Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (this "Amendment") to the Rights Agreement, originally
dated as of September 27, 1999 (the "Rights Agreement"), by and between DATA
RETURN CORPORATION, a Texas corporation (the "Company"), and MELLON INVESTOR
SERVICES LLC (formerly, ChaseMellon Shareholder Services, L.L.C.), a New Jersey
limited liability company, as Rights Agent (the "Rights Agent"), is made and
entered into by the Company and the Rights Agent as of October 26, 2001.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned such terms in the Rights Agreement.
WHEREAS, Section 27 of the Rights Agreement provides that at any time prior
to the Distribution Date and subject to the last sentence of Section 27, the
Company may by action of its Board of Directors supplement or amend any
provision of the Rights Agreement in any manner without the approval of any
holder of the Rights, and the Rights Agent shall, upon receipt of a certificate
from an appropriate officer of the Company which states the proposed supplement
or amendment is in compliance with the terms of Section 27 of the Rights
Agreement, execute such supplement or amendment;
WHEREAS, neither a Distribution Date nor a Shares Acquisition Date has
occurred;
WHEREAS, the Company desires to enter into an Agreement and Plan of Merger
with divine, inc., a Delaware corporation ("Parent") and TD Acquisition Corp., a
Texas corporation ("Merger Sub"); and
WHEREAS, the Board of Directors of the Company has determined that it is in
the best interests of the Company and its shareholders that the provisions of
the Rights Agreement be amended to exclude from certain definitions therein and
exempt from certain provisions thereof, the Parent and its affiliates (including
Merger Sub), and has directed the Rights Agent to effect this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein stated, the parties hereby agree as follows:
1. The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended to add the following sentence to the end of such
definition:
"Notwithstanding anything contained in this Agreement to the contrary, none
of divine, inc., a Delaware corporation ("divine"), TD Acquisition Corp., a
Texas corporation and wholly-owned subsidiary of divine ("TD Acquisition"), or
any Affiliate or Associate of any of them shall be deemed to be, or to have
become, an "Acquiring Person," either individually or collectively, by virtue of
(i) the execution, delivery and performance of that certain Agreement and Plan
of Merger, between divine, TD Acquisition and the Company, as it may be amended
from time to time (such agreement, as so amended, being herein called the
"divine Merger Agreement", (ii) the execution, delivery and performance of that
certain Shareholders Voting Agreement (the "divine Voting Agreement"), among
divine and certain shareholders of the Company, (iii) the execution, delivery
and performance of that certain Credit Agreement between divine and the
Company (the "divine Credit Agreement") or (iv) the consummation of the
transactions contemplated in the divine Merger Agreement, the divine Voting
Agreement or the divine Credit Agreement, including the Merger (as defined in
the divine Merger Agreement) or the conversion of outstanding Loans (as defined
in the Credit Agreement) and accrued and unpaid interest thereon into Common
Stock in accordance with the terms of the Credit Agreement (such approval,
execution, delivery, performance and consummation being referred to herein as
the "Permitted Events")."
2. The definition of Shares Acquisition Date in Section 1 of the Rights
Agreement is hereby amended by adding the following sentence to the end of such
definition:
"Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall not occur or be deemed to occur as a result of any
Permitted Event."
3. Section 3(b) of the Rights Agreement is hereby amended by adding the
following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not occur or be deemed to occur as a result of any Permitted Event."
4. If any term, provision, covenant or restriction of this Agreement 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 Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5. THIS AGREEMENT AND EACH RIGHT CERTIFICATE ISSUED HEREUNDER SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER LAWS OF THE STATE OF TEXAS AND 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; PROVIDED,
HOWEVER, THAT ALL PROVISIONS REGARDING THE RIGHTS, DUTIES AND OBLIGATIONS OF THE
RIGHTS AGENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
6. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
7. This Amendment shall be deemed effective as of the date first set forth
above and immediately prior to the execution of the divine Merger Agreement. 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.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
DATA RETURN CORPORATION
By: /s/ Sunny X. Xxxxxxxxxx
---------------------------------------
Name: Sunny X. Xxxxxxxxxx
-------------------
Title: Chairman and Chief Executive Officer
------------------------------------
MELLON INVESTOR SERVICES LLC (formerly,
ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------------
Title: Assistant Vice President
------------------------------------
