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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Amendment No. 2
METROCALL, INC.
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(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
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(Title of Class of Securities)
591647102
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(CUSIP Number)
ROBERT S. FEIT, ESQ.
ASSISTANT SECRETARY
AT&T CORP.
295 NORTH MAPLE AVENUE
BASKING RIDGE, N.J. 07920
(908) 221-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
MARCH 17, 2000
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box: [ ].
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 591647102 Page 2 of 7 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
AT&T CORP.
I.R.S. IDENTIFICATION NO. 13-4924710
AT&T WIRELESS SERVICES, INC. (ITS WHOLLY-OWNED SUBSIDIARY)
I.R.S. IDENTIFICATION NO. 91-1379052
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY [ ]
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE ORGANIZATION
AT&T CORP.: NEW YORK
AT&T WIRELESS SERVICES, INC.: DELAWARE
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7 SOLE VOTING POWER
NUMBER OF -0-
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SHARES 8 SHARED VOTING POWER
13,250,000
BENEFICIALLY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
OWNED BY EACH -0-
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REPORTING PERSON 10 SHARED DISPOSITIVE POWER
13,250,000
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,250,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.5%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE>
This Amendment No. 2 amends the Statement on Schedule 13D relating to
shares of Common Stock, $.01 par value ("Common Stock"), of Metrocall, Inc., a
Delaware corporation (the "Issuer"), that was filed on February 14, 2000 by AT&T
Corp., a New York corporation ("AT&T"), and its wholly-owned subsidiary, AT&T
Wireless Services, Inc., a Delaware corporation ("Wireless") (collectively, the
"Reporting Persons"), as amended by Amendment No. 1 thereto filed by the
Reporting Persons on February 28, 2000.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 2, 2000, Wireless and the Issuer entered into a Securities
Exchange Agreement (the "Exchange Agreement") pursuant to which Wireless agreed
to exchange 10,378 shares of Series C Convertible Preferred Stock of the Issuer
(the "Series C Shares") for certain securities of the Issuer. The closing under
the Exchange Agreement occurred on March 17, 2000, at which the Issuer issued
13,250,000 shares of Common Stock (the "Wireless Shares") to Wireless in
exchange for the Series C Shares.
McCaw Communications Companies, Inc., a Washington corporation wholly
owned by Wireless ("McCaw"), acquired 9,500 of the Series C Shares from the
Issuer on October 1, 1998, in partial consideration of the sale to the Issuer of
the Messaging Division of Wireless. The remaining Series C Shares were issued in
lieu of dividends payable on the Series C Convertible Preferred Stock.
Subsequent to the sale of the Messaging Division, McCaw transferred all of the
Series D Shares held by it to Wireless in an intercompany transfer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Wireless is the beneficial owner of the Wireless Shares. The Issuer
has reported that the Wireless Shares represent approximately 16.5% of the total
number of shares of Common Stock issued and outstanding following their
issuance. AT&T, as the parent of Wireless, may be deemed to beneficially own the
Wireless Shares. To the knowledge of the Reporting Persons, none of the persons
listed on Schedule I or Schedule II hereto beneficially owns any shares of
Common Stock or other securities of the Issuer.
(b) Wireless and AT&T, as its parent, share the power to vote or to
direct the voting of, and the power to dispose of, or to direct the disposition
of, the Wireless Shares. Under the Exchange Agreement, Wireless has delivered to
the Issuer a proxy for the Wireless Shares. See Item 6.
(c) Except as otherwise set forth herein, neither Reporting Person nor,
to the knowledge of the Reporting Persons, any of the persons listed on Schedule
I or Schedule II hereto, has executed transactions in the Common Stock during
the past 60 days.
(d) Except for the Reporting Persons, there is no person that has the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the Wireless Shares.
(e) Not applicable.
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Under the Exchange Agreement, Wireless has agreed not to sell, transfer
or otherwise dispose of any of the Wireless Shares, except as follows:
(a) Wireless may sell all or any portion of the Wireless Shares at any
time or times after September 17, 2000 in one or more privately negotiated sales
to any person or group that is not a "Restricted Person," so long as Wireless
and the transferee comply with the following:
(i) Prior to consummating any such sale, Wireless must give written
notice to the Issuer specifying the number of Wireless Shares that
Wireless desires to sell. For a period of five business days following
such notice, the Issuer will have the exclusive right to negotiate with
Wireless with respect to the purchase of such Wireless Shares by the
Issuer or its nominee. Wireless will have the right to reject any offer
made by the Issuer or its nominee during such period. If no such offer
is made and accepted prior to the expiration of such period, Wireless
will have the right for a period of three months following expiration
of such period to offer and sell such Wireless Shares on such terms and
conditions as shall be acceptable to Wireless.
