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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
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. _________)1
METROCALL, INC.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
591647102
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(CUSIP Number)
David C. Reymann
Christopher M. Kelly Chief Financial Officer
Jones, Day, Reavis & Pogue Aether Systems, Inc.
901 Lakeside Avenue 11460 Cronridge Drive
Cleveland, OH 44114 Owings Mills, MD 21117
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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 which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d01(f) or 240.13d-1(g), check the
following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
1 The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
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SCHEDULE 13D
CUSIP NO. 591647102
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Aether Systems, Inc.
52-2186634
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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 OF ORGANIZATION
State of Delaware
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH 7,766,769 (See Item 6)
--------------------------------------------------
8 SHARED VOTING POWER
0
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9 SOLE DISPOSITIVE POWER
7,766,769 (See Item 6)
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,766,769
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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
9.67%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT.
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ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to shares of the Common Stock, par value $.01
per share ("Common Stock"), of Metrocall, Inc., a Delaware corporation (the
"Issuer" or "Metrocall"). The Issuer's principal executive offices are located
at 6677 Richmond Highway, Alexandria, Virginia 22306.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is being filed by Aether Systems, Inc. ("Aether") in
connection with its acquisition of 7,766,769 shares of the Issuer's Common Stock
on March 17, 2000 pursuant to a Common Stock Purchase Agreement dated as of
February 2, 2000 by and between Aether and Metrocall (the "Purchase Agreement").
The Purchase Agreement is incorporated by reference as an Exhibit to this
Schedule 13D.
Aether is organized as a corporation under the laws of the State of
Delaware, and its principal business address is 11460 Cronridge Drive, Owings
Mills, Maryland 21117.
None of Aether, its directors or executive officers has, during the
last five years, been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or (ii) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which he, she or it is or was subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Aether acquired 7,766,769 shares of the Issuer's Common Stock on March
17, 2000 pursuant to the Purchase Agreement in consideration for the payment by
Aether to Metrocall of an aggregate of $17,009,224, or $2.19 per share, in cash.
The source of funds for this transaction was cash on hand of Aether designated
for general corporate purposes.
ITEM 4. PURPOSE OF THE TRANSACTION
The Issuer's Common Stock was acquired by Aether for investment
purposes. Aether intends to review continuously its position in the Issuer.
Depending upon future evaluations of the business prospects of the Issuer and
upon other developments, including, but not limited to, general economic and
business conditions and stock market conditions, Aether may retain or from time
to time increase its holdings or dispose of all or a portion of its holdings
subject to any applicable legal and contractual restrictions on its ability to
do so.
(a) See Item 6.
(b) Not applicable.
(c) Not applicable.
(d) Pursuant to the Purchase Agreement, Metrocall's Chief
Executive Officer recommended to Metrocall's Nominating and
Governance Committee that (i) the Board of Directors of
Metrocall elect George P. Stamas to Metrocall's Board of
Directors effective as of the closing date (i.e., March 17,
2000), and (ii) such person be nominated to a three-year
term with the other nominated members of Metrocall's
Board at the next annual meeting of stockholders
of Metrocall. After such term expires, so long as Aether owns
at least 5% of the issued and outstanding Common Stock of
Metrocall, such person or another senior executive of Aether
reasonably acceptable to Metrocall will be nominated for
another three-year term.
(e) Not applicable.
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(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
(i) Not applicable.
