EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN
OF REORGANIZATION MERGER
This Amendment No. 1, dated as of May 7, 2002 (this "Amendment"), to
the Agreement and Plan of Reorganization and Merger, by and among Davel
Communications, Inc., a Delaware corporation ("Davel"), Davel Financing Company,
L.L.C., a Delaware limited liability company ("Davel Financing"), DF Merger
Corp., a Delaware corporation and a wholly owned subsidiary of Davel Financing
("D Sub"), PT Merger Corp., an Ohio corporation and a wholly owned subsidiary of
Davel Financing ("P Sub"), and PhoneTel Technologies, Inc., an Ohio corporation
("PhoneTel"), dated as of February 19, 2002 (the "Merger Agreement"). Except as
otherwise indicated herein, capitalized terms used and not otherwise defined
herein have the meanings ascribed to them in the Merger Agreement.
WHEREAS, for good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties desire to amend certain provisions of the
Merger Agreement as set forth in this Amendment;
NOW, THEREFORE, the parties to the Merger Agreement hereby agree as
follows:
1. AMENDMENT. Section 8.10 of the Merger Agreement is hereby
deleted in its entirety and restated as follows:
"From and after the PhoneTel Effective Time, until
successors are duly elected or appointed in
accordance with applicable law, the directors of
Davel shall consist of the following individuals:
Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxxxx, X. Xxxxxxxx
Nion, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx."
Except as expressly provided in this Amendment, all provisions of the
Merger Agreement are affirmed in all respects and remain in full force and
effect.
2. COUNTERPARTS; EFFECTIVENESS. This Amendment may be signed in
any number of counterparts (including by means of telecopied signature pages),
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Amendment shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
3. SUCCESSORS AND ASSIGNS. The provisions of this Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Amendment without the consent of the other parties hereto.
4. GOVERNING LAW; JURISDICTION. This Amendment shall be construed
in accordance with and governed by the law of the State of Delaware, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware. Each party hereto irrevocably submits to the nonexclusive jurisdiction
of (a) the
state courts of Delaware and (b) the federal district courts located in the
State of Delaware for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby.
5. AMENDMENTS; NON-WAIVERS. Any provision of this Amendment or
the Merger Agreement may be amended or waived prior to the Closing if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by all of the parties hereto or in the case of a waiver, by the party
against whom the waiver is to be effective; PROVIDED, HOWEVER, that no waiver by
PhoneTel shall be effective unless consented to in writing by the PhoneTel
Lenders. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
6. ENTIRE AGREEMENT. This Amendment, the Merger Agreement and the
Confidentiality Agreement (including the documents and the instruments referred
to therein) constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
* * * * *
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by its respective officer thereunto duly authorized, all
as of the day and year first written above.
DAVEL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: President
DAVEL FINANCING COMPANY, L.L.C.
By: Davel Communications, Inc.
Its: Sole Managing Member
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: President
DF MERGER CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: President
PT MERGER CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: President
PHONETEL TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and Chief Executive
Officer