(ii) The transferee of such Wireless Shares must consent in writing
to be bound by the provisions of the Exchange Agreement. The term
"Restricted Person" generally means (A) any entity with annual revenues
in excess of $500 million and a market capitalization of $500 million
that is principally engaged in the business of providing
telecommunications services, and (B) any beneficial owner of 5% or more
of the issued and outstanding Common Stock (other than certain
beneficial owners that report such holdings on Schedule 13G), or $25
million or more in principal amount of the outstanding debt, of Arch
Communications Group, Inc., Weblink Wireless, Inc., Paging Network,
Inc. or any entity described in the preceding clause (A).
(b) At any time or times after March 17, 2001, Wireless may
make a public sale of all or any portion of the Wireless Shares,
subject to the following:
(i) The aggregate number of shares of Common Stock sold during each
period shown in the following table (a "Period") cannot exceed the sum
of (A) the number of shares indicated in the table for that Period,
plus (B) the number of shares that could have been but were not
publicly sold during any prior Period (the number of shares determined
by such sum for any Period is referred to as the "Permitted Period
Shares"):
Period (after 3/17/2000) Permitted Sales
12 months - 18 months 2,650,000 shares
18 months - 24 months 2,650,000 shares
24 months - 30 months 2,650,000 shares
After 30 months 5,300,000 shares
(ii) Prior to making any such sale in any Period, Wireless must
notify the Issuer of its intention to do so. For a period of five
<PAGE>
business days following such notice, the Issuer will have the option to
conduct an underwritten offering of all of the Permitted Period Shares
pursuant to a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"). The number of shares to be included
in the registration statement may be reduced to the extent that the
managing underwriter determines that inclusion of the shares would
adversely affect the marketing of the offering, but the reduction must
apply first to any persons other than Wireless whose shares are to be
included in such registration.
(c) Wireless may sell, transfer or otherwise dispose of all or
any portion of the Wireless Shares pursuant to a tender offer, merger,
sale of all or substantially all the Issuer's assets or any similar
transaction that offers each holder of Common Stock (other than, if
applicable, the person proposing such transaction and its affiliates)
the opportunity to dispose of Common Stock for the same consideration
or otherwise contemplates the acquisition of Common Stock beneficially
owned by each such holder for the same consideration.
(d) Wireless may sell, transfer or otherwise dispose of all or
any portion of the Wireless Shares upon the occurrence of a change of
control which causes the holder and/or its affiliates to receive an
attributable interest in any radio spectrum or FCC service with respect
to which the FCC or applicable law imposes a spectrum cap, multiple
ownership restriction, or other material limitation.
Pursuant to the Exchange Agreement, Wireless has delivered to the
Issuer an irrevocable proxy (the "Irrevocable Proxy") granting the Issuer full
power and authority, until March 17, 2001, to vote all the Wireless Shares in
accordance with the recommendation of the Board of Directors of the Issuer.
Wireless and the Issuer have entered into a Registration Rights
Agreement under which the Issuer has agreed (a) to file, on or before September
13, 2000, a shelf registration statement under the Securities Act for resale of
the Wireless Shares, and (b) to use all its reasonable efforts to cause the
registration statement to become effective promptly following filing and to
maintain the effectiveness of the registration statement until all of the
Wireless Shares have either been sold or are eligible for resale under Rule 144
under the Securities Act without regard to the volume limitations of Rule
144(e).
The summary of the Exchange Agreement, the Irrevocable Proxy and the
Registration Rights Agreement contained in this Schedule 13D is qualified in its
entirety by reference to the text of such documents, which are filed as exhibits
hereto and are hereby incorporated by reference herein in their entirety.
Except as set forth in this Schedule 13D, to the knowledge of the
Reporting Persons, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 or listed
on Schedule I or Schedule II hereto, and between such persons and any person
with respect to any securities of the Issuer, including but not limited to,
transfer or voting of any of the securities of the Issuer, joint ventures, loan
or option arrangements, puts or calls, guarantees or profits, division of
profits or loss, or the giving or withholding of proxies, or a pledge or
contingency the occurrence of which would give another person voting power over
the securities of the Issuer.
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Securities Exchange Agreement dated as of February 2, 2000 between
Metrocall, Inc. and AT&T Wireless Services, Inc. (previously filed).
2. Joint Filing Agreement dated as of February 14, 2000 between AT&T
Corp. and AT&T Wireless Services, Inc. (previously filed).
