SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 15)1
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 Gold & Appel, S.A.
1023 31st Street, 4th Floor, Washington, D.C. 20007
202-467-1189
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 21, 1999
(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 schedule because of Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7(b)
for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 6 Pages)
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1 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 be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 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).
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SCHEDULE 13D/A
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CUSIP No. 89151T 10-6 Page 1 of 7 Pages
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1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY) Walt Anderson
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7. SOLE VOTING POWER
SHARES 3,057,634
OWNED BY --------------------------------------------------------
EACH 8. SHARED VOTING POWER 0
REPORTING --------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER 0
WITH --------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,057,634 Shares of Common Stock (excludes 1,208,137 Shares subject
to Put Agreements to purchase Common Stock)
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.93%
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14. TYPE OF REPORTING PERSON* IN
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SCHEDULE 13D/A
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CUSIP No. 89151T 10-6 Page 2 of 7 Pages
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1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY) Revision LLC
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7. SOLE VOTING POWER
SHARES 3,057,434
OWNED BY --------------------------------------------------------
EACH 8. SHARED VOTING POWER 0
REPORTING --------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER 3,057,434
WITH --------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,057,434 Shares of Common Stock (excludes 1,208,137 Shares subject
to Put Agreement to purchase Common Stock)
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.93%
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14. TYPE OF REPORTING PERSON* OO
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This Amendment No. 15 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" or
the "Company"), supplements and amends the Schedule 13D previously filed with
the Securities and Exchange Commission (the "SEC") by Gold & Appel, S.A., 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"), Amendment No. 12
thereto filed with the SEC on November 18, 1998 ("Amendment No. 12"),
Amendment No. 13 thereto filed with the SEC on December 14, 1999 ("Amendment
No. 13") and Amendment No. 14 thereto filed with the SEC on January 26, 1999
("Amendment No. 14"). 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,Amendment No. 12, Amendment No. 13 and
Amendment No. 14.
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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is supplemented as follows:
Under a Put Agreement dated as of September 21, 1999 between Mr.
Anderson, Warren Feldman ("Mr. W. Feldman"), Solomon Feldman ("Mr. S.
Feldman") and Revision, which Put Agreement is filed herewith as Exhibit 7.2
(the "Feldman Put Agreement"), Mr. W. Feldman, Mr. S. Feldman and their
permitted designees have the right, but not the obligation (the "Put Option"),
to sell and deliver up to 1,103,817 Common Shares to Revision at a purchase
price of $16.00 per share upon the exercise of the Put Option at any time
during the period beginning on December 11, 1999 and ending at 5:00 p.m. on
February 10, 2000. Neither Revision nor Mr. Anderson have any right to
require any of the Common Shares subject to the Feldman Put Agreement to be
sold.
If, at the time scheduled for the closing of the put transaction pursuant
to the Feldman Put Agreement, Revision is unable or unwilling to pay the full
purchase price for the securities subject to purchase thereunder, then Mr.
Anderson and Revision are each required to grant Warren Feldman an irrevocable
proxy to vote all shares of Common Stock held or owned by them. This proxy
will terminate automatically upon the payment in full by Revision of the
purchase price for the securities subject to purchase under the Feldman Put
Agreement. In the Feldman Put Agreement, the parties also agreed to
termination of all existing agreements relating to the voting of
shares of the Issuer's Common Stock, including the agreement set forth in
Section 3(b) of the Stock Purchase Agreement, dated December 10, 1998, among
Mr. Anderson, Mr. W. Feldman, Mr. S. Feldman and Revision. A description of
the terms, as well as the full text, of the Stock Purchase Agreement is set
forth in Amendment No. 13 to the Schedule 13D or an exhibit thereto.
In addition, under a Put Agreement dated as of September 21, 1999 between
Mr. Anderson, Leon Genet ("Mr. Genet") and Revision, which Put Agreement is
filed herewith as Exhibit 7.3 (the "Genet Put Agreement"), Mr. Genet and his
permitted designees have the right, but not the obligation (the "Genet Put
Option"), to sell and deliver up to 104,320 Common Shares to Revision at a
purchase price of $16.00 per share upon the exercise of the Genet Put Option
at any time during the period beginning on December 11, 1999 and ending on
February 10, 2000. Neither Revision nor Mr. Anderson have any right to
require any of the Common Shares subject to the Genet Put Agreement to be
sold.
If the Feldman Put Option and/or the Genet Put Option are exercised,
Revision will fund the purchase price for the Common Shares which are the
subject of the Feldman Put Agreement and the Genet Put Agreement out of cash
on hand and, if necessary, out of the proceeds of a capital contribution from
Gold & Appel, S.A.
ITEM 4. PURPOSE OF TRANSACTION.
If the Feldman Put Option and/or the Genet Put Option are exercised,
Revision will acquire the above-mentioned Common Shares for investment
purposes. Mr. Anderson, on behalf of Revision, may determine to purchase
additional securities of the Issuer in market transactions or otherwise or to
sell some or all of any of the Common Shares owned by him or Revision, at any
time, in private or market transactions, depending on market conditions, an
evaluation of the Issuer's business, prospects and financial condition, the
market for the Common Shares, other opportunities available to him and to
Revision, general economic conditions, money and stock market conditions, and
other further developments. Mr. Anderson and/or Revision also may seek to
effect changes in the management and/or board of directors of the Issuer,
including without limitation the appointment of Mr. Anderson as a director of
the Issuer.
Contemporaneously with his execution of the Feldman Put Agreement,
Mr. W. Feldman submitted his resignation as a director of the Company. In
connection with his resignation, Revision paid Mr. W. Feldman $250,000
pursuant to a letter agreement dated September 21, 1999 between Revision and
Mr. W. Feldman, which letter agreement is filed herewith as Exhibit 7.4.
