Registration Statement No. 33 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM - S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOTAL-TEL USA COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
New Jersey 22-1656895
(State or other jurisdictions of (IRS Employer Identification No.)
incorporation or organization)
150 Clove Road, Little Falls, New Jersey 07424
(Address of Principal Executive Offices) (Zip Code)
1987 STOCK OPTION PLAN
Warren H. Feldman
President
Total-Tel USA Communications, Inc.
150 Clove Road
Little Falls, New Jersey 07424
(Name and address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service:
(201) 812-1100
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
Securities Amount to offering aggregate Amount of
to be be price offering registration
Registered(1) registered per share price fee
Common Stock,
par value
$.05 per 336,450
share shares $20.00(1) $6,729,000(1) $2,320.35
(1) Estimated only for the purpose of calculating the registration fee.
Such estimates have been computed in accordance with Rule 457 (c) and
are based upon the average of the closing bid and asked prices reported
on NASDAQ on November 1, 1995.
PROSPECTUS
336,450 Shares
TOTAL-TEL USA COMMUNICATIONS, INC.
COMMON STOCK
(Par Value $.05)
This Prospectus relates to an aggregate of 336,450 shares of
Common Stock, par value $.05 per share ( " Common Stock" ) of Total-Tel
USA Communications, Inc. (the " Company " ) issuable upon exercise of
options heretofore granted or which may hereafter be granted pursuant to
the Company's 1987 Stock Option Plan ( the " Plan " ). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings
set forth in the Plan. Proceeds from the sale of the shares of Common
Stock issued upon exercise of options shall be added to the general
funds of the Company and shall be available for general corporate
purposes.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make
any representation, other than those contained or incorporated by
reference in this Prospectus in connection with the offer contained in
this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sales of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. Neither delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that the information herein is correct as of any
time subsequent to the date hereof.
Shares purchased upon exercise of options may be sold from time to
time by the holders thereof in the over-the-counter market at prices
then prevailing.
The date of this Prospectus is November 28, 1995.
THE COMPANY
The issuer of the securities covered by this Prospectus is Total-
Tel USA Communications, Inc. (the " Company " ), a New Jersey
corporation organized on June 8, l959. The principal executive offices
of the Company are located at 150 Clove Road, Little Falls, New Jersey
07424 and its telephone number is (201) 812-1100.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the " Exchange Act " ) and in
accordance therewith files reports, and other information with the
Securities and Exchange Commission ( the " Commission " ). Reports,
proxy statements and other information filed by the Company can be
inspected and copied at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Commission's New York regional
office located at 75 Park Place, New York, New York 10007. Copies of
such material can also be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W. , Washington, D.C. 20549 at
prescribed rates.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of
1933, as amended, (the "Securities Act ") relating to the securities
offered hereby. This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby made to
the Registration Statement and to the exhibits relating thereto for
further information with respect to the Company and the securities
offered hereby. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and in each
instance reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In accordance with the requirements of the Exchange Act, certain
reports and other information are filed by the Company periodically with
the Commission. The following documents filed with the Commission are
incorporated in this Prospectus by reference: (1) the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1995 (File
No. 0-2180) filed pursuant to Section 13 (a) or 15 (d) of the Securities
Exchange Act of 1934; (2) the description of the Company's Common
Stock contained in the Company's Registration Statement on Form S-2
(File No. 2-15546); and (3) all other reports filed pursuant to
Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934.
All documents filed by the Company pursuant to Section 13, 14 or
15 (d) of the Securities Exchange Act of 1934 after the date hereof and
prior to the filing of a post-effective amendment which indicates that
all securities have been sold or which deregister all securities
remaining unsold shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such documents.
Any persons receiving a copy of this Prospectus may obtain without
charge, upon written or oral request, a copy (without exhibits) of any
of the documents incorporated by reference herein. Requests should be
directed to Warren H. Feldman, President of Total-Tel USA
Communications, Inc., 150 Clove Road, Little Falls, New Jersey 07424;
telephone number (201) 812-1100.