3. Irrevocable Proxy of AT&T Wireless Services, Inc. dated March 17,
2000.
4. Registration Rights Agreement dated as of March 17, 2000 between
Metrocall, Inc., AT&T Wireless Services, Inc. and McCaw Communications
Companies, Inc.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: March 28, 2000
AT&T CORP.
By: AT&T WIRELESS SERVICES, INC.,
Attorney-in-Fact
By: /s/ William W. Hague
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Name: William W. Hague
Title: Authorized Signatory
AT&T WIRELESS SERVICES, INC.
By: /s/ William W. Hague
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Name: William W. Hague
Title: Authorized Signatory
<PAGE>
INDEX OF EXHIBITS
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3. Irrevocable Proxy of AT&T Wireless Services, Inc. dated March 17,
2000.
4. Registration Rights Agreement dated as of March 17, 2000 between
Metrocall, Inc., AT&T Wireless Services, Inc. and McCaw Communications
Companies, Inc.
EXHIBIT 3
IRREVOCABLE PROXY
The undersigned stockholder of Metrocall, Inc., a Delaware corporation
(the "Company"), hereby revokes all previous proxies, if any, granted with
respect to any shares of common stock of the Company owned by the undersigned,
and hereby irrevocably constitutes and appoints the Company, with full power of
substitution, its true and lawful proxy and attorney-in-fact with respect to
13,250,000 shares of common stock of the Company now owned, beneficially and of
record, by the undersigned (the "Shares"), with full power to vote all of the
Shares in accordance with the recommendation of the Company's Board of Directors
on all matters to which the undersigned is entitled to vote by virtue of its
being a stockholder of the Company for a period (the "Period") ending on the
first (1st) anniversary of the date hereof, to attend any and all meetings of
the stockholders of the Company and any adjournments thereof, to execute any and
all written consents of stockholders of the Company with respect to such
matters, and to represent and otherwise act as the undersigned could act with
respect to such matters, in the same manner and with the same effect as if the
undersigned were personally present, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment thereof, or pursuant to
any written consent in lieu of meeting or otherwise.
During the Period, the undersigned agrees that it will not vote the
Shares or take any action with respect to the Shares by written consent of
stockholders in lieu of meeting on any matter which is subject to this
Irrevocable Proxy without the prior written consent of the Company.
THE UNDERSIGNED AGREES THAT THE PROXY AND ALL OTHER POWER AND AUTHORITY
INTENDED TO BE CONFERRED HEREBY IS COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO
SUPPORT AN IRREVOCABLE PROXY AND SHALL NOT BE TERMINATED BY ANY ACT OF THE
UNDERSIGNED, BY LACK OF APPROPRIATE POWER OR AUTHORITY OR BY THE OCCURRENCE OF
ANY OTHER EVENT OR EVENTS.
This Irrevocable Proxy and all of the power and authority conferred
hereby, shall automatically terminate at the end of the Period.
Dated: March 17, 2000.
AT&T WIRELESS SERVICES, INC.
By: /s/ Michael C. Schwartz
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Name: Michael C. Schwartz
Title: Authorized Signatory
EXHIBIT 4
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of March 17, 2000, by and among METROCALL, INC.,
a Delaware corporation (the "Company"), AT&T WIRELESS SERVICES, INC., a Delaware
corporation ("Wireless"), and McCAW COMMUNICATIONS COMPANIES, INC., a Delaware
corporation ("McCaw").
RECITALS
WHEREAS, Wireless is the record and beneficial owner of 10,378 shares
of the Company's Series C Convertible Preferred Stock, a portion of which it
received as assignee of McCaw;
WHEREAS, the Company and McCaw are parties to that certain Registration
Rights Agreement dated as of October 1, 1998 (the "Registration Rights
Agreement");
WHEREAS, the Company and Wireless are parties to that certain
Securities Exchange Agreement, dated as of February 2, 2000 (the "Securities
Exchange Agreement"), pursuant to which Wireless will exchange (the "Exchange")
all of its shares of the Series C Convertible Preferred Stock (the "Series C
Shares") of the Company for shares of Common Stock, $.01 par value of the
Company (the "Common Shares") and, if applicable, shares of Series D Non-Voting
Participating Convertible Preferred Stock (the "Series D Shares"); and
WHEREAS, pursuant to the Securities Exchange Agreement, the Company and
Wireless have agreed to amend and restate the Registration Rights Agreement to
provide that the Company will register the Common Shares and the shares of
Common Stock into which the Series D Shares are converted, upon the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 "Closing" means the closing of the Exchange pursuant to which the
Company will have issued the Common Shares and, if applicable, the Series D
Shares in accordance with the Securities Exchange Agreement.