(j) Not applicable.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Aether is the sole beneficial owner of 7,766,769 shares of the
Issuer's Common Stock, or 9.67% of the Issuer's outstanding
Common Stock. The percentage of the Issuer's Common Stock
reported to be beneficially owned by Aether is based on
43,645,517 shares of the Issuer's Common Stock outstanding as
of March 10, 2000, as represented by the Issuer in
documentation delivered in connection with the closing of the
transactions under the Purchase Agreement, and also includes:
(i) an aggregate of 7,822,422 shares of the Issuer's Common
Stock represented by the Issuer to have been purchased on
March 17, 2000 by certain affiliates of Hicks, Muse, Tate &
Furst Incorporated, and 7,822,442 shares of the Issuer's
Common Stock represented by the Issuer to have been purchased
by PSINet Inc., in each case pursuant to separate
common stock purchase agreements entered into with the Issuer;
and (ii) an aggregate of 13,250,000 shares of the Issuer's
Common Stock represented by the Issuer to have been issued to
AT&T Wireless Services, Inc. on March 17, 2000 pursuant to the
conversion by AT&T Wireless Services Inc. of the Issuer's
Series C Preferred Stock pursuant to a separate agreement
entered into with the Issuer.
(b) Except as described in Item 6 below, Aether has sole voting
and dispositive power with respect to the 7,766,769 shares of
the Issuer's Common Stock beneficially owned by it.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
Pursuant to the Purchase Agreement, Aether has granted to the Issuer an
irrevocable proxy pursuant to which all the shares of the Issuer's Common Stock
acquired under the Purchase Agreement shall be voted for the nominees of the
Issuer's Board of Directors for election to the Issuer's Board for a period of
12 months after the closing date (i.e., until March 17, 2001). The Agreement and
Irrevocable Proxy dated as of March 17, 2000 by and between Aether and Metrocall
is incorporated by reference as an Exhibit to this Schedule 13D.
Pursuant to the Purchase Agreement, Aether has agreed that, for a
period of 12 months after the closing date (i.e., until March 17, 2001), it will
not, directly or indirectly, sell, transfer or otherwise dispose of any of the
shares of the Issuer's Common Stock acquired under the Purchase Agreement, other
than to an affiliate of Aether or pursuant to a pledge to an unaffiliated
third-party lender in connection with a bona fide lending transaction or a
foreclosure or similar sale in connection therewith, unless Aether shall first
offer the Issuer the right to purchase any such shares proposed to be sold by
Aether at the current market price in accordance with the terms of the Purchase
Agreement.
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Pursuant to the Purchase Agreement, Aether has agreed that, for a
period of 24 months after the closing date (i.e., until March 17, 2002), it
shall not and shall not permit any of its affiliates to, directly or indirectly,
without the prior approval of the Issuer, subject to certain specified
exceptions, (i) acquire or make any proposal to acquire any securities of the
Issuer if such acquisition would result in Aether becoming a beneficial owner of
more than 15% of Issuer's outstanding Common Stock; (ii) propose any merger,
consolidation or business combination involving the Issuer or its affiliates or
any purchase of a substantial portion of the assets of the Issuer or its
affiliates; (iii) solicit proxies or consents or become a participant in a
solicitation; (iv) propose any matter for submission to a vote of the Issuer's
shareholders; (v) form, join or in any way participate in a group with respect
to any of the Issuer's voting securities; (vi) grant any proxy with respect to
any of the Issuer's voting securities to any person not approved by the Issuer;
(vii) deposit any of the Issuer's voting securities in a voting trust or subject
any of the Issuer's voting securities to any arrangement or agreement with
respect to such voting securities; or (viii) seek to influence or influence the
Issuer's management policies.
Aether and the Issuer have also entered into a registration rights
agreement, pursuant to which the Issuer has agreed to register the Issuer's
Common Stock acquired under the Purchase Agreement, subject to certain specified
terms and conditions.
Other than as described above, there are no contracts, arrangements,
understandings or relationships between Aether and any other person, among any
of Aether's executive officers and directors or, to the best knowledge of
Aether, between any of Aether's executive officers and directors and any other
person, with respect to the shares of the Issuer's Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Common Stock Purchase Agreement, dated as of February 2, 2000,
by and between Aether and Metrocall.
2. Agreement and Irrevocable Proxy, dated as of March 17, 2000,
by and between Aether and Metrocall.
3. Registration Rights Agreement, dated as of March 17, 2000, by
and between Aether and Metrocall.
