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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): April 7, 1998
Total-Tel USA Communications, Inc.
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(Exact name of registrant as specified in its charter)
New Jersey 22-1656895
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
Overlook at Great Notch
150 Clove Road
Little Falls, New Jersey 07424
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 812-1100
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Item 5. Other Events
On April 7, 1998, the Board of Directors of Total-Tel USA
Communications, Inc. (the "Corporation") adopted amendments to the By-Laws of
the Corporation that addressed the following issues:
(i) the procedures for the calling of special meetings of the
stockholders,
(ii) the procedures for amending the By-Laws of the Corporation by the
Board of Directors,
(iii) advance notice by stockholders to the Corporation of nominations
for directors or proposals to be made at annual meetings of the
stockholders,
(iv) setting the date for the annual meeting of the stockholders,
(v) the procedures for establishing a record date to determine the
stockholders entitled to consent to corporate action in writing
without a meeting of the stockholders, and
(vi) the updating of corporate information and other clerical
corrections.
The Board of Directors of the Corporation also adopted an Amended and
Restated By-Laws of the Corporation incorporating all of the amendments
discussed above and filed as Exhibit 1 herein.
Item 7. Exhibits.
1. Amended and Restated By-Laws of Total-Tel USA Communications, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereto duly authorized.
TOTAL-TEL USA COMMUNICATIONS, INC.
DATED: April 7, 1998 By: /s/ Warren H. Feldman
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Name: Warren H. Feldman
Title: Chairman and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
1. Amended and Restated By-Laws of Total-Tel USA
Communications, Inc.
AMENDED AND RESTATED BY-LAWS
OF
TOTAL-TEL USA COMMUNICATIONS, INC.
Article I
OFFICES
Sec. 1. PLACE. The principal office of the corporation shall be at
150 Clove Road, Little Falls, New Jersey 07424.
Sec. 2. OTHER PLACES. The corporation may have other offices at
such other places as may from time to time be determined by the Board of
Directors.
Sec. 3. SIGN. The name of the corporation shall be conspicuously
displayed at the entrance of such offices at all times.
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Article II
STOCKHOLDERS' MEETINGS
Sec. 1. ANNUAL MEETING. The annual meeting of stockholders shall
be held at the principal office of the corporation on the 10th day of June of
each year at 10 o'clock in the morning, or at such other location, date and
time as the Board of Directors may determine at its discretion. If June 10th
or the date designated by the Board of Directors falls upon a Sunday or a
legal holiday, then the meeting shall be held upon the first business day
thereafter. The Secretary shall serve personally, or by mail, a written
notice thereof, addressed to each stockholder at his address as it appears on
the stock book; not less than 10, and not more than 20, days before such
meeting, except that at any meeting at which all stockholders shall be
present, or of which all stockholders not present have waived notice in
writing, the advance notice requirement shall not be required for such
meeting.
Sec. 2. QUORUM. The presence, in person or by proxy, in writing,
of the holders of 51% of the outstanding stock entitled to vote shall be
necessary to constitute a quorum for the transaction of business, but a
lesser number may adjourn to some future time not less than 10 nor more than
20 days later, and the Secretary shall thereupon give at least 5 days notice
by mail to each stockholder entitled to vote who was absent from such
meeting.
Sec. 3. NOTICE OF STOCKHOLDER PROPOSALS AND NOMINATIONS. The
nomination of Directors or other business at an annual meeting of the
stockholders requires, respectively, compliance with the following:
(a) Nominations of persons for election to the Board of Directors
of the corporation and the proposal of business to be considered by the
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stockholders may be made at a meeting of stockholders (1) by or at the
direction of the Board of Directors or (2) by any stockholder of the
corporation who is entitled to vote at the meeting, who complied with
the notice procedures set forth in clauses (b) and (c) of this By-Law
and who was a stockholder of record at the time such notice is delivered
to the Secretary of the corporation.
