RIGHTS AGREEMENT AMENDMENT
AMENDMENT, dated as of July 18, 1999, to the Rights Agreement,
dated as of December 10, 1990 as amended (the "Rights Agreement"), between
CommNet Cellular Inc., a Colorado corporation, formerly Cellular, Inc. (the
"Company"), and State Street Bank and Trust Company, as successor to The Bank
of New York (the "Rights Agent").
The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement. Pursuant to Section 26 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 26
thereof. All acts and things necessary to make this Amendment a valid
agreement according to its terms have been done and performed, and the
execution and delivery of this Agreement by the Company and the Rights Agent
have been in all respects authorized by the Company and the Rights Agent.
In consideration of the foregoing premises and mutual agreements
set forth in the Rights Agreement and this Amendment, the parties hereto
agree as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended to read in its entirety as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 25% or more of
the Common Stock of the Company then outstanding, but shall not include (i)
the Company, (ii) any Subsidiary (as such term is hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or any Subsidiary of
the Company, (iv) any entity holding Common Stock for or pursuant to the
terms of any such plan, or (v) Pacific Telecom Cellular of Colorado, Inc., a
Colorado corporation ("Pacific Telecom")(together with any assignee thereof
pursuant to the Merger Agreement (as defined below)) and Vodafone Airtouch
Plc, a British corporation ("Vodafone" and together with Pacific Telecom,
"Acquiror") or any Affiliate thereof; provided, however, that Acquiror will
not be excepted from this definition of "Acquiring Person" in the event that
Acquiror becomes the Beneficial Owner of 25% or more of the Common Stock of
the Company then outstanding other than pursuant to the terms of the
Agreement and Plan of Merger, dated as of July 18, 1999 (the "Merger
Agreement"), between the Company, Pacific Telecom and Vodafone or the Voting
Agreement, dated as of July 18, 1999, between Vodafone and BCP CommNet L.P.
2. Section 3(a) of the Rights Agreement is hereby amended by
adding as the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely
as a result of (i) the approval, execution or delivery of the
Merger Agreement, or (ii) the consummation of the Merger (as
defined in the Merger Agreement)."
3. Section 11(a) of the Rights Agreement is hereby amended by
adding to the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, a
Section 11(a)(ii) Event shall not be deemed to have occurred
solely as a result of (i) the approval, execution or delivery
of the Merger Agreement, or (ii) the consummation of the
Merger (as defined in the Merger Agreement)."
4. Section 13(a) of the Rights Agreement is hereby amended by
adding as the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, a
Section 13 Event shall not be deemed to have occurred solely
as a result of (i) the approval, execution or delivery of the
Merger Agreement, or (ii) the consummation of the Merger (as
defined in the Merger Agreement)."
5. Except as expressly amended hereby, the Rights Agreement
remains in full force and effect in accordance with its terms.
6. The Rights Agreement, as amended by this Amendment, and each
Right and each Rights Certificate exist under and pursuant to the Colorado
Business Corporation Act.
7. This Amendment to the Rights Agreement shall be governed by
and construed in accordance with the laws of the State of Colorado.
8. This Amendment to the Rights Agreement may be executed in any
number of counterparts and 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.
9. Except as expressly set forth herein, this Amendment to the
Rights Agreement shall not by implication or otherwise alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to the Rights Agreement to be duly executed as of the day and year first
above written.
Attest: COMMNET CELLULAR INC.
By: /s/ James C. Everson By: /s/ Arnold C. Pohs
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Title: James C. Everson Title: Arnold C. Pohs
Secretary CEO
Attest: STATE STREET BANK AND TRUST COMPANY
By: /s/ Tina Goon By: /s/ Charles Rossi
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Title: Tina Goon Title: Charles Rossi
Account Manager Vice President
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