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SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief I certify that the information set forth in this statement is true,
complete and correct.
Dated: March 28, 2000 Aether Systems, Inc.
By: /s/ David C. Reymann
-------------------------------------
David C. Reymann
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
Number Exhibit Name Location
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1. Common Stock Purchase Incorporated by reference
Agreement, dated as of from Exhibit 10.4 to
February 2, 2000, by and Metrocall, Inc.'s Annual
between Aether Systems,Inc. Report on Form 10-K for
and Metrocall, Inc. the fiscal year ended
December 31, 1999 located
under Securities and
Exchange Commission File
No. 0-21924
2. Agreement and Irrevocable Filed herewith
Proxy, dated as of March 17,
2000, by and between Aether
Systems, Inc. and Metrocall, Inc.
3. Registration Rights Agreement, Filed herewith
dated as of March 17, 2000,
by and between Aether Systems,
Inc. and Metrocall, Inc.
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of March 17, 2000, by and between METROCALL, INC., a Delaware corporation
(the "Company"), and AETHER SYSTEMS, INC., a Delaware corporation ("Purchaser").
RECITALS
WHEREAS, the Company and Purchaser are parties to that certain Common
Stock Purchase Agreement, dated as of February 2, 2000 (the "Stock Purchase
Agreement"), pursuant to which Purchaser will purchase from the Company (the
"Purchase") shares of Common Stock (the "Shares") equal to the lesser of (a)
7,766,769 and (b) 9.9% of the issued and outstanding shares of Common Stock of
the Company, after giving effect to any sales or other issuances of Common Stock
on or before the Closing Date (the "Common Shares") of common stock, $.01 par
value, of the Company (the "Common Stock"); and
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Stock Purchase Agreement that the Company and
Purchaser enter into this Agreement.
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, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 "CLOSING" means the closing of the Purchase pursuant to which the
Company will have issued the Common Shares to Purchaser in accordance with the
terms and conditions of the Stock Purchase Agreement.
1.02 "COMMISSION" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
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.
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1.05 "HOLDER" means Purchaser and/or its permitted successors and
assigns pursuant to Section 6.05.
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 the Common Shares received by
Purchaser from the Company pursuant to the Stock Purchase Agreement and any
additional shares of Common Stock issued by the Company in respect thereof in
connection with 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 Holder, or (iii) the Holder of such Registrable
Security is then able to use Rule 144(k) under the Securities Act (or any
successor provision) to transfer such Registrable Security.
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.
ARTICLE II
REGISTRATION RIGHTS
2.01 REQUIRED REGISTRATIONS. At any time or times after the date hereof
(so long as Holder shall own Registrable Securities), Holder may notify the
Company in writing that it (i) intends to offer or cause to be offered for
public sale all or any portion of its Registrable Securities (such requests
shall be in writing and shall state the number of shares of Registrable
Securities intended to be disposed of) and (ii) request that the Company cause
such Registrable Securities to be registered under the Securities Act; provided,
that any such request shall cover at least 2,000,000 shares and shall not be
made more frequently than every 12 months. The Company shall prepare and file
with the Commission registration statements under the Securities Act with
respect to the Registrable Securities requested to be so registered and shall
use its reasonable best efforts to cause such registration statements to become
effective promptly after filing. The registration statement with respect to such
Registrable Securities shall be filed with the Commission within thirty (30)
days after receipt of Holder's notification relating thereto.
Except as provided in the next succeeding paragraph of this Section
2.01, the Company shall use its reasonable best efforts to maintain the
effectiveness of each registration statement filed pursuant to this Section 2.01
until such time as all Shares registered pursuant to the registration statement
either have been transferred pursuant to the registration statement or are
eligible to be sold by Holder pursuant to Rule 144(k) under the Securities Act.
