<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 13)*
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 Swidler Berlin Shereff Friedman, 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)
December 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).
<PAGE>
AMENDMENT NO. 13 TO SCHEDULE 13D
This Amendment No. 13 to Schedule 13D filed by 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"), supplements
and amends the Schedule 13D previously filed with the Securities and Exchange
Commission (the "SEC") by Gold & Appel, a British Virgin Islands corporation
("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"), Amendment No.
6 thereto filed with the SEC on April 6, 1998 ("Amendment No. 6"), Amendment
No. 7 thereto filed with the SEC on June 12, 1998 ("Amendment No. 7"),
Amendment No. 8 thereto filed with the SEC on July 29, 1998 ("Amendment No.
8"), Amendment No. 9 thereto filed with the SEC on August 19, 1998 ("Amendment
No. 9"), Amendment No. 10 thereto filed with the SEC on September 29, 1998
("Amendment No. 10"), Amendment No. 11 thereto filed with the SEC on October
27, 1998 ("Amendment No. 11") and Amendment No. 12 thereto filed with the SEC
on November 18, 1998 ("Amendment No. 12"). 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, Amendment No. 6, Amendment No. 7, Amendment No. 8, Amendment
No. 9, Amendment No. 10, Amendment No. 11 and Amendment No. 12. Unless
otherwise noted, all data included in this Amendment No. 13 reflects a 2 for 1
stock split of the Common Shares which was effected on July 15, 1998.
ITEM 3. SOURCE AND AMOUNT OF FUNDS.
The response set forth in Item 3 of the Schedule 13D is hereby
supplemented as follows:
Revision will fund the $28,000,000 (assuming 1,200,000 shares are
purchased) aggregate purchase price for the Stock Purchase (as defined in Item
4 below) out of the proceeds of a capital contribution from Gold & Appel.
ITEM 4. PURPOSE OF THE TRANSACTION.
The response set forth in Item 4 of the Schedule 13D is hereby
supplemented as follows:
Pursuant to a Settlement Agreement, dated December 10, 1998 (the
"Settlement Agreement"), by and among Total-Tel USA Communications, Inc. (the
"Company" or the "Issuer"), Walt Anderson, Revision LLC ("Revision"), Warren
Feldman and Solomon Feldman, the parties have settled an outstanding proxy
contest (which was disclosed previously in this Schedule 13D) and
<PAGE>
certain pending litigation (which was disclosed previously in this Schedule
13D). In addition, pursuant to a Stock Purchase Agreement, dated December 10,
1998 (the "Stock Purchase Agreement"), by and among Revision, Walt Anderson,
Warren Feldman and Solomon Feldman, Revision has agreed to purchase up to
1,200,000 Common Shares from Warren Feldman, Solomon Feldman and their
designees, if any, at a purchase price of $24 per share, on the terms and
conditions set forth therein. The Stock Purchase Agreement also provides for
other agreements among the parties thereto with respect to the Common Shares
owned by them. The summary set forth herein of each of the Settlement Agreement
and the Stock Purchase Agreement is qualified in its entirety by the full text
of each of the Settlement Agreement and the Stock Purchase Agreement, copies of
which are attached hereto as an Exhibits and incorporated herein by reference.
Pursuant to the Settlement Agreement, the parties thereto have agreed
that with respect to the litigation commenced on or about April 7, 1998, by a
complaint filed by Gold & Appel Transfer, S.A. ("Gold & Appel) in the Superior
Court of New Jersey, Chancery Division, Passaic County (the "Court"), Docket
No. PAS-C49-98 (the "Lawsuit"), the parties will as soon as practicable,
prepare and file a stipulation dismissing with prejudice the Lawsuit and
requesting that the Court orders outstanding in connection with the Lawsuit be
rescinded, revoked or otherwise caused to be ineffective. Gold & Appel has
joined the Settlement Agreement as a party with respect to this provision only.
Pursuant to the Settlement Agreement, the Company has agreed to change
the date of the Annual Meeting from December 10, 1998 to a date no later than
January 31, 1999, or under certain circumstances, a date no later than February
28, 1999. The Company has agreed to file a proxy statement in connection with
the Annual Meeting which recommends to shareholders that they vote in favor of
the election to the Board of Warren Feldman and two designees of Warren Feldman
and Walt Anderson, and two designees of Walt Anderson. The parties to the
Settlement Agreement have agreed that the By-laws of the Company dated June 10,
1959 shall remain in effect until the reconstituted Board is elected.
Pursuant to the Settlement Agreement, the parties thereto have agreed
to prepare and file with the appropriate governmental agencies, the filings
required under the Hart-Scott-Rodino Act of 1976, as amended (the "HSR Act"),
in connection with the Stock Purchase (as defined below), and to use their best
efforts to cause the expiration of the waiting period thereunder on the
earliest practicable date.
