AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
AMENDMENT (hereinafter called this “Amendment”), dated as of July 18, 2007, among
Vertrue Incorporated, a Delaware corporation (the “Company”), Velo Holdings Inc., a
Delaware corporation (“Parent”), and Velo Acquisition Inc., a Delaware corporation and a
wholly owned subsidiary of Parent (“Merger Sub”), to the Agreement and Plan of Merger,
dated as of March 22, 2007 (the “Merger Agreement”), among the Company, Parent and Merger
Sub. Unless otherwise specifically defined in this Amendment, each capitalized term used in this
Amendment shall have the meaning assigned to such term in the Merger Agreement.
WHEREAS, Section 9.2 of the Merger Agreement provides that the Merger Agreement may be amended
by written agreement executed and delivered by the Company, Parent and Merger Sub; and
WHEREAS, the respective boards of directors of each of Parent, Merger Sub and the Company have
unanimously approved and declared advisable this Amendment.
NOW, THEREFORE, in consideration of the premises and the representations, warranties and
agreements contained herein, the parties hereto agree as follows:
1. Recital. The reference of Oak Investment Partners XII, L.P. shall be deleted from the
definition of “Guarantors” in the Recital of the Merger Agreement.
2. Amendment to Section 4.1(a). Section 4.1(a) of the Merger Agreement is amended by
replacing the phrase “$48.50 per Share in cash, without interest (the “Per Share Merger
Consideration”)” with the phrase “$50.00 per Share in cash, without interest (the “Per
Share Merger Consideration”)”.
3. Amendment to Section 5.1(b). The second sentence of Section 5.1(b) of the Merger
Agreement is amended by inserting after the words “warrants or rights” the phrase “(except as
provided in the Stockholder Protection Rights Agreement between the Company and American Stock
Transfer & Trust Company, dated as of July 3, 2007 (the “Company Rights Plan”))”. Section
5.1(b) of the Company Disclosure Letter is hereby amended by inserting therein a reference to the
Company Rights Plan.
4. Amendment to 5.1(c)(ii)(C). Section 5.1(c)(ii)(C) of the Merger Agreement is amended by
restating Section 5.1(c)(ii)(C) in its entirety to read as follows:
“(C) (I) received the opinion of its financial advisor Jefferies Broadview (and the special
committee of the board of directors of the Company has received the opinion of its
financial advisor FTN Midwest Securities) on or prior to March 22,
2007 to the effect that
the consideration to be received by the holders of the Shares in the Merger is fair from a
financial point of view, as of the date of such opinions, to such holders, and (II)
received a separate opinion of its financial advisor Jefferies Broadview (and the special
committee of the board of directors of the Company has received a separate opinion of its
financial advisor FTN Midwest Securities) on July 18, 2007 to the effect that the
consideration to be received by the holders of the Shares in the Merger (upon giving effect
to this Amendment) is fair from a financial point of view, as of the date of such opinions,
to such holders.”
5. Amendment to Section 5.2(e)(ii). The reference to Oak Investment Partners XII, L.P.
shall be deleted from the definition of “Equity Financing Commitments” in Section 5.2(e)(ii) of the
Merger Agreement.
6. Amendment to Section 5.2. Section 5.2(k) of the Merger Agreement is deleted in its
entirety.
7. Representations and Warranties of the Company.
(a) Corporation Authority. The Company has all requisite corporate power and
authority and has taken all corporate action necessary in order to execute and deliver this
Amendment and, subject only to adoption of the Merger Agreement, as amended by this Amendment, by
the Company Requisite Vote, to perform its obligations under the Merger Agreement, as amended by
this Amendment, and to consummate the Merger. This Amendment has been duly executed and delivered
by the Company and constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b) Approval. The board of directors of the Company has unanimously determined that
it is in the best interests of the Company and its stockholders to enter into this Amendment and
approved and declared advisable the Merger Agreement, as amended by this Amendment, and recommended
adoption of the Merger Agreement, as amended by this Amendment, by the stockholders of the Company.
(c) 203 Approval. The board of directors of the Company has unanimously approved the
execution, delivery and performance of (i) the Merger Agreement, as amended by this Amendment, and
the transactions contemplated thereby, including, without limitation, the Merger and (ii) the
agreement, dated July 18, 2007 (the “Brencourt Agreement”), between Parent and Brencourt
Advisors, LLC and the transactions contemplated thereby, in each case under Section 203 of the DGCL
such that, assuming the representations and warranties set forth in Section 8(b) of this Amendment
are true and correct, the Merger Agreement, as amended by this
Amendment, and the transactions contemplated thereby, including, without limitation, the
Merger, in each case shall not be subject to the restrictions of Section 203(a) of the DGCL if such
restrictions might otherwise be applicable.
8. Representations and Warranties of Parent and Merger Sub.
(a) Corporation Authority. Each of Parent and Merger Sub has all requisite corporate
power and authority and has taken all corporate action necessary in order to execute and deliver
this Amendment and, subject only to adoption of the Merger Agreement, as amended by this Amendment,
by the Parent Requisite Vote, to perform its obligations under the Merger Agreement, as amended by
this Amendment, and to consummate the Merger. This Amendment has been duly executed and delivered
by each of Parent and Merger Sub and constitutes a valid and binding agreement of each of Parent
and Merger Sub enforceable against each of Parent and Merger Sub in accordance with its terms,
subject to the Bankruptcy and Equity Exception.
(b) Section 203 of the DGCL. Other than as a result of the execution, delivery and
performance of the Brencourt Agreement by the parties thereto after the Brencourt Agreement was
approved by the board of directors of the Company as provided in Section 7(c) of this Amendment,
neither Parent nor Merger Sub is, and at no time since March 21, 2004 has been, an “interested
stockholder” of the Company as defined in Section 203 of the DGCL.
9. Miscellaneous Provisions.
(a) No Further Amendment. Except as expressly amended by this Amendment, the Merger
Agreement is in all respects ratified and confirmed and all the terms, conditions, representations,
warranties, covenants and provisions thereof shall remain in full force and effect in accordance
with their respective terms. This Amendment is limited precisely as written and shall not be deemed
to be an amendment to any other term or condition of the Merger Agreement or any of the documents
referred to therein, the Company Disclosure Letter, the Parent Disclosure Letter or any of the
documents referred to therein or otherwise affect or operate as a waiver or relinquishment of any
of the rights of any party under any of them. Except as expressly amended by this Amendment, this
Amendment does not constitute a waiver of any condition or other provision of the Merger Agreement.
(b) Effect of Amendment. This Amendment shall form a part of the Merger Agreement for
all purposes, and Parent, Merger Sub and the Company shall be bound by this Amendment. From and
after the execution of this Amendment by Parent, Merger Sub and the Company, any reference to the
Merger Agreement, the Company Disclosure Letter or the Parent Disclosure Letter shall be deemed a
reference to the Merger Agreement, the Company Disclosure Letter or the Parent Disclosure Letter as
amended, respectively, by this Amendment.
(c) Other Miscellaneous Terms. The provisions of Article IX (Miscellaneous) of the
Merger Agreement shall apply mutatis mutandis to this Amendment and to the Merger Agreement as
amended by this Amendment, taken together as a single agreement, reflecting the terms therein as
amended by this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first written above.
| VERTRUE INCORPORATED | ||||||
| By | /s/ Xxxxxx X. X. Xxxxxx | |||||
| Name: Xxxxxx X.X. Xxxxxx | ||||||
| Title: Senior Vice President and General Counsel | ||||||
| VELO HOLDINGS INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Vice President and Secretary | ||||||
| VELO ACQUISITION INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Vice President and Secretary | ||||||
