-----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, AsLbDVw6bH0EY41751PyrJdpZ19JnaU0JpeqpMWoisp6Hxw7MI9JeFobW48T08y3 dtA5yNmI+4ONQDQNMHiPIg== 0000950136-98-001123.txt : 19980615 0000950136-98-001123.hdr.sgml : 19980615 ACCESSION NUMBER: 0000950136-98-001123 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980612 SROS: NASD GROUP MEMBERS: GOLD & APPEL TRANSFER SA GROUP MEMBERS: REVISION LLC GROUP MEMBERS: WALT ANDERSON SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TOTAL TEL USA COMMUNICATIONS INC CENTRAL INDEX KEY: 0000034497 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 221656895 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-11039 FILM NUMBER: 98647074 BUSINESS ADDRESS: STREET 1: 150 CLOVE RD CITY: LITTLE FALLS STATE: NJ ZIP: 07424-049 BUSINESS PHONE: 2018121100 MAIL ADDRESS: STREET 1: 150 CLOVE ROAD CITY: LITTLE FALLS STATE: NJ ZIP: 07424-0449 FORMER COMPANY: FORMER CONFORMED NAME: FARADYNE ELECTRONICS CORP DATE OF NAME CHANGE: 19920223 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLD & APPEL TRANSFER SA CENTRAL INDEX KEY: 0001030949 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: OMAR HODGE BLDG STREET 2: WICKAMS CAY CITY: ROAD TOWN TORTULA STATE: D8 MAIL ADDRESS: STREET 1: OMAR HODGE BLDG STREET 2: WICHAMS CAY CITY: ROAD TOWN TORTULA STATE: D8 SC 13D 1 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 7)* Total-Tel USA Communications, Inc. -------------------------------------- (Name of Issuer) Common Stock, par value $.05 per share -------------------------------------- (Title of Class of Securities) 89151T 10-6 -------------------------------- (CUSIP Number) Walt Anderson c/o Shereff, Friedman, Hoffman & Goodman, LLP 919 Third Avenue New York, New York 10022 Attn: Richard A. Goldberg (212) 758-9500 ---------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 10, 1998 ----------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this statement because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 89151T 10-6 Page 2 of 13 Pages - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Walt Anderson - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER 928,817 (includes shares pursuant to an agreement to purchase 69,000 shares of NUMBER OF Common Shares) SHARES -------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH -------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 928,817 (includes shares pursuant to an WITH agreement to purchase 69,000 shares of Common Shares) -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 928,817 (includes shares pursuant to an agreement to purchase 69,000 shares of Common Shares) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ------------------------------------------------------------------------------- SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 89151T 10-6 Page 3 of 13 Pages - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Revision LLC - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER 928,717 (includes shares pursuant to an NUMBER OF agreement to purchase 69,000 shares of SHARES Common Stock) BENEFICIALLY -------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING -------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 928,717 (includes shares pursuant to an agreement to purchase 69,000 shares of Common Stock) -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 928,717 (Includes shares pursuant to an agreement to purchase 69,000 shares of Common Stock) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - ------------------------------------------------------------------------------- SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 89151T 10-6 Page 4 of 13 Pages - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gold & Appel Transfer, S.A. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF --------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY --------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON --------------------------------------------------------- WITH 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. - ------------------------------------------------------------------------------- AMENDMENT NO. 7 TO SCHEDULE 13D This Amendment No. 7 ("Amendment No. 7") to Schedule 13D filed by Gold & Appel Transfer, S.A., a British Virgin Islands corporation ("Gold & Appel), Revision LLC, a Delaware limited liability company ("Revision"), and Walt Anderson, a natural person and a U.S. citizen ("Mr. Anderson"), as joint filers, with respect to the common stock, par value $0.05 per share (the "Common Shares"), of Total-Tel USA Communications, Inc., a New Jersey corporation (the "Issuer"), amends and/or supplements, as indicated, Items 2, 3, 4, 5, 6 and 7 of the Schedule 13D previously filed with the Securities and Exchange Commission (the "SEC") by Gold & Appel and Mr. Anderson as joint filers on January 16, 1998 (the "Schedule 13D"), as amended by Amendment No. 1 thereto filed with the SEC on January 30, 1998 ("Amendment No. 1"), Amendment No. 2 thereto filed with the SEC on February 13, 1998 ("Amendment No. 2"), Amendment No. 3 thereto filed with the SEC on March 4, 1998 ("Amendment No. 3"), Amendment No. 4 thereto filed with the SEC on March 13, 1998 ("Amendment No. 4"), Amendment No. 5 thereto filed with the SEC on March 30, 1998 ("Amendment No. 5") and Amendment No. 6 thereto filed with the SEC on April 6, 1998 ("Amendment No. 6"). All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Schedule 13D, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and Amendment No. 6. ITEM 2. IDENTITY AND BACKGROUND. The response set forth in Item 2 of the Schedule 13D is hereby amended and supplemented to add the following: This Amendment No. 7 is being filed by Gold & Appel, Revision and Mr. Anderson, as joint filers. Revision and Mr. Anderson are sometimes referred to collectively as the "Reporting Persons." Revision is a limited liability company formed in June 1998 in the State of Delaware. Revision was organized to acquire, invest in, trade in, sell or otherwise dispose of Common Shares and to engage in any other lawful business activity related thereto. The business address of Revision is 1313 North Market Street, Wilmington, Delaware 19801. On June 10, 1998, in order to establish a separate entity through which all future activity concerning the Issuer will be conducted, Gold & Appel transferred, as a capital contribution to Revision, 859,717 Common Shares (the "Shares"), the right to purchase 69,000 Common Shares (the "Option Shares"; and together with the Shares, the "Revision Shares") which may be acquired on October 1, 1998 but not later than October 5, 1998 pursuant to the Agreement between Kevin A. Alward and Gold & Appel, dated as of January 6, 1998 (the "Agreement") and the right to vote the Option Shares pursuant to a Proxy Agreement dated February 24, 1998 between Mr. Alward and Gold & Appel (the "Proxy"). In consideration for its capital contribution, Gold & Appel received 100% of the non-voting membership interests in Revision. 