Except as described herein, at the present time, neither Revision nor
Mr. Anderson, on behalf of Revision, has any plans or proposals which relate
to or would result in:
(a) The acquisition of additional securities of the Issuer, or
the disposition of securities of the Issuer;
Page 3 of 7
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(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Issuer or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or of any of its subsidiaries;
(d) Any change in the Issuer's present board of directors or
management, including any plans or proposals to change the
number or term of directors or to fill any existing
vacancies on the Issuer's board of directors;
(e) Any material change in the present capitalization or
dividend policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
(g) Changes in the Issuer's charter or bylaws or other actions
which may impede the acquisition of control of the Issuer;
(h) Causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system
of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
Revision and Mr. Anderson, on behalf of Revision, may at any
time and from time to time review or reconsider the position of Revision and
formulate plans or proposals with respect to the Issuer and its securities,
but has no current intention of doing so.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 of the Schedule 13D is hereby amended as follows:
(a) Revision and Walt Anderson, collectively, beneficially own
3,057,634 Common Shares (excluding the 1,208,137 Common Shares subject to sale
to Revision upon exercise of the Feldman Put Option and the Genet Put Option),
representing approximately 38.93% of the outstanding Common Shares, based on
the outstanding shares as of September 14, 1999 pursuant to the Issuer's
Report on Form 10-Q filed with the U.S. Securities and Exchange Commission on
September 14, 1999. As described under Item 3 above, Revision has no right to
acquire the Common Shares subject to the Feldman Put Agreement and the Genet
Put Agreement, and therefore is not a beneficial owner thereof within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
In addition, Mr. Anderson is the President and a Director of the Foundation
for International Non-Governmental Development of Space ("FINDS") which owns
94,930 Common Shares. Mr. Anderson does not control FINDS and thus disclaims
beneficial ownership of the FINDS shares. Mr. Anderson directly owns 200
Common Shares or less than 0.01% of the outstanding Common Shares.
Page 4 of 7
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By virtue of the power-of-attorney dated January 19, 1998 and remaining
in full force and until January 15, 2001, executed by Gold & Appel and
appointing thereunder Mr. Anderson as Gold & Appel's attorney-in-fact (the
"Power-of-Attorney"), Mr. Anderson has the authority and power in the name of
and on behalf of Gold & Appel to, among other things, buy, sell and trade the
Common Shares held by Gold & Appel. A copy of the Power-of-Attorney is filed
as Exhibit 7.2 to the Statement on Schedule 13D filed with the U.S. Securities
and Exchange Commission by Gold & Appel with respect to the common stock of
Esprit Telecom Group plc on January 27, 1998, and is incorporated herein by
this reference. Under the Power-of-Attorney, Mr. Anderson may be deemed the
beneficial owner of the Common Shares held by Gold & Appel. Mr. Anderson,
however, disclaims beneficial ownership of the Common Shares held by Gold &
Appel.
(b) The sole power to vote or direct the voting of and the power to
dispose or direct the disposition of the 200 shares directly owned by Mr.
Anderson is held by Mr. Anderson.
As the Manager and holder of 100% of the voting membership interests
in Revision, Mr. Anderson has the sole power to vote or direct the voting of,
and to dispose of the 3,057,434 Common Shares beneficially owned by Revision.
Accordingly, Mr. Anderson may be deemed to be the beneficial owner of the
Revision Shares, and thereby the beneficial owner of 3,057,434 or 39.60% of
the outstanding Common Shares.
The number of shares beneficially owned by each of the Reporting
Persons and the percentage of outstanding shares represented thereby, have
been computed in accordance with Rule 13d-3 under the Securities Exchange Act
of 1934, as amended. The ownership of the Reporting Persons is based on
7,854,182 outstanding Common Shares of the Issuer as of September 14, 1999, as
reported in the Issuer's Quarterly Report on Form 10-Q for the quarterly
period ended July 31, 1999.
(c) Since the filing of Amendment No. 14, Revision and Mr. Anderson
entered into the Feldman Put Agreement and the Genet Put Agreement, which
obligate Revision to purchase up to 1,208,137 Common Shares upon the exercise
of the put rights thereunder by and at the election of the several parties
entitled to the benefit thereof, as reported in Item 3 above.
(d) No person is known by Revision nor by Mr. Anderson to have the right
to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the Common Shares beneficially owned by Revision or
Mr. Anderson. Until the delivery of the Common Shares to Revision pursuant to
the Feldman Put Agreement and the Genet Put Agreement, Mr. S. Feldman, Mr. W.
Feldman, Mr. Genet and their respective designees have the sole right to
receive dividends paid on the 1,208,137 Common Shares subject to such
Agreements. Mr. S. Feldman, Mr. W. Feldman, Mr. Genet and their respective
designees have the sole right to receive the proceeds from the sale of the
shares owned by each of them and their respective designees which are subject
to such Agreements.
(e) Not applicable.
Page 5 of 7
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is amended as follows:
Except for the Power-of-Attorney, the Joint Filing Agreement attached to
this Statement as Exhibit 7.1 and the Feldman Put Agreement and the Genet Put
Agreement described in Item 3 above, neither Revision nor Mr. Anderson has any
contract, arrangement, understanding or relationship (legal or otherwise) with
any person with respect to any securities of the Issuer, including but not
limited to the transfer of any of the Common Shares, beneficially owned by
Revision or Mr. Anderson, finder's fees, joint ventures, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit 7.1 Joint Filing Agreement with respect to the joint filing of
this Amendment No. 15 to Schedule 13D.
Exhibit 7.2 Put Agreement dated as of September 21, 1999 between Mr.
Anderson, Mr. W. Feldman, Mr. S. Feldman and Revision.
Exhibit 7.3 Put Agreement dated as of September 21, 1999 between Mr.
Anderson, Mr. Genet and Revision.
Exhibit 7.4 Letter Agreement dated September 21, 1999 between Revision
and Mr. W. Feldman.
Page 6 of 7
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 15 to Schedule 13D is
true, complete and correct.
Date: September 28, 1999
Gold & Appel Transfer, S.A.,
a British Virgin Islands corporation
By: /s/ Walt Anderson
-----------------------------------
Walt Anderson, Attorney-in-Fact for
Gold & Appel Transfer, S.A.
/s/ Walt Anderson
--------------------------------------
Walt Anderson
Page 7 of 7
EXHIBIT 7.1
JOINT FILING AGREEMENT
The undersigned hereby agree that the Amendment No. 15 to Schedule 13D to
which this Joint Filing Agreement is attached as Exhibit
7.1, is filed on behalf of each of us.
Date: September 28, 1999
Gold & Appel Transfer, S.A.,
a British Virgin Islands corporation
By: /s/ Walt Anderson
-------------------------------------
Walt Anderson, Attorney-in-Fact for
Gold & Appel Transfer, S.A.
