<PAGE> 1
As filed with the Securities and Exchange Commission on October 17, 1997
Registration No. 333-35377
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
------------------------
EXCEL COMMUNICATIONS, INC.
(FORMERLY NAMED NEW RES, INC.)
(Exact name of Registrant as specified in its charter)
DELAWARE 75-2720091
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8750 NORTH CENTRAL EXPRESSWAY, SUITE 2000
DALLAS, TEXAS 75231
(Address, including zip code, of principal executive offices)
------------------------
EXCELCOM, INC. 1995 STOCK OPTION PLAN
EXCELCOM, INC. 1997 DIRECTOR STOCK OPTION PLAN
EXCELCOM, INC. DIRECTOR STOCK OPTION AGREEMENT WITH RONALD A. MCDOUGALL
TELCO COMMUNICATIONS GROUP, INC. AMENDED AND RESTATED 1994 STOCK OPTION PLAN
(Full title of the plans or agreements)
------------------------
J. CHRISTOPHER DANCE, ESQUIRE
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
EXCEL COMMUNICATIONS, INC.
8750 NORTH CENTRAL EXPRESSWAY, SUITE 2000
DALLAS, TEXAS 75231
(Name and address of agent for service)
(214) 863-8000
(Telephone number, including area code, of agent for service)
------------------------
*This Post-Effective Amendment No. 1 covers 9,224,063 shares of the
Registrant's common stock, par value $.001 per share (the "Common Stock"), of
which 8,755,524 shares were originally registered on the Registration Statement
on Form S-4 (the "Form S-4 Registration Statement") to which this is an
amendment and the remaining 468,539 shares are being registered hereby. Of the
8,755,524 shares originally registered on the Form S-4 Registration Statement,
4,252,210 shares are issuable under the Excelcom, Inc. 1995 Stock Option Plan,
the Excelcom, Inc. 1997 Director Stock Option Plan, and the Director Stock
Option Agreement between Excelcom, Inc. and Ronald A. McDougall (collectively,
the "Excelcom Plans"), and 4,503,314 shares are issuable under the Telco
Communications Group, Inc. Amended and Restated 1994 Stock Option Plan (the
"Telco Plan"). Of the 468,539 additional shares being registered hereby,
60,247 shares are issuable under the Excelcom Plans and 408,292 shares are
issuable under the Telco Plan. See "Explanatory Note." The registration fee
in respect of the 8,755,524 shares of Common Stock originally registered on the
Form S-4 Registration Statement was paid at the time of the original filing of
the Form S-4 Registration Statement and the registration fee in respect of the
additional 468,539 shares being registered hereby is being paid herewith.
<PAGE> 2
CALCULATION OF REGISTRATION FEE FOR ADDITIONAL SHARES
<TABLE>
<CAPTION>
====================================================================================================================================
Additional
Title of securities to be Amount to be Proposed maximum offering Proposed maximum aggregate Amount of registration
registered registered(1) price per share offering price(2) fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 468,539 $23.00 $12,504,135 $3,790
$.001 per share . . . . . shares
====================================================================================================================================
</TABLE>
(1) Consists of an aggregate of 60,247 additional shares of Common Stock
issuable pursuant to the Excelcom Plans and 408,292 additional shares
of Common Stock issuable pursuant to the Telco Plan.
(2) Estimated pursuant to Rules 457(c) and (h) solely for purposes of
computing the registration fee. The calculation of the proposed
maximum aggregate offering price is based upon the average of the high
and low sales prices per share of the Common Stock reported on The New
York Stock Exchange on October 15, 1997 for all additional shares
being registered.
================================================================================
<PAGE> 3
EXPLANATORY NOTE
The Registrant hereunder, EXCEL Communications, Inc., a Delaware
corporation formerly named New RES, Inc. (the "Company"), was organized for
the purpose of becoming the holding company for Excelcom, Inc., a Delaware
corporation formerly named EXCEL Communications, Inc. ("Excelcom"), and Telco
Communications Group, Inc., a Virginia corporation ("Telco"), pursuant to the
mergers of two wholly owned subsidiaries (the "Merger Subsidiaries") of the
Company into Excelcom and Telco (the "Mergers"), which Mergers were consummated
on October 14, 1997 (the "Effective Time"). At the Effective Time and as a
result of the Mergers, all options to acquire shares of the common stock of
Excelcom under the Excelcom Plans, and all options to acquire shares of common
stock of Telco under the Telco Plan, respectively, were converted into options
to acquire shares of Common Stock of the Company in accordance with the terms
and conditions of the Agreement and Plan of Merger dated as of June 5, 1997,
among the Company, Excelcom, Telco and the Merger Subsidiaries (the "Merger
Agreement").
