Divine Inc – ‘SC 13D’ on 8/24/01 re: Open Market Inc – EX-3

On:  Friday, 8/24/01   ·   Accession #:  912057-1-530236   ·   File #:  5-49645

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General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership             10     38K 
 2: EX-3        Stockholder Agreement Dated August 15, 2001           12     39K 

EX-3   —   Stockholder Agreement Dated August 15, 2001
Exhibit Table of Contents

EX-3
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                                                                       EXHIBIT 3

 STOCKHOLDER AGREEMENT

STOCKHOLDER AGREEMENT, dated as of August 15, 2001 (this "Agreement"),
among the stockholders listed on the signature page(s) hereto (collectively,    
"Stockholders" and each individually, a "Stockholder"), Open Market, Inc., a    
Delaware corporation (the "Company") and divine, inc., a Delaware corporation   
("Parent"). Capitalized terms used and not otherwise defined herein shall have  
the respective meanings assigned to them in the Merger Agreement referred to    
below.                                                                          

     WHEREAS, as of the date hereof, the Stockholders collectively own of record
and beneficially shares of capital stock of the Company, as set forth on        
Schedule I hereto (such shares, or any other voting or equity of securities of  
the Company hereafter acquired by any Stockholder prior to the termination of   
this Agreement, being referred to herein collectively as the "Shares");         

    WHEREAS, concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger, dated as of the date 
hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject  
to the conditions thereof, a subsidiary of Parent will be merged with and into  
the Company, and the Company will be the surviving corporation (the "Merger");  
and                                                                             

    WHEREAS, as a condition to the willingness of the Parent to enter into the
Merger Agreement, the Parent has required that the Stockholders agree, and in   
order to induce the Parent to enter into the Merger Agreement, the Stockholders 
are willing to enter into this Agreement.                                       

    NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the  
parties hereby agree, severally and not jointly, as follows:                    

Section 1. VOTING OF SHARES.                                          

  (a) Each Stockholder covenants and agrees that, until the termination of
this Agreement in accordance with the terms hereof, at the Company Stockholder  
Meeting or any other meeting of the stockholders of the Company, however called,
and in any action by written consent of the stockholders of the Company, such   
Stockholder will vote, or cause to be voted, all of such Stockholder's          
respective Shares in favor of the adoption and approval of the Merger Agreement,
the Merger, and the transactions/issuance of shares of Parent Common Stock      
as]contemplated by the Merger Agreement, as the Merger Agreement may be modified
or amended from time to time in a manner not adverse to the Stockholders. Each  
Stockholder further covenants and agrees that such Stockholder will not vote any
Shares in favor of any of the following (other than the Merger and the          
transactions contemplated by the Merger Agreement): (i) any Company Acquisition 
Proposal, (ii) any merger, consolidation, reorganization, recapitalization, sale
of assets, liquidation, dissolution, or other business combination transaction  
involving the Company, (iii) any removal of members of the board of directors of
the Company, (iv) any amendment to the Company's certificate of incorporation,  
(v) any other action that is inconsistent with the Merger or that is intended,  
or could reasonably be expected, to impede, interfere with, delay, postpone,    
discourage, or adversely affect the Merger                                      

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or any of the other transactions contemplated by the Merger Agreement or this   
Stockholder Agreement.                                                          

(b) Each Stockholder hereby irrevocably grants to, and appoints, the  
Parent, and any individual designated in writing by the Parent, and each of them
individually, as such Stockholder's proxy and attorney-in-fact (with full power 
of substitution), for and in its name, place and stead, to vote his, her or its 
Shares at any meeting of the stockholders of Company called with respect to any 
of the matters specified in, and in accordance and consistent with this Section 
1. Each Stockholder understands and acknowledges that the Parent is entering    
into the Merger Agreement in reliance upon the Stockholder's execution and      
delivery of this Agreement. Each Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 1(b) is given in connection with the execution  
of the Merger Agreement, and that such irrevocable proxy is given to secure the 
performance of the duties of such Stockholder under this Agreement. Except as   
otherwise provided for herein, each Stockholder hereby (i) affirms that the     
irrevocable proxy is coupled with an interest and may under no circumstances be 
revoked, (ii) ratifies and confirms all that the proxies appointed hereunder may
lawfully do or cause to be done by virtue hereof and (iii) affirms that such    
irrevocable proxy is executed and intended to be irrevocable in accordance with 
the provisions of Section 212(e) of the General Corporation Law of the State of 
Delaware. Notwithstanding any other provisions of this Agreement, the           
irrevocable proxy granted hereunder shall automatically terminate upon the      
termination of this Agreement.                                                  

