-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PrfiqFMXnCHrYjhFUT2DbYhX9lsvnRe0vtVVdxcCQagTSw1RRH2kEVfXMy2r2NM8 RQAgEWUCoh0IxTiRZKLFTw== 0000950133-99-003074.txt : 19990924 0000950133-99-003074.hdr.sgml : 19990924 ACCESSION NUMBER: 0000950133-99-003074 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990923 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TOTAL TEL USA COMMUNICATIONS INC CENTRAL INDEX KEY: 0000034497 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 221656895 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-11039 FILM NUMBER: 99715875 BUSINESS ADDRESS: STREET 1: OVERLOOK AT GREAT NOTCH 150 CLOVE RD STREET 2: BOX 449 CITY: LITTLE FALLS STATE: NJ ZIP: 07054 BUSINESS PHONE: 9738121100 MAIL ADDRESS: STREET 1: 150 CLOVE ROAD STREET 2: BOX 449 CITY: LITTLE FALLS STATE: NJ ZIP: 07054 FORMER COMPANY: FORMER CONFORMED NAME: FARADYNE ELECTRONICS CORP DATE OF NAME CHANGE: 19920223 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FELDMAN WARREN CENTRAL INDEX KEY: 0001075854 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: OVERLOOK AT GREAT NOTCH 150 CLOVE RD STREET 2: BOX 449 CITY: LITTLE FALLS STATE: NJ ZIP: 07054 BUSINESS PHONE: 9738121100 MAIL ADDRESS: STREET 1: 150 CLOVE ROAD STREET 2: BOX 449 CITY: LITTLE FALLS STATE: NJ ZIP: 07054 SC 13D/A 1 AMENDED SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4) TOTAL-TEL USA COMMUNICATIONS, INC. (Name of Issuer) COMMON STOCK, $.05 PAR VALUE PER SHARE (Title of Class of Securities) 89151T 10-6 (CUSIP Number) WARREN H. FELDMAN 150 CLOVE ROAD LITTLE FALLS, NEW JERSEY 07424-0449 (201) 812-1100 (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 statement because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 1 NAME(S) OF REPORTING PERSON(S) I.R.S. IDENTIFICATION NO. OF ABOVE PERSON(S) (ENTITIES ONLY) WARREN H. FELDMAN, AND WARREN H. FELDMAN AND ESTHER FELDMAN AS JOINT TENANTS - --------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[ ] 3 SEC USE ONLY - --------------------------------------------- 4 SOURCE OF FUNDS PF - --------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or (e) [ ] - --------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES OF AMERICA - --------------------------------------------- NUMBER OF (7) SOLE VOTING POWER 797,938 SHARES BENEFICIALLY (8) SHARED VOTING POWER 0 OWNED BY EACH (9) SOLE DISPOSITIVE POWER 797,938 REPORTING PERSON (10) SHARED DISPOSITIVE POWER 0 WITH - --------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 797,938 - --------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)[ ] - --------------------------------------------- 3 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.1594 %* - --------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - --------------------------------------------- * BASED ON 7,854,182 SHARES OF COMMON STOCK OF THE ISSUER OUTSTANDING AS OF SEPTEMBER 14, 1999, AS REPORTED ON THE ISSUER'S FORM 10-Q, DATED SEPTEMBER 14, 1999. AMENDMENT NO. 4 TO SCHEDULE 13D This Amendment No. 4 to Schedule 13D filed by Warren H. Feldman and by Warren H. Feldman and Esther Feldman as Joint Tenants, each natural persons and U.S. citizens ("Reporting Persons"), with respect to the common stock, par value $0.05 per share (the "Common Stock"), of Total-Tel USA Communications, Inc., a New Jersey corporation (the "Issuer"), supplements and amends the Schedule 13D filed with the Securities and Exchange Commission ("SEC") by the Reporting Persons on or about March 3, 1989, as amended by Amendment No. 1 thereto filed with the SEC on December 28, 1998, Amendment No. 2 thereto filed with the SEC on February 8, 1999, and Amendment No. 3 thereto filed with the SEC on February 12, 1999 (the "Schedule 13D"). ITEM 4. PURPOSE OF TRANSACTION. The response set forth in Item 4 of the Schedule 13D is hereby supplemented as follows: Other as described herein and as previously reported, the Reporting Persons have no plans or proposals which relate to, or would have any of the results set forth in, sections (a)-(j) of this Item 4. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. The number of shares of Common Stock reported as beneficially owned by the Reporting Persons in Amendment No. 1, Amendment No. 2 and Amendment No. 3 was inadvertently understated by 269,000 shares due to (i) the omission to take into account employee stock options granted to Warren Feldman by the Issuer which, as of the dates of Amendment No. 1, Amendment No. 2 and Amendment No. 3, were exercisable concurrently or within the 60 days thereof to purchase 261,000 shares of Common Stock, and (ii) the omission to include 8,000 shares of Common Stock registered in the name of the wife, mother-in-law and minor children of Warren Feldman. Warren Feldman exercised options to purchase 140,778 shares of Common Stock on July 29, 1999, and thereafter he held, and continues to hold as of the 4 date hereof, such shares as well as options to purchase a further 120,222 shares of the Common Stock of the Issuer. The responses set forth in subsections (a) and (b) of Amendment No. 3 are hereby amended and restated in their entirely as follows: (a) The Reporting Persons are the beneficial owners of 797,938 shares of Common Stock, which represents approximately 10.33% of the shares of Common Stock outstanding as of December 15, 1998 (based on 7,721,004 shares of Common Stock of the Issuer outstanding as of December 15, 1998, as reported on the Issuer's Form 10-Q, dated December 15, 1998). (b) The number of shares of Common Stock as to which the Reporting Persons have: (i) Sole power to vote or direct the vote: 797,938. (ii) Shared power to vote or direct the vote: 0. (iii) Sole power to dispose or to direct the disposition: 797,938. (iv) Shared power to dispose or to direct the disposition: 0. