Exhibit 4.3
AMENDMENT No. 3
TO
RIGHTS AGREEMENT
THIS AMENDMENT No. 3 TO RIGHTS AGREEMENT (the "Amendment"), dated as of
May 29, 2002, 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, and Amendment No. 2 dated as of August, 15, 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 has entered into a Securities Purchase
Agreement dated on or about May 28, 2002 (the "Securities Purchase Agreement")
pursuant to which the Company will issue shares of its Series B Convertible
Preferred Stock (the "Series B Preferred Stock") to certain persons identified
therein as "Buyers" (including, but not limited to, Oak Investment Partners X,
Limited Partnership; Oak X Affiliates Fund, Limited Partnership; Oak Investment
Partners IX, Limited Partnership; Oak IX Affiliates Fund, Limited Partnership;
and Oak IX Affiliates Fund-A, Limited Partnership);
D. The Board of Directors of the Company has determined that
the issuance and sale of its Series B Preferred Stock and the other transactions
contemplated by the Securities Purchase 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 Securities Purchase 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
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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) any Person who is or becomes a
party to that certain Securities Purchase Agreement, dated on or about May 28,
2002, by and among the Company and the Persons identified therein as "Buyers"
(including, but not limited to, Oak Investment Partners X, Limited Partnership;
Oak X Affiliates Fund, Limited Partnership; Oak Investment Partners IX, Limited
Partnership; Oak IX Affiliates Fund, Limited Partnership; Oak IX Affiliates
Fund-A, Limited Partnership; and their Affiliates or Associates), but only to
the extent such Person would become an Acquiring Person due to the Beneficial
Ownership of Common Stock issued or issuable upon conversion of Series B
Convertible Preferred Stock issued pursuant to such Securities Purchase
Agreement, or (vi) 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 May 29, 2002, 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Chief
Financial Officer, and Treasurer
COMPUTERSHARE INVESTOR SERVICES, LLC
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Relationship Manager
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