Exhibit 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1 (this "Amendment") dated as of July 14, 2004 to the Rights
Agreement dated June 18, 2001 between MODEM MEDIA, INC., a Delaware corporation
(the "Company") and EquiServe Trust Company, N.A., as Rights Agent (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger dated as of the date hereof among the Company, Digitas Inc., a Delaware
corporation (the "Buyer"), and Digitas Acquisition Corp., a Delaware
Corporation (the "Merger Agreement");
WHEREAS, the Board of Directors of the Company has approved,
authorized and adopted the Merger Agreement and the transactions contemplated
thereby and, subject to certain conditions, is bound to recommend to the
stockholders of the Company the approval and adoption of the Merger Agreement;
WHEREAS, concurrently with the execution of the Merger Agreement, the
Buyer intends to enter into voting agreements with each of the directors and
certain executive officers of the Company pursuant to which such individuals
will agree to vote all shares of the Company's common stock held by them in
favor of the adoption of the Merger Agreement and will grant the Buyer an
irrevocable proxy to vote such shares in the manner contemplated by such
agreements (the "Voting Agreements");
WHEREAS, the Board of Directors of the Company has determined that in
connection with the Merger Agreement, the Voting Agreements and the
transactions contemplated thereby, it is desirable to amend the Rights
Agreement dated June 18, 2001 between the Company and the Rights Agent (the
"Rights Agreement") as set forth herein;
WHEREAS, pursuant to Section 23 of the Rights Agreement, the Company
and the Rights Agent desire to amend the Rights Agreement as set forth herein;
NOW, THEREFORE, the Rights Agreement is amended as follows:
SECTION 1. Proposed Merger. The following subsection (e) is hereby
added to Section 2 of the Rights Agreement in its appropriate position:
"(e) Notwithstanding anything in this Agreement to the
contrary, (i) no Distribution Date, Stock Acquisition Date or
Triggering Event shall be deemed to have occurred, (ii) neither
Digitas Inc. nor any of its subsidiaries (collectively, the
"Acquisition Group") shall be deemed to have become an Acquiring
Person and (iii) no holder of Rights shall be entitled to any rights
or benefits pursuant to Sections 5(e), 8(a), 10(a) or any other
provision of this Agreement, in each case by reason of (x) the
approval, execution, delivery and performance of the Merger Agreement
and the Voting Agreements by the parties thereto, (y) the approval of
the Merger Agreement by the stockholders of the parties thereto or (z)
the consummation of the transactions contemplated by the Merger
Agreement and the Voting Agreements; provided that in the event that
one or more members of the Acquisition Group collectively become the
Beneficial Owner of 15% or more of the Common Stock then outstanding
in any manner other than as set forth in the Merger Agreement and the
Voting Agreements, the provisions of this sentence (other than this
proviso) shall terminate."
SECTION 2. Effectiveness. This Amendment shall be deemed effective as
of the date first set forth above. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
SECTION 3. Miscellaneous. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such state.
This Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
term, provision, covenant or restriction of this Amendment is held by a court
of competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
MODEM MEDIA, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President,
General Counsel, Human
Resources and Corporate
Secretary
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
