-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CihR1fZ5QtZKNU4XLJiSdqWuc+JI34GjDTbLjzwq89Ks1zInBBfyj9A6Dasv4JR/ B7eklIE5C2U/qlZ6oimeyw== 0000950144-98-011245.txt : 19981008 0000950144-98-011245.hdr.sgml : 19981008 ACCESSION NUMBER: 0000950144-98-011245 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19981007 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WAXS INC CENTRAL INDEX KEY: 0001071645 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065] IRS NUMBER: 582398004 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-65389 FILM NUMBER: 98722172 BUSINESS ADDRESS: STREET 1: 945 EAST PACES FERRY ROAD STREET 2: SUITE 2240 CITY: ATLANTA STATE: GA ZIP: 30326 BUSINESS PHONE: 4042312025 MAIL ADDRESS: STREET 1: 945 EAST PACES FERRY ROAD STREET 2: SUITE 2240 CITY: ATLANTA STATE: GA ZIP: 30326 S-4/A 1 WAXS INC 1 As filed with the Securities and Exchange Commission on October 7, 1998 Registration No. 333-65389 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- AMENDMENT NO. 2 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- WAXS INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) --------------------- DELAWARE 3661 58-2398004 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of Incorporation or organization) Classification Code Number) Identification Number)
MARK A. GERGEL 945 E. PACES FERRY ROAD, SUITE 2240 945 E. PACES FERRY ROAD, SUITE 2240 ATLANTA, GEORGIA 30326 ATLANTA, GEORGIA 30326 (404) 231-2025 (404) 231-2025 (Name, address, including zip code, and telephone (Name, address, including zip code, and telephone number, number, area code, of Registrant's principal executive offices) area code, of agent for service)
--------------------- COPIES TO: STEVEN E. FOX, ESQ. BRENT CHRISTENSEN, ESQ. ROGERS & HARDIN LLP PARSONS, BEHLE & LATIMER 2700 INTERNATIONAL TOWER ONE UTAH CENTER 229 PEACHTREE STREET, N.E. 201 SOUTH MAIN STREET ATLANTA, GEORGIA 30303 SUITE 1800 (404) 522-4700 SALT LAKE CITY, UTAH 84145-0898 (801) 532-1234
--------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As promptly as practicable after this registration statement becomes effective and certain other conditions to the mergers proposed herein are satisfied. If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED AMOUNT MAXIMUM MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED(1) REGISTERED(2) PER UNIT(3) OFFERING PRICE(3) FEE(4) - -------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share.............................. 27,000,000 shares $16.99 $458,831,250 $135,355 - -------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------
(1) This registration statement relates to securities of the Registrant issuable to holders of capital stock of NACT Telecommunications, Inc., a Delaware corporation ("NACT"), in the proposed merger of a wholly-owned subsidiary of the Registrant with and into NACT (the "NACT Merger"), and to holders of capital stock of World Access, Inc., a Delaware corporation ("World Access"), in the proposed merger of a wholly-owned subsidiary of the Registrant with and into World Access (the "World Access Merger"). (2) Based upon the number of shares of capital stock of NACT and World Access presently outstanding or otherwise expected to be issued on or before the closing of the mergers and entitled to receive the merger consideration pursuant to the NACT Merger and the World Access Merger. (3) Pursuant to Rules 457(f)(i) and 457(c) under the Securities Act of 1933, as amended, and solely for purposes of calculating the registration fee, the registration fee was computed on the basis of the average of the high and low prices of the common stock of NACT on The Nasdaq National Market and the average of the high and low prices of the common stock of World Access on The Nasdaq National Market, in each case on October 5, 1998. (4) The registration fee of $135,355 was calculated pursuant to 457(f) under the Securities Act as follows: $295 per $1,000,000 (or fraction thereof) of the proposed maximum aggregate offering price. A fee of $12,738 was paid on April 28, 1998 pursuant to Section 14(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in connection with the filing of the preliminary materials by World Access and NACT. Pursuant to 457(b) under the Securities Act, the registration fee payable herewith has been reduced by $12,738, the amount previously paid upon filing of such preliminary materials. Accordingly, an additional fee of $122,617 is required to be paid and was paid with the initial filing of this Registration Statement. --------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. 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 stockholders 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 Company's Certificate of Incorporation provides for indemnification of directors, officers and employees to the fullest extent permissible under the DGCL. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) Exhibits The following exhibits are filed herewith or incorporated herein by reference.
EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1(1) -- Agreement and Plan of Merger and Reorganization, dated as of February 24, 1998, among WAXS INC., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A to the Prospectus/Information Statement included as part of this registration statement). 2.1(2) -- First Amendment to Agreement and Plan of Merger and Reorganization, dated as of June 30, 1998, among WAXS INC., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A-1 to the Prospectus/Information Statement included as part of this registration statement).
