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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 22, 1999
TOTAL-TEL USA COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY
(State or other jurisdiction of incorporation)
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<S> <C>
0-2180 1656895
(Commission File Number) (I.R.S. Employer
Identification Number)
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OVERLOOK AT GREAT NOTCH
150 CLOVE ROAD
LITTLE FALLS, NEW JERSEY 07054
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 812-1100
NONE
(Former name or former address, if changed since last report)
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Item 5. Other Events
On September 21, 1999, Warren Feldman and the Total-Tel USA
Communications, Inc., a New Jersey corporation (the "Registrant"), entered into
a Separation Agreement (the "Separation Agreement") providing, among other
things, for (i) the termination of the Employment Agreement, dated May 5, 1999,
by and between Warren Feldman and the Registrant (the "Employment Agreement"),
and (ii) the resignation by Warren Feldman from the office of Chairman of the
Board and as a member of the Board of Directors of the Registrant, which
resignations will become effective on October 7, 1999.
Pursuant to a Put Agreement, dated as of September 21, 1999 (the "Feldman
Put Agreement"), by and among the Registrant, Revision LLC, a Delaware limited
liability corporation ("Revision"), Walt Anderson ("Mr. Anderson"), Warren
Feldman, and Solomon Feldman (collectively, the "Feldmans"), the Feldmans and
one or more of their respective designees have the right (but not the
obligation) to sell some or all of their shares of Common Stock of the
Registrant not to exceed 1,103,817 shares of Common Stock in the aggregate to
Revision, and Revision is obligated to purchase such shares of Common Stock from
the Feldmans and their respective designees at a purchase price of $16.00 per
share.
In addition, under a Put Agreement dated as of September 21, 1999, by and
among the Registrant, Mr. Anderson, Leon Genet, a natural person ("Mr. Genet"),
and Revision (the "Genet Put Agreement"), Mr. Genet and one or more of his
designees have the right (but not the obligation) to sell some or all of their
shares of Common Stock of the Registrant not to exceed 104,320 shares of Common
Stock in the aggregate to Revision, and Revision is obligated to purchase such
shares of Common Stock from Mr. Genet and his designees at a purchase price of
$16.00 per share. In the Genet Put Agreement, Mr. Genet has agreed to submit a
letter to the Secretary of the Registrant and thereby resign from the Board of
Directors of the Registrant upon the earlier of the closing of the put
transaction or the expiration of the exercise period.
The Separation Agreement
The Separation Agreement is filed herewith as Exhibit No. 1 and is
incorporated herein by reference. The following summary of the terms of the
Separation Agreement is qualified in its entirety by the provisions of the
Separation Agreement.
TERMINATION OF EMPLOYMENT AGREEMENT. Under the terms of the Separation
Agreement, Warren Feldman will resign from the office of Chairman of the Board
and as a member of the Board of Directors of the Registrant. He will also resign
from each position he holds with any subsidiary of the Registrant. The
resignations will become effective on October 7, 1999. On that date, the
Employment Agreement will be terminated and Warren Feldman will receive the
severance payment discussed below. The Registrant and Warren Feldman will each
release any claims which it or he may have against the other.
CONSIDERATION. In full satisfaction of all amounts payable under the
Employment Agreement and in consideration of the promises and covenants of
Warren Feldman made in the Separation Agreement, the Registrant has agreed to
pay to Warren Feldman the lump-sum amount of $650,000. By separate letter
agreement between Warren Feldman and
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Revision dated September 21, 1999 (the "Letter Agreement"), Revision has agreed
to pay Warren Feldman $250,000 to, among other matters, induce him to enter into
the Feldman Put Agreement and for other good and valuable consideration. The
Letter Agreement is filed herewith as Exhibit No. 2 and is incorporated herein
by reference.
