-----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, DDymfkCfWYbGWP6E9YuqgyPiP6m8Fck520bPmmNJvJRd41yuT68/jxh61BuzXfti uPhwiOq6FaxmsuvppRrW6A== 0000950150-97-001869.txt : 19971224 0000950150-97-001869.hdr.sgml : 19971224 ACCESSION NUMBER: 0000950150-97-001869 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19971203 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19971223 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SMARTALK TELESERVICES INC CENTRAL INDEX KEY: 0001018730 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 954502740 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-21579 FILM NUMBER: 97742755 BUSINESS ADDRESS: STREET 1: 1640 S. SEPULVEDA BLVD STREET 2: SUITE 500 CITY: LOS ANGELES STATE: CA ZIP: 90025 BUSINESS PHONE: 3104448800 MAIL ADDRESS: STREET 1: 1640 S. SEPULVEDA BLVD STREET 2: SUITE 500 CITY: LOS ANGELES STATE: CA ZIP: 90025 8-K 1 FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 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): December 3, 1997 SmarTalk TeleServices, Inc. (Exact name of Registrant as specified in its charter) California (State or jurisdiction of incorporation) 0-21579 95-4502740 (Commission File Number) (IRS Employer Identification No.) 1640 South Sepulveda Boulevard, Suite 500, Los Angeles, CA 90025 (Address of principal executive offices) (Zip Code) (310) 444-8800 (Registrant's Telephone Number) 2 ITEM 5. OTHER EVENTS SmarTalk TeleServices, Inc., a California corporation ("SmarTalk"), is party to an Agreement and Plan of Reorganization and Merger by and among SmarTalk, SMTK Acquisition Corp. II, a Delaware corporation and ConQuest Telecommunication Services Corp., a Delaware corporation ("ConQuest"), dated as of July 30, 1997 (the "Merger Agreement"). In order to provide for a more orderly transition, SmarTalk and ConQuest executed an Interim Operating Agreement effective as of December 3, 1997 (the "Operating Agreement"). Pursuant to the Operating Agreement, operational control of ConQuest passed to SmarTalk as of December 3, 1997. Among other provisions contained in the Operating Agreement, SmarTalk and ConQuest agreed to waive certain conditions contained in the Merger Agreement and agreed to a new composition of the ConQuest Board of Directors. On December 9, 1997, SmarTalk closed the previously announced acquisition of selected assets of the prepaid phone card business of Frontier Corporation, a New York corporation. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) EXHIBITS 99.1 Interim Operating Agreement by and between SmarTalk TeleServices, Inc. and ConQuest Telecommunication Services Corp., effective as of December 3, 1997. 3 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 thereunto duly authorized. SMARTALK TELESERVICES, INC. (Registrant) By /s/ ERICH L. SPANGENBERG -------------------------------- Erich L. Spangenberg Vice Chairman of the Board and Chief Operating Officer Date: December 23, 1997 4 EXHIBIT INDEX
Number Subject Matter - ------ -------------- 99.1 Interim Operating Agreement by and between SmarTalk TeleServices, Inc. and ConQuest Telecommunication Services Corp., effective as of December 3, 1997.
EX-99.1 2 INTERIM OPERATING AGREEMENT DATED 12/03/97 1 Exhibit 99.1 INTERIM OPERATING AGREEMENT This Interim Operating Agreement (the "Agreement"), effective as of December 3, 1997 (the "Interim Operations Date"), is made by and between SmarTalk TeleServices, Inc. ("SmarTalk") and ConQuest Telecommunication Services Corp. ("ConQuest"). WHEREAS, SmarTalk, SMTK Acquisition Corp. II ("SMTK Sub") and ConQuest are parties to that certain Agreement and Plan of Reorganization and Merger, dated as of July 30, 1997 ("Merger Agreement"), pursuant to which, among other things, SMTK Sub will be merged (the "Merger") with and into ConQuest, with ConQuest thereafter becoming a wholly-owned subsidiary of SmarTalk; WHEREAS, SmarTalk and ConQuest each has scheduled a meeting of its stockholders on December 31, 1997 for the purpose of approving the Merger, immediately following which the Merger will become effective under Delaware law (the "Effective Time"); and WHEREAS, in order to provide for a more orderly transition, the parties hereto wish to enter into this Agreement, pursuant to which, among other things, operational control of ConQuest will immediately pass to SmarTalk notwithstanding that the legal consummation of the Merger and the physical exchange of the Merger consideration will not occur until the Effective Time; NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, the parties hereto agree as follows: Section 1. Waiver of Certain Conditions to the Merger. (a) SmarTalk hereby irrevocably waives (i) all of the conditions to the Closing (as defined in the Merger Agreement) set forth in Article 7 of the Merger Agreement, (ii) any right to terminate the Merger Agreement pursuant to Sections 10.2 and 10.4 of the Merger