Exhibit 4.1
AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
BETWEEN ADAPTIVE BROADBAND COPORATION AND
BANKBOSTON, N.A.
This Amendment to Amended and Restated Rights Agreement (the "Amendment")
is made as of November 12, 2000, by and between Adaptive Broadband Corporation,
a Delaware corporation (the "Company"), and BankBoston, N.A., a national banking
association company, as rights agent (the "Rights Agent").
Whereas, the Company is entering into an Agreement and Plan of Merger (as
the same may be amended from time to time, the "Merger Agreement") among the
Company, Western Multiplex Corporation, a Delaware corporation ("Parent"), and
WA Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent (the "Merger Sub"), pursuant to which Merger Sub will merge with and into
the Company, and the Company will survive as a wholly owned subsidiary of
Parent, and the former stockholders of the Company will receive shares of common
stock of Parent;
Whereas, the Company and the Rights Agent are parties to that certain
Amended and Restated Rights Agreement, dated as of February 10, 2000 (the
"Rights Agreement");
Whereas, the Company desires to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement; and
Whereas, the Board of Directors of the Company has approved this Amendment
and authorized its appropriate officers to execute and deliver the same to the
Rights Agent.
Now, Therefore, in accordance with the procedures for amendment of the
Rights Agreement set forth in Section 27 thereof, and in consideration of the
foregoing and the mutual agreements herein set forth, the parties hereby agree
as follows:
1. Capitalized terms that are not otherwise defined herein shall have the
meanings ascribed to them in the Rights Agreement.
2. The definition of "Acquiring Person" set forth in Section 1(a) of the
Rights Agreement is amended by adding the following sentence to the end of that
section:
Notwithstanding the foregoing, no Person shall be or become an
Acquiring Person by reason of (i) the execution and delivery of the
Agreement and Plan of Merger, dated as of November 12, 2000, among Western
Multiplex Corporation, a Delaware corporation ("Parent"), WA Merger Sub,
Inc., a Delaware corporation and a wholly owned subsidiary
1.
of Parent ("Merger Sub") and the Company (the "Merger Agreement") or the
execution of any amendment thereto, (ii) the execution and delivery of
the Stock Option Agreements (as such term is defined in the Merger
Agreement) or the execution of any amendment thereto, (iii) the execution
and delivery of the WMC Holding Voting Agreement (as such term is defined
in the Merger Agreement) or the execution of any amendment thereto, (iv)
the merger of Merger Sub with and into the Company, or (v) the
consummation of any other transaction contemplated by the Merger
Agreement, as it may be amended from time to time.
3. The definition of "Shares Acquisition Date" in Section l(n) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that section:
Notwithstanding anything else set forth in this Agreement, a Shares
Acquisition Date shall not be deemed to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement, (ii) the
execution and delivery or amendment of the Stock Option Agreements, (iii)
the execution and delivery or amendment of the WMC Holding Voting
Agreement, (iv) the merger of Merger Sub with and into the Company, or (v)
the consummation of any other transaction contemplated by the Merger
Agreement.
4. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, no
Distribution Date shall be deemed to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement, (ii) the
execution and delivery or amendment of the Stock Option Agreements, (iii)
the execution and delivery or amendment of the Voting Agreement of the
WMC Holding Voting Agreement, (iv) the merger of Merger Sub with and into
the Company, or (v) the consummation of any other transaction
contemplated by the Merger Agreement.
5. Clause (i) of Section 7(a) of the Rights Agreement is hereby amended to
delete the phrase "(the "Final Expiration Date")" so that it shall read as
follows:
(i) the Close of Business on June 30, 2007,
6. Section 7(a) of the Rights Agreement is further amended: (A) by
deleting the word "or" at the end of clause (iii) of Section 7(a), (B) by
inserting a comma after the word "hereof" at the end of clause (iii) of
Section 7(a), (C) by deleting the period at the end of clause (iv) of Section
7(a) and (D) and by adding the following clause at the end of Section 7(a):
, or (v) the moment in time immediately prior to the Effective Time
(as such term is defined in the Merger Agreement) (the earliest to occur of
the events described in clauses (i) and (v) of this section shall be
referred to as the "Final Expiration Date").