(b) For Director nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (2)
of paragraph (a) of this By-Law, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the corporation not less than sixty
days nor more than ninety days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced by more than thirty days
or delayed by more than sixty days from such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the
ninetieth day prior to such annual meeting and not later than the close
of business on the later of the sixtieth day prior to such annual
meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made. Such stockholder's notice
shall set forth (1) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including such
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person's written consent to being named in the proxy statement as a
nominee and to serving as a Director if elected); (2) as to any other
business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (3)
as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (A) the name and
address of such stockholder, as they appear on the corporation's books,
and of such beneficial owner and (B) the class and number of shares of
the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of paragraph
(b) of this By-Law to the contrary, in the event that the number of
Directors to be elected to the Board of Directors of the corporation is
increased and there is no public announcement naming all of the nominees
for Director or specifying the size of the increased Board of Directors
made by the corporation at least seventy days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's
notice required by this By-Law shall also be considered timely, but only
with respect to nominees for any new positions created by such increase,
if it shall be delivered to the Secretary at the principal executive
offices of the corporation not later than the close of business on the
tenth day following the day on which such public announcement is first
made by the corporation.
Sec. 4 SPECIAL MEETINGS. Special meetings of stockholders other
than directed by statute may be called at any time by a majority of the
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Directors. Notice of such meeting stating the time, place and purpose for
which it is called shall be served personally or by mail, to each stockholder
entitled to vote at a meeting not less than 10 days before the date set for
such meeting. If mailed, it shall be directed to a stockholder at his
address as it appears on the stock book; but at any meeting at which all
stockholders present do not object before the conclusion of the meeting to
the lack of notice and those stockholders not present at the meeting have
waived the notice requirement in writing, the giving of notice as above
described shall not be required for such meeting. No business other than
that specified in the call for the meeting, shall be transacted at any
meeting of the stockholders.
Sec. 5 VOTING. At all meetings of the stockholders, each
stockholder entitled to vote, and present at the meeting in person or by
proxy, shall be entitled to one vote for each full share of capital stock of
the corporation entitled to vote and standing registered in his name at the
time of such voting; and the vote of the holders of a majority of the stock
present, in person or by proxy, and entitled to vote at any such meeting of
the stockholders shall control on any question brought before such meeting.
No share of stock shall be voted which has been transferred on the books of
the corporation within twenty days, exclusive of the day of the meeting, next
preceding an election.
Sec. 6 PROXIES. Any stockholder of record entitled to vote may
be represented at any meeting of the stockholders by a duly appointed proxy.
All proxies shall be written and properly signed, and shall be filed with the
Secretary of the meeting before being voted.
Sec. 7 ORDER OF BUSINESS. The order of business at all meetings
of the stockholders, shall be as follows:
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1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Reports of Officers.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
Sec. 8. RECORD DATE FOR STOCKHOLDER CONSENT TO CORPORATE ACTION.
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors shall fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which date shall not be more than ten business days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. Any stockholder of record or other person seeking to
take corporate action by written consent or to have the stockholders
authorize action to be taken by written consent, shall, by written notice to
the Secretary of the corporation, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all events within
ten business days after the date upon which such a request is received, adopt
a resolution fixing a record date. If a request for the fixing of a record
date is not made and received by the Secretary prior to the delivery of a
written consent to the corporation, the Board of Directors shall promptly,
but in all events within ten business days after the date on which such a
consent is delivered to the corporation, adopt a resolution fixing a record
date. If no record date has been fixed by the Board of Directors within ten
business days of the date on which such a request is received or within ten
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business days of the date on which such consent is delivered, whichever is
earlier, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on
which such a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking such prior
action.
Article III
DIRECTORS
Sec. 1. NUMBER. The affairs and business of this corporation
shall be managed by a Board of Directors composed of not less than 3 nor more
than 9 members, who shall be stockholders of record.
Sec. 2. HOW ELECTED. At the annual meeting of stockholders, not
less than 3 nor more than 9 persons receiving a majority of the votes cast
shall be Directors and shall constitute the Board of Directors for the
ensuing year.
Sec. 3. TERM OF OFFICE. The term of office of each of the
Directors shall be one year, and thereafter until his successor has been
elected and qualified.
Sec. 4. DUTIES OF DIRECTORS. The Board of Directors shall have
the control and general management of the affairs and business of the
corporation. Such Directors shall in all cases act as a Board, regularly
convened, by a majority, and they may adopt such rules regulations for the
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conduct of their meetings and the management of the corporation, as they may
deem proper, not inconsistent with these By-Laws and the laws of the State of
New Jersey.
Sec. 5. DIRECTORS' MEETINGS. Regular meetings of the Board of
Directors shall be held at the principal office of the corporation, and at
such times and other places as the Board of Directors may determine. Special
meetings of the Board of Directors may be called by the President at any
time, and shall be called by the President or the Secretary upon the written
request of at least 2 Directors.