5 Mr. Anderson is the sole manager of Revision (the "Manager") and the holder of 100% of the voting membership interests in Revision. All powers of Revision are exercised exclusively by Mr. Anderson and the business and affairs of Revision are managed exclusively by Mr. Anderson. On June 10, 1998, Gold & Appel transferred 100 Common Shares (the "Anderson Shares") to Anderson for no consideration. As a result of the transfers by Gold & Appel discussed above, Gold & Appel is no longer the beneficial owner of any Common Shares. During the past five years, Revision has not been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The response set forth in Item 3 of the Schedule 13D is hereby amended and supplemented to add the following: On June 10, 1998, Gold & Appel transferred, as a capital contribution to Revision, 859,717 Common Shares, the right to purchase the Option Shares and the right to vote the Option Shares pursuant to the Proxy. In consideration for its capital contribution, Gold & Appel received 100% of the non-voting membership interests in Revision. On June 10, 1998, Gold & Appel transferred 100 Common Shares to Mr. Anderson for no consideration. ITEM 4. PURPOSE OF THE TRANSACTION. The response set forth in Item 4 of the Schedule 13D is hereby amended and restated in its entirety as follows: The Reporting Persons may determine, subject to the outcome of the litigation described below, to purchase additional shares of the Issuer in market transactions, or otherwise. In addition, the Reporting Persons may determine to sell some or all of any of the Revision Shares at any time in private or market transactions. Any such determination will depend on market conditions, an evaluation of the Issuer's business, prospects and financial condition, the market for the Common Shares, other opportunities available to the Reporting Persons, general economic conditions, money and stock market conditions, and other further developments. In addition, the Reporting Persons intend to take preparatory steps to evaluate the desirability of seeking representation on the Board of Directors of Issuer (the "Board") and may thereafter seek to effect changes in the management of Issuer and/or the Board. In early March, 1998, Gold & Appel requested the Issuer's records of shareholders, as permitted by statute. On March 31, 1998, the Board adopted a shareholders 6 rights plan (the "Poison Pill") and on April 7, 1998 it amended the Issuer's by-laws (the "Amended By-Laws") to eliminate the right of shareholders holding 25% of the outstanding Common Shares to call a special shareholders meeting. Such by-law amendment included the addition of advance reporting requirements for nominating a director. On April 8, 1998, Gold & Appel filed suit in New Jersey state court seeking an order compelling delivery of the shareholder records and a declaratory judgment that the Board's actions with respect to the Poison Pill and the by-laws are invalid and seeking injunctive relief. On April 13, 1998, the court issued an order requiring the Issuer to provide Gold & Appel with immediate access to the records of shareholders and a temporary restraining order, enjoining any action by the Issuer in connection with the Poison Pill and precluding the Issuer from implementing the changes to its by-laws contained in the Amended By-Laws. The order also required, among other things, that until further order of the court, Gold & Appel and Walt Anderson are prohibited from purchasing additional shares of the Issuer. On June 2, 1998, the court entered a preliminary injunction, pending further order of the court, which enjoins any action by the Issuer in connection with the Poison Pill, and enjoins the Issuer from implementing the Amended By-Laws. The preliminary injunction also enjoins Warren Feldman, Chairman of the Board and Chief Executive Officer of the Issuer, and Solomon Feldman, a Director of the Issuer, on the one hand, and Gold & Appel and Walt Anderson, on the other hand, from purchasing any stock of the Issuer, other than, in each case, through the exercise of options held on April 1, 1998. On May 28, 1998, Gold & Appel filed an amended complaint, a copy of which is attached hereto as Exhibit 7.1. Also attached as Exhibit 7.1 are the judge's temporary restraining and preliminary injunction orders. The foregoing summary is qualified in its entirety by reference to Exhibit 7.1 which is incorporated herein by reference. Except as otherwise described herein, the Reporting Persons have no plan or proposal with respect to the Issuer which would result in any of the matters listed in Items 4(a)-(j) of Schedule 13D under the Securities and Exchange Act of 1934, as amended. However, the Reporting Persons retain their rights to review or reconsider their plans with respect to the transactions described in this Item 4, to acquire or dispose of Common Shares and to formulate plans and proposals which could result in the occurrence of any such events, subject to applicable laws or regulations. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. The responses set forth in (a) and (b) of Item 5 of the Schedule 13D are hereby amended and restated in their entirety as follows: (a) The Reporting Persons, collectively, beneficially own 928,817 Common Shares (of which 69,000 Common Shares have not yet been acquired but may be acquired on October 1, 1998 but not later than October 5, 1998 pursuant to the Agreement and are subject to the Proxy) or 27% of the outstanding Common Shares. Mr. Anderson directly owns 100 Common Shares or less than .01% of the outstanding Common Shares. Revision directly owns 928,717 (of which 69,000 Common Shares have not yet been acquired but may be acquired on October 1, 1998 but not later than October 5, 1998 pursuant to the Agreement and are subject to the Proxy) or 27% of the outstanding Common Shares. 7 In addition, Mr. Anderson is the President and a Director of the Foundation for International Non-Governmental Development of Space, a non-profit organization ("FINDS") which owns 35,465 Common Shares. Mr. Anderson does not have a controlling interest in FINDS and thus disclaims beneficial ownership of the Common Shares held by FINDS. (b) The sole power to vote or direct the voting of and the power to dispose or direct the disposition of the Anderson Shares is held by Mr. Anderson. As the Manager and holder of 100% of the non-voting membership interests in Revision, Mr. Anderson has the sole power to vote or direct the voting of 928,717 Common Shares (which includes 69,000 Common Shares which may be acquired under the Agreement and may be voted by Revision pursuant to the Proxy) and the power, in the name and on behalf of Revision, to dispose of the 859,717 Common Shares beneficially owned by Revision. Accordingly, Mr. Anderson may be deemed to be the beneficial owner of the Revision Shares, and thereby the beneficial owner of 928,817 or 27% of the outstanding Common Shares. The number of shares beneficially owned by each of the Reporting Persons and the percentage of outstanding shares represented thereby, have been computed in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended. The ownership of the Reporting Persons is based on 3,441,447 outstanding Common Shares of the Issuer as of May 12, 1998, as reported in the Issuer's Annual Report on Form 10-K for the fiscal year ended January 31, 1998. The responses set forth in (c) and (d) of Item 5 of the Schedule 13D are hereby amended and supplemented to add the following: (c) On June 10, 1998, Gold & Appel transferred 100 Common Shares to Mr. Anderson for no consideration. On June 10, 1998, Gold & Appel transferred to Revision 859,717 Common Shares, the right to purchase the Option Shares and the right to vote the Option Shares pursuant to the Proxy. In consideration for its capital contribution, Gold & Appel received 100% of the non-voting membership interests in Revision. (d) Until the delivery of the Common Shares to Revision pursuant to the Agreement, Mr. Alward has the sole right to receive dividends paid on the Option Shares. Mr. Alward has the sole right to receive the proceeds from the sale of said shares. No other person is known by Revision nor by Mr. Anderson to have the right to receive or power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Shares beneficially owned by Revision or Mr. Anderson. The response set forth in (e) of Item 5 of the Schedule 13D is hereby amended and restated in its entirety as follows: (e) As a result of the transfers by Gold & Appel discussed above, Gold & Appel is no longer a beneficial owner of any Common Shares. 