<PAGE> 1
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): July 1, 1997
METROCALL, INC.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-21924 54-1215634
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
</TABLE>
6677 Richmond Highway, Alexandria, Virginia 22306
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(Address of principal executive offices)
Registrant's telephone number, including area code: (703) 660-6677
Not Applicable
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(Former Name or former address, if changed since last report)
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ITEM 2. ACQUISITIONS OR DISPOSITIONS OF ASSETS
Page America Group, Inc.
On July 1, 1997, Metrocall, Inc. ("Metrocall" or the "Company")
completed a transaction in which the Company acquired substantially all of the
assets of Page America Group, Inc. and subsidiaries ("Page America") for total
consideration of approximately $63.2 million, consisting of $25.0 million in
cash, 1,500 shares of Series B Junior Convertible Preferred Stock of Metrocall
having a value upon liquidation of $15,000,000, 3,997,458 shares of Metrocall
common stock, assumed liabilities of approximately $3.1 million and related
fees and expenses. The cash portion of the purchase price was funded by
borrowings under the Company's existing credit facility. 832,250 shares of
Metrocall common stock included in the purchase price were placed in escrow to
satisfy any claims by Metrocall for indemnification under the Asset Purchase
Agreement.
The acquisition of Page America added approximately 200,000
subscribers to Metrocall's customer base. These customers and the related system
infrastructure are located throughout the New York and Chicago metropolitan
areas. The transaction will be accounted for as a purchase for financial
reporting purposes.
The primary assets acquired from Page America include transmission
equipment, subscriber paging units and licenses issued by the Federal
Communications Commission, and will be used by the Company in its paging
business.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION, AND EXHIBITS
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Exhibits Description
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2.1 Press Release dated July 1, 1997
2.2 Amended and Restated Asset Purchase Agreement by and among Page America and Metrocall dated as of January 30, 1997.
(a)
2.3 Amendment to Asset Purchase Agreement by and among Page America and Metrocall dated March 28, 1997.(b)
4.1 Form of Certificate of Designation, Number, Powers, Preferences and Relative, Participating, Optional and Other
Rights of Metrocall, Inc. Series B Junior Convertible Preferred Stock.(c)
4.2 Registration Rights Agreement dated July 1, 1997 by and among Metrocall and Page America.*
4.3 Registration Rights Agreement dated July 1, 1997 by and among Metrocall and Page America.*
4.4 Indemnity Escrow Agreement dated July 1, 1997 by and among Page America and Metrocall.*
</TABLE>
* Exhibit filed herewith.
(a) Incorporated by reference to Metrocall's Registration Statement on Form S-4,
as amended (File No. 333-21231), filed with the Commission on February 5,
1997.
(b) Incorporated by reference to Metrocall's Registration Statement, Amendment
No. 2, on Form S-4 (File No. 333-21231), filed with the Commission on
May 1, 1997.
(c) Incorporated by reference to Metrocall's Registration Statement, Amendment
No. 1, on Form S-4 (File No. 333-21231), filed with the Commission on
April 15, 1997.
2
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned duly authorized.
METROCALL, INC.
/s/ Vincent D. Kelly
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Vincent D. Kelly
Chief Financial Officer, Treasurer
and Executive Vice President
Date: July 15, 1997
3
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EXHIBIT INDEX
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<CAPTION>
Exhibits Description
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<S> <C>
2.1 Press Release dated July 1, 1997
2.2 Amended and Restated Asset Purchase Agreement by and among Page America and Metrocall dated as of January 30, 1997.
(a)
2.3 Amendment to Asset Purchase Agreement by and among Page America and Metrocall dated March 28, 1997.(b)
4.1 Form of Certificate of Designation, Number, Powers, Preferences and Relative, Participating, Optional and Other
Rights of Metrocall, Inc. Series B Junior Convertible Preferred Stock.(c)
4.2 Registration Rights Agreement dated July 1, 1997 by and among Metrocall and Page America.*
4.3 Registration Rights Agreement dated July 1, 1997 by and among Metrocall and Page America.*
4.4 Indemnity Escrow Agreement dated July 1, 1997 by and among Page America and Metrocall.*
</TABLE>
* Exhibit filed herewith.
(a) Incorporated by reference to Metrocall's Registration Statement on Form S-4,
as amended (File No. 333-21231), filed with the Commission on February 5,
1997.
(b) Incorporated by reference to Metrocall's Registration Statement, Amendment
No. 2, on Form S-4 (File No. 333-21231), filed with the Commission on
May 1, 1997.
(c) Incorporated by reference to Metrocall's Registration Statement, Amendment
No. 1, on Form S-4 (File No. 333-21231), filed with the Commission on
April 15, 1997.
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EXHIBIT 2.1
JULY 1, 1997
FOR IMMEDIATE RELEASE CONTACT: PAUL LIBERTY, VP INVESTOR RELATIONS
(703) 660-6677, EXT. 6260
E-MAIL: [email protected]
METROCALL COMPLETES PAGE AMERICA TRANSACTION
ALEXANDRIA, VA, Metrocall, Inc. (NASDAQ NMS--MCLL) announced that the
Company has successfully completed the purchase of substantially all the assets
of Page America Group, Inc., which will add over 200,000 subscribers.
