EXHIBIT 2.1
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
DIVINE, INC.,
DVC ACQUISITION COMPANY
AND
VIANT CORPORATION
THIS AMENDMENT (the "AMENDMENT") to the AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION (the "MERGER AGREEMENT") by and among DIVINE, INC., DVC
ACQUISITION COMPANY and VIANT CORPORATION is made and entered into as of the
23th day of July, 2002, by and among DIVINE, INC., a Delaware corporation
("PARENT"), DVC ACQUISITION COMPANY, a Delaware corporation ("MERGER SUB"), and
VIANT CORPORATION, a Delaware corporation (the "COMPANY" and, collectively with
Parent and Merger Sub, the "PARTIES").
RECITALS:
WHEREAS, the Parties hereto entered into the Merger Agreement as of
April 5, 2002.
WHEREAS, the Parties deem it to be in their best interest to amend the
Merger Agreement as hereinafter provided.
NOW, THEREFORE, the Parties hereto agree to amend the Merger Agreement as
follows:
AGREEMENT:
1. Unless otherwise defined herein, capitalized terms used herein have the
meanings ascribed to them in the Merger Agreement.
2. Section 4.1(a) of the Merger Agreement is hereby amended in its entirety
to read as follows:
(a) Conversion of Company Stock. Subject to the provisions of
SECTION 4.3 hereof, each share of common stock, par value $0.001 per share
of the Company ("COMPANY SHARES") (including the associated Company Rights)
issued and outstanding immediately prior to the Effective Time (excluding
any Company Shares described in SECTION 4.1(D)), shall, by virtue of the
Merger and without any action on the part of the holder thereof, be
converted automatically into the right to receive an amount per share equal
to a number of shares (the "STOCK PAYMENT") of Parent's Class A common
stock, par value $0.001 per share (the "PARENT COMMON STOCK") (and
associated rights to purchase Parent's Series A Junior Participating
Preferred Stock, par value $0.001 per share (the "PARENT RIGHTS")) equal to
the quotient of (x) the lesser of (i) the Merger Consideration (as defined
below) or (ii) 19.99% of the number of shares of Parent Common Stock issued
and outstanding as of the Closing Date, divided by (y) the number of Company
Shares issued and outstanding as of the second business day prior to the
Closing Date,. The term "MERGER CONSIDERATION" means a number of shares of
Parent Common Stock equal to (1) if the Acknowledgement (as defined in
Section 17 hereof) is delivered to Parent, the lesser of (i) $8,600,000
divided by the Average Market Value, or (ii) 19.99% of the number of shares
of Parent Common Stock outstanding as of the Closing Date or (2) if such
Acknowledgement is not delivered to Parent, then $7,500,000 divided by the
Average Market Value. The term "AVERAGE MARKET VALUE" means the greater of
(i) the lesser of (A) $2.9675 and (B) the volume weighted arithmetic average
(rounded to the nearest five (5) decimal places) of the closing sale price
per share of Parent Common Stock as reported on the NNM for the ten
(10) consecutive trading days ending two (2) trading days prior to the
Closing Date, or (ii) $2.0325. The shares of Parent Common Stock issuable in
connection with the Merger and the transactions contemplated thereby are
referred to herein as the "PARENT SHARES," and the Stock Payment, together
with the applicable amount of cash in lieu of fractional shares, are
referred to as the "PER SHARE CONSIDERATION." All Company Shares, together
with the associated Company Rights, to be converted into the Per Share
Consideration pursuant to this SECTION 4.1(A) shall, by virtue of the Merger
and without any action on the part of the holders thereof, cease to be
outstanding, be canceled and cease to exist, and each holder of a
certificate representing any such Company Shares shall thereafter cease to
have any rights with respect to such Company Shares and the associated
Company Rights, except the right to receive for each of the Company Shares,
together with the associated
Company Rights, upon the surrender of such certificate in accordance with
SECTION 4.2, the Per Share Consideration, as specified above.