   Section 2. TRANSFER OF SHARES. Each Stockholder covenants and agrees that
such Stockholder will not, directly or indirectly, (i) sell, assign, transfer   
(including by merger, testamentary disposition, interspousal disposition        
pursuant to a domestic relations proceeding or otherwise by operation of law),  
pledge, encumber or otherwise dispose of any of the Shares, (ii) deposit any of 
the Shares into a voting trust or enter into a voting agreement or arrangement  
with respect to the Shares or grant any proxy or power of attorney with respect 
thereto which is inconsistent with this Agreement or (iii) enter into any       
contract, option or other arrangement or undertaking with respect to the direct 
or indirect sale, assignment, transfer (including by merger, testamentary       
disposition, interspousal disposition pursuant to a domestic relations          
proceeding or otherwise by operation of law) or other disposition of any Shares.

Section 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each   
Stockholder, on its own behalf, hereby severally represents and warrants to the 
Parent with respect to itself and its, his or her ownership of the Shares as    
follows:                                                                        

(a) OWNERSHIP OF SHARES. The Stockholder beneficially owns all of the 
Shares as set forth on Schedule I hereto and has good and marketable title to   
such Shares, free and clear of any claims, liens, encumbrances and security     
interests whatsoever. The Stockholder owns no shares of Company Common Stock    
other than the Shares as set forth on SCHEDULE I hereto. The Stockholder has    
sole voting power, without restrictions, with respect to all of the Shares.     

  (b) POWER, BINDING AGREEMENT. The Stockholder has the legal capacity and
all requisite power and authority to enter into and perform all of its          
obligations, under this Agreement. This Agreement has been duly and validly     
executed and delivered by the Stockholder and constitutes a valid and binding   
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.                                                                 

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    (c) NO CONFLICTS. The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby will not, conflict with
or result in any violation of, or default (with or without notice or lapse of   
time, or both) under, or give rise to a right of termination, cancellation or   
acceleration of any obligation or to loss of a material benefit under, any      
provision of any loan or credit agreement, note, bond, mortgage, indenture,     
lease, or other agreement, instrument, permit, concession, franchise, license,  
judgment, order, decree, statute, law, ordinance, rule or regulation applicable 
to the Stockholder, the Shares or any of the Stockholder's properties or assets.
Except as expressly contemplated hereby and except as may be disclosed in the   
Company SEC Reports, the Stockholder is not a party to, and the Shares are not  
subject to or bound in any manner by, any contract or agreement relating to the 
Shares, including without limitation, any voting agreement, option agreement,   
purchase agreement, stockholders' agreement, partnership agreement or voting    
trust. Except for the expiration or termination of the waiting period under the 
HSR Act and informational filings with the Securities and Exchange Commission,  
no consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other            
governmental authority or instrumentality, domestic, foreign or supranational,  
is required by or with respect to the Stockholder in connection with the        
execution and delivery of this Agreement or the consummation by the Stockholder 
of the transactions contemplated hereby.                                        

     Section 4. TERMINATION. This Agreement shall terminate upon the termination
of the Merger Agreement in accordance with its terms; and PROVIDED FURTHER that 
no such termination of this Agreement shall relieve any party of liability for a
willful breach hereof prior to termination.                                     

    Section 5. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was 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 at law or in equity.                                                     

 Section 6. FIDUCIARY DUTIES. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of his, her or its respective 
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder 
from taking or not taking any action in his or her capacity as an officer or    
director of the Company, to the extent permitted by the Merger Agreement.       

