Exhibit
2.1
EXECUTION
COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER
AMENDMENT NO. 1, dated as of December 18, 2006 (this "
Amendment "), to the AGREEMENT AND PLAN OF MERGER, by and
among VALASSIS COMMUNICATIONS, INC., a Delaware corporation ("
Parent "), MICHIGAN ACQUISITION CORPORATION, a Delaware
corporation and a wholly owned Subsidiary of Parent (" Sub
"), and ADVO, INC., a Delaware corporation (the " Company
").
WHEREAS, Parent, Sub, and the Company are parties to that
certain Agreement and Plan of Merger dated as of July 5, 2006 (as
amended by this Amendment, the " Merger Agreement ");
WHEREAS, pursuant to Section 7.03 of the Merger Agreement, the
parties desire to amend the Merger Agreement as provided in this
Amendment;
WHEREAS, the respective Boards of Directors of Parent, Sub, and
the Company have approved and declared advisable this Amendment and
the other transactions contemplated hereby; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained in this Amendment, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, intending to be legally bound, the parties
hereto agree as follows:
Addition to
Recitals
1. The following recital is hereby added as the first recital of
the Merger Agreement:
"WHEREAS, this Agreement has been duly and validly amended by an
amendment dated as of December 18, 2006, duly executed and
delivered by the parties hereto (the "Amendment");".
Amendment to
Merger Consideration
2. The first recital of the Merger Agreement (prior to this
Amendment) is hereby amended to replace the phrase: "right to
receive $37 in cash, without interest" with the following phrase:
"right to receive $33 in cash plus, in the event the Closing does
not occur on or before the later of (i) February 28, 2007 and (ii)
the second business day after Shareholder Approval has been
obtained, interest, to the extent permitted by applicable Law, at
the rate per annum equal to the sum of (i) the Federal Reserve
discount rate as reported from time to time in The Wall Street
Journal plus (ii) five hundred (500) basis points, increasing
by a further one hundred (100) basis points at the beginning of
each month thereafter (commencing April 1, 2007) from February 28,
2007 until the Closing Date (such interest rate from time to time,
the " Contract Rate ")".
3. The first sentence of Section 2.01(c) of the Merger Agreement
is hereby amended to replace the phrase: "the right to receive $37
in cash, without interest" with the following phrase: "the right to
receive $33 in cash plus, in the event the Closing does not occur
on or before the later of (i) February 28, 2007 and (ii) the second
business day after Shareholder Approval has been obtained,
interest, to the extent permitted by applicable Law, at the rate
per annum equal to the Contract Rate from February 28, 2007 until
the Closing Date".
Closing
1.
The first sentence of Section 1.02 of the Merger
Agreement is hereby amended and restated to read as follows:
"The closing of the Merger (the " Closing ") will take
place at 10:00 a.m. on a date to be specified by the parties, which
shall be no later than the second business day after satisfaction
of the conditions set forth in Section 6.01, at the offices of
McDermott Will & Emery LLP, 340 Madison Avenue, New York, New
York 10017, unless another time, date or place is agreed to in
writing by Parent and the Company; provided, however , that
Parent may, subject to compliance with its obligations under
Section 5.10 of the Merger Agreement, upon at least two business
days' written notice to the Company, defer the closing to a date
not later than March 31, 2007 if and to the extent necessary or
desirable in order to obtain the financing necessary to consummate
the transactions contemplated by this Agreement; it being
understood and agreed that obtaining of such financing shall not be
a condition to Parent's obligations under this Agreement.
Amendment to
Disclosure Schedule
5. Section 4.01(a)(vii) of the Company Disclosure Schedule is
hereby amended as provided in Annex I.
Amendment to
Preparation of Proxy Statement; Shareholders' Meeting
6. The first sentence of Section 5.01(a) of the Merger Agreement
is hereby amended and replaced in its entirety with the
following:
"As soon as reasonably practicable following the date of the
Amendment, the Company and Parent shall prepare and the Company
shall file with the SEC the Proxy Statement.
7. The first sentence of Section 5.01(b) of the Merger Agreement
is hereby amended and replaced in its entirety with the
following:
"The Company shall as promptly as practicable following the date
of the Amendment, establish a record date for, duly call, give
notice of, convene and hold a meeting of its shareholders (the "
Shareholders' Meeting ") solely for the purpose of obtaining
the Shareholder Approval and such other matters as may be agreed to
by the Company and the Parent, provided that such date may be
extended to the extent necessary to permit the Company to file and
distribute any material amendment to the Proxy Statement as is
required by applicable law."
Addition to
Covenants
8. The second sentence of Section 5.02 (Access to Information;
Confidentiality) is hereby amended and restated to read as
follows:
"Without limiting the foregoing, between the date hereof and the
Effective Time, the Company shall (and shall cause its Affiliates
to) fully cooperate with Parent in connection with Parent securing
financing to consummate the Merger (including debt and/or equity
financing), including, without limitation, cooperating with the
Parent in obtaining appraisals of the assets of the Company and its
Subsidiaries, sending notices to reflect the change of control,
obtaining reasonable access to the Company's accountants and their
work papers, making employees of the Company and its Subsidiaries
reasonably available