Accordingly, the Company hereby amends its Registration Statement on
Form S-4 (No. 333-35377), which has been declared effective, by filing this
Post-Effective Amendment No. 1 on Form S-8 relating to an aggregate of
9,224,063 shares of Common Stock issuable upon the exercise of options granted
under the Excelcom Plans and the Telco Plan (collectively, the "Plans").
<PAGE> 4
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information concerning the
Plans required by Item 1 of Form S-8 and the statement of availability of
registrant information and information relating to the Plans and other
information required by Item 2 of Form S-8 have previously been, or will be,
sent or given to the employees and/or directors of the Registrant and its
subsidiaries, as applicable, as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. The Registrant will maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
Registrant will furnish to the Commission or its staff a copy or copies of any
or all of the documents included in such file.
I-1
<PAGE> 5
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which the Company has previously filed with
the Commission pursuant to the Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated in this Registration
Statement by reference and shall be deemed to be a part hereof:
(a) The description of the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-A
(Commission File No. 001-13433), as filed with the Commission
pursuant to the Exchange Act on September 30, 1997, as amended
by Amendment No. 1 thereto filed with the Commission on
October 3, 1997, and as may be further amended, modified or
superseded by any report or amendment filed with the
Commission for the purpose of updating such description; and
(b) The Registration Statement (Registration No. 333-35377) on
Form S-4 of the Company, as amended, first filed with the
Commission on September 11, 1997 pursuant to the Securities
Act, including the Joint Proxy Statement/Prospectus dated
September 15, 1997 included therein.
The following documents, which Excelcom (File No. 001-14322) has
previously filed with the Commission under the Exchange Act, are incorporated
in this Registration Statement by reference and shall be deemed a part hereof:
(a) Excelcom's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) Excelcom's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(c) Excelcom's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997; and
(d) Excelcom's Current Reports on Form 8-K dated March 31, 1997,
June 5, 1997 and June 25, 1997.
II-1
<PAGE> 6
The following documents, which Telco (File No. 0-28668) has previously
filed with the Commission under the Exchange Act, are incorporated in this
Registration Statement by reference and shall be deemed a part hereof:
(a) Telco's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, as amended by Form 10- K/A, dated September
11, 1997;
(b) Telco's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997;
(c) Telco's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997; and
(d) Telco's Current Reports on Form 8-K dated March 11, 1997,
March 18, 1997, April 15, 1997, June 5, 1997 and June 24,
1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities
offered hereby have been sold or that deregisters all securities then remaining
unsold, shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, in any subsequently filed
amendment to this Registration Statement, or in any document that also is
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-2
<PAGE> 7
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits a corporation to indemnify any of its directors or officers who was or
is a party, or is threatened to be made a party to any third party proceeding
by reason of the fact that such person is or was a director or officer of the
corporation, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reason to believe that such person's conduct was
unlawful. In a derivative action, i.e., one by or in the right of the
corporation, the corporation is permitted to indemnify directors and officers
against expenses (including attorneys' fees) actually and reasonably incurred
by them in connection with the defense or settlement of an action or suit if
they acted in good faith and in a manner that they reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
directors or officers are fairly and reasonably entitled to indemnity for such
expenses despite such adjudication of liability.
Article 7 of the Amended and Restated Certificate of Incorporation of
the Company makes mandatory the indemnification expressly authorized under the
DGCL and permits the Company to enter into agreements with any director or
officer for the purpose of providing for such indemnification.