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The obligations of the Company under this Section 2.01 are subject to
the condition that the Company shall be entitled to require the Holder to
suspend for up to ninety (90) days once in any twelve month period the sale of
Shares pursuant to a registration statement filed pursuant to this Section 2.01
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, provided, however,
that this clause (i) will not apply to sales of securities by the Company for
the account of any Person other than the Company; (ii) the Company promptly
gives the Holder 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 the Shares during periods when the Holder
is required to suspend the sale of such Shares as provided in this paragraph. As
soon as possible after the expiration of such periods, the Company shall amend
its registration statements as necessary to permit the Holder to sell Shares
pursuant to such registration statements and shall notify the Holder in writing
that it may resume the sale of Shares pursuant to such Registration Statement.
Any registration made pursuant to this Section 2.01 shall not include a plan of
distribution involving an underwritten offering.
2.02. PIGGYBACK REGISTRATION. (a) If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Stock for its own account or for the account of another Person (other
than a registration statement on Form S-4 or S-8, or pursuant to Rule 415 (or
any substitute form or rule, respectively, that may be adopted by the
Commission)), the Company shall give written notice of such proposed filing to
the Holder at the address set forth in the share register of the Company as soon
as reasonably practicable (but in no event less than 15 days before the
anticipated filing date), undertaking to provide the Holder the opportunity to
register on the same terms and conditions such number of Registrable Securities
as the Holder may request (a "PIGGYBACK REGISTRATION"). The Holder will have
seven business days after receipt of any such notice to notify the Company as to
whether it wishes to participate in a Piggyback Registration (which notice shall
not be deemed to be a request pursuant to Section 2.01); provided that should
the Holder fail to provide timely notice to the Company, the Holder will forfeit
any rights to participate in the Piggyback Registration with respect to such
proposed offering. In the event that the registration statement is filed on
behalf of a Person other than the Company, the Company will use its reasonable
best efforts to have the Registrable Securities that the Holder wishes to sell
included in the registration statement. If the Company or the Person for whose
account such offering is being made shall determine in its sole discretion not
to register or to delay the proposed offering, the Company may, at its election,
provide written notice of such determination to the Holder and (i) in the case
of a determination not to effect the proposed offering, shall thereupon be
relieved of the obligation to register such Registrable Securities in connection
therewith, and (ii) in the case of a determination to delay a proposed offering,
shall thereupon be permitted to delay registering such Registrable Securities
for the same period as the delay in respect of the proposed offering. As between
the Company and the Holder, the Company shall be entitled to select the
underwriters in connection with any Piggyback Registration.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If the Registrable Securities
requested to be included in the Piggyback Registration by the Holder differ from
the type of securities proposed to be registered by the Company and the managing
underwriter advises the Company that due to
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such differences the inclusion of such Registrable Securities would cause a
material adverse effect on the business, results of operations, properties,
financial condition, assets and liabilities of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect"), then (i) the number of Holder's
Registrable Securities to be included in the Piggyback Registration shall be
reduced to an amount which, in the opinion of the managing underwriter, would
eliminate such Material Adverse Effect or (ii) if no such reduction would, in
the opinion of the managing underwriter, eliminate such Material Adverse Effect,
then the Company shall have the right to exclude all such Registrable Securities
from such Piggyback Registration, provided, that no other securities of such
type are included and offered for the account of any other Person in such
Piggyback Registration. Any partial reduction in number of Registrable
Securities of the Holder to be included in the Piggyback Registration pursuant
to clause (i) of the immediately preceding sentence shall be effected pro rata
based on the ratio which the Holder's requested shares bears to the total number
of shares requested to be included in such Piggyback Registration by all Persons
other than the Company who have the contractual right to request that their
shares be included in such registration statement and who have requested that
their shares be included. If the Registrable Securities requested to be included
in the registration statement are of the same type as the securities being
registered by the Company and the managing underwriter advises the Company that
the inclusion of such Registrable Securities would cause a Material Adverse
Effect, the Company will be obligated to include in such registration statement,
as to the Holder, only a portion of the shares Holder has requested be
registered equal to the ratio which the Holder's requested shares bears to the
total number of shares requested to be included in such registration statement
by all Persons (other than the Person or Persons initiating such registration
request) who have the contractual right to request that their shares be included
in such registration statement and who have requested their shares be included;
provided, that in the event the Company registers shares of Common Stock in an
underwritten offering pursuant to Section 2.02 of the Registration Rights
