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Exhibit 4.4    
  


 
 

divine, inc.    
  
  2002 EMPLOYEE STOCK PURCHASE PLAN    
  
    (Adopted as of June 1, 2002)    
  









 
 

Exhibit 4.4    
  


 
 

divine, inc.
  
    2002 EMPLOYEE STOCK PURCHASE PLAN
  
    (Adopted as of June 1, 2002)
  
    ARTICLE I
  
    ESTABLISHMENT AND PURPOSE    
  


        1.1  Purpose. The divine, inc. 2002 Employee Stock Purchase Plan (this "Plan") is hereby established by
divine, inc. and adopted as of June 1, 2002 (the "Effective Date"), subject to approval by the stockholders of divine, inc. within twelve (12) months after such adoption
date. The purpose of this Plan is to promote the overall financial objectives of the Company and its stockholders by motivating participants in this Plan to achieve long-term growth in
stockholders' equity of the Company. This Plan is intended as an "employee stock purchase plan" within the meaning of Section 423 of the Code, and Options granted hereunder are intended to
constitute options granted under such a plan, and this Plan and all actions taken in connection with this Plan shall be constructed consistently with such intent. 


 
 

ARTICLE II
  
    DEFINITIONS    
  


        The following sections of this Article II provide definitions of terms used throughout this Plan, and whenever used herein in the capitalized form, except
as otherwise expressly provided, the terms shall be deemed to have the following meanings: 


        2.1    "Account" shall mean the bookkeeping account established on behalf of a Participant to which shall be credited all
contributions paid for the purpose of purchasing Common Stock under this Plan, and to
which shall be charged all purchases of Common Stock pursuant to this Plan. The Company shall have custody of such Account. 



        2.2    "Agreement" or "Option Agreement" means, individually or collectively,
any enrollment and withholding agreement entered into pursuant to this Plan. An Agreement shall be the right of the Company to withhold from payroll amounts to be applied to purchase Common Stock. 


        2.3    "Board of Directors" or "Board" means the Board of Directors of the
Company. 


        2.4    "Code" or "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, and any subsequent Internal Revenue Code. If there is a subsequent Internal Revenue Code, any references herein to Internal Revenue Code sections shall be deemed to refer to
comparable sections of any subsequent Internal Revenue Code. 


        2.5    "Committee" means the person or persons appointed by the Board of Directors to administer this Plan, as further described
in this Plan. 


        2.6    "Common Stock" means the Class A common stock, $0.001 par value per share, of the Company, whether presently or
hereafter issued, and any other stock or security resulting from adjustment thereof as described in Section 6.3. 


        2.7    "Company" means divine, inc. and includes any successor or assignee corporation or corporations into which the
Company may be merged, changed or consolidated; any corporation for whose securities the securities of the Company shall be exchanged; and any assignee of, or successor to, substantially all of the
assets of the Company. 


        2.8    "Continuous Service" shall mean, subject to modification by the Committee, an Eligible Employee's number of full years
and completed months of continuous employment with the Company or a Subsidiary from his or her last hiring date to his or her date of Termination of Employment for 





 




any reason. The Committee may provide rules from time to time regarding the calculation of Continuous Service and the method for crediting such service. 



        2.9    "Contribution Rate" means the rate determined under Section 5.5. 


        2.10    "Disability" means a mental or physical illness that entitles the Participant to receive benefits under the
long-term disability plan of the Company or a Subsidiary, or if the Participant is not covered by such plan, a mental or physical illness that renders a Participant permanently and totally
incapable of performing his or her duties as an employee of the Company or a Subsidiary. Notwithstanding the foregoing, a Disability shall not qualify under this Plan if it is the result of
(a) a willfully self-inflicted injury or willfully self-induced sickness; or (b) an injury or disease contracted, suffered or incurred while participating in a
criminal offense. The determination of Disability shall be made by the Committee. The determination of Disability for purposes of this Plan shall not be construed to be an admission of disability for
any other purpose. 


        2.11    "Eligible Employee" means each employee of the Company or a Subsidiary (if the Subsidiary has adopted this Plan) on a
Grant Date except that the Committee in its sole discretion may exclude: 



	(a)
	any
employee who has accrued less than a minimum period of Continuous Service established by the Committee (but not to exceed two (2) years).



	(b)
	any
employee whose customary employment is twenty (20) hours or less per week;



	(c)
	any
employee whose customary employment is for not more than five (5) months in any calendar year;



	(d)
	any
employee who would directly or indirectly own or hold (applying the rules of Section 424(d) of the Code to determine stock ownership), immediately following the grant of an
Option hereunder, an aggregate of five percent (5%) or more of the total combined voting power or value of all outstanding shares of all classes of stock of the Company or any Subsidiary; and



	(e)
	any
employee who is a highly compensated employee of the Company or Subsidiary within the meaning of Section 414(q) of the Code. 




Any
period of service described in the preceding sentence may be decreased in the discretion of the Committee. 


        2.12    "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated
thereunder. 


        2.13    "Exercise Date" means such one or more dates determined by the Committee on which the accumulated value of each Account
shall be applied to purchase Common Stock. The Committee may accelerate an Exercise Date in order to satisfy the employment period requirement of Section 423(a)(2) of the Code. Unless otherwise
determined by the Committee, the first Exercise Date shall be the later to occur of a last day of August and a last day of November following the Effective Date, and subsequent Exercise Dates shall be
every last day of February, May, August and November thereafter. 


        2.14    "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder. 