Pursuant to Section 7.7 of the Merger Agreement, (a) for a period of
six years after the Effective Time, (i) the Company and Telco jointly and
severally shall indemnify the directors and officers of Telco who hold such
positions at any time during the period from the date of the Merger Agreement
through the Effective Time to the fullest extent to which Telco is permitted to
indemnify such officers and directors under the Telco charter, the Telco bylaws
and applicable law (including, without limitation, indemnification for actions
in the right of Telco) and (ii) the Company and Excelcom jointly and severally
shall indemnify the directors and officers of Excelcom who hold such positions
at any time during the period from the date of the Merger Agreement through the
Effective Time to the fullest extent to which Excelcom is permitted to
indemnify such officers and directors under the Excelcom charter, the Excelcom
bylaws and applicable law and (b) for a period of four years after the
Effective Time, the Company shall cause to be maintained in effect the current
policies of directors' and officers' liability insurance maintained by Telco
(provided that the Company may substitute therefor policies of at least the
same coverage and amounts and containing terms and conditions which are no less
advantageous) with respect to claims arising from facts or events which
occurred before the Effective Time.
The Company currently has in effect a directors and officers liability
insurance policy covering the directors and executive officers of the Company,
Excelcom and Telco.
II-3
<PAGE> 8
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company, as amended.
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-4, as amended (Commission File No. 333-35377)).
4.3* Specimen certificate for the Company's Common Stock.
4.4 Excelcom, Inc. 1995 Stock Option Plan, as amended by Amendments Nos. 1 and 2 (incorporated
by reference to Exhibit 4.4 to Excelcom's Registration Statement on Form S-8 (Commission
File No. 333-20061)).
4.5 Excelcom, Inc. 1997 Director Stock Option Plan (incorporated by reference to Exhibit 4.5 to
Excelcom's Registration Statement on Form S-8 (Commission File No. 333-20061)).
4.6 Director Stock Option Agreement between Excelcom, Inc. and Ronald A. McDougall dated August
26, 1996 (incorporated by reference to Exhibit 4.6 to Excelcom's Registration Statement on
Form S-8 (Commission File No. 333-20061)).
4.7 Telco Communications Group, Inc. Amended and Restated 1994 Stock Option Plan (incorporated
by reference to Exhibit 10.22 to Telco Communications Group, Inc. Registration Statement on
Form S-1 (Commission File No. 333-05857)).
5.1 Opinion of Weil, Gotshal & Manges LLP regarding the validity of the securities being
registered (incorporated by reference to Exhibit 5.1 to the Company's Registration
Statement on Form S-4, as amended (Commission File No. 333-35377)).
23.1 Consent of Weil, Gotshal & Manges LLP (incorporated by reference to the consent included in
the opinion filed as Exhibit 5.1 to the Company's Registration Statement on Form S-4, as
amended (Commission File No. 333-35377)).
23.2* Consent of Arthur Andersen LLP, independent public accountants of Excelcom.
23.3* Consent of Deloitte & Touche LLP, independent public accountants of Telco.
24.1 Powers of Attorney (included on the signature page of this Registration Statement).
</TABLE>
- -------------------------
*Filed herewith.
II-4
<PAGE> 9
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement (notwithstanding the foregoing, any
increase or decrease in the volume of the securities offered
(if the total dollar value of the securities offered would not
exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in this Registration Statement);
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change in the
information set forth in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post- effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section
II-5
<PAGE> 10
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Amendment
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on October
17, 1997.
EXCEL COMMUNICATIONS, INC.