"The purchase of Page America is the fifth acquisition for Metrocall in the
past year and marks the successful completion of Phase II of the Company's
stated three phase consolidation strategy," said William L. Collins III,
President and Chief Executive Officer for Metrocall. "Based upon Metrocall's
industry recognized successful integration track record, the Company expects
that Page America will be quickly and systematically integrated. Every
operating and functional area of Page America has been scheduled for
integration transition. Metrocall has delivered on its consolidation strategy
with the previous 900,000 subscribers acquired over the past year," said
Collins.
The purchase of Page America strengthens Metrocall's position as an
industry leader in the New York/New Jersey marketplace and gives the Company a
solid foothold into the Chicago market. As an industry consolidator,
Metrocall's management is committed to implementing the Company's strategy to
drive cash flow and net revenue growth, while responsibly managing debt and
leverage ratios.
Metrocall, Inc., headquartered in Alexandria, Virginia (Metropolitan
Washington, DC), offers paging and wireless messaging across the United States
and in over 1000 cities through its Nationwide Wireless Network to over 2.4
million subscribers.
Safe Harbor Statement Under the Private Securities Litigation Reform Act of
1995
The statements contained in this release which are not historical facts, such
as those concerning future financial performance and growth, are
forward-looking statements that are subject to risks and uncertainties,
including those identified in the Company's Annual Report on Form 10-K and
could differ materially from those set forth in the forward-looking statements.
###
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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
July 1, 1997, by and among METROCALL, INC., a Delaware corporation (the
"Company"), Page America Group, Inc., a New York corporation, Page America of
New York, Inc., a New York corporation, Page America of Illinois, Inc., an
Illinois corporation, Page America Communications of Indiana, Inc., an Indiana
corporation, Page America of Pennsylvania, Inc., a Pennsylvania corporation
(collectively, the "Sellers" and each individually a "Seller").
RECITALS
WHEREAS, Sellers and the Company executed an Amended and Restated Asset
Purchase Agreement dated as of January 30, 1997, as amended as of March 28,
1997 (the "Purchase Agreement"), pursuant to which Sellers agreed to sell and
the Company agreed to buy all of Sellers' Assets upon the terms and conditions
set forth in the Purchase Agreement;
WHEREAS, as part of the consideration for the purchase of assets pursuant
to the Purchase Agreement, the Company will issue to Sellers 1,500 shares of
its Series B Junior Convertible Preferred Stock (the "Preferred Stock"), the
terms and conditions of which are set forth in the Certificate of Designation
(as hereinafter defined); and
WHEREAS, in connection with the issuance of the Preferred Stock pursuant to
the Purchase Agreement, the Company has agreed, on the terms and conditions set
forth herein, to register shares of Common Stock as set forth below.
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 "Certificate of Designation" means the Certificate or
Designation, Number, Powers, Preferences and Relative, Participating, Optional
and Other Rights of Series B Junior Convertible Preferred Stock of Metrocall,
Inc., the form of which is attached as Exhibit 4.1(a) to the Purchase
Agreement.
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1.02 "Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.03 "Conversion Shares" means shares of the Company's Common
Stock, $.01 par value per share ("Common Stock"), issuable upon conversion of
Preferred Shares, provided, however, that any Conversion Share will cease to be
a Conversion Share when (i) such Conversion Share has been transferred pursuant
to an effective registration statement under the Securities Act covering such
Conversion Share (but not including any transfer exempt from registration under
the Securities Act), or (ii) the Holder of such Conversion Share is then able
to use Rule 144 promulgated under the Securities Act (or any successor
provision) to transfer such Conversion Share without regard to any restrictions
pursuant to Rule 144(k) (but not including any transfer exempt from
registration under the Securities Act).
1.04 "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.
1.05 "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.
1.06 "Holder" means each Seller and each transferee permitted
pursuant to Section 12.19 of the Purchase Agreement that has become a party to
this Agreement as provided in Section 6.04.
1.07 "Person" means an individual or corporation, partnership,
trust, unincorporated organization, association or other entity and includes
any Governmental Authority.
1.08 "Preferred Shares" means the shares of Series B Junior
Convertible Preferred Stock issued to the Sellers pursuant to the Purchase
Agreement and any additional or replacement shares of Preferred Stock issued
with respect to Preferred Shares upon any stock dividend, stock split,
recapitalization or similar event.
1.09 "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.
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ARTICLE II
REGISTRATION RIGHTS
2.01 Required Registration.
(a) The Company shall prepare and file with the
Commission a registration statement under the Securities Act with respect to
resale of the Conversion Shares and shall use its best efforts to cause such
registration statement to become effective promptly after filing. The
registration statement with respect to the Conversion Shares shall be filed
with the Commission within thirty (30) days after the issuance of the Preferred
Stock by the Company to Page America pursuant to the terms of the Purchase
Agreement (the "Issuance").
(b) Except as provided in Section 2.01(c) of this
Agreement, the Company shall use its best efforts to maintain the effectiveness
of the registration statement filed pursuant to this Section 2.01 until such
time as all Conversion Shares registered pursuant to the registration statement
either have been transferred pursuant to the registration statement or are
eligible to be sold pursuant to Rule 144 under the Securities Act without
regard to any restrictions pursuant to Rule 144(k). Each Holder shall provide
written notice to the Company within fifteen (15) days after it has sold all of
its Conversion Shares registered pursuant to this Section 2.01.