THE PLAN
General
The 1987 Stock Option Plan (the " Plan " ) was approved by the
Board of Directors on September 11, l987 and stockholders of the Company
on October 30, l987 and amended to increase the number of shares
authorized for issuance thereunder on September 29, 1994. The Plan
provides for the grant of both incentive stock options (ISO's) and non-
statutory stock options (NSO's). These options and certain Federal
income tax consequences associated therewith are described below. (See
" Federal Income Tax Consequences " ).
The Plan provides for the granting of ISO's to employees of the
Company, including officers and directors (employed by the Company) of
the Company or any subsidiary and NSO's to employees, directors and
consultants whose efforts contribute or may be expected to contribute
meaningfully to the Company's growth and success.
The aggregate number of shares of Common Stock which may be
granted under the Plan is 336,450*, subject to adjustment to reflect
stock splits, combinations, sub-divisions, recapitalizations,
reorganizations and certain other similar events. The Plan is not
qualified under Section 401 (a) of the Internal Revenue Code of 1986, as
amended (the " Code " ) and is not subject to the provisions of the
Employment Retirement Income Security Act of 1974 ( "ERISA " ).
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* Adjusted to reflect a 10% stock dividend distribution July 15, 1994.
At October 31, l995, options to purchase 317,450 shares were held
by nine persons, of which ISO's to purchase 135,405 shares were
exercisable at prices ranging from $3.98 to $17.00 per share and NSO's
to purchase 87,569 were exercisable at prices ranging from $2.05 to
$12.00 per share. Of such options, at said date, options to purchase
222,974 shares were then exercisable and the balance of such options
vest over various dates until January 12, l999.
Administration
The Plan is administered by the Board of Directors of the Company
(the "Board" ) or a Committee of the Board consisting of not less than
three members (the "Committee " ). The Board or Committee may select
the persons to whom options are to be granted, determine the number of
shares to be covered by an option, the time at which an option is to be
granted, the option period, the installments in which an option may be
exercised and shall establish such other provisions of the option
agreement consistent with the Plan as the Board of Directors or
Committee deems necessary or desirable.
Eligibility
ISO's may be granted only to employees of the company or a
subsidiary. No ISO shall be granted under the Plan to an employee who
at the time such option is granted owns, directly or indirectly, Common
Stock of the Company possessing more than 10% of the total combined
voting power of all classes of stock of the Company or its parent or any
subsidiary ( " 10% Stockholders " ) unless the option price is at least
110% of the fair market value of such stock on the date of grant and the
exercise period of such option shall not exceed five years from the date
of grant. NSO's may be granted to employees as well as directors
(subject to certain limitations set forth in the Plan) consultants and
independent contractors.
Maximum Allotment of Options
Under the Plan, there is no stated maximum number of shares which
may be optioned to any eligible person.
Option Price and Period; Exercise Provisions
The purchase price per share of Common Stock issuable upon
exercise of an option shall be determined by the Board or Committee;
provided, however, that (i) in the case of an ISO, the exercise price
shall not be less than 100% (or 110% with respect to an ISO granted to
10% Stockholder) of the fair market value of such stock on the day the
option is granted and (ii) in the case of an NSO, the exercise price
shall not be less than 50% of the fair market value of such stock on the
day the option is granted, in each instance as determined by the Board
or Committee.
For purposes of the foregoing, the fair market value of the Common
Stock on any date shall be, if such stock is listed on a national
securities exchange, the closing sale price of the stock on such
exchange or, if such stock is quoted in the National Market System of
the National Association of Securities Dealers, Inc., the closing sale
price of such Common Stock as reported by the National Association of
Securities Dealers Automated Quotation ( " NASDAQ " ) System, in each
case at the close of business on such date, or if such Common Stock is
not quoted on such date, then on the date on which such Common Stock was
quoted most immediately prior thereto or if such Common Stock is not
quoted on the NASDAQ System, the price determined in good faith by the
Board or the Committee.
Each option granted under the Plan shall be exercisable at such
time or times and during such period as shall be set forth in the
instrument evidencing such option; provided, however, that no option
granted under the Plan shall have a term in excess of 10 years ( 5 years
in the case of an ISO granted to a 10% Stockholder ) from the date of
grant. To the extent that an option to purchase shares is not exercised
by an optionee when it becomes initially exercisable, it shall not
expire but may be carried forward and be exercisable, on a cumulative
basis, until the expiration of the exercise period.
