1
Exhibit 4.6
ANTIDILUTION AGREEMENT
THIS ANTIDILUTION AGREEMENT is entered into as of December 5, 1997, by
and between Silicon Valley Bank ("Purchaser") and EPRISE CORPORATION, formerly
known as NovaLink USA Corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Antidilution Agreement, the
Purchaser is purchasing from the Company a Warrant (the "Warrant") pursuant to
which Purchaser has the right to acquire from the Company the Shares (as defined
in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company desire
to set forth the adjustment in the number of Shares issuable upon exercise of
the Warrant as a result of a Diluting Issuance (as defined in the Warrant).
C. Capitalized terms used herein shall have the same meaning as set
forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and conditions hereinafter set forth, the parties hereto mutually agree as
follows:
1. DEFINITIONS. As used in this Antidilution Agreement, the
following terms have the following respective meanings:
(a) "Option" means any right, option, or warrant to subscribe
for, purchase, or otherwise acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of
indebtedness, shares of stock, or other securities directly or indirectly
convertible into or exchangeable for Common Stock.
(c) "Issue" means to grant, issue, sell, assume, or fix a
record date for determining persons entitled to receive, any security (including
Options), whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all Common Stock
(including reissued shares) Issued (or deemed to be issued pursuant to Section
2) after the date of the Warrant. Additional Common Shares does not include,
however, any Common Stock Issued in a transaction described in Sections 2.1 and
2.2 of the Warrant; any Common Stock Issued upon conversion of Options and
Convertible Securities outstanding as of the date of the Warrant; the Shares; or
Common Stock Issued pursuant to a stock option plan which was approved by the
Board of Directors of the Company prior to the date of the Warrant, as an
incentive to, or in a nonfinancing transaction to employees, officers,
directors, or consultants to the Company.
2. DEEMED ISSUANCE OF ADDITIONAL COMMON SHARES. The shares of Common
Stock ultimately issuable upon exercise of an Option (including the shares of
Common Stock ultimately issuable upon conversion or exercise of a Convertible
Security issuable pursuant to an Option) are deemed to be Issued when the Option
is Issued. The shares of Common Stock ultimately issuable upon conversion or
exercise of a Convertible Security (other than a Convertible Security Issued
pursuant to an Option) shall be deemed Issued upon Issuance of the Convertible
Security. The maximum amount of Common Stock issuable is determined without
regard to any future adjustments permitted under the instrument creating the
Options or Convertible Securities.
2
3. ADJUSTMENT OF WARRANT PRICE FOR DILUTING ISSUANCES.
3.1 WEIGHTED AVERAGE ADJUSTMENT. If the Company issues
Additional Common Shares after the date of the Warrant and the consideration per
Additional Common Share (determined pursuant to Section 4) is less than the
Warrant Price in effect immediately before such Issue, the Warrant Price shall
be reduced, concurrently with such Issue, to a price (calculated to the nearest
hundredth of a cent) determined by multiplying the Warrant Price by a fraction:
(a) the numerator of which is the amount of such Common Stock
outstanding immediately before such Issue plus the amount of Common Stock that
the aggregate consideration received by the Company for the Additional Common
Shares would purchase at the Warrant Price in effect immediately before such
Issue, and
(b) the denominator of which is the amount of Common Stock
outstanding immediately before such Issue plus the number of such Additional
Common Shares.
3.2 INTENTIONALLY OMITTED.
3.3 SECURITIES DEEMED OUTSTANDING. For the purpose of this
Section 3, all securities issuable upon exercise of any outstanding Convertible
Securities or Options, warrants, or other rights to acquire securities of the
Company shall be deemed to be outstanding.
4. COMPUTATION OF CONSIDERATION. The consideration received by the
Company for the Issue of any Additional Common Shares shall be computed as
follows:
(a) CASH shall be valued at the amount of cash received by the
Corporation, excluding amounts paid or payable for accrued interest or accrued
dividends.
(b) PROPERTY. Property other than cash shall be computed at
the fair market value thereof at the time of the Issue as determined in good
faith by the Board of Directors of the Company.
(c) MIXED CONSIDERATION. The consideration for Additional
common Shares Issued together with other property of the Company for
consideration that covers both shall be determined in good faith by the Board of
Directors.
(d) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per
Additional Common Share for Options and Convertible Securities shall be
determined by dividing:
(i) the total amount, if any, received or receivable
by the Company for the Issue of the Options or Convertible Securities, plus the
minimum amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to the Company upon
exercise of the Options or conversion of the Convertible Securities, by
(ii) the maximum amount of Common Stock (as set forth in
the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) ultimately issuable upon the
exercise of such Options or the conversion of such Convertible Securities.
5. GENERAL.
3
5.1 GOVERNING LAW. This Antidilution Agreement shall be governed in
all respects by the laws of the Commonwealth of Massachusetts as such laws are
applied to agreements between Massachusetts residents entered into and to be
performed entirely within Massachusetts.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
5.3 ENTIRE AGREEMENT. Except as set forth below, this Antidilution
Agreement and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
5.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Purchaser at Purchaser's address as set forth below, or at
such other address as Purchaser shall have furnished to the Company in writing,
or (b) if to the Company, at the Company's address set forth below, or at such
other address as the Company shall have furnished to the Purchaser in writing.
5.5 SEVERABILITY. In case any provision of this Antidilution
Agreement shall be invalid, illegal, or unenforceable, the validity, legality
and enforceability of the remaining provisions of this Antidilution Agreement
shall not in any way be affected or impaired thereby.
5.6 TITLE AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Antidilution Agreement.
5.7 COUNTERPARTS. This Antidilution Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
PURCHASER: COMPANY:
SILICON VALLEY BANK EPRISE CORPORATION, formerly known
as NovaLink USA Corporation
By: /s/ Dave Rodriguez By: /s/ J.A. Forgione
Name: Dave Rodriguez Name: Joseph A. Forgione
Title: Assistant Vice President Title: President
Address: 3003 Tasman Drive Address: 1671 Worcester Road
P.O. Box 2607 Framingham, MA 01701
Santa Clara, CA 95054-1191