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EXHIBIT 1
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 ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
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"), ▇▇▇▇▇▇
▇▇▇▇▇▇▇, acting for himself and as agent for ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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,
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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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, 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
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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 "▇▇▇▇ ▇▇▇▇▇▇▇▇ and Revision" shall be amended
to read "▇▇▇▇ ▇▇▇▇▇▇▇▇, Revision and FINDS" and each use of the phrase "▇▇▇▇
▇▇▇▇▇▇▇▇ and/or Revision" shall be amended to read "▇▇▇▇ ▇▇▇▇▇▇▇▇, 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".
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(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 "▇▇▇▇ ▇▇▇▇▇▇▇▇
shall cause Revision" shall be amended to read "▇▇▇▇ ▇▇▇▇▇▇▇▇ 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]
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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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager
FOUNDATION FOR INDEPENDENT
NONGOVERNMENTAL DEVELOPMENT OF
SPACE
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TOTAL-TEL USA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Sec./Treas.