Options granted under the Plan may provide for the payment of the
exercise price by delivery of (i) cash or a check payable to the order
of the Company in an amount equal to the exercise price of such options,
(ii) shares of Common Stock of the Company owned by the optionee having
a fair market value equal in amount to the exercise price of the options
being exercised or (iii) any combination of (i) and (ii). The fair
market value of any shares of the Company's Common Stock which may be
delivered upon exercise of an option shall be determined by the Board or
the Committee.
The Company's obligation to deliver shares upon the exercise of
any NSO's granted under the Plan shall be subject to the optionee's
satisfaction of all applicable Federal, State and local income and
employment tax withholding requirements.
Nontransferability of Options
No option granted under the Plan shall be assignable or
transferable by the option holder, either voluntarily or by operation of
law, except by will or the laws of descent and distribution. During the
life of the recipient, the option shall be exercised only by the
grantee.
Effect of Termination of Employment or Death
If an optionee ceases to be employed by the Company or one of its
subsidiaries for any reason, including retirement but other than death,
any option granted to such optionee under the Plan shall immediately
terminate; provided, however, that any portion of such option which was
otherwise exercisable on the date of termination of the optionee's
employment may be exercised within thirty (30) days (or such other
period not exceeding three months as the Board may determine) following
the date on which the optionee ceased to be so employed, but in no event
after the expiration of the exercise period. Any such exercise may be
made only to the extent of the number of shares subject to the option
which were purchasable on the date of such termination of employment.
If the optionee dies during such period, the option shall be exercisable
by the optionee's personal representatives, heirs or legatees to the
same extent and during the same period that the optionee could have
exercised the option on the date of death. If an optionee dies while an
employee of the Company or any subsidiary of the Company, any option
granted to such optionee under the Plan shall be exercisable by the
optionee's personal representative, heirs or legatees for the purchase
of that number of shares and to the same extent that the optionee could
have exercised the option on the date of death. The option or any
unexercised portion thereof shall terminate unless so exercised prior to
the earlier of the expiration of three months ( or such other period not
exceeding twelve (12) months as the Board may determine) from the date
of such death, but in no event after the expiration of the exercise
period.
Amendment of the Plan
The Board may, at any time and from time to time, modify or amend
the Plan in any respect, except that without the approval of the
stockholders of the Company, the Board may not (a) materially increase
the benefits accruing to individuals who participate in the Plan, (b)
increase the number of shares which may be issued under the Plan
(except for permissible adjustments provided in the Plan) or (c)
modify the requirements as to eligibility for participation in the Plan.
The termination or any modification or amendment of the Plan shall not,
without the consent of an optionee, affect rights under an option
previously granted. With the consent of the optionee affected, the
Board may amend outstanding options agreements in a manner not
inconsistent with the Plan. The Board of Directors reserves the right
to amend or modify the terms and provisions of the Plan and of any
outstanding options under the Plan to the extent necessary to qualify
any or all options under the Plan for such favorable Federal income tax
treatment (including deferral of taxation upon exercise) as may be
afforded ISO's under Section 422 of the Internal Revenue Code.
Adjustments Upon Changes in Capitalization
Subject to any required action by stockholders of the Company, the
number of shares covered by each outstanding option and the number of
shares authorized for issuance under the Plan but as to which no option
have yet been issued or which have been returned to the Plan upon
cancellation of the option, as well as the price per share of Common
Stock covered by each outstanding option, shall be proportionally
adjusted for any change in the number of outstanding shares resulting
from a stock split, stock dividend or similar event.
Rights as a Stockholder
The holder of an option shall have no rights as a stockholder with
respect to any shares covered by an option until the issuance to said
person of a certificate for such stock. Except for adjustments provided
in the Plan for stock dividends, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date
such stock certificate is issued.
Federal Income Tax Consequences
Because tax results may vary due to individual circumstances, each
participant in the Plan is urged to consult his personal tax advisor
with respect to the tax consequences of the exercise of an option or the
sale of stock received upon the exercise thereof.