(c) The obligations of the Company under this Section
2.01 are subject to the condition that the Company shall be entitled to require
the Holders to suspend for up to ninety (90) days once in any twelve month
period the sale of Conversion Shares pursuant to a registration statement filed
pursuant to this Section if (i) and for so long as the Board of Directors of
the Company determines, in its reasonable judgment, that the sale of Conversion
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 the Holders of the Conversion Shares
written notice of such determination, and (iii) all other similarly situated
shareholders shall also be subject to the same suspension. The Company shall
have no obligation to maintain the effectiveness of a registration statement
with respect to Conversion Shares during periods when the Holders are required
to suspend the sale of such Conversion Shares as provided in this Section
2.01(c). As soon as practicable after the expiration of such periods, the
Company shall amend its registration statement as necessary to permit the
Holders to sell Conversion Shares pursuant to such registration statement.
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ARTICLE III
REGISTRATION PROCEDURES
3.01 Company Obligations. Following the Issuance, the Company
will:
(a) furnish to the Holders, prior to the filing of a
registration statement pertaining to any Conversion Shares (each a
"Registration Statement") or any prospectus, amendment or supplement thereto,
copies of each such Registration Statement as proposed to be filed, which
documents will be subject to the reasonable review and comments of the Holders
(and their respective attorneys), and the Company will not file any such
Registration Statement, any prospectus or any amendment or supplement thereto
(or any such documents incorporated by reference) to which the Holders shall
reasonably object in writing; and thereafter furnish to the Holders 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
any Holder may reasonably request in writing in order to facilitate the
disposition of the Conversion Shares registered pursuant to such Registration
Statement; provided, however, that the obligation of the Company to deliver
copies of prospectuses or preliminary prospectuses to any Holder shall be
subject to the receipt by the Company of reasonable assurances from such Holder
that such 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
Conversion Shares registered pursuant to such Registration Statement under such
other securities or blue sky laws of such jurisdictions as a 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 Conversion 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 National Market System (or, if the
Company is not listed on the Nasdaq National Market System, any other exchange
on which the Company's Common Stock is then listed) for the listing of the
Conversion Shares and use its best efforts to obtain the listing of such stock;
(d) notify the Holders in writing at any time when a
prospectus relating to the Conversion Shares registered pursuant to such
Registration Statement is required to be delivered under the Securities Act, of
the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus or filing of a report incorporated in the
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prospectus by reference so that, as thereafter delivered to the purchasers of
such Conversion 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 the Holders any such supplement, amendment
or report incorporated in the prospectus by reference, including, without
limitation, after any period referred to in Section 2.01(c);
(e) make available for inspection by the Holders of
Conversion Shares to be registered pursuant to a 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. 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, the Holders of such Conversion
Shares shall agree that such confidential information obtained by them as a
result of such inspections shall be deemed confidential and shall not be used
by them 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 such 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) obtain consents from its independent public
accountants in customary form as required to obtain and maintain effectiveness
of the registration statement;
(g) obtain an opinion or opinions from its counsel in
customary form and reasonably satisfactory to the Holders and their respective
legal counsel;
(h) 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 a Registration Statement, which earnings
statements shall cover said twelve-month period;
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(i) promptly notify each Holder of the issuance or
threatened issuance of any stop order or other order suspending the
effectiveness of a 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 its best efforts to obtain
the lifting or withdrawal of such order at the earliest possible moment and
promptly notify each Holder of any such lifting or withdrawal;
(j) if requested by any Holder, the Company will promptly
incorporate in a prospectus supplement or post-effective amendment to a
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 Conversion Shares
being offered by such Holder, the offering price for such Conversion Shares or
any other terms of the offering or distribution of the Conversion 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;
(k) as promptly as practicable after the filing with the
Commission of any document which is incorporated by reference into a
registration statement, notify each Holder of such filing and deliver a copy of
such document to each Holder;
(l) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates, not bearing any restrictive legends,
unless otherwise required by the Holders, representing the Conversion Shares to
be sold under the Registration Statement, and enable such Conversion Shares to
be in such denominations and registered in such names as such Holders may
request;
(m) cooperate with the Holders, their respective 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 National
Association of Securities Dealers, Inc.
(n) cause its subsidiaries to take all action necessary
to effect the registration of the Conversion Shares contemplated hereby,
including preparing and filing any required financial or other information;
(o) make available to the transfer agent for each class
or series of Conversion Shares a supply of certificates or other instruments
evidencing or constituting such Conversion Shares which shall be in a form
complying with the requirements of such transfer agent, promptly after a
registration thereof; and
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(p) use its best 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 Holders. The Company may require the Holders
to promptly furnish in writing to the Company such information regarding the
distribution of the Conversion 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. The Holders agree 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, they will immediately discontinue disposition of
Conversion Shares pursuant to a Registration Statement until they receive
copies of the supplemented or amended prospectus contemplated by subsection
3.01(d) hereof, and, if so directed by the Company, the Holders 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 Conversion 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 Conversion Shares); (c) printing
expenses; (d) the fees and disbursements of counsel for the Company and of one
counsel for the Holders, 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 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 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.
