amount of
such claim. The Disbursing Agent will return to New World Access shares of
Disbursed Stock having a value that equals the dollar amount of Cash (as
defined in the Plan) that the Reorganized Debtor (as defined in the Plan)
or the Surviving Corporation must pay to holders of Allowed Priority Claims
(including the principal amount of Priority Tax Claims) pursuant to the
terms of the Plan where the value of such shares is based on $32.00 per
share."
(b) Article 5 of the Merger Agreement is hereby amended by adding the
following additional Section 5.6 thereto which reads in its entirety as
follows:
"Section 5.6 Fractional Shares. For purposes of distributions under the
Plan, 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: (1) fractions of 1/2 or greater shall be rounded to
the next greater whole number, and (2) fractions of less than 1/2 shall be
rounded to the next lower whole number; provided, however, that to the
extent that there are interim distributions, the numbers 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 preceding clause based
on the applicable aggregate number of shares of Disbursed Stock or
Continent 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 payment in lieu of the fractions shares that are
rounded down."
(c) Section 6.4 of the Merger Agreement is hereby amended and restated
in its entirety as follows:
"Section 6.4. Transfer Restrictions. Notwithstanding anything to the
contrary contained herein, (a) no holder of Disbursed Stock may, until the
365th day following the Closing Date, without the prior written consent of
New World Access, offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, any shares of Disbursed Stock or security
convertible into or exchangeable or exercisable therefor, either publicly
or privately, (b) no holder of Contingent Payment Stock upon its release
pursuant to Section 6.1
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above may, until the 180th day following the release date thereof, without
the prior written consent of New World Access, offer, sell, contract to
sell or otherwise dispose of, directly or indirectly, any shares of the
Contingent Payment Stock so released or any security convertible into or
exchangeable or exercisable therefor, either publicly or privately, and (c)
until the third anniversary of the Closing Date, no holder of Disbursed
Stock or Contingent Payment Stock may engage in any short-sale or similar
type of transaction with respect to any shares of World Access Stock,
including any shares of Disbursed Stock or Contingent Payment Stock,
without the prior written consent of New World Access; provided, however,
that holders of Claims (as defined in the Plan) may buy and sell to each
other their respective shares of Disbursed Stock or Contingent Payment
Stock, subject to applicable securities laws."
(d) The Merger Agreement is hereby amended by adding a new Section 6.5
thereto which shall read in its entirety as follows:
"Section 6.5. Waiver of Restrictions. New World Access agrees that if it
waives any of the transfer restrictions set forth in Section 6.4 with
respect to any holder of Disbursed Stock or Contingent Payment Stock,
including WNSI, or in Section 4.4 of the U.K. Acquisition Agreement with
respect to the Shareholder (as defined in the U.K. Acquisition Agreement),
then New World Access will give notice of such waiver within five (5) days
to all other holders of Disbursed Stock or Contingent Payment Stock (and
such other persons as the Plan may specify) and transfer restrictions with
respect to all such holders shall be deemed immediately waived (without any
further action) as to such other holders in the same pro rata amount as
such waiver affirmatively granted by New World Access in respect of the
holder or the Shareholder (as the case may be); provided, however, the
provisions of this Section 6.5 shall not apply with respect to any
transfers by the Shareholder or its partners to charitable institutions or
for estate planning purposes, provided that the transferee agrees to be
bound by the transfer restrictions set forth in Section 4.4 of the U.K.
Acquisition Agreement. New World Access agrees to promptly instruct its
transfer agent to reissue certificates for, or remove any stop transfer
instructions with respect to, any shares of Disbursed Stock or Contingent
Payment Stock as to which the transfer restrictions have been deemed waived
in accordance with this Section 6.5.
SECTION 2. Effect on Merger Agreement. Except as otherwise specifically
provided herein, the Merger Agreement shall not be amended but shall remain in
full force and effect.
SECTION 3. Headings. The Section headings contained in this Amendment are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Amendment.
SECTION 4. Counterparts. This Amendment may be executed simultaneously in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the day and year above written.
WAXS INC.
By: /s/ XXXX X. XXXXXX
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Its: Executive Vice President and
Chief Financial Officer
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WORLD ACCESS, INC.
By: /s/ XXXX X. XXXXXX
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Its: Executive Vice President and
Chief Financial Officer
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WA MERGER CORP.
By: /s/ XXXX X. XXXXXX
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Its: Executive Vice President and
Chief Financial Officer
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CHERRY COMMUNICATIONS
INCORPORATED d/b/a RESURGENS
COMMUNICATIONS GROUP
By: /s/ W. XXX XXXXX
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Its: Executive Vice President
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