NON-COMPETE AND RELATED COVENANTS. In the Separation Agreement Warren
Feldman covenanted and agreed that he would not, during the period commencing on
October 7, 1999 and ending on the date twelve (12) months thereafter, directly
or indirectly, in any capacity, engage in or participate in the management,
ownership or operation of any business or activity which directly competes with
the business conducted by the Registrant (as such business is conducted on
October 7, 1999) in the States of New York and New Jersey. In addition, Warren
Feldman covenanted and agreed that he would not, during the period commencing on
October 7, 1999 and ending on the date twenty-four (24) months thereafter,
directly or indirectly, employ or solicit the employment (or assist any third
party to employ or solicit the employment) of any person who was engaged by the
Registrant as an employee on September 1, 1999 (provided that the foregoing
prohibition will not apply to his executive assistant, or after October 7, 2000,
to (i) any person whose employment is involuntarily terminated by the Registrant
or (ii) any person who is not employed by the Registrant at the time his
employment is first solicited by Warren Feldman). During such twenty-four month
period, Warren Feldman also agreed not to call on any party that was a customer
of the Registrant on October 7, 1999 for the purpose of competing with the
Registrant by soliciting, diverting or taking away any customer of the
Registrant (provided that after October 7, 2000 this prohibition shall not apply
to any customer from which the Registrant has not billed or received a total of
$10,000 in payments for products or services during the six-month period prior
to when such customer is first solicited by Warren Feldman).
INDEMNIFICATION. The Separation Agreement provides that if Warren Feldman
is made a party or is threatened to be made a party to any action, suit, or
proceeding by reason of the fact he was a director or officer of the Registrant,
he will be indemnified and held harmless by the Registrant to the fullest extent
permitted by applicable law. In the Separation Agreement, the parties
acknowledged that the Indemnification Agreement dated March 6, 1998 between
Warren Feldman and the Registrant (the "Indemnification Agreement") is, and at
all times since March 6, 1998 has been, in full force and effect. The parties to
the Indemnification Agreement also acknowledged that Warren Feldman would be
entitled to the rights of indemnification provided in such agreement if at any
time after October 7, 1999, by reason of his status as an officer or director of
the Registrant, he is made a party to any proceeding.
The Feldman Put Agreement
The Feldman Put Agreement is filed herewith as Exhibit No. 3 and is
incorporated herein by reference. The following summary of the terms of the
Feldman Put Agreement is qualified in its entirety by the provisions of the
Feldman Put Agreement.
GRANT OF PUT OPTION. Under the terms of the Feldman Put Agreement, the
Feldmans and their respective designees have the right (but not the obligation)
to sell some or all of their shares of Common Stock of the Registrant not to
exceed 1,103,817 shares of Common Stock in the aggregate to Revision, and
Revision is obligated to purchase such shares of
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Common Stock from the Feldmans and their respective designees at a purchase
price of $16 per share. The option to put the shares may be exercised at any
time during the period beginning on December 11, 1999, and ending at 5:00 p.m.
on February 10, 2000.
PROXY AND VOTING AGREEMENTS. If, at the time scheduled for the closing of
the put transaction, Revision is unable or unwilling to pay the full purchase
price for the securities subject to purchase from the Feldmans or their
designees, then Walt Anderson and Revision are each required to grant Warren
Feldman an irrevocable proxy to vote all shares of Common Stock of the
Registrant held or owned by Walt Anderson and/or Revision. This proxy will
terminate automatically upon the payment in full by Revision of the purchase
price for the securities subject to purchase from the Feldmans or their
designees. In the Feldman Put Agreement, the parties also agreed to termination
of all existing agreements relating to the voting of shares of the Registrant's
Common Stock, including the agreement set forth in Section 3(b) of the Stock
Purchase Agreement, dated December 10, 1998, among Walt Anderson, Warren
Feldman, Solomon 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. 2
to the Schedule 13D filed by Warren Feldman, or an exhibit thereto.
The Genet Put Agreement
The Genet Put Agreement is filed herewith as Exhibit No. 4 and is
incorporated herein by reference. The following summary of the terms of the
Genet Put Agreement is qualified in its entirety by the provisions of the Genet
Put Agreement.
GRANT OF PUT OPTION. Under the terms of the Genet Put Agreement, Mr.
Genet and one or more of his designees have the right (but not the obligation)
to sell some or all of their shares of Common Stock of the Registrant not to
exceed 104,320 shares of Common Stock in the aggregate to Revision, and Revision
is obligated to purchase such shares of Common Stock from Mr. Genet and his
designees at a purchase price of $16 per share. The option to put the shares may
be exercised at any time during the period beginning on December 11, 1999, and
ending at 5:00 p.m. on February 10, 2000. The Genet Put Agreement contains
representations and warranties and indemnification provisions which are
substantially similar to those in the Feldman Put Agreement.
