UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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): October 15, 2002
TALK AMERICA HOLDINGS, INC.
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 000-26728 23-2827736
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(State or Other (Commission (IRS Employer
Jurisdiction of Incorporation) File Number) Identification No.)
TALK AMERICA HOLDINGS, INC.
12020 SUNRISE VALLEY DRIVE
RESTON, VIRGINIA 20191
(Address of Principal Executive Offices, Including Zip Code)
(703) 391-7500
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(Registrant's telephone number, including area code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS
On October 15, 2002, the stockholders of Talk America Holdings, Inc. (the
"Company") approved an amendment to the Company's Amended and Restated
Certificate of Incorporation to effect a one-for-three reverse stock split of
the Common Stock of the Company ("Reverse Split"). The Reverse Split was
effective as of 5:00 pm, EDT on October 15, 2002 ("Effective Date"). Pursuant
to the Reverse Split, each holder of three shares of Company common stock, par
value $0.01 per share ("Old Company Common Stock"), immediately prior to the
Effective Date became the holder of one share of Company common stock, par value
$0.01 per share ("New Company Common Stock") after the Effective Date. As a
result, 27,273,344 shares of Common Stock and no shares of preferred stock were
outstanding immediately following the Effective Date. Following the Reverse
Split, the Company has 100 million shares of authorized Common Stock, par value
$.01 per share and 5 million shares of authorized preferred stock.
Commencing on the Effective Date, each certificate formerly representing
shares of Old Company Common Stock will be deemed for all corporate purposes to
evidence ownership of the reduced number of shares of New Company Common Stock
resulting from the Reverse Split. As soon as practicable after the Effective
Date, Company stockholders will be notified of the effectiveness of the Reverse
Split and instructed as to how and when to surrender their certificates
representing shares of Old Company Common Stock in exchange for certificates
representing shares of New Company Common Stock. No certificates representing
fractional share interests in the New Company Common Stock will be issued and no
such fractional share interests will entitle the holder thereof to any rights as
a stockholder of Company. In lieu of such fractional share interests, each
holder of Old Company Common Stock who would otherwise be entitled to receive a
fractional share of New Company Common Stock will be paid cash by First City
Transfer Company, which will act as the exchange agent for the Reverse Split.
Such exchange agent will pool fractional share interests, sell them on behalf of
the stockholders otherwise entitled to them and return the appropriate pro rata
share of the proceeds to holders of fractional share interests.
For a period of 20 trading days beginning on October 16, 2002, the
Company's NASDAQ symbol "TALK" will be appended with the letter "D" to alert the
trading community of the Reverse Split.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
3.1 Certificate of Amendment of Restated Certificate of Incorporation of the
Company dated October 15, 2002 (filed herewith).
3.2 Composite form of Amended and Restated Certificate of Incorporation of the
Company, as amended through October 15, 2002 (filed herewith).
SIGNATURES
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 hereunto duly authorized.
TALK AMERICA HOLDINGS, INC.
Date: October 15, 2002 By: /s/ Aloysius T. Lawn, IV
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Name: Aloysius T. Lawn, IV
Title: Executive Vice President -
General Counsel and Secretary
EXHIBIT INDEX
Exhibit Number Description
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3.1 Certificate of Amendment of Restated Certificate of Incorporation of the
Company dated October 15, 2002 (filed herewith).
3.2 Composite form of Amended and Restated Certificate of Incorporation of the
Company, as amended through October 15, 2002 (filed herewith).
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
TALK AMERICA HOLDINGS, INC.
* * * * *
Talk America Holdings, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation
resolutions were duly adopted setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of the Corporation for
consideration thereof. The resolution setting forth the proposed amendment is
as follows:
RESOLVED, that the Restated Certificate of Incorporation of the
Corporation, as heretofore amended, be further amended:
(A) To change each three (3) shares of Common Stock, of the par
value of $.01 per share, which shall have been issued prior to
the close of business on the effective date of this amendment,
into one (1) issued share of Common Stock, of the par value of
$.01 per share.
(B) To decrease the authorized capital stock of the Corporation
by amending the first paragraph of Article Fourth of such
Restated Certificate of Incorporation to read as follows:
"FOURTH: The total number of shares of all classes of stock
that the Corporation shall have authority to issue is
105,000,000, consisting of 5,000,000 shares of Preferred
Stock, par value $0.01 per share, as more fully described in
Section A. below (the "Preferred Stock"), and 100,000,000
shares of Common Stock, par value $0.01 per share, as more
fully described in Section B. below (the "Common Stock")."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of the Corporation was duly
called and held upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Talk America Holdings, Inc. has caused this
certificate to be signed by its duly authorized officer, this 15th day of
October, 2002.
Talk America Holdings, Inc.
By /s/ Aloysius T. Lawn, IV
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Aloysius T. Lawn, IV
Executive Vice President,
General Counsel and Secretary
EXHIBIT 3.2
Composite
Amended and Restated
Certificate of Incorporation of Talk America Holdings, Inc.
FIRST: The name of the corporation is Talk America Holdings, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is No. 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the Corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purposes for which the Corporation was formed are to engage in
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 105,000,000, consisting of
5,000,000 shares of Preferred Stock, par value $0.01 per share, as more fully
described in Section A. below (the "Preferred Stock"), and 100,000,000 shares of
Common Stock, par value $0.01 per share, as more fully described in Section B.
below (the "Common Stock").