1.02 "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
<PAGE>
1.03 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
1.04 "Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any court, panel, judge, board,
bureau, commission, agency or other entity, body or other Person exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
1.05 "Holder" means Wireless and each transferee permitted pursuant to
Section 6.04(a) of this Agreement that has become a party to this Agreement as
provided in Section 6.04(a).
1.06 "Person" means an individual or corporation, partnership, trust,
unincorporated organization, association or other entity and includes any
Governmental Authority.
1.07 "Registrable Securities" means (a) the Common Shares received by
Wireless from the Company pursuant to the Securities Exchange Agreement, (b) any
shares of Common Stock issued to Wireless upon conversion of Series D Shares,
and (c) any other shares of Common Stock or other securities issued with respect
to any of the shares described in the foregoing clauses (a) or (b) or this
clause (c) pursuant to any stock dividend, stock split, recapitalization or
similar event; provided, however, that any Registrable Security will cease to be
a Registrable Security when (i) such Registrable Security has been transferred
pursuant to an effective registration statement under the Securities Act
covering such Registrable Security (but not including any transfer exempt from
registration under the Securities Act), (ii) such Registrable Security is no
longer held of record by a Holder, or (iii) the Holder of such Registrable
Security is then able to use Rule 144 of the Securities Act (or any successor
provision) to transfer such Registrable Security without registration under the
Securities Act and without regard to the volume limitations under Rule 144(e).
1.08 "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
1.09 "Shares" means shares of the Registrable Securities.
<PAGE>
ARTICLE II
REGISTRATION RIGHTS
The Company shall file registration statements (each a "Registration
Statement") under the Securities Act with respect to the Registrable Securities
as provided in this Article II.
2.01 Shelf Registration.
(a) The Company shall prepare and file with the Commission a
Registration Statement under the Securities Act (the "Shelf Registration
Statement") for the resale of the Registrable Securities, including but not
limited to the shares of Common Stock issuable upon conversion of Series D
Shares that have not yet been converted, and shall use all its reasonable
efforts to cause the Shelf Registration Statement to become effective promptly
after filing. The Shelf Registration Statement shall be filed with the
Commission within one hundred eighty (180) days of the Closing.
(b) Except as provided in Section 2.01(c), the Company shall
use all its reasonable efforts to maintain the effectiveness of the Shelf
Registration Statement filed pursuant to this Section 2.01 until such time as
all Series D Shares have been converted into shares of Common Stock and either
(i) all Shares registered pursuant to the Shelf Registration Statement have been
transferred pursuant to the Shelf Registration Statement, or (ii) no more
Registrable Securities remain outstanding.
(c) The obligations of the Company under this Section 2.01 are
subject to the condition that the Company shall be entitled to require each
Holder to suspend for up to ninety (90) days, once in any twelve month period
after the Shelf Registration Statement has become effective, the sale of Shares
pursuant to the Shelf Registration Statement if and for so long as (i) the Board
of Directors of the Company determines, in its reasonable judgment, that the
sale of Shares pursuant thereto would materially interfere with any material
financing, acquisition, corporate reorganization or other material transaction
by the Company, (ii) the Company promptly gives each Holder of Shares written
notice of such determination, and (iii) all other shareholders of the Company
holding registration rights shall also be subject to the same suspension. The
Company shall have no obligation to maintain the effectiveness of the Shelf
Registration Statement with respect to the Shares during periods when each
Holder is required to suspend the sale of such Shares as provided in this
Section 2.01(c). As soon as practicable after the expiration of such periods,
the Company shall amend the Shelf Registration Statement as necessary to permit
each Holder to sell Shares pursuant to the Shelf Registration Statement.
2.02 Underwritten Offering. This Section 2.02 shall apply to any
underwritten offering of Permitted Period Shares (as defined in the Securities
Exchange Agreement) that the Company makes an election (the "Election") to
conduct pursuant to Section 3.3(b) of the Securities Exchange Agreement.
(a) Promptly following the Election, the Company shall use its
best efforts to register the Permitted Period Shares (subject to any cutback in
the number of such shares permitted under the terms of the Securities Exchange
<PAGE>
Agreement) under the Securities Act, for public sale in a firm commitment
underwritten secondary offering. The Company shall have the right to designate
the managing underwriter of any such offering subject to the consent of the
Holder or Holders of the Permitted Period Shares, which consent shall not be
unreasonably withheld.
