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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
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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 reasonably available, providing all financial,
internal control and intellectual technology (including Service
Delivery Redesign) information relating to the Company and its
Subsidiaries as may be r
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