Pursuant to the Settlement Agreement, Walt Anderson and Revision have
agreed that during the period commencing on the date thereof and ending on the
first anniversary of the date thereof, he or it, as the case may be, and their
respective affiliates (other than the Company), will not, directly or
indirectly, purchase any Common Shares for a purchase price of less than $24
per share. In addition, Walt Anderson and Revision have agreed that during the
period in which Walt Anderson serves as a director of the Company, Mr. Anderson
and Revision agree to use their commercially reasonable efforts to assist the
Company in obtaining any financing needed by it to the extent that the Company
requests such assistance.
<PAGE>
Pursuant to the Stock Purchase Agreement, Revision has agreed to
purchase up to 1,200,000 Common Shares but no less than 1,100,000 Common
Shares, from Warren Feldman, Solomon Feldman and their designees, if any, at a
purchase price of $24 per share (the "Stock Purchase"), on the terms and
conditions set forth therein. Consummation of the Stock Purchase is conditioned
upon HSR Act compliance and the recission or revocation of any Court orders
outstanding in connection with the Lawsuit. Revision has agreed to deposit into
escrow, within five business days of the date of the Stock Purchase Agreement,
$4,000,000 as a deposit to be credited against the aggregate purchase price of
such shares.
In the event that the conditions to closing the Stock Purchase are
satisfied and Revision purchases 1,200,000 Common Shares (the maximum number of
shares purchasable) under the Stock Purchase Agreement, the Reporting Persons,
collectively, would beneficially own 3,057,634 Common Shares or 39.6% of the
outstanding Common Shares. Mr. Anderson would directly own 200 Common Shares or
less than .01% of the outstanding Common Shares. Revision would directly own
3,057,434 Common Shares or 39.6% of the outstanding Common Shares. The
percentages set forth above have been calculated based on 7,721,004 Common
Shares outstanding as of November 11, 1998, as reported in the Company's Proxy
Statement dated November 11, 1998.
Pursuant to the Stock Purchase Agreement, each of Warren Feldman and
Solomon Feldman have agreed to use their best efforts to cause the resignation
of Messrs. Solomon Feldman, Brad Berger and Joseph Kelly from the Board of
Directors of the Company (the "Board") and to cause the election to the Board
of the following persons to the vacancies on the Board created thereby: (a)
Walt Anderson, (b) Dennis Spina, or if he is unable to serve, another designee
of Mr. Anderson, and (c) an individual who has no affiliation with the Company
and is designated by Walt Anderson. (The six members of the Board as
reconstituted pursuant to the foregoing are sometimes referred to herein as the
"Reconstituted Board".)
Pursuant to the Stock Purchase Agreement, the parties thereto have
agreed that at the next Annual Meeting of Shareholders of the Company to be
held no later than February 28, 1999 and for a period ending one year from the
date of the Stock Purchase Agreement, Walt Anderson and Revision agree, on the
one hand, and Warren Feldman and Solomon Feldman agree, on the other hand, to
vote the Common Shares owned by them in favor of the election to the Board of
the six members of the Reconstituted Board, or if any one of such members shall
be unwilling or unable to serve, then in favor of a substituted designee of
Walt Anderson or Warren Feldman, as the case may be. For a period of one year
commencing on the date of the Stock Purchase Agreement, the parties have agreed
to use their respective best efforts to cause the number of directors
comprising the complete Board to be fixed at six (6). For the period commencing
12 months from the date of the Stock Purchase Agreement and ending 36 months
from the date of the Stock Purchase Agreement, Walt Anderson and Revision have
agreed to vote the Common Shares beneficially owned by them in favor of the
election to the Board of Directors of the Company of two nominees designated by
Warren Feldman (one of whom may be Warren Feldman). For the period commencing
12 months from the date of the Stock Purchase Agreement and ending 36 months
from the date of the Stock Purchase Agreement, Warren Feldman and Solomon
Feldman agree to vote the Common Shares beneficially owned by them in favor of
the election to the Board of Directors of the Company of the nominees
(regardless of the number of such nominees) designated by Walt Anderson. The
<PAGE>
provisions described in the previous two sentences shall cease to be of any
further force and effect if at any time the aggregate beneficial ownership of
Common Shares by Warren Feldman and Solomon Feldman on the one hand, or Walt
Anderson and Revision, on the other hand, shall fall below 5% of the then
outstanding Common Shares.
Pursuant to the Stock Purchase Agreement, Walt Anderson and Revision
agree to use their best efforts to cause the Company as soon as practical after
the Reconstituted Board is elected to enter into a one year employment contract
with Warren Feldman, pursuant to which Warren Feldman will be employed as Chief
Executive Officer and Chairman of the Board of the Company at a salary of
$250,000 per year and with incentive compensation up to $250,000 as may be
determined by the Board based upon performance targets set by the Board for
executive officers generally. Such agreement will supercede any prior
agreements between Warren Feldman and the Company with respect to Mr. Feldman's
employment by the Company. Revision has agreed to indemnify the Feldmans and
their designees for certain matters.