8 ITEM 6. CONTRACTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. The response set forth in Item 6 of the Schedule 13D is hereby amended and supplemented as follows: The Operating Agreement, which is attached hereto as Exhibit 7.2 and which is incorporated herein by reference, provides that, among other things: (i) There are two classes of members of Revision: the voting members and the non-voting members. On any matter requiring a vote, consent or approval of the members, the voting members are the only persons to whom the matter is required to be submitted, and each voting member has one vote. No non-voting member has a voice or vote in any matter, except as specifically set forth in the Operating Agreement. (ii) The initial members of Revision are Mr. Anderson and Gold & Appel. Mr. Anderson is the sole voting member, and Gold & Appel is the sole non-voting member. Additional members may be admitted to Revision, but unless otherwise specifically provided by amendment to the Operating Agreement, any such additional member will be a non-voting member. (iii) All powers of Revision will be exercised by or under the authority of the Manager and the business and affairs of Revision will be managed under the direction of the Manager. (iv) Unless otherwise agreed by a unanimous vote of the voting members of Revision, there will be one Manager of Revision who shall be designated by the voting member. The initial Manager is Mr. Anderson. A Manager holds office until his or her death, resignation or retirement or until his successor is elected and assumes office. Non-voting members have no authority to appoint or remove a Manager for any reason. (v) Mr. Anderson will be allocated 2% of the net profits and net losses of Revision (up to Mr. Anderson's capital contribution) and Gold & Appel will be allocated 98% of the net profits and losses of Revision. (vi) Revision will be dissolved upon the occurrence of any of the following events: (a) The vote of a two-thirds majority of the voting members to dissolve Revision; (b) The death, retirement, resignation, bankruptcy (which shall mean being the subject of an order for relief under Title 11 of the United States Code), or dissolution of any member (a "Dissolution Event") unless, within sixty (60) days following the occurrence of any such event, the business of Revision is continued by the consent of a majority-in-interest of the remaining members and, in the case of a Dissolution Event with respect to the Manager, the remaining members, including the non-voting members if there is no remaining voting member, appoint a substitute Manager; or 9 (c) As otherwise required by the Delaware Limited Liability Company Act. (vii) The Operating Agreement may be modified or amended by unanimous written Agreement of the voting members. No amendment may modify the economic interest of a member without such member's consent. The foregoing summary is qualified in its entirety by reference to Exhibit 7.2 which is incorporated by reference herein. Except for the Operating Agreement, the Agreement and the Proxy described in Item 2 above, and the Joint Filing Agreement attached hereto as Exhibit 7.3, the Reporting Persons have no contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer of any of the Common Shares, beneficially owned by Revision or Mr. Anderson, finder's fees, joint ventures, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Exhibit 7.1 Amended Complaint, including restraining and injunction orders attached thereto. Exhibit 7.2 Operating Agreement of Revision, LLC, dated as of June 10, 1998. Exhibit 7.3 Joint Filing Agreement between Walt Anderson and Revision LLC, dated as of June 10, 1998. 10 SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: June 11, 1998 /s/ Walt Anderson ----------------------------------- Walt Anderson 11 SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: June 11, 1998 REVISION LLC By: /s/ Walt Anderson -------------------------------- Walt Anderson, Manager 12 SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: June 11, 1998 GOLD & APPEL TRANSFER, S.A. By: /s/ Walt Anderson -------------------------------- Walt Anderson, Attorney-In-Fact for Gold & Appel Transfer, S.A. 13 EXHIBIT INDEX Exhibit Description - ------- ----------- Exhibit 7.1 Amended Complaint, Temporary Restraining Order and Preliminary Injunction. Exhibit 7.2 Operating Agreement of Revision LLC, dated as of June 10, 1998. Exhibit 7.3 Joint Filing Agreement between Walt Anderson and Revision LLC, dated as of June 10, 1998. 14 EX-7.1 2 AMENDED COMPLAINT, TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION REC'D & FILED SUPERIOR COURT OF NEW JERSEY MAY 28, 1998 PITNEY, HARDIN, KIPP & SZUCH (MAIL TO) P O BOX 1945, MORRISTOWN, N.J. 07962-1945 (DELIVERY TO) 200 CAMPUS DRIVE, FLORHAM PARK, N.J. 07932-0950 (973) 966-6300 ATTORNEYS FOR Plaintiff Gold & Appel Transfer, S.A. SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION-PASSAIC COUNTY DOCKET NO. PAS-C49-98 GOLD & APPEL TRANSFER, S.A., a : British Virgin Islands corporation, : Civil Action Plaintiff, : AMENDED COMPLAINT v. : TOTAL-TEL USA COMMUNICATIONS, INC., a New Jersey : corporation, : Defendant. Plaintiff Gold & Appel Transfer, S.A., having its principal place of business at Omar Hodge Building, Wickhams Cay, Road Town, Tortula, British Virgin Islands, by way of Amended Complaint against defendant, says: GENERAL FACTS APPLICABLE TO ALL COUNTS NATURE OF THE ACTION 1. Plaintiff Gold & Appel Transfer, S.A. ("Gold & Appel") brings this action to prevent Total-Tel USA Communications, Inc. ("Total-Tel") from implementing a strategy designed to entrench Total-Tel's management and "freeze out" Gold & Appel, including Total-Tel's adoption on Apri1 1, 1998 of a "poison pill" plan and its adoption, on April 7, 1998, of certain amendments to its corporate by-laws to thwart any efforts by Gold & Appel to nominate persons for election to the Board of Directors or to acquire additional shares of Total-Tel. THE PARTIES 1. Plaintiff Gold & Appel Transfer, S.A. ("Gold & Appel") is a corporation organized under the laws of the British Virgin Islands with its principal place of business located in the Omar Hodge Building, Wickhams Cay, Road Town, Tortula, British Virgin Islands. 2. Gold & Appel is in the principal business of making capital venture investments. 3. Defendant Total-Tel is a corporation organized under the laws of the State of New Jersey, having its principal place of business at Overlook at Great Notch, 150 Clove Road, Little Falls, Passaic County, New Jersey 07424. 4. Total-Tel is in the business of providing long distance telephone services and its shares are publicly traded over the NASDAQ National exchange. 5. Gold & Appel is a shareholder of Total-Tel and holds in excess of 25% of the issued and outstanding stock of Total-Tel. TOTAL-TEL'S REFUSAL TO PROVIDE ACCESS TO INFORMATION -2- 1. On or about March 11, 1998, in accordance with its rights under Section 14A:5-28(3) of the New Jersey Business Corporations Act, Gold & Appel made a written demand to examine Total-Tel's minutes of the proceedings of its shareholders, record of shareholders and other information required to be maintained by Total-Tel pursuant to N.J.S.A. 14A:5-28(1), and to make extracts therefrom. 2. As of March 20, 1998, Gold & Appel had not received a response to the demand letter referred to in the preceding paragraph and, by letter dated March 20, 1998, Gold & Appel made a second written request to examine Total-Tel's minutes. 3. On or about March 23, 1998, Gold & Appel received a letter from Total-Tel, dated March 12, 1998, in which Total-Tel stated that it would make its shareholder minutes available to Gold & Appel and stated further that, prior to permitting inspection of the shareholder records, Total-Tel would require written advice as to the purpose of Gold & Appel's proposed examination of the shareholder records. 4. By letter dated March 23, 1998, Total-Tel purported to respond in writing to Gold & Appel's demand letter of March 23, 1998, simply enclosing and referring its prior letter to Gold & Appel dated as of March 12. 