-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GHNcPuFqXH2mTrZ+JkwuxN4CRRXrnmpi3dVqCftYocNRrQNcyg2LkLtfna3PPMt5 R2sZDUHjwt7EGZWDmH9f2g== 0000912057-02-032225.txt : 20020814 0000912057-02-032225.hdr.sgml : 20020814 20020814180305 ACCESSION NUMBER: 0000912057-02-032225 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20020813 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020814 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VIANT CORP CENTRAL INDEX KEY: 0001028122 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS BUSINESS SERVICES [7380] IRS NUMBER: 770427302 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-26303 FILM NUMBER: 02737818 BUSINESS ADDRESS: STREET 1: 89 SOUTH STREET 7TH FLOOR CITY: BOSTON STATE: MA ZIP: 02111 BUSINESS PHONE: 6175313700 MAIL ADDRESS: STREET 1: 89 SOUTH STREET 7TH FLOOR CITY: BOSTON STATE: MA ZIP: 02111 FORMER COMPANY: FORMER CONFORMED NAME: SILICON VALLEY INTERNET PARTNERS DATE OF NAME CHANGE: 19980518 8-K 1 a2086974z8-k.txt 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: August 2, 2002 (Date of earliest event reported) VIANT CORPORATION (Exact name of registrant as specified in the charter) Delaware 0-26303 77-0427302 (State or other jurisdiction of (Commission File No.) (IRS Employer Identification No.) incorporation)
89 South Street Boston, MA 02493 (Address of Principal Executive Offices) (617) 531-3700 (Registrant's telephone number including area code) Not Applicable (Former name or former address, if changed since last report) ITEM 5. OTHER ITEMS On August 2, 2002, divine, inc. ("divine"), DVC Acquisition Company ("Merger Sub"), and Viant Corporation ("Viant", and collectively, with divine and Merger Sub the "Parties") entered into a second amendment (the "Second Amendment") to the Agreement and Plan of Merger and Reorganization, dated as of April 5, 2002 (the "Merger Agreement"), by and among the Parties. Pursuant to the terms of the Second Amendment, the Parties have extended the date subsequent to which failure to complete the merger may give rise to a termination right to Viant or divine (the "Termination Date"). The Termination Date is now September 30, 2002. Additionally, the Second Amendment amends that portion of the amendment to the Merger Agreement (the "First Amendment"), dated as of July 23, 2002, which enables Viant to deliver an acknowledgement (the "Acknowledgment") regarding Section 6.13(c) of the Merger Agreement and, in exchange for such Acknowledgment, increases the consideration payable to the Viant stockholders under the terms of the Merger Agreement by $1,100,000. Pursuant to the Second Amendment, the date by which the Acknowledgment had to be delivered to divine was extended from July 31, 2002 to August 7, 2002. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) EXHIBITS. The exhibit to this report is listed in the Exhibit Index set forth elsewhere herein. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Viant Corporation By: /s/ M. Dwayne Nesmith ------------------------------------ M. Dwayne Nesmith Chief Financial Officer Date: August 14, 2002 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBITS 2.1 Second Amendment to Agreement and Plan of Merger and Reorganization, dated as of August 2, 2002, by and among divine, inc., DVC Acquisition Company and Viant Corporation.
EX-2.1 3 a2086974zex-2_1.txt EXHIBIT 2.1 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] 2 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/ Jude Sullivan ----------------------- Name: Jude Sullivan ----------------------- Its: Senior Vice President and General Counsel ----------------------- DVC ACQUISITION COMPANY a Delaware corporation By: /s/ Jude Sullivan ----------------------- Name: Jude Sullivan ----------------------- Its: President ----------------------- VIANT CORPORATION a Delaware corporation By: /s/ Robert L. Gett ----------------------- Name: Robert L. Gett ----------------------- Its: Chief Executive Officer ----------------------- 3 -----END PRIVACY-ENHANCED MESSAGE-----