AMENDMENT NO. 1
PUT AGREEMENT
AMENDMENT NO. 1 (this "Amendment") to the Put Agreement dated as of
September 21, 1999 (the "Put Agreement") is made between and among XXXX
XXXXXXXX, XXXXXX XXXXXXX, XXXXXXX XXXXXXX, REVISION LLC, a Delaware limited
liability company ("Revision"), TOTAL-TEL USA COMMUNICATIONS, INC., a New
Jersey corporation (the "Company"), and FOUNDATION FOR INDEPENDENT
NONGOVERNMENTAL DEVELOPMENT OF SPACE, a Delaware non-profit corporation
("FINDS"). Capitalized terms used herein without definition shall have the
meanings specified in the Put Agreement.
W I T N E S S E T H:
WHEREAS, Xxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Revision and the
Company entered into the Put Agreement on September 21, 1999; and
WHEREAS, the parties hereto desire to make the amendments to the Put Agreement
set forth herein in order to (i) provide for up to four exercises of the Put
Option, (ii) allow Revision to transfer its obligation to purchase up to
400,000 shares of the Company's Common Stock to FINDS, and (iii) add FINDS as
a party to the Put 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:
1. Multiple Exercises. Sections 2.1 and 2.2 of the Put Agreement are
hereby amended by deleting them in their entirety and restating them in their
entirety to read as follows:
2.1 Grant of Put Option. 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"), Xxxxxx Xxxxxxx, acting for
himself and as agent for Xxxxxxx Xxxxxxx and, if so designated,
one or more of their Designees, shall deliver written notice
thereof (each, an "Exercise Notice") to Revision at any time, and
from time to time, during the Exercise Period. Each 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 may be
exercised at any time during the Exercise Period on up to four (4)
separate occasions; provided, however, that the minimum number of
shares of Common Stock to be sold to Revision in any single
exercise of the Put Option (by one or more Put Holders) shall, in
the aggregate, be not less than 100,000 shares. 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 date all of
the Securities owned by Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and their
Designees are acquired by Revision, or (ii) the date of expiration
of the Exercise Period.
2. Closing of the Purchases.
(a) Section 3.1 of the Put Agreement is hereby amended by
deleting it in its entirety and restating it in its entirety to read as
follows:
3.1 Closing of the Purchase. The closing of any purchase of
Securities pursuant to exercise of the Put Option (each, a
"Closing") shall be held at the offices of Xxxxxxx Berlin Shereff
Xxxxxxxx, LLP, 3000 K Street, N.W., Washington, D.C., on the
thirtieth business day after delivery of an 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; provided, however, that if an
Exercise Notice is sent at any time in the period beginning on
December 11, 1999 and ending on January 6, 2000, the Closing for
the purchase and sale transaction specified in such Exercise
Notice shall take place on January 14, 2000.
3. Transfer of Revision's Obligation to Purchase Common Stock.
(a) The second sentence of Section 6.5 of the Put Agreement is
hereby amended by deleting it in its entirety and restating it in its entirety
to read as follows:
No party shall assign its rights or delegate its obligations
hereunder without the prior written consent of the other parties,
and any attempt to so assign or delegate this Agreement in whole
or in part without such consent shall be void and of no effect;
provided, however, that (i) Revision shall be entitled to delegate
or otherwise transfer to FINDS its obligation to purchase up to an
aggregate of 400,000 shares of the Company's Common Stock, and
(ii) the foregoing notwithstanding, in the event FINDS fails to
perform any act or obligation delegated or otherwise transferred
to it hereunder, Revision shall remain obligated to perform any
such act or obligation (including without limitation the
obligation to purchase Securities set forth in Section 2.1) as if
no delegation or transfer had been made.
(b) In Section 3.3, each use of the word "Revision" shall be
amended to read "Revision and/or FINDS, as applicable".
(c) In Section 3.4(a) the first use of the word "Revision"
shall be amended to read "Revision or FINDS, as the case may be" and in
Section 3.4(a)(ii), the phrase "Xxxx Xxxxxxxx and Revision" shall be amended
to read "Xxxx Xxxxxxxx, Revision and FINDS" and each use of the phrase "Xxxx
Xxxxxxxx and/or Revision" shall be amended to read "Xxxx Xxxxxxxx, Revision
and/or FINDS".
(d) Section 4.2 of the Put Agreement is hereby amended by
adding a new clause (c) which shall read in its entirety as follows:
(c) FINDS represents and warrants, as of the date hereof and
again on the date of the Closing, that (i) it has full authority
to execute and deliver this Agreement, (ii) this Agreement has
been duly executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against FINDS in
accordance with its terms, and (iii) subject to the provisions of
Section 3.2(a), the execution, delivery, and performance by FINDS
of this Agreement will not violate any order, writ, injunction,
decree, statute, rule, or regulation applicable to FINDS.
4. Conforming Amendments.
(a) In Section 1.1(e) the phrase "and set forth in the
Exercise Notice" shall be amended to read "and set forth in an Exercise
Notice".
(b) In the first sentence of Section 3.2, the phrase
"following the delivery of the Exercise Notice" shall be amended to read
"following the delivery of an Exercise Notice".
(c) In the first sentence of Section 3.3, the phrase "At the
Closing" shall be amended to read "At a Closing".
(d) In the first sentence of Section 3.4(a), the phrase "If,
at the time of the Closing, Revision" shall be amended to read "If, at the
time of a Closing, Revision".
(e) In the first sentence of Section 4.1(a), the phrase "on
the date of such Closing" shall be amended to read "on the date of each
Closing".
(f) In the first sentence of Section 4.1(b), the phrase "on
the date of the Closing" shall be amended to read "on the date of the first
Closing".
(g) In the first sentence of Section 4.1(c), the phrase "on
the date of the Closing" shall be amended to read "on the date of the first
Closing".
(h) In the first sentence of Section 4.2(a), the phrase "on
the date of the Closing" shall be amended to read "on the date of each
Closing".
(i) In the first sentence of Section 4.2(b), the phrase "on
the date of the Closing" shall be amended to read "on the date of each
Closing".
(j) In Section 5.2(c), the phrase "Xxxx Xxxxxxxx shall cause
Revision" shall be amended to read "Xxxx Xxxxxxxx shall cause Revision and
FINDS".
5. Counterparts. The first sentence of Section 6.6 of the Put
Agreement is hereby amended by deleting it in its entirety and restating it in
its entirety to read as follows:
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 and facsimile
signatures shall be acceptable in lieu of originals.
6. No Other Amendments. Except as expressly set forth in this
Amendment, there are no other Amendments to the Put Agreement and the Put
Agreement remains in full force and effect as amended as of the date hereof.
7. General Matters. The provisions of Article VI of the Put
Agreement are incorporated, mutatis mutandis, into this Amendment by reference.
[Signature page follows]
IN WITNESS WHEREOF, this Amendment No. 1 to the Put Agreement has been
executed and delivered by the parties hereto on this 11th day of December,
1999.
REVISION LLC
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
FOUNDATION FOR INDEPENDENT
NONGOVERNMENTAL DEVELOPMENT OF SPACE
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: President
/s/ Xxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
TOTAL-TEL USA COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: President & Chief Executive
Officer