(b) The Company shall be entitled to include in any
Registration Statement under this Section 2.02 (each an "Underwritten
Registration Statement"), for sale in the underwritten offering, shares of
Common Stock to be sold by the Company for its own account or for the account of
every other Person, except as and to the extent that, in the opinion of the
managing underwriter, such inclusion would adversely affect the marketing of the
shares to be sold.
ARTICLE III
REGISTRATION PROCEDURES
3.01 Company Obligations. Following the Closing, the Company will:
(a) furnish to each Holder, prior to the filing of any
Registration Statement, or any prospectus, amendment or supplement thereto,
copies of each such document as proposed to be filed, which documents will be
subject to the reasonable review and comments of each Holder (and its legal
counsel), and the Company will not file the Registration Statement, any
prospectus or any amendment or supplement thereto to which a Holder shall
reasonably object in writing; and thereafter furnish to each Holder such number
of copies of such Registration Statement, each amendment and supplement thereto
(including any exhibits thereto), the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other documents as
the Holder may reasonably request in writing in order to facilitate the
disposition of the Shares registered pursuant to such Registration Statement;
provided, however, that the obligation of the Company to deliver copies of
prospectuses or preliminary prospectuses to each Holder shall be subject to the
receipt by the Company of reasonable assurances from the Holder that the Holder
will comply with the applicable provisions of the Securities Act and of such
other securities or blue sky laws as may be applicable in connection with any
use of such prospectuses or preliminary prospectuses;
(b) use its best efforts to register or qualify the Shares
registered pursuant to such Registration Statement under such other securities
or blue sky laws of such jurisdictions as any Holder may reasonably request and
do any and all other acts and things which may be reasonably necessary to enable
the Holder to consummate the disposition in such jurisdictions of such Shares;
provided, however, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(c) apply, prior to or concurrently with the filing of the
Registration Statement, to the Nasdaq SmallCap Market System (or, if the Company
is not listed on the Nasdaq SmallCap Market System, any other over-the-counter
market or exchange on which the
<PAGE>
Company's Common Stock is then traded or listed) for the listing of the Shares
and use its best effort to obtain the listing of such Shares;
(d) notify each Holder in writing, at any time when a
prospectus relating to the Shares registered pursuant to such Registration
Statement is required to be delivered under the Securities Act, of the
occurrence of each event requiring the preparation of a supplement or amendment
to such prospectus or filing of a report to be incorporated in the prospectus by
reference so that, as thereafter delivered to the purchasers of such Shares,
such prospectus (including documents incorporated therein by reference) will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and promptly prepare, file with the Commission and make
available to each Holder any such supplement, amendment or report incorporated
in the prospectus by reference, including, without limitation, after any period
or suspension referred to in Section 2.01(c);
(e) make available for inspection by each Holder of Shares to
be registered pursuant to the Registration Statement and any attorney,
accountant or other professional retained thereby (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Inspectors in connection
with such Registration Statement; provided, that the Company shall not be
required to make such information available to more than one law firm on behalf
of all Holders of Shares to be registered pursuant to the Registration
Statement. Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors in writing are confidential
shall not be disclosed by the Inspectors unless (i) in the judgment of counsel
to the Company the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) the information in such Records is generally
available to the public. As a condition of receiving access to such confidential
information described in clause (i) or (ii) of the preceding sentence, each
Holder of such Shares shall agree that such confidential information obtained by
it as a result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of the
Company unless and until such information is made generally available to the
public, it being understood that nothing in this sentence shall reduce the
Company's obligations hereunder, including under Section 3.01(d). Each Holder
further shall agree that it will, upon learning that disclosure of such Records
from the Holder is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at its expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential;
(f) make generally available to the Holders earnings
statements, which need not be audited, satisfying the provisions of Section
11(a) of the Securities Act no later than forty-five days after the end of the
twelve-month period beginning with the first month of the first fiscal quarter
commencing after the effective date of the Registration Statement, which
earnings statements shall cover said twelve-month period;
<PAGE>
(g) promptly notify each Holder of the issuance or threatened
issuance of any stop order or other order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any preliminary
prospectus, prospectus or prospectus supplement, use reasonable efforts to
prevent the issuance of any such threatened stop order or other order, and, if
any such order is issued, use all its reasonable efforts to obtain the lifting
or withdrawal of such order at the earliest possible moment and promptly notify
the Holder of any such lifting or withdrawal;
(h) if requested by any Holder, the Company will promptly
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information concerning such Holder and such Holder's
intended method of distribution as such Holder requests to be included therein
(and which is not violative of an applicable law, rule or regulation, in the
