EXHIBIT 4.7
AMENDMENT NO. 1 TO
AMENDED AND RESTATED PREFERRED SHARES RIGHTS AGREEMENT
Amendment No. 1 (the "AMENDMENT"), dated effective as of January 16,
2002, to the Amended and Restated Preferred Shares Rights Agreement (the "RIGHTS
AGREEMENT"), entered into as of March 31, 1997, and amended and restated in full
as of July 9, 1997, between Proxim, Inc., a Delaware corporation (the
"COMPANY"), and Fleet National Bank f/k/a The First National Bank of Boston, is
being executed at the direction of the Company.
WHEREAS, Fleet National Bank has resigned as Rights Agent under the
Rights Agreement;
WHEREAS, on January 15, 2002, the officers of the Company appointed
EquiServe Trust Company, N.A. as the new Rights Agent under the Rights
Agreement;
WHEREAS, on January 15, 2002, the officers of the Company changed
certain qualification requirements for a Rights Agent appointed under Section 21
of the Rights Agreement;
WHEREAS, the Company, Western Multiplex Corporation, a Delaware
corporation ("WESTERN MULTIPLEX"), and Walnut-Pine Merger Corp., a Delaware
corporation and wholly owned subsidiary of Western Multiplex ("MERGER SUB"),
intend to enter into an Agreement and Plan of Reorganization (the "MERGER
AGREEMENT") pursuant to which, among other things, Merger Sub will be merged
into the Company, and the Company will become a wholly-owned subsidiary of
Western Multiplex (the "MERGER");
WHEREAS, on January 15, 2002, the Board of Directors of the Company
resolved to amend the Rights Agreement to render the Rights inapplicable to the
Merger and the other transactions contemplated by the Merger Agreement (as
defined below); and
WHEREAS, Section 27 of the Rights Agreement permits the Company from
time to time to supplement and amend the Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants herein contained, the parties agree as follows:
1. Section 1(q) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"EXPIRATION DATE" shall mean the earliest to occur of: (i) the Close of
Business on the Final Expiration Date, (ii) the Redemption Date, (iii) the time
at which the Board of Directors orders the exchange of the Rights as provided in
Section 24 hereof, or (iv) upon the Effective Time (as such term in defined in
the Merger Agreement).
2. Section 1(cc) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"RIGHTS AGENT" shall mean EquiServe Trust Company, N.A. or its successor
or replacement as provided in Sections 19 and 21 hereof or any additional Person
appointed pursuant to Section 2 hereof.
3. Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of Section 1(a):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, neither Western Multiplex nor any of its Affiliates or
Associates shall be deemed an Acquiring Person and none of the Distribution
Date, Shares Acquisition Date, Section 13 Event or Triggering Event shall be
deemed to occur, in each such case, by the approval, execution, delivery or
performance of the Merger Agreement among Western Multiplex, Walnut-Pine Merger
Corp., a wholly owned subsidiary of Western Multiplex and the Company, the
Merger (as defined in the Merger Agreement) or the consummation of the other
transactions specifically contemplated by the Merger Agreement, including the
approval, execution, delivery or performance of the Proxim Voting Agreements (as
defined in the Merger Agreement) and the Irrevocable Proxies attached thereto,
each dated as of January 16, 2002 between Western Multiplex and certain
stockholders of the Company. No such event shall entitle or permit the holders
of the Rights to exercise the Rights or otherwise affect the rights of the
holders of Rights, including giving the holders of the Rights the right to
acquire securities of any party to the Merger Agreement."
3. Section 21 of the Agreement is hereby amended to read in its entirety
as follows:
"CHANGE OF RIGHTS AGENT. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Agreement upon thirty
(30) days' notice in writing mailed to the Company and to each transfer agent of
the Common Shares or Preferred shares by registered or certified mail and to the
holders of the Right Certificates by first-class mail. The Company may remove
the Rights Agent or any successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit such holder's Right Certificate for inspection by the
company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation or trust company organized and doing business under the
laws of the United States, in good standing, which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has
individually or combined with an affiliate at the time of its appointment as
Rights Agent a combined capital and surplus of at least $100 million dollars.
After appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Shares
or Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
-2-
4. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment, but shall remain in full force and effect. All
defined terms and definitions in the Agreement shall be the same in the
Amendment except as specifically revised by the Amendment. This Amendment may be
executed in one or more counterparts, all of which shall be considered one and
the same amendment and each of which shall be deemed an original.
5. This Amendment No. 1 shall be deemed a contract made 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.
[SIGNATURE PAGE TO FOLLOW]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
PROXIM, INC. FLEET NATIONAL BANK
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
------------------------------- -----------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
Title: Chairman and Title: Managing Director,
Chief Executive Officer Client Administration
EQUISERVE TRUST COMPANY, N.A.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
-----------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
Title: Managing Director,
Client Administration
-4-