Other than as described herein and as previously reported, the
Reporting Persons have no plans or proposals which relate or would result in
any of the events described in clauses (a) through (j) of Item 4 of Schedule
13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The response set forth in Item 5 of the Schedule 13D is hereby
supplemented as follows:
In the event that the conditions to closing the Stock Purchase are
satisfied and Revision purchases 1,200,000 Common Shares (the maximum number of
shares purchasable) under the Stock Purchase Agreement, the Reporting Persons,
collectively, would beneficially own 3,057,634 Common Shares or 39.6% of the
outstanding Common Shares. Mr. Anderson would directly own 200 Common Shares or
less than .01% of the outstanding Common Shares. Revision would directly own
3,057,434 Common Shares or 39.6% of the outstanding Common Shares. The
percentages set forth above have been calculated based on 7,721,004 Common
Shares outstanding as of November 11, 1998, as reported in the Company's Proxy
Statement dated November 11, 1998.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SECURITIES OF THE ISSUER.
The response set forth in Item 6 of the Schedule 13D is hereby
supplemented as follows:
The response to Item 4 of this Amendment No. 13 is incorporated herein
by reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBIT.
Exhibit 7.1 Settlement Agreement, dated December 10, 1998, by and
among Total-Tel USA Communications, Inc., Walt
Anderson, Revision LLC, Warren Feldman and Solomon
Feldman
<PAGE>
Exhibit 7.2 Stock Purchase Agreement, dated December 10, 1998, by
and among Revision, Walt Anderson, Warren Feldman and
Solomon Feldman
<PAGE>
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: December 14, 1998
REVISION LLC
By: /s/ Walt Anderson
----------------------
Walt Anderson, Manager
<PAGE>
EXHIBIT 7.1
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, made this 10th day of December, 1998, between
TOTAL-TEL USA COMMUNICATIONS, INC., a New Jersey corporation (the "Company"),
WALT ANDERSON and REVISION LLC, a Delaware limited liability company
("Revision" and collectively with Anderson, the "Committee").
WHEREAS, on or about April 7, 1998, Gold & Appel Transfer, S.A.
("Gold & Appel") filed a complaint against the Company in the Superior Court of
New Jersey, Chancery Division, Passaic County (the "Court"), Docket No.
PAS-C49-98 (the "Lawsuit") and Revision subsequently became a party to the
Lawsuit.
WHEREAS, the Lawsuit is currently pending and the parties hereto
desire to settle the Lawsuit and petition the Court for the recission of all
outstanding orders issued in connection with the Lawsuit, on the terms and
conditions set forth herein.
WHEREAS, the Company and the Committee have been engaged in a proxy
contest with respect to the election of directors of the Company at the Annual
Meeting of Stockholders of the Company to be held on December 10, 1998 (the
"Meeting") and desire to agree upon a settlement of the matters relating to
such proxy contest, on the terms and conditions provided herein.
WHEREAS, in connection with such proxy contest the Company has
distributed to stockholders a proxy statement dated November 11, 1998, and the
Committee has distributed stockholders a proxy statement, dated November 25,
1998.
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. SETTLEMENT OF LITIGATION. As soon as practicable after the execution and
delivery of this Agreement, Revision, Gold & Appel and the Company shall
prepare and file a stipulation dismissing with prejudice the Lawsuit and
requesting that the Court orders outstanding in connection with the Lawsuit be
rescinded, revoked or otherwise caused to be ineffective, and such parties
agree to take all action and deliver and exchange such documents as may be
reasonably necessary to cause such dismissal of the Lawsuit and rescission or
revocation of such orders.
2. ANNUAL MEETING DATE, PROXY STATEMENT AND BY-LAWS.
(A) MEETING DATE. Upon the execution and delivery of this Agreement, the
Company shall promptly take all action necessary to change the date of the
Meeting from December 10, 1998 to a date no later than January 31, 1999, or in
the event that date becomes impracticable due to delays
1
<PAGE>
in the satisfaction of the regulatory or court approval conditions to such
closing, no later than February 28, 1999.
(B) PROXY STATEMENT. Upon the closing of the Stock Purchase (as defined in
Section 3 hereof), the Company shall promptly prepare and file with the
Securities and Exchange Commission on a date no later than two business days
from the date thereof, a Proxy Statement for solicitation of proxies with
respect to the Meeting which contains the recommendation of the Board in favor
of the election to the Board of Warren Feldman and two designees of Warren
Feldman and Walt Anderson and two designees of Walt Anderson.