/s/ Walt Anderson
---------------------------------------
Walt Anderson
PUT AGREEMENT
This PUT AGREEMENT ("Agreement") is made as of September 21, 1999 between
and among WALT ANDERSON, WARREN FELDMAN, SOLOMON FELDMAN, REVISION LLC, a
Delaware limited liability company ("Revision"), and TOTAL-TEL USA
COMMUNICATIONS, INC., a New Jersey corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Walt Anderson, Warren Feldman, Solomon Feldman and Revision each
is a stockholder of the Company; and
WHEREAS, Warren Feldman, Solomon Feldman, Walt Anderson, and Revision
each desires to enter into certain arrangements pursuant to which Warren
Feldman, Solomon Feldman and one or more of their respective Designees (as
defined below) will have the right (but not the obligation) to sell some or
all of their shares of Common Stock of the Company ("Common Stock") not to
exceed 1,103,817 shares of Common Stock in the aggregate to Revision, and
Revision will be obligated to purchase such shares of Common Stock from Warren
Feldman, Solomon Feldman, and their respective Designees (collectively, the
"Put Holders"), on the terms and subject to the conditions set forth herein;
and
WHEREAS, to induce Warren Feldman to enter into the Separation Agreement
(as defined below), the Company is willing to pay the related legal fees of
its counsel relating to their participation in the preparation and negotiation
of this Agreement.
NOW, THEREFORE, in consideration of the above mentioned premises, the
mutual covenants and agreements contained herein, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
1.1 Defined Terms. The capitalized terms contained and used in this
Agreement which are defined below shall have the respective meanings ascribed
to them as follows:
(a) "Claims" shall have the meaning set forth in Section 5.1.
(b) "Closing" shall have the meaning set forth in Section 3.1.
(c) "Common Stock" shall have the meaning set forth in the recitals
above.
(d) "Company" shall have the meaning set forth in the recitals above.
(e) "Designee" shall mean a person or entity who (i) is the record or
beneficial owner of Common Stock on the date hereof; (ii) if an individual, is
(A) a sibling, lineal ancestor or lineal descendant of Warren Feldman or
Solomon Feldman, (B) the spouse of a sibling, lineal ancestor or lineal
descendant of Warren Feldman or Solomon Feldman, or (C) the sibling (or such
sibling's spouse) of the spouse of Warren Feldman or Solomon Feldman; and
(iii) if a corporation,
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limited liability company, trust or partnership, is owned or controlled by
Warren Feldman or Solomon Feldman on the date hereof, and in each case has
been designated by Warren Feldman or Solomon Feldman to sell shares of Common
Stock pursuant to the Put Option in amounts to be determined by Warren Feldman
or Solomon Feldman and set forth in the Exercise Notice.
(f) "Exercise Notice" shall have the meaning set forth in Section 2.1.
(g) "Exercise Period" shall mean the period beginning on December 11,
1999 and ending at 5:00 p.m. on February 10, 2000.
(h) "Indemnified Liabilities" shall have the meaning set forth in Section
5.1.
(i) "Indemnified Parties" shall have the meaning set forth in Section
5.1.
(j) "Loss Notice" shall have the meaning set forth in Section 5.1.
(k) "Put Holders" shall have the meaning set forth in the recitals above.
(l) "Put Option" shall have the meaning set forth in Section 2.2.
(m) "Revision" shall have the meaning set forth in the recitals above.
(n) "Securities" shall have the meaning set forth in Section 2.1.
(o) "Securities Act" shall have the meaning set forth in Section 4.2.
(p) "Separation Agreement" shall mean that certain Separation Agreement
dated as of the date hereof between Warren Feldman and the Company.
(q) "Settlement Agreement" shall mean that certain Settlement Agreement
among the Company, Revision and Walt Anderson dated December 10, 1998.
1.2 Rules of Construction. The words "hereby", "herein",
"hereunder," and words of similar import refer to this Agreement as a whole
(including any Exhibits and Schedules hereto) and not merely to the specific
section, paragraph or clause in which such word appears. The definitions
given for terms in this Agreement shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine, and neuter forms.
The conjunction "or" shall be understood in its inclusive sense (and/or).
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ARTICLE II
PUT OPTION
2.1 Grant of Put Option. On one occasion during the Exercise Period,
each of the Put Holders shall have the right (but not the obligation) to sell
to Revision, and Revision shall be obligated to purchase from each such Put
Holder, up to an aggregate of 1,103,817 shares of Common Stock (the
"Securities") at a purchase price of $16 per share.
2.2 Manner of Exercise. To exercise the put option set forth in
Section 2.1 (the "Put Option"), Warren Feldman, acting for himself and as
agent for Solomon Feldman and, if so designated, one or more of their
Designees, shall deliver written notice thereof (the "Exercise Notice") to
Revision at any time during the Exercise Period. Such Exercise Notice shall
(a) list each Put Holder who will sell shares of Common Stock, (b) specify the
number of shares to be sold by each such Put Holder, (c) provide the account
information (name of bank, address of bank, ABA number and bank account
number) to which the purchase price payment for such Put Holder should be
wired, (d) state the aggregate purchase price for the Securities subject to
the Exercise Notice and provide a breakdown of the amounts to be received by
each Put Holder, and (e) specify a suggested date and time for the Closing.
The Put Option shall automatically expire (to the extent then unexercised)
without any further action of the parties, and no party shall have any further
rights or obligations under this Agreement except as provided in Section 6.3,
upon the earlier of (i) the exercise of the Put Option or (ii) the expiration
of the Exercise Period without the exercise by Put Holders of their rights
under the Put Option.
ARTICLE III
CLOSING
3.1 Closing of the Purchase. The closing of any purchase of
Securities pursuant to exercise of the Put Option (the "Closing") shall be
held at the offices of Swidler Berlin Shereff Friedman, LLP, 3000 K Street,
N.W., Washington, D.C., on the thirtieth business day after delivery of the
Exercise Notice, or on such later date as each of the conditions to Closing
set forth in Section 3.2 shall have been satisfied or waived by the party
entitled to the benefit thereof.