5. On or about March 30, 1998, Gold & Appel advised Total-Tel in writing of the purpose for its demand for Total-Tel's shareholder list; namely, Gold & Appel sought to evaluate its current ownership position in Total-Tel and to consider increasing its ownership in Total-Tel. 6. By letter dated April 6, 1998, Total-Tel advised that it refused to provide Gold & Appel with the information it demanded, stating that "Total-Tel is not obligated to provide such information to Gold & Appel Transfer, S.A. at this time." Total-Tel provided no explanation for its failure to comply with its statutory obligations. -3- TOTAL-TEL'S ENTRENCHMENT AND FREEZE OUT OF GOLD & APPEL 1. Since the time of Gold & Appel's initial demand for information from Total-Tel, and in particular since Gold & Appel advised Total-Tel of its purpose for demanding the information, Total-Tel has undertaken a course of conduct with the intent of entrenching Total-Tel's management and "freezing out" Gold & Appel. 2. On March 31, 1998, Total-Tel adopted a Shareholders' Rights Plan (the "Poison Pill"), which is purportedly designed to prevent coercive or unfair takeover tactics. Under the Poison Pill, each existing shareholder is scheduled to receive a dividend of one common share purchase right for each outstanding share of common stock. This dividend was supposed to be payable on April 13, 1998, and is to be distributed upon the occurrence of certain triggering events. Events which would trigger the Poison Pill include any nonpublic proxy solicitation by Gold & Appel. 3. In addition, the Poison Pill precludes shareholders from acquiring more than 20% of Total-Tel's stock without the consent of the Board of Directors. As a holder of more than 20% of Total-Tel's shares, Gold & Appel is specifically precluded from purchasing additional shares without triggering a substantial dilution of the value of Gold & Appel's shares. 4. The Poison Pill does not apply in the same way to other substantial holders of shares in Total-Tel, including the Feldmans, who are also part of the management of Total-Tel. 5. Specifically, the Poison Pill contains a provision that allows Solomon Feldman and Warren Feldman, two of Total-Tel's directors, to acquire additional shares through an employee benefit plan, including through the issuance of options, without triggering the Poison Pill. -4- 6. The Poison Pill was adopted in response to Gold & Appel's requests for information from Total-Tel and for the purpose of preventing Gold & Appel from increasing its holding in Total-Tel. 7. On or about April 7, 1998, Total-Tel amended its corporate by-laws (the "Amended By-laws"). In the Amended By-laws, Total-Tel deleted an existing provision, in effect since 1959, which granted a 25% shareholder an absolute right to call a special shareholders' meeting. In addition, Total-Tel's Amended By-laws added onerous reporting requirements for nominations to the Board of Directors. 8. Total-Tel implemented the aforesaid amendments to its corporate by-laws for the purpose of preventing Gold & Appel from exercising its shareholder rights. 9. Total-Tel's conduct in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with an intent to entrench Total-Tel's management and its control of Total-Tel. 10. Total-Tel's conduct in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with an intent to "freeze out" Gold & Appel. 11. Total-Tel's conduct in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with an intent to prevent Gold & Appel from purchasing additional shares of Total-Tel and nominating persons to be elected as directors of Total-Tel. 12. Total-Tel's conduct in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with knowledge that it would be prejudicial to the interests of Gold & Appel as a shareholder of Total-Tel. -5- 13. Total-Tel's conduct in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with knowledge that it would cause harm to Gold & Appel. 14. At a hearing on April 13, 1998, the Court ordered Total-Tel to immediately provide Gold & Appel with the records of shareholders, including a list of non-objecting beneficial owners. 15. As of May 27, 1998, Gold & Appel has not received a complete and accurate list of Total-Tel shareholders, which identifies all of Total-Tel's beneficial owners. -6- FIRST COUNT (INJUNCTIVE RELIEF) 1. Gold & Appel repeats and makes a part hereof the allegations contained in paragraphs 1 through 27. 2. The aforesaid conduct of Total-Tel in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, unlawfully discriminates against Gold & Appel, as a holder of more than 20% of the stock of Total-Tel. 3. The aforesaid conduct of Total-Tel in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was undertaken with an intent to improperly prevent Gold & Appel from communicating with other shareholders and doing other things it has a right to do, including purchasing additional shares of Total-Tel. 4. The aforesaid conduct of Total-Tel in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, was implemented for no proper business purpose. 5. The aforesaid conduct of Total-Tel in connection with its adoption of the "Poison Pill," and the amendment of its corporate by-laws, were undertaken with the intent of preventing Gold & Appel from exercising its rights as shareholder. 6. The aforesaid conduct of Total-Tel in adopting the "Poison Pill" and the Amended By-laws is causing irreparable harm to Gold & Appel. 7. The harm to Gold & Appel outweighs the harm, if any, to Total-Tel. WHEREFORE, plaintiff Gold & Appel Transfer, S.A. demands judgment in its favor and against Defendant Total-Tel USA Communications, Inc., permanently enjoining Total-Tel from taking any actions in connection with the Poison Pill and enjoining Total-Tel from -7- implementing the changes to its corporate by-laws that were adopted an April 7, 1998; and granting such other and further relief as is just and proper. SECOND COUNT (DECLARATORY JUDGMENT) 1. Gold & Appel repeats and makes a part hereof the allegations contained in paragraphs 1 through 34. 2. The Poison Pill was adopted in direct response to Gold & Appel's written demand for access to Total-Tel's minutes of proceedings and shareholder records. 3. On April 7, 1997, after Gold & Appel's written demand for access to Total-Tel's minutes of proceedings and shareholder records, Total-Tel's Board of Directors amended the corporate by-laws in ways that are prejudicial to Gold & Appel's shareholder rights. 4. Total-Tel's amendments to its corporate by-laws, on or about April 7, 1997, were adopted in direct response to Gold & Appel's written demand for access to Total-Tel's minutes of proceedings and shareholder records. 5. Total-Tel's Board of Directors adopted the Poison Pill, and amended the by-laws on April 7, 1998, for an improper purpose, to deprive Gold & Appel of its shareholder rights. 6. Gold & Appel's purchase of Total-Tel shares did not pose any threat that justified the Board of Directors' adoption of the Poison Pill and the Amended By-laws. 7. Total-Tel's directors did not and do not have a compelling justification for adopting the Poison Pill or for changing the corporate by-laws on April 7, 1998. Their adoption of the Poison Pill was in breach of New Jersey law and the fiduciary duties owed to Gold & Appel. -8- WHEREFORE, plaintiff Gold & Appel Transfer, S.A. demands judgment in its favor and against Defendant Total-Tel USA Communications, Inc., declaring that the Poison Pill and the April 7, 1998 amendments to Total-Tel's corporate by-laws are illegal, null and void. PITNEY, HARDIN, KIPP & SZUCH Attorneys for Plaintiff GOLD & APPEL TRANSFER, S.A. By: /s/ Joseph Lunin ------------------------------ JOSEPH LUNIN A Member of the Firm Of Counsel: SWIDLER & BERLIN, CHARTERED Michael J. Lichtenstein 3000 K Street, N.W., Suite 300 Washington, D.C. 20007-5116 DATED: May 28, 1998 (202) 424-7500 -9- CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the within Amended Complaint was served upon all counsel of record, as follows: Via Hand Delivery: ------------------ William Wallach, Esq. McCarter & English 4 Gateway Center 100 Mulberry Street Newark, NJ 07102 Via Facsimile & Federal Express ------------------------------- Bobby Burchfield, Esq. Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, DC 20044-7566 /s/ James F. Baxley -------------------------------- JAMES F. BAXLEY DATED: May 28, 1998 -10- FILED APRIL 13, 1998 AMOS C. SAUNDERS JUDGE PITNEY, HARDIN, KIPP & SZUCH (MAIL TO) P.O. BOX 1945, MORRISTOWN, N J 07962-1945 (DELIVERY TO) 200 CAMPUS DRIVE, FLORHAM PARK, N J. 07932-0950 (973) 966-3000 ATTORNEYS FOR Plaintiff Gold & Appel Transfer, S.A. SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: PASSAIC COUNTY DOCKET NO.: PAS-C49-98 GOLD & APPEL TRANSFER, S.A., a : British Virgin Islands corporation, : Civil Action Plaintiff, : v. : ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS TOTAL-TEL USA COMMUNICATIONS, : INC., a New Jersey corporation, : Defendant. This matter having been brought before the Court on the application of Pitney, Hardin, Kipp & Szuch, attorneys for Gold & Appel Transfer, S.A. ("Gold & Appel"), for an Order requiring Total-Tel Communications, Inc. ("Total-Tel") to show cause why it should not be (1) required to provide Gold & Appel with access to its records of shareholders and other information required to be maintained and (2) enjoined from taking actions causing irreparable harm to Gold & Appel; and the Court having considered the Memorandum of Law submitted in support of the application; and good cause having been shown; IT IS on this 13th day of April, 1998, ORDERED that on the 30th day of April, 1998, at 9:00 in the forenoon, or as soon thereafter as counsel may be heard, Total-Tel shall show cause before the Honorable Amos C. Saunders, at the Passaic County Courthouse, Paterson, New Jersey, why an Order should not be entered as follows: 1. Directing Total-Tel to immediately deliver to Gold & Appel at the offices of its counsel, Pitney, Hardin, Kipp & Szuch, Florham Park, N.J., its records of shareholders, including a list of non-objecting beneficial owners, and such list shall be provided in written form and on a magnetic computer disk. This relief was ordered on April 13, 1998 on the record; and 2. Restraining and enjoining Total-Tel from taking any actions in connection with the Shareholders' Rights Plan (the "Poison Pill Plan") adopted on April 1, 1998, and restraining and enjoining Total-Tel from implementing the changes to its corporate by-laws that were adopted on April 7, 1998. IT IS FURTHER ORDER that, pending further Order of the Court, Total-Tel be and hereby is temporarily restrained from taking any actions in connection with the Shareholders' Rights Plan (the "Poison Pill Plan") adopted on April 1, 1998, and restraining and enjoining Total-Tel from implementing the changes to its corporate by-laws that were adopted on April 7, 1998; IT IS FURTHER ORDERED that a copy of this Order to Show Cause, together with all supporting papers and the Verified Complaint herein shall be served upon Total-Tel by Gold & Appel within two (2) days of the date hereof; and IT IS FURTHER ORDERED that Gold & Appel shall serve and file any additional memoranda and any further affidavits in support of its application for relief on or before April 23, -2- 1998, Total-Tel shall serve and file any answering affidavits or memoranda in response to Gold & Appel's application on or before April 28th, 1998; and Gold & Appel shall serve and file any reply papers on or before April 29th, 1998. Each party is permitted Expedited Discovery on the issues raised in the Pleadings. IT IS FURTHER ORDERED that, pending further order of the Court, Plaintiff shall not purchase or acquire, directly or indirectly, any stock of Total-Tel. /s/ Amos C. Saunders ----------------------------------- Judge, Superior Court of New Jersey -3- FILED JUNE 2, 1998 AMOS C. SAUNDERS JUDGE MCCARTER & ENGLISH, LLP FOUR GATEWAY CENTER 100 MULBERRY STREET NEWARK, NEW JERSEY 07102 (973) 622-4444 OF COUNSEL: COVINGTON & BURLING 1201 PENNSYLVANIA AVENUE, N.W. P.O. BOX 7566 WASHINGTON, DC 20044-7566 (202) 662-5350 ATTORNEYS FOR DEFENDANT TOTAL-TEL USA COMMUNICATIONS, INC. - ------------------------------------ : SUPERIOR COURT OF NEW JERSEY GOLD & APPEL TRANSFER, S.A., CHANCERY DIVISION-PASSAIC COUNTY A British Virgin Islands corporation, : DOCKET NO. PAS-C49-98 Plaintiff, : Civil Action v. : ORDER OF MAY 20, 1998 TOTAL-TEL USA COMMUNICATIONS, COURT HEARING INC., A New Jersey corporation, : Defendant. : - ------------------------------------ THIS MATTER having been opened to the Court by plaintiff Gold & Appel Transfer, S.A. ("Gold & Appel"), by and through its attorneys, Pitney, Hardin, Kipp & Szuch and Swidler & Berlin, upon notice to defendant Total-Tel USA Communications, Inc. ("Total-Tel"), by and through its attorneys, McCarter & English, for the entry of a preliminary injunction pursuant to Rule 4:52-2, and the Court having considered the written submissions of the parties, the oral argument of counsel on May 20, 1998, the record in this matter, and for good cause appearing, It is on this 2nd day of June, 1998, ORDERED that: 10. Gold & Appel's request to invalidate the actions by the Total-Tel Board of Directors in adopting a Shareholders' Rights Plan on March 31, 1998, and certain bylaw amendments on April 7, 1998, on the ground that two of Total-Tel's four directors were not shareholders at the time of their election, is DENIED. 11. Pending further Order of this Court, the parties shall maintain the status quo as follows: a. Total-Tel shall take no action to implement or enforce the Shareholders' Rights Plan adopted on March 31, 1998; b. Total-Tel shall take no action to implement or enforce the changes in its corporate bylaws adopted on April 7, 1998; c. Warren Feldman and Solomon Feldman shall not purchase or acquire, directly, or indirectly, any stock of Total-Tel other than to exercise options for stock held on April 1, 1998; and d. Gold & Appel and Walter Anderson shall not purchase or acquire, directly, or indirectly, any stock of Total-Tel other than to exercise options for such stock held on April 1, 1998. 12. This Order supersedes all prior Orders by the Court. 13. A copy of this Order shall be served upon counsel for Gold & Appel by Total-Tel's counsel within five days of receipt from the Court. /s/ Amos C. Saunders ----------------------------------- Judge, Superior Court of New Jersey -2- EX-7.2 3 OPERATING AGREEMENT OF REVISION LLC, DATED AS OF JUNE 10, 1998 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF REVISION LLC a Delaware Limited Liability Company dated as of June 10, 1998 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF REVISION LLC a Delaware Limited Liability Company This Limited Liability Company Operating Agreement (the "Agreement") of Revision LLC (the "Company") dated as of June 10, 1998 is adopted and agreed to by the undersigned Members. ARTICLE 1. PURPOSE AND POWERS 1.1 Purpose. The Company has been organized to acquire, invest in, trade in, sell or otherwise dispose of capital stock of, or other securities issued by, Total-Tel USA Communications, Inc. (the "Subject Company") and to engage in any other lawful business activity related or incident thereto. 1.2 Powers. The Company shall have the power and authority to enter into, make and perform all contracts, agreements and undertakings, and to do any and all acts and things necessary, appropriate, incidental or convenient to the accomplishment of its purposes and for the protection and benefit of the Company. Without limitation of the foregoing, the Company may borrow, pledge its assets and take any and all steps necessary to exercise active control over the Subject Company. The Company may act directly or through one or more subsidiaries, through joint ventures, partnerships or otherwise in carrying out its purpose. 