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4.02 The Holders shall pay all underwriting discounts and
commissions and all of their internal expenses incurred in connection with the
offering (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties but excluding fees
and expenses of their counsel that are payable by the Company under Section
4.01).
ARTICLE V
INDEMNIFICATION; CONTRIBUTION
5.01 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder, each of such Holder's officers,
directors, partners and members, and each of such 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, 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 a
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 such Holder expressly for
use therein.
5.02 Indemnification by Holders. Each Seller agrees, and each
other Holder that is not a signatory to this Agreement agrees by exercising any
of its rights hereunder, severally 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 to the same extent as the foregoing indemnity from the Company
set forth above in (a), but only with respect to information furnished in
writing by such Holder, or on its behalf expressly for use in the Registration
Statement or prospectus relating to the Conversion Shares, any amendment or
supplement thereto or any preliminary prospectus, under the heading "Selling
Shareholders" and "Distribution" and provided that the obligation of each
Holder to indemnify will be several and not joint. In case
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any action or proceeding shall be brought against the Company or its directors
or officers any such controlling person, 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 shall have the rights and duties given to the Holder, by the preceding
Section 5.01 hereof. Each Holder's indemnity obligations under this Section
5.02 shall be limited to the net sales proceeds actually received in connection
with the applicable offering.
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 for 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
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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.
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 5.02 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
5.02 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 Conversion Shares made pursuant to a registration
statement filed pursuant to this Agreement 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 Conversion Shares.
ARTICLE VI
MISCELLANEOUS
6.01 Rules 144 and 144A. The Company covenants that following the
registration of Conversion Shares it will file any reports required to be filed
by it under the Securities Act and the Exchange Act so as to enable Holders
holding registered Conversion Shares to sell such Conversion 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 SEC. Upon the request of any such Holder, the Company will
forthwith deliver to such Holder a written statement as to whether it has
complied with such requirements.
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<PAGE> 11
6.02 Amendments and Waivers. The provision 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 the Holders of a majority of the Conversion
Shares.
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:
Metrocall, Inc.
6677 Richmond Highway
Alexandria, Virginia 22306
Attention: 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
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.
(ii) if to any of the Holders, to the last
business address for such Holder shown on the Preferred Share Register
maintained by the Company pursuant to the Purchase Agreement.
6.04 Successors and Assigns. No Holder may assign any rights or
benefits under this Agreement except as provided in this Section 6.04. A
Holder may assign its rights under this Agreement to any Permitted Transferee
under the Purchase Agreement, provided that such Permitted Transferee executes
and delivers to the Company an agreement pursuant to which it becomes bound by
the terms of this Agreement, and such Permitted Transferee 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 a majority of the Conversion Shares;
provided, however, that the Company shall assign its rights, benefits and
obligations to any person the Company is merged with or consolidated into
-11-
<PAGE> 12
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, the Sellers and the other Holders.
6.05 Counterparts. This Agreement may be executed in a number of
identical counterparts and it shall not be necessary for the Company and the
Sellers 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 Purchase Agreement
(including exhibits thereto) are intended by the Company and the Sellers as
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 and the Sellers 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, the
Sellers 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
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<PAGE> 13
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 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 Holders 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
Holders to post any bond or other security, unless otherwise required by
applicable law (which cannot be waived by the Company).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
METROCALL, INC.
By: /s/ WILLIAM L. COLLINS, III
----------------------------------
William L. Collins, III
President and Chief Executive Officer
SELLERS:
PAGE AMERICA GROUP, INC.
By: /s/ DAVID A. BARRY (Seal)
-------------------
Its: Chairman
------------------
PAGE AMERICA OF NEW YORK, INC.
By: /s/ DAVID A. BARRY (Seal)
-------------------
Its: Chairman
------------------
PAGE AMERICA OF ILLINOIS, INC.
By: /s/ DAVID A. BARRY (Seal)
-------------------
Its: Chairman
------------------
PAGE AMERICA COMMUNICATIONS OF INDIANA, INC.
By: /s/ DAVID A. BARRY (Seal)
-------------------
Its: Chairman
------------------
PAGE AMERICA OF PENNSYLVANIA, INC.
By: /s/ DAVID A. BARRY (Seal)
-------------------
Its: Chairman
------------------
-14-
<PAGE> 1
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
July 1, 1997, by and among METROCALL, INC., a Delaware corporation (the
"Company") and PAGE AMERICA GROUP, INC., a New York corporation ("Page
America" or the "Holder").
