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)
Kathleen B. Horne, Esq.
Bruce E. Rosenthal, Esq. Senior Vice President and General Counsel
Nixon Peabody LLP PSINet Inc.
437 Madison Avenue 510 Huntmar Park Drive
New York, New York 10022-7001 Herndon, Virginia 20170-5100
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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)
(Page 1 of 7 Pages)
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SCHEDULE 13D
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CUSIP NO. 591647102 PAGE 2 OF 7 PAGES
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N91230.1
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
PSINet Inc.
16-1353600
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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*
WC
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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 New York
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH 7,822,442 (See Item 6)
--------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------
9 SOLE DISPOSITIVE POWER
7,822,442 (See Item 6)
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,822,442
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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
9.7%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT.
<PAGE>
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 PSINet Inc. ("PSINet") in
connection with its acquisition of 7,822,442 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 Metrocall and PSINet (the "Purchase Agreement").
The Purchase Agreement is incorporated by reference as an Exhibit to this
Schedule 13D.
PSINet is organized as a corporation under the laws of the State of New
York, and its principal business address is 510 Huntmar Park Drive, Herndon,
Virginia 20170. PSINet is a global facilities-based Internet Protocol (IP) data
communications carrier focused on the business marketplace. The names, business
addresses, principal occupations and citizenship of the directors and executive
officers of PSINet are set forth in Annex A hereto and are incorporated herein
by reference.
None of PSINet, 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
PSINet acquired 7,822,442 shares of the Issuer's Common Stock on March
17, 2000 pursuant to the Purchase Agreement in consideration for the payment by
PSINet to Metrocall of an aggregate of $17,131,147, or $2.19 per share, in cash.
The source of funds for this transaction was working capital of PSINet.
ITEM 4. PURPOSE OF THE TRANSACTION
The Issuer's Common Stock was acquired by PSINet for investment
purposes.
(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 a senior executive of PSINet designated by
PSINet reasonably acceptable to Metrocall (who is Harold S.
Wills, PSINet's President and Chief Operating Officer) 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 PSINet owns
at least 7.5% of the issued and outstanding Common Stock of
Metrocall, such person or another senior executive of PSINet
reasonably acceptable to Metrocall will be nominated for
another three-year term.
(e) Not applicable.
Page 3 of 7 Pages
<PAGE>
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
(i) Not applicable.
(j) Not applicable.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) PSINet is the sole beneficial owner of 7,822,442 shares of the
Issuer's Common Stock, or 9.7% of the Issuer's outstanding
Common Stock. The percentage of the Issuer's Common Stock
reported to be beneficially owned by PSINet 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 7,766,769 shares of the Issuer's
Common Stock represented by the Issuer to have been purchased
by Aether Systems, 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, PSINet has sole voting
and dispositive power with respect to the 7,822,442 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, PSINet 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 PSINet and Metrocall
is incorporated by reference as an Exhibit to this Schedule 13D.
Pursuant to the Purchase Agreement, PSINet 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 PSINet 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 PSINet shall first
offer the Issuer the right to purchase any such shares proposed to be sold by
PSINet at the current market price in accordance with the terms of the Purchase
Agreement.
Page 4 of 7 Pages
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Pursuant to the Purchase Agreement, PSINet 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; (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; or (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. PSINet 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 PSINet and any other person, among any
of PSINet's executive officers and directors or, to the best knowledge of
PSINet, between any of PSINet'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 PSINet and Metrocall.
2. Agreement and Irrevocable Proxy dated as of March 17, 2000 by
and between PSINet and Metrocall.
Page 5 of 7 Pages
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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 24, 2000 PSINet Inc.
