PARENT VOTING AGREEMENT
This VOTING AGREEMENT, is dated as of April 5, 2002, by and between
Viant Corporation, a Delaware corporation (the "Company"), and the undersigned
holder of shares of common stock ("Stockholder"), par value $0.001 per share
("Parent Common Stock"), of divine, inc., a Delaware corporation ("Parent").
WHEREAS, in order to induce the Company, to enter into an Agreement and
Plan of Merger and Reorganization, dated as of the date hereof (the "Merger
Agreement"), with Parent, the Company has requested Stockholder and Stockholder
has agreed, to enter into this Voting Agreement with respect to the shares of
Parent Common Stock beneficially owned by Stockholder, and any shares of Parent
Common Stock hereafter acquired by Stockholder upon the exercise of options to
purchase Parent Common Stock (collectively, the "Covered Shares") so as to
facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
GRANT OF PROXY AND VOTING AGREEMENT
SECTION 1.1. VOTING AGREEMENT. In the event that any stockholder action
is to be taken at any time prior to the Expiration Date (as defined below) with
respect to the approval and adoption of the Merger Agreement and the Merger,
whether by written consent, vote of the stockholders of Parent at a meeting or
otherwise, Stockholder agrees to vote all of the Covered Shares in favor of the
approval and adoption of the Merger Agreement and the Merger. Stockholder hereby
agrees that Stockholder will not vote any Covered Shares in favor of the
approval of any corporate action the consummation of which would frustrate the
purposes of, or prevent or delay the consummation of the Merger or other
transactions contemplated by the Merger Agreement.
SECTION 1.2. IRREVOCABLE PROXY. By entering into this Voting Agreement,
Stockholder hereby grants a proxy appointing the Company, and each duly elected
officer thereof, as such Stockholder's attorney-in-fact and proxy, with full
power of substitution, for and in such Stockholder's name, to vote, express,
consent or dissent, or otherwise to utilize such voting power as the Company or
its proxy or substitute shall, in the Company's sole discretion, deem proper
with respect to the Covered Shares to effect any action described in Section 1.1
above, including, without limitation, the right to sign its name (as
Stockholder) to any consent, certificate or other document relating to Parent
that the law of the State of Delaware may permit or require in furtherance of
the approval and adoption of the Merger, the Merger Agreement, and the
transactions contemplated thereby, or with respect to any other proposed Parent
Acquisition Proposal. Stockholder retains the right to vote or otherwise utilize
its voting power for all purposes not inconsistent with this Section 1.2. The
proxy granted by Stockholder pursuant to this Article I is irrevocable for the
term of this Voting Agreement and is granted in consideration of the Company
entering into this Voting Agreement and the Merger Agreement, and incurring
certain related fees and expenses.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to the Company that:
SECTION 2.1. AUTHORIZATION. This Voting Agreement has been duly
executed and delivered by and the consummation of the transactions contemplated
hereby are within the powers of Stockholder. If this Voting Agreement is being
executed in a representative or fiduciary capacity, the person signing this
Voting Agreement has full power and authority to enter into and perform this
Voting Agreement. The obligations under this Voting Agreement constitute the
legal, valid and binding obligations of Stockholder.
SECTION 2.2. OWNERSHIP OF COVERED SHARES. Stockholder is the beneficial
owner of the Covered Shares. None of the Covered Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of the
Covered Shares. As of the date hereof, Stockholder possesses the sole and
exclusive right to vote all of the Covered Shares in any vote of the
stockholders of the Company.
SECTION 2.3. TOTAL SHARES. Except for the shares of Parent Common Stock
indicated on the signature page to this Agreement, Stockholder does not
beneficially own any (i) shares of capital stock or voting securities of Parent,
(ii) securities of Parent convertible into or exchangeable for shares of capital
stock or voting securities of the Parent or (iii) options or other rights to
acquire from Parent any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of
Parent . If Stockholder acquires any additional shares of Parent Common Stock
after the date hereof and prior to the record date of the stockholder meeting of
Parent, Stockholder will notify the Company in writing within two business days
of such acquisition.
ARTICLE III
COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees that:
SECTION 3.1. NO PROXIES FOR OR ENCUMBRANCES ON COVERED SHARES. Except
pursuant to the terms of this Voting Agreement, Stockholder shall not, without
prior written consent of the Company or except as required by court order or
operation of law, directly or indirectly, grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Covered Shares with respect to any matter described in Section 1.1 of this
Voting Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Stockholder that:
SECTION 4.1. AUTHORIZATION. This Voting Agreement has been duly
executed and delivered by, and the consummation of the transactions contemplated
hereby are within the powers of the Company. The Company has full power and
authority to enter and perform this Voting Agreement. The obligations under this
Voting Agreement constitute the legal, valid and binding obligations of the
Company.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. TERMINATION. This Voting Agreement shall terminate and be
of no further force or effect upon the earlier to occur of (i) such date and
time of the termination of the Merger Agreement pursuant to Article VIII thereof
or (ii) such time as the Merger shall have become effective in accordance with
the terms of the Merger Agreement (the "Expiration Date").