3.2 Conditions to Closing. It shall be a condition to the obligations
of the parties to purchase and sell Securities following the delivery of the
Exercise Notice that:
(a) Any waiting period (and any extension thereof) under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, applicable
to the purchase by Revision of the Securities shall have expired or been
terminated;
(b) The representations and warranties of the parties contained
in this Agreement shall have been true and complete when made, and shall be
true and complete on and as of the date of the Closing as though such
representations and warranties were made at and as of such date, except as
otherwise expressly contemplated herein; and
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(c) Each of the parties to the Separation Agreement shall have
duly performed and complied in all material respects with all agreements,
covenants and conditions required to be performed or complied with by it under
such Separation Agreement.
3.3 Deliveries at Closing. At the Closing:
(a) Each Put Holder listed in the Exercise Notice shall
deliver to Revision one or more certificates representing the Securities duly
endorsed in blank or with stock power attached and signatures guaranteed;
(b) Each Put Holder listed in the Exercise Notice shall
deliver to Revision a signed statement, dated as of the date of the Closing,
pursuant to which such Put Holder represents and warrants to Revision that (i)
such Put Holder is the sole beneficial and record owner of all right, title,
and interest in and to the shares of Common Stock to be sold to Revision by
the Put Holder, (ii) such shares of Common Stock are 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 (iii) upon the delivery of the stock certificates at the
Closing, such Put Holder will transfer good, valid, and marketable title to
the shares of Common Stock to Revision, free and clear of any security
interests, claims, liens, pledges, options, encumbrances, charges, agreements
(other than those created by the Settlement Agreement), voting trusts,
proxies, preemptive rights or rights of first refusal or other arrangements,
restrictions or legal or equitable limitations of any kind; and
(c) Revision simultaneously shall pay to each Put Holder
listed in the Exercise Notice the purchase price specified in such Exercise
Notice in immediately-available funds by wire transfer to the account or
accounts specified in the Exercise Notice.
3.4 Inability to Complete Purchase.
(a) If, at the time of the Closing, Revision is unable or
unwilling to pay any Put Holder the full purchase price for the Securities
subject to purchase from such Put Holder in accordance herewith for any reason
(other than as a consequence of the failure by such Put Holder to satisfy the
conditions precedent specified in Section 3.2), then, in addition to their
other remedies, (i) any Put Holder may elect to rescind the sale and retain
the Securities specified in the Exercise Notice; and (ii) Walt Anderson and
Revision shall each grant Warren Feldman an irrevocable proxy to vote all
shares of Common Stock held or owned by Walt Anderson and/or Revision or
standing in the name of Walt Anderson and/or Revision (the "Proxy Stock"),
which proxy shall include, without limitation, the right to attend all meeting
of stockholders of the Company and then and there vote all such shares of
Proxy Stock for the transaction of any and all business that may come before
such meetings and any adjournments thereof, and the right to represent and to
vote all shares of Proxy Stock according to the number of votes that Walt
Anderson and/or Revision would be entitled to cast if personally present.
(b) The proxy set forth in this Section 3.4 shall terminate
automatically upon the payment in full by Revision of the purchase price for
the Securities subject to purchase from each Put Holder in accordance
herewith.
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<PAGE>05
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Certain Representations and Warranties by the Feldmans.
(a) Each of Warren Feldman and Solomon Feldman represents and
warrants, severally and not jointly, as of the date hereof and again on the
date of such Closing, 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
satisfaction of the condition set forth in Section 3.2(a), 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,
(iii) that each Put Holder will be the sole beneficial and record owner of all
right, title, and interest in and to number of shares of Common Stock
specified in any Exercise Notice executed by such Put Holder, and (iv) upon
the delivery of the stock certificates at the Closing, each Put Holder will
transfer good, valid, and marketable title to such shares of Common Stock 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.
(b) Warren Feldman represents and warrants, as of the date hereof
and again on the date of the Closing, that he and his Designees are the sole
beneficial or record owners of all right, title, and interest in and to
855,879 shares of Common Stock, including 120,222 shares of Common Stock
issuable upon exercise of vested but unexercised options to purchase shares of
Common Stock.
(c) Solomon Feldman represents and warrants, as of the date hereof
and again on the date of the Closing, that he and his Designees are the sole
beneficial or record owners of all right, title, and interest in and to
247,938 shares of Common Stock.
4.2 Certain Representations and Warranties by Revision and Walt
Anderson.
(a) Revision represents and warrants, as of the date hereof
and again on the date of the Closing, 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 satisfaction of the
condition set forth in Section 3.2(a), the execution, delivery, and
performance by Revision of this Agreement will not violate any order, writ,
injunction,
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<PAGE>05
decree, statute, rule, or regulation applicable to Revision or any of its
properties or assets, (vi) upon exercise of the Put Option, Revision will
acquire the Securities 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"),
(vii) Revision is an Accredited Investor within the meaning ascribed to such
term under Regulation D of the rules and regulations promulgated under the
Securities Act, (viii) all shares of Common Stock owned by Revision are owned
free and clear of any voting trusts, proxies, preemptive rights or rights of
first refusal (except as provided in Section 3.4), and (ix) the net
liquidation value of Revision's assets is in excess of $20,000,000.
(b) Walt Anderson represents and warrants, as of the date hereof
and again on the date of the Closing, that (i) he has full authority to
execute and deliver this Agreement on his own behalf and on behalf of
Revision, (ii) 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 (iii) subject to the provisions of Section
3.2(a), 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.
ARTICLE V
COVENANTS AND UNDERTAKINGS
5.1 Indemnification.
(a) Revision shall indemnify, defend, and hold harmless Warren
Feldman, Solomon Feldman, and each of their respective Designees (the
"Indemnified Parties") against all losses, claims, damages, costs, expenses,
liabilities, or judgments or amounts (including reasonable attorneys' fees)
that are suffered or incurred by them in connection with any claim, action,
suit, proceeding, or investigation resulting from the purchase of shares of
Common Stock by Revision pursuant to this Agreement and the other transactions
contemplated herein and in the Separation Agreement except to the extent that
the same shall result from the gross negligence or intentional misconduct of
any Indemnified Party or from the breach by any Indemnified Party of any of
its representations, warranties, or covenants hereunder (collectively, the
"Indemnified Liabilities").