7. Section 11(a)(ii) of the Rights Agreement is hereby amended by adding
the following sentence to the end of that section:
2.
Notwithstanding anything else set forth in this Agreement, no event
requiring an adjustment under this Section 11(a)(ii) shall be deemed to
have occurred by reason of (i) the execution and delivery or amendment of
the Merger Agreement, (ii) the execution and delivery or amendment of the
Stock Option Agreements, (iii) the execution and delivery or amendment of
the Voting Agreement of the WMC Holding Voting Agreement, (iv) the merger
of Merger Sub with and into the Company, or (v) the consummation of any
other transaction contemplated by the Merger Agreement.
8. The language of Section 13(a) of the Rights Agreement prior to clause
(z) thereof is hereby amended to read as follows:
(a) In the event that, following the Shares Acquisition Date or, if a
Transaction is proposed, the Distribution Date, directly or indirectly (x)
the Company shall consolidate with, or merge with and into, any Interested
Stockholder, or if in such merger or consolidation all holders of Common
Stock are not treated alike, any other Person, (y) any Interested
Stockholder, or if in such merger or consolidation all holders of Common
Stock are not treated alike, any other Person shall consolidate with the
Company, or merge with and into the Company, and the Company shall be the
continuing or surviving corporation of such merger (other than, in the case
of either transaction described in (x) or (y), (i) a merger or
consolidation which would result in all of the voting power represented by
the securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into securities of the surviving entity) all of the voting power
represented by the securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and the holders
of such securities not having changes as a result of such merger or
consolidation or (ii) the merger of Merger Sub with and into the Company),
or
The remaining portion of Section 13(c) of the Rights Agreement shall be
unchanged and shall remain in full force and effect.
9. The first phrase of Section 13(c) of the Rights Agreement is hereby
amended to read as follows:
The Company shall not consummate any such consolidation, merger (other
than the merger of Merger Sub with and into the Company), sale or transfer
unless the Principal Party shall have a sufficient number of authorized
shares of its Common Shares that have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with
this Section 13, and unless prior thereto the Company and each Principal
Party and each other Person who may become a Principal Party as a result of
such consolidation, merger, sale or transfer shall have (i) executed and
delivered to the Rights Agent a supplemental agreement provided for the
terms set forth in paragraphs (a) and (b) of this Section 13 and (ii)
prepared, filed and had declared and remain effective a registration
statement under the Act on the appropriate form with respect to the Rights
and the securities exercisable upon the exercise of the Rights and further
providing that, as soon as practicable after the date of any consolidation,
merger,
3.
sale or transfer of assets mentioned in paragraph (a) of this Section 13,
the Principal Party at its own expense will:
The remaining portion of Section 13(c) of the Rights Agreement shall be
unchanged and shall remain in full force and effect.
10. Clause (ii) of Section 13(d) of the Rights Agreement is hereby
amended to read as follows:
(ii) merge with or into (other than by the merger of Merger Sub with
and into the Company),
11. Clause (iv) of Section 25(a) of the Rights Agreement is hereby
amended to read as follows:
(iv) to effect any consolidation or merger into or with (other than
the merger of Merger Sub with and into the Company), or to effect any sale
or other transfer (or to permit one or more of its Subsidiary to effect any
sale or other transfer), in one or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiary (taken as a
whole), to any other person,
12. The Rights Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms.
13. All the covenants and provisions of this Amendment by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
14. Nothing in this Amendment shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the Common Shares)
any legal or equitable right, remedy or claim under this Amendment; but this
Amendment shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Shares).
15. 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.
16. This Amendment shall be deemed to be 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.
17. This Amendment may be executed in any number of counterparts and
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.
4.
18. The Company hereby certifies to the Rights Agent that this Amendment
is in compliance with Section 27 of the Rights Agreement and that it will
notify the Rights Agent in writing of the occurrence of the Effective Time.
5.
In Witness Whereof, the parties herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
ADAPTIVE BROADBAND CORPORATION
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
Executive Vice President and Chief
Financial Officer
Attest:
/s/ Xxxxxxx X. Xxxx
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XXXXXXX X. XXXX
Secretary
BankBoston, N.A.
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
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Title: Senior Account Manager
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6.
