Exhibit 4.9
AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
AND CERTIFICATE OF COMPLIANCE WITH SECTION 27
THIS AMENDMENT (the "Amendment"), is entered into as of July 13, 1999,
by and between P-COM, INC., a Delaware corporation (the "Company"), and
BANKBOSTON, N.A., as Rights Agent (the "Rights Agent").
Recitals
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A. The Company and the Rights Agent are parties to an Amended and
Restated Rights Agreement, amended through December 21, 1998 (the "Rights
Agreement").
The State of Wisconsin Investment Board (the "Board") and the Company
have entered into a Common Stock PIPES Purchase Agreement made as of June 21,
1999 (the "Wisconsin Purchase Agreement"), pursuant to which the Board purchased
shares of the Company's Common Stock.
The Board of Directors of the Company has determined that an amendment
to the Rights Agreement as set forth herein is necessary and desirable to comply
with a covenant of the Company made in connection with the Wisconsin Purchase
Agreement and to reflect certain other matters and the Company and the Rights
Agent desire to evidence such amendment in writing.
Accordingly, the parties agree that:
1. Amendment to definition of "Acquiring Person" set forth in Section 1.
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The definition of "Acquiring Person" set forth in Section 1 of the Rights
Agreement is amended to read in its entirety as follows:
"Acquiring Person" shall mean (a) any Person (as such term is
hereinafter defined) other than the State of Wisconsin Investment Board who
or which Person, 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 15% or more of the shares of Common
Stock of the Company then outstanding, or (b) the State of Wisconsin
Investment Board (the "Permitted Investor") if it, together with all its
Affiliates and Associates, shall be the Beneficial Owner of more than
19.99% of the shares of Common Stock of the Company then outstanding; but
shall not include the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, or any entity
holding shares of Common Stock for or pursuant to the terms of any such
plan. Notwithstanding the foregoing:
(i) in determining whether a Person (or Affiliate or Associate of such
Person) shall be deemed to be an Acquiring Person, the following shares of
Common Stock shall not be counted: (A) shares of Common Stock that may be
deemed to be Beneficially Owned by a Person (hereinafter a "Preferred
Purchaser") as a result of entry into either of the Securities Purchase
Agreements (as amended), any of the transactions contemplated thereby or
the purchase of the Company's Series B Convertible Participating Preferred
Stock (the "Series B Preferred"), or warrants (as amended) to purchase
Common Stock (the "Preferred Warrants") issued, in each case, pursuant to
either of the Securities Purchase Agreements; (B) shares of Common Stock
that may be deemed to be Beneficially Owned by a transferee (to the extent
contemplated by either of the Securities Purchase Agreements) of a
Preferred Purchaser as a result of such transferee's ownership of shares of
Series B Preferred or Preferred Warrants; and (C) shares of Common Stock
that are Beneficially Owned by a Series B Purchaser (or such a transferee)
upon conversion/exchange or exercise of, respectively, the Series B
Preferred or the Warrants.
(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, (a) increases the proportionate
number of shares beneficially owned by such Person to 15% or more of the
shares of Common Stock of the Company then outstanding, or (b) in the case
of the Permitted Investor, increases the proportionate number of shares
beneficially owned by the Permitted Investor to more than 19.99% of the
shares of Common Stock of the Company then outstanding; provided, however,
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that if a Person shall become the Beneficial Owner of 15% or more (or, in
the case of the Permitted Investor, more than 19.99%) of the shares of
Common Stock of the Company then outstanding by reason of share purchases
by the Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional shares of Common Stock of the
Company, then such Person shall be deemed to be an "Acquiring Person"
hereunder; and
(iii) if the Board of Directors of the Company determines in
good faith that a Person who would otherwise be an "Acquiring Person" as
defined pursuant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so that such
Person would no longer be an "Acquiring Person" (as defined pursuant to the
foregoing provisions of this paragraph (a)), then such Person shall not be
deemed to be an "Acquiring Person" for any purpose of this Agreement."
2. Miscellaneous. This Amendment shall be deemed to be a contract made
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under the laws of the State of Delaware and for all purposes 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. This Amendment
may be executed in counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. If any term, provision, covenant or
restriction of this Amendment 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 Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
The undersigned officer of the Company, being an appropriate officer
of the Company and authorized to do so by resolution of the Board of Directors
of the Company dated as of July 13, 1999, hereby certifies to the Rights Agent
that this amendment is in compliance with the terms of Section 27 of the Rights
Agreement.
P-COM, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:_____________________________
VP & CFO
Title:____________________________
ACKNOWLEDGED AND AGREED:
BANKBOSTON, N.A.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ______________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:_________________________
Administration Manager
Title:________________________