RESIGNATION FROM THE BOARD. In the Genet Put Agreement, Mr. Genet has
agreed to submit a letter to the Secretary of the Registrant and thereby resign
from the Board of Directors of the Registrant upon the earlier of the closing of
the put transaction or the expiration of the exercise period.
Item 7. Financial Statements and Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits. See Exhibit Index attached hereto.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 5, 1999 TOTAL-TEL USA COMMUNICATIONS, INC.
(Registrant)
By: /s/ Dennis Spina
----------------------------------
Dennis Spina
President and Chief Executive
Officer
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INDEX TO EXHIBITS
Exhibit Number Description
1. Separation Agreement dated as of September 21, 1999, by and
between Warren Feldman and the Registrant
2. Letter Agreement dated September 21, 1999, by and between
Warren Feldman and Revision
3. Put Agreement dated as of September 21, 1999, by and among
the Registrant, Revision LLC, Walt Anderson, Warren Feldman
and Solomon Feldman
4. Put Agreement dated as of September 21, 1999, by and among
the Registrant, Revision LLC, Walt Anderson and Leon Genet
<PAGE> 1
EXHIBIT 1
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (this "Agreement") is made as of September 21,
1999 by and between WARREN H. FELDMAN, residing at 102 West Hill Road, Woodcliff
Lake, New Jersey 07675 ("Warren Feldman") and TOTAL-TEL USA COMMUNICATIONS,
INC., a New Jersey corporation with offices at 150 Clove Road, Little Falls, New
Jersey 07424 (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Employment Agreement dated May 5, 1999
by and between Warren Feldman and the Company (the "Employment Agreement"),
Warren Feldman has agreed to serve as Chairman of the Board of the Company until
December 31, 2001, on the terms and subject to the conditions set forth therein;
and
WHEREAS, Warren Feldman and the Company desire to terminate the
Employment Agreement on the mutually beneficial terms 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:
1. TERMINATION OF EMPLOYMENT AGREEMENT.
(a) Termination of Employment Agreement. Warren Feldman and the
Company agree that the Employment Agreement shall be terminated as of 5:00 p.m.
on the Effective Date (as defined below), and shall have no further force or
effect, unless this Agreement is revoked by Warren Feldman on or prior to such
date pursuant to Section 10(h), in which case such termination of the Employment
Agreement shall not be effective.
(b) Resignation. Warren Feldman hereby resigns from the office of
Chairman of the Board and as a member of the Board of Directors of the Company
and from each position he holds at any subsidiary of the Company, such
resignations to be effective at 5:00 p.m. on October 7, 1999 (the "Effective
Date"), unless this Agreement is revoked by Warren Feldman on or prior to such
date pursuant to Section 10(h), in which case such resignations shall not become
effective and this Agreement shall be void and of no force and effect. The
Company hereby accepts the resignations of Warren Feldman as of the Effective
Date.
2. FELDMAN RELEASE OF CLAIMS.
(a) General Release. Warren Feldman agrees, on his own behalf and on
behalf of his heirs, successors, agents, executors, administrators, and assigns
(collectively, the "Feldman Releasors"), to release the Company and its present
and former subsidiaries, affiliates, divisions, branches, agencies, and other
offices and its and their respective present and former
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successors, assigns, officers, agents, representatives, affiliates, attorneys,
fiduciaries, administrators, directors, stockholders, and employees
(collectively, the "Feldman Releasees") from any and all manner of actions,
causes of action, suits, judgments, executions, demands, debts, dues, duties,
accounts, bonds, agreements (other than those relating to the Options or as
otherwise provided herein), contracts, covenants, damages and all other claims
whatsoever, both in law and in equity, which the Feldman Releasors ever had, now
have or may in the future have against any or all of the Feldman Releasees for
or by reason of or in any way arising out of any cause, matter or thing existing
up to the Effective Date including, without limiting the generality of the
foregoing, for or by reason of or in any way arising out of any cause, matter or
thing relating to salary, wages, monies advanced, bonuses, expenses, director's
fees, retirement or pension allowances, participation in profits or earnings or
damages for wrongful dismissal (including but not limited to any discrimination
claim based on age, sex, race, religion, color, national origin, disability,
marital status, appearance or sexual orientation under federal, state or local
law, rule or regulation, and/or any claim for wrongful termination, defamation,
and any other claim, whether in tort, contract or otherwise). This release shall
not apply to any claims the Feldman Releasors may have relating to the Company's
performance of its obligations under this Agreement.