        2.15    "Fair Market Value" means the value of Common Stock, determined on the basis of the good faith determination of the
Committee pursuant to the applicable method described in Section 4.5 and as adjusted, averaged or otherwise modified by the Committee. 



        2.16    "Grant Date" means the date or dates established by the Committee on which one or more Options are granted pursuant to
this Plan; provided, however, that, unless otherwise determined by the Committee, the first Grant Date shall be the Effective Date for any person who is a Participant as of 


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that date. Unless otherwise specified by the Committee, for any person, subsequent Grant Dates shall be each March 1, June 1, September 1 and December 1 occurring
thereafter upon which such person is a Participant. The Committee may determine for any Plan Period that there shall be no Grant Date, in which case no Options shall be granted for that Plan Period.
The terms and conditions of any Option granted on a particular Grant Date shall be independent of and have no effect on the terms and conditions of any Option granted on another Grant Date. 


        2.17    "Option" means the right to purchase Common Stock pursuant to this Plan and any Agreement. 


        2.18    "Option Period" means the period beginning on the Grant Date and expiring on the Exercise Date as determined by the
Committee, subject to the limitations of Section 5.3. 


        2.19    "Option Price" means the price at which the Company's Common Stock granted as of a specific Grant Date may be purchased
under an Option. The price shall be subject to the limitation set forth in Section 5.4. 


        2.20    "Participant" means an Eligible Employee to whom an Option has been granted under this Plan, and in the event a
Representative is appointed for a Participant, then the term "Participant" shall mean such appointed Representative, or successor Representative(s) appointed, as the case may be, provided that
"Termination of Employment" shall mean the Termination of Employment of the Participant. 


        2.21    "Plan" means the divine, inc. 2002 Employee Stock Purchase Plan, as herein set forth and as may be amended from
time to time. 


        2.22    "Plan Period" means, for the first Plan Period, the period starting on the Effective Date and ending on the first
anniversary of the first Exercise Date under this Plan; and for each subsequent Plan Period, the twenty-four (24) consecutive month period starting immediately after the end of the
preceding Plan Period; provided, however, that the Committee may at any time in its discretion designate another period as the Plan Period. 


        2.23    "Representative" means (a) the person or entity acting as the executor or administrator of a Participant's estate
pursuant to the last will and testament of the Participant or pursuant to the laws of the jurisdiction in which the Participant had his or her primary residence at the date of the Participant's death;
(b) the person or entity acting as the guardian or temporary guardian of a Participant's estate; or (c) the person or entity which is the beneficiary of a Participant upon or following
the Participant's death. A Participant may file a written designation of his or her Representative with the Committee. Such designation of his or her Representative may be changed by the
Participant at any time by written notice given in accordance with rules and procedures established by the Committee. 


        2.24    "Retirement" means the Participant's termination of employment after attaining age 65, or age 55 with the accrual of
10 years of service. 


        2.25    "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. 



        2.26    "Subsidiary" means any company, as currently defined in Section 424(f) of the Code. Unless otherwise indicated
the term "Company" shall hereinafter be deemed to include all Subsidiaries of the Company that have adopted this Plan. 


        2.27    "Termination of Employment" means the latest date on which a person ceases, for whatever reason, to be an employee of
the Company. For determining whether and when a Participant has incurred a Termination of Employment for cause, "cause" shall mean any act or omission which permits the Company to terminate the
employment agreement or arrangement between the Participant 


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and the Company for "cause," as defined in such agreement or arrangement, or in the event there is no such employment agreement or arrangement or the agreement or arrangement does not define the term
"cause," then "cause" shall mean (a) the conviction of the Participant for committing a felony under federal law or the law of the state in which such action occurred, (b) dishonesty in
the course of fulfilling the Participant's duties as an employee of the Company or (c) willful and deliberate failure on the part of the Participant to perform such duties in any material
respect. The determination of "cause" shall be made by the Committee, in its sole discretion. 


 
 

ARTICLE III
  
    ADMINISTRATION    
  


        3.1    Committee Structure and Authority. This Plan shall be administered by the Committee. The Committee shall be comprised of
two or more members of the Board of Directors selected by the Board. A majority of the Committee shall constitute a quorum at any meeting thereof (including via telephone conference), and the acts of
a majority of the members present, or acts unanimously approved in writing by the entire Committee without a meeting, shall be the acts of the Committee. The Board shall have the authority to remove,
replace or fill any vacancy of any member of the Committee upon notice to the Committee and the affected member. Any member of the Committee may resign upon notice to the Chairman of the Board of the
Company or to the Board. The Committee may allocate among one or more of its members, or may delegate to one or more of its agents, such duties and responsibilities as it determines. Subject to the
provisions of this Plan, the Committee shall have full and final authority in its discretion to: 



	(a)
	determine
from time to time whether a person is an Eligible Employee as of any Grant Date;



	(b)
	determine
the Option Price;



	(c)
	determine
the number of shares of Common Stock available as of any Grant Date or subject to any Option;



	(d)
	determine
any Grant Date, Exercise Date and Option Period, and provide for all aspects of payroll deduction, suspension or withdrawal;



	(e)
	determine,
subject to this Plan, the time or times when, and the manner in which, each Option shall be exercisable and the duration of each Option Period;



	(f)
	provide
for the acceleration of the right to exercise an Option (or portion thereof);



	(g)
	prescribe
additional terms, conditions and restrictions in any Agreement and provide for the forms of Agreement to be utilized in connection with this Plan;



	(h)
	determine
whether a Participant has incurred a Disability;