(b) If an Indemnified Party desires to claim indemnification
pursuant to this Agreement, upon learning of any such claim, action, suit,
proceeding, or investigation (collectively, "Claims"), he shall as promptly as
practicable notify Revision by written notice (a "Loss Notice") (but the
failure so to notify Revision shall not relieve it from any liability which it
may have under this Agreement except to the extent such failure prejudices
Revision). Revision shall have the option (i) to conduct any proceedings or
negotiations in connection with any such Claims, (ii) to take all other steps
to settle or defend any such Claim (provided that Revision shall not settle
any such Claim without the written consent of the Indemnified Parties, which
consent shall not be unreasonably withheld), and (iii) to employ counsel
chosen by the Indemnified Parties (but reasonably acceptable to Revision) to
contest any such Claim in the name of the Indemnified Parties or otherwise.
In the event that a settlement entails only the payment of money damages and
includes the full and final release of all Claims against all Indemnified
Parties, no consent of the Indemnified Parties shall be required for such
settlement.
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<PAGE>06
In the event that a settlement entails only the payment of money damages by an
Indemnified Party, no consent of the Indemnified Parties shall be required for
settlement; provided that at the request of an Indemnified Party within five
days of notice to such Indemnified Party of a proposed cash settlement,
Revision shall pay the amount of the cash settlement to the Indemnified Party
which payment shall fully and finally discharge all obligations of Revision
hereunder with respect to the Indemnified Liabilities. In any event, an
Indemnified Party shall be entitled to participate at his own expense and by
his own counsel in any proceedings relating to any Claim.
(c) Revision shall, within twenty (20) days of receipt of the
Loss Notice, notify the Indemnified Parties of its intention to assume the
defense of such Claim. If (i) Revision shall decline to assume the defense of
any such Claim, (ii) Revision shall fail to notify the Indemnified Parties
within twenty (20) days after receipt of the Loss Notice of Revision's
election to defend such Claim, or (iii) the Indemnified Parties shall have
reasonably concluded that there may be defenses available to them which are
different from or in addition to those available to Revision or a conflict
exists between Revision, on the one hand, and the Indemnified Parties, on the
other hand (in which case Revision shall not have the right to direct the
defense of such action on behalf of the Indemnified Parties), the Indemnified
Parties shall defend against such Claim. The indemnification under this
Agreement shall only be available for a Claim or proceeding against the
Indemnified Parties to the extent that indemnification from the Company under
any applicable director and officer indemnification policies provided by the
Company is insufficient or unavailable.
(d) The indemnification obligations of Revision hereunder shall
apply only to Indemnified Liabilities arising from Claims as to which notice
has been provided to Revision by the Indemnified Parties within sixty (60)
days of receipt of such notice by the Indemnified Parties.
5.2 Other Covenants and Undertakings.
(a) Following the exercise of the Put Option, each party will
use his or its commercially reasonable efforts to obtain satisfaction of the
conditions set forth in Section 3.2.
(b) In the period beginning on the date hereof and ending on
the earlier of (i) the date all of the Securities owned by Warren Feldman,
Solomon Feldman and their Designees are acquired by Revision, or (ii) the date
of expiration of the Exercise Period, Revision shall not sell, pledge,
mortgage, encumber, or otherwise dispose of any shares of the Company's Common
Stock.
(c) Walt Anderson shall cause Revision to perform and comply
in all material respects with all agreements, covenants, and conditions
required to be performed or complied with by it under this Agreement.
(d) At all times beginning on the date hereof and ending on
the earlier of (i) the date all of the shares of Common Stock owned by Warren
Feldman, Solomon Feldman and their Designees are acquired by Revision, or (ii)
the date of expiration of the Exercise Period, Revision shall maintain the net
liquidation value of its assets at or above $20,000,000. In the
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<PAGE>07
event that the net liquidation value of Revision's assets declines below
$20,000,000, Revision shall, within twenty-four (24) hours, so notify Warren
Feldman in writing.
(e) The parties hereby terminate each and every existing
agreement between or among the parties hereto relating to the voting of shares
of the Company's Common Stock, including without limitation the agreement set
forth in Section 3(b) of that certain Stock Purchase Agreement dated December
10, 1998 among Walt Anderson, Warren Feldman, Solomon Feldman and Revision
(but excluding the voting agreements contained in Section 3.4 hereof).
ARTICLE VI
GENERAL MATTERS
6.1 Notice. 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 Warren Feldman and/or Solomon Feldman:
102 West Hill Road
Woodcliff Lake, New Jersey 07675
Attn: Warren Feldman
Facsimile No.: (201) 573-0875
With a copy to:
1500 Palisade Avenue
Apt. 17A
Fort Lee, NJ 07024
Attn: Solomon Feldman
(b) If to Revision or Walt Anderson:
Walt Anderson
c/o Gold & Appel Transfer, S.A.
1023 31st Street, 4th Floor
Washington, D.C. 20007
Facsimile No.: (202)736-5065
With a copy to:
Swidler Berlin Shereff Friedman, LLP
3000 K Street, N.W., Suite 300
Washington, D.C. 20007
Attn: Sean P. McGuinness
Facsimile No. (202) 424-7643
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<PAGE>08
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.
6.2 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 its principles or rules of conflict of laws to the extent such principles
or rules would require or permit the application of the laws of another
jurisdiction.
6.3 Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses; provided, however, that the Company shall pay
fees and expenses of Covington & Burling, its counsel, incurred in connection
with the preparation of this Agreement.
6.4 No Third-Party Beneficiaries. Nothing in this Agreement shall be
construed as giving any person or entity, other than the parties hereto, the
Designees and their successors and permitted assigns, any right, remedy, or
claim under or in respect of this Agreement or any provision hereof, except as
expressly provided herein.
6.5 Successors and Assigns; Severability. This Agreement shall be
binding upon the respective successors, heirs, trustees and permitted assigns
of the parties hereto. This Agreement shall not be assignable or otherwise
transferable by any party without the prior written consent of the other
parties and any attempt to so assign or transfer this Agreement without such
consent shall be void and of no effect. If any provision of this Agreement is
held to be unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to this
Agreement to the extent possible.