Section 7. MISCELLANEOUS.                                             

(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement 
between the parties hereto with respect to the subject matter hereof and        
supersedes all prior agreements and understandings, both written and oral,      
between the parties with respect thereto. This Agreement may not be amended,    
modified or rescinded except by an instrument in writing signed by each of the  
parties hereto.                                                                 

(b) SEVERABILITY. If any term or other provision of this Agreement is 
invalid, illegal or incapable of being enforced by any rule of law, or public   
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other 
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the      

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original intent of the parties as closely as possible to the fullest extent     
permitted by applicable law in a mutually acceptable manner in order that the   
terms of this Agreement remain as originally contemplated to the fullest extent 
possible.                                                                       

 (c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the         
principles of conflicts of law thereof.                                         

   (d) COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.                                                        

 (e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed duly delivered (i) four business days after being   
sent by registered or certified mail, return receipt requested, postage prepaid,
or (ii) one business day after being sent for next business day delivery, fees  
prepaid, via a reputable nationwide overnight courier service, in each case to  
the intended recipient as set forth below:                                      

      (i) if to a Stockholder to the address set forth on the respective
signature page of this Agreement;                           

(ii) if to the Parent to:                                   

divine, inc.                                                
1301 N. Elston Avenue                                       
Chicago, Illinois 60622                                     
Attention:  General Counsel                                 
Facsimile:  (773) 394-6601                                  

with a copy to:                                             
Bell, Boyd & Lloyd LLC                                      
70 West Madison Street                                      
Three First National Plaza                                  
Suite 3300                                                  
Attention:  D. Mark McMillan, Esq.                          
Facsimile:  (312) 827-8001                                  

(iii) if to the Company to:                                 

Open Market, Inc.                                           
1 Wayside Road                                              
Burlington, MA 01803                                        
Attention:  General Counsel                                 
Facsimile:  (781) 359-8129                                  

with a copy to:                                             
Hale and Dorr LLP                                           
60 State Street                                             

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Boston, MA 02109                                            
Attn: John H. Chory                                         
Telecopy: (617) 526-5000                                    

     (f) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended, and shall
not be deemed, to confer any rights or remedies upon any person other than the  
parties hereto and their respective successors and permitted assigns, to create 
any agreement of employment with any person or to otherwise create any          
third-party beneficiary hereto.                                                 

    (g) ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in   
part, by operation of law or otherwise by any of the parties hereto without the 
prior written consent of the other parties, and any such assignment without such
prior written consent shall be null and void, except that the Parent may assign 
this Agreement to any direct or indirect wholly owned subsidiary of the Parent  
without consent of the Company or the Stockholder, provided that the Parent     
shall remain liable for all of its obligations under this Agreement. Subject to 
the preceding sentence, this Agreement shall be binding upon, inure to the      
benefit of, and be enforceable by, the parties hereto and their respective      
successors and permitted assigns.                                               

    (h) INTERPRETATION. When reference is made in this Agreement to an Article
or a Section, such reference shall be to an Article or Section of this          
Agreement, unless otherwise indicated. The headings contained in this Agreement 
are for convenience of reference only and shall not affect in any way the       
meaning or interpretation of this Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any  
party. Whenever the context may require, any pronouns used in this Agreement    
shall include the corresponding masculine, feminine or neuter forms, and the    
singular form of nouns and pronouns shall include the plural, and vice versa.   
Any reference to any federal, state, local or foreign statute or law shall be   
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. Whenever the words "include", "includes" or     
"including" are used in this Agreement, they shall be deemed to be followed by  
the words "without limitation". No summary of this Agreement prepared by the    
parties shall affect in any way the meaning or interpretation of this Agreement.

