Exhibit 4.1
RIGHTS AGREEMENT AMENDMENT
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AMENDMENT, dated as of May 27, 1997, 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) AV Acquisition Corp., a Delaware corporation (together with any assignee
thereof pursuant to the Merger Agreement (as defined below), Blackstone
Management Associates II L.L.C. or any Affiliate thereof ("AV Acquisition");
provided, however, that AV Acquisition will not be excepted from this definition
of "Acquiring Person" in the event that AV Acquisition 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 May
27, 1997 (the "Merger Agreement"), between the Company and AV Acquisition.
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.
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/ Xxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
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Title: General Counsel Title: President
Attest: STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
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Title: Senior Client Administrator Title: Managing Director