Agreement dated as of March 17, 2000 between the Company and AT&T Wireless
Services, Inc. ("Wireless"), then all shares to be registered on behalf of
Wireless pursuant to such agreement shall be included in such registration
statement before any shares of Common Stock to be sold by the Company for its
own account or the account of the Holder or any other Person entitled to request
that their shares be included in such registration statement. If the Company
initiated the registration, for its own account or for the account of any other
Person other than the Holder, then the Company may include all of those
securities in such registration statement before any of Holder's requested
shares are included. If another security holder initiated the registration, then
the Company may not include any of its securities in such registration statement
unless all Registrable Securities requested to be included in the registration
statement by the Holder are included in such registration statement. If as a
result of the provisions of this Section 2.02(b) the Holder shall not be
entitled to include all Registrable Securities in a registration that the Holder
has requested to be so included, the Holder may withdraw its request to include
Registrable Securities in such registration statement prior to its
effectiveness.
ARTICLE III
REGISTRATION PROCEDURES
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3.01 COMPANY OBLIGATIONS. Whenever the Company is required under
Article II to register any Registrable Securities, it agrees that it shall also
do the following:
(a) furnish to the Holder, prior to the filing of a
registration statement pertaining to any 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
Holder (and its legal counsel), 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
Holder shall reasonably object in writing; and thereafter furnish to
the 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 the 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 reasonable 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 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 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 National Market System or the
Nasdaq SmallCap Market System (or, if the Company is not listed on the
Nasdaq National Market System or the Nasdaq SmallCap Market System, any
other exchange or automated quotation system on which the Company's
Common Stock is then listed) for the listing of the Shares and use its
best effort to obtain the listing of such Shares;
(d) notify the 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 an event requiring the preparation of a supplement or
amendment to such prospectus or filing of a report 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
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prepare, file with the Commission and make available to the Holder any
such supplement, amendment or report incorporated in the prospectus by
reference, including, without limitation, after any period referred to
in Section 2.01;
(e) make available for inspection by the Holder of 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;
PROVIDED, that the Company shall not be required to make such
information available to more than one law firm on behalf of the Holder
of Shares to be registered pursuant to a 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 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 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). The 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) obtain consents from its independent public accountants in
customary form as required to obtain and maintain effectiveness of a
Registration Statement;
(g) obtain an opinion or opinions from its counsel in
customary form and reasonably satisfactory to the Holder and its legal
counsel;
(h) make generally available to the Holder earnings
statements, which need not be audited, satisfying the provisions of
Section 11(a) of the Securities Act no later than 45 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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<PAGE> 14
(i) promptly notify the 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 best 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 best 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;
(j) if requested by the Holder, the Company will promptly
incorporate in a prospectus supplement or post-effective amendment to a
Registration Statement such information concerning Holder and Holder's
intended method of distribution as 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 or the amount of Shares being offered by 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;
(k) as promptly as practicable after the filing with the
Commission of any document which is incorporated by reference into a
Registration Statement, notify the Holder of such filing and deliver a
copy of such document to the Holder;
(l) cooperate with the 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 a Registration Statement, and enable such
Shares to be in such denominations and registered in such name as such
Holder may request;
(m) cooperate with the 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 National
Association of Securities Dealers, Inc. (the "NASD");
(n) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act.
(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
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<PAGE> 15
which shall be in a form complying with the requirements of such
transfer agent, promptly after a registration thereof; and
(q) use its reasonable 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 HOLDER. The Company may require the 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. The 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 a 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, NASD, stock exchange, automated quotation system 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 Holder 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
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 or automated quotation system on which
any shares of the Common Stock are then listed or quoted.
