Exhibit 4.1
AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to the Stockholder Rights
Agreement dated as of December 18, 2000 (the "Rights Agreement") by and between
Eprise Corporation, a Delaware corporation (the "Company"), and Fleet Bank c/o
EquiServe L.P., as Rights Agent (the "Rights Agent"), is entered into by the
Company and the Rights Agent as of the date set forth below. Capitalized terms
not otherwise defined in this Amendment shall have the meanings ascribed to them
in the Rights Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of Section 27 thereof if the Company
so directs; and
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement") dated September 17, 2001, among divine, inc., a
Delaware corporation ("divine"), DI2 Acquisition Company, a Delaware corporation
and a direct wholly-owned subsidiary of divine, and the Company; and
WHEREAS, the Board of Directors of the Company has determined that the
Merger Agreement and the terms and conditions set forth therein and the
transactions contemplated thereby, including, without limitation, the Merger (as
defined in the Merger Agreement), are fair to and in the best interests of the
Company and its stockholders; and
WHEREAS, the Board of Directors of the Company has approved, in
connection with the Merger Agreement, each of divine and DI2 Acquisition Company
to become a Beneficial Owner of 15% or more of the Company's Common Shares, and
has further determined that the Merger and related transactions constitute a
Permitted Offer under the Rights Agreement, and that no Shares Acquisition Date
or Distribution Date shall occur by reason of the Merger or the related
transactions contemplated by the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has determined that it
is necessary and desirable to amend the Rights Agreement such that all Rights
thereunder shall expire immediately prior to the Effective Time as defined in
the Merger Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 7(a) of the Rights Agreement is hereby amended by deleting it
and replacing it with the following:
"(a) The registered holder of any Rights Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in whole or
in part after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the office of the Rights Agent designated for such
purpose, together with payment of the Purchase Price for each one one-hundredth
of a Preferred Share (or such other number of shares or other securities) as to
which the Rights are exercised, provided that such exercise must be made at or
prior to the earliest of: (i) the earlier of (A) the Effective Time under that
certain Agreement and Plan of Merger among the Company, divine, Inc. and DI2
Acquisition Company, dated September 17, 2001, and (B) the Close of Business on
December 18, 2010 or such later date as may be established by the Board of
Directors prior to such date (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof (the "Redemption
Date"), or (iii) the time at which such Rights are exchanged as provided in
Section 24 hereof."
2. Section 15 of the Rights Agreement is hereby amended and supplemented
by adding the following sentence to the end thereof:
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable right, remedy or claim under
this Agreement in connection with a Permitted Offer."
3. 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 such State applicable to contracts to be made and
performed entirely within such State.
4. This Amendment may be executed in any number of counterparts, each of
such counterparts shall for all purposes be deemed an original and all such
counterparts shall together constitute but one and the same instrument.
5. This Amendment shall be deemed effective as of the date set forth
below. In all respects not inconsistent with the terms and provisions of this
Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
6. 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, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
7. Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Rights Agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the
Rights Agreement to be executed in counterparts as of the 31st day of October,
2001.
EPRISE CORPORATION
By: /s/ J.A. Forgione
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Joseph A. Forgione
President
Attest:
/s/ Heather Lamoureux
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FLEET BANK N.A.
c/o EQUISERVE, L.P.
By: /s/ Michael Connor
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Name: Michael Connor
Title: Director
IPO/Client Administration Team
Attest:
/s/ Greg Veliotis
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