EXHIBIT 2.1
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 made this 10th day of January, 2000 (the "Amendment"),
by and among CMGI, Inc., a Delaware corporation (the "Buyer"), Artichoke Corp.,
a Delaware corporation and a wholly owned subsidiary of the Buyer (the
"Transitory Subsidiary") and AdForce, Inc., a Delaware corporation (the
"Company"), to the Amended and Restated Agreement and Plan of Merger, dated as
of September 20, 1999, by and among the Buyer, the Transitory Subsidiary and the
Company (the "Agreement"). Except as set forth below, the Agreement shall
remain in full force and effect. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Agreement.
WHEREAS, the Agreement currently provides that the Buyer, the Transitory
Subsidiary and the Company (collectively, the "Parties") (i) shall each use its
reasonable efforts to cause the Merger to be treated as a reorganization within
the meaning of Section 368(a) of the Code and (ii) adopt the Agreement as a plan
of reorganization; and
WHEREAS, the Parties acting in accordance with Section 8.4 of the Agreement
desire to amend the Agreement to further provide that the Parties contemplate,
as part of such plan of reorganization, merging the Company after the Effective
Time into a limited liability company that is wholly owned by the Buyer;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Section 6.8 of the Agreement shall be amended by adding the following
sentence after the first sentence of Section 6.8: "The parties hereto
contemplate that, as part of one overall plan, after the Effective Time, the
Company will merge with and into a limited liability company that is wholly
owned by the Buyer and is disregarded as an entity separate from the Buyer for
federal tax purposes pursuant to Treasury Regulation Section 301.7701-
3(b)(1)(ii)."
2. The Agreement, as supplemented and modified by this Amendment, together
with the other writings referred to in the Agreement or delivered pursuant
thereto which form a part thereof, contain the entire agreement among the
Parties with respect to the subject matter thereof and amend, restate and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
3. Upon execution of this Amendment by the Parties, on and after the date
hereof, each reference in the Agreement to "this Agreement," "hereunder,"
"hereof,"
"herein" or words of like import, and each reference in the other documents
entered into in connection with the Agreement, shall mean and be a reference to
the Agreement, as amended hereby. Except as specifically amended above, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
4. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Delaware without giving effect to any choice
or conflict of law provision or rule (whether of the State of Delaware or any
other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of Delaware.
5. This Amendment may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
6. This Amendment shall be binding on all parties to the Agreement as and
when executed by the Buyer, the Transitory Subsidiary and the Company.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
CMGI, INC.
By: /s/ Xxxxxx X. Xxxxxxxx III
-----------------------------------------
Title: Chief Financial Officer and Treasurer
ARTICHOKE CORP.
By: /s/ Xxxxxx X. Xxxxxxxx III
-----------------------------------------
Title: Vice President and Treasurer
ADFORCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: President and Chief Executive Officer
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