EXHIBIT 2.2(b)
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (the "AMENDMENT") is made
this 10th day of September, 2001 by and among divine, inc., a Delaware
corporation ("PARENT"), DI1 Acquisition Company, a Delaware corporation and
direct wholly-owned subsidiary of Parent ("MERGER SUB"), and Open Market, Inc.,
a Delaware corporation (the "COMPANY"). All capitalized terms not defined herein
shall have the meaning ascribed to them in that certain Agreement and Plan of
Merger made and entered into as of August 15, 2001, by and among the parties
hereto (the "MERGER AGREEMENT").
WHEREAS, pursuant to the Merger Agreement, at the Effective Time, Merger
Sub will be merged with and into the Company, with the Company continuing as the
surviving corporation, and with the Company becoming a wholly-owned subsidiary
of Parent.
WHEREAS, the parties wish to amend the Merger Agreement to clarify that any
Company Common Stock issued after August 3, 2001 (i) upon exercise of any
Company Options or Company Warrants, and (ii) under the Company's 1996 Employee
Stock Purchase Plan or 2001 Employee Stock Purchase Plan, shall be excluded from
the denominator of the Exchange Ratio.
NOW, THEREFORE, with reference to the foregoing facts and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Section 4.1(a) of the Merger Agreement shall be deleted and replaced in
its entirety by the following:
(a) CONVERSION OF COMPANY STOCK. Subject to adjustment, if applicable,
pursuant to SECTIONS 4.1(e) hereof, and subject to the provisions of
SECTION 4.3 hereof, (i) each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (excluding any
shares of Company Common Stock 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 a number
of shares of Parent Common Stock equal to the quotient of (x) 44,285,714
divided by (y) the total number of shares of Company Common Stock
outstanding (for such purposes, INCLUDING all shares issuable upon
conversion of any then outstanding Company Series E Preferred Stock and
upon exercise of the Adjustment Warrant, but EXCLUDING any shares of
Company Stock issued after August 3, 2001 under the Company's 1996
Employee Stock Purchase Plan and 2001 Employee Stock Purchase Plan, or
upon exercise of Company Options or Company Warrants) as of the Effective
Time (such quotient, as adjusted from time to time pursuant to SECTIONS
4.1(e) hereof, the "EXCHANGE RATIO") and (ii) each share of Company
Series E Preferred Stock issued and outstanding immediately prior to the
Effective Time 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 a number of shares of Parent Common
Stock equal to the product of (A) the Exchange Ratio multiplied by (B) the
number of shares of Company Common Stock into which such Company Series E
Preferred Stock is then convertible at the then applicable conversion ratio
for such Company Series E Preferred Stock. 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". At the
Effective Time, all shares of Company Common Stock converted into the right
to receive Parent Shares 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 theretofore representing any such shares of Company Common
Stock shall thereafter cease to have any rights with respect to such shares
of Company Stock, except the right to receive, upon the surrender of such
certificate (or other appropriate action) in accordance with SECTION 4.2,
the number of Parent Shares specified above and cash in lieu of fractional
shares.
2. This Amendment may be executed in counterparts, each of which shall be
deemed an original but together shall constitute one and the same instrument.
3. Except as otherwise set forth in this Amendment, all other terms and
conditions of the Merger Agreement shall remain the same and in full force and
effect.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the
duly authorized officers of the parties hereto and shall be effective as of
September 10, 2001.
PARENT:
divine, inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Chairman and Chief Executive Officer
MERGER SUB:
DI1 ACQUISITION COMPANY, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
President
THE COMPANY
OPEN MARKET, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
