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EXHIBIT 2.2
SECOND AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS SECOND AMENDMENT (the "Second Amendment") to the Agreement and Plan of
Merger and Reorganization, dated as of the 12th day of May, 1998, as amended by
the First Amendment thereto dated as of July 20, 1998 (as so amended, the
"Merger Agreement;" capitalized terms used but not defined herein shall have the
meanings ascribed to them therein), 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 2nd day of September, 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) Article 1 of the Merger Agreement is hereby amended by adding a
new Section 1.24 thereto and renumbering current Sections 1.24 through
1.112 as 1.25 through 1.113, respectively:
"Section 1.24. "Creditor Shares" has the meaning set forth in Section
5.1 hereof."
(b) Section 3.1 of the Merger Agreement is hereby amended and restated
in its entirety as follows:
"Section 3.1 Conversion of Merger Sub Stock and RCG Stock. Subject
to the terms and conditions of this Agreement, as of the Effective Time
and by virtue of the Merger and without any further action on the part
of the holder of any Merger Sub Stock or RCG Stock:
(a) all shares of RCG Stock which are held by RCG as treasury
stock, if any, shall be canceled and retired, and no consideration
shall be paid or delivered in exchange therefor;
(b) each of the Creditor Shares outstanding immediately prior to
the Effective Time (being all the outstanding shares of RCG Stock at
such time as a result of the cancellation of all other shares of RCG
Stock by the Bankruptcy Court pursuant to the Plan immediately prior
to the Effective Time, as provided in Section 5.1 hereof) shall be
canceled and retired and will cease to exist and shall be converted
into the right to receive the Disbursed Stock and the Contingent
Payment Stock in accordance with the terms of this Agreement and the
Plan; and
(c) each share of Merger Sub Stock issued and outstanding
immediately prior to the Effective Time shall be converted into one
fully paid and nonassessable share of common stock without par value
of the Surviving Corporation."
(c) Article 5 of the Merger Agreement is hereby amended and restated
in its entirety as follows:
"ARTICLE 5.
PLAN OF REORGANIZATION AND PAYMENT OF CLAIMS
Section 5.1 Plan of Reorganization. RCG shall file and use its
best efforts to obtain the Bankruptcy Court's confirmation of the Plan,
which shall provide, inter alia, for the consummation of the Merger in
accordance with the terms and conditions of this Agreement. RCG shall
also file and use its best efforts to obtain the Bankruptcy Court's
approval of RCG's Disclosure Statement with respect to the Plan (the
"Plan Disclosure Statement"). Both the Plan and the Plan Disclosure
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Statement, as filed and as confirmed and approved by the Bankruptcy
Court, must in form and substance be acceptable to New World Access and
RCG. World Access and its Affiliates shall cooperate in connection with
preparing, filing and obtaining the approval of the Plan and the Plan
Disclosure Statement. The Plan shall provide, inter alia, for (a) the
cancellation of all outstanding shares of RCG Stock other than Creditor
Shares without the payment of any consideration therefor; (b) the
issuance of 3,125,000 shares of RCG Stock (collectively, the "Creditor
Shares") to holders of, and in full satisfaction of, Allowed Claims and
Administrative Expense Claims (including the Administrative Expense
Claim of WNSI arising in connection with the DIP Financing); (c) the
approval of this Agreement; (d) except as otherwise provided in the
Plan, the discharge of all other indebtedness of and claims against RCG
arising before confirmation of the Plan; (e) immediately following the
last to occur of such items (a) through (d), the consummation of the
Merger and the resulting pro-rata distribution of Disbursed Stock and
the right to receive (if released pursuant to Article 6 hereof) the
Contingent Payment Stock in exchange for all outstanding Creditor
Shares; and (f) certain transfer restrictions on the shares of New World
Access Stock to be issued pursuant to this Agreement as set forth in
Section 6.4 hereof. RCG estimates that the aggregate amount of Allowed
Claims will be approximately $300,000,000 to $350,000,000.
Section 5.2 Deposit of New World Access Stock. At the Closing, New
World Access and the Person appointed by the Bankruptcy Court pursuant
to the Plan and the Order to act as "Disbursing Agent" under the Plan
(the "Disbursing Agent") shall each execute a Disbursement Agreement
reasonably acceptable to the Parties hereto and, in accordance
therewith, New World Access shall deposit with the Disbursing Agent,
immediately following the Effective Time, an aggregate of 9,375,000
shares of New World Access Stock, of which 3,125,000 shares shall be
issued pursuant to Section 5.3 hereof (the "Disbursed Stock") and
6,250,000 shares shall be released pursuant to the terms of Article 6
hereof (the "Contingent Payment Stock").
Section 5.3 Payment of Claims. In accordance with the terms and
provisions of the Plan and unless otherwise provided therein, (a) RCG
shall be deemed to have issued 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 the Creditor Shares based upon the amount of each such claim in
exchange for the surrender of such claims, and (b) immediately after the
cancellation of all other outstanding RCG Stock and the issuance of the
Creditor Shares, the Disbursing Agent under the Disbursement Agreement
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. The Disbursing Agent will return to New World Access shares
of Disbursed Stock equal to (x) the dollar amount of all 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, divided by (y) $32.00.
Section 5.4 Contingent Payment of Claims. 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 hereof in accordance with the terms and
provisions of the Plan.
Section 5.5 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: (a) fractions of 1/2 or greater shall be
rounded to the next greater whole number; and (b) 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 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
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as necessary to account for the rounding provided hereby. No
consideration shall be paid in lieu of fractional shares that are
rounded down."
(d) Section 9.4 of the Merger Agreement is hereby amended and restated
in its entirety as follows:
"Section 9.4 Approval of Stockholders of World Access. World
Access will take all steps necessary under applicable law and its
certificate of incorporation and bylaws to call, give notice of, convene
and hold a meeting of its stockholders for the purpose of approving this
Agreement and the Merger and for such other purposes consistent with the
complete performance of this Agreement as may be necessary or desirable.
Unless the Board of Directors of World Access determines in good faith,
based upon advice of its outside counsel, that such recommendation would
violate its fiduciary duties to its stockholders, the Board of Directors
of World Access will recommend to its stockholders the approval of this
Agreement, the Merger and the transactions contemplated hereby and will
use its best efforts to obtain the necessary approvals by its
stockholders of this Agreement, the Merger and the transactions
contemplated hereby. Notwithstanding anything herein to the contrary, it
is understood that the approval of this Agreement, the Merger and the
transactions contemplated hereby by the World Access stockholders is
intended to constitute the requisite approval of the New World Access
stockholders."
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 Second
Amendment are for reference purposes only and will not affect in any way the
meaning or interpretation of this Second Amendment.
SECTION 4. Counterparts. This Second 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 Second Amendment to
be executed and delivered by its respective officer 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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