1 ARTICLE 2. MEMBERS AND INTERESTS 2.1 Members; Voting Rights. (a) There shall be two classes of Members: the Voting Members and the Non-voting Members. On any matter requiring a vote, consent or approval of the Members, the Voting Members shall be the only persons to whom the matter is required to be submitted, and each shall have one vote. Except as otherwise provided herein, or as required by applicable law, the vote, consent or approval of a majority of the Voting Members shall constitute the act of the Company. No Non-voting Member shall have a voice or vote in any matter, except as specifically provided herein. (b) The initial Members of the Company shall be Walt Anderson ("Anderson") and Gold & Appel Transfer, SA, a British Virgin Islands corporation ("G&A"). Anderson shall be a Voting Member, and G&A shall be a Non-voting Member. Additional Members may be admitted to the Company, but unless otherwise specifically provided by amendment to this Agreement, any such additional Member shall be a Non-voting Member. Each Member shall execute a counterpart of this Agreement indicating his agreement to the terms and provisions hereof. 2.2 Membership Interests. Each Member's ownership interest in the Company is herein referred to generally as a "Membership Interest." The respective rights of each Member to share in the capital of the Company, either by way of distributions or on liquidation, will be determined by reference to the Capital Account (as defined herein) of such Member; and each Member's interest in the profits and losses of the Company shall be established as provided herein. Each Member shall have the rights and powers set forth in this Agreement. 2.3 Meetings. (a) The Members shall have a regular annual meeting each year beginning in 1999, on a date established by the Manager for the purpose of electing Managers and conducting such other business as may properly come before the meeting. Special meetings of the Members may be called by the Manager. (b) Written notice stating the place, day and hour of each meeting of Members and the general purpose or purposes for which the meeting is called shall be given not less than seven (7) nor more than thirty (30) days before the date of the meeting to each Member, including the Non-voting Members. (c) A Member may waive any notice required by law or this Agreement, before or after the date and time of the meeting that is the subject of such notice. Except as provided in the next sentence, the waiver shall be in writing, signed by the Member entitled to the notice and delivered to the Manager for inclusion in the Company's minutes or records. A 2 Member's attendance at or participation in a meeting shall be deemed to waive any required notice to such Member of the meeting unless the Member, at the beginning of the meeting or promptly upon such Member's arrival, objects to the transaction of any business at such meeting on the ground that such meeting is not lawfully called or convened. A Member may participate in a meeting in person or by proxy. (d) Any vote, consent or approval of the Members may be accomplished by written consent in lieu of a meeting signed by Members constituting the required vote for the action so taken. (e) Members may participate in a regular or special meeting by, or conduct the meeting through, the use of any means of communication by which all Members participating may simultaneously hear each other during the meeting. Any Member who participates in a meeting in this manner is deemed to be present in person at the meeting, except where a Member participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE 3. MANAGEMENT OF THE COMPANY 3.1 Managers. Except as otherwise limited by this Agreement or applicable law, all powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Company's Manager(s). 3.2 Number, Term and Election. Unless otherwise agreed by a unanimous vote of the Members, there shall be one Manager who shall be designated by the Voting Member. The initial Manager shall be Anderson. A Manager shall hold office until his or her death, resignation or retirement or until his successor is elected and assumes office. A Manager need not be a Member of the Company. For the avoidance of doubt, Non-voting Members shall have no authority to appoint or remove a Manager for any reason. 3.3 Officers. The Manager may appoint such officers who shall have such power and authority as may be specified in a resolution of the Manager. Officers shall serve at the pleasure of the Manager. 3.4 Meetings. (a) An annual meeting of the Manager(s) shall be held immediately following each annual meeting of Members for the purpose of appointing officers, if any, and carrying on such other business as may properly come before the meeting. (b) Special meetings of the Manager(s) may be called by any Manager. 3 (c) Notices of meetings of the Manager(s) shall be given to each Manager not less than twenty-four (24) hours before the meeting. Any such notice shall set forth the time and place of the meeting. (d) A Manager may waive any notice required by law or this Agreement before or after the date and time stated in the notice and such waiver shall be equivalent to the giving of such notice. The waiver shall be in writing, signed by the Manager entitled to the notice and filed with the Company's minutes or records; provided that a Manager's attendance at or participation in a meeting waives any required notice to him or her of the meeting. (e) A quorum for the transaction of business at a meeting of the Manager shall consist of all of the Managers. (f) Any or all Managers may participate in a regular or special meeting by, or conduct the meeting through, the use of any means of communication by which all Managers participating may simultaneously hear each other during the meeting. A Manager participating in a meeting in this manner is deemed to be present in person at the meeting. (g) Any action of the Company that may be authorized by the Manager(s) at a meeting may be authorized by written consent in lieu of meeting of the Manager(s) signed by the Manager(s) constituting the required vote for the action so taken, and any such consent shall be filed with the Company's minutes or records. 3.5 Management Decisions. (a) Except to the extent that the Manager(s) agree to delegate the authority with respect to specified matters, all decisions shall be made by a unanimous vote of the Manager(s). (b) Any disbursement of funds of the Company will require such signatures as may be determined by the Manager(s). 3.6 Management Compensation. The Manager(s) shall not be entitled to receive from the Company compensation for his or their services to the Company. In all events, the Manager(s) shall be entitled to reimbursement for all reasonable expenses incurred on the Company's behalf. ARTICLE 4. FINANCIAL INTERESTS OF MEMBERS 4.1 General. The Company has been organized with the intention that it qualify for taxation as a partnership for U.S. federal income tax purposes. The Members acknowledge that the provisions of Subchapter K of the Internal Revenue Code of l986, as amended (the "Code") and the Treasury Regulations (the "Regulations") promulgated thereunder will apply to the 4 Company, and intend that the allocations of taxable income and loss, distributions to the Members and maintenance of capital accounts all conform to the requirements of the Code and the applicable Regulations. 