(C) BY-LAWS OF THE COMPANY. The By-laws of the Company, dated June 10, 1959
shall remain in effect and shall not be amended or modified in any manner until
the election of the reconstituted Board as contemplated by Section 2(b) hereof,
at which time such Board shall consider and determine appropriate By-law
provisions of the Company.
3. HSR ACT. Each of the Company, on the one hand, and Revision and Walt
Anderson, on the other hand, will, as soon as practicable after the date hereof
and in connection with the contemplated purchase by Revision from Warren
Feldman and Solomon Feldman (the "Stock Purchase") of up to 1,200,000
additional shares of common stock of the Company ("Common Stock"), prepare and
file with the appropriate governmental agencies, the filings required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). Each of the Company, on the one hand, and Revision and Walt Anderson, on
the other hand, will use their best efforts to cause to occur on the earliest
practicable date the expiration of the waiting period under the HSR Act, and in
furtherance of such objective, will take all reasonable actions necessary to
comply promptly with all legal requirements or requests for additional
information which may be imposed on it with respect thereto and will promptly
cooperate with and furnish information to each other in connection with any
such requirements imposed upon them.
4. AGREEMENT WITH RESPECT TO FUTURE PURCHASES. Each of Walt Anderson and
Revision agree that during the period commencing on the date hereof and ending
on the first anniversary of the date hereof, he or it, as the case may be, and
their respective affiliates (other than the Company), will not, directly or
indirectly, purchase any shares of Common Stock for a purchase price of less
than $24 per share.
5. ADDITIONAL AGREEMENTS; BEST EFFORTS. The parties hereto will agree upon a
joint press release to be issued immediately following the execution of this
Agreement. Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. Until the Board is
reconstituted as contemplated by Section 2(b) hereof, the Company shall use its
best efforts to provide a copy of any press release or other public disclosure
about the transactions contemplated hereby to Walt Anderson prior to
dissemination of such press release or other disclosure.
2
<PAGE>
6. FUTURE FINANCING. During the period in which Walt Anderson serves as a
director of the Company, Mr. Anderson and Revision agree to use their
commercially reasonable efforts to assist the Company in obtaining any
financing needed by it to the extent that the Company requests such assistance.
7. ORDINARY COURSE. During the period from the date of this Agreement and
continuing until the Board is reconstituted in accordance with Section 2(b)
hereof, the Company shall use its best efforts to carry on its business in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted and to preserve intact its present business organizations,
and to preserve its relationships with customers, suppliers and others having
business dealings with it to the end that its goodwill and ongoing business
shall not be impaired in any material respect.
8. CERTAIN REPRESENTATIONS BY THE COMPANY. The Company hereby represents and
warrants to Walt Anderson and Revision that (i) the execution, delivery and
performance by the Company of this Agreement has been duly authorized by all
action required by law, its certificate of incorporation and by-laws, (ii) this
Agreement has been duly executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, (iii) the execution, delivery and performance by the
Company of this Agreement will not conflict with or result in any breach of any
provision of the charter or by-laws of the Company, (iv) the execution,
delivery and performance by the Company of this Agreement will not result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Company is a party or by which any
of its assets or properties may be bound, (v) subject to the provisions of
Sections 1 and 3 hereof, the execution, delivery and performance by the Company
of this Agreement will not violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company or any of its properties
or assets and (vi) the Company has duly authorized and approved, by all action
required by law, including a duly adopted Board resolution, the rescission of
the Rights Agreement, dated as of March 31, 1998, between the Company and
American Stock Transfer & Trust Company, and such Rights Agreement is void ab
initio.
9. CERTAIN REPRESENTATIONS BY REVISION AND WALT ANDERSON. Revision hereby
represents and warrants to the Company that (i) the execution, delivery and
performance by Revision of this Agreement has been duly authorized by all
action required by law, its certificate of formation and operating agreement,
(ii) this Agreement has been duly executed and delivered by Revision and
constitutes a legal, valid and binding obligation of Revision, enforceable
against it in accordance with its terms, (iii) the execution, delivery and
performance by Revision of this Agreement will not conflict with or result in
any breach of any provision of the certificate of formation and operating
agreement of Revision, (iv) the execution, delivery and performance by Revision
of this Agreement will not result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease,
3
<PAGE>
license, contract, agreement or other instrument or obligation to which
Revision is a party or by which any of its assets or properties may be bound
and (v) subject to the provisions of Sections 1 and 3 hereof, the execution,
delivery and performance by Revision of this Agreement will not violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Revision or any of its properties or assets. Anderson hereby represents and
warrants to the Company that this Agreement has been duly executed and
delivered by him and constitutes his legal, valid and binding obligation,
enforceable against him in accordance with its terms and subject to the
provisions of Sections 1 and 3 hereof, the execution, delivery and performance
by him of this Agreement will not violate any order, writ, injunction, decree,
statute, rule or regulation applicable to him or any of his properties or
assets.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties hereto and constitutes the complete, final and exclusive embodiment of
their agreement with respect to the subject matter hereof, and supercedes all
prior or contemporaneous agreements, understandings, representations and
statements, oral or written.