Agreement, (iii) any claims, actions, defenses or rights, known or unknown, existing or future, which it may have to rescind the foregoing waiver or to otherwise terminate, fail to close under or rescind the Merger Agreement and (iv) all of the deliveries contemplated by Section 9.1 of the Merger Agreement. (b) ConQuest hereby irrevocably waives (i) all of the conditions to the Closing set forth in Article 8 of the Merger Agreement, other than the conditions set forth in Sections 8.3(a), 8.6 and 8.9 of the Merger Agreement, (ii) any right to terminate the Merger Agreement pursuant to Sections 10.2, 10.3(d) and 10.3(e) of the Merger Agreement, (iii) any claims, actions, defenses or rights, known or unknown, existing or future, which it may have to rescind the foregoing waiver or to otherwise terminate, fail to close under or rescind the Merger Agreement (except for those rights to terminate the Merger Agreement contained in Sections 10.3(a), (b) and (c) of the Merger Agreement) and (iv) all of the deliveries contemplated by Section 9.2 of the Merger Agreement (except that at the Closing, SmarTalk shall deliver to ConQuest a certificate, dated the date of the Closing and signed by the President or a Vice President in his corporate capacity, stating that each of the conditions set forth in Sections 8.3(a), 8.6 and 8.9 of the Merger Agreement has been satisfied). 2 Section 2. Profits and Losses; Expenses. (a) Effective as of the Interim Operations Date, all revenues, income, earnings or profits (collectively, "Income") shall inure to the benefit of SmarTalk, which at its option, may require ConQuest to pay over to SmarTalk or its designee, the amount of such Income. (b) Effective as of the Interim Operations Date, all costs, expenses, losses and liabilities of ConQuest (collectively, "Expenses") shall be assumed and guaranteed by SmarTalk. Section 3. Closing Date. The parties hereby agree that, subject to the provisions of Section 1(b) hereof, the Closing Date (as defined in the Merger Agreement) shall be December 31, 1997 and further agree to use all reasonable efforts to ensure that the Effective Time (as defined in the Merger Agreement) shall be December 31, 1997, including promptly executing and filing with the Secretary of State of the State of Delaware a certificate of merger. Section 4. Board of Directors. Immediately upon execution of this Agreement, ConQuest shall cause its board of directors to be comprised of six directors: Robert H. Lorsch ("Lorsch"), Erich L. Spangenberg ("Spangenberg"), David A. Hamburger (together with Lorsch and Spangenberg, the "SmarTalk Directors"), James A. Sobwick ("Sobwick"), Peter Halliday ("Halliday") and D. Mark Thomas ("Thomas"). In the event of a tie vote, the deadlock shall be broken in a manner determined by a majority of the Continuing Directors (as defined below) then in office. In the event that any or all of Sobwick, Halliday or Thomas shall cease to be a member of the board of directors, the SmarTalk Directors shall take all actions to elect the following persons (in the order in which listed) to fill the vacancy or vacancies so created: (1) Harold Erbs, (2) Patrick Hart and (3) Dennis Geraghty (the "Alternate Designees"). In the event that Robert H. Lorsch, Erich L. Spangenberg and David A. Hamburger cease to be directors of ConQuest, at the election of the Continuing Directors, this Agreement shall cease to be of any further force or effect, except for the provisions of Section 1 hereof, which shall survive termination. Section 5. Merger Agreement. The Merger Agreement may not be amended without the unanimous agreement of the Continuing Directors then in office. As used in this Agreement, "Continuing Directors" means, to the extent then in office, Sobwick, Halliday, Thomas and any Alternate Designee, or another director who is subsequently elected to the board of directors and designated as a Continuing Director by a majority of the Continuing Directors then in office, or, if there shall be no Continuing Director then in office, by the holders of a majority of the outstanding common stock of ConQuest. Section 6. Continuing Effect. Except as expressly provided for herein, the provision of the Merger Agreement, including without limitation the provisions of Article 6 thereof, shall remain in full force and effect. IN WITNESS WHEREOF, SmarTalk and ConQuest have caused this Agreement to be executed by their duly authorized officers, respectively, on December 15, 1997 but effective as of the Interim Operating date. SMARTALK TELESERVICES, INC. By /s/ Erich L. Spangenberg ----------------------------------- Title Vice Chairman of the Board and Chief Operating Officer -------------------------------- CONQUEST TELECOMMUNICATION By /s/ James E. Sobwick ----------------------------------- Title President and Chief Executive Officer -------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----