RECITALS
WHEREAS, the Company, Page America, its wholly owned subsidiaries, Page
America of New York, Inc., Page America of Illinois, Inc., an Illinois
corporation, Page America Communications of Indiana, Inc., an Indiana
corporation, and Page America of Pennsylvania, a Pennsylvania corporation
(collectively, the "Sellers"), have entered into that certain Amended and
Restated Asset Purchase Agreement, dated January 30, 1997 and amended as of
March 28, 1997 (the "Purchase Agreement"), pursuant to which, in pertinent
part, the Company purchased and the Sellers sold all or substantially all of
the Sellers' Assets ("the Asset Purchase and Sale");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company paid
part of the Purchase Price in shares of the Company's common stock, par value
$.01 per share , ("Common Stock"); and
WHEREAS, the Company registered such shares of Common Stock on Form S-4
before the Closing of the Asset Purchase and Sale; and
WHEREAS, Page America may be deemed to be underwriters of the Common Stock
pursuant to Rule 145(c) of the Securities Act and may thus be subject, inter
alia, to the volume limitations on Page America's transfer of shares of Common
Stock pursuant to Rule 144(e) promulgated under the Securities Act;
WHEREAS, as a result of the foregoing and pursuant to the terms of the
Purchase Agreement, the Company has agreed to register the shares of Common
Stock received by Page America thereunder pursuant to the terms and conditions
set forth herein.
AGREEMENTS
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:
<PAGE> 2
I.
DEFINITIONS
1. "Commission" means the Securities and Exchange Commission.
2. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3. "Registrable Securities" means the shares of Common Stock
received by the Page America from the Company pursuant to the Purchase
Agreement. 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, (ii) such Registrable Security is no longer held of
record by Page America or its successors or assigns, or (iii) the holder of
such Registrable Security is then able to use Rule 144 promulgated under the
Securities Act (or any successor provision) to transfer such Registrable
Security without the volume limitations under Rule 144(e).
4. "Securities Act" means the Securities Act of 1933, as amended.
II.
REGISTRATION STATEMENT
As soon as practicable following the issuance and transfer of Common Stock
by the Company to Page America pursuant to the terms of the Purchase Agreement
(but in no event later than twenty (20) days thereafter), the Company shall
file with the Commission on Form S-3 (or such other form as may be appropriate)
(the "Registration Statement"), with respect to the sale of all of the
Registrable Securities and any other securities of the Company that the Company
elects to include therein; provided, however, that the Registrable Securities
shall have priority in inclusion in the Registration Statement over such other
securities. The Company shall use its best efforts to have the Registration
Statement declared effective by the Commission under the Securities Act as soon
as possible, and to keep the Registration Statement effective as long as there
are Registrable Securities. The Company further agrees, if necessary, to
supplement or make amendments to the Registration Statement if required by the
registration form used by the Company for the Registration Statement or by the
instructions applicable to such registration form or by the Securities Act or
the rules and regulations thereunder, and to comply with the requirements of
the Securities Act and the rules and regulations promulgated by the Commission
thereunder relating to the sale or other disposition of the securities covered
by the Registration Statement. The Company may postpone for up to ninety (90)
days the sale of any Registrable Securities pursuant to the Registration
Statement if the Company reasonably believes that such sale will have a
material adverse effect on any proposal or plan by the Company or any of its
subsidiaries to engage in any financing, acquisition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
other significant transaction; provided that the Company shall have the right
to so postpone such filing or effectiveness only one (1) time during any period
of twelve (12) consecutive months.
2
<PAGE> 3
III.
REGISTRATION PROCEDURES
Following the issuance of Common Stock by the Company to Page America
pursuant to the terms of the Purchase Agreement, the Company will as
expeditiously as possible:
(a) furnish to Page America, prior to the filing of the
Registration Statement, if requested in writing, copies of the Registration
Statement as proposed to be filed, and thereafter furnish to the Holder such
number of copies of the Registration Statement, each amendment and supplement
thereto (including any exhibits thereto requested by such party), the
prospectus included in the 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 Registrable Securities
owned by the Holder; provided, however, that the obligation of the Company to
deliver copies of prospectuses or preliminary prospectuses to the Holder is
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
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as the 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 the Registrable Securities;
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) notify the Holder in writing (i) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, and (ii) of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of the Registrable Securities, such prospectus 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 make available to the Holder any such supplement or
amendment;
(d) make available for inspection by the Holder 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 the Registration
3
<PAGE> 4
Statement. Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors 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 the Registration Statement, or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Page America agrees that information obtained by such
party as a result of such inspections shall be deemed confidential and shall
not be used by such party as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to
the public. The Holder further agrees that it will, upon learning that
disclosure of such Records 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;
and
(e) do any and all such other acts and things as may be
reasonably necessary or advisable to enable holders of Registrable Securities
to consummate the public sale or other disposition of their Registrable
Securities in such jurisdictions as are covered by the Registration Statement.
The Company may require the Holder to promptly furnish in writing to the
Company such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information as may be legally required in connection with such registration.
Page America agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in subsection 3(c) hereof,
Page America will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement until receipt of the copies of the
supplemented or amended prospectus contemplated by subsection 3(c) 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 covering such Registrable Securities at the time of receipt
of such notice.
IV.
REGISTRATION EXPENSES
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 registration and
filing 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 Registrable
Securities); (c) printing expenses; (d) the fees and disbursements of counsel
for the Company, and the fees and expenses for independent certified public
accountants, underwriters and other persons retained by the
4
<PAGE> 5
Company in connection with such registration; (e) any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities;
(f) fees of transfer agents and registrars; (g) fees of the national
Association of Securities Dealers, Inc.; and (h) messenger and delivery
expenses. 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 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
Common Stock are then listed or quoted.