Non-Statutory Stock Options. The granting of a non-statutory
stock option does not produce taxable income to the recipient or a tax
deduction to the Company. Taxable ordinary income will be recognized by
the holder at the time of exercise in an amount equal to the excess of
the Fair Market Value of the shares purchased at the time of such
exercise over the aggregate option price. The Company will be entitled
to a corresponding Federal income tax deduction. Upon a subsequent
taxable disposition of the shares, the optionee will generally recognize
a taxable capital gain or loss based upon the difference between the per
share Fair Market Value at the time of exercise and the per share
selling price. The taxable income resulting from the exercise of an
option will constitute wages subject to the withholding of income tax
and the Company will be required to make whatever arrangements are
necessary to insure that funds equaling the amount of tax required to be
withheld are available for payment. The tax basis for the stock
acquired is the option price plus the taxable income recognized.
Incentive Stock Options. An optionee will not recognize any
taxable income at the time an ISO is granted or exercised and the
Company will not be entitled to a Federal income tax deduction at that
time. The excess of the fair market value of the shares at the time of
exercise over the aggregate option price will be an adjustment to
alternative minimum taxable income for purposes of the Federal
"alternative minimum tax" at the date of exercise. If the optionee
holds the shares acquired upon exercise of the ISO for two years after
the date the option was granted and one year after the acquisition of
such shares, the difference between the aggregate option price and
the amount realized upon disposition of the shares will constitute a
long-term capital gain or loss, as the case may be, and the Company will
not be entitled to a Federal income tax deduction. If the shares are
disposed of in a sale, exchange or other "disqualifying disposition"
within two years after the date of grant or within one year after date
of exercise, the optionee will realize taxable ordinary income in an
amount equal to the excess of the Fair Market Value of the shares at the
time of exercise over the aggregate option price. Under proposed tax
regulations, however, it would appear that where stock is subject to a
substantial risk of forfeiture (which would occur if the employee is
subject to Section 16 (b) of the Exchange Act), the relevant date for
determining the amount of ordinary income would be the date six months
thereafter (but in no event may such amount be greater than the sales
price). The Company will be entitled to a Federal income tax deduction
equal to such amount.
Special Rules. To the extent an optionee pays all or part of the
option price of an NSO by tendering shares of Common Stock owned by the
optionee, the tax consequences described above apply except that the
number of shares received upon such exercise which is equal to the
number of shares surrendered in payment of the option price shall have
the same tax basis and holding period as the shares surrendered. The
additional shares received upon such exercise have a tax basis equal to
the amount of ordinary income recognized on such exercise and a holding
period which commences on the date of recognition of such income. Under
proposed Treasury regulations, if an optionee exercises an ISO by
tendering shares previously acquired on the exercise of an ISO, a
disqualifying disposition may occur and the optionee may recognize
income and be subject to other basis allocation and holding period
requirements.
LEGAL OPINIONS
The validity of the Common Stock offered hereby has been passed
upon for the Company by the law office of Jay J. Miller, Esq., 430 East
57th Street, New York, New York 10022, counsel for the Company. Mr.
Miller is a director for the Company.
EXPERTS
The financial statements and the related financial statement
schedule incorporated in the prospectus by reference from the Company's
annual Report on Form 10-K for the fiscal year ended January 31, l995
have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated by reference herein are the following:
(i) the annual report (Form 10-K) for the fiscal year ended January 31,
1995 of the Registrant filed pursuant to Section 13 (a) or 15 (d) of the
Securities Exchange Act of 1934 ( "Exchange Act" ); (ii) all other
reports filed pursuant to Section 13 (a) or 15 (d) of the Exchange Act
since the end of the fiscal year covered by the annual report referred
to in (i) above; and (iii) the description of the Company's Common
Stock, par value of Five Cents ($.05) per share ( "Common Stock" )
contained in Registration Statement filed on Form S-2, File No. 2-15546
under the Securities Act of 1933, as amended, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13 (a), 13 (c), 14 and 15 (d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date such
documents were filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the shares of Common
Stock offered hereby have been passed upon for the Registrant by Jay J.
Miller, Esq., a director of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the New Jersey Business Corporation Act, the
Registrant has the power to indemnify certain persons, including its
officers and directors, under stated circumstances and subject to
certain limitations in connection with services performed in good faith
for the Registrant.