	(i)
	determine
what securities laws requirements are applicable to this Plan, Options, and the issuance of shares of Common Stock hereunder and request of a Participant that appropriate
action be taken;



	(j)
	cancel,
with the consent of the holder or as otherwise provided in this Plan or an Agreement, outstanding Options;



	(k)
	require,
as a condition of the exercise of an Option or the issuance or transfer of a share of Common Stock hereunder, the withholding from a Participant of the amount of any federal,
state or local taxes as may be necessary in order for the Company or Subsidiary to obtain a deduction and as may be otherwise required by law;



	(l)
	determine
whether and for what reason an individual has incurred a Termination of Employment or an authorized leave of absence; 



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	(m)
	treat
all or any portion of any period during which a Participant is on an approved leave of absence as a period of employment for purposes of accrual of the Participant's rights
under an Option;



	(n)
	determine
whether the Company or any other person has a right or obligation to purchase Common Stock from a Participant and, if so, the terms and conditions on which such Common Stock
is to be purchased;



	(o)
	determine
the restrictions or limitations on the transfer of Common Stock issued hereunder;



	(p)
	determine
whether an Option is to be adjusted, modified or purchased, or become fully exercisable, under Section 6.3 of this
Plan or the terms of an Agreement;



	(q)
	adopt,
amend and rescind such rules and regulations as, in its opinion, may be advisable in the administration of this Plan;



	(r)
	appoint
and compensate agents, counsel, auditors or other specialists to aid it in the discharge of its duties;



	(s)
	correct
any defect or supply any omission or reconcile any inconsistency in this Plan or in any Agreement relating to an Option, in such manner and to the extent the Committee shall
determine in order to carry out the purposes of this Plan; and



	(t)
	construe
and interpret this Plan and any Agreement, and take all other actions, make all other determinations and take all other actions deemed necessary or advisable for the
administration of this Plan. 




        In
the absence of the appointment of a Committee hereunder, the Compensation Committee of the Board shall be the Committee. A member of the Committee shall not exercise any discretion
respecting himself under this Plan. 


 
 

ARTICLE IV
  
    STOCK PROVISIONS    
  



        4.1    Number of Shares Subject to this Plan. The stock subject to the Options granted under this Plan shall be the Common
Stock. Subject to adjustment as provided in Section 6.3, the aggregate number of shares of Common Stock which may be delivered under the Plan
shall not exceed 2,500,000 shares. The shares of Common Stock issued with respect to Options under this Plan may be authorized and unissued shares or shares issued and reacquired by the Company. 


        4.2    Release of Shares. If any shares of Common Stock available for subscription are unsubscribed, or if any Option granted
hereunder shall be cancelled, forfeited, expire or terminate for any reason without having been exercised or realized in full, any shares of Common Stock subject to subscription or subject to such
Option shall again be available and may thereafter be granted or otherwise applied under this Plan. 


        4.3    Restrictions on Shares. Shares of Common Stock issued upon exercise of an Option shall be subject to the terms and
conditions specified herein and to such other terms, conditions and restrictions as the Committee, in its discretion, may determine or provide in any Agreement. The Company shall not be required to
issue or deliver shares of Common Stock hereunder prior to (1) the listing of such shares on the Nasdaq National Market or any other stock exchange or public market on which the Common Stock
may then be listed (or regularly traded), (2) the completion of any registration or qualification of such shares under federal or state law, or any ruling or regulation of any governmental
body, which the Committee, in its sole discretion, determines to be necessary or advisable, and (3) the tendering to the Company of such documents and/or payments as the Committee may deem
necessary, including documents the Committee deems necessary to satisfy any applicable withholding obligation in 


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order for the Company or another entity to obtain a deduction on its federal, state or local tax return with respect to the exercise of an Option. The Company may cause any certificate for any share
of Common Stock to be delivered to be properly marked with a legend or other notation reflecting any limitations on transfer of such Common Stock as provided in this Plan or as the Committee may
otherwise require. The Company has no obligation to register shares of Common Stock issued pursuant to this Plan. Fractional shares shall not be delivered, but shall be rounded to the next lower whole
number of shares. 


        4.4    Stockholder Rights. No person shall have any rights of a stockholder as to shares of Common Stock subject to an Option
until, after proper exercise of the Option or other action required, such shares shall have been recorded on the Company's official stockholder records as having been issued or transferred to such
person. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date such shares are recorded as issued or transferred to such person in the Company's
official stockholder records, except as provided in Section 6.3. 


        4.5    Stock Valuation. If and when the Fair Market Value per share of Common Stock shall be required to be determined, it shall
be the closing sales price per share of the Common Stock on Nasdaq (or the principal stock exchange or market on which the Common Stock is then traded) on the date as of which such value is being
determined or the last previous day on which a sale was reported. 



        4.6    Custodian. Shares of Common Stock purchased pursuant to this Plan may be delivered to, and held in the custody of, such
investment or financial firm as shall be appointed by the Committee. The custodian may hold in nominee or street name certificates for shares purchased pursuant to this Plan and may commingle shares
in its custody pursuant to this Plan in a single account without identification as to individual Participants. By appropriate instructions to the custodian on forms to be provided for the purpose, a
Participant may from time to time obtain (a) transfer into the Participant's own name, or
into the name of the Participant and another individual as joint tenants with the right of survivorship, of all or part of the whole shares held by the custodian for the Participant's account and
delivery of such shares to the Participant; (b) transfer of all or part of the whole shares held for the Participant's account by the custodian to a regular individual brokerage account in the
Participant's own name or in the name of the Participant and another individual as joint tenants with the right of survivorship, either with the firm then acting as custodian or with another firm, or
(c) sale of all or part of the whole shares held by the custodian for the Participant's account at the market price at the time the order is executed and remittance of the net proceeds of the
sale to the Participant. Upon termination of participation in this Plan, and upon receipt of instructions from the Participant, the shares held by the custodian for the account of the Participant will
be transferred and delivered to the Participant in accordance with (a) above, transferred to a brokerage account in accordance with (b) above, or sold in accordance with
(c) above. 