6.6 Counterparts; Amendments; Entire Agreement, Etc. This Agreement
and any amendments hereto may be executed in one or more counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument. This Agreement may be changed, modified, amended or supplemented
only by written instrument signed by the parties hereto. No provision of this
Agreement may be waived orally, but only by a written instrument signed by the
party against whom enforcement of such waiver is sought. The headings in this
Agreement are inserted for convenience only and shall not constitute a part
hereof. This Agreement constitutes the entire agreement and understanding of
the parties with respect to its subject matter and supersedes all oral
communications and prior writings with respect thereto.
6.7 Termination Upon Rejection of Separation Agreement.
Notwithstanding any provision hereof to the contrary, if Warren Feldman shall
revoke the Separation Agreement pursuant to Section 10(h) thereof, this
Agreement shall thereupon terminate and shall be void and of no force and
effect.
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<PAGE>09
IN WITNESS WHEREOF, this Put Agreement has been executed and delivered by
the parties hereto on the date first above written.
REVISION LLC
By: /s/ Walt Anderson
---------------------------
Name: Walt Anderson
Title: Manager
/s/ Walt Anderson
------------------------------
Walt Anderson
_______________________________
/s/ Warren Feldman
------------------------------
Warren Feldman
_______________________________
/s/ Solomon Feldman
------------------------------
Solomon Feldman
TOTAL-TEL USA COMMUNICATIONS, INC.
By: /s/ Dennis Spina
--------------------------------------
Name: Dennis Spina
Title: President & Chief Executive Officer
PUT AGREEMENT
This PUT AGREEMENT ("Agreement") is made as of September 21, 1999 between
and among LEON GENET, WALT ANDERSON, REVISION LLC, a Delaware limited
liability company ("Revision") and TOTAL-TEL USA COMMUNICATIONS, INC., a New
Jersey corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Leon Genet, Walt Anderson and Revision each is a stockholder of
the Company; and
WHEREAS, Leon Genet, Walt Anderson and Revision each desires to enter
into certain arrangements pursuant to which Leon Genet and one or more of his
Designees (as defined below) will have the right (but not the obligation) to
sell some or all of their shares of Common Stock of the Company ("Common
Stock") not to exceed 104,320 shares of Common Stock in the aggregate to
Revision, and Revision will be obligated to purchase such shares of Common
Stock from Leon Genet and his Designees (collectively, the "Put Holders"), on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the above mentioned premises, the
mutual covenants and agreements contained herein, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
1.1 Defined Terms. The capitalized terms contained and used in this
Agreement which are defined below shall have the respective meanings ascribed
to them as follows:
(a) "Claims" shall have the meaning set forth in Section 5.1.
(b) "Closing" shall have the meaning set forth in Section 3.1.
(c) "Common Stock" shall have the meaning set forth in the
recitals above.
(d) "Company" shall have the meaning set forth in the recitals
above.
(e) "Designee" shall mean a person or entity who (i) is the
record or beneficial owner of Common Stock on the date hereof, (ii) if an
individual, is a sibling, lineal ancestor or lineal descendant of Leon Genet,
or the spouse of a sibling, lineal ancestor or lineal descendant of Leon
Genet, and (iii) if a corporation, limited liability company or partnership,
is owned or controlled by Leon Genet on the date hereof, and in each case has
been designated by Leon Genet to sell shares of Common Stock pursuant to the
Put Option in amounts to be determined by Leon Genet and set forth in the
Exercise Notice.
(f) "Exercise Notice" shall have the meaning set forth in
Section 2.1.
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<PAGE>02
(g) "Exercise Period" shall mean the period beginning on December
11, 1999 and ending at 5:00 p.m. on February 10, 2000.
(h) "Indemnified Liabilities" shall have the meaning set forth in
Section 5.1.
(i) "Indemnified Parties" shall have the meaning set forth in
Section 5.1.
(j) "Loss Notice" shall have the meaning set forth in Section 5.1.
(k) "Put Holders" shall have the meaning set forth in the recitals
above.
(l) "Put Option" shall have the meaning set forth in Section 2.2.
(m) "Revision" shall have the meaning set forth in the recitals
above.
(n) "Securities" shall have the meaning set forth in Section 2.1.
(o) "Securities Act" shall have the meaning set forth in Section
4.2.
1.2 Rules of Construction. The words "hereby", "herein",
"hereunder," and words of similar import refer to this Agreement as a whole
(including any Exhibits and Schedules hereto) and not merely to the specific
section, paragraph or clause in which such word appears. The definitions
given for terms in this Agreement shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine, and neuter forms.
The conjunction "or" shall be understood in its inclusive sense (and/or).
ARTICLE II
PUT OPTION
2.1 Grant of Put Option. On one occasion during the Exercise Period,
each of the Put Holders shall have the right (but not the obligation) to sell
to Revision, and Revision shall be obligated to purchase from each such Put
Holder, up to an aggregate of 104,320 shares of Common Stock, (the
"Securities") at a purchase price of $16 per share.
2.2 Manner of Exercise. To exercise the put option set forth in
Section 2.1(the "Put Option"), Leon Genet, acting for himself and as agent for
one or more of his Designees, shall deliver written notice thereof (the
"Exercise Notice") to Revision at any time during the Exercise Period. Such
Exercise Notice shall (a) list each Put Holder who will sell shares of Common
Stock, (b) specify the number of shares to be sold by each such Put Holder,
(c) provide the account information (name of bank, address of bank, ABA number
and bank account number) to which the purchase price payment for such Put
Holder should be wired, (d) state the aggregate purchase price for the
Securities subject to the Exercise Notice and provide a breakdown of the
amounts to be received by each Put Holder, and (e) specify a suggested date
and time for the Closing. The Put Option shall automatically expire (to the
extent then unexercised) without any further action of the parties, and no
party shall have any further rights or obligations under this Agreement except
as provided in Section 6.3, upon the earlier of (i) the exercise of the Put
<PAGE>
<PAGE>03
Option or (ii) the expiration of the Exercise Period without the exercise by
Put Holders of their rights under the Put Option.
ARTICLE III
CLOSING
3.1 Closing of the Purchase. The closing of any purchase of
Securities pursuant to exercise of the Put Option (the "Closing") shall be
held at the offices of Swidler Berlin Shereff Friedman, LLP, 3000 K Street,
N.W., Washington, D.C., on the thirtieth business day after delivery of the
Exercise Notice, or on such later date as each of the conditions to Closing
set forth in Section 3.2 shall have been satisfied or waived by the party
entitled to the benefit thereof.
