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EXHIBIT 2.3
SECOND AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT (the "Amendment") to the Agreement and Plan of
Merger, as amended by the First Amendment thereto (as so amended, the "Merger
Agreement;" capitalized terms used but not defined herein shall have the
meanings ascribed to them therein), dated as of October 31, 2000, by and among
VERSO TECHNOLOGIES, INC., a Minnesota corporation ("Parent"), MCLICK ACQUISITION
CORPORATION, a Delaware corporation and a second-tier, wholly-owned subsidiary
of Verso ("Merger Sub"), and MESSAGECLICK, INC., a Delaware corporation
("Target"), is made as of November 10, 2000, by and among Parent, Merger Sub and
Target.
W I T N E S S E T H:
WHEREAS, the Parent, Merger Sub and Target desire to amend the Merger
Agreement as provided herein,
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein, the parties hereto do hereby agree as follows:
SECTION 1. AMENDMENTS TO MERGER AGREEMENT. The Merger Agreement is
hereby amended as follows:
(a) Section 10.1(d) is hereby amended by deleting such section in
its entirety and replacing it with the following:
"(d) By the Board of Directors of any Party
(provided that the terminating Party is not then in material
breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event (i) any
Consent of any Regulatory Authority required for consummation
of the Merger and the other transactions contemplated hereby
has been denied by final nonappealable action of such
authority or if any action taken by such authority is not
appealed within the time limit for appeal, or (ii) if the
stockholders of TARGET fail to approve this Agreement and the
transactions contemplated hereby as required by the DGCL at
any meeting of such stockholders called for purpose or by
written consent in lieu of any such meeting in accordance with
the DGCL; or"
(b) Section 10.1(e) is hereby amended by deleting such section in
its entirety and replacing it with the following:
"(e) By the Board of Directors of any Party in
the event that the Merger shall not have been consummated by
November 22, 2000, but only if the failure to consummate the
transactions contemplated hereby on or before such date is not
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caused by any breach of this Agreement by the Party electing
to terminate pursuant to this Section 10.1(e); provided,
however, that if the Merger shall not have been consummated by
such date due to the failure to satisfy the conditions set
forth in Section 9.2 hereof, then such date may be extended,
at the option of PARENT, to (and including) the first business
day following the date on which such conditions have been
satisfied, but in no event shall such date be extended beyond
November 29, 2000; or"
SECTION 2. EFFECT ON MERGER AGREEMENT. Except as otherwise specifically
provided herein, the Merger Agreement shall not be amended but shall remain in
full force and effect.
SECTION 3. HEADINGS. The Section headings contained in this Amendment
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Amendment.
SECTION 4. COUNTERPARTS. This Amendment may be executed simultaneously
in counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of Parent, Merger Sub and Target has
caused this Amendment to be executed and delivered by their respective officers
thereunto duly authorized, all as of the day and year above written.
VERSO TECHNOLOGIES, INC.
By: /s/ Juliet M. Reising
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Juliet M. Reising
Executive Vice President and
Chief Financial Officer
MESSAGECLICK, INC.
By: /s/ Benjamin Feder
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Benjamin Feder
Chairman and Chief Executive Officer
MCLICK ACQUISITION CORPORATION
By: /s/ Juliet M. Reising
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Juliet M. Reising
Vice President
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