SECTION 5.2. FURTHER ASSURANCES. The Company and Stockholder will each
execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Voting Agreement.
SECTION 5.3. AMENDMENTS. Any provision of this Voting Agreement may be
amended or waived if, but only if, such amendment or waiver in writing is
signed, in the case of an amendment, by each party to this Voting Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective.
SECTION 5.4. DUTIES AS DIRECTOR. Nothing contained in this Voting
Agreement shall be deemed to restrict Stockholder from taking actions in his
capacity as a director or officer of the Company (it being understood that this
Agreement shall apply to Stockholder solely in Stockholder's capacity as a
stockholder of the Company) or voting in Stockholder's sole discretion on any
matter other than those matters referred to in Section 1.1.
SECTION 5.5. EXPENSES. All costs and expenses incurred in connection
with this Voting Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.6. PARTIES IN INTEREST; SUCCESSORS AND ASSIGNS. The
provisions of this Voting Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, each party hereto and their respective heirs,
beneficiaries, executors, representatives, successors and assigns; provided that
no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Voting Agreement without the prior written consent of the
other party hereto, except that the Company may transfer or assign its rights
and obligations to any affiliate of the Company. Nothing in this Voting
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Voting Agreement.
SECTION 5.7. GOVERNING LAW. This Voting Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
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SECTION 5.8. CONSENT TO JURISDICTION. Each of the Company and
Stockholder hereby irrevocably submits in any suit, action or proceeding arising
out of or related to this Voting Agreement or any other instrument, document or
agreement executed or delivered in connection herewith and the transactions
contemplated hereby and thereby, whether arising in contract, tort, equity or
otherwise, to the exclusive jurisdiction of any state or federal court located
in the State of Delaware and waives any and all objections to jurisdiction that
it may have under the laws of the United States or of any state. Each of the
Company and Stockholder waives any objection that it may have (including,
without limitation, any objection of the laying of venue or based on FORUM NON
CONVENIENS) to the location of the court in any proceeding commenced in
accordance with this Section 5.8.
SECTION 5.9. COUNTERPARTS; EFFECTIVENESS. This Voting Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instruments. This Voting Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by the other party hereto.
SECTION 5.10. SEVERABILITY. If any term, provision or covenant of this
Voting Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Voting Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
SECTION 5.11. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Voting
Agreement is not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof in
addition to any other remedy to which they are entitled at law or in equity
without the posting of a bond or other security.
SECTION 5.12. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Merger Agreement.
SECTION 5.13. NO STRICT CONSTRUCTION. The language used in this Voting
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be used
against any person hereto.
SECTION 5.14 NOTICE. Any notice, request, instruction or other document
to be given hereunder by any party to the other party shall be deemed delivered
upon actual receipt and shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, reputable overnight courier, or
by facsimile transmission (with a confirming copy sent by reputable overnight
courier), as follows:
If to the Company: Viant Corporation
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
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with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
with a copy to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
SECTION 5.15 PERMITTED TRANSFERS. Nothing in this Agreement shall be
construed to require Stockholder to exercise any option, warrant or other right
to acquire Parent Common Stock, and nothing in this Agreement shall be construed
to prohibit Stockholder from engaging in a net exercise of any option, warrant
or other right to acquire Parent Common Stock (if the contractual terms of such
option, warrant, or other right currently permit such a net exercise).
[END OF DOCUMENT;
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have cause this Voting Agreement
to be duly executed as of the day and year first above written.
Viant Corporation
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chairman and Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name:
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Shares beneficially owned:
_____________ shares of Parent Common Stock
_____________ shares of Parent Common Stock
issuable upon exercise
of outstanding options or
warrants
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ADDITIONAL SIGNATORIES TO PARENT VOTING AGREEMENT
By: /s/ Xxxx Xxxxxx
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Name:
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By: /s/ Xxxxx X. Xxxxxx
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Name:
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By: /s/ Xxxxxxx Xxxxxxxxx
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Name:
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By: /s/ Xxxxxx Xxxx
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Name:
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By: /s/ Xxxx X. Xxxxxx
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Name:
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By: /s/ Xxxx Xxxxxxxx
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Name:
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By: /s/ Xxxxxxxxxx Xxxxx
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Name:
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