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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 3
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
P-COM, INC.
(Exact name of registrant as specified in charter)
Delaware 0-25356 77-0289371
(State of incorporation or organization) (Commission (IRS Employer
File Number) Identification No.)
3175 S. Winchester Boulevard, Campbell, CA 95008
(Address of principal executive offices)
Registrant's telephone number, including area code: (408) 866-3666
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
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On July 13, 1999 P-Com, Inc. (the "Company") amended its Amended and
Restated Rights Agreement, as previously amended through December 21, 1998 (the
"Rights Agreement"), in order to create an exception from the definition of
"Acquiring Person" for the State of Wisconsin Investment Board (the "Wisconsin
Board"), a state agency, but only to the extent that the Wisconsin Board's
beneficial ownership of the Common Stock of the Company does not at any time of
measurement exceed 19.99% of the then total outstanding shares of Common Stock
of the Company. The amendment to the Rights Agreement is attached hereto as
Exhibit 4.9 and is incorporated by reference herein.
Item 2. Exhibits.
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4.9 Amendment to Amended and Restated Rights Agreement.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
P-COM, INC.
DATE: August 21, 1999 By: /s/ Robert E. Collins
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Name: Robert E. Collins
Title: Chief Financial Officer
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EXHIBIT INDEX
Exhibit
Number Document Description
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4.9 Amendment to Amended and Restated Rights Agreement.
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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
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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."
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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/ Robert E. Collins
By: __________________________________
Robert E. Collins
Name:_____________________________
VP & CFO
Title:____________________________
ACKNOWLEDGED AND AGREED:
BANKBOSTON, N.A.
/s/ Margaret Prentice
By: ______________________________
Margaret Prentice
Name:_________________________
Administration Manager
Title:________________________