4.2 Capital Contributions. The Voting Member shall contribute $100, and the Non-voting Member shall contribute all of its rights and ownership in 859,717 shares of common stock, par value $0.05 per share (the "Common Shares"), of the Subject Company and the right to purchase 69,000 Common Shares pursuant to an Agreement between Kevin A. Alward and G&A, dated as of January 6, 1998, to the capital of the Company ("Capital Contributions"). Additional Capital Contributions may (but need not) be made by the Members on such basis as the contributing Member and the Manager shall mutually agree upon. 4.3 Capital Accounts. (a) A separate capital account ("Capital Account") shall be established and maintained for each Member on the books of the Company which will reflect the capital contributions, distributions and share of profits and losses of the Company of the Member in accordance with the Regulations. (b) No Member shall be entitled to receive interest on his Capital Contributions. (c) No Member shall be entitled to withdraw all or any part of his Capital Account prior to the dissolution of the Company except as permitted by the Manager in his sole discretion. (d) Loans or advances by any Member to the Company shall not be considered Capital Contributions and shall not increase the Capital Account of the lending or advancing Member. (e) Except as provided in this Agreement, no Member shall be required under any circumstances to contribute or lend any additional money or property to the Company. 4.4 Sharing Percentages; Allocations of Profits and Losses. (a) The percentage interests of the Members in the net profits of the Company (the "Sharing percentages") are 2% - Anderson and 98% - G&A. (b) Net income of the Company for a fiscal year or other period shall be allocated among the Members (i) first, to the extent of cumulative losses of the Company to the date of allocation, proportionately among the Members who have borne such losses, and (ii) the balance in accordance with their Sharing Percentages. (c) Net losses of the Company for a fiscal year or other period shall be allocated among the Members in accordance with the positive balances in their Capital Accounts. 5 In general, no Member shall be allocated net losses in excess of the positive balance in his Capital Account; however, in the event net losses exceed Company capital, allocations shall be made among the Members, if any, who bear such losses as provided in the Regulations. (d) Items of income, gain, loss, deduction and credit that are recognized by the Company for tax purposes shall be allocated among the Members in such manner as equitably reflects amounts credited or debited to the Members' Capital Accounts pursuant hereto. To the extent profits or losses have been reflected in Capital Accounts prior to their recognition for tax purposes, allocations shall be made consistent with the principles of Code Section 704(c). 4.5 Distributions. Distributions to or among the Members to the extent of the positive balances in their Capital Accounts may be made from time to time as the Manager determines. ARTICLE 5. TRANSFERS AND THE ADMISSION OF ADDITIONAL MEMBERS 5.1 Transfers Generally. Membership Interests may be assigned, in whole or in part, (each such assignment, a "Transfer") only in accordance with this Article. 5.2 Effect of Transfers. (a) Except as provided in paragraph (b) below, any Transfer of a Membership Interest by a person (the "Transferor") shall be effective only to give the transferee (the "Transferee") the right to the share of allocations and distributions to which the Transferor would otherwise be entitled, and no Transferee of a Membership Interest shall be admitted as a Member, (ii) the Transferee shall have no right to vote on or consent to any matter submitted to the Members or otherwise participate in the management of the business and affairs of the Company, and (iii) subject to 5.3(c) below, the Transferor, if he retains a Membership Interest, shall retain such rights and shall have the power to exercise any rights of a Member, except the right to receive allocations and distributions to the extent those rights are assigned. (b) A Transferee of a Membership Interest shall, upon such Transfer, be admitted as a Member with all the rights and powers of his Transferor if, prior to such Transfer, the Manager consents to the admission of the Transferee as a Member. (c) The Manager may, in its discretion, charge a reasonable fee to cover the expenses incurred by the Company in connection with or as a consequence of the Transfer of all or part of a Membership Interest. (d) The Company, the Manager, each Member and any other person or persons having business with the Company, need deal only with holders of Membership Interests who are admitted as Members of the Company, and shall not be required to deal with any Transferee who has not been admitted as a Member. 6 5.3 Admission of Members. The Managing Directors may from time to time admit additional Members to the Company on such terms and conditions, including such contributions to the capital of the Company, as the Managing Directors shall determine. Any such additional Members shall join in and agree to be bound by the terms of this Agreement. ARTICLE 6. TERM AND TERMINATION OF THE COMPANY 6.1 Term of the Company. The term of the Company commenced upon the filing of the certificate of formation with the Secretary of State of Delaware on June 10, 1998. The term of the Company shall be five (5) years from the date of formation unless the term of the Company is extended by consent of the Voting Members or if the Company is dissolved and terminated as provided in this Agreement. 6.2 Events of Dissolution. The Company shall be dissolved upon the occurrence of any of the following events: (a) The vote of a two-thirds majority of the Voting Members to dissolve the Company; (b) The death, retirement, resignation, bankruptcy (which shall mean being the subject of an order for relief under Title 11 of the United States Code), or dissolution of any Member ( a "Dissolution Event") unless, within sixty (60) days following the occurrence of any such event, the business of the Company is continued by the consent of a majority-in-interest of the remaining Members and, in the case of a Dissolution Event with respect to the Manager, the remaining Members, including the Non-voting Members if there is no remaining Voting Member, appoint a substitute Manager; (c) As otherwise required by the Delaware Limited Liability Company Act. As used in this Article VI, consent of a majority-in-interest means consent of Members (including for this purpose Voting and Non-voting Members) owning Capital Accounts representing a majority of Company capital. 6.3 Conclusion of Affairs. In the event of dissolution of the Company for any reason, the Manager, or if no Manager remains, the Members, by vote of a majority-in-interest, shall appoint a person (the "Liquidator"), who may but need not be a Manager and/or Member, and the Liquidator shall proceed, as soon as reasonably practicable, to wind up the affairs of the Company. The Members (and their successors in interest) shall continue to share in allocations of income and loss and distributions during the period of winding up in the same manner as before the dissolution. The Liquidator shall have reasonable discretion to determine the time, manner and terms of any sale or sales of Company property pursuant to such winding up, having due regard to the activity and the condition of the Company and relevant market and financial and economic conditions, and consistent with his obligations to the Members. 7 6.4 Liquidating Distributions. After paying or providing for the payment of all debts and liabilities of the Company and all expenses of winding up, and subject to the right of the Liquidator to set up such reserves as it may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company, the proceeds of the liquidation, and any other remaining assets of the Company, shall be distributed to or for the benefit of the Members (and their successors in interest) in accordance with their respective Capital Accounts. No Member shall have any right to demand or receive property other than cash upon dissolution and winding up of the Company; provided, however, the Liquidator shall have the right and power to distribute assets in kind (whether to some or all of the persons entitled to such distributions), valued at the then estimated fair market value of such assets, as a liquidating distribution to the Members (and their successors in interest). 