Under the Certificate of Incorporation, as amended, of
Registrant, any person made or threatened to be made a party to any
civil or criminal action or proceeding by reason of the fact that he or
his testator or intestate is or was a director or officer of the
Registrant, or served any other corporation of entity of any type or
kind, domestic or foreign, in any capacity, at the request of the
Registrant, shall be indemnified against judgments, fines, amounts paid
in settlement and other liabilities and expenses, to the fullest extent
permitted by law.
The indemnification provided in the Business Corporation Act
of New Jersey is not exclusive of any other rights to which a director
or officer may be entitled, whether contained in the certificate of
incorporation or By-Laws or, when authorized by the certificate of
incorporation, or the By-Laws, a stockholders' or directors' resolution
or an indemnification agreement, except that no indemnification may be
made in any case if a judgment or other final adjudication adverse to
the director or officer establishes that his acts were committed in bad
faith material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to which
he was not legally entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4 (a) (i) - Certificate of Incorporation, as amended of the Registrant (1).
(a) (ii) - Certificate of Amendment of Certificate of Incorporation filed
November 4, l987 (2).
(a) (iii) - Certificate of Amendment of Certificate of Incorporation filed
January 29, l990 (2).
(a) (iv) - Certificate of Amendment of Certificate of Incorporation dated
November 4, 1991 (3).
4 (b) - By-Laws of the Registrant (4).
5 - Opinion of Jay J. Miller, Esq.
23 (a) - Consent of Deloitte & Touche LLP.
23 (b) - Consent of Jay J. Miller, Esq. (included in Exhibit 5).
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(1) Incorporated by reference to Exhibits 2-A, 2-B, 2-C and 2-D to
Registration Statement on Form S-2 (File No. 2-15546).
(2) Filed herewith.
(3) Incorporated by reference to Exhibit 3 (c) to Registrant's Annual Report
on Form 10-K for the year ended January 31, 1992.
(4) Incorporated by reference to Exhibit 2 to Registrant's Annual Report on
Form 10-K for the fiscal year ended January 31, 1992.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
(a) (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 of 1933 (the "Act" ); (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment
thereof; which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement; (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (i) and (ii) do not
apply if the information required to be included in the post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15 (d) of the Exchange
Act that are incorporated by reference herein.
(2) That, for the purpose of determining any liability under
the 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 Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13 (a) or Section 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 Act may be permitted to officers and directors of the
Registrant pursuant to the foregoing provisions, the Registrant has been
advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act,
and therefore, unenforceable. In the event that a claim for such
indemnification (except insofar as it provides for payment by the
Registrant of expenses incurred or paid by a director or officer in the
successful defense of any action, suit or proceeding) is asserted
against the Registrant by a director or officer and the Commission is
still of the same opinion, the Registrant will, unless the matter has,
in the opinion of its counsel, been adjudicated by precedent deemed by
it to be controlling, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURE
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant 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 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Little Falls, and State of New Jersey, on the 13th day of November 1995.
(Registrant) TOTAL-TEL USA COMMUNICATIONS, INC.
By/s/ Warren H. Feldman .
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Warren H. Feldman, Chairman
of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Marc Balmuth Director November , 1995
/s/ Warren H. Feldman
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Warren H. Feldman Chairman of the Board, November 13,1995
President and Chief
Executive Officer
Director
/s/ Solomon Feldman
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Solomon Feldman Treasurer and November 13, l995
Director
/s/ Jay J. Miller
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Jay J. Miller Director November 13, l995
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Jerold L. Zaro Director November , 1995
/s/ Thomas P. Gunning
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Thomas P. Gunning Chief Financial Officer November 13, 1995
Controller and Secretary
EXHIBIT 4 (a) (ii)
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
FARADYNE ELECTRONICS CORP.