11. NOTICES. All communications provided for hereunder shall be sent in writing
and mailed by first class mail, return receipt requested, or sent by overnight
courier, or sent by facsimile transmission to the address stated below or to
such changed address as the addressee may have been given by similar notice:
(a) If, to the Company:
Total-Tel USA Communications, Inc.
150 Clove Road
Little Falls, New Jersey
Attn: Warren Feldman
Facsimile No.: (973) 785-5173
With a copy to:
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Attn: Bobby R. Burchfield, Esq.
Facsimile No.: (202) 778-5350
And a copy to:
Jay Miller, Esq.
430 East 57th Street, Suite 5D
New York, New York 10022
Facsimile No.: (212) 758-0624
4
<PAGE>
(b) If to Revision or Anderson:
Walt Anderson
c/o Gold & Appel
1023 31st Street, 4th Floor
Washington, D.C. 20007
Facsimile No.: (202)736-5065
With a copy to:
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, NY 10022
Attn: Richard Goldberg, Esq.
Facsimile No.: (212) 758-9526
Any such notice shall be deemed received, if mailed, five days after mailing,
or one day after sending by overnight courier, or upon confirmation of
transmission if sent by facsimile transmission.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
the conflict of laws provisions thereof.
13. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
5
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed the day and year first above written.
TOTAL-TEL USA COMMUNICATIONS, INC.
By: /s/ Warren Feldman
---------------------------
Name: Warren Feldman
Title: Chairman and Chief
Executive Officer
REVISION LLC
By: /s/ Walt Anderson
---------------------------
Name: Walt Anderson
Title: Manager
/s/ Walt Anderson
-------------------------------
Walt Anderson
Evidencing agreement with respect to the provisions of Section 1 hereof only
and not with respect to any other provision of this Agreement:
GOLD & APPEL TRANSFER, S.A.
By: /s/ Walt Anderson
---------------------------
Walt Anderson, Attorney-In-Fact
6
<PAGE>
EXHIBIT 7.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT made this 10th day of December, 1998, between
WARREN FELDMAN, SOLOMON FELDMAN, WALT ANDERSON and REVISION LLC, a Delaware
limited liability company ("Revision").
WHEREAS, each of the parties hereto is a stockholder of Total-Tel USA
Communications, Inc., a New Jersey corporation (the "Company").
WHEREAS, the parties hereto desire to enter into certain agreements
regarding the purchase by Revision from Warren Feldman and Solomon Feldman
and/or their designees of up to 1,200,000 shares of Common Stock of the Company
("Common Stock"), on the terms and subject to the conditions set forth herein.
WHEREAS, the parties hereto desire to enter into certain agreements
regarding the voting of their shares of Common Stock and certain other matters,
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES.
(A) GENERAL TERMS. Revision agrees to purchase from Warren Feldman,
Solomon Feldman, and if so designated, one or more of their designees (in an
amount to be determined by Warren Feldman and Solomon Feldman), and Warren
Feldman and Solomon Feldman agree to sell, up to an aggregate of 1,200,000
shares of Common Stock, but not less than 1,100,000 shares of Common Stock, at
a purchase price of $24 per share upon the terms and subject to the conditions
set forth herein. Prior to December 20, 1998, Warren Feldman and Solomon
Feldman shall deliver to Revision a written notice (the "Designee Notice"),
setting forth the aggregate number of shares which shall be purchased by
Revision pursuant to this Section 1, listing each designee (the "Designees",
which term shall include Warren Feldman and Solomon Feldman) who will sell
shares, the number of shares to be sold by each such Designee, the account
information (name of bank, address of bank, ABA number and bank account number)
to which the purchase price payment for such designee should be wired, and the
purchase price. The Deposit (as defined below) shall be paid at the closing as
directed by Warren Feldman and Solomon Feldman and shall be credited against
the purchase price. The Designees shall be solely responsible for any transfer
taxes payable in respect of the sale of the Common Stock under this Agreement.