   (i) SUBMISSION TO JURISDICTION. Each of the parties to this Agreement (a)
consents to submit itself to the personal jurisdiction of any state or federal  
court sitting in the State of Delaware in any action or proceeding arising out  
of or relating to this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that all claims in respect of such action or proceeding   
may be heard and determined in any such court, (c) agrees that it will not      
attempt to deny or defeat such personal jurisdiction by motion or other request 
for leave from any such court and (d) agrees not to bring any action or         
proceeding arising out of or relating to this Agreement or any of the           
transaction contemplated by this Agreement in any other court. Each of the      
parties hereto waives any defense of inconvenient forum to the maintenance of   
any action or proceeding so brought and waives any bond, surety or other        
security that might be required of any other party with respect thereto. Any    
party hereto may make service on another party by sending or delivering a copy  
of the process to the party to be served at the address and in the              

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manner provided for the giving of notices in Section 7(e). Nothing in this      
Section, however, shall affect the right of any party to serve legal process in 
any other manner permitted by law.                                              

(j) WAIVER OF JURY TRIAL. EACH OF THE PARENT, THE COMPANY AND EACH    
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)       
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED   
HEREBY OR THE ACTIONS OF THE PARENT, THE COMPANY OR EACH STOCKHOLDER IN THE     
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.     

 [Signature Pages to follow]

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     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the   
date first written above.                                                       

      COMPANY:

               OPEN MARKET, INC.

                     By:   /s/ Edward Durkin
                                      ----------------------------

                    Name:    Edward Durkin
                                      ----------------------------

                               Title:   Vice President and Chief
                                 Financial Officer
                                      ----------------------------

     PARENT:

          DIVINE, INC.

                            By:   /s/ Andrew J. Filipowski
                                      ----------------------------

                           Name:    Andrew J. Filipowski
                                      ----------------------------

                              Title:   Chief Executive Officer
                                      ----------------------------

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           STOCKHOLDERS:

                    /s/ Harland K. Lavigne
                          ----------------------------
                Harland K. Lavigne

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

                    /s/ Thomas H. Bruggere
                          ----------------------------
              Thomas H. Bruggere

                           Address:  c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

               /s/ Shikhar Ghosh
                          ----------------------------
           Shikhar Ghosh

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

                   /s/ William S. Kaiser
                          ----------------------------
               William S. Kaiser

                            Address: c/o Open Market, Inc.
                                            ----------------------------

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                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

              /s/ B.C. Krishna
                          ----------------------------
          B.C. Krishna

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

                 /s/ Eugene F. Quinn
                          ----------------------------
             Eugene F. Quinn

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

                /s/ Paul. L. Sagan
                          ----------------------------
           Paul L. Sagan

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

                  /s/ Patrick Scannell
                          ----------------------------
              Patrick Scannell

                            Address: c/o Open Market, Inc.
                                            ----------------------------

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                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

               /s/ Edward Durkin
                          ----------------------------
           Edward Durkin

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

              /s/ Joseph Alwan
                          ----------------------------
          Joseph Alwan

                            Address: c/o Open Market, Inc.
                                            ----------------------------
                             1 Wayside Rd.
                                            ----------------------------
                                    Burlington, MA 01803
                                            ----------------------------

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                                 GREYLOCK EQUITY LIMITED PARTNERSHIP

                                By:   Greylock Limited Partnership
                   Its:  General Partner

                                   By: /s/ William S. Kaiser
                                             ---------------------------
                                   William S. Kaiser
                                 General Partner

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SCHEDULE I

SHARES OWNED

                                                                [Download Table]


Stockholder                                  Number of Shares
-----------                                  ----------------
                                                             
Harland K. LaVigne                           0               

Thomas H. Bruggere                           5,578           

Shikhar Ghosh                                2,567,800       

William S. Kaiser                            0               

B.C. Krishna                                 322,390         

Eugene F. Quinn                              500             

Paul L. Sagan                                25,957          

Patrick Scannell                             0               

Edward Durkin                                0               

Joseph Alwan                                 18,994          

Greylock Equity Limited Partnership          2,032,179       

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Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D’ Filing		Date		First		Last			Other Filings
Filed on:		8/24/01							8-A12G/A,  SC 13D
		8/15/01		1					8-K
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