V.
INDEMNIFICATION; CONTRIBUTION
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify and hold harmless the Holder from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) 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 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.
(b) INDEMNIFICATION BY THE HOLDER. The 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 to the same extent
as the foregoing indemnity from the Company to the Holder, but only with
respect to information furnished in writing by the Holder or on its behalf
expressly for use in the Registration Statement or prospectus relating to the
Registrable Securities, any amendment or supplement thereto or any preliminary
prospectus. In case any action or proceeding shall be brought against the
Company or its directors or officers, or any such controlling person, 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 shall have the rights and
duties given to the Holder, by the preceding subsection hereof.
(c) 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
subsections (a) or (b) above (an
5
<PAGE> 6
"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 (i) the Indemnifying Party has agreed to pay such
fees and expenses, or (ii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there is a 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 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). The Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent, 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 of judgment.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 5 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 Page America on the other,
in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and Page America 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 Page
America 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.
6
<PAGE> 7
(e) SURVIVAL. The indemnity and contribution agreements
contained in this Section 5 shall remain operative and in full force and effect
with respect to any sales of Registrable Securities made pursuant to the
Registration Statement regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Indemnified Party or by or
on behalf of the Company, and (iii) the consummation of the sale or successive
resale of the Registrable Securities.
VI.
MISCELLANEOUS
(a) AMENDMENTS AND WAIVERS. The provision of this
agreement may not be amended, modified or supplements, and waivers or consents
to departures from the provisions hereof may not be given other than as
initially agreed upon in writing by the Company and Page America.
(b) 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, telex, telecopier or air courier
guaranteeing overnight delivery:
(i) if to the Holder, initially to:
Bariston Associates, Inc.
One International Place
Boston, Massachusetts
Attn: David A. Barry
Fax No.: 617-330-8951
with a copy to:
Stroock & Stroock & Lavan
180 Maiden Lane
New York, New York 10038
Attn: Martin Neidell, Esq.
Fax No.: 212-806-6006
and thereafter at such other address as may
be designated from time to time by notice
given in accordance with the provisions of
this Section.
(ii) if to the Company:
7
<PAGE> 8
Metrocall, Inc.
6677 Richmond Highway
Alexandria, Virginia 22306
Attn: Vincent D. Kelly,
Chief Financial Officer and Treasurer
Fax No.: 703-768-9625
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Fax No.: (202) 663-6363
Attn: Thomas W. White, Esq.
(c) SUCCESSORS AND ASSIGNS. The Holder may not assign
any rights or benefits under this Agreement without prior written consent of
the Company, which consent shall not be unreasonably withheld. The Company may
not assign any rights or benefits under this Agreement without prior written
consent of the Holder, which consent shall not be unreasonably withheld. This
Agreement shall inure to the benefit of and be binding upon the permitted
successor and assigns of the Company and the Holder.
(d) COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts and it shall not be necessary for the Company
and the Holder 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.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) 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.
(g) SEVERABILITY. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future 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
8
<PAGE> 9
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.
(h) ENTIRE AGREEMENT. This Agreement is intended by the
Company and the Holder as final expression of their agreement and is 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 and the Holder with
respect to such subject matter.
(i) THIRD PARTY BENEFICIARIES. Other than Indemnified
Parties not a party hereto and the Holder, this Agreement is intended for the
benefit of the Company and the Holder and their respective successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person or entity.
(j) EFFECTIVENESS. This Agreement shall have no force or
effect unless and until the Company issues Common Stock to the Holder pursuant
to terms of the Purchase Agreement.
[Remainder of Page Left Intentionally Blank]
9
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
METROCALL, INC.
By: /s/ STEVEN D. JACOBY
----------------------------
Name: STEVEN D. JACOBY
--------------------------
Title: Executive Vice President
-------------------------
PAGE AMERICA:
PAGE AMERICA GROUP, INC.
By: /s/ DAVID A. BARRY
----------------------------
Name: DAVID A. BARRY
--------------------------
Title: Chairman
-------------------------
<PAGE> 1
EXHIBIT 4.4
INDEMNITY ESCROW AGREEMENT
This Indemnity Escrow Agreement (the "Agreement") is entered into this 1st
day of July, 1997, by and among Page America Group, Inc., a New York
corporation, Page America of New York, Inc., a New York corporation, Page
America of Illinois, Inc., an Illinois corporation, Page America Communications
of Indiana, Inc., an Indiana corporation, Page America of Pennsylvania, Inc., a
Pennsylvania corporation (collectively, the "Sellers" and each individually a
"Seller"), Metrocall, Inc., a Delaware corporation (the "Buyer"), and First
Union National Bank of Virginia (the "Escrow Agent").