By: /s/ JOHN J. MCLAINE
-------------------------------
John J. McLaine
President and Chief Operating
Officer
The undersigned directors and executive officers of EXCEL
Communications, Inc. each hereby constitutes and appoints Kenny A. Troutt and
John J. McLaine, and each of them, with full power to act without the other and
with full power of substitution, the undersigned's true and lawful
attorneys-in-fact with full power to execute in the undersigned's name and
behalf in the capacities indicated below any and all amendments (including
post-effective amendments and amendments thereto) to this Registration
Statement and any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) of the Securities Act, and to
file the same, with all exhibits thereto and other documents in connection with
the Commission, and hereby ratifies and confirms all that such
attorneys-in-fact, or either of them, or their substitutes, shall lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C> <C>
/s/ KENNY A. TROUTT Chairman of the Board, Chief October 17, 1997
- --------------------------------------------- Executive Officer, and Director
Kenny A. Troutt (Principal Executive Officer)
/s/ JOHN J. McLAINE President, Chief Operating October 17, 1997
- --------------------------------------------- Officer and Director
John J. McLaine
/s/ CRAIG E. HOLMES Vice President and Chief October 17, 1997
- --------------------------------------------- Accounting Officer (Principal
Craig E. Holmes Accounting Officer)
/s/ NICHOLAS A. MERRICK Executive Vice President and October 17, 1997
- --------------------------------------------- Chief Financial Officer
Nicholas A. Merrick (Principal Financial Officer)
Executive Vice President of October , 1997
- --------------------------------------------- Marketing and Director
Stephen R. Smith
/s/ DONALD A. BURNS Executive Vice President and October 17, 1997
- --------------------------------------------- Director
Donald A. Burns
/s/ HENRY G. LUKEN, III Executive Vice President and October 17, 1997
- --------------------------------------------- Director
Henry G. Luken, III
/s/ RONALD A. McDOUGALL Director October 17, 1997
- ---------------------------------------------
Ronald A. McDougall
/s/ T. ALLAN McARTOR Director October 17, 1997
- ---------------------------------------------
T. Allan McArtor
</TABLE>
II-7
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company, as amended.
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-4, as amended (Commission File No. 333-35377)).
4.3* Specimen certificate for the Company's Common Stock.
4.4 Excelcom, Inc. 1995 Stock Option Plan, as amended by Amendments Nos. 1 and 2 (incorporated
by reference to Exhibit 4.4 to Excelcom's Registration Statement on Form S-8 (Commission
File No. 333-20061)).
4.5 Excelcom, Inc. 1997 Director Stock Option Plan (incorporated by reference to Exhibit 4.5 to
Excelcom's Registration Statement on Form S-8 (Commission File No. 333-20061)).
4.6 Director Stock Option Agreement between Excelcom, Inc. and Ronald A. McDougall dated August
26, 1996 (incorporated by reference to Exhibit 4.6 to Excelcom's Registration Statement on
Form S-8 (Commission File No. 333-20061)).
4.7 Telco Communications Group, Inc. Amended and Restated 1994 Stock Option Plan (incorporated
by reference to Exhibit 10.22 to Telco Communications Group, Inc. Registration Statement on
Form S-1 (Commission File No. 333-05857)).
5.1 Opinion of Weil, Gotshal & Manges LLP regarding the validity of the securities being
registered (incorporated by reference to Exhibit 5.1 to the Company's Registration
Statement on Form S-4, as amended (Commission File No. 333-35377)).
23.1 Consent of Weil, Gotshal & Manges LLP (incorporated by reference to the consent included in
the opinion filed as Exhibit 5.1 to the Company's Registration Statement on Form S-4, as
amended (Commission File No. 333-35377)).
23.2* Consent of Arthur Andersen LLP, independent public accountants of Excelcom.
23.3* Consent of Deloitte & Touche LLP, independent public accountants of Telco.
24.1 Powers of Attorney (included on the signature page of this Registration Statement).
</TABLE>
- -----------------------
*Filed herewith.
<PAGE> 1
EXHIBIT 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW RES, INC.
This Amended and Restated Certificate of Incorporation of New
RES, Inc., a corporation incorporated under the General Corporation Law of the
State of Delaware (the "Corporation") on May 30, 1997, has been duly adopted
and executed in accordance with the provisions of Sections 103, 242 and 245 of
the General Corporation Law of the State of Delaware. The undersigned, being an
authorized officer of the Corporation, hereby certifies that:
FIRST: The name of the Corporation is New RES, Inc.
SECOND: The address of the registered office of the
Corporation in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, State of Delaware 19801. The name of the registered agent of the
Corporation in the State of Delaware at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware, as from time to time amended.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 510,000,000 shares of capital
stock, classified as (i) 10,000,000 shares of preferred stock, par value $0.001
per share ("Preferred Stock"), and (ii) 500,000,000 shares of common stock, par
value $0.001 per share ("Common Stock").