6.5 Termination. Within a reasonable time following the completion of the winding up of the Company, the Liquidator shall supply to each Member a statement which shall set forth the assets and the liabilities of the Company as of the date of complete winding up and each Member's portion of the distributions pursuant to this Agreement. Upon completion of the winding up of the Company and the distribution of all Company assets, the Company shall terminate, and the Liquidator shall execute and file a certificate of cancellation of the Company with the Secretary of State of Delaware, and shall take all other action necessary to effectuate the dissolution and termination of the Company. ARTICLE 7. GENERAL AND ADMINISTRATIVE PROVISIONS 7.1 Principal Office. The principal office of the Company shall be at such location or locations as may be determined by the Manager from time to time. 7.2 Indemnification. To the fullest extent permitted by law, the Company shall indemnify and hold harmless, and may advance expenses to, any Member or Manager (collectively, the "Indemnitees"), from and against any and all claims and demands whatsoever arising out of the business and affairs of the Company; provided, however, that no indemnification may be made to or on behalf of any Indemnitee if a judgment or other final adjudication adverse to such Indemnitee establishes (a) that his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or (b) that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. The provision of this section shall continue to afford protection to each Indemnitee regardless of whether such Indemnitee remains a Member, Manager, employee or agent of the Company. 7.3 Fiscal Year. Unless otherwise determined by the Manager, the fiscal year of the Company shall end on the thirty-first of December. 7.4 Books and Records. At all times during the term of the Company, the Manager shall keep, or cause to be kept at the Company's principal office, the books and records of the Company. 8 7.5 Reports. As soon as practicable following the end of each fiscal year, the Company shall provide each Member a financial report of the results of operations, including audited or unaudited financial statements, as determined by the Manager. 7.6 Notices. Any notice to be given under this Agreement may be given either personally or by mail, telephone, telegraph, teletype, telecopy or other form of wire or wireless communication, or by overnight courier. If mailed, notice shall be deemed to be effective three (3) days after deposited in registered or certified mail with postage thereon prepaid addressed if to a Member at its address as it appears on the signature page to this Agreement (or at such other address for any party as such party shall notify the other parties), and if to the Company at its principal office. If given in any other manner, such notice shall be deemed to be effective (i) when given personally, (ii) when given by telephone, teletype, telecopy or other form of wire or wireless communication (if followed by a copy delivered by registered or certified mail) or (iii) one (1) day after given to an overnight courier to be delivered. 7.7 Headings. The headings of the sections hereof are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 7.8 Gender; Number. Where the context so requires, the masculine gender shall be construed to include the female, a corporation, a trust or other entity, and the singular shall be construed to include the plural and the plural the singular. 7.9 Amendments. This Agreement may be modified or amended by unanimous written agreement of the Voting Members; provided, that, no amendment may modify the economic interest of a Member without such Member's consent. 7.10 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto. 7.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 9 IN WITNESS WHEREOF, the undersigned have affixed their signatures signifying their adoption of this Agreement: /s/ Walt Anderson ----------------------------------- Walt Anderson Address: 1313 North Market Street Wilmington, Delaware 19801 GOLD & APPEL TRANSFER, S.A. By: /s/ Walt Anderson -------------------------------- Walt Anderson, Attorney-In-Fact for Gold & Appel Transfer, S.A. Address: Omar Holdge Building Wickhams Cay Road Town Tortula, BVI 10 TABLE OF CONTENTS Page ARTICLE I PURPOSE AND POWERS.................................................1 1.1 Purpose...................................................1 1.2 Powers....................................................1 ARTICLE II MEMBERS AND INTERESTS..............................................2 2.1 Members; Voting Rights....................................2 2.2 Membership Interests......................................2 2.3 Meetings..................................................2 ARTICLE III MANAGEMENT OF THE COMPANY..........................................3 3.1 Managers..................................................3 3.2 Number, Term and Election.................................3 3.3 Officers..................................................3 3.4 Meetings..................................................3 3.5 Management Decisions......................................4 3.6 Management Compensation...................................4 ARTICLE IV FINANCIAL INTERESTS OF MEMBERS.....................................5 4.1 General...................................................5 4.2 Capital Contributions.....................................5 4.3 Capital Accounts..........................................5 4.4 Sharing Percentages; Allocations of Profits and Losses....6 4.5 Distributions.............................................6 ARTICLE V TRANSFERS AND THE ADMISSION OF ADDITIONAL MEMBERS..................6 5.1 Transfers Generally.......................................6 5.2 Effect of Transfers.......................................6 5.3 Admission of Members......................................7 ARTICLE VI TERM AND TERMINATION OF THE COMPANY................................7 6.1 Term of the Company.......................................7 i 6.2 Events of Dissolution.....................................7 6.3 Conclusion of Affairs.....................................8 6.4 Liquidating Distributions.................................8 6.5 Termination...............................................8 ARTICLE VII GENERAL AND ADMINISTRATIVE PROVISIONS..............................8 7.1 Principal Office..........................................8 7.2 Indemnification...........................................9 7.3 Fiscal Year...............................................9 7.4 Books and Records.........................................9 7.5 Reports...................................................9 7.6 Notices...................................................9 7.7 Headings..................................................9 7.8 Gender; Number............................................9 7.9 Amendments................................................9 7.10 Entire Agreement.........................................10 7.11 Counterparts.............................................10 ii EX-7.3 4 JOINT FILING AGREEMENT JOINT FILING AGREEMENT In accordance with Rule 13d-1(f) promulgated under the Securities Exchange Act of 1934, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the shares of common stock, par value $.05 per share, of Total-Tel USA Communications, Inc., and further agree that this Joint Filing Agreement be included as an Exhibit thereto. In addition, each of Revision LLC and Walt Anderson, expressly authorizes the other to file on its behalf any and all amendments to such statement. Date: June 10, 1998 REVISION LLC By: /s/ Walt Anderson -------------------------------- Walt Anderson, Manager GOLD & APPEL TRANSFER, S.A. By: /s/ Walt Anderson -------------------------------- Walt Anderson, Attorney-In-Fact for Gold & Appel Transfer, S.A. /s/ Walt Anderson ----------------------------------- WALT ANDERSON -----END PRIVACY-ENHANCED MESSAGE-----