(b) ADEA Release. The Feldman Releasors further agree that they are
hereby releasing any and all claims that they may have under the Age
Discrimination in Employment Act connected with Warren Feldman's employment with
the Company (or his separation therefrom) arising on or before the Effective
Date.
(c) Promise Not To Sue On Claims Released. The Feldman Releasors
promise not to initiate any court or judicial-type proceeding against the
Company that involves any claim that they have released in Sections 2(a) and
2(b) of this Agreement. If a court determines that the Feldman Releasors or any
one of them have violated this release by suing the Company or any of the
Feldman Releasees they hereby agree that they will pay all costs and expenses of
defending against the suit incurred by the Company. Nothing in this Section 2(c)
shall be construed to prevent the Feldman Releasors or any one of them from
filing a charge of discrimination with, or participating in an investigation or
proceeding conducted by, the Equal Employment Opportunity Commission.
(d) Consultation With an Attorney. Warren Feldman acknowledges that he
has been advised to consult his own attorney prior to entering into this
Agreement and that he was afforded sufficient time to undertake such
consultation.
3. COMPANY RELEASE OF CLAIMS.
(a) General Release. The Company agrees on its own behalf and on
behalf of its present and former subsidiaries, affiliates, divisions, branches,
agencies, and other offices and its and their respective present and former
successors, assigns, officers, agents, representatives, affiliates, attorneys,
fiduciaries, administrators, directors, stockholders, and employees
(collectively, the "Company Releasors"), to release Warren Feldman and his
heirs, successors, agents, executors, administrators, and assigns (the "Company
Releasees") from any and all manner of actions, causes of action, suits,
judgments, executions, demands, debts, dues, duties, accounts, bonds, agreements
(other than those provided herein), contracts, covenants,
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damages and all other claims whatsoever, both in law and in equity, which the
Company Releasors ever had, now have or may in the future have against any or
all of the Company Releasees for or by reason of or in any way arising out of
any cause, matter or thing existing up to the Effective Date. This release shall
not apply to any claims the Company Releasors may have relating to Warren
Feldman's performance of his obligations under this Agreement, or to any claim
for recovery by the Company of short-swing profits under Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Promise Not To Sue On Claims Released. The Company Releasors
promise not to initiate any court or judicial-type proceeding against the
Company Releasees that involves any claim that they have released in Section
3(a) of this Agreement. If a court determines that the Company Releasors or any
one of them have violated this release by suing any of the Company Releasees
they hereby agree that they will pay all costs and expenses of defending against
the suit incurred by the Company Releasees.
4. CONSIDERATION.
(a) Severance Payment. In full satisfaction of all amounts outstanding
under the Employment Agreement and in consideration of the promises set forth
herein and other good and valuable consideration, the Company agrees to pay to
Warren Feldman severance pay in the lump-sum amount of $650,000, which amount
shall be payable promptly (but in any event not later than three (3) business
days) following the execution and delivery hereof.
(b) Existing Options. The Company acknowledges and agrees that Warren
Feldman has been granted non-statutory stock options to purchase 120,222 shares
of the Company's common stock ("Common Stock"), which stock options
(collectively, the "Options") are exercisable as follows:
(i) 39,222 from the grant of April 15, 1997 are exercisable at
$7.25, per share;
(ii) 33,000 from the grant of November 3, 1992 are exercisable at
$0.5114, per share; and
(iii) 48,000 from the grant of February 2, 1992 are exercisable at
$0.5114, per share.
(c) Exercise of Options. The Company acknowledges and agrees that
Warren Feldman shall have ninety (90) days from the Effective Date to exercise
the Options, approval by the Board of Directors of the Company of this Agreement
constituting the determination by the Board that such 90-day period is
reasonable and appropriate.