 
 

ARTICLE V
  
    ELIGIBILITY; OPTION PROVISIONS    
  


        5.1    Eligibility. Except as herein provided, the persons who shall be eligible to participate in this Plan as of any Grant
Date shall be those persons (and only those persons) who are Eligible Employees of the Company on a Grant Date. 



        5.2    Grant of Options. The Committee shall have authority to grant Options under this Plan at any time or from time to time to
all Eligible Employees as of a Grant Date. (To the extent an Option is granted to any Eligible Employee of an entity on a relevant date, all Eligible Employees of the entity shall be granted an Option
to the extent required by law.) An Option shall entitle the Participant to receive shares of Common Stock at the conclusion of the Option Period, subject to the Participant's satisfaction in full of
any conditions, restrictions or limitations imposed in accordance with this Plan or an Agreement, including without limitation, payment of the Option Price. Each Option granted under 


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this Plan shall be evidenced by an Agreement, in a form approved by the Committee, which shall embody the terms and conditions of such Option and which shall be subject to the express terms and
conditions set forth in this Plan and to such other terms and conditions as the Committee may deem appropriate. The grant and exercise of Options hereunder shall be subject to all applicable federal,
state and local laws, rules and regulations and to such approvals by any governmental or regulatory agencies as may be required. As of any Grant Date, each Eligible Employee shall be granted Options
with the same rights and privileges as any other Eligible Employee on that Grant Date, except the amount of the Common Stock which may be purchased by any Participant under any Option may bear a
uniform relationship to the total compensation, or the basic or regular rate of compensation (as determined by the Committee) of all Eligible Employees on that Grant Date, and the Option may establish
a maximum amount of Common Stock which may be purchased. 


        5.3    Option Period. Each Agreement shall specify the period for which the Option thereunder is granted, which shall be
determined by the Committee. In no event shall the Option Period exceed twenty-four (24) consecutive calendar months or extend beyond the period permitted under
Section 423(b)(7) of the Code. 


        5.4    Option Price. Subject to the limits stated herein, the Option Price per share at which shares of Common Stock may be
acquired upon exercise of an Option shall be determined by the Committee. Unless otherwise specified by the Committee, with respect to any Exercise Date, the Option Price shall not be less than the
lesser of eighty-five percent (85%) of the Fair Market Value of a share of Common Stock (averaged over such period as the Committee may determine and as permitted by law) on the applicable
Grant Date and eighty-five percent (85%) of the Fair Market Value of a share of Common Stock (averaged over such period as the Committee may determine and as permitted by law) on the
applicable Exercise Date. The Committee reserves the right to increase the Option Price by the value of any accretion to the amounts credited to an Account if the Participant is credited with such
accretion, regardless of the method of accounting for such accretion. 


        5.5    Contribution Rate. If an Eligible Employee elects to participate in this Plan, the Participant shall file an Agreement
with the Committee within the time period designated by the Committee. The Committee may provide that the Agreement shall specify either a percentage of the Participant's compensation (as defined by
the Committee) or a dollar amount determined by the Participant to be deducted each pay period, or the Committee may permit only a specified percentage or a specified amount. Alternatively, the
Committee may allow the Participant to contribute to the Plan by check to be drawn by the Participant at least once during the relevant Option Period. Such amount shall be credited to the Account and
shall be the Participant's Contribution Rate. Unless the Participant's contributions are made in the form of checks, deductions shall begin as of the first regularly scheduled payroll date on or after
the later of the Grant Date and the date specified by the Committee. The Committee may establish minimum and maximum percentages or amounts to be contributed and a date by when such Agreement must be
filed with the Committee. Notwithstanding the foregoing, in no event may more than $25,000 be deducted from the Participant's compensation (as defined by the Committee) for each Option Period, and the
maximum number of shares which can be purchased by a Participant during the Option Period shall not exceed such amount divided by eighty-five percent (85%) of the Fair Market Value of a
share of Common Stock on the applicable Grant Date (as determined under Section 5.4). Such contributions will be held in the general funds of the
Company, and no interest shall accrue on any amounts held under this Plan, unless expressly determined by the Committee. If a Participant's contributions are made to a Subsidiary, that corporation
will promptly remit the amount of the contributions to the Company. A Participant's Contribution Rate, once established, shall remain in effect during the Option Period, unless and until contributions
are suspended or fully discontinued, in order to comply with Section 401(k) of the Code or for such other reasons as the Committee in its sole discretion may determine, or if the Participant
shall request suspension or discontinuance. If a Participant requests to suspend contributions, the Participant may do 


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so at such times and in such manner as the Committee may permit, and previously contributed amounts shall be retained until the earlier of the Exercise Date and the date the Participant totally
discontinues contributions and requests a distribution of the Participant's Account. A Participant who has suspended contributions may recommence such contributions at such time, if at all, as
determined by the Committee. If a Participant requests to totally discontinue contributions, the Participant may do so by providing written notice to the Committee, and there shall be paid to the
Participant the value of
the Participant's Account as soon as administratively possible and the Participant shall not receive any shares as of the Exercise Date. 