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-2 (4) and Section 14
A:9-4 (3), Corporations, General, of the New Jersey Statutes, the
undersigned corporation executes the following Certificate of Amendment
to its Certificate of Incorporation:
1. The name of the corporation is FARADYNE ELECTRONICS CORP.
2. The following amendment to the Certificate of Incorporation
was approved by the directors and thereafter adopted by the shareholders
of the corporation on the 30th day of October, 1987:
Resolved, that a new Article Eight be added to the Certificate of
Incorporation to read in its entirety as follows:
" EIGHTH": No Director shall be personally liable to the
corporation or any shareholder for monetary damages for breach of any
duty owed to the corporation or its shareholders, except that this
Article shall not relieve a director from liability for any breach of
duty based upon an act or omission (a) in breach of such person's duty
of loyalty to the corporation or its shareholders, (b) not in good
faith or involving a knowing violation of law or (c) resulting in
receipt by such person of an improper benefit. Neither the amendment
nor repeal of this Article nor the adoption of any provision of the
Certificate of Incorporation inconsistent with this Article shall
eliminate or reduce the effect of this Article in respect of any matter
occurring, or any cause of action, suit or claim that, but for this
Article, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision."
3. The number of shares outstanding at the time of adoption of
the foregoing amendment was 1,646,397. The total number of shares
entitled to vote thereon was 1,646,397.
4. The number of shares voting for and against such amendment is
as follows:
Number of Shares Voting For Amendment
961,858
Number of Shares Voting Against Amendment
14,365
Dated this 30th day of October, l987.
FARADYNE ELECTRONICS CORP.
By:/s/ Manuel Brucker .
------------------------
Manuel Brucker, Chairman
of the Board of Directors
EXHIBIT 4 (a) (iii)
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
FARADYNE ELECTRONICS CORP.
TO: The Secretary of the State
State of New Jersey
Pursuant to the provisions of Section 14A:9-2 (4) and Section
14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the
undersigned corporation executes the following Certificate of Amendment
to its Certificate of Incorporation:
1. The name of the corporation is FARADYNE ELECTRONICS CORP.
2. The following amendment to the Certificate of Incorporation
was approved by the directors and thereafter adopted by the shareholders
of the corporation on the 27th day of October, 1989.
Resolved, that Article " Fifth" of the corporation's Certificate
of Incorporation be amended to read in its entirety as follows:
" FIFTH": the total authorized capital stock of this
corporation shall be five million (5,000,000) shares of common
stock, each having a par value of five cents ( $.05)."
3. The number of shares outstanding at the time of adoption of
the foregoing amendment was 1,646,397. The total number of shares
entitled to vote thereon was 1,646,397.
4. The number of shares voting for and against such amendment is
as follows:
Number of Shares Number of Shares
Voting for Amendment Voting against amendment
1,546,055 10,600
Dated this 27th day of October, 1989
FARADYNE ELECTRONICS CORP.
By:/s/ Manuel Brucker .
------------------------
Manuel Brucker, Chairman
of the Board of Directors
EXHIBIT 5
LAW OFFICES OF
JAY J. MILLER, ESQ.
430 EAST 57TH STREET
SUITE 5-D
NEW YORK, NEW YORK 10022
TEL: (212) 758-5577
FAX: (212) 758-0624
November 10, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: Total-Tel USA Communications, Inc.
Form S-8 Registration Statement
Gentlemen:
I have acted as counsel to Total-Tel USA Communications, Inc., a
New Jersey corporation, (the " Registrant" ) in connection with the
filing of a Registration Statement on Form S-8 under the Securities Act
of 1933, as amended, covering Registrant's 1987 Stock Option Plan. I
have examined such questions of law and fact and reviewed such
certificates and documents as I have deemed appropriate and based upon
the foregoing, it is my opinion that a sufficient number of shares of
Registrant's authorized but unissued Common Stock, $.05 par value
per share, (the " Stock"), has been reserved for issuance upon exercise
of options granted under said Plan and, when issued and paid for in
accordance with the terms of said options, the Stock shall be validly
issued, fully paid and non-assessable.
The undersigned hereby consents to the use of this opinion in
connection with subject Registration Statement and to the reference to
his name under the caption " Legal Opinions" in the Prospectus forming a
part of the Registration Statement. The undersigned is a Director of
Registrant.
Very truly yours,
/s/ Jay J. Miller
-----------------
Jay J. Miller
JJM/KMcb
EXHIBIT 23 (a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Total Tel USA Communications, Inc. on Form S-8 of our
report dated April 27, l995, appearing in the Annual Report on Form 10-K
of Total Tel USA Communications, Inc. for the year ended January 31,
l995, and to the reference to us under the heading " Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche, LLP
- --------------------------
Parsippany, New Jersey
November 9, l995