5. TAXES AND BENEFITS; WITHHOLDINGS. The parties acknowledge and agree
that (i) federal, state and local tax withholdings will be made from the
payments provided for in this Agreement as may be required by law and/or in
accordance with the Company's benefit plans, and (ii) Warren Feldman shall be
solely responsible for the federal, state, and local and other taxes normally
paid by employees relating to these payments.
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6. REPRESENTATIONS AND WARRANTIES.
(a) Certain Representations and Warranties by Warren Feldman. Warren
Feldman represents and warrants to the Company 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) the
execution, delivery, and performance by Warren Feldman 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 Warren Feldman is
a party or by which any of his assets or properties may be bound, and (iii) 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.
(b) Certain Representations and Warranties by the Company. The Company
represents and warrants to Warren Feldman that (i) the execution, delivery, and
performance by the Company of this Agreement have been duly authorized by all
action required by law, its certificate of incorporation and bylaws, (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 articles of incorporation or bylaws 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) 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) it has obtained directors
and officers liability insurance policies covering all officers and directors of
the Company, and such policies are in full force and effect on the date hereof.
7. NON-COMPETE, NON-DISPARAGEMENT AND CONFIDENTIAL INFORMATION.
(a) Company Business. Warren Feldman covenants and agrees that he will
not, during the period commencing on the Effective Date and ending on the date
twelve (12) months thereafter, directly or indirectly, in any capacity, engage
in or participate in the management, ownership, or operation of any business or
activity which directly competes with the business conducted by the Company (as
such business is conducted on the Effective Date) in the States of New York and
New Jersey.
(b) No Solicitation. Warren Feldman covenants and agrees that he will
not, during the period commencing on the Effective Date and ending on the date
twenty-four
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(24) months thereafter, directly or indirectly: (i) employ or solicit the
employment (or assist any third party to employ or solicit the employment) of
any person who was engaged by the Company as an employee on September 1, 1999
(provided that the foregoing prohibition shall not apply to his executive
assistant, or after October 7, 2000, to (A) any person whose employment is
involuntarily terminated by the Company or (B) any person who is not employed by
the Company at the time his employment is first solicited by Warren Feldman); or
(ii) call on any party that was a customer of the Company on the Effective Date
for the purpose of competing with the Company by soliciting, diverting or taking
away any customer of the Company (provided that after October 7, 2000 the
foregoing prohibition shall not apply to any customer from which the Company has
not billed or received a total of $10,000 in payments for products or services
during the six-month period prior to when such customer is first solicited by
Warren Feldman).
(c) Reasonable Restrictions. Warren Feldman recognizes and hereby
acknowledges that the restrictions imposed upon him in this Section 7 are
reasonable and are necessary for the protection of the business of the Company.
It is understood and agreed that this Section 7 shall not be deemed to be
violated merely because Warren Feldman owns stock or other equity interests in
an entity that is in competition with the Company, so long as a class of equity
securities of such entity is registered pursuant to the Exchange Act , and
Warren Feldman owns no more than five percent (5%) of the outstanding equity
securities of such class.
(d) Non-Disparagement. Neither party to this Agreement shall in any
way attempt to disparage or impair the reputation or good name of the other
party, the Company's divisions, affiliates, or subsidiaries, or any of the
Company's officers, directors or employees.
(e) Confidential Information. Warren Feldman hereby acknowledges that
during the course of his employment with the Company he came into contact with,
and had access to, information that is the property of the Company. Such
information includes, but is not limited to, business plans, present or
prospective customers, vendors, products, processes services or activities,
including the costing and pricing of such services or activities. Warren Feldman
covenants and agrees that he has not and will not utilize or disclose any of the
above described confidential information to any person(s) or entities for any
reason or purpose whatsoever, except in the performance of his duties for the
Company. The foregoing limitations shall not apply to any information that (i)
is or becomes public knowledge through no action or default on the part of
Warren Feldman; (ii) is approved by the Company in writing for disclosure to
specified third parties; or (iii) is required to be disclosed by Warren Feldman
pursuant to a court order or applicable rules and regulations.