3. Section 4.1(c) of the Merger Agreement is hereby amended in its entirety
to read as follows:
(c) Outstanding Company Options. Neither Parent nor the Surviving
Corporation will assume or substitute options for any of the Company Options
outstanding and unexercised pursuant to the Company's 1996 Stock Option Plan
(the "1996 OPTION PLAN") and the Company's 1999 Stock Option Plan as amended
and restated (the "1999 OPTION PLAN"). Accordingly, pursuant to
Section 11(c) of the 1996 Option Plan and Section 13(c) of the 1999 Option
Plan, respectively, on or before the date that is 18 days prior to the
anticipated Closing Date, the Company shall take all necessary actions
(including providing all required notices) to ensure that each outstanding
Company Option, whether vested or unvested, that is then outstanding and
unexercised pursuant to either such plan shall be fully vested and
exercisable for a period of fifteen (15) days from the date of such notice
(the "OPTION EXERCISE PERIOD") and that each of the 1996 Option Plan and the
1999 Option Plan shall terminate upon expiration of the Option Exercise
Period. The parties shall take steps to enable the holder of each Company
Option to exercise the Company Option net of the exercise price and receive
in respect thereof the Per Share Consideration and the Per Share Dividend
Amount net of the exercise price thereof.
4. Section 4.1(e) of the Merger Agreement is hereby amended in its entirety
to read as follows:
(e) Adjustment for Organic Changes. In the event of any
reclassification, stock split, distribution, stock dividend, reorganization,
reclassification, combination, exchange of shares or other like change with
respect to Parent Common Stock, any change or conversion of Parent Common
Stock into other securities or any other dividend or distribution in Parent
Common Stock with respect to outstanding Parent Common Stock (or if a record
date with respect to any of the foregoing should occur) prior to the
Effective Time, appropriate and proportionate adjustments, if any, shall be
made to the number of Parent Shares, the Stock Payment and the Average
Market Value, and all references to the number of Parent Shares, the Stock
Payment and the Average Market Value in this Agreement shall be deemed to be
to the number of Parent Shares, the Stock Payment and the Average Market
Value as so adjusted.
5. Section 6.1(h) of the Merger Agreement is hereby amended in its entirety
to read as follows:
(h) Declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any of its capital stock,
or split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu of or
in substitution for shares of capital stock of the Company, other than
(i) in connection with the replacement of lost, stolen or destroyed
certificates and (ii) the declaration and payment of a cash distribution not
to exceed $72,500,000, provided, however, (A) if the Acknowledgement is
delivered to Parent such distribution amount shall be increased by an
amount, if any, equal to (x) $8,600,000, minus (y) the product of the Merger
Consideration multiplied by the Average Market Value, and (B) if the Company
receives any cash proceeds from the exercise of any Company Options after
the date of this Agreement but on or prior to the expiration of the Option
Exercise Period, such distribution amount shall be increased by an amount
equal to such cash proceeds (the "OPTION PROCEEDS"), in the aggregate, to
all holders of Company Shares on the record date for such dividend (the
"DIVIDEND AMOUNT" and, if such distribution is declared and paid, the amount
of such distribution payable in respect of each Company Share as of the
record date, shall be referred to as the "PER SHARE DIVIDEND AMOUNT");
6. Section 6.5 of the Merger Agreement is hereby amended in its entirety to
read as follows:
6.5 Registration Statement. Parent will, as promptly as practicable
after the date hereof, prepare and file with the SEC a registration
statement on Form S-4 (the "S-4 REGISTRATION STATEMENT"), containing a proxy
statement/prospectus and form of proxy, in connection with the registration
under the Securities Act of the Parent Shares issuable in connection with
the Merger and the other transactions contemplated hereby. The Company will,
as promptly as practicable after the date hereof, prepare and file with the
SEC a proxy statement that will be the same proxy statement/prospectus
contained in the S-4 Registration Statement and form of proxy, in connection
with the vote of the Company's stockholders with respect to the Merger (such
proxy statement/prospectus, together with any amendments thereof or
supplements thereto, in each case in the form mailed to the Company's
stockholders is herein called the "PROXY STATEMENT"). Each of the Company
and Parent will, and will cause its respective accountants, lawyers and
investment bankers or financial advisors to, use its
commercially reasonable efforts to cause the S-4 Registration Statement to
be declared effective by the SEC (the date the S-4 Registration Statement is
declared effective being referred to as the "S-4 EFFECTIVE DATE") as
promptly as practicable thereafter, including, without limitation, causing
its respective accountants, lawyers and investment bankers or financial
advisors to deliver necessary or required instruments such as opinions,
consents and certificates, and will take or will cause its respective
accountants and lawyers to take, any other action required or necessary to
be taken or advisable or customary under federal or state securities laws or
otherwise in connection with the registration process, it being understood
and agreed that each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Professional
Corporation, counsel to the Company, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
counsel to Parent, will render, on the date the preliminary Proxy Statement
is first filed with the SEC or on the date of any amendment thereto so long
as it is rendered prior to the date on which the S-4 Registration Statement
is declared effective, an opinion that the federal income tax consequences
described in the Registration Statement are true and correct in all material
respects. The Company will use its reasonable efforts to cause the Proxy
Statement and the applicable form of proxy to be mailed to its stockholders
at the earliest practicable date after the S-4 Effective Date and the
Company shall each use its commercially reasonable efforts to hold the
Company Stockholders Meeting as soon as practicable thereafter (subject to
the requirements of laws and rules and regulations of the SEC). Parent shall
also take any action required to be taken under state blue sky or other
securities laws in connection with the issuance of Parent Shares in the
Merger.