        5.6    Purchase of Shares. Subject to Sections 5.7, 5.8, 5.9, 5.10 and 5.11, on each Exercise Date a Participant who has
previously executed an Agreement with respect to a specific Grant Date and made one or more payments described in Section 5.5 shall be deemed to
have exercised the Option to the extent of the value of the Participant's Account, subject to the $25,000 limit set forth in Section 5.5 with
respect to the Option being exercised and shall be deemed to have purchased such number of full shares of Common Stock as equals the value of the Account, subject to the limits of Sections 423(b)(3)
and 423(b)(8) of the Code and the number of shares available hereunder as of the Exercise Date and proportionately allocable to other Participants for that Grant Date. The number of shares of Common
Stock to be purchased by the Participant as of any Exercise Date shall be determined by dividing the Option Price per share of the Common Stock into the Account value, and the value of the shares so
purchased shall be charged to the Account. Any value remaining in the Account shall be returned to the Participant and not applied to purchase Common Stock. Certificates of Common Stock purchased
hereunder may be held by the custodian as provided in Section 4.6. The Committee may amend this Plan or any Agreement or provide in operation for
Participants to dispose of shares of Common Stock received upon the Exercise Date on or immediately thereafter (which time may include any period during which the Option is held) to the extent such
change would not result in liability under Section 16 of the Exchange Act. If the total number of shares to be purchased as of any Exercise Date by all Participants exceeds the number of shares
authorized under this Plan or made available by the Committee as to any Exercise Date, a pro rata allocation of the available shares will be made among all Participants making contributions to the
Plan, based on the amount of their respective contributions through the Exercise Date. 



        5.7    Cancellation of Options. Except as otherwise provided in an Agreement, an Option shall cease to be exercisable, and shall
be cancelled, on or after the expiration of the Option Period. 


        5.8    Terminated Employees. Except as otherwise provided by the Committee or in an Agreement, any Participant who incurs a
Termination of Employment for any reason, except death, Disability or Retirement, during the Option Period shall cease to be a Participant, the Option shall be null and void on the date of the
Termination of Employment without notice to the Participant, and the balance of the Account of the Participant shall be distributed to the Participant as soon as administratively possible. 


        5.9    Deceased Employees. If a Participant shall die during an Option Period while an Eligible Employee, no further
contributions by deduction from regularly scheduled payments on behalf of the deceased Participant shall be made, except that the Representative may make a single sum payment with respect to the
Option at any time on or before the next Exercise Date equal to the amount the Participant would have contributed as determined by the Committee for the payroll periods remaining to the next Exercise
Date. The Representative may at any time prior to the next Exercise Date request a distribution of the deceased Participant's Account. If the Representative does not request a distribution of the
Account, the balance accumulated in the deceased Participant's Account shall be used to purchase shares of the Common Stock on the previously mentioned Exercise Date. 


        5.10    Disabled or Retired Employees. If a Participant incurs a Termination of Employment due to Disability, or if a
Participant incurs a Termination of Employment due to Retirement, during an Option 


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Period, no further contributions by deduction from regularly scheduled payments on behalf of the disabled or retired Participant shall be made, except that the Participant may make a single sum
payment with respect to the Option at any time on or before the next Exercise Date equal to the amount the Participant would have contributed as determined by the Committee for the payroll periods
remaining to the next Exercise Date. The disabled or retired Participant may at any time prior to the next Exercise Date request a distribution of his or her Account. If the disabled or retired
Participant does not request a distribution of his or her Account, the balance accumulated in the disabled or retired Participant's Account shall be used to purchase shares of the Common Stock on the
previously mentioned Exercise Date. 


        5.11    Limitations. Notwithstanding any other provision of this Plan, in no event may a Participant (i) purchase under
this Plan during a calendar year Common Stock having a fair market value (determined at Grant Date) of more than $25,000 to the extent required by Section 423(b)(8) of the Code, or
(ii) receive any rights to purchase stock hereunder if he or she beneficially owns, immediately after such receipt, five percent (5%) or more of the total voting power or value of all classes
of stock of the Company. 


        5.12    Nonassignability. No Option or Account shall be assigned, transferred (except as herein provided), pledged, or
hypothecated in any way (whether by operation of law or otherwise), other than by will or the laws of descent and distribution or pursuant to a domestic relations order which would be a qualified
domestic relations order as defined in the Code or ERISA (if this Plan were described in the relevant Sections) but only to the extent consistent with Section 423 of the Code. Except as
provided herein, an Option is exercisable during a Participant's lifetime only by the Participant or the appointed guardian or legal representative of the Participant, and neither the Option nor the
Participant's Account shall be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition contrary to the provisions hereof of,
or the levy of any attachment or similar process upon, an Option or an Account shall be null and void and without effect. The Company shall have the right to terminate an Option or an Account in the
event of any such assignment, transfer, pledge, hypothecation or other disposition of the Option or the Account, or levy of attachment or similar process upon the Option or the Account, by notice to
that effect to the person then entitled to exercise the Option; provided, however, that termination of the Option hereunder shall not prejudice any rights or remedies which the Company may have under
an Agreement or otherwise. 