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<PAGE> 16
4.02 The Holder shall pay all its internal expenses incurred in
connection with the registration (including, without limitation, all salaries
and expenses of 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 the 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 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
the Holder expressly for use therein.
5.02 INDEMNIFICATION BY HOLDER. 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 in the Registration Statement or prospectus relating
to the Shares, 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, 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
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<PAGE> 17
5.01 hereof. Each Holder's liability under this Section 5.02 shall be limited to
an amount equal to the net proceeds received by such Holder from the sale of
such Registrable Securities by such Holder.
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.
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
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<PAGE> 18
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 meaning 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 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
Shares.
ARTICLE VI
MISCELLANEOUS
6.01 RULES 144 AND 144A. The Company covenants that following the
registration of shares it will file any reports required to be filed by it under
the Securities Act and the Exchange Act and will take such further action as the
Holder may reasonably request from time to time so as to enable the Holder
holding registered 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 the Holder, the Company will forthwith deliver to the Holder a
written statement as to whether it has complied with such requirements.
6.02 GRANTING OTHER REGISTRATION RIGHTS. On and after the date hereof,
except (i) as set forth in that certain Registration Rights Agreement dated as
of March 17, 2000 by and among Metrocall, Inc. and HMTF Bridge MC I, LLC, a
Delaware limited liability company, HM 4-EQ Metrocall Coinvestors, LLC, a
Delaware limited liability company, HM 4-SBS Metrocall Coinvestors, LLC, a
Delaware limited liability company, HM PG-IV Metrocall, LLC, a Delaware limited
liability company, HM4 Metrocall Qualified Fund, LLC, a Delaware limited
liability company, and HM4 Metrocall Private Fund, LLC, a Delaware limited
liability company and (ii) in connection with issuances of equity and/or debt
securities by the Company resulting in proceeds to the Company of at least
$25,000,000 (each, a "Significant Financing"), the Company
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<PAGE> 19
shall not grant any registration rights in respect of any shares of capital
stock of the Company or other securities of the Company if such rights would be
superior to the registration rights granted to Purchaser under this Agreement;
PROVIDED, HOWEVER, that Purchaser hereby consents and agrees that the Company
may grant in other agreements to other holders of securities of the Company
registration rights which (a) rank ratably with the registration rights granted
hereunder to Purchaser and (b) in the case of a Significant Financing, are
superior to the registration rights granted hereunder to Purchaser.
6.03 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 Holder.
6.04 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
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 the 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.
6.05 ASSIGNMENT OF REGISTRATION RIGHTS. Each Holder of the Registrable
Securities may assign all or any part of its rights under this Agreement to any
person to whom such Holder sells, transfers, or assigns such Registrable
Securities. In the event that the Holder shall assign its rights pursuant to
this Agreement in connection with the transfer of less than all
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<PAGE> 20
of its Registrable Securities, the Holder shall also retain its rights with
respect to its remaining Registrable Securities.
6.06 COUNTERPARTS. This Agreement may be executed in a number of
identical counterparts and it shall not be necessary for the Company and
Purchaser 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.
6.07 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.08 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.
6.09 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 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.
6.10 ENTIRE AGREEMENT. This Agreement and the Stock Purchase Agreement
(including schedules and exhibits thereto) are intended by the Company and
Purchaser 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
Purchaser, on the other, with respect to such subject matter.
6.11 THIRD PARTY BENEFICIARIES. Other than Indemnified Parties not a
party hereto, this Agreement is intended for the benefit of the Company,
Purchaser 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.
6.12 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
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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).
[Execution page following]
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<PAGE> 22
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: Executive Vice President
----------------------------
AETHER SYSTEMS, INC.