3.2 Conditions to Closing. It shall be a condition to the
obligations of the parties to purchase and sell Securities following the
delivery of the Exercise Notice that:
(a) Any waiting period (and any extension thereof) under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, applicable
to the purchase by Revision of the Securities shall have expired or been
terminated; and
(b) The representations and warranties of the parties
contained in this Agreement shall have been true and complete when made, and
shall be true and complete on and as of the date of the Closing as though such
representations and warranties were made at and as of such date, except as
otherwise expressly contemplated herein.
3.3 Deliveries at Closing. At the Closing:
(a) Each Put Holder listed in the Exercise Notice shall
deliver to Revision one or more certificates representing the Securities duly
endorsed in blank or with stock power attached and signatures guaranteed; and
(b) Each Put Holder listed in the Exercise Notice shall
deliver to Revision a signed statement, dated as of the date of the Closing,
pursuant to which such Put Holder represents and warrants to Revision that (i)
such Put Holder is the sole beneficial and record owner of all right, title
and interest in and to the shares of Common Stock to be sold to Revision by
the Put Holder, (ii) such shares of Common Stock are 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 (iii) upon the delivery of the stock certificates at the
Closing, such Put Holder will transfer good, valid and marketable title to the
shares of Common Stock 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
(c) Revision simultaneously shall pay to each Put Holder
listed in the Exercise Notice the purchase price specified in such Exercise
Notice in immediately-available funds by wire transfer to the account or
accounts specified in the Exercise Notice.
<PAGE>
<PAGE>04
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Certain Representations and Warranties by Leon Genet.
(a) Leon Genet represents and warrants as of the date hereof
and again on the date of the Closing, 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 satisfaction of the conditions set forth in Section 3.2(a), 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, (iii) that each Put Holder will be the sole beneficial and record
owner of all right, title, and interest in and to number of shares of Common
Stock specified in the Exercise Notice executed by such Put Holder, and (iv)
upon the delivery of the stock certificates at the Closing, each Put Holder
will transfer good, valid, and marketable title to such shares of Common Stock
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.
(b) Leon Genet represents and warrants as of the date hereof
and again on the date of the Closing, that he and his Designees are the sole
beneficial and record owners of all right, title and interest in and to
104,320 shares of Common Stock.
4.2 Certain Representations and Warranties by Revision and Walt
Anderson.
(a) Revision represents and warrants, as of the date hereof
and again on the date of the Closing, 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 satisfaction of the
condition set forth in Section 3.2(a), 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) upon exercise of the Put Option, Revision
will acquire the Securities 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"),
(vii) Revision is an Accredited Investor within the meaning ascribed to such
term under Regulation D of the rules and regulations promulgated under the
Securities Act, (viii) all shares of Common Stock owned
<PAGE>
<PAGE>05
by Revision are owned free and clear of any voting trusts, proxies, preemptive
rights or rights of first refusal (except as provided in Section 3.4 of the
Put Agreement of even date herewith among Walt Anderson, Warren Feldman,
Solomon Feldman, Revision and Total-Tel), and (ix) the net liquidation value
of Revision's assets is in excess of $20,000,000.
(c) Walt Anderson represents and warrants, as of the date hereof
and again on the date of the Closing, that (i) he has full authority to
execute and deliver this Agreement on his own behalf and on behalf of
Revision, (ii) 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, (iii) subject to the provisions of Section
3.2(a), 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.
ARTICLE V
COVENANTS AND UNDERTAKINGS
5.1 Indemnification.
(a) Revision shall indemnify, defend, and hold harmless Leon
Genet and each of his Designees (the "Indemnified Parties") against all
losses, claims, damages, costs, expenses, liabilities, or judgments or amounts
(including reasonable attorneys' fees) that are suffered or incurred by them
in connection with any claim, action, suit, proceeding, or investigation
resulting from the purchase of shares of Common Stock by Revision pursuant to
this Agreement and the other transactions contemplated herein except to the
extent that the same shall result from the gross negligence or intentional
misconduct of any Indemnified Party or from the breach by an Indemnified Party
of any of its representations, warranties, or covenants hereunder (the
"Indemnified Liabilities").
(b) If an Indemnified Party desires to claim indemnification
pursuant to this Agreement, upon learning of any such claim, action, suit,
proceeding, or investigation (collectively, "Claims"), he shall as promptly as
practicable notify Revision by written notice (a "Loss Notice") (but the
failure so to notify Revision shall not relieve it from any liability which it
may have under this Agreement except to the extent such failure prejudices
Revision). Revision shall have the option (i) to conduct any proceedings or
negotiations in connection with any such Claims, (ii) to take all other steps
to settle or defend any such Claim (provided that Revision shall not settle
any such Claim without the written consent of the Indemnified Parties, which
consent shall not be unreasonably withheld), and (iii) to employ counsel
chosen by the Indemnified Parties (but reasonably acceptable to Revision) to
contest any such Claim in the name of the Indemnified Parties or otherwise.
In the event that a settlement entails only the payment of money damages and
includes the full and final release of all Claims against all Indemnified
Parties, no consent of the Indemnified Parties shall be required for such
settlement. In the event that a settlement entails only the payment of money
damages by an Indemnified Party, no consent of the Indemnified Parties shall
be required for settlement; provided that at the request of an Indemnified
Party within five days of notice to such Indemnified Party of a proposed cash
settlement, Revision shall pay the amount of the cash settlement to the
Indemnified Party which payment shall fully and finally discharge all
obligations of Revision hereunder with respect to the Indemnified Liabilities.
<PAGE>
<PAGE>06
In any event, an Indemnified Party shall be entitled to participate at his own
expense and by his own counsel in any proceedings relating to any Claim.
(c) Revision shall, within twenty (20) days of receipt of the
Loss Notice, notify the Indemnified Parties of its intention to assume the
defense of such Claim. If (i) Revision shall decline to assume the defense of
any such Claim, (ii) Revision shall fail to notify the Indemnified Parties
within twenty (20) days after receipt of the Loss Notice of Revision's
election to defend such Claim, or (iii) the Indemnified Parties shall have
reasonably concluded that there may be defenses available to them which are
different from or in addition to those available to Revision or a conflict
exists between Revision, on the one hand, and the Indemnified Parties, on the
other hand (in which case Revision shall not have the right to direct the
defense of such action on behalf of the Indemnified Parties), the Indemnified
Parties shall defend against such Claim. The indemnification under this
Agreement shall only be available for a Claim or proceeding against the
Indemnified Parties to the extent that indemnification from the Company under
any applicable director and officer indemnification policies provided by the
Company is insufficient or unavailable.
