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EXHIBIT 4.1
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 dated as of March 20, 2001 hereby amends the
Rights Agreement dated as of January 26, 1998, as amended by Amendment No. 1
dated as of February 17, 1999 (the "Agreement"), between Open Market, Inc., a
Delaware corporation (the "Company"), and Fleet National Bank (formerly known as
BankBoston N.A.), a national banking association, as Rights Agent (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, no Stock Acquisition Date, as such term is defined in the
Agreement, has occurred; and
WHEREAS, the Company has directed the Rights Agent to enter into this
Amendment No. 2 pursuant to Section 27 of the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereby agree as follows:
1. Section 1(a) of the Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
(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 18% 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,
(iv) any Person or entity organized, appointed or established by the Company for
or pursuant to the terms of any such plan or (v) an Exempted Person.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as
the result of an acquisition of Common Stock by the Company which, by reducing
the number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 18% or more of the Common Stock of the
Company then outstanding; PROVIDED, HOWEVER, that if a Person shall become the
Beneficial Owner of 18% or more of the Common Stock of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of any additional
Common Stock of the Company, then such Person shall be deemed to be an
"Acquiring Person." Notwithstanding the foregoing, if the Board of Directors of
the Company determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of shares of Common Stock so that
such Person would no longer be an "Acquiring Person," as defined pursuant to the
forgoing provisions of this paragraph (a), then such Person shall not be deemed
to be an "Acquiring
Person" for any purposes of this Agreement unless and until
such Person shall again become an "Acquiring Person."
2. Section 1 of the Agreement is hereby further amended by adding new paragraph
(ii) at the end thereof, as follows:
(ii) "Exempted Person" shall mean The Palladin Group, L.P. and
Gleneagles Fund Company, and each of their respective Affiliates and Associates
(collectively, "the Palladin Entities"), unless and until such time as the
Palladin Entities directly or indirectly become the Beneficial Owner of Common
Stock in excess of the Exempt Threshold. For purposes of this Agreement, the
Exempt Threshold shall mean that percentage of the Common Stock equal to the sum
of that percentage of shares of Common Stock then outstanding represented by
shares received (A) as a dividend on or as a result of any conversion or
redemption of, shares of the Company's Series E 6% Cumulative Convertible
Preferred Stock, $.10 par value per share, (B) pursuant to the Purchase
Agreement, dated the date hereof, between the Company and certain of the
Palladin Entities, and the agreements referred to therein including the
Registration Rights Agreement, the Common Stock Warrant and the Adjustment
Warrant, each dated the date hereof or (C) pursuant to the Common Stock Purchase
Agreement, dated the date hereof, between the Company and Gleneagles Fund
Company.
3. Section 11(a)(ii) of the Agreement is hereby deleted and the following is
substituted in lieu thereof:
(a)(ii) Subject to Section 24 of this Agreement, in the event
that any Person shall become an Acquiring Person, unless the event causing the
18% threshold (or, in the case of an Exempted Person, the Exempt Threshold) to
be crossed is a transaction set forth in Section 13(a) hereof, then, promptly
following the first occurrence of such event, proper provisions shall be made so
that each holder of a Right (except as provided below and in Section 7(e)
hereof) shall thereafter have the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this Agreement, in
lieu of a number of one one-thousandths of a share of Preferred Stock, such
number of shares of Common Stock of the Company that equals the result obtained
by (x) multiplying the then current Purchase Price by the then number of one
one-thousandths of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y)
dividing that product (which, following such first occurrence, shall thereafter
be referred to as the "Purchase Price" for each Right and for all purposes of
this Agreement) by 50% of the current market price (determined pursuant to
Section 11(d) hereof) per share of Common Stock on the date of such occurrence
(such number of shares, the "Adjustment Shares").
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
duly executed and their respective corporate seals to be hereunto affixed and
attested as of the day and year first written above.
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OPEN MARKET, INC.
Attest:
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx XxXxxxx
--------------------------------------- -------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxxx XxXxxxx
Title: Chief Financial Officer Title: Chairman of the Board
and Chief Executive Officer
Seal
FLEET NATIONAL BANK
Attest:
/s/ Xxxx XxXxxxxxx By:/s/ Xxxxx Xxxxxx-Xxxx
-------------------------------------- ---------------------------------
Name: Xxxx XxXxxxxxx Name: Xxxxx Xxxxxx-Xxxx
Title: Account Manager Title: Directing Manager
Seal
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