By: /s/ Brian W. Keane
----------------------------------
Name: Brian W. Keane
-----------------------------
Title: Senior Vice President
----------------------------
<PAGE> 23
EXECUTION COPY
AGREEMENT AND IRREVOCABLE PROXY
THIS AGREEMENT AND IRREVOCABLE PROXY (this "Agreement"), dated as of
March 17, 2000, is made by and between Aether Systems, Inc., a Delaware
corporation (the "Stockholder") and Metrocall, Inc. (the "Company").
RECITALS
A. Pursuant to that certain Common Stock Purchase Agreement by and between
Stockholder and Company dated as of February 2, 2000 (the "Stock Purchase
Agreement"), the Stockholder as of the date hereof acquired shares of common
stock of the Company.
B. The Stockholder is the owner, beneficially and of record, of shares of
common stock of the Company, with full power to vote these shares on all
matters upon which stockholders of the Company are entitled to vote.
C. With respect to a portion of the shares of common stock of the Company owned
by the Stockholder, the Stockholder desires to grant an irrevocable proxy (the
"Proxy") to the Company on the terms contained herein in order to facilitate the
orderly corporate governance of the Company and for the mutual benefit of the
Stockholder and the Company.
NOW THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Stockholder and the Company agree as follows:
1. REVOCATION OF PREVIOUS PROXIES. The Stockholder hereby revokes all
previous proxies granted with respect to any shares of common stock of the
Company owned by the Stockholder.
2. GRANT OF IRREVOCABLE PROXY AND APPOINTMENT OF PROXY. During the term
of this Agreement, the Stockholder hereby irrevocably grants to, constitutes and
appoints the Company its true and lawful proxy and attorney-in-fact with full
power of substitution, with respect to 7,766,769 shares of common stock of the
Company now owned, beneficially and of record, by the Stockholder (the
"Shares"), with full power to vote all the Shares for the nominees of the
Company's Board of Directors for election to the Board for 12 months after 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 Stockholder could act with respect to such matters, in the
same manner and with the same effect as if the Stockholder 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. The Proxy granted hereunder shall become effective
(the "Effective Time") immediately upon the closing of the transactions
contemplated in the Stock Purchase Agreement.
<PAGE> 24
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
represents and warrants to the Company that:
a. Stockholder has full power and authority to enter into this
Agreement and to grant the Proxy, and to perform its obligations hereunder;
b. this Agreement has been duly executed and delivered by and
constitutes a valid and binding obligation of the Stockholder;
c. as of the Effective Time, the Shares will consist of 7,766,769
shares of common stock of the Company, and all of the Shares will be owned
beneficially and of record by the Stockholder;
d. as of the Effective Time, the Stockholder will own the Shares
free and clear of all liens, charges, claims, encumbrances and security
interests of any nature whatsoever;
e. as of the Effective Time, the Stockholder will have the
present power and right to vote all of the Shares;
f. Stockholder has not (i) granted any proxy, power-of-attorney
or other authorization or interest with respect to any of such Shares, (ii)
deposited any of the Shares into a voting trust or (iii) entered into any
voting agreement or other arrangement with respect to the voting of any of the
Shares on any of the matters described in Section 2; and
g. the execution and delivery of, and the performance of the
obligations under, this Agreement by Stockholder does not require the consent,
approval or authorization of, or filing with, any person or public authority
and will not violate or conflict with, result in the acceleration or
termination of, or constitute a default under, any term or provision of any
charter or by-law, indenture, license, approval, agreement, understanding or
other instrument, or any statute, rule, regulation, judgment, order or other
restriction binding upon or applicable to Stockholder other than a term,
provision, statute, rule, regulation, judgment, order or other restriction the
violation of, or conflict with, which would not have a material adverse effect
on Stockholder.
4. COVENANTS.a. After the Effective Time, the Stockholder hereby
covenants and agrees that it will not vote or take any action by written
consent of stockholders in lieu of meeting on any matter which is subject to
the Proxy without the prior written consent of the Company.