RECITALS
WHEREAS, Sellers and Buyer executed an Amended and Restated Asset Purchase
Agreement, dated as of January 30, 1997 and amended as of March 28, 1997 (the
"Purchase Agreement"), pursuant to which Sellers agreed to sell and Buyer
agreed to buy all of Sellers' Assets upon the terms and conditions set forth in
the Purchase Agreement; and
WHEREAS, pursuant to the Purchase Agreement, Sellers and Buyer have agreed
to place a portion of the purchase price for the Assets consisting of Metrocall
Common Stock having a Share Value (as defined in Section 4.1(a)(iv) of the
Purchase Agreement) of Four Million Dollars ($4,000,000) (the "Escrow Shares")
in an escrow account ("Indemnity Escrow Account") as hereinafter described; and
WHEREAS, the Escrow Agent is an unrelated third party and has agreed to act
as Escrow Agent for the Indemnity Escrow Account pursuant to this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, including those described above, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined in this Agreement
shall have the meanings given them in the Purchase Agreement.
2. Purpose of the Indemnity Escrow Account. The Indemnity Escrow Account
is being established to satisfy, at least in part, any indemnification claims
made by Buyer against Sellers pursuant to Section 11.1 of the Purchase
Agreement.
3. Delivery of the Indemnity Escrow Account to the Escrow Agent.
Concurrently with the Closing and following the execution of this Agreement,
Buyer will, in accordance with Section 4.1(b)(ii) of the Purchase Agreement,
deliver the Escrow Shares to the Escrow Agent for deposit in the Indemnity
Escrow Account. The Escrow Shares will be registered in the name of
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the Escrow Agent, as Escrow Agent under this Agreement. The Escrow Shares will
be voted as directed by Sellers.
4. Maintenance of the Indemnity Escrow Account. Upon receipt of the
property specified in Paragraph 3, the Escrow Agent shall maintain such
property in the Indemnity Escrow Account and, during the term of this
Agreement, the Escrow Agent agrees to hold such property and any accumulated
income thereon in the Indemnity Escrow Account in escrow, to invest any income
thereon in Permitted Investments and to disburse amounts in the Indemnity
Escrow Account (including any income) in accordance with Paragraphs 5 and 6 of
this Agreement. As used herein, the term "Permitted Investments" shall mean
(a) United States Treasury Obligations having a term to maturity of no more
than 180 days, (b) money market bank accounts and mutual funds, provided that
the amount invested in money market bank accounts and mutual funds shall not
exceed $10,000 and (c) any other investment approved by Sellers and Buyer in
writing.
5. Claims Against and Disbursements from the Indemnity Escrow Account.
(a) Claims Procedure. To make a claim against the Indemnity Escrow
Account, Buyer shall submit a written notice ("Notice") to the Escrow Agent
which sets forth a representation that Buyer or any other person indemnified
under Section 11.1 of the Purchase Agreement ("Claimant" or "Claimants") has
incurred an indemnifiable loss, liability, claim, damage or expense ("Loss") or
there has been a claim asserted against Buyer that could result in a Loss,
which Notice shall include information regarding (A) the type of Losses for
which indemnification is sought under Section 11.1 of the Purchase Agreement,
and (B) the dollar amount of such Losses, or, if the amount of such Loss cannot
be quantified, a good faith estimate of the Loss. Such Notice shall be include
a certificate of Buyer that Claimant has complied with any applicable
provisions of the Purchase Agreement regarding such Losses. Buyer shall also
therein verify that a copy of such Notice has been sent to Sellers.
(b) Disbursements. Following receipt of the Notice, the Escrow Agent
shall release to Buyer, from the Indemnity Escrow Account, on the first (1st)
business day following the fourteenth (14th) day after the Escrow Agent's
receipt of the Notice, that number of Escrow Shares having an aggregate Share
Value equal to the amount of any Losses claimed in the Notice; provided,
however, that the Escrow Agent shall not make any disbursements as provided
herein if the Escrow Agent receives an objection ("Notice of Objection") in
writing, signed by each of the Sellers, within the relevant period, accompanied
by a certificate from each of the Sellers that Sellers have sent a copy of such
Notice of Objection to Buyer.
If a Notice of Objection is sent, Buyer and Sellers shall negotiate in good
faith to resolve the objection set forth in the Notice of Objection. If Buyer
and Sellers resolve the objection, they shall sign and deliver to the Escrow
Agent a notice (the "Joint Notice") to such effect indicating the amount, if
any, of the resolved claim and the Escrow Agent shall, within two
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(2) business days of receipt of the Joint Notice, release that number of Escrow
Shares having an aggregate Share Value equal to such amount from the Indemnity
Escrow Account to the Buyer.
If Buyer and Sellers are unable to resolve the objection through
negotiation, the Escrow Agent shall make a disbursement from the Indemnity
Escrow Account only upon receipt of a judgment of a court of competent
jurisdiction directing disbursement, together with a certification of Buyer
that such judgment is final and non-appealable. The Escrow Agent shall, within
two (2) business days of receipt of the order, release Escrow Shares in the
Indemnity Escrow Account as directed by the judgment. For purposes of
calculating the number of Escrow Shares to be released in payment of any
losses, the parties agree that such shares shall be valued at the Share Value.
6. Delivery of the Indemnity Escrow Account to Sellers. The Escrow Agent
shall deliver to Sellers on April 1, 1998, all remaining property (including
accumulated income) in the Indemnity Escrow Account in excess of Escrow Shares
having an aggregate Share Value equal to the sum of (a) the amount of any
Losses (including estimates) claimed in Notices delivered prior to the close of
business on March 31, 1998 which have not been paid by the Escrow Agent plus
(b) the amount of any Losses (including estimates) claimed in Notices which are
the subject of a dispute pursuant to Notices of Objection as of such date.