 
 

ARTICLE VI
  
    GENERAL PROVISIONS APPLICABLE TO THE PLAN    
  



        6.1    Termination of Plan. To the extent required by law, this Plan shall terminate on the last day of the ten (10) year
period commencing with the Effective Date or at such earlier time as the Board may determine, and no Options shall be granted under this Plan after that termination date. Any Options outstanding under
this Plan at the time of its termination shall remain in effect until they shall have been exercised, expired or otherwise cancelled, settled or terminated as provided herein or in an Agreement, and
such outstanding Options shall not be affected by such termination of this Plan. The provisions of this Plan in respect to the full and final authority of the Committee under this Plan, other than the
authority to grant Options, and in respect of a Participant's obligations respecting shares of Common Stock received pursuant to the exercise of an Option, shall continue notwithstanding the
termination of this Plan. 


        6.2    Investment Representation. In the event the issuance by the Company of Common Stock acquired upon the exercise of any
Option is not covered by a then current registration statement under the Securities Act, the Common Stock so acquired shall be restricted against transfer to the extent required by the Securities Act
or regulations thereunder, and each Agreement shall contain a 


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requirement that, upon demand by the Company for such representation, the individual exercising an Option shall state in writing, as a condition precedent to each exercise of the Option, in whole or
in part, that the Common Stock acquired by such exercise is acquired for investment purposes only and not for resale or with a view to distribution. The Committee may set forth in an Agreement such
other terms and conditions relating to the registration or qualification of the Common Stock under federal or state securities laws as it desires. 


        6.3    Effect of Certain Changes. 



	(a)
	Anti-Dilution. In the event of any Company stock dividend, stock split, combination or exchange of shares, recapitalization
or other change in the capital structure of the Company, corporate separation or division of the Company (including, but not limited to, a split-up, spin-off,
split-off or distribution to Company stockholders other than a normal cash dividend), sale by the Company of all or a substantial portion of its assets (as measured on either a stand-alone
or consolidated basis), reorganization, rights offering, partial or complete liquidation, or any other corporate transaction or event involving the Company and having an effect similar to any of the
foregoing, then the Committee may adjust or substitute, as the case may be, the number of shares of Common Stock available for Options under this Plan, the number of shares of Common Stock covered by
outstanding Options, the exercise price per share of outstanding Options, and any other characteristics or terms of the Options as the Committee shall deem necessary or appropriate to reflect
equitably the effects of such event to the Participants; provided, however, that any fractional shares resulting from such adjustment shall be eliminated by rounding to the next lower whole number of
shares with appropriate payment for such fractional shares as shall reasonably be determined by the Committee.



	(b)
	Change in Control. If there is a Change in Control of the Company (as defined herein) or the Committee reasonably anticipates a Change
in Control is likely to occur, then (1) the Committee may cause each Option to be immediately exercisable; (2) the Committee may provide that any Option
exercisable on the date of any such Change in Control may be purchased by the Company in an amount equal to the excess, if any, of the aggregate Fair Market Value per share of Common Stock subject to
the Option (or portion thereof) over the aggregate Option Price of the shares subject to the Option (or portion thereof) which the Committee determines to purchase; or (3) the Company may
provide for any combination of (1) and (2) above. For purposes of this Section 6.3(b), the aggregate Fair Market Value per share of
Common Stock subject to the Option that the Committee determines to purchase shall be determined by the Committee by reference to the cash or fair market value, determined by the Committee, of
securities, property or other consideration receivable pursuant to the Change in Control described in this Section 6.3(b). The aggregate Option
Price of such shares of Common Stock shall be determined by multiplying the number of such shares by the Option Price. In the event of a Change in Control described in  Section 6.3(c)(iii), and if
the Option is unexercised and the Committee does not exercise its discretion hereunder to purchase the Option, then
the Option shall be regarded as the right to receive the securities, property, cash or other consideration receivable by the stockholders of the Company immediately prior to the Change in Control
described in Section 6.3(c)(iii). The provisions of this Section 6.3(b) shall be construed
consistently with the terms or conditions of any regulation or ruling respecting the status of Options under Section 423 of the Code and the receipt of cash or other consideration coincident
with the cancellation of such Options, and in order to provide the Participant the economic benefit of the Option without incurring liability under Section 16(b) of the Exchange Act. 



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	(c)
	"Change in Control" shall mean the happening of any of the following events:



	(i)
	An
acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of either (1) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (2) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); excluding, however, the following: (1) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of
a conversion privilege unless the security being so converted was itself acquired directly from the Company, (2) any acquisition by the Company; (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; or (4) any acquisition by any Person pursuant to a transaction which
complies with clauses (1), (2) and (3) of subsection (iii) of this Section 6.3(c); or



	(ii)
	Within
any period of 24 consecutive months, a change in the composition of the Board such that the individuals who, immediately prior to such period,
constituted the Board (such Board shall be hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, for purposes of
this Section 6.3(c), that any individual who becomes a member of the Board during such period, whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant
to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided further, that any such individual whose initial assumption of office occurs as a
result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be so considered as a member of the Incumbent Board; or



	(iii)
	The
approval by the stockholders of the Company of a reorganization, merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company ("Corporate Transaction"); excluding, however, such a Corporate Transaction pursuant to which (1) all or substantially all of the individuals and entities who are
the beneficial owners, respectively, of the outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 60% of, respectively, the outstanding shares of common stock, and the combined voting power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets, either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such
Corporate Transaction, of the outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (2) no Person (other than the Company; any employee benefit plan
(or related trust) sponsored or maintained by the Company, by any corporation controlled by the Company, or by such corporation resulting from such Corporate Transaction) will beneficially own,
directly or indirectly, more than 25% of, respectively, the outstanding shares of common stock of the 






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corporation
resulting from such Corporate Transaction or the combined voting power of the outstanding voting securities of such corporation entitled to vote generally in the election of directors,
except to the extent that such ownership existed with respect to the Company prior to the Corporate Transaction, and (3) individuals who were members of the Board immediately prior to the
approval by the stockholders of the Corporation of such Corporate Transaction will constitute at least a majority of the members of the board of directors of the corporation resulting from such
Corporate Transaction; or 



	(iv)
	The
approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, other than to a corporation pursuant to a
transaction which would comply with clauses (1), (2) and (3) of subsection (iii) of this Section 6.3(c), assuming for this
purpose that such transaction were a Corporate Transaction. 