(B) REPRESENTATIONS AND WARRANTIES OF DESIGNEES. The Designee Notice
shall be accompanied by signed statements of each Designee (the "Designee
Statements"), pursuant to which each Designee represents and warrants to
Revision that (i) such Designee is the sole beneficial and
1
<PAGE>
record owner of all right, title and interest in and to the shares to be sold
to Revision, free and clear of any security interest, claims, liens, pledges,
options, encumbrances, charges, agreements, voting trusts, proxies, preemptive
rights or rights of first refusal or other arrangements, restrictions or legal
or equitable limitations of any kind, (ii) upon the delivery of the stock
certificates at the closing, such Designee will transfer good, valid and
marketable title to the shares to Revision, free and clear of any security
interests, claims, liens, pledges, options, encumbrances, charges, agreements,
voting trusts, proxies, preemptive rights or rights of first refusal or other
arrangements, restrictions or legal or equitable limitations of any kind and
(iii) such Designee shall, at the closing deliver to Revision, a certificate
confirming that the representations of such Designee made therein are true as
of the closing date. Warren Feldman beneficially owns between 1,000,544 and
1,035,524 shares of Common Stock and Solomon Feldman beneficially owns between
886,380 and 927,260 shares of Common Stock (in each case exclusive of stock
options), and each of Warren Feldman and Solomon Feldman hereby makes the
representations and warranties set forth in this Section 1(b) with respect to
himself and the shares which he owns as of the date hereof.
(C) REPRESENTATIONS OF REVISION. Revision represents and warrants to
each of Warren Feldman, Solomon Feldman and each Designee that it is acquiring
up to 1,200,000 shares of Common Stock pursuant to the provisions of this
Section 1 for its own account for investment and not with a view to, or for
sale in connection with, any public distribution thereof in violation of the
Securities Act of 1933, as amended (the "Securities Act"). Revision further
represents that it is an Accredited Investor within the meaning ascribed to
such term under Regulation D of the rules and regulations promulgated under the
Securities Act.
(D) CONDITIONS TO CLOSING AND THE CLOSING. It shall be a condition to
the purchase and sale of shares contemplated under this Section 1 that (i) the
waiting period (and any extension thereof) under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act") applicable to
the purchase by Revision of the aggregate number of shares to be purchased
pursuant to this Section 1 shall have expired or been terminated and (ii) the
Superior Court of New Jersey, Chancery Division, Passaic County (the "Court")
shall have rescinded, revoked or otherwise caused to be ineffective any Court
orders outstanding in connection with the lawsuit against the Company which was
filed in the Court on or about April 7, 1998, by Gold & Appel Transfer, S.A.,
Docket No. PAS-C49-98. The closing of the purchase and sale of shares
contemplated in this Section 1 shall occur at 10:00 a.m. on the date that is
two business days after the satisfaction of both of the conditions set forth in
the preceding sentence; provided however that the closing date shall in no
event be earlier than January 2, 1999. The closing shall take place at the
offices of Swidler Berlin Shereff Friedman, LLP, 919 Third Avenue, New York,
New York. On the closing date, Revision shall pay to each Designee the purchase
price (net of such Designee's pro rata share of the Deposit as designated
pursuant to Section 1(a)) by wire transfer to the account set forth in the
Designee Notice and each Designee shall deliver the stock certificates for the
shares duly endorsed or with stock power attached together with the
representation letter required pursuant to of Section 1(b) above.
2
<PAGE>
(E) DEPOSIT. Within five (5) business days of the execution and
delivery of this Agreement, Revision shall transfer $4,000,000 by wire transfer
to Swidler Berlin Shereff Friedman, LLP as escrow agent (the "Escrow Agent"),
and such $4,000,000 shall be held in escrow by the Escrow Agent as a deposit
("Deposit") pursuant to an escrow agreement containing the terms of this
Section 1(e) and other customary terms. In the event that prior to the closing,
the Escrow Agent receives a written notice from Revision, on the one hand, or
Warren Feldman or Solomon Feldman, on the other hand, stating that a material
breach by the other party has occurred under this Agreement or, in the case of
a notice by Revision that a material breach by the Company has occurred under
that certain agreement dated the date hereof by and among the Company, Walt
Anderson and Revision, then, the Deposit, together with interest earned
thereon, shall be delivered to the nonbreaching party unless the party alleged
to have breached (or Warren Feldman or Solomon Feldman in the case of an
alleged breach by the Company) shall deliver, within five business days of
notice thereof, a notice of objection to the Escrow Agent in which case the
Deposit shall not be disbursed from escrow until such time as the Escrow Agent
has received joint written instructions of Warren Feldman, Solomon Feldman and
Walt Anderson, directing the disbursement of such Deposit or until such time as
the Escrow Agent has received a court order from a court of competent
jurisdiction directing the disposition of such Deposit. At least one business
day prior to the closing, Warren Feldman, Solomon Feldman and Walt Anderson
shall deliver to the Escrow Agent joint written instructions directing the
transfer of the Deposit. Each disbursement of the Deposit from escrow shall
include the pro rata portion of interest income, if any, with respect to such
disbursement amount. In the event that Revision is legally prohibited from
purchasing the shares of the Common Stock as contemplated under this Section 1
due to a failure to be satisfied of one of the conditions to closing contained
in Section 1(d) by February 28, 1999, the Deposit, together with interest
earned thereon, shall be returned to Revision unless Warren Feldman or Solomon
Feldman shall have delivered notice of objection within five business days of
notice from the Escrow Agent of the intended payment to Revision, in which case
the Deposit shall not be disbursed from escrow until such time as the Escrow
Agent has received joint written instructions of Warren Feldman, Solomon
Feldman and Walt Anderson, directing the disbursement of such Deposit or until
such time as the Escrow Agent has received a court order from a court of
competent jurisdiction directing the disposition of such Deposit.