5. CONSIDERATION. The Stockholder and the Company each acknowledge
that the Proxy is granted in order to facilitate the orderly corporate
governance of the Company and for the mutual benefit of the Stockholder and the
Company. STOCKHOLDER 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 POWER AND SHALL NOT BE TERMINATED BY ANY ACT OF
STOCKHOLDER, BY LACK OF APPROPRIATE POWER OR AUTHORITY OR
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<PAGE> 25
BY THE OCCURRENCE OF ANY OTHER EVENT OR EVENTS; PROVIDED, HOWEVER, THAT THE
PROXY SHALL EXPIRE AS PROVIDED IN SECTION 6.
6. EXPIRATION OF PROXY. This Irrevocable Proxy shall expire and be of
no effect upon the first anniversary of the date hereof.
7. GOVERNING LAW. The terms and provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the provisions thereof relating to conflicts of law.
8. SUCCESSORS AND ASSIGNS. The terms and provisions of this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by the
successors and assigns of the parties to this Agreement.
9. SPECIFIC PERFORMANCE. The parties acknowledge and agree that
performance of their respective obligations under this Agreement will confer a
unique benefit on the other and that a failure of performance will result in
irreparable harm to the other and will not be compensable by money damages.
Therefore, the parties agree that this Agreement, including the Proxy, shall be
specifically enforceable and that specific enforcement and injunctive relief
shall be a remedy properly available to each party for any breach of any
agreement, covenant or representation of the other party under this Agreement.
10. FURTHER ASSURANCES. Stockholder will, upon request, execute and
deliver any additional documents and take such further actions as may
reasonably be deemed by the Company to be necessary or desirable to complete
the Proxy granted in this Agreement or to carry out the provisions of this
Agreement.
11. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement, or the application thereof to any circumstance, shall, to any
extent, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement or the application thereof to any other
circumstance, shall remain in full force and effect, shall not in any way be
affected, impaired or invalidated and shall be enforced to the fullest extent
permitted by law.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties on the subject matter contained in this Agreement and
supersedes all prior and contemporaneous agreements and understandings, oral or
written, between the parties on the subject matter contained in this Agreement.
13. NOTICES. All notices, requests, demands and other communications
provided for in this Agreement shall be in writing, shall be delivered by hand,
mailed by registered or certified first-class mail, return receipt requested,
postage prepaid or by facsimile (with machine confirmation) or overnight
courier (with proof of delivery requested), shall be deemed given when received
and shall be addressed to the parties at their respective address listed below
or to other persons or addresses that a party may designate after delivering an
appropriate notice to the other party in the manner in this Section 13:
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<PAGE> 26
if to the Company, to it at: if to Stockholder, to it at:
Metrocall, Inc. Aether Systems, Inc.
6677 Richmond Highway 11460 Cronridge Drive
Alexandria, VA 22306 Owings Mills, MD 21117
Attn: Vince D. Kelly, Attn: Brian W. Keane
Chief Financial Officer Fax: 410-654-6554
and Treasurer
Fax: 703-768-9625
14. MODIFICATIONS. This Agreement may not be changed, amended or
modified orally, but only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge may be
sought.
15. INTERPRETATION. The section headings herein are for convenience
only and shall not affect the meaning or interpretation of this Agreement. No
provision of this Agreement shall be interpreted or construed against either
party solely because that party or its legal representative drafted the
provision.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same document. This Agreement may be executed and
delivered by facsimile signature, which signature shall be deemed an original.
[signatures on following page]
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<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
AETHER SYSTEMS, INC.
a Delaware corporation
By: /s/ Brian W. Keane
----------------------------
Dated: 17 March , 2000 Name: Brian W. Keane
----------------------------
Title: Senior Vice President
----------------------------
METROCALL, INC.,
a Delaware corporation
Dated: March 17, 2000
By: /s/ Steven D. Jacoby
-------------------------------
Name: Steven D. Jacoby
--------------------------
Title: Executive Vice President
-------------------------
5