reasonable judgment of the Company, after consultation with its outside legal
counsel), including, without limitation, with respect to any change in the
intended method of distribution, the amount or kind of Shares being offered by
such Holder, the offering price for such Shares or any other terms of the
offering or distribution of the Shares, and the Company will make all required
filings of such prospectus supplement or post-effective amendment as soon as
possible after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(i) obtain consents from its independent public accountants in
customary form as required to obtain and maintain effectiveness of the
Registration Statement, and in connection with its obligations under Section
2.02, obtain a "cold comfort" letter from such accountants in customary form;
(j) obtain an opinion or opinions from its counsel in
customary form and reasonably satisfactory to the Holders and their respective
legal counsel;
(k) in an underwritten offering, make available its management
personnel for meetings with potential purchasers and "road shows" for a period
of not more than seven consecutive business days;
(l) as promptly as practicable after the filing with the
Commission of any document which is incorporated by reference into the
Registration Statement, notify each Holder of such filing and deliver a copy of
such document to the Holder;
(m) cooperate with each Holder to facilitate the timely
preparation and delivery of certificates, not bearing any restrictive legends,
unless otherwise required by the Holder, representing the Shares to be sold
under the Registration Statement, and enable such Shares to be in such
denominations and registered in such names as such Holder may request;
(n) cooperate with each Holder, its legal counsel and any
other interested party (including any interested broker-dealer) in making any
filings or submissions required to be made, and the furnishing of all
appropriate information in connection therewith, with the NASD;
<PAGE>
(o) cause its subsidiaries to take all action necessary to
effect the registration of the Shares contemplated hereby, including preparing
and filing any required financial or other information;
(p) make available to the transfer agent for each class or
series of Shares a supply of certificates or other instruments evidencing or
constituting such Shares which shall be in a form complying with the
requirements of such transfer agent, promptly after a registration thereof; and
(q) use all its reasonable efforts to keep each such
registration or qualification effective, including through new filings,
amendments or renewals, during the period the Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable in connection with such registration or qualifications in
all jurisdictions in which qualification or registration is necessary.
3.02 Information from Holder. The Company may require each Holder to
promptly furnish in writing to the Company such information regarding the
distribution of the Shares as it may from time to time reasonably request and
such other information as may be legally required in connection with such
registration.
3.03 Suspension of Sales. Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection 3.01(d) hereof, it will immediately discontinue disposition of Shares
pursuant to the Registration Statement until it receives copies of the
supplemented or amended prospectus contemplated by subsection 3.01(d) hereof,
and, if so directed by the Company, the Holder will deliver to the Company all
copies, other than permanent file copies then in their possession, of the most
recent prospectus (including any prospectus supplement) covering such Shares at
the time of receipt of such notice or destroy all such copies.
ARTICLE IV
REGISTRATION EXPENSES
4.01 Except as provided in Section 4.02, all fees and expenses incident
to the Company's performance of or compliance with this Agreement shall be borne
by the Company, including, without limitation, the following fees and expenses:
(a) all Commission, National Association of Securities Dealers, Inc., stock
exchange or other registration and filing fees and listing fees; (b) the fees
and expenses of the Company's compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Shares); (c) printing expenses; (d) the fees and
disbursements of counsel for the Company and of one counsel for the Holders for
each registration, and the fees and expenses for independent certified public
accountants and other persons retained by the Company in connection with such
registration; (e) fees of transfer agents and registrars; and (f) messenger and
delivery expenses. In connection with any underwritten offering, the Company
shall also pay all underwriting discounts and commissions. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
<PAGE>
expense of any liability insurance obtained by the Company, and the expenses and
fees for listing or authorizing for quotation the securities to be registered on
each securities exchange on which any shares of the Common Stock are then listed
or quoted.
4.02 Each Holder shall pay all its internal expenses incurred in
connection with the registration (including, without limitation, all salaries
and expenses of the Holder's officers and employees performing legal or
accounting duties).
ARTICLE V
INDEMNIFICATION; CONTRIBUTION
5.01 Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder, each of the Holder's officers, directors,
partners and members, and the Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation, any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, and any of the foregoing incurred in settlement of
any litigation, commenced or threatened) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus contained therein or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of any rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction by the Company in connection with any
registration, qualification or compliance required hereunder or arising out of
or based upon the Company's breach of any representation, warranty, covenant or
agreement contained in this Agreement; provided, however, that the Company shall
not be liable in any such case to the extent any of such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or allegation thereof based upon information
furnished in writing to the Company by the Holder expressly for use therein.