        6.4    Withholding. Notwithstanding any other provision hereof, as a condition of delivery or transfer of shares of Common
Stock, the Committee, in its sole discretion, may require a Participant to pay to the Company, or the Committee may at its election withhold from any wages, salary or stock to be issued to the
Participant pursuant to the exercise of an Option, or other payment due to the Participant, an amount sufficient to satisfy all present or estimated future federal, state and local withholding tax
requirements related thereto. The Participant may satisfy any requirement under this Plan or an Agreement with respect to the Company's federal, state or local tax withholding obligation by requesting
that the Committee withhold and not transfer or issue to the Participant shares of Common Stock, with a Fair Market Value equal to such withholding obligation, otherwise issuable or transferable to
the Participant pursuant to the exercise of that portion of the Option. An Agreement may provide for shares of Common Stock to be delivered or withheld having a Fair Market Value in excess of the
minimum amount required to be withheld, but not in excess of the amount determined by applying the Participant's maximum marginal tax rate. Any right or election of the Participant under this  Section 6.4 shall be subject to the approval of the Committee. The amount of required withholding shall, at the election of the Participant, be
at a specified rate not less than the statutory minimum federal and state withholding rate and not greater than the maximum federal, state and local marginal tax rate applicable to the Participant and
to the particular Option exercise transaction. 


        6.5    No Company Obligation. Neither the Company nor any Subsidiary which has adopted this Plan shall have any duty or
obligation to affirmatively disclose to a record or beneficial holder of an Option, and such holder shall have no right to be advised of, any material information regarding the Company or Subsidiary
at any time prior to, upon or in connection with the exercise of an Option. 



        6.6    Committee Discretion. The Committee may in its sole discretion include in any Agreement an obligation that the Company
purchase a Participant's shares of Common Stock received upon the exercise of an Option (including the repurchase of any unexercised Options which have not expired), or may obligate a Participant to
sell shares of Common Stock to the Company, upon such terms and conditions as the Committee may determine and set forth in an Agreement. The provisions of this Article VI shall be construed by
the Committee in its sole discretion and shall be subject to such other terms and conditions as the Committee may from time to time determine. 


 
 

ARTICLE VII
  
    MISCELLANEOUS    
  


        7.1    Indemnification of the Board and Committee. In addition to such other rights of indemnification as they may have and to
the extent permitted by law, the Company shall indemnify, defend and hold harmless the Board, the Committee, the members of the Committee, the officers of the Company, and any agents or
representatives selected by the Board or Committee (collectively "indemnified parties") against the reasonable expenses, including, without limitation, attorneys' fees, actually and necessarily
incurred by them in connection with the defense of any action, suit or 


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proceeding, or any threat thereof, or in connection with any appeal therein, to which they or any of them may be a party by reason of any act or omission in connection with this Plan or any Option
granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that any such indemnified party is liable for gross
negligence or gross misconduct in the performance of his or her duties; provided that, within sixty (60) days after institution of any such action, suit or proceeding, an indemnified party may
in writing elect to defend the same at his or her sole expense, and if such election is made, the Company shall have no further liability or obligations to the indemnified party under this  Section 7.1. The provisions of
this Section 7.1 shall in no way limit any other obligation or arrangements the Company may have with regard to indemnifying an indemnified
party. 


        7.2    Mitigation of Excise Tax. If any payment or right accruing to a Participant under this Plan (without the application of
this Section 7.2), either alone or together with other payments or rights accruing to the Participant from the Company ("Total Payments") would
constitute a "parachute payment" (as defined in Section 280G of the Code and regulations thereunder), such payment or right shall be reduced to the largest amount or greatest right that will
result in no portion of the amount payable or right accruing under this Plan being subject to an excise tax under Section 4999 of the Code or being disallowed as a deduction under
Section 280G of the Code; provided, however, that the foregoing shall not apply to the extent provided otherwise in an Option or in the event the Participant is party to an agreement with the
Company or an Affiliate that explicitly provides for an alternate treatment of payments or rights that would constitute "parachute payments." The determination of whether any reduction in the rights
or payments under this Plan is to apply shall be made by the Committee in good faith after consultation with the Participant, and such determination shall be conclusive and binding on the Participant.
The Participant shall cooperate in good faith with the Committee in making such determination and providing the necessary information for this purpose. The foregoing provisions of this  Section 7.2
shall apply with respect to any person only if after reduction for any applicable federal excise tax imposed by Section 4999
of the Code and federal income tax imposed by the Code, the Total Payments accruing to such person would be less than the amount of the Total Payments as reduced, if applicable, under the foregoing
provisions of this Plan and after reduction for only federal income taxes. 


        7.3    Interpretation. Whenever necessary or appropriate in this Plan and where the context so requires, the singular term and
the related pronouns shall include the plural and the masculine and feminine gender. 


        7.4    Governing Law. This Plan and any Agreement shall be governed by the laws of the State of Delaware (other than its laws
respecting choice of law). 


