Exhibit 3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August 20, 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 Parent, as set forth on
Schedule I hereto (such shares, or any other voting or equity of securities of
Parent 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 Company to enter into
the Merger Agreement, the Company has required that the Stockholders agree, and
in order to induce the Company 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 Parent Stockholder
Meeting or any other meeting of the stockholders of Parent, however called, and
in any action by written consent of the stockholders of Parent, such Stockholder
will vote, or cause to be voted, all of such Stockholder's respective Shares
owned on the record date in favor of the adoption and approval of the Merger
Agreement, the Merger, and the 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.
(b) Each Stockholder hereby irrevocably grants to, and appoints, the
Company, and any individual designated in writing by the Company, 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 owned on the record date at any meeting of the stockholders of
Parent 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 Company 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. [Intentionally omitted.]
Section 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, on its own behalf, hereby severally represents and warrants to the
Company 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 Parent 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.
(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
Parent 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.
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Section 4. TERMINATION. This Agreement shall terminate upon the
termination of the Merger Agreement in accordance with its terms; PROVIDED 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
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;
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(ii) if to Parent to:
divine, inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Xxxx & Xxxxx LLC
00 Xxxx Xxxxxxx Xxxxxx
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: D. Xxxx XxXxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) if to the Company to:
Open Market, Inc.
Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
(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 Company may assign
this Agreement to any direct or indirect wholly owned subsidiary of the Company
without consent of Parent or the Stockholder, provided that the Company 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.
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(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 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/ Xx Xxxxxx
-----------------------------------------
Name: Xx Xxxxxx
---------------------------------------
Title: Vice President and CFO
--------------------------------------
PARENT:
DIVINE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Title: CEO
--------------------------------------
STOCKHOLDER:
/s/ Xxxx Xxxxxx
--------------------------------------------
Signature
Xxxx Xxxxxx
--------------------------------------------
Name
One Microsoft Way
--------------------------------------------
Address
Xxxxxxx, XX 00000
--------------------------------------------
Address
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STOCKHOLDER:
DELL USA L.P.
By: /s/ J. Xxxxx Xxxxx
----------------------------------------
Name: J. Xxxxx Xxxxx
--------------------------------------
Title: V.P. - Dell Ventures
-------------------------------------
Attention: Legal Department
One Dell Way
Mail Stop 9003
Xxxxx Xxxx, Xxxxx 00000
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SCHEDULE I
Shares of Class A common stock,
Stockholder par value $0.001 Per share, of divine, inc.
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Dell Computer Corporation 17,808,299
Microsoft Corporation 9,722,221
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