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EXHIBIT 1
AMENDMENT NO. 1
TO THE
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of December 27,
1996, is between Digital Microwave Corporation, a Delaware corporation (the
"Company") and ChaseMellon Shareholder Services, L.L.C, as Rights Agent and as
successor to Manufacturers Hanover Trust Company of California (the "Rights
Agent").
WHEREAS, the Company entered into that certain Rights Agreement, dated
as of October 24, 1991 (the "Rights Agreement"), with Manufacturers Hanover
Trust Company of California, as Rights Agent and as predecessor to ChaseMellon
Shareholder Services, L.L.C.; and
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its stockholders to amend the
definition of Acquiring Person to provide that certain persons who report
beneficial ownership of Common Shares of the Company on Schedule 13G under the
Securities Exchange Act of 1934, as amended, shall not be deemed to be
Acquiring Persons for purposes of the Rights Agreement;
THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein have the
meaning set forth in the Rights Agreement, unless otherwise defined in this
Amendment.
ARTICLE II
AMENDMENT TO RIGHTS AGREEMENT
Section 2.1 Amendment.
(a) Section 1(a) of the Rights Agreement shall be amended to add the
following immediately following the first sentence thereof:
"Acquiring Person shall not include any Person who has reported
or is required to report beneficial ownership of Common Shares
on Schedule 13G under the Exchange Act (or any comparable or
successor report), but only so long as (x) such Person is
eligible to report such ownership on Schedule 13G under the
Exchange Act (or any comparable or successor report), (y) such
Person has not reported and is not required to report such
ownership on Schedule 13D under the Exchange Act (or any
comparable or successor report) and such Person does not hold
Company Common Shares on behalf of any other Person who is
required to report Beneficial Ownership of such Company Common
Shares on such Schedule 13D, and (z) such Person does not
beneficially own 20% or more of the Company Common Shares then
outstanding."
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ARTICLE III
MISCELLANEOUS
Section 3.1 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
Section 3.2 Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same agreement.
Section 3.3 Headings. The heading references herein are for
convenience purposes only, do not constitute a part of this Amendment and shall
not be deemed to limit or affect any of the provisions hereof.
Section 3.4 Construction. The terms of this Amendment shall prevail
over any conflicting provision of the Rights Agreement, but both instruments
shall otherwise be construed and interpreted as a single integrated agreement.
All references in the Rights Agreement to such "Agreement" shall be construed
as referring to the Rights Agreement as it has been amended hereby. The Rights
Agreement remains in full force and effect, in accordance with its terms and as
amended hereby, and there are no other amendments, understandings or agreements
except as set forth herein. Any terms or provisions of the Rights Agreement
that are inconsistent with or contrary to the terms and provisions of this
Amendment shall not be deemed to constitute a breach of the Rights Agreement.
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IN WITNESS WHEREOF, the parties have executed or caused this Amendment
to be executed as of the date first written above.
DIGITAL MICROWAVE CORPORATION
ATTEST:
By /s/ XXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
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Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Vice President, Chief Financial Chairman of the Board, Chief Executive
Officer and Secretary Officer and President
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent
ATTEST:
By /s/ XXXXX XXXX By /s/ XXX XXXX
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Xxxxx Xxxx Xxx Xxxx
Assistant Vice President Assistant Vice President
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