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SECURITIES OF THE ISSUER. The response set forth in Item 6 to the Schedule 13D is hereby supplemented as follows: Pursuant to a Put Agreement, dated as of September 21, 1999 ("Put Agreement"), by and among the Issuer, Revision LLC, a Delaware limited liability corporation ("Revision"), Walt Anderson, a natural person ("Mr. Anderson"), Warren Feldman and Solomon Feldman (the "Feldmans"), the Feldmans and one or more of their respective designees will have the right (but not the obligation) to sell some or all of their shares of Common Stock of the Issuer 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 the Feldmans and their respective designees. Also on September 21, 1999, Warren Feldman and the Issuer 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 Issuer (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 Issuer, which resignations will become effective on October 7, 1999. 5 The Put Agreement The Put Agreement is filed as Exhibit No. 1 to this Amendment No. 4 and is incorporated herein by reference. The following summary of the terms of the Put Agreement is qualified in its entirety by the provisions of the Put Agreement. GRANT OF PUT OPTION. Under the terms of the Put Agreement, the Feldmans and their respective designees will have the right (but not the obligation) to sell some or all of their shares of Common Stock of the Issuer 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 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 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 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 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 or an exhibit thereto. The Separation Agreement The Separation Agreement is filed as Exhibit No. 2 to this Amendment No. 4 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 Issuer. He will also resign from each position he holds at any subsidiary of the Issuer. 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 Issuer and Warren Feldman will each release all claims 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 Issuer has agreed to pay to Warren Feldman the lump-sum amount of $650,000. By separate letter agreement between Warren Feldman and Revision dated September 21, 1999 (the "Letter Agreement"), Revision has agreed to pay Warren Feldman $250,000 to induce him to enter into the Separation Agreement, the Put Agreement and for other 6 good and valuable consideration. The Letter Agreement is filed as Exhibit No. 3 to this Amendment No. 4 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 Issuer (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 Issuer 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 Issuer or (ii) any person who is not employed by the Issuer 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 Issuer on October 7, 1999 for the purpose of competing with the Issuer by soliciting, diverting or taking away any customer of the Issuer (provided that after October 7, 2000 this prohibition shall not apply to any customer from which the Issuer 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 Issuer, he will be indemnified and held harmless by the Issuer 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 Issuer (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 Issuer, he is made a party to any proceeding. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit Number Description 1. Put Agreement dated as of September 21, 1999, by and among the Issuer, Revision LLC, Walt Anderson, Warren Feldman and Solomon Feldman 2. Separation Agreement dated as of September 21, 1999, by and between Warren Feldman and the Issuer
7 3. Letter Agreement dated September 21, 1999, by and between Warren Feldman and Revision
8 SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: September 23, 1999 /s/ Warren Feldman -------------------------------- Warren Feldman /s/ Esther Feldman -------------------------------- Esther Feldman 9 INDEX TO EXHIBITS
Exhibit Number Description 1. Put Agreement dated as of September 21, 1999, by and among the Issuer, Revision LLC, Walt Anderson, Warren Feldman and Solomon Feldman 2. Separation Agreement dated as of September 21, 1999, by and between Warren Feldman and the Issuer 3. Letter Agreement dated September 21, 1999, by and between Warren Feldman and Revision
EX-99.1 2 PUT AGREEMENT DATED SEPTEMBER 21, 1999 1 EXHIBIT 1 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 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). -2- 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 -3- 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. -4- 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, -5- 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. -6- 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 -7- 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 -8- 9 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 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. -9- 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 -10 EX-99.2 3 SEPARATION AGREEMENT DATED SEPTEMBER 21, 1999 1 EXHIBIT 2 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 2 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, - 2 - 3 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. - 3 - 4 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 - 4 - 5 (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 - 5 - 6 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 - 6 - 7 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 - 7 - 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) 778-5350 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 - 8 - 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. - 9 - 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 - 10 - EX-99.3 4 LETTER AGREEMENT DATED SEPTEMBER 21, 1999 1 EXHIBIT 3 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 -----END PRIVACY-ENHANCED MESSAGE-----