EXHIBIT 2
AMENDMENT No. 1
TO
RIGHTS AGREEMENT
THIS AMENDMENT No. 1 TO RIGHTS AGREEMENT (the "Amendment"), dated as
of July 8, 2001, is between divine, inc., a Delaware corporation formerly known
as divine interVentures, inc. (the "Company"), and Computershare Investor
Services, LLC, a Delaware limited liability company (the "Rights Agent").
Recitals
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A. The Company and the Rights Agent are parties to a Rights
Agreement dated as of February 12, 2001 (the "Rights Agreement");
B. Pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may supplement or amend the Rights Agreement from time to time
in accordance with the provisions of Section 27 thereof;
C. The Company, DES Acquisition Company, a Delaware corporation and
wholly-owned subsidiary of the Company (the "Merger Sub"), and eshare
communications, Inc., a Georgia corporation (the "Merger Partner"), have entered
into an Agreement and Plan of Merger dated as of July 8, 2001 (the "Merger
Agreement") pursuant to which the Merger Partner will be merged with and into
the Merger Sub, with the Merger Sub as the surviving corporation (the "Merger");
D. The Board of Directors of the Company has determined that the
Merger and the other transactions contemplated by the Merger Agreement are fair
to and in the best interests of the Company and its stockholders; and
E. The Board of Directors of the Company has determined that it is
desirable to amend the Rights Agreement in connection with the transactions
contemplated by the Merger Agreement.
Agreements
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Accordingly, the parties agree as follows:
1. Amendment of Section l(a). The definition of "Acquiring Person"
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in Section l(a) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
(a) "Acquiring Person" shall mean any Person who or which,
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together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company, or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to
the terms of any such plan, (iv) any Person who becomes the Beneficial
Owner of fifteen percent (15%) or more of the shares of Common Stock
then outstanding as a result of a reduction in the number of shares of
Common Stock outstanding due to the repurchase of shares of Common
Stock by the Company unless and until such Person, after becoming
aware that such Person has become the Beneficial Owner of fifteen
percent (15%) or more of the then outstanding shares of Common Stock,
acquires beneficial ownership of additional shares of Common Stock
representing
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EXHIBIT 2
one percent (1%) or more of the shares of Common Stock then
outstanding, (v) Xxxxxxxxxx Xxxxx, an individual, and Szlam Partners,
L.P., a Georgia limited partnership owned and controlled by Xxxxxxxxxx
Xxxxx, or either of their respective Affiliates or Associates, unless
and until such time as such Person together with its Affiliates and
Associates, directly or indirectly, becomes the Beneficial Owner of
20% or more of the shares of Common Stock then outstanding, in which
event such Person shall immediately become an Acquiring Person, or
(vi) any Person which beneficially owns 10% or more of the shares of
Common Stock outstanding on February 12, 2001, unless and until such
time as such Person together with its Affiliates and Associates,
directly or indirectly, becomes the Beneficial Owner of 20% or more of
the shares of Common Stock then outstanding, in which event such
Person shall immediately become an Acquiring Person.
2. Effectiveness. This Amendment shall be deemed effective as of
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July 8, 2001, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
3. Miscellaneous. This Amendment shall be deemed to be a contract
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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 the State of Delaware
applicable to contracts to be made and performed entirely within the State of
Delaware. 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, void, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
DIVINE, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COMPUTERSHARE INVESTOR SERVICES, LLC
By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
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