By: /s/ Harold S. Wills
-------------------------------------
Harold S. Wills
President and Chief Operating Officer
Page 6 of 7 Pages
<PAGE>
Schedule A
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS OF PSINET INC. (all with business addresses at
510 Huntmar Park Drive, Herndon, VA 20170):
<S> <C> <C>
Name Citizen Title
William L. Schrader United States Chairman of the Board of Directors and Chief Executive
Officer (Founder)
Harold S. Wills United States President, Chief Operating Officer and Director
David N. Kunkel United States Vice Chairman, Executive Vice President and Director
Geoffrey E. Axton United Kingdom Senior Vice President and President, U.S. Operations and
Corporate Development
James F. Cragg United States Senior Vice President and President, U.S. Sales and Marketing
Edward A. Davis United States Senior Vice President and President, PSINetworks Company
Harry G. Hobbs United States Senior Vice President and President, PSINet Europe
Kathleen B. Horne United States Senior Vice President, Corporate Secretary and General Counsel
Philippe J. Kuperman United States Senior Vice President and President, PSINet Latin America
Chi H. Kwan United States Senior Vice President and President, PSINet Asia/Pacific
Michael J. Malesardi United States Senior Vice President and Controller
John B. Muleta United States Senior Vice President and President, Global Facilities
Development and IMEA (India, Middle East and Africa)
William A. Opet United States Senior Vice President and President, Transaction Networks
Division
Lawrence Winkler United States Senior Vice President and Treasurer
NON-EXECUTIVE DIRECTORS OF PSINET INC. (all with business addresses at
510 Huntmar Park Drive, Herndon, VA 20170):
William H. Baumer United States Director of PSINet, Professor of Philosophy, University at
Buffalo
Ian P. Sharp Canada Director of PSINet, Retired, former President of I.P Sharp
Associates
Ralph J. Swett United States Director of PSINet, Retired, former Chairman,
Chief Execttive Officer and President of IXC Communications Inc.
</TABLE>
Page 7 of 7 Pages
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit Name Location
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1. Common Stock Purchase Incorporated by reference
Agreement dated as of from Exhibit 10.5 to
February 2, 2000 by and Metrocall, Inc.'s Annual
between PSINet Inc. and Report on Form 10-K for
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 PSINet Inc.
and Metrocall, Inc.
<PAGE>
Exhibit 2
AGREEMENT AND IRREVOCABLE PROXY
THIS AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") dated as of
March 17, 2000, is made by and between PSINet Inc., a New York 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 has 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 the shares of common stock of the Company acquired by the
Stockholder pursuant to the Stock Purchase Agreement, the Stockholder is
required pursuant to Section 1.4(b) of the Stock Purchase Agreement 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. Grant of Irrevocable Proxy and Appointment of Proxy. Until the
termination of this Agreement pursuant to Section 5 below, 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 7,822,442 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 is
limited as set forth above and does not constitute a grant of the Stockholder's
proxy as to any other matter for which the Shares are entitled to vote. The
Proxy granted hereunder shall become effective (the "Effective Time")
immediately upon the closing of the transactions contemplated by the Stock
Purchase Agreement.
1
<PAGE>
2. 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
7,822,442 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, other than as provided in the Stock Purchase
Agreement and this Agreement;
e. as of the Effective Time, the Stockholder will have the
present power and right to vote all of the Shares, subject to the Proxy;
f. except pursuant to this Agreement, 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 1; and
g. to Stockholder's knowledge, the execution and delivery of,
and the performance of the obligations under, this Agreement by Stockholder do
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, material 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.
3. Covenants. After the Effective Time and until the termination of
this Agreement pursuant to Section 5 below, 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.
4. 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
2
<PAGE>
ACT OF STOCKHOLDER, BY LACK OF APPROPRIATE POWER OR AUTHORITY OR BY THE
OCCURRENCE OF ANY OTHER EVENT OR EVENTS; PROVIDED, HOWEVER, THAT THE PROXY SHALL
EXPIRE AS PROVIDED IN SECTION 5.
5. Expiration of Proxy. This Agreement shall expire and be of no
further force or effect upon the first anniversary of the date hereof.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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 12:
3
<PAGE>
if to the Company, to it at: if to Stockholder, to it at:
Metrocall, Inc. PSINet Inc.
6677 Richmond Highway 510 Huntmar Park Drive
Alexandria, VA 22306 Herndon, VA 20170
Attn: Vince D. Kelly, Attn: Geoffrey E. Axton,
Chief Financial Officer Senior Vice President, Business
and Treasurer and Corporate Development
Fax: 703-768-9625 Fax: 703-476-2983
13. 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.
14. 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.
15. 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]
4
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
PSINET INC.
a New York corporation
By:/s/William L. Schrader
----------------------------
Dated: March 17, 2000 Name: William L. Schrader
Title:Chairman and CEO
METROCALL, INC.,
a Delaware corporation
By:/s/Steven D. Jacoby
----------------------------
Dated: March 17, 2000 Name: Steven D. Jacoby
Title: Executive Vice President