Sec. 6. NOTICE OF MEETINGS. Notice of meetings, of the Board of
Directors shall be given by service upon each Director in person, or by
mailing to him at his last known post-office address, at least 5 days before
the date therein designated for such meeting, including that day of mailing,
of a written or printed notice thereof specifying the time and place of such
meeting. At any meeting at which every member of the Board of Directors
shall be present, although held without notice and each of the Directors hav-
ing waived such notice, any business may be transacted which might have been
transacted if the meeting had been duly called.
Sec. 7. QUORUM. At Any meeting of the Board of Directors, at
least three members of the Board shall constitute a quorum for the
transaction of business but in the event of a quorum not being present, a
lesser number may adjourn the meeting to some future time, not more than 5
Days later.
Sec. 8. VOTING. At all meetings of the Board of Directors, each
Director is to have one vote, irrespective of the number of shares of stock
that he may hold, and all questions shall be decided by a majority vote.
Sec. 9. VACANCIES. Vacancies in the Board occurring between
annual meetings shall be filled for the unexpired portion of the term by a
majority of the remaining Directors.
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Article IV
OFFICERS
Sec. 1. NUMBER AND QUALIFICATION. At the first meeting after
their election the Board of Directors shall elect the officers of the
corporation. It shall be necessary that the person chosen as President shall
be a member of the Board of Directors; in addition they shall elect:
Vice-president
Treasurer
Secretary
Any two offices may be held by the same person. The compensation
of the officers shall be fixed by the Board of Directors.
Sec. 2. ELECTION. All officers of the corporation shall be
elected annually by the Board of Directors at its meeting held immediately
after the meeting of stockholders, and shall hold office for the term of one
year or until their successors are duly elected and qualified.
Sec. 3. DUTIES OF OFFICERS. The duties and powers of the officers
of the corporation shall be as follows:
PRESIDENT
The President shall preside at all meetings of the Board of
Directors and stockholders.
He shall present at each annual meeting of the stockholders and
Directors a report of the condition of the business of the corporation.
He shall cause to be called regular and special meetings of the
stockholders and Directors in accordance with these By-Laws.
He shall have general control of the business of the corporation,
subject to the direction of the Board of Directors.
He shall appoint and remove, employ and discharge and fix the
compensation of all servants, agents, employees and clerks of the corporation
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other than the duly appointed officers, subject to the approval of the Board
of Directors.
He shall sign and make all contracts and agreements in the name of
the corporation.
He shall see that the books, reports, statements and certificates
required by the statutes are properly kept, made and filed according to law.
He may sign all certificates of stock, notes, drafts or bills of
exchange, warrants or other orders for the payment of money duly drawn by the
Treasurer.
He shall enforce these By-Laws and perform all the duties incident
to the position and office, and which are required by law.
VICE-PRESIDENT
During the absence and/or inability of the President to render and
perform his duties or exercise his powers, as set forth in these By-Laws or
in the acts under which this corporation is organized, the same shall be
performed and exercised by the Vice President; and when so acting, he shall
have all the powers and be subject to all the responsibilities hereby given
to or imposed upon such President.
SECRETARY
The Secretary shall keep the minutes of the meetings of the Board
of Directors and of the Stockholders in appropriate books.
He shall give and serve all notices of the corporation.
He shall be custodian of the records and of the seal, and affix the
latter when required.
He shall keep the stock and transfer books in the manner prescribed
by law, so as to show at all times the amount of capital stock, the manner
and the time the same was paid in, the names of the owners thereof,
alphabetically arranged, their respective places of residence, their
post-office address, the number of shares owned by each, the time at which
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each person became such owner, and the amount paid thereon; and keep such
stock and transfer books open daily during business hours at the office of
the corporation, subject to the inspection of any Stockholder of the
corporation, and permit such Stockholder to make extracts from said books to
the extent and as prescribed by law.
He may sign all certificates of stock.
He shall present to the Board of Directors at their stated meetings
all communications addressed to him officially by the President or any
officer or shareholder of the corporation.
He shall attend to all correspondence and perform all the duties
incident to the office of Secretary.
TREASURER
The Treasurer shall have the care and custody of and be responsible
for all the funds and securities of the corporation, and deposit all such
funds in the name of the corporation in such bank or banks as the Board of
Directors may designate.
