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EXHIBIT 2.2
FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT (the "Amendment") to the Agreement and Plan of
Merger (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 9, 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) Article 4 of the Merger Agreement is hereby amended by adding
a new Section 4.20 thereto which shall read in its entirety as
follows:
"SECTION 4.20. ACCREDITED INVESTOR STATUS. To the
Knowledge of Target, each holder of TARGET Preferred Stock is
an "accredited investor" (as such term is defined in
Regulation D promulgated under the 1933 Act)."
(b) The Merger Agreement is hereby amended by deleting Exhibit 3
thereto and replacing it with the Exhibit 3 attached hereto.
(c) Section 11.7(a) of the Merger Agreement is hereby amended by
deleting such section in its entirety and replacing it with
the following:
"(a) SFX Communications L.L.C. shall be
constituted and appointed as agent ("Stockholders' Agent") for
and on behalf of the TARGET shareholders to give and receive
notices and communications, to authorize delivery to PURCHASER
of the PURCHASER Common Stock or other property from the
Escrow Fund in satisfaction of claims by PURCHASER, to object
to such deliveries, to agree to, negotiate, enter into
settlements and compromises of, and demand arbitration and
comply with orders of courts and awards of arbitrators with
respect to such claims, and to take all actions necessary or
appropriate in the judgment of the Stockholders' Agent for the
accomplishment of the foregoing.
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Such agency may be changed by the holders of a majority in
interest of the Escrow Fund from time to time upon not less
than 10 days' prior written notice to PURCHASER. No bond shall
be required of the Stockholders' Agent, and the Stockholders'
Agent shall receive no compensation for its services. Notices
or communications to or from the Stockholders' Agent shall
constitute notice to or from each of the holders of
Outstanding TARGET Shares."
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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