1. Provisions Relating to Preferred Stock.
Shares of Preferred Stock may be issued from time to time in
one or more series, the shares of each series to
<PAGE> 2
have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, as
shall be stated and expressed in a resolution or resolutions providing for the
issue of such series adopted by the Board of Directors of the Corporation. The
Board of Directors of the Corporation is hereby expressly authorized to
establish and designate series of Preferred Stock, to fix the number of shares
constituting each series, and to fix the designations and the powers, rights,
preferences, and relative, participating, optional or other special rights and
qualifications, limitations and restrictions of the shares of each series and
the variations of the relative designations, powers, rights, preferences and
relative, participating, optional or other special rights and qualifications,
limitations, and restrictions as between series, and to increase (but not above
the total number of authorized shares of such class) and to decrease (but not
below the number of shares thereof then outstanding) the number of shares
constituting each series.
2. Provisions Relating to Common Stock
(a) Each share of Common Stock of the Corporation shall
have identical rights and privileges in every respect. The holders of shares of
Common Stock shall be entitled to vote upon all matters submitted to a vote of
the stockholders of the Corporation and shall be entitled to one vote for each
share of Common Stock held.
(b) Subject to the prior rights and preferences, if any,
applicable to shares of Preferred Stock or any series thereof, the holders of
shares of Common Stock shall be entitled to receive such dividends (payable in
cash, stock or otherwise) as may be declared thereon by the Board of Directors
at any time and from time to time out of any funds of the Corporation legally
available therefor.
(c) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after distribution
in full of the preferential amounts, if any, to be distributed to the holders
of shares of Preferred Stock or any series thereof, the holders of shares of
Common Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its stockholders, ratably in
proportion to the number of shares
2
<PAGE> 3
of Common Stock held by them. A liquidation, dissolution or winding-up of the
Corporation, as such terms are used in this Paragraph (c), shall not be deemed
to be occasioned by or to include any consolidation or merger of the
Corporation with or into any other corporation or corporations or other entity
or a sale, lease, exchange or conveyance of all or a part of the assets of the
Corporation.
FIFTH: In furtherance and not in limitation of the powers
conferred by law, subject to any limitations contained elsewhere in this
Amended and Restated Certificate of Incorporation, bylaws of the Corporation
may be adopted, amended or repealed by a majority of the Board of Directors of
the Corporation, but any bylaws adopted by the Board of Directors may be
amended or repealed by the stockholders entitled to vote thereon. Election of
directors need not be by written ballot.
SIXTH: (a) A director of the Corporation shall not be
personally liable either to the Corporation or to any stockholder for monetary
damages for breach of fiduciary duty as a director, except (i) for any breach
of the director's duty of loyalty to the Corporation or its stockholders, or
(ii) for acts or omissions which are not in good faith or which involve
intentional misconduct or knowing violation of the law, or (iii) for any matter
in respect of which such director shall be liable under Section 174 of Title 8
of General Corporation Law of the State of Delaware or any amendment thereto or
successor provision thereto, or (iv) for any transaction from which the
director shall have derived an improper personal benefit. Neither amendment nor
repeal of this paragraph (a), nor the adoption of any provision of this Amended
and Restated Certificate of Incorporation inconsistent with this paragraph (a)
shall eliminate or reduce the effect of this paragraph (a) in respect of any
matter occurring, or any cause of action, suit or claim that, but for
this paragraph (a), would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
(b) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to, or testifies in, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, by reason of the
3
<PAGE> 4
fact that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding to the full extent permitted by law, and the Corporation may
adopt bylaws or enter into agreements with any such person for the purpose of
providing for such indemnification.
(c) To the extent that a director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (b) of this Article, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Expenses incurred by an officer, director, employee or agent in
defending or testifying in a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified by the Corporation against such expense as authorized by this
Article, and the Corporation may adopt bylaws or enter into agreements with
such persons for the purpose of providing for such advances.
IN WITNESS WHEREOF, the undersigned has duly executed this Amended and
Restated Certificate of Incorporation on this 9th day of October, 1997.
New RES, Inc.
By: /s/ JOHN J. MCLAINE
-----------------------------
Name: John J. McLaine
Title: Executive Vice
President and Secretary
4
<PAGE> 5
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW RES, INC.
New RES, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), does hereby certify as follows:
1. The name of the Corporation is New RES, Inc. and the original
Certificate of Incorporation of the Corporation was filed with the office of
the Secretary of State of the State of Delaware on May 30, 1997.