        7.5    Limitations on Liability. No liability whatsoever shall attach to, or be incurred by, any past, present or future
stockholders, officers or directors, merely as such, of the Company under or by reason of any of the terms, conditions or agreements contained in this Plan or any Agreement or implied from either
thereof, and any and all liabilities of, and any and all rights and claims against the Company, or any stockholder, officer or director, merely as such, whether arising at common law or in equity or
created by statute or constitution or otherwise, pertaining to this Plan or to any Agreement, are hereby expressly waived and released by every Participant as a part of the consideration for any
benefits provided by the Company under this Plan. A person who shall claim a right or benefit under this Plan shall be entitled only to claim against the Company for such benefit. 


        7.6    Validity. If any provision of this Plan shall for any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, and this Plan shall be construed as if such invalid or unenforceable provision were omitted. 


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        7.7    Assignment. This Plan shall inure to the benefit of, and be binding upon, the parties hereof and their respective
successors and permitted assigns. 


        7.8    Captions. The captions and headings to this Plan are for convenience of reference only and in no way define, limit or
describe the scope or the intent of this Plan or any part hereof, nor in any way affect this Plan or any part hereof. 


        7.9    Amendments. The Board of Directors may at any time amend, waive, discharge or terminate this Plan, even with prejudice to
a Participant. The Board or the Committee may amend, waive, discharge, terminate, modify, extend, replace or renew any outstanding Option Agreement, even with prejudice to a Participant, provided such
change does not cause this Plan to fail to be a plan as described in Section 423 of the Code. 


        7.10    Entire Agreement. This Plan and each Agreement constitute the entire agreement with respect to the subject matter hereof
and thereof, provided that in the event of any inconsistency between this Plan and the Agreement, the terms and conditions of this Plan shall control. 



        7.11    Rights with Respect to Continuance of Employment. Nothing contained herein or in any Agreement shall be deemed to alter
any employment relationship between the Company or a Subsidiary and a Participant. Nothing contained herein or in an Agreement shall be construed to constitute a contract of employment between the
Company or a Subsidiary and a Participant. The Company or, as applicable, the Subsidiary and the Participant each continue to have the right to terminate the employment relationship at any time for
any reason. The Company or Subsidiary shall have no obligation to retain the Participant in its employ as a result of this Plan. There shall be no inference as to the length of employment hereby, and
the Company or Subsidiary reserves the same rights to terminate the Participant's employment as existed prior to the individual becoming a Participant in this Plan. 


        7.12    Options for Shares in Substitution for Stock Options Granted by Other Corporations. Options may be granted under this
Plan from time to time in substitution for stock options or stock appreciation rights held by employees, directors or service providers of other corporations who are about to become employees of the
Company as the result of a merger or consolidation of the employing corporation with the Company, or the acquisition by the Company of the assets of the employing corporation, or the acquisition by
the Company of the stock of the employing corporation, as the result of which it becomes a designated employer under this Plan. The terms and conditions of the Options so granted may vary from the
terms and conditions set forth in this Plan at the time of such grant as the majority of the members of the Committee may deem appropriate to conform, in whole or in part, to the provisions of the
options in substitution for which they are granted. 


        7.13    Procedure for Adoption. Any Subsidiary of the Company may by resolution of such Subsidiary's board of directors, with
the consent of the Board of Directors and subject to such conditions as may be imposed by the Board of Directors, adopt this Plan for the benefit of its employees as of the date specified in the board
resolution. The Board shall have the power to make such designation before or after this Plan is approved by stockholders. 


        7.14    Procedure for Withdrawal. Any Subsidiary which has adopted this Plan may, by resolution of the board of directors of
such Subsidiary, with the consent of the Board of Directors and subject to such conditions as may be imposed by the Board of Directors, terminate its adoption of this Plan; provided such termination
of adoption does not cause this Plan to fail to be a plan described in Section 423 of the Code. 



        7.15    Expenses. Expenses of this Plan, including the fees or expenses incurred by the transfer agent in connection with the
transfer of Common Stock, and brokerage fees or expenses incurred by a Participant in connection with the acquisition of Common Stock pursuant to this Plan or transfer of shares to a Participant,
shall be charged to the Accounts of affected Participants or charged to the 


14





 




accretion to the amounts credited to any Accounts if the Participants are credited with such accretion regardless of the method of accounting for such accretion, except to the extent paid by the
Company or otherwise accounted for by the Company. Any expenses or fees associated with the Common Stock, including, for example, custodian or brokerage fees after Common Stock is transferred to a
Participant or for the Participant's account, or fees or commissions in connection with the disposition of shares, shall be borne by the Participant. 


        Executed
and effective as of the 3rd day of May, 2002. 



	 	 	divine, inc.
	

 	
 	

By:	
 	

/s/  MICHAEL P. CULLINANE      
 Michael P. Cullinane
	 	 	Title:	 	Executive Vice President, Chief Financial

Officer, and Treasurer




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QuickLinks



Exhibit 4.4


divine, inc. 2002 EMPLOYEE STOCK PURCHASE PLAN (Adopted as of June 1, 2002)




Exhibit 4.4


divine, inc. 2002 EMPLOYEE STOCK PURCHASE PLAN (Adopted as of June 1, 2002) ARTICLE I ESTABLISHMENT AND PURPOSE

ARTICLE II DEFINITIONS

ARTICLE III ADMINISTRATION

ARTICLE IV STOCK PROVISIONS

ARTICLE V ELIGIBILITY; OPTION PROVISIONS

ARTICLE VI GENERAL PROVISIONS APPLICABLE TO THE PLAN

ARTICLE VII MISCELLANEOUS