7. Section 6.20 of the Merger Agreement is hereby amended in its entirety
to read as follows:
6.20 Granting of Additional Parent Options. Not later than 10 business
days after the Effective Time, each employee of the Company who either
becomes an employee of Parent or one of its Subsidiaries or continues as an
employee of the Company after the Effective Time (a "Continuing Employee")
shall receive a grant of options ("ADDITIONAL PARENT OPTIONS") to purchase a
number of shares of Parent Common Stock under the Parent Option Plans equal
to the number of options that would be granted under the Parent Option Plans
to Parent employees with a salary equal to the annual salary of such
Continuing Employee as in effect immediately prior to the Effective Time
based on Parent's option guidelines as in effect as of the date of this
Amendment, a true and complete copy of which has been provided to the
Company prior on or prior to the date of this Amendment, multiplied by the
number of whole years that such Continuing Employee has been employed by the
Company. The Additional Parent Options shall be subject to Parent's standard
terms and conditions, including vesting schedules. The exercise price for
the Additional Parent Options shall be the closing sale price of Parent
Common Stock on the NNM on the date of grant. The number of Additional
Parent Options granted hereunder shall be adjusted to reflect fully the
effect of any stock split, reverse stock split, stock dividend (including
any dividend or distribution of securities convertible into or exchangeable
for Parent Common Stock), reorganization, recapitalization or other like
change with respect to Parent Common Stock occurring after the date hereof
and prior to the Effective Time. The Parent Common Stock to be issued upon
the exercise of such Additional Parent Options has been duly and validly
reserved for issuance and, upon issuance in accordance with the terms of
Parent's applicable stock option plan, will be duly and validly issued,
fully paid, nonassessable, free of any liens or encumbrances (other than any
liens or encumbrances created by the holder thereof) and free of
restrictions on transfer.
8. Section 6.22 of the Merger Agreement is hereby amended in its entirety
to read as follows:
6.22 Additional Company Covenant. At Closing, the Company's cash and
cash equivalents, prior to giving effect to the payment of the Dividend
Amount, but after giving effect to any payments, obligations, contingencies
or commitments by or on behalf of the Company or its Subsidiaries with
respect to (i) the termination of the Company's lease of office space in
Atlanta Georgia, which will be terminated prior to Closing, (ii) the cost of
any insurance coverage contemplated pursuant to Section 17 of this
Amendment, and (iii) fees and expenses incurred in connection with the
Merger, this Amendment, the Merger Agreement and any of the transactions
contemplated hereby or thereby, including without limitation, legal,
accounting, and investment banking fees, regardless of whether such fees and
expenses have been billed prior to the Closing, shall equal an amount no
less than the sum of $100,000,000 plus any Option Proceeds.
