SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
DIVINE, INC.,
DVC ACQUISITION COMPANY
and
VIANT CORPORATION
THIS SECOND AMENDMENT (the "SECOND 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 2nd day of August, 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 hereto entered into an Amendment to Agreement and
Plan of Merger as of July 23, 2002 (the "FIRST AMENDMENT").
WHEREAS, the Parties deem it to be in their best interest to further
amend the Merger Agreement and the First Amendment as hereinafter provided.
NOW, THEREFORE, the Parties hereto agree to further amend the Merger
Agreement and the First Amendment as follows:
AGREEMENT:
1. Unless otherwise defined herein, capitalized terms used herein have
the meanings ascribed to them in the Merger Agreement.
2. Section 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 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;
3. Section 17 of the First Amendment is hereby amended in its entirety
to read as follows:
17. ADEQUACY OF D&O INSURANCE. No later than August 7, 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 the First
Amendment was obtained by the Company, (ii) the insurance carrier and terms
of such policy, each as described on Exhibit A to the First Amendment, 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.
4. REFERENCE TO AND EFFECT ON THE MERGER AGREEMENT AND THE FIRST
AMENDMENT.
(a) Upon the effectiveness of this Second 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 by the First Amendment and further amended hereby.
(b) Except as specifically amended or modified herein, all terms and
provisions contained in the Merger Agreement and the First Amendment shall
remain in full force and effect.
5. COUNTERPARTS. This Second 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.
6. GOVERNING LAW. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first hereinabove written.
DIVINE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Its: Senior Vice President
and General Counsel
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DVC ACQUISITION COMPANY
a Delaware corporation
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Its: President
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VIANT CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Its: Chief Executive Officer
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