II-1 3
EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1(3) -- Second Amendment to Agreement and Plan of Merger and Reorganization, dated as of September 30, 1998, among WAXS Inc., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A-2 to the Prospectus/Information Statement included as part of this registration statement). 3.1 -- Certificate of Incorporation of WAXS INC.* 3.2 -- Bylaws of WAXS INC.* 5.1 -- Opinion letter of Rogers & Hardin LLP as to the legality of the securities being registered by this registration statement. 8.1 -- Opinion letter of Van Cott, Bagley, Cornwall & McCarthy as to certain tax matters.* 8.2 -- Opinion letter of Rogers & Hardin LLP as to certain tax matters.* 23.1 -- Consent of Rogers & Hardin LLP with respect to its opinion as to the legality of securities being registered by this registration statement (contained in Exhibit 5.1). 23.2 -- Consent of Van Cott, Bagley, Cornwall & McCarthy with respect to its opinion as to certain tax matters (contained in Exhibit 8.1). 23.3 -- Consent of Rogers & Hardin LLP with respect to its opinion as to certain tax matters (contained in Exhibit 8.2). 23.4 -- Consent of PricewaterhouseCoopers LLP, independent auditors, with respect to financial statements of World Access, Inc.* 23.5 -- Consent of KPMG Peat Marwick LLP, independent auditors, with respect to financial statements of NACT Telecommunications, Inc.* 23.6 -- Consent of NationsBanc Montgomery Securities LLC with respect to its fairness opinion regarding the NACT Merger (incorporated by reference to Appendix B to the Prospectus/Information Statement included as part of this registration statement). 23.7 -- Consent of Ernst & Young LLP, independent auditors, with respect to consolidated financial statements of Telco Systems, Inc.* 23.8 -- Consent of Ernst & Young LLP, independent auditors, with respect to consolidated financial statements of Cherry Communications Incorporated and Cherry Communications U.K. Limited.* 23.9 -- Consent of Grant Thorton LLP, independent auditors, with respect to financial statements of Cherry Communications Incorporated and Cherry Communications U.K. Limited.* 23.91 -- Consent of Deloitte & Touche LLP, independent auditors, with respect to financial statements of Advanced TechCom, Inc.* 23.92 -- Consent of Tedder, Grimsley & Company, P.A., independent auditors, with respect to financial statements of Advanced TechCom, Inc.* 24.1 -- Powers of attorney (included on pages II-5).
- --------------- * Previously filed. (b) Financial Statement Schedules Financial statements and schedules not included herein have been omitted because of the absence of conditions under which they are required or because the required information, where material, is shown in the consolidated financial statements or notes thereto incorporated by reference in the Prospectus/Information Statement. II-2 4 (c) Reports, Opinions and Appraisals The opinion of NationsBanc Montgomery Securities LLC with respect to the NACT Merger is attached as Appendix B to the Prospectus/Information Statement filed as a part of this registration statement. ITEM 22. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes (i) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement (A) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (B) 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; and (C) 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; (ii) 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; and (iii) 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. (b) 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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) (i) The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. (ii) The undersigned registrant hereby undertakes that every prospectus: (A) that is filed pursuant to paragraph (c)(i) immediately preceding or (B) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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. (d) 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that such 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 of 1933 and will be governed by the final adjudication of such issue. II-3 5 (e) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference in the Prospectus/Information Statement pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (f) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on October 7, 1998. WAXS INC. By: /s/ STEVEN A. ODOM ------------------------------------ Steven A. Odom Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ STEVEN A. ODOM Chairman of the Board and Chief October 7, 1998 - ----------------------------------------------------- Executive Officer Steven A. Odom /s/ MARK A. GERGEL Executive Vice President and October 7, 1998 - ----------------------------------------------------- Chief Financial Officer Mark A. Gergel (Principal Financial Officer) * Director and President (Chief October 7, 1998 - ----------------------------------------------------- Operating Officer) Hensley E. West * Vice President, Controller and October 7, 1998 - ----------------------------------------------------- Secretary Martin D. Kidder (Principal Accounting Officer) Director - ----------------------------------------------------- Stephen J. Clearman * Director October 7, 1998 - ----------------------------------------------------- John D. Phillips * Director October 7, 1998 - ----------------------------------------------------- Stephen E. Raville *By: /s/ MARK A. GERGEL October 7, 1998 ------------------------------------------------ Mark A. Gergel, as Attorney in Fact
II-5 7 INDEX TO EXHIBITS The Exhibit numbers in the following list correspond to the numbers assigned to such exhibits in Item 601 and Regulation S-K.
EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1(1) -- Agreement and Plan of Merger and Reorganization, dated as of February 24, 1998, among WAXS INC., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A to the Prospectus/Information Statement included as part of this registration statement). 2.1(2) -- First Amendment to Agreement and Plan of Merger and Reorganization, dated as of June 30, 1998, among WAXS INC., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A-1 to the Prospectus/Information Statement included as part of this registration statement). 2.1(3) -- Second Amendment to Agreement and Plan of Merger and Reorganization, dated as of September 30, 1998, among WAXS INC., World Access, Inc., WAXS Acquisition Corp., NACT Telecommunications, Inc. and NACT Acquisition Corp. (incorporated by reference to Appendix A-2 to the Prospectus/Information Statement included as part of this registration statement). 3.1 -- Certificate of Incorporation of WAXS INC.* 3.2 -- Bylaws of WAXS INC.* 5.1 -- Opinion letter of Rogers & Hardin LLP as to the legality of the securities being registered by this registration statement. 8.1 -- Opinion letter of Van Cott, Bagley, Cornwall & McCarthy as to certain tax matters.* 8.2 -- Opinion letter of Rogers & Hardin LLP as to certain tax matters.* 23.1 -- Consent of Rogers & Hardin LLP with respect to its opinion as to the legality of securities being registered by this registration statement (contained in Exhibit 5.1). 23.2 -- Consent of Van Cott, Bagley, Cornwall & McCarthy with respect to its opinion as to certain tax matters (contained in Exhibit 8.1). 23.3 -- Consent of Rogers & Hardin LLP with respect to its opinion as to certain tax matters (contained in Exhibit 8.2). 23.4 -- Consent of PricewaterhouseCoopers LLP, independent auditors, with respect to financial statements of World Access, Inc.* 23.5 -- Consent of KPMG Peat Marwick LLP, independent auditors, with respect to financial statements of NACT Telecommunications, Inc.* 23.6 -- Consent of NationsBanc Montgomery Securities LLC with respect to its fairness opinion regarding the NACT Merger (incorporated by reference to Appendix B to the Prospectus/Information Statement included as part of this registration statement). 23.7 -- Consent of Ernst & Young LLP, independent auditors, with respect to consolidated financial statements of Telco Systems, Inc.* 23.8 -- Consent of Ernst & Young LLP, independent auditors, with respect to financial statements of Cherry Communications Incorporated and Cherry Communications U.K. Limited.* 23.9 -- Consent of Grant Thorton LLP, independent auditors, with respect to financial statements of Cherry Communications Incorporated and Cherry Communications U.K. Limited.* 23.91 -- Consent of Deloitte & Touche LLP, independent auditors, with respect to financial statements of Advanced TechCom, Inc.*
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EXHIBIT NO. DESCRIPTION - ----------- ----------- 23.92 -- Consent of Tedder, Grimsley & Company, P.A., independent auditors, with respect to financial statements of Advanced TechCom, Inc.* 24.1 -- Powers of attorney (included on pages II-5).
- --------------- * Previously filed. II-7 EX-5.1 2 OPINION OF ROGERS & HARDIN, LLP 1 EXHIBIT 5.1 Rogers & Hardin Attorneys At Law A Limited Liability Partnership 2700 International Tower, Peachtree Center 229 Peachtree Street, N.E. Atlanta, Georgia 30303 (404) 522-4700 FACSIMILE: (404) 525-2224 October 7, 1998 WAXS INC. 945 E. Paces Ferry Road Suite 2240 Atlanta, Georgia 30326 Gentlemen: We have acted as counsel to WAXS INC. (the "Company") in connection with the registration by the Company on Form S-4 (hereinafter referred to, together with any amendments thereto, as the "Registration Statement") under the Securities Act of 1933, as amended, of an aggregate of up to 27,000,000 shares of common stock, $.01 par value per share, of the Company (the "Shares") issuable pursuant to that certain Agreement and Plan of Merger and Reorganization dated as of February 24, 1998, as amended, to which the Company is a party (the "Merger Agreement"). In connection with this opinion, we have examined such corporate records and documents and have made such examinations of law as we have deemed necessary. In rendering this opinion, we have relied, without investigation, upon various certificates of public officials and of officers and representatives of the Company. In our examination of documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We are members of the Bar of, and are admitted to practice only in, the State of Georgia. Accordingly, except as to the General Corporation Law of the State of Delaware (the "DGCL") and Delaware case law, we express no opinion herein as to the laws of any jurisdiction other than the United States and the State of Georgia. Except as to the DGCL and Delaware case law, to the extent that any of the opinions contained herein requires consideration of the laws of a state other than the State of Georgia, we have assumed, with your permission, that the laws of such states are the same as the laws of the State of Georgia. Based upon the foregoing and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that the Company has the corporate power and authority under the DGCL and its Certificate of Incorporation and By-Laws to issue the Shares, and the Shares, when issued against payment therefor or in exchange for securities pursuant to the Merger Agreement, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to applications to the securities commissioners of the various states and other jurisdictions of the United States for registration or qualification of the Shares in such states and other jurisdictions. We further consent to the reference to our firm under the caption "Legal Matters" in the Prospectus which is a part of the Registration Statement. Very truly yours, ROGERS & HARDIN -----END PRIVACY-ENHANCED MESSAGE-----