9. Section 7.1(a) of the Merger Agreement is hereby amended in its entirety
to read as follows:
(a) this Agreement and the Merger shall have been approved and adopted
by the requisite vote under applicable law of the stockholders of the
Company;
10. Section 7.2(f) of the Merger Agreement is hereby amended in its
entirety to read as follows:
(f) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, its tax counsel, in form and
substance reasonably satisfactory to it, dated the Closing Date, to the
effect that the Merger should constitute a reorganization for United States
federal income tax purposes within the meaning of Section 368(a) of the
Code; provided, however, that if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation, does not render such opinion, this condition shall
nonetheless be deemed to be satisfied with respect to the Company if ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ renders such opinion to the Company. The Company
agrees to make such reasonable representations as may be requested by tax
counsel in connection with the opinions referred to above; and
11. Section 7.3(d) of the Merger Agreement is hereby amended in its
entirety to read as follows:
(d) Parent shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, its tax counsel, in form and substance reasonable satisfactory to
it, dated the Closing Date, to the effect that the Merger should constitute
a reorganization for United States federal income tax purposes within the
meaning of Section 368(a) of the Code; provided, however, that if ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ does not render such opinion, this condition shall
nonetheless be deemed to be satisfied with respect to Parent and Merger Sub
if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, renders such
opinion to Parent. Parent agrees to make such reasonable representations as
may be requested by tax counsel in connection with the opinions referred to
above; and
12. Sections 8.2(a) of the Merger Agreement is hereby amended in its
entirety to read as follows:
(a) the Merger shall not have been consummated by the later of
(i) September 13, 2002 and (ii) 35 calendar days from the effective date of
the Registration Statement, but in no event shall such date be later than
September 30, 2002; provided, however, that the right to terminate this
Agreement under this SECTION 8.2(A) shall not be available to any party
whose action or failure to fulfill any obligation under this Agreement has
been the principal cause of or resulted in the failure of the Merger to
occur on or before such date and such action or failure to act constitutes a
material breach of this Agreement;
13. Section 6.2(i) of the Merger Agreement is hereby amended in its
entirety to read as follows:
6.2(c) Take, or agree to take, any of the actions described in
Section 6.2(a) or (b) above, or any action which would cause or would be
reasonably likely to cause any of the conditions to the Merger set forth in
Sections 7.1 or 7.2, not to be satisfied.
14. The following Sections of the Merger Agreement are hereby deleted in
their entirety: 6.2(c), (d), (e), (f), (g) and (h), 6.4(b), 7.2(d), 7.2(g),
8.2(d) and 8.3(b).
15. REQUISITE BOARD APPROVALS.
(a) The Board of Directors of Parent, at a meeting duly called and held
on July 16, 2002, has approved this Amendment and (i) determined that this
Amendment and the transactions contemplated hereby, including the Merger,
taken together are fair to and in the best interests of Parent and the
stockholders of Parent and declared the Merger to be advisable; and
(ii) approved this Amendment.
(b) The Board of Directors of the Company, at a meeting duly called and
held on July 20, 2002, has approved this Amendment and (i) determined that
this Amendment and the transactions contemplated hereby, including the
Merger, taken together to be in the best interests of the stockholders of
the Company and declared the Merger to be advisable; (ii) approved this
Amendment; and (iii) resolved to recommend that the stockholders of the
Company adopt the Agreement, as amended by this Amendment, the Merger and
the transactions contemplated hereby and thereby.
16. PARENT STOCKHOLDER APPROVAL. Without limiting the foregoing terms of
this Amendment, the Parent hereby represents and warrants that, after giving
effect to this Amendment, the issuance of the Parent Shares in the Merger will
not require the prior approval of Parent's stockholders pursuant to either the
DGCL or
the rules and regulations of the NNM. Based upon such representation and
warranty, all references to such approval in the Merger Agreement and the
requirement that Parent conduct a stockholders meeting with respect to such
issuance are hereby waived without further action on the part of either party to
the Merger Agreement, and any such requirements shall no longer be a condition
to closing.
17. ADEQUACY OF D&O INSURANCE. No later than July 31, 2002, the Company
shall deliver to Parent a certificate (the "Acknowledgement") which shall
represent and warrant that pursuant to Section 6.13(c) of the Merger Agreement,
(i) the directors' and officers' liability insurance policy described on
EXHIBIT A to this Amendment was obtained by the Company, (ii) the insurance
carrier and terms of such policy, each as described on Exhibit A, are acceptable
to the Company and its directors, and (iii) such policy contains terms
comparable to those applicable to the current directors and officers of the
Company covering all periods prior to the Effective Time. The Acknowledgement
also shall expressly state that neither Parent nor the Surviving Corporation has
any further obligations pursuant to Section 6.13(c) of the Merger Agreement.
18. REFERENCE TO AND EFFECT ON THE MERGER AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference in the
Merger Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import shall mean and be a reference to the Merger Agreement
as amended hereby.
(b) Except as specifically amended or modified herein, all terms and
provisions contained in the Merger Agreement shall remain in full force and
effect.
19. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first hereinabove written.
DIVINE, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: SVP and General Counsel
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DVC ACQUISITION COMPANY
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President
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VIANT CORPORATION
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Chief Executive Officer
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