5.02 Indemnification by Holder. Each Holder agrees to indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each underwriter, if any,
and each person who controls any underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company set forth above in Section 5.01, but only
with respect to information furnished in writing by the Holder, or on its behalf
expressly for use, under the heading "Selling Shareholders" and "Distribution,"
in the Registration Statement or prospectus relating to the Shares, any
amendment or supplement thereto or any preliminary
<PAGE>
prospectus; provided, however, that the obligation of each Holder shall be
several and not joint. In case any action or proceeding shall be brought against
the Company or its directors or officers, any such controlling person, or any
such underwriter or controlling person of an underwriter in respect of which
indemnity may be sought against the Holder, the Holder shall have the rights and
duties given to the Company, and the Company or its directors or officers or
such controlling person or any such underwriter or controlling person of an
underwriter shall have the rights and duties given to the Holder, by the
preceding Section 5.01 hereof.
5.03 Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under Section 5.01 or
5.02 above (an "Indemnified Party") in respect of which indemnity may be sought
from any party who has agreed to provide such indemnification (an "Indemnifying
Party"), the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all expenses. Such Indemnified Party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (a) the Indemnifying Party has agreed
to pay such fees and expenses, or (b) such Indemnified Party shall have been
advised by counsel that there is an actual or potential conflict of interest on
the part of counsel employed by the Indemnifying Party to represent such
Indemnified Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that Indemnified Party elects to employ separate
counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense of such action or proceeding on behalf
of such Indemnified Party; it being understood, however, that the Indemnifying
Party shall not, in connection with any one cause of action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such Indemnified
Parties, which firm shall be designated in writing by such Indemnified Parties
unless there shall be conflicts of interest among such Indemnified Parties, in
which case the Indemnifying Party shall be liable for the fees and expenses of
additional counsel). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding or any threatened action or
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with its written consent or if there be a
final judgment of the plaintiff in any such action or proceedings, the
Indemnifying Party shall indemnify and hold harmless such Indemnified Parties
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. The failure of any Indemnified Party to give prompt
notice of a claim for indemnification hereunder shall not limit the Indemnifying
Party's obligations to indemnify under this Agreement, except to the extent such
failure is prejudicial to the ability of the Indemnifying Party to defend the
action. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement unless (x) there is no finding or
admission of any violation of any rights of any Person and no effect on any
other claims that be made against any Indemnified Party, (y) the sole relief
provided is monetary damages that are paid in full by the Indemnifying Party and
(z) such judgment or settlement includes as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation.
<PAGE>
5.04 Contribution. If the indemnification provided for in this Article
V is unavailable to the Indemnified Parties in respect of any losses, claims,
damages, liabilities or judgment referred to herein, then such Indemnifying
Party, in lieu of Indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities and judgments in the following manner: as between
the Company on the one hand and any Indemnified Party entitled to
indemnification under Section 5.01 on the other, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and any
Indemnified Party entitled to indemnification under Section 5.01 on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of any Indemnified Party entitled to indemnification under Section 5.01 on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such party,
and the party's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No person guilty
of fraudulent misrepresentation (within the means of subsection 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
5.05 Survival. The indemnity and contribution agreements contained in
this Article V shall remain operative and in full force and effect with respect
to any sales of Shares made pursuant to the Registration Statement regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Indemnified Party or by or on behalf of the Company, and (c) the
consummation of the sale or successive resale of the Shares.
ARTICLE VI
MISCELLANEOUS
6.01 Rules 144 and 144A. The Company covenants that following the
registration of Shares it will timely file any reports required to be filed by
it under the Securities Act and the Exchange Act so as to enable each Holder
holding Shares to sell such Shares without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rules 144 and 144A under
the Securities Act, as each such Rule may be amended from time to time, or (b)
any similar rule or rules hereafter adopted by the Commission. Upon the request
of any Holder, the Company will forthwith deliver to the Holder a written
statement as to whether it has complied with such requirements.
6.02 Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given other than as mutually agreed upon in
writing by the Company and Holders of at least 75% of the Registrable Securities
then outstanding (with any Holder of Series D Shares being deemed to hold the
shares of Common Stock into which such Series D Shares are convertible).
<PAGE>
6.03 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, regular mail,
registered first-class mail, confirmed facsimile or recognized express courier
service by next business day delivery:
(i) if to the Company, to:
Metrocall, Inc.
6677 Richmond Highway
Alexandria, Virginia 22306
Attn: Chief Financial Officer
Fax Number: (703) 768-9625
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
Attn: Thomas W. White, Esq.
Fax Number: (202) 663-6363
(ii) if to a Holder, to its address appearing on
the stock records of the Company.
