Exhibit 10.1(b)
EXECUTION COPY
FIRST AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
This First Amendment (this “
Amendment ”), dated as of May 7, 2007, is to the
Agreement and Plan of Merger, dated May 2, 2007 (as amended, the
“ Merger Agreement ”), among Varietal
Distribution Holdings, LLC, a Delaware limited liability company
(“ Parent ”), Varietal Distribution Merger Sub,
Inc., a Delaware corporation (“ MergerCo ”), and
CDRV Investors, Inc., a Delaware corporation (the “
Company ”). Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement.
WHEREAS, the parties hereto desire to amend the
Merger Agreement pursuant to Section 9.7 thereof as provided
herein.
NOW, THEREFORE, in consideration of the
foregoing, the parties hereto, intending to be legally bound,
hereby agree as follows:
1.
Amendment of Merger Agreement .
(a)
Section 3.5 of the Merger Agreement is hereby amended by
deleting the first sentence thereof in its entirety and replacing
such sentence with the following sentence:
“( a ) On May 2, 2007 Parent
delivered to the Company true and complete copies of an executed
commitment letter from Madison Dearborn Capital Partners V-A, L.P.,
Madison Dearborn Capital Partners V-C, L.P., and Madison Dearborn
Capital Partners V Executive-A, L.P. (collectively, the “
Equity Funds ”) to provide equity financing in an
aggregate amount of $1.425 billion to fund a portion of the amounts
to be paid by MergerCo pursuant to Section 1.3(c) (the “
Equity Commitment Letter ”), which Equity Commitment
Letter names the Company as a third party beneficiary thereof, and
( b ) on May 7, 2007 Parent will have delivered to the
Company true and complete copies of executed commitment letters,
dated May 7, 2007 (the “ Debt Commitment Letters
”) from ( i ) Bank of America, N.A., Banc of America
Bridge LLC, Banc of America Securities LLC, Goldman Sachs Credit
Partners L.P., J.P. Morgan Securities Inc. and JPMorgan Chase Bank,
N.A., respectively (the “ Senior Debt Financing
Sources ”) to provide Parent and Merge
