EXHIBIT (e)(1)(ii)
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
January 17, 2002 by and among U.S. REALTEL, INC., a Delaware corporation
("Parent"), CYPRESS MERGER SUB, INC., a Delaware corporation and a wholly owned
subsidiary of Parent ("Purchaser") and CYPRESS COMMUNICATIONS, INC., a Delaware
corporation (the "Company").
WHEREAS, Parent, Purchaser and the Company are parties to an
Agreement and Plan of Merger dated as of January 10, 2002 (the "MERGER
AGREEMENT"), providing for the commencement of a cash tender offer by Purchaser
to acquire all of the issued and outstanding shares of common stock, $0.001 par
value, of the Company, and associated rights to purchase shares of Series Z
Preferred Stock $0.001 par value of the Company, for $3.50 per Share, net to the
seller in cash, and, upon completion of the Offer, the Merger of Purchaser with
and into the Company; and
WHEREAS, pursuant to the Merger Agreement Purchaser agreed to
commence the Offer as promptly as practicable, but in no even later than ten
(10) days after the public announcement of the execution of the Merger
Agreement, which ten-day period expires Sunday, January 20, 2002; and
WHEREAS, the parties now desire to amend certain provisions of
the Merger Agreement as set forth herein to extend by two days the period of
time during which Purchaser is obligated to commence the Offer.
NOW, THEREFORE, the parties hereto agree as follows:
1. Each reference in the Merger Agreement that requires Purchaser
to commence the Offer in no event later than ten (10) days after the date of the
initial public announcement of the Offer or the public announcement of the
execution of the Merger Agreement, including but not limited to Sections 1.l(a),
7.1(c)(i) and 7.l(d)(i) of the Merger Agreement, is hereby revised to refer in
each such instance to a period of twelve (12) days, which the parties
acknowledge and agree shall extend through but not after Tuesday, January 22,
2002.
2. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Merger Agreement. Except to the extent
expressly amended hereby, the provisions of the Merger Agreement remain in full
force and effect in accordance with their terms, and this Amendment shall not be
deemed to be a waiver, amendment or modification of any other term or condition
of the Merger Agreement, an extension of any other time period under the Merger
Agreement, or a waiver or release of or otherwise to affect any rights or
remedies that any party to the Merger Agreement has or may have under or with
respect to the Merger Agreement or any matters relating thereto, whether now
existing or hereafter accruing.
3. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Parent, Purchaser and the Company have
caused this Amendment to be signed by their respective officers thereunto duly
authorized as of the date first written above.
U.S. REALTEL, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: President
CYPRESS MERGER SUB, INC.
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President
CYPRESS COMMUNICATIONS, INC.
By: /s/ W. Xxxxx Xxxxxx
--------------------------
Name: W. Xxxxx Xxxxxx
Title: Chairman & CEO