A. Preferred Stock. The shares of Preferred Stock may be divided and issued
from time to time in one or more series as may be designated by the Board of
Directors of the Corporation, each such series to be distinctly titled and to
consist of the number of shares designated by the Board of Directors. All shares
of any one series of Preferred Stock so designated by the Board of Directors
shall be alike in every particular, except that shares of any one series issued
at different times may differ as to the dates from which dividends thereon (if
any) shall accrue or be cumulative (or both). The designations, preferences and
relative, participating, optional or other special rights (if any), and the
qualifications, limitations or restrictions thereof (if any), of any series of
Preferred Stock may differ from those of any and all other series at any time
outstanding. The Board of Directors of the Corporation is hereby expressly
vested with authority to fix by resolution the powers, designations, preferences
and relative, participating, optional or other special rights (if any), and the
qualifications, limitations or restrictions and (if any), of the Preferred Stock
and each series thereof which may be designated by the Board of Directors,
including, but without limiting the generality of the foregoing, the following:
1. The voting rights and powers (if any) of the Preferred Stock and
each series thereof;
2. The rates and times at which, and the terms and conditions on
which, dividends (if any) on the Preferred Stock, and each series thereof, will
be paid and any dividend preferences or rights of cumulation;
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3. The rights (if any) of holders of the Preferred Stock, and each
series thereof, to convert the same into, or exchange the same for, shares of
other classes (or series of classes) of capital stock of the Corporation and the
terms and conditions for such conversion or exchange, including provisions for
adjustment of conversion or exchange prices or rates in such events as the Board
of Directors shall determine;
4. The redemption rights (if any) of the Corporation and of the
holders of the Preferred Stock, and each series thereof, and the times at which,
and the terms and conditions on which, the Preferred Stock, and each series
thereof, may be redeemed; and
5. The rights and preferences (if any) of the holders of the Preferred
Stock, and each series thereof, upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
B. Common Stock. All shares of Common Stock shall be identical and shall
entitle the holders thereof to the same rights and privileges.
1. Dividends. When and as dividends are declared upon the Common
Stock, whether payable in cash, in property or in shares of stock of the
Corporation, the holders of Common Stock shall be entitled to share equally,
share for share, in such dividends.
2. Voting Rights. Each holder of Common Stock shall be entitled to one
vote per share.
3. Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after payment
shall have been made to holders of the Preferred Stock of the full amounts to
which they shall be entitled as stated and expressed herein or as may be stated
and expressed pursuant hereto, the holders of Common Stock shall be entitled, to
the exclusion of the holders of the Preferred Stock, to share ratably according
to the number of shares of the Common Stock held by them in all remaining assets
of the Corporation available for distribution to its stockholders.
C. Other Provisions. No holder of any of the shares of any class or series
of stock or options, warrants or other rights to purchase shares of any class of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized shares of any class or series of stock,
securities convertible into or exchangeable for stock, or carrying any right to
purchase stock, may be issued and disposed of pursuant to resolution of the
Board of Directors to such persons, firms, corporations or associations, whether
any such persons, firms, corporations or associations are holders or others, and
upon such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
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FIFTH: The Board of Directors shall consist of not less than one (1) nor
more than fifteen (15) persons, the exact number to be fixed and determined from
time to time by resolution of the Board of Directors or, prior to the election
of an initial Board of Directors, by the Incorporator.
SIXTH: Prior to the first closing date for the initial public offering of
the common stock of the Corporation, the directors shall be elected for such
term as is specified by the Incorporator (prior to the issuance of shares) who
elected such directors or by the shareholders which elected such directors, as
the case may be. On and after the first closing date for the initial public
offering of the common stock of the Corporation, the directors shall be divided
into three (3) classes, as nearly equal in number as possible, known as Class 1,
Class 2, and Class 3. The initial directors of Class 1 shall serve until the
third (3rd) annual meeting of shareholders. At the third (3rd) annual meeting of
the shareholders, the directors of Class 1 shall be elected for a term of three
(3) years and, after expiration of such term, shall thereafter be elected every
three (3) years for three (3) year terms. The initial directors of Class 2 shall
serve until the second (2nd) annual meeting of shareholders. At the second (2nd)
annual meeting of the shareholder, the directors of Class 2 shall be elected for
a term of three (3) years and, after the expiration of such term, shall
thereafter be elected every three (3) years for three (3) year terms. The
initial directors of Class 3 shall serve until the first (1st) annual meeting of
shareholders. At the first (1st) annual meeting of shareholders, the directors
of Class 3 shall be elected for a term of three (3) years and, after the
expiration of such term, shall thereafter be elected every three (3) years for
three (3) year terms. Each director shall serve until his successor shall have
been elected and shall qualify, even though his term of office as herein
provided has otherwise expired, except in the event of his earlier death,
resignation, removal or disqualification. This Article Sixth, or any portion
thereof, may be changed by a by-law amendment which is adopted by all of the
then members of Board of Directors.
SEVENTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors of the Corporation is
expressly authorized and empowered to make, alter or repeal the By-laws of the
Corporation, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law made by the Board of Directors.
EIGHTH: The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provisions contained in this
Certificate of Incorporation; and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
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NINTH: To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of this
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
TENTH: The name and mailing address of the Incorporator is:
Mr. Daniel Borislow
Tel-Save
22 Village Square
New Hope, PA 18938
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