2. BOARD OF DIRECTORS. Immediately following the closing of the sale
of shares pursuant to Section 1 hereof, Warren Feldman and Solomon Feldman
shall use their respective best efforts to cause the resignation of Messrs.
Solomon Feldman, Brad Berger and Joseph Kelly from the Board of Directors of
the Company (the "Board") and to cause the election to the Board of the
following persons to the vacancies on the Board created thereby: (a) Walt
Anderson, (b) Dennis Spina or if he is unable to serve, another designee of Mr.
Anderson, and (c) an individual who has no affiliation with the Company and is
designated by Walt Anderson. (The six members of the Board as reconstituted
pursuant to the terms of this Section 2 are sometimes referred to herein as the
"Reconstituted Board".)
3
<PAGE>
3. VOTING AGREEMENTS.
(A) NEXT ANNUAL MEETING. At the next Annual Meeting of
Shareholders of the Company to be held no later than February 28, 1999 and for
a period ending one year from the date hereof, Walt Anderson and Revision
agree, on the one hand, and Warren Feldman and Solomon Feldman agree, on the
other hand, to vote the shares of Common Stock owned by them in favor of the
election to the Board of the six members of the Reconstituted Board, or if any
one of such members shall be unwilling or unable to serve, then in favor of a
substituted designee of Walt Anderson or Warren Feldman, as the case may be.
For a period of one year commencing on the date hereof, the parties agree to
use their respective best efforts to cause the number of directors comprising
the complete Board to be fixed at six (6).
(B) SUBSEQUENT PERIOD. For the period commencing 12 months from
the date hereof and ending 36 months from the date hereof, Walt Anderson and
Revision agree to vote the shares of Common Stock beneficially owned by them in
favor of the election to the Board of Directors of the Company of two nominees
designated by Warren Feldman (one of whom may be Warren Feldman). For the
period commencing 12 months from the date hereof and ending 36 months from the
date hereof, Warren Feldman and Solomon Feldman agree to vote the shares of
Common Stock beneficially owned by them in favor of the election to the Board
of Directors of the Company of the nominees (regardless of the number of such
nominees) designated by Walt Anderson. The provisions of this Section 3(b)
shall cease to be of any further force and effect if at any time the aggregate
beneficial ownership of Common Stock by Warren Feldman and Solomon Feldman on
the one hand, or Walt Anderson and Revision, on the other hand, shall fall
below 5% of the then outstanding Common Stock.
(C) FELDMAN EMPLOYMENT CONTRACT. Walt Anderson and Revision agree
to use their best efforts to cause the Company as soon as practical after the
Reconstituted Board is elected to enter into a one year employment contract
with Warren Feldman, pursuant to which Warren Feldman will be employed as Chief
Executive Officer and Chairman of the Board of the Company at a salary of
$250,000 per year and with incentive compensation up to $250,000 as may be
determined by the Board based upon performance targets set by the Board for
executive officers generally. Such agreement will supercede any prior
agreements between Warren Feldman and the Company with respect to Mr. Feldman's
employment by the Company.
4. ORDINARY COURSE. During the period from the date of this Agreement
and continuing until the Board is reconstituted in accordance with Section 2
hereof, each of Warren Feldman and Solomon Feldman shall use their respective
best efforts to cause the Company to carry on its business in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted and use its best efforts to preserve intact its present business
organizations, and to preserve its relationships with customers, suppliers and
others having business dealings with it to the end that its goodwill and
ongoing business shall not be impaired in any material respect.
4
<PAGE>
5. ADDITIONAL AGREEMENTS; BEST EFFORTS. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
6. CERTAIN REPRESENTATIONS BY THE FELDMANS. Each of Warren Feldman
and Solomon Feldman hereby represents and warrants that (i) this Agreement has
been duly executed and delivered by him and constitutes his legal, valid and
binding obligation, enforceable against him in accordance with its terms, (ii)
subject to the provisions of Section 1(d) hereto, the execution, delivery and
performance by him of this Agreement will not violate any order, writ,
injunction, decree, statute, rule or regulation applicable to him, and (iii) to
the best of their knowledge after due inquiry, except as disclosed in the
forms, reports, schedules, statements and other documents filed by the Company
under the Securities Exchange Act of 1934, as amended, and in the draft
financial statements with respect to the fiscal quarter of the Company ended
October 31, 1998, which were provided to Walt Anderson, since January 31, 1998,
there have been no events, changes or effects (excluding any of the foregoing
which affect the industry generally, and are not specific to the Company)
having, individually or in the aggregate, a material adverse effect on the
Company.
