AMENDMENT No. 2 TO RIGHTS AGREEMENT
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AMENDMENT No. 2
TO
RIGHTS AGREEMENT
THIS AMENDMENT No. 2 TO RIGHTS AGREEMENT (the "Amendment"), dated as of August 15, 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
A. The Company and the Rights Agent are parties to a Rights Agreement dated as of February 12, 2001, as amended by Amendment No. 1 dated as of July 8, 2001 (as amended, 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, DI1 Acquisition Company, a Delaware corporation and wholly-owned subsidiary of the Company (the "Merger Sub"), and Open Market, Inc., a Delaware corporation (the "Merger Partner"), have entered into an Agreement and Plan of Merger dated as of August 15, 2001 (the "Merger Agreement") pursuant to which the Merger Sub will be merged with and into the Merger Partner, with the Merger Partner 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
Accordingly, the parties agree as follows:
1. Amendment of Section l(a). The definition of "Acquiring Person" 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, 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 one percent (1%) or more of the shares of Common Stock then outstanding, (v) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual, and Szlam Partners, L.P., a Georgia limited partnership owned and controlled by ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or either of their respective Affiliates or Associates, unless and until such
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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, (vi) Open Market, Inc., a Delaware corporation, or its Affiliates or Associates, but only to the extent such Person would become an Acquiring Person by virtue of the execution or performance by Open Market, Inc. or the other parties thereto of the Company Stockholder Agreements (as defined in the Agreement and Plan of Merger dated as of August 15, 2001 by and among the Company, Open Market, Inc. and DI1 Acquisition Company), or (vii) 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 August15, 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 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Executive Vice President, Chief Financial Officer, and Treasurer |
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COMPUTERSHARE INVESTOR SERVICES, LLC |
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By |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Relationship Manager |
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