FIRST AMENDMENT
TO
RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT ("Amendment") is dated as of
March 4, 1999, and is entered into by and between Data Transmission Network
Corporation, a Delaware corporation ("DTN"), and First National Bank of Omaha
("Rights Agent").
RECITALS:
A. DTN and Rights Agent are all of the present parties to that certain
Rights Agreement dated as of August 29, 1997 (the "Agreement"). Capitalized
terms not defined in this Amendment shall have the meanings given to such
defined terms in the Agreement.
B. In accordance with the provisions of Section 27 of the Agreement,
the members of the Board of Directors of DTN (which also presently constitute
the Continuing Directors) have unanimously approved this Amendment, and the
Secretary of DTN has delivered to the Rights Agent a certificate to such effect
and has directed the Rights Agent to execute this Amendment as provided in the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth therein and herein, the parties hereto agree as follows:
1. Amendments to Agreement. (a) Effective immediately, Section 1(a) of
the Agreement is amended by deleting it in its entirety and inserting the
following in its place:
"(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the shares of
Common Stock then outstanding, but shall not include an Exempt Person
(as such term is hereinafter defined); provided, however, that (i) if
the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person" became such
inadvertently (including, without limitation, because (A) such Person
was unaware that it beneficially owned a percentage of Common Stock
that would otherwise cause such Person to be an "Acquiring Person" or
(B) such Person was aware of the extent of its Beneficial Ownership of
Common Stock but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement) and without any intention of
changing or influencing control of the Company, and if such Person as
promptly as practicable divested or divests itself of Beneficial
Ownership of a sufficient number of shares of Common Stock so that such
Person would no longer be an "Acquiring Person," then such Person shall
not be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement; and (ii) no Person shall become an
"Acquiring Person" as the result of an acquisition of shares of Common
Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares of Common
Stock beneficially owned by such Person to 15% or more of the shares of
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Common Stock then outstanding, provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding by reason of such share acquisitions by
the Company and shall thereafter become the Beneficial Owner of any
additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common
Stock in shares of Common Stock or pursuant to a split or subdivision
of the outstanding Common Stock), then such Person shall be deemed to
be an "Acquiring Person" unless upon becoming the Beneficial Owner of
such additional shares of Common Stock such Person does not
beneficially own 15% or more of the shares of Common Stock then
outstanding. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date hereof."
(b) Effective immediately, Section 1(q) of the Agreement is
amended by substituting the figure 15% in place of the figure 11%
contained therein.
(c) Effective immediately, Section 3(a) of the Agreement is
amended by substituting the figure 15% in place of the figure 11%
contained therein.
2. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of DTN and Rights Agent and their respective successors and
permitted assigns.
3. Superseding. From and after the date hereof, all references to the
Agreement shall mean the Agreement, as amended by this Amendment.
4. Confirmation. Except as otherwise expressly set forth in this
Amendment, the Agreement is hereby ratified and confirmed and remains in full
force and effect.
5. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
DATA TRANSMISSION NETWORK
CORPORATION
By:/s/ Greg T. Sloma
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Greg T. Sloma, President
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FIRST NATIONAL BANK OF OMAHA,
as Rights Agent
By: /s/ John E. Lenihan
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Title: Trust Officer
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