He may sign, make and endorse in the name of the corporation, all
checks, drafts, warrants and orders for the payment of money, and pay out and
dispose of same and receipt therefor, under the direction of the President or
the Board of Directors.
He shall exhibit at all reasonable times his books and accounts to
any Director of the corporation upon application at the office of the
corporation during business hours.
He may sign all certificates of stock.
He shall render a statement of the condition of the finances of the
corporation at each regular meeting of the Board of Directors, and at such
other times as shall be required of him, and a full financial report at the
annual meeting of the Stockholders.
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He shall keep at the office of the corporation, correct books of
account of all its business and transactions and other books of account as
the Board of Directors may require.
He shall, if required by the Board of Directors, give to the
corporation such security for the faithful discharge of his duties as the
Board may direct.
He shall do and perform all duties pertaining to the office of
Treasurer.
Sec. 4. VACANCIES, HOW FILLED. All vacancies in any office, shall
be filled by the Board of Directors without undue delay, at its regular
meeting, or at a meeting specially called for that purpose.
Sec. 5. REMOVAL OF OFFICERS. The Board of Directors may remove
any officer, by a 66-2/3% vote, at any time with or without cause.
Sec. 6. DELEGATED DUTIES. In case of the absence of any officer
of the corporation, or for any other reason that may seem sufficient to the
board, the Directors may, by a majority vote of the board, delegate the
powers and duties of such officer, for the time being, to any other officer,
or to any Director.
Article V
SEAL
Sec. 1. The seal of the corporation shall be as follows:
[Corporate Seal]
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Article VI
CERTIFICATES OF STOCK
Sec. 1. DESCRIPTION OF STOCK CERTIFICATES. The certificates of
stock shall be numbered and registered in the order in which they are issued.
They shall be bound in a book and shall be issued in consecutive order
therefrom, and in the margin thereof shall be entered the name of the person
owning the shares therein represented, with the number of shares and the date
thereof. Such certificates shall exhibit the holder's name and the number of
shares. They shall be signed by the President or Vice-President, and
countersigned by the Secretary or Treasurer and sealed with the seal of the
corporation.
Sec. 2. TRANSFER OF STOCK. The stock of the corporation shall be
assignable and transferable on the books of the corporation only by the
person in whose name it appears on said books, or his legal representatives.
In case of transfer by attorney, the power of attorney, duly executed, and
acknowledged, shall be deposited with the Secretary. In all cases of
transfer, the former certificate must be surrendered up and cancelled before
a new certificate be issued. No transfer shall be made upon the books of the
corporation within 10 days next preceding the annual meeting of the
shareholders.
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Article VII
DIVIDENDS
Dividends shall be declared and paid at such times and in such
amounts as the Board of Directors may in their absolute discretion determine
and designate subject to the restrictions and limitations imposed by the
Statutes, Certificate of Incorporation and By-Laws.
Article VIII
BILLS, NOTES, etc.
Sec. 1. HOW MADE. All bill payable, notes, checks or other
negotiable instruments of the corporation shall be made in the name of the
corporation, and may be signed by the President, Secretary or Treasurer. No
officer or agent of the corporation, either singly or jointly with others,
shall have the power to make any bill payable, note, check, draft or warrant
or other negotiable instrument, or endorse the same in the name of the
corporation, or contract or cause to be contracted any debt or liability in
the name or in behalf of the corporation, except as herein expressly pre-
scribed and provided.
Article IX
FISCAL YEAR
Sec. 1. WHEN TO BEGIN. The fiscal year of the corporation shall
commence on the first day of February of each calendar year.
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Article X
AMENDMENTS
Sec. 1. HOW AMENDED. These By-Laws may be altered, amended,
repealed or added to by an affirmative vote of the stockholders representing
at least 51% of the entire outstanding capital stock having voting power, at
an annual meeting or at a special meeting called for that purpose, provided
that a written notice shall have been sent to each stockholder of record,
which notice shall state the alterations, amendments or changes which are
proposed to be made in such By-Laws. Only such changes as have been
specified in the notice shall be made. If, however, all the stockholders
shall be present at any regular or special meeting, these By-Laws may be
amended by a unanimous vote, without any previous notice.
Sec. 2. BOARD OF DIRECTORS MAY AMEND. The Board of Directors may
amend these By-Laws at any meeting of the Board of Directors or as otherwise
allowed under law.