(f) Rights and Remedies Upon Breach. In the event of any breach or
threatened breach by Warren Feldman of the covenants of Section 7, the Company
shall be entitled to such equitable and injunctive relief as may be available to
restrain Warren Feldman from the violation of the provisions hereof. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available at law or in equity for such breach or threatened breach.
(g) Severability of Covenants. If any court determines that any of the
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covenants of this Section 7, or any part thereof, is invalid or unenforceable,
the remainder of the covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions.
(h) The prohibitions of paragraphs (a) and (b) of this Section 7 shall
terminate at such time as any person or group (as such term is defined by
Section 13(d) of the Exchange Act) other than Revision LLC, Walt Anderson, Gold
& Appel Transfer, S.A. and their respective affiliates acquires voting common
stock of the Company in a purchase or transaction or in a series of purchases or
transactions, if immediately thereafter such person or group has, or would have,
beneficial ownership (as determined pursuant to Rule 13d-3 under the Exchange
Act) of a majority of the voting power of the Company's then outstanding voting
equity securities.
8. INDEMNIFICATION.
(a) Right to Indemnification. If Warren Feldman is made a party or is
threatened to be made a party to any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact he was a
director or officer of the Company or was serving at the request of the Company
as a director or officer of another corporation or of a partnership, joint
venture, trust, or other enterprise, he shall be indemnified and held harmless
by the Company to the fullest extent permitted by applicable law against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
or penalties and amounts paid in settlement) reasonably incurred or suffered by
him in connection therewith, and such indemnification shall continue after the
Effective Date and shall inure to the benefit of Warren Feldman's heirs,
executors, and administrators.
(b) Right to Advancement of Expenses. The right to indemnification
conferred in this Section 8 shall include the right to be paid by the Company
the expenses incurred in defending any action, suit, or proceeding in advance of
its final disposition, subject to the receipt by the Company of an undertaking
by Warren Feldman to repay all amounts so advanced if it shall ultimately be
determined that he is not entitled to be indemnified.
(c) Nonexclusivity of Rights. The rights to indemnification and to the
advancement of expenses contained in this Section 8 shall not be exclusive of
any other right which Warren Feldman may have or hereafter acquire under any
statute, provision of the Company's articles of incorporation, by-laws,
agreement, vote of stockholders or disinterested directors, or otherwise.
(d) Duration. The indemnification obligations of the Company hereunder
shall apply only to indemnified liabilities arising from claims as to which
notice has been provided to the Company by Warren Feldman within sixty (60) days
of receipt of such notice by Warren Feldman.
(e) Indemnification Agreement. The parties hereto acknowledge and
agree that (i) the Indemnification Agreement dated March 6, 1998 between Warren
Feldman and the Company (the "Indemnification Agreement") is, and at all times
since March 6, 1998 has been, in full force and effect, (ii) that,
notwithstanding the provisions of Section 1 of the
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Indemnification Agreement, Warren Feldman shall be entitled to the rights of
indemnification provided therein if at any time after the Effective Date, by
reason of his Corporate Status (as defined therein) he is, or is threatened to
be made, a party to any threatened, pending, or completed Proceeding (as defined
therein), and (iii) the Indemnification Agreement shall continue until the
expiration of the term set forth in Section 10 thereof.
9. OTHER COVENANTS AND UNDERTAKINGS.
(a) Insurance. The Company further covenants and agrees that, for a
period of three (3) years following the Effective Date, it will maintain a
directors and officers liability insurance policy covering Warren Feldman for
the period of his service as a director and officer of the Company up to and
including the Effective Date.
(b) Transition Issues. Warren Feldman shall return the Company car
currently in his possession on or before the date that is fifteen (15) days
after the Effective Date, and the Company shall maintain the existing automobile
insurance coverage on such car until such date. Warren Feldman shall have the
right to purchase (i) the cellular phone he currently uses, (ii) the personal
computer currently in his office, and (iii) the personal computer, printer, fax
machine and cellular phone currently used by his executive assistant, each for a
purchase price equal to the depreciated value of such equipment; provided,
however, that all Company-related information shall be deleted from the two
personal computers before they are sold to Warren Feldman.
(c) Press Releases. The Company shall provide a copy of any press
release or other public disclosure concerning the transactions contemplated
hereby to Warren Feldman, and any such press release or other public disclosure
shall not be disseminated or released without the prior written approval of
Warren Feldman, such approval not to be unreasonably withheld or delayed.