2. This Certificate of Amendment to the Corporation's Amended and
Restated Certificate of Incorporation has been duly adopted and executed in
accordance with the provisions of Sections 103 and 242 of the General
Corporation Law of the State of Delaware (the "DGCL").
3. The text of paragraph First of the Corporation's Amended and
Restated Certificate of Incorporation is hereby amended and restated in its
entirety to read as follows:
First: The name of the Corporation (hereinafter referred to as
the "Corporation") is
EXCEL Communications, Inc.
4. The holders of all of the shares of the common stock, par value
$0.001 per share, of the Corporation which are outstanding and entitled to vote
on the amendment set forth above have signed a Unanimous Written Consent
pursuant to Section 228 of the DGCL adopting such amendment.
<PAGE> 6
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by a duly authorized officer this 14th day of October,
1997.
NEW RES, INC.
By: /s/ JOHN J. MCLAINE
--------------------------
Name: John J. McLaine
Title: President and
Chief Operating
Officer
2
<PAGE> 1
EXHIBIT 4.3
INCORPORATED UNDER THE COMMON STOCK
LAWS OF THE STATE OF DELAWARE PAR VALUE $0.001
NUMBER SHARES
C
THIS CERTIFICATE IS TRANSFERABLE CUSIP 30065K 10 4
IN BOSTON, MA SEE REVERSE FOR CERTAIN DEFINITIONS
OR NEW YORK, NY
EXCEL COMMUNICATIONS, INC.(R)
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
Excel Communications, Inc. transferable on the books of the Corporation by the
holder hereof in person or by a duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
In Witness Whereof, the Corporation has caused this certificate to be
signed by its duly authorized officers and a facsimile of its Seal to be
hereunto affixed.
Dated:
/s/ KENNY A. TROUTT
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER Countersigned and Registered:
BANKBOSTON, N.A.
Transfer Agent
and Registrar
By
/s/
Authorized Signature
/s/ CHRIS DANCE
EXECUTIVE VICE PRESIDENT,
SECRETARY AND GENERAL COUNSEL
[EXCEL LOGO] [SEAL]
<PAGE> 2
[EXCEL COMMUNICATIONS, INC.(R) LOGO]
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. SUCH REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE
CORPORATION OR TO THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the ------ --------
entireties (Cust) (Minor)
JT TEN - as joint tenants with under Uniform Gifts to
right of survivorship Minors Act
and not as tenants -----------------------
in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, hereby sell, assign and transfer unto
--------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
----------------------------------------------------------------------------
----------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Shares
----------------------------------------------------------------------
of the stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
Attorney
--------------------------------------------------------------------
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated
-------------------------
x
NOTICE: ----------------------------
THE SIGNATURE(S) TO THIS ASSIGNMENT (SIGNATURE)
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE x
CERTIFICATE IN EVERY PARTICULAR ----------------------------
WITHOUT ALTERATION OR ENLARGEMENT (SIGNATURE)
OR ANY CHANGE WHATEVER.
----------------------------
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM) PURSUANT
TO S.E.C. RULE 17Ad-15.
---------------------------
SIGNATURE(S) GUARANTEED BY:
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 Registration
Statement of EXCEL Communications, Inc. and the related prospectus deemed to be
included therein pertaining to the Excelcom, Inc. 1995 Stock Option Plan, as
amended, the Excelcom, Inc. 1997 Director Stock Option Plan, the Excelcom, Inc.
Director Stock Option Agreement with Ronald A. McDougall, and the Telco
Communications Group, Inc. Amended and Restated 1994 Stock Option Plan and to
the incorporation by reference therein of our report dated January 24, 1997
with respect to the consolidated financial statements of Excelcom, Inc.
(formerly known as EXCEL Communications, Inc.) (the "Company") included in
Company's Annual Report on Form 10-K for the year ended December 31, 1996.
ARTHUR ANDERSEN LLP
Dallas, Texas
October 16, 1997
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration No. 333-35377 of EXCEL Communications, Inc. of
our report dated February 7, 1997 (related to the financial statements of Telco
Communications Group, Inc.), appearing in the annual report on Form 10-K of
Telco Communications Group, Inc. for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
Richmond, Virginia
October 17, 1997