Notices shall be deemed given on the day on which delivered by hand or
facsimile, if delivered by 5:00 p.m. Eastern time; on the fifth business day
after mailing if delivered by mail; or the business day after delivery to an
overnight air courier if next-day delivery is specified.
6.04 Successors and Assigns.
(a) A Holder shall not assign any rights or benefits under
this Agreement without the prior written consent of the Company or as otherwise
provided in this Section 6.04. A Holder may, subject to compliance with any
applicable provisions of the Securities Exchange Agreement, assign to any
transferee without the Company's consent such Holder's rights and benefits with
respect to Registrable Securities, so long as the transferee executes and
delivers to the Company a consent to be bound by the terms of this Agreement, in
which case the transferee shall be a Holder and shall retain the rights and
benefits of the transferor under this Agreement. The Company shall not assign
any rights, benefits or obligations under this Agreement without prior written
consent of the Holders of at least a majority of the Registrable Securities then
outstanding (with any Holder of Series D Shares being deemed to hold the shares
of Common Stock into which such Series D Shares are convertible); provided,
however, that the Company shall assign its rights, benefits and obligations to
any Person the Company is merged with or consolidated into or to any Person to
whom the Company sells substantially all of its assets. This Agreement shall
inure to the benefit of and be binding upon the permitted successors and assigns
of the Company and the Holder.
<PAGE>
(b) McCaw hereby acknowledges that it assigned to Wireless
(but not in writing), simultaneously with its assignment to Wireless of the
shares of Series C Convertible Preferred Stock assigned by McCaw to Wireless,
all of its rights and benefits under the Registration Rights Agreement and the
Company, to the extent such consent was required, hereby acknowledges that it
consented thereto.
6.05 Counterparts. This Agreement may be executed in a number of
identical counterparts and it shall not be necessary for the Company, Wireless
and McCaw to execute each of such counterparts, but when each has executed and
delivered one or more of such counterparts, the several parts, when taken
together, shall be deemed to constitute one and the same instrument, enforceable
against each in accordance with its terms. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one such counterpart
executed by the party against whom enforcement of this Agreement is sought.
6.06 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.07 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
6.08 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or further laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement.
6.09 Entire Agreement. This Agreement and the Securities Exchange
Agreement (including schedules and exhibits thereto) are intended by the Company
and Wireless as the final expression of their agreement and are intended to be a
complete and exclusive statement of their agreement and understanding in respect
of the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the Company, on the one hand, and McCaw or
Wireless, on the other, with respect to such subject matter.
6.10 Third Party Beneficiaries. Other than Indemnified Parties not a
party hereto, this Agreement is intended for the benefit of the Company,
Wireless and their respective successors and permitted assigns and is not for
the benefit of, nor may any provision hereof be enforced by, any other person or
entity.
6.11 Obligations Several; Independent Nature of Each Holder's Rights.
Each obligation of any Holder is several and no such Holder shall be responsible
for the obligations of any other Holder. Nothing contained herein, and no action
taken by any such Holder pursuant hereto, shall be deemed to constitute such
Holders as a partnership, an association, a joint venture or any other kind of
entity. Each Holder shall be entitled to protect and enforce its rights arising
out of this Agreement without notice to or the consent of any other person and
it shall not
<PAGE>
be necessary for any other such Holder to be joined as an additional
party in any proceeding for such purpose.
6.12 Nonwaiver. No course of dealing or any delay or failure to
exercise any right, power or remedy hereunder on the part of the Holder shall
operate as a waiver of or otherwise prejudice such Holder's rights, powers or
remedies.
6.13 Remedies. The Company acknowledges that the remedies at law of
the Holder in the event of any default or threatened default by the Company in
the performance of or compliance with any of the terms of this Agreement are not
and will not be adequate and that, to the fullest extent permitted by law, such
terms may be specifically enforced by a decree for the specific performance of
any agreement contained herein or by an injunction against a violation of any of
the terms hereof or otherwise without requiring such Holder to post any bond or
other security, unless otherwise required by applicable law (which cannot be
waived by the Company).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
METROCALL, INC.
By: /s/ Steven D. Jacoby
------------------------------
Name: Steven D. Jacoby
Title: Chief Operating Officer
AT&T WIRELESS SERVICES, INC.
By: /s/ Michael C. Schwartz
------------------------------
Name: Michael C. Schwartz
Title: Authorized Signatory
McCAW COMMUNICATIONS COMPANIES, INC.
By: /s/ Michael C. Schwartz
------------------------------
Name: Michael C. Schwartz
Title: Authorized Signatory