7. Escrow Agent.
(a) Sellers and Buyer hereby appoint the Escrow Agent and the Escrow Agent
agrees to serve as Escrow Agent, pursuant to the terms of this Agreement.
(b) The Escrow Agent shall not be bound in any way by any of the terms of
the Purchase Agreement or any other agreement between the parties other than
this Agreement and shall be obliged only to hold and disburse amounts in the
Indemnity Escrow Account in accordance with the terms of this Agreement.
(c) The Escrow Agent need not inquire into the genuineness of the
signatures on any document submitted to it and purporting to be executed by
Buyer or Sellers or their counsel, and may rely upon any instrument or
signature that the Escrow Agent believes in good faith to be genuine, and may
assume that any person purporting to give any writing, notice, advice or
instruction in connection with this Agreement has been duly authorized to give
such writing, notice, advice or instruction. The Escrow Agent may act upon the
advice of counsel in connection with the performance by it of its duties under
this Agreement.
(d) The Escrow Agent's fee for services rendered hereunder shall be as set
forth on the attached schedule, which fee shall be shared equally by Buyer and
Sellers.
(e) The Escrow Agent shall not be liable for, and Buyer and Sellers hereby
agree to hold harmless and indemnify the Escrow Agent against, any and all
liability and all
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expenses incurred in defending against or otherwise dealing with any claim of
liability or legal proceeding of any kind that may arise in connection with its
acting as Escrow Agent under this Agreement, except such liabilities as may
result from the Escrow Agent's wilful misconduct or negligence.
(f) If the Escrow Agent shall be unable to act or shall resign as Escrow
Agent hereunder, Buyer shall forthwith appoint a successor Escrow Agent
("Successor") reasonably satisfactory to Sellers. The Escrow Agent may at any
time give written notice of its resignation to the other parties hereto. Such
resignation shall take effect when the designated Successor accepts its
appointment in writing. This Agreement may not be assigned by the Escrow Agent
or any Successor without the prior written consent of the other parties hereto.
8. Miscellaneous.
(a) This Agreement shall become effective on the date of execution and
shall terminate on the date on which all principal and income in the Indemnity
Escrow Account are disbursed in accordance with the terms of this Agreement and
the Purchase Agreement.
(b) All notices to be sent hereunder shall be in writing and delivered
personally or mailed by certified mail, postage prepaid, return receipt
requested (such mailed notice to be effective on the date such receipt is
acknowledged) as follows:
If to Sellers, addressed to:
Bariston Associates, Inc.
One International Place
Boston, Massachusetts 02110
Attn: David A. Barry
Fax No.: 617-330-8951
with a copy to
Stroock & Stroock & Lavan
180 Maiden Lane
New York, New York 10038
Attn: Martin Neidell, Esq.
Fax No.: 212-806-6006
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If to Buyer, addressed to:
Metrocall, Inc.
6677 Richmond Highway
Alexandria, Virginia 22306
Attn: Vincent D. Kelly,
Chief Financial Officer and Treasurer
Fax No.: 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 No.: 202-663-6363
If to Escrow Agent, addressed to:
First Union National Bank of Virginia
Corporate Trust Department, VA3279
P.O. Box 26944
Richmond, VA 23261
Attn: Dante Monakil
Fax No.: 804-788-9661
(c) The covenants, agreements, representations and warranties contained in
or made pursuant to this Agreement shall survive the delivery of the amounts in
the Indemnity Escrow Account by the Escrow Agent.
(d) In the event that any provision of this Agreement shall be found to
violate public policy or to be otherwise void or unenforceable, such finding
shall not invalidate any other provision of this Agreement.
(e) This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together,
shall constitute one instrument.
(f) This Agreement may not be assigned by any party hereto without the
consent of the other parties.
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(g) Any waiver by any party of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement.
(h) This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of Delaware, without reference to the
principles of conflicts of laws.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
(REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first above written.
BUYER
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METROCALL, INC.
By: /s/ WILLIAM L. COLLINS, III (Seal)
----------------------------
Its: President and Chief Executive Officer
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SELLERS
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PAGE AMERICA GROUP, INC.
By: /s/ DAVID A. BARRY (Seal)
--------------------
Its: Chairman
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PAGE AMERICA OF NEW YORK, INC.
By: /s/ DAVID A. BARRY (Seal)
--------------------
Its: Chairman
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PAGE AMERICA OF ILLINOIS, INC.
By: /s/ DAVID A. BARRY (Seal)
--------------------
Its: Chairman
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PAGE AMERICA COMMUNICATIONS OF INDIANA, INC.
By: /s/ DAVID A. BARRY (Seal)
--------------------
Its: Chairman
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PAGE AMERICA OF PENNSYLVANIA, INC.
By: /s/ DAVID A. BARRY (Seal)
--------------------
Its: Chairman
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ESCROW AGENT
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FIRST UNION NATIONAL BANK OF VIRGINIA
By: /s/ JOHN M. TURNER (Seal)
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Its: VICE PRESIDENT
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