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
4. 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
Share
2
holder 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 reason