(d) The indemnification obligations of Revision hereunder shall
apply only to Indemnified Liabilities arising from Claims as to which notice
has been provided to Revision by the Indemnified Parties within sixty (60)
days of receipt of such notice by the Indemnified Parties.
5.2 Other Covenants and Undertakings.
(a) Following the exercise of the Put Option, each party will
use his or its commercially reasonable efforts to obtain satisfaction of the
conditions set forth in Section 3.2.
(b) In the period beginning on the date hereof and ending on
the earlier of (i) the date all of the shares of Common Stock owned by Leon
Genet and his Designees are acquired by Revision, or (ii) the date of
expiration of the Exercise Period, Revision shall not sell, pledge, mortgage,
encumber, or otherwise dispose of any shares of the Company's Common Stock.
(c) Walt Anderson shall cause Revision to perform and comply in
all material respects with all agreements, covenants, and conditions required
to be performed or complied with by it under this Agreement.
(d) At all times beginning on the date hereof and ending on the
earlier of (i) the date all of the shares of Common Stock owned by Leon Genet
and his Designees are acquired by Revision, or (ii) the date of expiration of
the Exercise Period, Revision shall maintain the net liquidation value of its
assets at or above $20,000,000. In the event that the net liquidation value of
Revision's assets declines below $20,000,000, Revision shall, within twenty-
four (24) hours, so notify Leon Genet in writing.
(e) On the day that is the earlier of (i) the date all of the
shares of Common Stock owned by Leon Genet are acquired by Revision, or (ii)
the date of expiration of the Exercise Period, Leon Genet shall submit a
letter to the Secretary of the Company and thereby resign from the Board of
Directors of the Company, such resignation to be effective at 5:00 p.m. on the
first business day following receipt thereof.
<PAGE>
<PAGE>07
ARTICLE VI
GENERAL MATTERS
6.1 Notice. 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 Leon Genet:
30 Farmstead Road
Short Hills, NJ 07078
Attn: Leon Genet
(b) If to Revision or Walt Anderson:
c/o Gold & Appel Transfer, S.A.
1023 31st Street, 4th Floor
Washington, D.C. 20007
Attn: Walt Anderson
Facsimile No.: (202)736-5065
With a copy to:
Swidler Berlin Shereff Friedman, LLP
3000 K Street, N.W., Suite 300
Washington, D.C. 20007
Attn: Sean P. McGuinness
Facsimile No.: (202) 424-7643
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.
6.2 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 its principles or rules of conflict of laws to the extent such principles
or rules would require or permit the application of the laws of another
jurisdiction.
6.3 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such expenses; provided, however, that the Company shall pay fees
and expenses of Covington & Burling, its counsel, incurred in connection with
the preparation of this Agreement.
<PAGE>
<PAGE>08
6.4 No Third-Party Beneficiaries. Nothing in this Agreement shall be
construed as giving any person or entity, other than the parties hereto, the
Designees and their successors and permitted assigns, any right, remedy, or
claim under or in respect of this Agreement or any provision hereof, except as
expressly provided herein.
6.5 Successors and Assigns; Severability. This Agreement shall be
binding upon the respective successors, heirs, trustees and permitted assigns
of the parties hereto. This Agreement shall not be assignable or otherwise
transferable by any party without the prior written consent of the other
parties and any attempt to so assign or transfer this Agreement without such
consent shall be void and of no effect. If any provision of this Agreement is
held to be unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to this
Agreement to the extent possible.
6.6 Counterparts; Amendments; Entire Agreement, Etc. This Agreement
and any amendments hereto may be executed in one or more counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument. This Agreement may be changed, modified, amended or supplemented
only by written instrument signed by the parties hereto. No provision of this
Agreement may be waived orally, but only by a written instrument signed by the
party against whom enforcement of such waiver is sought. The headings in this
Agreement are inserted for convenience only and shall not constitute a part
hereof. This Agreement constitutes the entire agreement and understanding of
the parties with respect to its subject matter and supersedes all oral
communications and prior writings with respect thereto.
[END OF TEXT; SIGNATURE PAGE FOLLOWS]
<PAGE>
<PAGE>09
IN WITNESS WHEREOF, this Put Agreement has been executed and delivered by
the parties hereto on the date first above written.
REVISION LLC
By: /s/ Walt Anderson
---------------------------
Name: Walt Anderson
Title: Manager
/s/ Walt Anderson
-------------------------------
Walt Anderson
/s/ Leon Genet
-------------------------------
Leon Genet
TOTAL-TEL USA COMMUNICATIONS, INC.
By: /s/ Dennis Spina
-------------------------------
Name: Dennis Spina
Title: President & Chief Executive
Officer
REVISION, LLC
September 21, 1999
Warren Feldman, Esq.
102 West Hill Road
Woodcliff Lake, New Jersey 07675
Re: Separation Agreement
Dear Warren:
Reference is made to that certain Separation Agreement (the "Separation
Agreement") between you and Total-Tel USA Communications, Inc. (the "Company")
dated as of the date hereof and to that certain Put Agreement (the "Put
Agreement") among you, Solomon Feldman, Revision LLC and the Company dated as
of the date hereof. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Separation Agreement.
In order to induce you to enter into the Separation Agreement and the
Put Agreement, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, Revision LLC hereby irrevocably
agrees to pay you the sum of $250,000, which amount shall be payable promptly
(but in any event not later than three (3) business days) following the
execution and delivery the Separation Agreement.
The provisions of Section 10 of the Separation Agreement shall apply to
this letter agreement, mutatis mutandis.
If the foregoing accurately reflects our understanding on this matter,
please so indicate by acknowledging where indicated below and returning a
countersigned copy of this letter to us.
Very truly yours,
/s/ Walt Anderson
Walt Anderson
Manager
ACKNOWLEDGED AND AGREED:
/s/ Warren Feldman
- ---------------------
Warren Feldman