7. CERTAIN REPRESENTATIONS BY REVISION AND WALT ANDERSON. Revision
hereby represents and warrants that (i) the execution, delivery and performance
by Revision of this Agreement has been duly authorized by all action required
by law, its certificate of formation and operating agreement, (ii) this
Agreement has been duly executed and delivered by Revision and constitutes a
legal, valid and binding obligation of Revision, enforceable against it in
accordance with its terms, (iii) the execution, delivery and performance by
Revision of this Agreement will not conflict with or result in any breach of
any provision of the certificate of formation and operating agreement of
Revision, (iv) the execution, delivery and performance by Revision of this
Agreement will not result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Revision is a party or by which any of its assets or properties may be bound,
(v) subject to the provisions of Section 1(d) hereto, the execution, delivery
and performance by Revision of this Agreement will not violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Revision or any
of its properties or assets, (vi) Revision is the sole beneficial and record
owner of all right, title and interest in and to 1,857,434 shares of Common
Stock, free and clear of any security interest, claims, liens, pledges,
options, encumbrances, charges, agreements, voting trusts, proxies, preemptive
rights or rights of first refusal or other arrangements, restrictions or legal
or equitable limitations of any kind, and (vii) Revision has no outstanding
indebtedness for borrowed money. Anderson hereby represents and warrants that
(i) this Agreement has been duly executed and delivered by him and constitutes
his legal, valid and binding obligation, enforceable against him in accordance
with its terms, and (ii) subject to the provisions of Section 1(d) hereto, the
execution, delivery and performance by him of this Agreement will not violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
him.
5
<PAGE>
8. ASSIGNMENT. This Agreement shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns. None of
Warren Feldman or Solomon Feldman, on the one hand, or Walt Anderson or
Revision, on the other hand, shall have the right to assign or transfer shares
of Common Stock or its rights or obligations under this Agreement to an
affiliate of such party unless (i) such transferee affiliate has a net worth
(calculated in accordance with generally accepted accounting principles) at
least equal to the net worth of the transferor immediately prior to such
transfer and (ii) such transferee affiliate assumes the obligations of the
transferor hereunder.
9. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and constitutes the complete, final and exclusive
embodiment of their agreement with respect to the subject matter hereof, and
supercedes all prior or contemporaneous agreements, understandings,
representations and statements, oral or written.
9. NOTICES. All communications provided for hereunder shall be sent
in writing and mailed by first class mail, return receipt requested, or sent by
overnight courier, or sent by facsimile transmission to the address stated
below or to such changed address as the addressee may have been given by
similar notice:
(a) If to the Warren Feldman or Solomon Feldman:
Total-Tel USA Communications, Inc.
150 Clove Road
Little Falls, New Jersey 07424
Attn: Warren Feldman
Facsimile No.: (973) 785-5173
With a copy to:
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Attn: Bobby R. Burchfield, Esq.
Facsimile No.: (202) 778-5350
(b) If to Revision or Anderson:
Walt Anderson
c/o Gold & Appel
1023 31st Street, 4th Floor
Washington, D.C. 20007
Facsimile No.: (202)736-5065
6
<PAGE>
With a copy to:
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
Attn: Richard Goldberg, Esq.
Facsimile No.: (212) 758-9526
Any such notice shall be deemed received, if mailed, five days after mailing,
one day after sending by overnight courier, or upon confirmation of
transmission if sent by facsimile transmission.
11. NOTICE ON BEHALF OF OTHER PARTIES. Any notice, designation or
determination required to be made or delivered hereunder by Warren Feldman or
Solomon Feldman shall be binding on the other if made or delivered by either of
such parties. Any notice, designation or determination required to be made or
delivered hereunder by Revision or Walt Anderson shall be binding on the other
if made or delivered by either of such parties.
12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey, without giving effect
to the conflict of laws provisions thereof.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, all of which together
shall constitute one and the same instrument.
7
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed the day and year first above written.
/s/ Warren Feldman
--------------------------
Warren Feldman
/s/ Solomon Feldman
--------------------------
Solomon Feldman
REVISION LLC
By: /s/ Walt Anderson
--------------------------
Name: Walt Anderson
Title: Manager
/s/ Walt Anderson
--------------------------
Walt Anderson
8