10. GENERAL MATTERS.
(a) 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:
(i) If to Warren Feldman:
102 West Hill Road,
Woodcliff Lake, New Jersey 07675
Attn: Warren Feldman
Facsimile No.: (201) 573-0875
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<PAGE> 8
with a copy (which shall not constitute notice) to:
1500 Palisade Avenue
Apt. 17A
Fort Lee, NJ 07024
Attn: Solomon Feldman
(ii) If to the Company:
Total-Tel USA Communications, Inc.
150 Clove Road
Little Falls, New Jersey 07424
Attn: President & Chief Executive Officer
Facsimile No.: (973) 785-5173
with a copy to:
Covington & Burling
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Attn: Bobby R. Burchfield, Esq.
Facsimile No.: (202) 7780-5350
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.
(b) 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.
(c) 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 the fees
and expenses of Covington & Burling, counsel to the Company, incurred in
connection with the preparation of this Agreement.
(d) No Third-Party Beneficiaries. Except as provided in Sections 2 and
8, nothing in this Agreement shall be construed as giving any person or entity,
other than the parties hereto 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.
(e) Successors and Assigns; Severability. This Agreement shall be
binding upon the respective successors, 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
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<PAGE> 9
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.
(f) 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. As used herein, except as the context otherwise indicates, the singular
shall include the plural and vice versa and words of any gender shall include
any other gender. The conjunction "or" shall be understood in its inclusive
sense (and/or). 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.
(g) Period of Consideration. By his signature below, Warren Feldman
acknowledges that the Company complied with the ADEA by giving him a period of
at least twenty-one (21) days from the date that this Agreement was first
provided to him to consider this Agreement and to decide whether to accept it.
Warren Feldman further acknowledges that no representative of the Company ever
stated or implied that he had less than twenty-one (21) days to consider this
Agreement. Warren Feldman also acknowledges that, to the extent he decided to
sign this Agreement prior to the expiration of the full twenty-one (21) day
period, such decision was knowing and voluntary on his part and was in no way
coerced by the Company. To the extent any changes were made in this Agreement as
a result of negotiations taking place after the date this Agreement was provided
to Warren Feldman, he and the Company agree that such changes, whether material
or not, did not restart the running of the period of twenty-one (21) days to
consider this Agreement required by the ADEA.
(h) Right to Revoke Agreement. Except for the obligations of the
Company under Section 4(a), this Agreement will not become effective or
enforceable until October 7, 1999, which is more than seven (7) days from the
date first above written. During the period prior to such date, Warren Feldman
has a right to change his decision to accept the severance payment that has been
offered and paid to him and to revoke this Agreement, in which case he shall be
obligated to return such payment.
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<PAGE> 10
IN WITNESS WHEREOF, this Separation Agreement has been executed and
delivered by the parties hereto on the date first above written.
TOTAL-TEL USA COMMUNICATIONS, INC.
for itself and for all its subsidiaries
By: /s/ Dennis Spina
-----------------------------------
Name: Dennis Spina
Title: President & Chief Executive
Officer
/s/ Warren Feldman
-----------------------------------
Warren Feldman
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<PAGE> 1
EXHIBIT 2
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
<PAGE> 1
EXHIBIT 3
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
<PAGE> 2
corporation, 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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<PAGE> 3
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
(c) Each of the parties to the Separation Agreement shall have duly
performed
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<PAGE> 4
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> 5
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> 6
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> 7
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> 8
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 Tranfer, 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> 9
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> 10
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
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<PAGE> 1
EXHIBIT 4
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.
<PAGE> 2
(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(a).
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 Option or (ii) the expiration of the
Exercise Period without the exercise by Put Holders of their
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<PAGE> 3
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.
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<PAGE> 4
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 by Revision are owned
free and clear of any voting trusts, proxies, preemptive rights or rights of
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<PAGE> 5
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. In any event, an Indemnified Party shall be entitled to
participate at his own expense and by his own counsel in any proceedings
relating
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<PAGE> 6
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.
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<PAGE> 7
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.
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
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<PAGE> 8
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]
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<PAGE> 9
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
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